Dragojevic v Edmi Gas Pty Ltd (Ruling)
[2016] VCC 1315
•8 September 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02929
| SLOBODAN DRAGOJEVIC | Plaintiff |
| v | |
| EDMI GAS PTY LTD (ACN 128 174 658) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 September 2016 | |
DATE OF RULING: | 8 September 2016 (Revised) | |
CASE MAY BE CITED AS: | Dragojevic v Edmi Gas Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1315 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to refer medical questions to a Medical Panel pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 – application of s274(5) of the Workplace Injury Rehabilitation and Compensation Act 2013
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985
Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola (Ruling) (Unreported, S APCI 2012 0162, 6 November 2012); Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; Yealand v Traveller Caravans Pty Ltd [2013] VCC 1048; McClelland v Victorian WorkCover Authority (Ruling) (Unreported, VCC, 26 August 2016) Royce v MECWA Care Pty Ltd [2016] VCC 460; Kirby v Victorian WorkCover Authority (Ruling) [2013] VCC 594; Adones v Retirement Care Australia Operations(2) Pty Ltd [2013] VCC 171; Yianni v Victorian WorkCover Authority [2016] VCC 348
Ruling: To be referred to the Medical Panel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Popova | Zaparas Lawyers |
| For the Defendant | Ms S Bailey | Minter Ellison |
HIS HONOUR:
1 The defendant makes application to refer several medical questions to a Medical Panel pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
2 The medical questions are contained in a notice dated 19 July 2016 and consists of five questions. They are:
“1.What is the nature of the plaintiff’s current medical condition(s), if any, relevant to any:
(a)Injury to his left wrist;
(b)Injury to his right wrist;
(c)Injury to his neck;
(d)Injury to his lower back; and
(e)Psychiatric injury ‘the said injuries’?
2.Was the plaintiff’s employment with the defendant a significant contributing factor to any, and if so which, of the said injuries?
3.As at the date of the Medical Panel’s examination, what is the extent to which any physical or mental condition of the plaintiff results from, or is materially contributed to by, any, and if so, which, of the said injuries?
4.At the date of the Medical Panel examination, does the plaintiff have an incapacity for his pre-injury duties?
5.If ‘yes’ to question 4 above:
(a)Does this incapacity result from; or
(b)Is this incapacity materially contributed to by any, and if so, which, of the said injuries?”
3 There is no dispute that such questions are “medical questions” within the meaning of the definition of “medical question” contained in s3 of the WIRC Act and that such medical questions are “relevant”.[1]
[1]See paragraph [15] of the plaintiff’s submissions dated 1 September 2016
4 The plaintiff relies on s274(5) of the WIRC Act and submits that the formation of an opinion by a Medical Panel in relation to Questions 2, 4 and 5, would depend substantially on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel.
5 Section 274(5) of the WIRC 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.”
6 Section 275 of the WIRC Act is in the same terms as s45(1D) of the Accident Compensation Act 1985.
Background
7 The plaintiff is a forty-four-year-old worker who commenced employment with the defendant repairing residential gas meters in a factory in Dandenong. The plaintiff alleges he had suffered his various injuries throughout the course of his employment with the defendant. The plaintiff has not worked since February 2014.
8 The proceeding brought by the plaintiff is an application pursuant to s134AB of the Accident Compensation Act 1985 (“the AC Act”) seeking leave to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” within the meaning of the AC Act. The plaintiff relies on subparagraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the AC Act.
9 The body functions alleged to be impaired as a result of such compensable injury, and upon which reliance is placed, are injury to the spine, injury to the left upper limb and injury to the right upper limb.
The position of the Plaintiff
10 The plaintiff relies on s274(5) of the WIRC Act and submits that the formation of an opinion by a Medical Panel on Questions 2, 4 and 5, would depend substantially on the resolution of factual issues, which are more appropriately determined by the Court than by a Medical Panel.
11 In advancing her argument, counsel for the plaintiff referred to the Court of Appeal decision in United Doormakers (Vic) Pty Ltd v Amendola (Ruling).[2] Counsel noted that although the Court of Appeal emphasised that each matter must be determined upon its own facts, Priest JA, with whom Warren CJ agreed, stated, at paragraph 20:
“… To my mind, it was open to the judge to determine that the formation of an opinion by the Medical Panel as to the medical questions (which concerned the existence and extent of the respondent’s injuries, and his capacity for gainful employment) would depend substantially on the resolution of factual issues, and that those factual issues were more appropriate for determination by a court. It seems obvious that where the nature and extent of a putative plaintiff’s injury (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 a[n] adversarial setting – something which is not available to a Medical Panel.”
