Besnek v City of Boroondara
[2017] VCC 1482
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-00678
| NURAY BESNEK | Plaintiff |
| v | |
| CITY OF BOROONDARA | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2017 | |
DATE OF RULING: | 19 October 2017 | |
CASE MAY BE CITED AS: | Besnek v City of Boroondara | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1482 | |
REASONS FOR RULING
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s274 – questions referred to Medical Panel and answers and Reasons obtained – defendant seeks to send further questions to Panel – whether such referral proper – whether defendant in fact seeking to cross-examine Panel in the light of its Reasons – whether further questions should be referred – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Paoletti | Grando & Breheny |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application by the plaintiff to refer medical questions to a Medical Panel in accordance with s274 of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. The dispute centres upon whether, following the receipt of answers and Reasons for Opinion from a Panel, a party, in this instance the defendant, should be allowed to refer further questions. The matter proceeded by way of submissions and reference to various documents and cases. No oral evidence was called.
2 Mr R Paoletti of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf of the defendant. Each counsel made detailed and helpful submissions.
Factual background
3 The factual background can be summarised as follows. Essentially, the plaintiff is asserting that she suffered injury to both arms, neck and back, and injury of a psychological or psychiatric nature. The defendant sought to send to a Panel various medical questions. Objection was taken by the plaintiff to proposed questions. There was a hearing before his Honour Judge Wischusen on 18 May 2017 in which the same counsel were involved. Following that hearing, a quite extensive set of questions was forwarded to the Panel. On 4 September 2017, a Certificate of Opinion in which the questions were answered was received by the Court. In addition to the answers, quite lengthy Reasons for Opinion were received.
4 The Opinion of the Panel could be summarised by saying it had found that there was no medical condition of the plaintiff’s left arm, right arm, neck or back that continued to result from or be materially contributed to by injury suffered in employment. A previous left lateral epicondylitis had resolved. However, the plaintiff was suffering from an adjustment disorder with depressed and anxious mood. Whilst she was not continuing to suffer from any of the physical injuries referred to, she was suffering from a mental injury suffered in employment and that injury was likely to last for the foreseeable future. Furthermore, by reason of her psychiatric condition, the plaintiff had no current work capacity within the meaning of the Act and this was likely to last for the foreseeable future.
5 The defendant now seeks to put further questions to the Panel. Whilst there are only three of these questions, they are quite lengthy. They are prefaced not only by a referral to the earlier answers but also to the Reasons for Opinion and extracts therefrom. These are matters to which the Panel is to have regard in answering further questions. The first question appears to be an attempt to confine the Panel to considering whether the plaintiff’s lack of current work capacity is permanent, bearing in mind only the resolved left lateral epicondylitis as a related physical condition. It seems to me to be an attempt to cause the Panel to reconsider its view of a permanent lack of work capacity, given that any physical basis for the psychiatric condition has either resolved or did not exist.
6 The second question also deals with the issue of permanence and work capacity. It has as its obvious basis an extract from the Reasons for Opinion which reads as follows:
“The Plaintiff has been in receipt of psychological treatment from a Turkish speaking psychologist and has remained on a sub-optimal dose of Zoloft throughout. She has not been in receipt of any formal psychiatric review.”
7 The question is directed to whether the plaintiff’s condition would be permanent and, secondly, whether her incapacity for work would be permanent, if her dosage of Zoloft was increased.
8 The third question is virtually identical, save that, instead of being prefaced by a reference to an increased dosage of Zoloft, it is prefaced by the words “If the plaintiff underwent treatment by a psychiatrist”.
9 I should add that the defendant has also prepared quite lengthy further submissions to accompany these questions if they are referred.
10 The plaintiff argues that the defendant is not entitled to leave to ask these further questions and that lies at the heart of the dispute.
11 I now turn to a summary of the submissions on behalf of the parties in the order in which they were given.
The submissions on behalf of the defendant
12 The submissions of Mr McKenzie on behalf of the defendant could be summarised as follows.
13 There can be referral back to a Medical Panel for clarification of its Opinion. Reference is made to Lianos v Inner & Eastern Healthcare Network [2001] VSCA 53 and NZI Workers’ Compensation Victoria Ltd v Unalan [1999] VSC 234. A referral back in the present case is appropriate and desirable. The Reasons for Opinion of the Panel include reference to the plaintiff’s current complaints concerning her upper limbs, neck, low back and knees. There is also reference in the Reasons to the plaintiff having a sense of injustice that she had been terminated from her job after working tirelessly for 17 years for the defendant. The Reasons also observe that, regardless of the fact that her physical injuries have resolved, she has become significantly depressed and this greatly affects her work capacity. The only physical injury implicated is the left lateral epicondylitis and that has resolved. The defendant seeks to clarify these issues by way of proposed question 1.
14 Question 2 relates to whether the plaintiff’s psychiatric condition and its consequences would be permanent within the meaning of the Act if her dosage of Zoloft was increased. Permanence of consequences is a requirement that can be affected by appropriate treatment – see Bogdanoska v Allsmanti Pty Ltd [2010] VSCA 126. Both question 2 and question 3, which relates to possible treatment by a psychiatrist, directly involved the issue of permanence.
