Bhullar v Australian Convenience Foods Group Pty Ltd (Ruling)
[2016] VCC 1485
•11 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05744
| TEJINDER BHULLAR | Plaintiff |
| v | |
| AUSTRALIAN CONVENIENCE FOODS GROUP PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2016 | |
DATE OF RULING: | 11 October 2016 | |
CASE MAY BE CITED AS: | Bhullar v Australian Convenience Foods Group Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1485 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Defendant seeking referral of medical question to Medical Panel – application of the Workplace Injury Rehabilitation and Compensation Act 2013
Legislation Cited: Accident Compensation Act 1985; Workplace InjuryRehabilitation and Compensation Act 2013
Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola (Ruling) (unreported, S APCI 2012 0162, 6 November 2012); Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227; Isuzu General Motors Australia Ltd and QBE v Jordon (2000) VSCA 63; Masters v McCubbery & Ors [1996] 1 VR 635; Yealand v Traveller Caravans Pty Ltd (Ruling) [2013] VCC 1048; McLelland v Victorian WorkCover Authority (VCC, unreported, 26 August 2016); Carter v Peninsula Transit Pty Ltd (Ruling) (VCC, unreported, 29 July 2016)
Judgment: Relief granted to defendant pursuant to s274(1) of the Workplace Injury Rehabilitation and Compensation Act 2013. Medical questions to be referred to the Medical Panel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R S Stanley | Slater & Gordon Ltd |
| For the Defendant | Ms S De Guio | Minter Ellison |
HER HONOUR:
1 On 28 July 2011 (“the said date”), the plaintiff suffered injury to his lower back whilst loading products from a pallet onto a truck (“the incident”). His claim for compensation pursuant to the Accident Compensation Act 1985 (“the Act”) was accepted.
2 On 7 December 2015, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB of the Act to bring common law proceedings in relation to the injuries he suffered to his lumbar spine or psychiatric injuries from the incident.
3 This is an application by the defendant for the referral of certain questions, which it is agreed are medical questions, to a Medical Panel pursuant to the provisions of s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).
4 Section 274 of the WIRCA provides:
“274 Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a)may, on the court’s own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b)if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party’s intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2)This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985—
(a) so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b) so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of medical question in section 3)—
to a Medical Panel for an opinion.
(3)If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4)A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
(5)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.”
5 The Court was notified that the defendant intended to refer the matter to the Medical Panel by Notice dated 25 August 2016. The matter was listed to be heard in the County Court at Melbourne on 25 October 2016.
6 The Court was, therefore, notified by the defendant of its intention to refer the matter to the Medical Panel more than fourteen days prior to the date listed for hearing, thus complying with s274(1)(b)(ii)) of the WIRCA.
7 Counsel on behalf of the defendant proposed nine medical questions which are set out in paragraph 38 of the Ruling.
8 The plaintiff opposes the questions going to the Medical Panel on the basis of s274(5) of the WIRCA.
9 That section provides:
“(5) 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.”
10 Counsel for the plaintiff indicated that the s134AB application will be brought pursuant to sub-paragraphs (a) and (c). The primary argument will be that there is an organic lumbar spine injury. If the Court is not satisfied the plaintiff’s spinal condition has a substantial organic basis, it will be submitted that he is suffering from a Chronic Pain Syndrome pursuant to subparagraph (c).[1]
[1]Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
11 It was submitted on the plaintiff’s behalf that the Medical Panel opinion in this matter would depend substantially on the resolution of factual issues relating to the plaintiff’s credit and the vocational evidence sought to be relied upon by the defendant.
12 It was submitted that the opinions of medico-legal examiners, rheumatologists, Dr Fraser and Dr Karna, raised issues as to the plaintiff’s credit which would be more appropriately determined by the Court than the Panel.
13 In this regard, Dr Fraser thought there was an overreaction on the plaintiff’s part when examined in September 2014. He found inconsistencies between formal straight leg raising and the plaintiff’s movement at other times and concluded that there was no physical basis for the plaintiff’s complaints. In Dr Karna’s view, there was abnormal illness behaviour and a sense of invalidism on the plaintiff’s part.
