JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2019
DATE OF JUDGMENT:	18 December 2019
CASE MAY BE CITED AS:	Del Ben-Athanasaidis v RMIT & ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 674

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JUDICIAL REVIEW AND APPEALS – Application by a worker to quash the opinion of a medical panel concerning the medical condition of the worker – Adequacy of reasons – Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, referred to – Whether the medical panel’s reasons showed the path of reasoning to its conclusion that the worker’s symptoms were solely related to her previously asymptomatic constitutional condition – Whether the medical panel’s conclusion open to it on the evidence – Wilson v Liquorland Australia Pty Ltd [2014] VSC 545, referred to – Whether factual error amounts to jurisdictional error – Chang v Neill [2019] VSCA 151, referred to – Reasons inadequate to enable the Court to determine whether the medical panel had fulfilled its statutory function – Remedy of certiorari granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Harper	Arnold Thomas & Becker
For the Defendants	Mr M Fleming QC	Minter Ellison

HER HONOUR:

Introduction

This is an application for judicial review of an opinion of a medical panel (‘Panel’) concerning the medical condition and work capacity of the plaintiff, Ms Vilma Del Ben‑Athanasaidis (‘worker’). The finding of the Panel that the worker was not suffering from a work related injury which affected her capacity for work means that the worker is not entitled to weekly payments of compensation and the reimbursement of medical and like expenses pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’).

The worker was born on 23 September 1962. From 1981 until she was made redundant in October 2016, she worked as a finance officer with the first defendant (‘employer’).[1] Her duties as a finance officer involved general office administrative work, including invoicing, receipting, photocopying and filing, using a computer with a mouse, and handling heavy paper files and archive folders. Prior to 2011, she worked full time, dropping to two days a week after her return from maternity leave in 2011.[2] On 25 May 2016 the worker completed a Worker’s Injury claim form, referring to ‘tennis elbow – inflammation of the tendons of the elbow (epicondylitis)’, having first noticed symptoms in February 2016. She attributed her symptoms of right elbow pain to her ‘constant use of mouse at work’. Her claim for compensation was accepted by the employer. The worker was due to return to full time work in July 2016, but only returned for three days per week. At the time she was made redundant in October 2016, she was working two days per week.
[1]The remaining defendants…

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.

Continue reading Del Ben-Athanasaidis v RMIT

Details

AGLC: Del Ben-Athanasaidis v RMIT [2019] VSC 674
Case: [2019] VSC 674
Decision Date: 18 December 2019

CaseChat Overview and Summary

In the matter of Del Ben-Athanasaidis versus the Royal Melbourne Institute of Technology (RMIT), the applicant sought to challenge the opinion of a medical panel regarding her medical condition. The applicant contended that the panel's reasons were inadequate, did not show the path of reasoning to their conclusion, and contained factual errors. The application was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the reasons provided by the medical panel were sufficient to demonstrate the path of reasoning to their conclusion, whether the conclusion reached by the panel was open to them on the evidence presented, and whether any factual errors amounted to a jurisdictional error. The court referred to several precedent cases, including Morrison v Melbourne Pathology Pty Ltd, Wilson v Liquorland Australia Pty Ltd, and Chang v Neill, to aid in its analysis of these issues.

The court found that the reasons provided by the medical panel were inadequate to enable the court to determine whether the panel had fulfilled its statutory function. The reasons did not clearly show the path of reasoning to their conclusion, and there were factual errors that amounted to a jurisdictional error. Consequently, the court granted the remedy of certiorari, quashing the decision of the medical panel. This allowed the matter to be reconsidered by a different panel, ensuring a fair and accurate assessment of the applicant's medical condition.

Orders