Douglass v VWA Ruling No 1
[2019] VCC 745
•27 May 2019
| IN THE COUNTY COURT OF VICTORIA AT WODONGA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00787
| SHARON DOUGLASS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2019 | |
DATE OF RULING: | 27 May 2019 | |
CASE MAY BE CITED AS: | Douglass v VWA Ruling No 1 | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 745 | |
REASONS FOR RULING
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Subject: Accident compensation
Catchwords: Medical Panel referral
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola [2012] VSCA 331; Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362; Briggs v VWA [2016] VCC 204
Ruling: Medical Panel referral refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Morrow | Slater & Gordon |
| For the Defendant | Mr S. Martin | Lander & Rogers |
HIS HONOUR:
1 The plaintiff in this proceeding, Ms Sharon Douglass, seeks leave of the court to claim damages at common law in respect of shoulder injuries suffered during the course of her employment with Sunbeam Foods Pty Ltd (“the employer”). Her application is presently listed for hearing in the Wodonga circuit commencing on 29 July 2019. Her application is supported by affidavits sworn 21 May 2018 and 26 April 2019.
2 Following a brief hearing on 29 April 2019, and largely reliant upon the material contained in her most recent affidavit, the court fixed this matter for hearing with priority in the forthcoming Wodonga circuit sittings.
3 On 21 March 2019 the defendant’s solicitors notified the plaintiff’s solicitors of a request to refer medical questions to a Medical Panel in accordance with the provisions of section 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”). At the time of that request the plaintiff’s application was fixed in the Wangaratta circuit list commencing on 21 October 2019. Notwithstanding the change of venue and the earlier date listed for hearing of the plaintiff’s application, the defendant seeks referral of medical questions as set out in the Notice of Request which was served on the plaintiff’s solicitors in March.
4 The plaintiff opposes the referral on two bases. First, it is said that the request to refer medical questions is “an abuse of process”. Secondly, the plaintiff submits that there are factual issues to be resolved which are more appropriately determined by a court than by a Medical Panel.
5 Mr Morrow of counsel, who appeared on behalf of the plaintiff, referred me to authorities from both the Court of Appeal and judges of this court in the course of his argument.
6 In United Doormakers (Vic) Pty Ltd v Amendola[1] the Court of Appeal refused leave to appeal in an application seeking to challenge a judge’s refusal to refer medical questions to a Medical Panel. The court noted the difficulties associated with grants of leave to appeal from interlocutory decisions stating:
“Even if the decision below was wrong, it will be allowed to stand if there is no risk of substantial injustice. To take a different view would be to disregard the legislative policy of discouraging interlocutory appeals except where they are necessary in the interests of justice.”[2]
[1][2012] VSCA 331
[2]Ibid [19]
7 The Court of Appeal then went on to consider the substantive ruling which had been made by the judge in that case, ie the medical questions would not be referred as there were factual issues to be involved that would be more appropriately determined by a court than a Medical Panel.
“It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting – something which is not available to a Medical Panel. The judge’s approach thus does not seem to me to be erroneous; or, at least, sufficiently dubious to justify a grant of leave.”[3]
[3]Ibid [20] Priest JA with whom Warren CJ substantially agreed
8 I should also note the comment made by Warren CJ in Amendola’s case:
“I would also observe that the judge at first instance is very experienced in the jurisdiction. That experience in these types of matters is relevant to how the cases proceed and to assessing the desirability and suitability of the evidence in a particular case to be tested in the adversarial context.
Finally, I would observe that this case and his Honour’s decision turned on the facts of the case. I would have difficulty in seeing precedential value for decision in other cases.”[4]
[4]Ibid [25] & [26]
9 Mr Morrow also took me to decisions from this court of His Honour Judge Saccardo in Monteiro v Tiago Enterprises Pty Ltd[5] and a more recent decision from His Honour Judge O’Neill in Briggs v VWA.[6]
[5][2012] VCC 362
[6][2016] VCC 204
10 In Monteiro His Honour Judge Saccardo found an application to refer medical questions to a Medical Panel made on the day set down for the hearing of a serious injury application constituted an abuse of process. His Honour set out a number of reasons in support of his findings. He also helpfully set out the general principles to be applied in deciding whether or not a particular action constitutes an abuse of process.[7]
[7]Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362 at [3] to [5] & Batistatos v Roads and Traffic Authority of New South Wales; and Batistatos v Newcastle City Council (2006) 80 ALJR at [1100)
11 The factual situation faced by His Honour Judge Saccardo in Monteiro’s case differed greatly from the factual background in the present application.
12 Mr Douglass’ application had originally been listed for hearing on 21 October 2019 in the Wangaratta circuit sittings. On 11 April 2019 consent orders were made vacating that hearing date and re-listing the matter in the Wodonga circuit commencing on 29 July 2019.
13 Ms Douglass had sworn a supplementary affidavit on 26 April 2019 which raised a number of matters largely unrelated to her serious injury application, but highly relevant to the timing and venue appropriate for her application to be heard and determined.
14 In that affidavit she deposed to her daughter’s current pregnancy and also that her daughter has multiple health issues, including a diagnosis of stage one cancer. Ms Douglass resides in Mildura and has deposed to her intention to reside with her daughter following the anticipated birth of the child in August 2019 and to provide care and support for her. She has also deposed to her own unrelated health issues requiring assessment and treatment during October 2019. Ms Douglass has also set out in her affidavit other matters which are relevant to her application being heard in Wodonga rather than Wangaratta.
15 I accept the defendant’s solicitors had advised Ms Douglass’ solicitors of an intention to refer medical questions to a Medical Panel on or about 21 March 2019. I was assisted by the submissions of Mr Martin, who appeared on behalf of the defendant in this application, and provided me with copies of the relevant documentation.
