Emmelmann v Thomson Geer Services Pty Ltd - [2020] VSC 801

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02655

ANNA-LOUISA EMMELMANN	Plaintiff
v
THOMSON GEER SERVICES PTY LTD	First Defendant
and
DR JACK OWCZAREK	Second Defendant
and
DR ROY KARNA	Third Defendant
and
ASSOCIATE PROFESSOR MICHAEL MURPHY	Fourth Defendant
and
DR JOHN G KING	Fifth Defendant
and
DR PETER BRAUN	Sixth Defendant
and
CONVENOR OF MEDICAL PANELS	Seventh Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2020
DATE OF JUDGMENT:	1 December 2020
CASE MAY BE CITED AS:	Emmelmann v Thomson Geer Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 801

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel failed to answer question asked – Where first question asked whether plaintiff suffered from any medical condition and second question asked whether the medical condition was related to the relevant injury – Where medical panel accepted that plaintiff suffered from pain – Where medical panel answered that plaintiff did not suffer from a medical condition – Medical panel failed to answer question asked – Workplace Injury Rehabilitation and Compensation Act2013, s 3 – Calleja v Franet Pty Ltd [2000] VSC 339, considered – Isuzu General Motors Australia v Jordon (2002) 2 VR 212, applied – Kakae v Wetspot Consolidated Pty Ltd [2016] VSC 271, distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A G Uren QC with S Dawson	Zaparas Lawyers
For the First Defendant	M Fleming QC with R Kumar	Hall & Wilcox

HIS HONOUR

The plaintiff, Anna-Louisa Emmelmann, commenced employment as a legal secretary with the first defendant, Thomson Geer Services Pty Ltd, on 30 September 2013.

On 4 September 2015, the plaintiff made a WorkCover injury claim alleging that she suffered a back injury throughout the course of her employment with the first defendant. Liability was accepted and the plaintiff commenced receiving payments for medical and like expenses.

On 23 May 2018, the plaintiff made an application to Worksafe Victoria under s 328(4) of the Workplace Injury Rehabilitation Compensation Act 2013 (WIRCA) for a certificate consenting to her bringing proceedings against the first defendant for permanent serious impairment or loss of a body function of her spine and a permanent severe mental or behavioural disturbance or disorder suffered in the course of her employment and caused by the first defendant’s negligence or breach of duty.

In support of her application, the plaintiff deposed that she began to experience pain in her low to mid back in about June 2015 when, as part of her work for the first defendant, she was required to engage in activities relating to the archiving of files associated with the first defendant moving offices. This work involved repetitive twisting, lifting, bending and carrying of files and heavy boxes full of archived files. The plaintiff deposed that she has continued to experience regular and daily pain in her mid to low back.

Worksafe Victoria…

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.

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Details

Case: [2020] VSC 801
Decision Date: 1 December 2020

CaseChat Overview and Summary

The case of Emmelmann v Thomson Geer Services Pty Ltd involved a dispute between the plaintiff, Emmelmann, and the defendant, Thomson Geer Services Pty Ltd, concerning a decision made by a medical panel. The dispute was heard in the Supreme Court of Victoria. The plaintiff sought judicial review of the medical panel's decision, contending that the panel failed to answer the specific question posed to it regarding the plaintiff's medical condition.

The legal issues that the court needed to address were whether the medical panel had correctly answered the question posed to it, and whether it had failed to answer the question asked by misinterpreting or misunderstanding the question. The court had to consider the relevant statutory provisions, particularly section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013, as well as relevant case law, including Calleja v Franet Pty Ltd, Isuzu General Motors Australia v Jordon, and Kakae v Wetspot Consolidated Pty Ltd.

The court held that the medical panel had failed to answer the question posed to it. The first question asked was whether the plaintiff suffered from any medical condition, to which the panel responded that the plaintiff did not suffer from a medical condition. However, the panel accepted that the plaintiff suffered from pain. The second question asked whether the medical condition was related to the relevant injury. The court found that the panel had not answered this second question, as it had not determined whether the pain suffered by the plaintiff was related to the relevant injury. The court distinguished the case from Kakae v Wetspot Consolidated Pty Ltd and applied the principles from Isuzu General Motors Australia v Jordon to conclude that the medical panel had failed to answer the question asked. The court granted the plaintiff's application for judicial review.

The court ordered that the decision of the medical panel be quashed and that the matter be remitted to the medical panel for reconsideration in light of the court's decision. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders