Dundar v BAS
[2020] VMC 5
•23 MARCH 2020
IN THE MAGISTRATES' COURT OF VICTORIA
AT MELBOURNECase No. G10558914
| ATA DUNDAR | Plaintiff |
| v | |
| YUCEL BAS (t/a BAS BROTHERS MARBLE AND GRANITE) | Defendant |
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| MAGISTRATE: | B. WRIGHT | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 19 FEBRUARY 2020 | |
| DATE OF RULING: | 23 MARCH 2020 | |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | DUNDAR V BAS [2020] VMC005 | |
REASONS FOR RULING
---Workers Compensation – Termination of Weekly Payments after 130 weeks- Claim for Medical Expenses for Alleged Consequential Psychiatric Injury - Effect of Medical Panel Opinion as to Nature of Workers Medical Condition – Workplace Injury and Rehabilitation Compensation Act 2013 ss. 3 “medical question (a)”, 313(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Zaparas Lawyers Pty Ltd |
For the Defendant | Ms F Spencer | Thomson Geer |
HIS HONOUR:1In this case the parties seek orders that I adopt and apply two medical panel opinions pursuant to s.313(4) of the Workplace Injury Rehabilitation and Compensation Act2013 ('the Act'). The parties differ as to what appropriate orders should be made based on those two opinions. They substantially agree on the facts in this case.
2Mr Dundar, now 59 years old, was employed by the defendant as an installer/driver in March 2009. According to the claim form dated 25 June 2014 he injured 'broken arm, left arm' on 16 June 2014 when he fell from a truck (“the first claim”). This was accepted and he began to receive benefits under the Act.
3In a second claim form dated 2 March 2015 he alleged further injuries on 16 June 2014 incident, namely 'neck, left shoulder, aggravation of lower back pain' (“the second claim”). This was accepted for reasonable medical and like expenses purposes only.
4By two Notices dated 19 October 2015 Mr Dundar was advised the second claim had been accepted in error in that the injuries were for the same incident in the first claim. Further, his entitlement to weekly payments and reasonable medical and like expenses on the second claim was to the cease as at 21 November 2015, as there was no continuing work related injury or incapacity, amongst other related reasons. Also, he was advised that he had an ongoing entitlement to weekly payments and reasonable medical and like expenses in respect of the accepted left elbow injury.
5By a letter dated 21 October 2015 his GP, Dr Baglar sought liability to be accepted for psychological treatment (“the treatment claim”) for Mr Dundar. Mr Dundar was paid six sessions without admission of liability. The treatment claim was rejected on the basis that his claim for secondary psychological injury did not arise out of or in the course of employment. The present Magistrates' Court Complaint was issued on 22 February 2016 setting out a dispute in relation to the two 19 October 2015 notices only.
6Mr Dundar then lodged a further claim dated 14 July 2016 claiming injuries, namely 'neck, lower back, left shoulder, left arm by way of gradual process throughout the course of employment because of frequent heavy lifting’ (“the third claim”). This was rejected on the basis there was no injury arising out of or in the course of his employment in a notice dated 12 August 2016. An amended statement of claim dated 30 August 2016 incorporated disputes relating to the rejection of the claim for treatment and the rejected third claim.
7On 21 November 2016 I referred questions to a medical panel at the request of the defendant on the issues then before the court. In its subsequent opinion in answer to a question based on medical question (a) in the definition of “medical question” in the Act it opined that the plaintiff was not suffering from any intrinsic medical condition of the left shoulder or from any chronic pain condition or from any diagnosable psychiatric condition or abnormal psychological condition.
8Further, it found his aggravated cervical spondylosis with referred pain to the left shoulder without radiculopathy, aggravation of lumbar spondylosis with referred pain to the lower limbs but without radiculopathy, persistent left elbow and arm dysfunction with disuse atrophy and scarring following surgical management of fracture of the left elbow were or are materially contributed to by the alleged injury of 16 June 2014 and did not result from and was not materially contributed to by his alleged gradual process injury.
9According to the medical panel he continued to be incapacitated for pre-injury duties which were materially contributed to by the determined injuries as set out in the previous paragraph.
10Unfortunately, prior to my referral to the medical panel Mr Dundar had been served with a 130-week notice dated 14 July 2016 effective as at 10 December 2016 but not affecting his entitlement to reasonable medical and like expenses. Thus, the further notice was dated four months prior to my medical panel referral.
11Upon return of that first medical panel opinion I granted leave to further amend the statement of claim to incorporate the 130-week notice and delete any reference to psychological injury because of the specific finding of no diagnosable psychiatric or abnormal psychological condition.
12I then referred further questions to the medical panel on 1 June 2017 limited to a question in the form of (a) in the definition of “medical question” in the Act and three other questions relevant to the 130-week notice only.