[2](Unreported, S APCI 2012 0162, 6 November 2012, Warren CJ and Priest JA)
12 It should be noted that, at first instance, Judge O’Neill, in Amendola v United Doormakers (Vic) Pty Ltd (Ruling),[3] noted that the plaintiff had suffered three separate workplace incidents and also had been involved in a motor vehicle accident, and issues arose whether and, to what extent, other injuries play a role in the plaintiff’s present condition. Furthermore, he noted that in many serious injury applications, the credibility of the plaintiff is a key issue and it is only after the plaintiff has been cross-examined that a judge is capable of determining whether or not to accept the allegations made by the plaintiff in his affidavit and in the histories to the various medical practitioners.
[3][2012] VCC 1038
13 Although the defendant was not granted leave to appeal the decision of Judge O’Neill, it should be remembered that leave to appeal with respect to an interlocutory decision (as was the case) should not be granted unless the original decision was wrong, or at least attended with sufficient doubt to justify the grant of leave and, additionally, where a substantial injustice would be done by leaving the decision unreversed.
14 It is also to be noted, as stressed by the Court of Appeal, the decision by his Honour Judge O’Neill turned on the facts of that matter and, indeed, as stated by Priest JA:
“Further, I doubt that in future cases of this kind, judges of the County Court will considered themselves fettered by the ruling made by the judge in this case based on the facts peculiar to it.”[4]
[4]Amendola v United Doormakers (Vic) Pty Ltd (Ruling) (op cit) at paragraph [22]
15 I consider that, consistent with the dictum from the Court of Appeal, that such decisions as Amendola v United Doormakers (Vic) Pty Ltd,[5] and various other decisions,[6] turn on their own facts. On the facts in each of these decisions, the respective judges refused an application by the defendant to refer some medical questions to the Medical Panel on the basis of the operation of either s45(1D) of the AC Act or s274(5) of the WIRC Act. However, in Yealand v Traveller Caravans Pty Ltd,[7] and the very recent Ruling of his Honour, Judge Coish, in McClelland v Victorian WorkCover Authority delivered on 26 August 2016, it was ruled that there was no reason that the various medical questions should not go to the Medical Panel.
[5]Op cit
[6]See Kirby v Victorian WorkCover Authority (Ruling) [2013] VCC 594, a decision of his Honour Judge Misso; Adones v Retirement Care Australia Operations(2) Pty Ltd [2013] VCC 171 delivered by her Honour Judge Kings; Yianni v Victorian WorkCover Authority [2016] VCC 348 delivered by his Honour Judge O’Neill and Royce v MECWA Care Pty Ltd [2016] VCC 460 delivered by his Honour Judge Misso.
[7][2013] VCC 1048, a decision of Judge Parrish
16 Counsel for the plaintiff then further advanced her argument by submitting that:
(a)To answer medical Question 2, the Medical Panel will need to resolve a factual dispute about the nature and physical requirements of the plaintiff’s pre-injury duty with the defendant, prior to forming an opinion about whether that pre-injury employment was a significant contributing factor to the plaintiff’s injuries.
She referred to the affidavit of the plaintiff sworn 4 February 2016 and, in particular, to paragraphs 3 to 6 and paragraph 9, which set out the nature and requirements of the plaintiff’s pre-injury duties with the defendant. She noted that there had been no concession from the defendant that those parts of the affidavit, in their entirety, would be stated as agreed facts in a joint statement pursuant to s304(a) of the WIRC Act;
(b)In relation to Question 4, it was submitted that the Medical Panel would need to resolve a factual dispute about the nature and the physical requirements of the plaintiff’s pre-injury duties with the defendant prior to an opinion about whether the plaintiff has an incapacity for the pre-injury duties. In this respect, the plaintiff refers to her earlier submissions made in relation to Question 2.
Further, it was submitted that, prior to forming an opinion about whether the plaintiff has an incapacity for pre-injury duties, the Medical Panel would also need to resolve a factual dispute about:
(i)The credibility of the plaintiff’s account of pain and symptoms (that is, paragraphs 18, 21 and 23 of his affidavit);
(ii)The reliability of the plaintiff’s self-reported restrictions as a result of the pain and symptoms (paragraphs 19, 20 and 22 of his affidavit);
(iii)The reliability of the plaintiff’s assertion that he cannot return to pre-injury duties because of the alleged injuries (and not for any other unrelated reasons).
