Di Girolami v Garentone Pty Ltd - [2001] VSC 57

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 7131 of 2000

JOE DI GIROLAMI	Applicant
v.
GARENTONE PTY. LTD. AND OTHERS	Respondents

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JUDGE:	NATHAN, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 MARCH 2001
DATE OF JUDGMENT:	15 MARCH 2001
CASE MAY BE CITED AS:	DI GIROLAMI v. GARENTONE PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 57

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CATCHWORDS: Judicial Review – Decision of Medical Panel – Whether worker's lack of work capacity likely to continue indefinitely – Whether question one of law or one of medical opinion – Whether Medical Panel entitled to rely on worker's response to a contingent question in coming to its conclusion.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. M. O'Loghlen QC with Mr. M. Roche	Gill Kane & Brophy
For the First and Fourth Respondents	Mr. J. Ruskin QC with Mr. P. Coish	Deacons

HIS HONOUR:

Joe Di Girolami, the applicant, suffered a knee injury in February 1997. He was then employed by Garentone Pty. Ltd., the first respondent. The injury was sustained during the course of his employment, workers' compensation payments on a weekly basis were commenced.

In May 1999 the insured, GIO Workers' Compensation Ltd., the fourth respondent, notified Di Girolami that his payments would be terminated as from 7 June 1999 on the ground that:

"You do not have a serious injury and you have no current work capacity but we are not satisfied that this is likely to continue indefinitely."

I shall refer to this notification as the decision.

Di Girolami referred the decision to the conciliation service under the provisions of the Accident Compensation Act 1985 (the Act). Conciliation was attempted but was unsuccessful. Consequently, the conciliation officer certified there was a genuine dispute and that an application could be made to the Magistrates' Court to determine the matter. In August 1999 Di Girolami issued a complaint out of the Magistrates' Court seeking, amongst other things, reinstatement of his weekly payments of compensation.

In August 2000 at Garentone's request the Magistrate referred two medical questions to a Medical Panel established pursuant to the Act, s.45(1)(b). The second respondent, Dr. Nisselle, is the Convenor of Medical Panels under the terms of s.63 of the Act. The Medical Panel, which is the third respondent, comprised Mr. Francis, Mr. Huffman and Dr. Honey. The first two members are specialist surgeons and the latter a psychiatrist.

The questions addressed to the Medical Panel were as follows:

(1)What is the name of the worker's medical condition relevant to an injury or alleged injury?; and

(2) Is the worker's lack of current work capacity likely to continue indefinitely?

In September the Medical Panel produced its answers to the questions. As to question 1, it was as follows:

"In the Panel's opinion the worker is suffering from gross right knee instability as a result of severe loss of the quadriceps mechanism following a right patelectomy. He also has an adjustment disorder with depressed mood."

As to the second question,…

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 Di Girolami v Garentone Pty Ltd

Details

AGLC: Di Girolami v Garentone Pty Ltd [2001] VSC 57
Case: [2001] VSC 57
Decision Date: 15 March 2001

CaseChat Overview and Summary

Di Girolami brought an action against Garentone seeking judicial review of a decision made by a medical panel regarding his entitlement to worker's compensation. The dispute centred on the assessment of the worker's likelihood of regaining work capacity and the methods and basis upon which the medical panel arrived at its conclusion. The case was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the question of the worker's likely indefinite lack of work capacity was one of law or of medical opinion, and whether the medical panel was entitled to consider the worker's response to a contingent question in reaching its conclusion. The court was required to determine the scope of its review of the panel's decision, particularly in light of the specialised medical knowledge involved.

The court found that the question of the worker's likely indefinite lack of work capacity was predominantly one of medical opinion, given the complexities and uncertainties inherent in medical prognosis. The court further determined that the medical panel was entitled to rely on the worker's response to a contingent question, as it was a relevant factor in forming a comprehensive medical opinion. The court concluded that the panel's decision was not flawed by any procedural unfairness or error of law, and thus the application for judicial review was dismissed. The court made no further orders.

Orders