Drazinic v Gallichio - [2013] VSC 409

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 6641

BISERKA DRAZINIC	Plaintiff
v
DR FRANCIS GALLICHIO, MR MICHAEL JOHNSON AND GRACE McKELLAR CENTRE (BARWON HEALTH)	Defendants

---

JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2013
DATE OF JUDGMENT:	13 August 2013
CASE MAY BE CITED AS:	Drazinic v Gallichio and Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 409	Revised 14 August 2013

---

ADMINISTRATIVE LAW – Accident compensation – Compensation for medical and like expenses – Medical Panel – Medical questions as to worker’s medical condition and whether medical services appropriate or adequate – Panel failing to consider part of plaintiff’s medical condition – Failing to provide adequate reasons – Accident Compensation Act 1985 ss 5(ac), 67, 68, 69.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Keogh SC with Mr G Wicks	Slater & Gordon Ltd
For the Third Defendant	Mr M F Fleming SC with Mr R Kumar	Wisewould Mahony

HIS HONOUR:

This proceeding concerns an opinion given by a Medical Panel in response to questions concerning the plaintiff’s medical condition and whether particular medical services were appropriate and adequate for her condition. The plaintiff alleges that the Medical Panel made jurisdictional errors in performing its function and seeks judicial review of its determination.

In February 1990, the plaintiff suffered a low back injury whilst mopping a floor in the course of her employment. She stopped work and on 5 March 1990 made a claim for compensation under the Accident Compensation Act 1985 (the ‘Act’). The claim was accepted. She began to receive weekly payments of compensation, together with payments of her medical expenses. She is aged 66 years.

On 6 December 2011, the Workcover Agent issued a notice that it would not pay for hydrotherapy treatment for the plaintiff’s injuries from 16 March 2012, or for physiotherapy treatment from 16 April 2012, based on the operation of s 99 of the Act. It stated that the plaintiff might have up to five physiotherapy sessions from 16 January 2012 to 16 April 2012. These sessions were aimed at progressing the plaintiff towards self‑management. In the case of hydrotherapy, the plaintiff was entitled to three hydrotherapy services from 16 January to 16 March 2012, which were to have a similar aim of progression towards self‑management.

The plaintiff referred the issue of her entitlement to compensation under s 99 of the Act for physiotherapy and hydrotherapy expenses to conciliation. The Conciliator referred questions to a Medical Panel.

The Conciliator’s Referral to the Medical Panel included a statement of agreed facts which are substantially set out in paragraph 2 hereof, as well as the following statement:

·The worker has had anti-inflammatory medications, anti-depressant medications, psychological treatment, psychiatric review, Panadeine Forte, physiotherapy and hydrotherapy in respect of her injury.

The certificate of opinion of the Medical Panel in respect of the questions was given on 30 September 2012 and stated:

Question 1) What is…

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 Drazinic v Gallichio

Details

AGLC: Drazinic v Gallichio [2013] VSC 409
Case: [2013] VSC 409
Decision Date: 13 August 2013

CaseChat Overview and Summary

In the matter of Drazinic versus Gallichio, the plaintiff sought compensation for medical and similar expenses under the Accident Compensation Act 1985. The dispute involved the adequacy of the medical services provided to the plaintiff and whether the Medical Panel had appropriately assessed the plaintiff's medical condition. The case was heard in the relevant Australian court.

The court was tasked with determining whether the Medical Panel's failure to consider part of the plaintiff's medical condition and its inadequate reasoning constituted a legal error. The plaintiff argued that the Panel's omission and insufficient reasoning led to an unjust outcome. The defendant contended that the Panel's decision was within its jurisdiction and should be upheld.

The court examined the provisions of the Accident Compensation Act 1985, specifically sections 5(ac), 67, 68, and 69. It found that the Panel's failure to consider part of the plaintiff's medical condition and its inadequate reasons were errors that led to an unjust outcome. Consequently, the court ruled in favour of the plaintiff, finding that the Panel's decision was flawed and required correction. The court ordered the defendant to provide appropriate compensation to the plaintiff, taking into account the full scope of the plaintiff's medical condition.

Orders