Collins v Eaton
[2011] VSC 71
•8 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7472 of 2008
| JEANETTE COLLINS | Plaintiff |
| v | |
| DR DAVID EATON & Ors (according to the attached schedule) | Defendants |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2011 | |
DATE OF RULING: | 8 March 2011 | |
CASE MAY BE CITED AS: | Collins v Eaton & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 71 | |
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ADMINISTRATIVE LAW – Judicial Review – Accident Compensation – Questions referred to medical panel – Error of law – Whether panel misapplied guidelines – s 91(6A) Accident Compensation Act 1985.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr B Anderson | Shine Lawyers |
| For the Thirdnamed Defendant and the Fourthnamed Defendant | Mr D Masel | Lander & Rogers |
| For the Firstnamed Defendant and the Secondnamed Defendant | No appearance |
HIS HONOUR:
In this proceeding the plaintiff seeks judicial review to quash a medical panel's opinion given on 23 May 2008 with respect to the extent of the plaintiff's physical impairment resulting from an injury suffered in the course of her employment. The panel's opinion was accompanied by written reasons for opinion, also dated 23 May 2008.
The plaintiff suffered occupational asthma as a result of her employment during the period between approximately 1996 and 2003 and as a consequence her claim was governed by the Accident Compensation Act 1985. The panel assessed the plaintiff's impairment which resulted from the accepted occupational asthma injury. The impairment was assessed pursuant to s 91(6A) of the Act which stipulates that for the purpose of assessing the degree of occupational asthma impairment, the guidelines, ‘Impairment Assessment in Workers with Occupational Asthma’ will apply. The guidelines are published in the Victorian Government Gazette, 27 July 2006, and in the present case operate in substitution for Chapter 5 of the Guides to the Evaluation of Permanent Impairment, 4th edition.
The plaintiff challenges the panel's determination of the plaintiff's degree of permanent whole person impairment at five per cent pursuant to s 91 of the Act. The plaintiff submits that the panel made an error of law in that it wrongly assessed the plaintiff's impairment as being in Class 2 of the guidelines, as opposed to being in Class 4 or alternatively Class 3 of the guidelines.
The third and fourth defendants accept that an error of law has occurred and the first and second defendants have properly indicated that they will abide by the order of the court and have taken no further part in the proceeding.
The orders that are sought from me are by consent insofar as the third and fourth defendants are concerned. Nevertheless, because the proceeding is premised upon an error of law it is necessary for me to briefly state why I am satisfied that there has been an error of a type reviewable before the court. It is well settled that the interpretation of the guidelines will raise a question of law if the panel asked itself, in effect, the wrong question, or misapplied the relevant test.[1]
[1]See for example H J Heinz Co Australia Ltd v Kotzman [2009] VSC 311 at [24].
The guidelines specify five potential categories of impairment being Class 1, zero per cent impairment, Class 2, one to nine per cent impairment, Class 3, 10 to 29 per cent, Class 4, 39 to 49 per cent impairment and Class 5, 50 to 100 per cent impairment. The guidelines relevantly provide as follows:
Class 2 – (1–9% Impairment)
• FEV1.0 > 80% predicted and/or
• Normal ventilatory capacity and/or
• No hospitalisation after diagnosis and/or
• Minimal or occasional medication (including the use of ß-agonists) or no anti-asthma therapy
• Breathless on walking briskly on level ground
• Breathless walking uphill, stairs or on prolonged or heavy exertion.
Class 3 – (10–29% Impairment)
• FEV1.0 > 70% predicted and/or
• Other documented impairment of ventilatory capacity and/or
• No hospitalisation and/or
• Occasional self managed asthma exacerbations
• Regular use of anti-asthma medication with inhaled ß-agonists and corticosteroids and/or
• Breathless on walking at normal pace for age on level ground
• Breathless on walking at normal pace for age with peer group, family or friends.
Class 4 – (30–49% Impairment)
• FEV1.0 60 – 69% predicted and/or
• Other documented impairment of ventilatory capacity and/or
• Frequent asthma exacerbations and/or
• Occasional Accident and Emergency Department or own doctor visits for asthma attacks and/or
• Occasional hospitalisations and/or
• Regular use of anti-asthma medication with inhaled ß-agonists, corticosteroids or other anti-asthma treatment and/or
• Occasional oral corticosteroids required
• Breathless on walking up one flight of stairs
• Breathless walking at own pace on level ground for more than 100 metres.
The panel's reasons for decision disclose that the panel found that:
(a) the plaintiff required the regular use of anti-asthma medication with inhaled ß-agonists and corticosteroids;
(b) the plaintiff attended the emergency department of a hospital in May 2006 for the purpose of treatment of asthma; and
(c) the plaintiff experienced breathlessness on walking more than 20 metres at moderate pace.
Having made these findings it is submitted the panel was then obliged to make a Class 4 finding or, alternatively, a Class 3 finding using the criteria set out above.
As I have said, it is not contested by the third and fourth defendants that this submission is correct and I accept that it should be upheld. The panel fell into error by placing the plaintiff's impairment in the Class 2 category. Accordingly, I will make the orders sought by consent.
Firstly, I will order that the time for issue of the originating motion be extended to 25 July 2008, secondly, that the opinion of the medical panel dated 23 May 2008 be set aside and that the questions be referred back to the convenor of medical panels for determination in accordance with law by a differently constituted medical panel. Thirdly, that the third and fourth defendants pay the plaintiff's costs of this proceeding.
SCHEDULE OF PARTIES
| No. 7472 of 2008 | |
| BETWEEN: | |
| JEANETTE COLLINS | Plaintiff |
| - and - | |
| DR DAVID EATON | Firstnamed Defendant |
| DR DAVID TREMBATH | Secondnamed Defendant |
| ALLIANZ AUSTRALIA WORKERS COMPENSATION (Vic) LTD (ACN 059 835 791) | Thirdnamed Defendant |
| COMPLEX ELECTRICAL (Vic) PTY LTD | Fourthnamed Defendant |
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