14 Dr Karna made similar findings on examination in March 2015. He found global non-anatomical global left sensory loss and thought there was a superadded Pain Syndrome to the plaintiff’s low-grade discogenic pain problem.
15 It was submitted that the presence of these non-organic features in the plaintiff’s presentation raised issues as to his credit and also the question of disentanglement of organic and non-organic features which was a matter for the Court, not the Panel.
16 Reliance was placed on Judge O’Neill’s decision in Amendola v United Doormakers (Vic) Pty Ltd (Ruling)[2] that, within serious injury cases, there are a range of factual disputes in every case, particularly as to the plaintiff’s credit, that can only be properly explored through cross-examination and are best determined by a judge.
[2][2012] VCC 1038
17 On appeal, Priest J noted that where resolution of matters relating to injuries and employment capacity turn on issues of credit, the Court is in a much better position to resolve factual matters in issue than the Panel.[3]
[3]United Doormakers (Vic) Pty Ltd v Amendola (VSCA, unreported, Priest JA, 16 November 2012) at paragraph [20]
18 Even if wrong in this regard, Priest J would still refuse leave, noting:
“There was much to be said for the proposition that this case turns on its own facts and is unlikely to be influential in other cases where it is sought to invoke the relevant section. Moreover, if left to stand, the decision does not finally determine the ultimate controversy between the parties … .”[4]
[4](Ibid) at paragraph [21]
19 In response, it was submitted on the defendant’s behalf that the Medical Panel’s opinion sought in this case does not depend substantially on the resolution of factual matters, more appropriately determined by the Court. The proposed medical questions centred on issues of diagnosis, causation and work capacity – quintessential Medical Panel issues.
20 Counsel for the defendant submitted there is a clear legislative intention to give a preference to Medical Panel determinations on the plain reading of s274 of the WIRCA, because reference to the Medical Panel is mandated unless the exceptions apply.[5]
[5]Isuzu General Motors Australia Ltd and QBE v Jordon (2000) VSCA 63 at paragraph [13] per Phillips JA
21 Reliance was also placed on the High Court decision of Wingfoot Australia Partners Pty Ltd v Kocak,[6] in which the Court explained the function of the Medical Panel.
[6](2013) 252 CLR 480
22 In particular:
“The function of a Medical Panel’s neither arbitral nor adjudicative: it’s neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function 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.”[7]
[7]Wingfoot Australia Partners Pty Ltd v Kocak (supra) at paragraph [47]
23 Counsel for the defendant distinguished Amendola from the present application on the basis that it involved factual matters not relevant in the present application, namely three separate workplace incidents, a prior injury and a subsequent transport accident as well as the compensable injury.
24 I accept this submission. Clearly, each case turns on its own facts, as Priest J noted in Amendola. The present application relates to one discrete injury with no other injury before or thereafter.
25 Whilst of the view that there were non-organic features to the plaintiff’s presentation, neither rheumatologist commented that the plaintiff deliberately feigned or exaggerated his level of restriction. Further, as counsel for the defendant conceded, this is not a case in which the defendant puts in issue the plaintiff’s credibility. There is no video surveillance relied upon. The issue is the plaintiff’s work capacity.[8]
[8]See for example McLelland v Victorian WorkCover Authority (VCC, unreported, Judge Coish, 26 August 2016)
26 Clearly in Amendola, determination by the Court of the role played by other injuries was crucial to the resolution of the matter and could only be explored properly through cross-examination of the plaintiff before the Court.
27 In the present case, the defendant is entitled to the Medical Panel’s opinion as to diagnosis of both the physical and psychiatric conditions. If there is found to be a pathological problem in relation to the lumbar spine, the chronic pain aspect pursuant to subparagraph (c) diminishes. Similarly, if there is a finding that there is no pathological problem, the chronic pain component from a psychiatric viewpoint would no doubt be elevated in importance and significance.
28 It was also submitted by counsel for the plaintiff that the IPAR vocational report relied upon by the defendant raised factual issues as to the plaintiff’s capacity for suitable employment which would be more appropriately dealt with by the Court.
29 It was submitted that whether a job is suitable is clearly not a medical question; it is a question of fact, requiring no medical expertise. Nor is it a medical question whether the plaintiff is suitable for work because of his education, level of English or previous work experience.
