Asuramanage v Anglican Aged Care Services Group - [2023] VSC 525

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

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

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.

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.

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.

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.

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.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 525
Decision Date: 7 September 2023

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