16 The proposed medical questions provided to me in the course of argument are dated 10 May 2019. Those proposed questions, numbered 1 to 5, are properly described as medical questions as defined in section 3 of the Act and enquire broadly as to the nature of the plaintiff’s medical condition, any permanency, the relationship between the medical conditions and Ms Douglass’ employment at Sunbeam Foods Pty Ltd, together with questions concerning her residual capacity for both pre-injury and/or suitable employment in relation to alternative organic or non-organic injuries.
17 Mr Martin also provided me with a document in the form required by section 304(a) of the Act, also dated 10 May 2019. Accompanying this document was a schedule of attachments setting out the various materials to be provided to the Medical Panel. Neither of these documents appears to be in any way objectionable.
18 In the course of the application Mr Martin provided the defendant’s submissions proposed to be forwarded to the Medical Panel. Those submissions identified a period of employment between late-2014 and approximately May 2016, during which time the plaintiff was working on modified duties. Both parties accept that Ms Douglass’ employment was terminated in May 2016 because she could not return to her pre-injury role. The defendant’s submission included the following:
“Had her employment not been terminated, it can be expected that the plaintiff would have continued working on her modified duties, mainly applying labels to boxes. She certainly had the capacity to do that job on at least a part-time basis.”[8]
[8]Defendant’s submissions 10 May 2019 at [20]
19 Mr Morrow, in argument referred me to Ms Douglass’ initial affidavit sworn 21 May 2018 where she had deposed to her return to work in as follows:
“Over that period I started to develop more constant pain in my left shoulder. I continued to perform alternative duties and have physiotherapy over the following months. My duties at work largely involved putting labels on boxes. Despite the treatment I struggled at home including performing basic tasks such as dressing and pushing door outward.
I was referred for MRI scans on both shoulders which took place on 14 October 2014. I remained performing part time light duties until my employment was terminated on 18 May 2016 as I could not return to my pre‑injury employment.”[9]
[9]Affidavit of the plaintiff sworn 21 May 2018 at [11] & [12]
20 Mr Morrow also took issue with a further passage of the defendant’s submissions referring to non-compensable health problems impacting on Ms Douglass’ capacity for work. These were said to be her leg, pelvis and hip.
21 The defendant’s submission also referred to a history obtained by an occupational therapist prior to the preparation of the vocational assessment and labour market analysis report dated 24 January 2019. Mr Morrow took issue with the factual basis of this aspect of the defendant’s submissions.[10]
[10]Defendant’s submissions at [29]
22 I am satisfied that there are factual issues which need to be resolved either as part of the Medical Panel’s opinion or by the court.
23 Section 274(5) of the Act states:
“A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
24 There is certainly a factual dispute intertwined with a resolution of any medical questions. The essential dispute concerns the circumstances of Ms Douglass’ medical condition during the period she returned to work on alternative duties during 2014 up until the termination of her employment in May 2016.
25 In short the plaintiff maintains that her condition was worsened during that period and she coped with her alternative duties with difficulty. To the contrary, the defendant submits that but for the termination of her employment, she would have continued working the restricted hours on an indefinite basis, which would indicate an ongoing capacity to at least that extent.
26 The formation of any opinion as to her current work capacity must ultimately require a finding to be made on that central factual issue. The secondary issue identified by Mr Morrow in the course of argument is perhaps of lesser significance, largely dependent upon the findings that are made in relation to her capacity for employment relevant to her claimed work-related injuries.
27 In my view this is a case where the formation of an opinion by a Medical Panel on medical questions directed particularly towards Ms Douglass’ residual capacity depends very largely on the resolution of factual issues concerned with her performance of duties in alternative employment between 2014 and 2016.
28 A court has the advantage over the Medial Panel in that the evidence at least given by the plaintiff can be tested in cross-examination in a hearing. The resolution of the factual circumstances concerning Ms Douglass’ performance in alternative duties between 2014 and 2016 must feature significantly in any ultimate finding concerning her residual capacity for employment. Given the conflicting positions taken by the defendant and the plaintiff on this issue, it is my view that those matters of fact can be more appropriately determined by the court than by a Medical Panel.
29 I therefore propose not to refer the medical questions dated 11 May 2019 to a Medical Panel in accordance with section 274(5) of the Act.
30 Finally, I should refer to the authority of Briggs[11] to which I was referred in argument by Mr Morrow. In that case His Honour Judge O’Neill found an abuse of process in the proposed Medical Panel referral which had been sought in that case. He stated:
“If a defendant insurer could disrupt a trial date in a case involving a vulnerable person with psychiatric injury for the sake of obtaining a Medical Panel referral, the process of the Court would, in my view, be brought into disrepute. It would lead to a situation where matters could be referred to a Medical Panel with little regard to the importance to a plaintiff of a maintained trial date.”[12]
[11]Briggs v VWA [2016] VCC 204
[12]Ibid at [30]
31 No such complaint could be directed towards the defendant or its solicitors in the present case. It is clear that the defendant had sought a referral to the Medical Panels some seven months prior to the anticipated trial date, which was then listed in the Wangaratta sittings.
32 Ms Douglass’ solicitors then quite properly sought a transfer of her application to the Wodonga sittings commencing on 29 July 2019 largely based upon her personal circumstances as described in the affidavit sworn 26 April 2019. There can be no criticism directed towards the defendant or its solicitors for seeking to refer questions to a Medical Panel well prior to that affidavit being sworn. This is not in any way an abuse of process.
33 I will hear the parties in relation to the formal orders sought and any application related to costs.
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