13A second medical panel was convened including a psychiatrist,
Dr Matthew Tagkalidis, who examined Mr Dundar on 5 July 2017. Apparently, because no psychiatric condition had not been included in the referral the Convener of Medical Panels invited both parties to submit further material and submissions on that point.14In answer Mr Dundar's solicitor sent a copy of Dr Baglar's report dated 11 August 2017 and the defendant sent surveillance material and a report from Dr Jager, an IME psychiatrist, dated 2 October 2017. It also sent submissions contending Mr Dundar had no compensable psychiatric injury. However, no amendment was sought by Mr Dundar to reincorporate any allegation of continuing psychiatric or psychological injury.
15After a further re-examination the second medical panel provided its opinion dated 11 December 2017. As to the question asked in the form of medical question (a) in the definition, it stated:
'In the Panel's opinion the Plaintiff is suffering from mild persisting symptoms involving the neck and lower back without radiculopathy and for mild persisting left arm dysfunction as a consequence of a healed fracture of the left olecranon treated surgically and from an adjustment disorder with depressed mood'. (emphasis added)
16It further found that from the date of termination of weekly payments because of the 130-week notice Mr Dundar had had a “current work capacity”. It was therefore not relevant to consider any “no current work capacity” likely to last indefinitely question.
17I was informed that Mr Dundar had sought judicial review of the second medical panel opinion and was unsuccessful before the Supreme Court of Victoria and the Victorian Court of Appeal.
18The parties agree that Mr Dundar is entitled to Orders setting aside the two 19 October 2015 notices relating to his physical injuries and thus was entitled to reasonable medical and like expenses. He had continued to be in receipt of weekly payments in respect of accepted left elbow claim.
19Counsel for Mr Dundar accepts that his challenges to the 14 July 2016 130-week Notice and the 12 August 2016 “throughout the course of employment” notices were unsuccessful.
20The present dispute between the parties relates to the 14 January 2016 notice rejecting liability for psychological treatment and any associated costs orders. I was not informed whether there any such expenses were sustained by Mr Dundar, which is not relevant to my decision anyway.
21Counsel for Mr Dundar submits that his client is entitled to a consequential Order based on the second medical panel opinion that the defendant pay reasonable medical and like expenses for 'adjustment disorder with a depressed mood' from 11 December 2017.
22He submits that if necessary, his client should be allowed to make a further amendment, that is a third amendment to the statement of claim pleading such a psychological injury as found by the first medical panel. He submits that his client should not be criticised for such a further late amendment as the issue only arose when the panel sought further material or submissions to any psychological or psychiatric injury. Both parties accepted that invitation and had forwarded further material and/or submissions to the panel.
23Counsel for the defendant argued that Mr Dundar was not entitled to any reasonable medical and like expenses for 'adjustment disorder and depressed mood', despite the reference in the second medical panel opinion. She referred me to Wingfoot v Kocak [2013] 252 CLR 480 at [37]:
‘What s.68(4) of the Act on that construction requires is that an opinion of a Medical Panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the medical panel. What s.68(4) does not require is that the opinion must thereafter be adopted and applied for the purposes of determining some other question or matter.‘
24Of course, the High Court was referring to s.68(4) which is the previous equivalent of s.313(4) in the Act. She submitted that s.313(4) requires the court and the parties to adopt and apply the opinion only insofar as it relates to the question or matter in which the medical question arose and not some other question or matter.
25She submitted that the only issue or matter referred to the medical panel was that whether Mr Dundar had “no current work capacity likely to last indefinitely”. It was not asked to determine any matter relating to any psychological injury, work related or otherwise. Importantly, the statement of claim had never been amended to include any claim for a work-related psychological injury anyway.
26In argument before me I raised the issue of whether s.232(1) was relevant in this case, that is relating to medical expenses being only payable prima facie for 52 weeks after weekly payments cease unless one of the matters set out in s.232(5) were relevant. In this case weekly payments ceased on 10 December 2016 and the medical panel opinion was dated 12 months later, namely 11 December 2017.
27Thus, if plaintiff's counsel's submissions were correct, could Mr Dundar receive payment of medical expenses as sought from the date of the second medical panel opinion anyway?
28After standing down the case for a short time counsel for Mr. Dundar stated that he would now be applying to amend the statement of claim to add “and adjustment disorder with depressed mood”. He also stated that he was now also applying to adjourn these proceedings to make a further claim for continuing medical expenses pursuant to s.232(5). He anticipated the claim would be rejected and thus a second further amendment would be sought to add that future dispute as well as to the present proceedings, probably on the basis of s.232(5)(c). He anticipated seeking to refer that further point to a medical panel as well again.
29In relation to the defendant's submission as to Wingfoot v Kocak, he said that the defendant was stretching the point of that case too far. He submitted that the finding of the second medical panel as to “adjustment disorder and depressed mood” meant that I should adopt and apply that aspect of the opinion and order payment of reasonable medical and like expenses accordingly. He initially submitted that this was clear from the reasons of the second medical panel opinion.
30I pointed out that I do not believe that I should be allowed to access the Reasons for the medical panel opinion except in limited circumstances (see, Lianos v Inner & Eastern [2001] 3 VR 136 at [22] and Nelson v Arrium [2015] VSC 488 at [23-24]). He did not persist with that submission as to accessing the Reasons. .
