Dias v Oakleigh Centre Industries - [2016] VSC 115

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 01007

VANESSA DIAS

Plaintiff

OAKLEIGH CENTRE INDUSTRIES

ASSOCIATE PROFESSOR PETER GIBBONS as DEPUTY COVENOR OF MEDICAL PANELS pursuant to the Accident Compensation Act 1985

MEDICAL PANEL (constituted by DR ANTHONY GALLACHIO, DR BRENDAN HAYMAN,
DR JAMES CARSON, MR ROBERT PIANTA and MR RODNEY SIMM)

First Defendant

Second Defendant

Third Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2015 and 7 March 2016
DATE OF JUDGMENT:	23 March 2016
CASE MAY BE CITED AS:	Dias v Oakleigh Centre Industries & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 115

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ADMINISTRATIVE LAW – Judicial review – Workers’ compensation – Medical panel – Alleged inadequacy of reasons – Reasons not inadequate – Proceeding dismissed – Accident Compensation Act 1985, ss 5, 93C – Workplace Injury Rehabilitation and Compensation Act 2013, ss 274, 313

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A. Ingram (on 17 December 2015 only) and G. Worth	Nowicki Carbone
For the Defendant	M. Fleming QC and R. Kumar	Hall & Wilcox

HIS HONOUR:

On 1 August 2011 the plaintiff, in the course of her employment with the first defendant, struck her left elbow on the corner of a steel crate. In early September 2011 she made a claim for compensation under the Accident Compensation Act 1985 (the ACA), with her injury being described as a partial thickness tear to the articular surface of her left elbow. The claim was accepted and the plaintiff received weekly payments of compensation (as well as medical and like expenses) for 130 weeks. At the end of that period, her weekly payments were terminated pursuant to a decision of the first defendant’s insurer made in reliance on s 93C of the ACA. That section provides that weekly payments cease after such a period unless the worker has ‘no current work capacity’ (as defined) and is likely to continue indefinitely to have ‘no current work capacity’.

The plaintiff commenced a proceeding in the Magistrates’ Court seeking to establish that she was entitled to have the weekly payments continue.[1] In her statement of claim, she alleged that the incident at work had led to compensable injury of her ‘left upper limb (including but not limited to the left elbow)’. Acting under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRCA), a magistrate referred four ‘medical questions’ to a medical panel for a binding opinion. The questions were framed by reference to the issues arising under s 93C of the ACA. Those issues in turn involved the definitions of ‘no current work capacity’ and ‘suitable employment’ as they stood in s 5 of the ACA at the relevant time,[2] as follows:
[1]Magistrates’ Court of Victoria complaint E11580734 filed 12 May 2014.
[2]It is common ground that the definitions set out here were the applicable ones and there is no suggestion that the medical panel made any…

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.

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Details

Case: [2016] VSC 115
Decision Date: 23 March 2016

CaseChat Overview and Summary

In Dias v Oakleigh Centre Industries, the applicant, Dias, sought judicial review of a decision made by the first respondent, Oakleigh Centre Industries, in relation to his workers' compensation claim. The second respondent was the WorkCover Authority of Victoria. Dias claimed that the medical panel appointed by Oakleigh Centre Industries to assess his claim was not impartial, and that the reasons provided for their decision were inadequate. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the reasons provided by the medical panel were inadequate and whether this constituted a ground for judicial review. The court needed to determine if the reasons were sufficient to satisfy the requirements of procedural fairness and if the applicant had standing to challenge the decision. The court also considered whether the applicant had exhausted all internal review processes before seeking judicial review.

The court held that the reasons provided by the medical panel were adequate and did not breach any principle of procedural fairness. The reasons were detailed and demonstrated that the panel had considered all relevant factors and evidence before reaching their decision. The court further found that the applicant had not demonstrated that he had suffered a significant injustice as a result of the panel's decision. As such, the court dismissed the application for judicial review. The court emphasised that the applicant must first exhaust all internal review processes before seeking judicial review, and Dias had not done so in this case.

The court dismissed the application and made no orders for costs.

Orders