Didani v Downes-Brydon

Case [2021] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0026

ALI KACHOUI DIDANI Applicant
v
DR JENNY DOWNES-BRYDON & ORS Respondents

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JUDGES: BEACH JA, EMERTON JA and MACAULAY AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 29 September 2021
DATE OF JUDGMENT: 15 October 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 281
JUDGMENT APPEALED FROM: [2021] VSC 27 (Keogh J)

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ADMINISTRATIVE LAW – Application for leave to appeal – Judicial review – Applicant sought judicial review of opinion of medical panel convened under Workplace Injury Rehabilitation and Compensation Act 2013 – Whether medical panel bound by description of injury in referral documents – Whether judge erred in finding as to whether medical panel accepted applicant’s complaints of present pain – Whether reasons adequate – Leave to appeal refused – Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 – Calleja v Franet Pty Ltd [2000] VSC 339 – Workplace Injury Rehabilitation and Compensation Act 2013.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr G Uren QC with
Mr C Hangay 		Zaparas Lawyers
For the Fifth Respondent Mr M Fleming QC with
Ms S Gold 		Hall & Wilcox

BEACH JA

EMERTON JA
MACAULAY AJA:

Introduction and summary

  1. The applicant was employed by the fifth defendant, Tasmanian Seafoods Pty Ltd, as a labourer.  On 6 August 2016, the applicant suffered a back injury in the course of his employment with the fifth defendant.  On 7 August 2016 he claimed compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the ‘Act’). In answer to the question ‘What is your injury/condition, and which parts of your body are affected?’, the applicant wrote: ‘lower back pain which radiated to the left leg’. The claim was accepted by the fifth defendant’s authorised insurer.

  1. On 30 October 2018, the authorised insurer notified the applicant that his entitlement to weekly payments of compensation under the Act would cease with effect from 2 March 2019 on the basis that the insurer had decided, pursuant to s 163 of the Act, that the applicant had a capacity for work.

  1. The applicant disputed the insurer’s decision and referred the dispute to the Accident Compensation Conciliation Service (‘ACCS’) pursuant to s 282 of the Act. The dispute was not settled by that procedure. On 30 April 2019, pursuant to s 284 of the Act, the ACCS referred two medical questions to a medical panel convened under the Act to give an opinion on the questions (the ‘Referral’).

  1. The Referral included the following statements from the referring conciliator:

4.        INJURIES INCLUDING DATE OF INJURY

Lower back pain which radiated to left leg as cited on the worker’s injury claim form sustained on 6/8/2016.

Liability has subsequently been accepted for a secondary psychological condition.

6.        AGREED FACTS RELEVANT TO THE MEDICAL QUESTIONS

I am satisfied that the following facts are agreed …

·Mr Kachoui Didani injured his back and left leg on 6/8/2016.  A WorkCover claim was lodged and accepted.  Liability has subsequently been accepted for a…

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Details
AGLC
Didani v Downes-Brydon [2021] VSCA 281
Case
[2021] VSCA 281
Decision Date

CaseChat Overview and Summary

In the case of Didani v Downes-Brydon, the applicant sought judicial review of an opinion of a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The primary issue before the court was whether the medical panel was bound by the description of the injury in the referral documents and whether the trial judge erred in finding that the medical panel accepted the applicant’s complaints of present pain. The court was also required to determine whether the reasons provided by the medical panel were adequate.

The court found that the medical panel was not bound by the description of the injury in the referral documents and was entitled to make its own diagnosis of the claimed injury. The court held that the medical panel could consider the applicant’s present complaints of back and leg pain and functional restrictions in determining the nature of the injury. The court rejected the applicant’s argument that the medical panel should have accepted his complaints as genuine or accurate and found that the medical panel had provided adequate reasons for its opinion. The court held that the trial judge did not err in finding that the medical panel had considered the applicant’s complaints and that the reasons provided were sufficient.

The court ultimately refused the applicant’s application for leave to appeal, finding that the trial judge’s decision was not flawed and that the medical panel had not erred in law or fact. The court held that the medical panel was entitled to make its own diagnosis of the claimed injury and to consider the applicant’s present complaints in doing so. The court found that the reasons provided by the medical panel were adequate and that the trial judge had not erred in his findings.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal the decision and orders below on the following proposed grounds (with references to relevant paragraph numbers from the Judge’s Reasons):The trial judge erred in holding that:1. The words ‘claimed injury’ in Question 1 (or in the Answer) did not include the applicant’s ‘lower back pain radiating to the left leg sustained on 6/8/2016’, although identified as ‘the claimed injury’ in the Referral, because that condition is not an injury: see at [42] and [48].2. In answering Question 1 the Medical Panel was not bound by the description of the claimed injury in the Referral: see at [45].3. In consequence, the Medical Panel was entitled to and did answer Question 1 on the basis that the relevant injury was its own diagnosis of the claimed injury, namely the now resolved soft tissue injury suffered in the workplace incident: see at [45] and [48].4. It was to be inferred that the Medical Panel concluded that the applicant’s present complaints of back and leg pain and functional restrictions were not symptoms of his medical condition relevant to the injury: see at [49].5. The Medical Panel was entitled to, and did, consider that the applicant’s present back and leg pain and restrictions were not relevant to his claimed injury as the Medical Panel identified it: see at [49], [60] and [61].6. It should be inferred from the matters set out in [49] that the Medical Panel did not accept the applicant’s complaints of back and leg pain and restrictions were genuine or accurate: see at [49].7. The Medical Panel was not required to explain the applicant’s complaints of back and leg pain and functional restriction, having given its Opinion in Answer to Question 1: see at [50].8. The Medical Panel had given adequate reasons, see at [66], [67] and [68].The trial judge also erred in that:9. In each of the above aspects the trial judge has attributed to the Medical Panel a basis for its opinions which it did not express in its Reasons.10. The relief sought in the Originating Motion ought to have been ordered.Background The applicant began work for the fifth defendant as a full-time labourer in around February 2014. He told the Medical Panel that in the weeks leading up to the injury on 6 August 2016, he experienced intermittent left sided low back pain, and that on the day of the incident he was trying to turn over a large cooking pot to empty it of water when he felt pain in his left lower back. He said he could not move due to the severity of the back pain and his supervisor transported him to hospital where medical imaging was undertaken. By the time of trial, the applicant had not returned to work since the incident. In August 2018, the authorised insurer arranged for the applicant to be assessed by consultant psychiatrist, Associate Professor Shashjit Varma, who concluded the applicant suffered a mild adjustment disorder caused by chronic lower back pain which was not improving and which was impacting his life. From a psychiatric perspective alone, Associate Professor Varma thought that the applicant had a capacity for pre-injury duties and for suitable employment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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