15 Answers to all questions would assist the Court in relation to resolving the dispute before it – see Isuzu General Motors Australia Ltd & Anor v Jordon (2000) 2 VR 212.
16 Questions of this nature fall within the definition of “medical questions” contained in s3(o) of the Act and it was intended that this provision be used in appropriate circumstances. In the present case, the issue which the defendant is seeking to have referred to a Panel is sufficiently clear, both in the application to the Court and in the wording of each question. In those circumstances, the questions should be referred – see Greeves v HIH Winterthur Compensation (Vic) Limited [2000] 1 VR 344. A broad approach was also endorsed in Bluescope Steel v Burford & Anor [2011] VSC 64.
17 These questions arise from issues in fact raised by the Medical Panel. The Reasons are before the Court. The issues can still be explored. Leave should be granted to refer the further three questions.
The submissions on behalf of the plaintiff
18 The submissions of Mr Paoletti on behalf of the plaintiff could be summarised as follows.
19 The plaintiff does not dispute that, in certain circumstances, there can be a referral of further questions. Ambiguous, unclear or incomplete answers might be examples of situations where further questions are required.
20 However, in the present case the answers are clear. Further questions are unnecessary and the referral of them would represent an abuse of process. In the present case, the sending of the proposed questions would in essence amount to cross-examination.
21 There must be some need for clarification arising from the answers themselves before further questions are sent. In Lianos, the Supreme Court specifically referred to the sending of further questions where there are concerns as to the contents of a Certificate of Opinion. That is not the situation here. Similarly, in Unalan, there was the failure on behalf of the Panel to supply a complete answer to a question. It was said that, if the Panel has not answered a question, the Court is entitled to seek an answer.
22 In relation to proposed question 1, the Panel in fact found that the plaintiff had suffered no physical injury to the right arm and that any problems in the neck and back were constitutional. It specifically did not find that the plaintiff’s psychiatric condition related to such injuries. However, it did specifically find that the plaintiff’s mental condition was related to the resolved left lateral epicondylitis. That is clear from the answer to the original questions 1 and 2. It is an unambiguous answer which requires no further explanation.
23 In relation to proposed questions 2 and 3, the Panel has stated clearly and unambiguously that such mental injury is permanent and likely to last for the foreseeable future – see, for example, the answers to questions 4, 6 and 18. If the Panel was of the view that the issue of permanency could be affected by psychiatric treatment or increased medication, it would have said so. Instead, it specifically said that the psychiatric condition was permanent, referring to the wording of the Act, and gave rise to a permanent and complete loss of earning capacity.
24 It is repeated that the answers are clear and that what is proposed is in reality an attempt to cross-examine the Panel, in the face of its findings. It is an attempt to get it to move to a consideration of the merits of the whole case, as opposed to answering specific questions.
25 Finally, if the defendant considers that the detailed Reasons provided by the Panel are illogical, erroneous or the like, it has its remedy by way of seeking a judicial review in the Supreme Court. This it has not done.
26 Leave should be refused to the defendant in relation to its attempt to forward further questions to the Panel.
Ruling
27 In my opinion, whilst Mr McKenzie advanced eloquent and well-prepared arguments, the defendant is not entitled to forward the proposed further questions. Apart from anything else, I agree with Mr Paoletti that this is really an attempt to effectively cross-examine the Panel or to persuade it to move from the position which it has previously adopted in its answers.
28 This is not a situation such as that to be found in Lianos or Unalan. If the Certificate of Opinion containing the answers is considered as an separate and independent document, those answers are quite clear. Unlike the situation in Lianos, there are no concerns as to the meaning of the Certificate. Unlike the situation in Unalan, the Panel has answered the questions and has answered them clearly and unambiguously.
29 The plaintiff has suffered the injury of left lateral epicondylitis, which has resolved. However, she still suffers from a medical condition of the mind which has been materially contributed to by injury suffered in her employment with the defendant – see question 3. That injury is permanent in that it is likely to last for, during or through the foreseeable future – see question 4. The plaintiff is incapacitated for her previous employment and that is likely to be permanent within the meaning of the Act – see questions 5 and 6. Her psychiatric condition results in or materially contributes to her having no current work capacity within the meaning of the Act – see question 15. Such incapacity, being that identified in response to question 15, is likely to be permanent, meaning likely to last for, during or through the foreseeable future – see question 18.
30 To my mind, all relevant questions have been answered succinctly, clearly and without any ambiguity. Accordingly, the Certificate of Opinion is clear and unambiguous. To send further questions based upon extracts from the Reasons for Opinion is an attempt at cross-examination so as to persuade the Panel to alter its Certificate. To my mind, that is not a course of action which falls within the operation of the Act or s274. To send further questions of this nature would be an abuse of process.
31 Further, I agree with Mr Paoletti that, if the defendant is of the opinion that the Reasons for Opinion are in some way deficient, illogical or erroneous, it has its remedy by way of judicial review in the Supreme Court. Its remedy is not to send further questions in a situation where the original answers are quite clear. I repeat that I find no ambiguity, lack of clarity or lack of completeness. The Certificate of Opinion is a perfectly valid one in accordance with the provisions of the Act.
32 Accordingly, leave to refer further answers to the Panel is refused. I shall hear the parties as to any further orders that are required.
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