Hawthorn v PA Contracting Group Pty Ltd - [2022] VSC 433

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 02431

PETER HAWTHORN	Plaintiff
v
PA CONTRACTING GROUP PTY LTD & ORS (according to the attached schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2022
DATE OF JUDGMENT:	4 August 2022
CASE MAY BE CITED AS:	Hawthorn v PA Contracting Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 433

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ADMINISTRATIVE LAW — Judicial review — Opinion of medical panel — Function of a medical panel to provide an ‘opinion on’ a question — Where the medical panel was of the opinion that a condition for a ‘current work capacity’ and ‘no current work capacity’ was not satisfied — Whether the medical panel was required to give a ‘yes’ or ‘no’ answer — Whether the medical panel answered or misunderstood the referred questions — Whether the medical panel failed to have regard to the mandatory relevant consideration of the availability of suitable employment — No finding that the medical panel fell into jurisdictional error — Application dismissed — Workplace Rehabilitation and Compensation Act 2013 (Vic) s 302.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Allan	Zaparas Lawyers
For the First Defendant	Mr M Fleming QC and Ms S Gold	Wisewould Mahony
For the Second to Sixth Defendants	No appearance	Victorian Government Solicitor’s Office

HIS HONOUR:

A. Background

Mr Hawthorn, the plaintiff, suffered injury arising out of or in the course of his employment with PA Contracting Group Pty Ltd, the first defendant. He made a claim for no-fault benefits under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’). His claim was accepted and he began receiving weekly payments of compensation under the Act. An agent for the Victorian WorkCover Authority later terminated his weekly payments, by which point he had received payments for more than 130 weeks. Mr Hawthorn commenced proceedings in the Magistrates’ Court of Victoria seeking the reinstatement of his weekly payments of compensation. That Court referred medical questions to a medical panel established under the Act (the ‘Panel’).[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) pt 12 div 2 (the ‘Act’).

One of the questions asked of the Panel, and its response, was as follows:[2]
[2]Question 4 was in the same form but started with ‘as at the date of the Medical Panel’s examination, does …’, rather than ‘from 26 October 2017 to the date of the Medical Panel’s examination, did …’. The response was, save for minor changes to accommodate the different framing of the question, in identical form. The same analysis and conclusion applies to both questions.

Question 3.From 26 October 2017 to the date of the Medical Panel’s examination, did the Plaintiff have:
a.A “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) or
b.“No current work capacity” within the meaning of the Act?

Answer:a. and b. The Panel is of the opinion…

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: [2022] VSC 433
Decision Date: 4 August 2022

CaseChat Overview and Summary

In this case, the applicant, Hawthorn, sought judicial review of a decision made by PA Contracting Group Pty Ltd, regarding his eligibility for workers’ compensation. The matter was heard and determined in the Administrative Appeals Tribunal of Victoria. The central dispute revolved around the interpretation and application of a medical panel’s opinion in determining the applicant's eligibility for workers' compensation under the Workplace Rehabilitation and Compensation Act 2013 (Vic).

The primary legal issue before the court was whether the medical panel was required to provide a definitive 'yes' or 'no' answer regarding the applicant’s work capacity and if they had correctly understood and applied the relevant statutory criteria. Specifically, the court needed to determine whether the panel's opinion on the applicant’s current work capacity was sufficient and whether they had failed to consider the mandatory relevant consideration of the availability of suitable employment. The court examined the statutory language and the panel's methodology to ascertain if there was any jurisdictional error in the panel’s decision-making process.

The court concluded that there was no jurisdictional error committed by the medical panel. The tribunal found that the panel had provided a reasoned opinion on the relevant questions and had not misunderstood the referred questions. Moreover, the court determined that the panel had appropriately exercised its discretion in forming its opinion, and there was no evidence to suggest that they failed to consider the availability of suitable employment. Consequently, the court dismissed the application for judicial review, upholding the panel's decision as lawful and correctly reasoned.

As a result of the court's decision, the application for judicial review was dismissed, and the original decision of the medical panel was affirmed. The court's determination was grounded in its finding that the panel had adequately addressed the statutory criteria and provided a reasoned opinion on the applicant’s current work capacity.

Orders