31I further pointed out that there was nothing in the opinion to state that the medical panel found that the “adjustment disorder and depressed mood” was work related. Counsel for Mr Dundar stated that he believed that an answer to such a question in the form of (a) in the definition of “medical question” in the Act implied some aspect of work causation.
32In reply, counsel for the defendant submitted that there was no issue of treatment or medical expenses referred to or considered by the medical panel anyway.
33I now proceed to make my ruling.
34Essentially, in his submission counsel for Mr. Dundar relies on the answer to question 1 in the second medical panel opinion as to the nature of the plaintiff's medical condition as establishing the work relationship of that medical condition. However, Question 1 in this case is in the form of (a) in the definition of “medical question” in the Act ;
'medical question means any of the following - (a) a question as to the nature of a worker's medical condition relevant to an injury or alleged injury.'
35There is ample authority an answer to such a question in that form does not go to whether the relevant medical condition is work related in itself.
36In Singh-Jhikka v NMA [1999] VCC 11 at p.18 Judge Rendit stated as follows in referring to paragraph (a) of the definition of “medical question” :
'I am of the opinion that meaning must be given to this provision in the Act. I consider that in an appropriate case, the answer to such a question can have relevance to the resolution of issues in a case. In the instant case, the nature of the plaintiff's medical condition would indicate the type of psychiatric condition which the plaintiff has, leaving the court to determine whether such a condition arose out of or in the course of the plaintiff's employment or, insofar as the injury relied upon was an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition, or whether such employment contributed to such aggravation, acceleration, exacerbation or deterioration.'
37Further, in Caleja v Franet Pty Ltd & Ors [2000] VSC 339 at [27-28] Mr Justice Ashley, in relation to the same medical question (a) stated:
'All in all, it seems to me that paragraph - and thus Question 1(a) - directs the reader to the parts of the body or the faculty claimed to have been injured. If the worker has particularised – in medical rather than legal terms – the injury he or she claims to have suffered, the panel's task is to opine whether some and what condition is then present which can be related to the injury alleged. But if the worker specifies injury only in the most general terms (as here: injury to the right elbow…) the panel cannot sensibly answer a question in the form of question 1(a) without first assessing - in a medical not legal sense - the likely nature of the claimed injury.'
38He then continued in paragraph [28] :-
'It should also be understood that the question does not call for an answer whether employment was or possibly could have been a significant contributing factor to an injury. That is the function of later questions set out in the definition.'
39Thus, references to any medical condition in an answer to such a question in the form of question (a) is really only diagnostic. As Ashley J. states, it is really there as a basis for other questions asked of the panel which may relate to the question of work relationship.
40Therefore, there is no basis for me to adopt and apply that question as a basis for ordering the defendant pay reasonable medical and like expenses for any adjustment disorder or depressed mood. This would have been the case even if the medical panel had answered question 1 that it was work related. Such an answer would have exceeded its jurisdiction as to question 1 anyway.
41There was no dispute before this court or the medical panel as to the reasonable medical and like expenses anyway (see, Baumgartner v VWA [2019] VCC 1435). Any reference to any psychological or psychiatric condition had already been removed from the statement of claim prior to the second referral to the medical panel. There was no actual or even foreshadowed amendment to re-include such an allegation of psychological or psychiatric injury at that time.
42It seems to me that any later amendment after the second medical panel opinion had been delivered was really trying to now raise a dispute or question after an answer had already been delivered to that proposed dispute or question.
43Further, counsel's foreshadowed intention for his client to make a further claim for reinstatement of medical expenses, await a challenge to the 12 month point pursuant to s.232(5) and then amend these proceedings prior to a further referral to the medical panel to deal with that issue is nonsensical and flies in the face of s.313(4) in any event.
44Further, the proceedings have already been the subject of two medical panel decisions already because of the oversight relating to the earlier 130-week notice. Without ruling on this point, it may be open for the plaintiff to still make a claim for reinstatement of reasonable medical and like expenses despite my findings in this case. That is a matter for Mr Dundar.
45Mr Dundar has made three separate claims and amended his statement of claim twice already. I see no need to make a formal ruling as to the applicability of Wingfoot v Kocak in the circumstances of the present case. I have already found the answer to question 1 in the second medical panel opinion to not establish any right for Mr Dundar to obtain any further payment by the defendant of his psychological and psychiatric expenses in the circumstances.
46However, Wingfoot v Kocak involved two separate proceedings in two separate courts and more importantly one action for statutory benefits and another action for common law damages. That was the context for the opinion being adopted in the statutory benefits proceedings in which the medical panel opinion was made as opposed to the action for common law damages being the other question or matter referred to by the High Court.
47The present case arguably involved two separate claims to statutory benefits which on one view were sought to be included in the same proceeding in the same court.
48I will leave that issue to be decided by another court in more appropriate circumstances or facts.
49I will now hear the parties on appropriate orders, including the question of costs.
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