Asuramanage v Anglican Aged Care Services Group

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03309

WAJIRA NILMINI GUNATHILAKA ASURAMANAGE Plaintiff
v 
ANGLICAN AGED CARE SERVICES GROUP & ORS (according to the schedule)  First Defendant

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JUDGE:

O’Meara J

WHERE HELD:

Melbourne

DATE OF HEARING:

25 August 2023

DATE OF JUDGMENT:

7 September 2023

CASE MAY BE CITED AS:

Asuramanage v Anglican Aged Care Services Group & Ors

MEDIUM NEUTRAL CITATION:

[2023] VSC 525

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ADMINISTRATIVE LAW – Judicial Review – Medical panel – Workplace incident in which the plaintiff suffered a low back injury and consequential psychiatric injury – Medical questions – Panel assessed the plaintiff’s whole person impairment at 0% – Mandatory relevant considerations – Panel’s reasons – American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition), sections 3.3, 3.3d, 3.3f, 3.3g and Tables 70, 71 and 72, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Chang v Neill (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187 and Victorian WorkCover Authority v Putrus [2023] VSCA 853 considered – Proceeding dismissed.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff JC Plunkett Maxiom Injury Lawyers
For the First Defendant M Norton and CN Viney TG Legal + Technology
For the Second to Sixth Defendants No appearance DLA Piper

HIS HONOUR:

A.       Background

  1. The plaintiff was employed by the first defendant, Anglican Aged Care Services Group, as a personal care attendant.

  1. On 7 November 2020, the plaintiff was attending a patient with dementia and claims to have reached to grab a call bell when the patient pulled her forward. The plaintiff says that she suffered sudden severe pain in her low back which radiated round to her front and into her groin and upper thighs.  She also says that she was incontinent of urine and was in so much pain that she could not move.

  1. The plaintiff was taken to Frankston Hospital Emergency Department by ambulance.  While in hospital, the plaintiff underwent investigation by MRI scanning which, among other things, was reported as disclosing an annular tear at the L4/L5 disc that ‘may be a source of acute pain’.[1]

    [1]Court book dated 6 June 2023 (‘CB’), 110-111.

  1. On 24 November 2020, the plaintiff lodged a worker’s compensation claim.  Under the heading ‘Incident & worker’s injury details’, the claim form described the injury/condition as ‘[b]ack injury – Annular tear with mild disc prolapse in the L4-L5’.[2]  

    [2]CB15.

  1. The plaintiff’s claim was accepted.   In that connection, the agent accepted that she had an ‘annular tear with mild disc prolapse at L4/5 region’.[3]

    [3]CB18.

  1. In about December 2020, the plaintiff was referred to Dr Hazem Akil, neurosurgeon.  In a report dated 9 December 2020, Dr Akil referred to the plaintiff’s symptoms and the MRI report from Frankston Hospital.  Dr Akil suggested that the plaintiff commence physiotherapy and that she could have a bone scan with SPECT views.[4]

    [4]CB170-171.

  1. In late December 2020, the plaintiff’s general practitioner referred…

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Details
Case
[2023] VSC 525
Decision Date

CaseChat Overview and Summary

The plaintiff, Asuramanage, sought judicial review of a decision made by the Anglican Aged Care Services Group. The plaintiff alleged that a workplace incident resulted in a low back injury and consequential psychiatric injury. The dispute centred around the assessment of the plaintiff's whole person impairment, which the panel determined to be 0%. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the panel, when assessing the plaintiff’s whole person impairment, correctly applied the relevant statutory and guideline provisions. Specifically, the court examined whether the panel adhered to the mandatory relevant considerations outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition), sections 3.3, 3.3d, 3.3f, 3.3g and Tables 70, 71 and 72.

The court held that the panel had appropriately followed the relevant statutory framework and guideline provisions in assessing the plaintiff's whole person impairment. The court found that the panel's reasoning and methodology were in line with the authorities, including Wingfoot Australia Partners Pty Ltd v Kocak, Chang v Neill, Sidiqi v Kotsios and Victorian WorkCover Authority v Putrus. The panel's consideration of all relevant factors and its adherence to the guidelines were deemed adequate. Consequently, the plaintiff's application for judicial review was dismissed.

Given the findings, the court ordered that the proceeding be dismissed. The plaintiff was also directed to pay the defendant's costs of the proceeding, which the defendant had previously applied for.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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