30 The vocational report was also criticised as it was over two years old and the qualifications of the author were in issue.[9]
[9]Carter v Peninsula Transit Pty Ltd (Ruling) (VCC, unreported, Judge Dyer, 29 July 2016) at paragraph [21]
31 Insofar as the plaintiff’s submissions focus on the alleged flaws and weaknesses in the IPAR vocational report, I share the comments made by Judge Coish in McLelland[10] that:
“The strengths and weaknesses of vocational reports obtained by the defendant are largely irrelevant to the issue.”
[10]McLelland v Victorian WorkCover Authority (supra) at paragraph [8]
32 His Honour also stated that:
“The fact that opinions may be expressed in those reports that various jobs are suitable employment is of no relevance to the application and is simply material one party may place before the Medical Panel which may be the subject of submissions or further material from the other party.”[11]
[11]Ibid
33 Further, Judge Coish found that the question of whether the plaintiff is able to perform certain roles is in part a factual and in part a medical question. It is the very issue many of the defined medical questions address. It is not more appropriately dealt with by the Court.[12]
[12](Ibid) at paragraph [9]
34 By use of the word “substantially” in s274(5) of the WIRCA, clearly not every factual dispute will bring the determination of a question within the exception. The Medical Panel is permitted to decide some factual matters. Subsection (5) requires that the resolution of the medical question must depend “substantially” on the resolution of factual issues which are more appropriately determined by a court.
35 In Masters v McCubbery & Ors,[13] the Court of Appeal acknowledged that a Panel can be called upon to decide matters of mixed law and fact. Indeed, it would be impossible for a Panel to ever reach any opinions on medical questions if it did not make factual findings as a precursor to doing so. Therefore, the fact the Medical Panel may have to determine some factual issues does not enliven ss(5).
[13][1996] 1 VR 635 at 642
36 In the present case, in my view, nothing raised by counsel for the plaintiff enlivens s274(5) as to proposed questions or their determination. Issues of diagnosis and capacity are clearly medical questions properly referable to the Medical Panel.
37 Further, it is not relevant to the present application that any opinion given by the Medical Panel may not be able to completely determine the issues in dispute.[14]
[14]Yealand v Traveller Caravans Pty Ltd (Ruling) [2013] VCC 1048 at paragraph [21(b)] per Judge Parrish
38 Having found that the proposed questions do not come within s274(5), I grant the relief sought by the defendant and order, pursuant to s274(1) of WIRCA, that the proposed medical questions be referred to the Medical Panel to provide an opinion in accordance with that Act.
Questions
1.What is the nature of the plaintiff’s medical condition (including sequelae) relevant to the following alleged injuries:
(a) L4-5 annular tear;
(b) L4-5 and L5-S1 disc bulge;
(c) chronic pain and dysfunction in the spine;
(d) sciatic pain and dysfunction in the left lower limb;
(e) adjustment disorder with depressed mood.
2.What is the extent to which any medical condition identified by the Medical Panel in answer to Question 1 results from or is materially contributed to by any, and if so which of the claimed injuries.
3.Does the plaintiff have a capacity to perform his pre injury work?
4.If “No” to paragraph 3 above, does the plaintiff’s incapacity for work result from or is it materially contributed to by any, and if so, which of the medical conditions identified in answer to Question 1?
5.If “No” to question 3, does the plaintiff have:
(a) a current work capacity; or
(b) no current work capacity?
6.If yes to question 5(a), what would constitute suitable employment?
7.If yes to question 5(a), does the following constitute suitable employment:
(a) Counter sales assistant;
(b) Courier driver;
(c) Stock clerk;
(d) Cashier;
(e) Car park attendant;
(f) Security officer?
8.If yes to question 5(a), for how many hours per week can the plaintiff perform any suitable employment identified in answer to questions 6 or 7:
(a) currently;
(b) in the foreseeable future?
9.If yes to question 5(b):
(a)Does such incapacity result from or is it materially contributed to by any and if so which of the medical conditions identified in answer to Question 1?
(b)Is such incapacity likely to be permanent (meaning to last for the foreseeable future)?
39 Further, the hearing date of 25 October 2016 is vacated by consent.
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