17 Counsel for the plaintiff noted that there had been no concession from the defendant that those parts of the affidavit referred to above, in their entirety, would be stated as agreed facts in a joint statement, pursuant to s304(a) of the WIRC Act.
18 Counsel for the plaintiff also noted that there is a dispute between the parties about the credibility/reliability of the plaintiff’s alleged pain, symptoms and restrictions, which will have to be substantially determined by the Medical Panel before forming an opinion to Question 4.
19 In relation to Question 5, counsel noted that Question 5 carries on from Question 4 and the same arguments effectively apply.
20 Ultimately, she submitted that the relevant issue for this Court to determine in this application is not whether the Medical Panel can resolve the factual issues referred to above, but whether it is more appropriate for the Court to do so.
21 Counsel for the defendant commenced her address by outlining what the defendant says the issues would be in the serious injury application. They are:
(a) The nature and extent of the plaintiff’s injuries;
(b)The tasks he was required to perform, noting the course of employment with the defendant is likely to have disposed the plaintiff to stressors and strains which are consistent with the alleged injuries;
(c)That, in fact, the plaintiff did suffer specific injuries or aggravation to pre-existing injuries – that is whether such injuries are compensable, permanent or serious within the meaning of the AC Act;
(d)Issues of capacity for employment, bearing in mind the plaintiff seeks leave to claim damages for pecuniary loss.
22 It was submitted on behalf of the defendant that all such issues are essentially “medical questions”. When queried by the Court as to how it could be that the tasks undertaken by the plaintiff are “medical questions”, counsel for the defendant responded:
“Not the tasks themselves … but whether the tasks could cause or be a cause of the alleged injuries. No doubt, the plaintiff will say having to bend and getting into these positions and drag things and move things.”[8]
[8]T19, L8-12
23 In particular, the following ensued:
“HIS HONOUR:
Q:What do you say to the submission put against you thought (sic)? That might be right as far as you submit, but if it becomes a contest as to what the tasks were, why is – and that can be seen as a factual issue as to what the plaintiff had to do during the course of his employment. Why is that not a matter which may be, as your learned friend suggests, should be determined by the court?---
MS BAILEY:
A:We say it’s not in contest, to this extent. There has been – this is a matter which was referred to the medical panel in respect of the statutory benefits claim in the Magistrates’ Court below. Pursuant to that application, there was a joint statement prepared by the parties which set out, in quite some detail, the tasks. What I propose to do, sir, is to provide a copy to Your Honour, and I do that because the defendant would rely upon essentially the same, or would propose the same set of facts to go to the panel. My learned friend of course has a copy.”[9]
[9]T19, L13-30
24 That earlier referral of medical questions to the Medical Panel was accompanied by documentation headed “Agreed facts” and then followed by “Facts in dispute”, consistent with the relevant legislation. That referral, so I was informed, was in relation to statutory benefits, but concerned the same injuries, save for an extra injury in the present application, being a shoulder injury.
25 In particular, counsel for the defendant informed me that the facts which were agreed in the earlier application are not inconsistent with the sections of the plaintiff’s affidavit that counsel for the plaintiff referred to as his duties, although not as “fulsome”. In this sense, it was submitted that if the medical questions were to be referred to the Medical Panel, those acting for the defendant would rely on the document setting out the agreed facts in relation to the first referral and then it would also be for the plaintiff to provide his own history to the Medical Panel when they assessed him.
26 In this sense, so it was submitted, there would be no particular dispute in the sense that there would be no witness statements from the employer witnesses, or anything of that kind, which would go to the Panel; there would be no dispute as to the issues or the history that the plaintiff provides to the Panel and, also, there would be no video surveillance before the Panel.
27 Counsel for the defendant then referred to the very recent decision of Judge Coish delivered on 26 August 2016 and, in particular, at page 7, wherein his Honour states:
“It is clear from the plain words of s274 that a court must, subject to ss(3), (4) and (5) refer medical questions to a medical panel when a party to proceeding makes this request. Subsections (3) and (4) have no application in this matter. Subsection (5) requires:
Firstly, the identification of specific factual issues requiring resolution; secondly the formation of an opinion by a Medical Panel on a medical question must depend substantially on the resolution of the factual issues and, thirdly, this resolution must, more appropriately be determined by a court than a medical panel.”[10]
[10]McClelland v Victorian WorkCover Authority (Unreported, VCC, 26 August 2016)
28 Counsel for the defendant submits that although counsel for the plaintiff has identified the specific factual issues requiring resolution, it is not the case that the formation of an opinion by a Medical Panel on a medical question must depend substantially on the resolution of the factual issue. In this respect, counsel for the defendant again asserted that the Joint Statement contained in the early application will be persisted with and, of course, the plaintiff would be allowed to give his own history to the Panel. In particular, counsel for the defendant stated that the defendant would not put “any material in opposition to those specific duties”.[11]
[11]T25, L26-27
29 Counsel for the defendant also referred to the relatively recent decision of Judge Misso in Royce v MECWA Care Pty Ltd[12] delivered on 27 April 2016, wherein, at paragraph 36, he stated:
“It is not lost on me that the extensive provisions relevant to referral of such medical questions to a Medical Panel are subject to a reasonably high burden placed upon the plaintiff. The burden requires the plaintiff to satisfy me that it would not be appropriate to refer medical questions to the Medical Panel because the formation of an opinion by a Medical Panel on a medical question would depend substantially on the resolution of factual issues.”
[12]Op cit
30 Ultimately, it was submitted by counsel for the defendant, that the questions sought to be referred to the Medical Panel are what may be termed “standard questions” and that the issues raised by counsel for the plaintiff involved issues of work duties and credibility, which are all matters the Medical Panel does deal with on a daily basis.
Conclusion
31 The various sections referred in the WIRC Act are contained within Division 3 headed “Medical Panels” which, in turn, forms part of Part 6 headed “Dispute resolution”. The Act makes plain that Medical Panels can be a part of dispute resolution, both in statutory benefit matters and, indeed, serious injuries under, relevantly, s134AB of the AC Act.
32 The determination of medical questions before a Medical Panel does involve issues of fact and medicine, which has been recognised since the commencement of Medical Panels and, indeed, s274(5) of the WIRC Act recognises that a medical panel can determine factual issues.
33 However, also clearly enough, s274(5) of the WIRC Act recognises that in certain circumstances as detailed therein, a court must not refer a medical question. I refer to the recent decision of Judge Coish and, with the greatest respect, adopt his interpretation of s274(5) of the WIRC Act, as I have already set out in this Ruling. In this sense, counsel for the plaintiff has identified the specific factual issues requiring determination to be the employment duties undertaken by the plaintiff, as they are relevant to a determination of Questions 2 and 4 which, in turn, impacts on Question 5.
34 However, can it be asserted that the formation of an opinion by a Medical Panel in relation to these aspects must depend substantially on the resolution of factual issues?
35 As stated by counsel for the defendant, the defendant intends to rely on the agreed Statement of Facts in relation to the first application, which is consistent with the material set out in the affidavit of the plaintiff in relation to his pre-existing duties, although not precisely the same. There will be no material filed as to the credibility of the plaintiff or other matters. To the extent there may be any variation between what is set out in the affidavit of the plaintiff compared to what is contained in the statement of agreed facts in the first application, it does not cause me to accept that the formation of an opinion by a Medical Panel on those particular medical questions must depend substantially on the resolution of those factual issues.
36 In all the circumstances, I am not satisfied that the plaintiff has established the requirements of s274(5) of the WIRC Act and, accordingly, I dismiss the application and order that the questions sought to be referred by the defendant be referred, consistent with the Act.
37 I should add that counsel for the defendant informed me that it was only on the night before the application that material was obtained from those acting for the plaintiff, wherein there was an identification of factual issues which were said to be more appropriately determined by the Court than by a Medical Panel. Although there was no criticism of this aspect, it did not allow the defendant to have available the relevant documents in this application as to what the agreed facts would be. Obviously enough, I have accepted what I have been informed from the Bar table.
38 Perhaps this does highlight that applications such as this are more appropriately made when it is patently clear what material is to be sent to the Medical Panel and, indeed, the dispute is better delineated.
39 Finally, I generally make this observation. If one generally accepts that a court is in a better position to resolve factual issues than a Medical Panel, can it be the case that whenever a medical question is referred to the Medical Panel, which does involve factual issues (as most do to some degree or another) and s274(5) of the WIRC Act is applied, what questions can be sent to the Medical Panel directly by the Court? In this sense, I consider that the word “substantially” has a role to play. In the circumstances of this matter, the resolution of any factual issue is limited given the content of the agreed Statement of Facts and the defendant not tendering any statements, or the like, to contradict anything asserted by the plaintiff. In such circumstances, it cannot be asserted, in my view, that the impugned medical questions must “substantially” depend on the resolution of factual issues.
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