Hungry Hampers Catering v Rossington - [2025] VSC 84

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 02303

HUNGRY HAMPERS CATERING	Appellant
v
SHAUN ROSSINGTON	Respondent

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JUDGE:	K Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2025
DATE OF JUDGMENT:	12 March 2025
CASE MAY BE CITED AS:	Hungry Hampers Catering v Rossington
MEDIUM NEUTRAL CITATION:	[2025] VSC 84

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COMMON LAW – Appeal – Impairment benefit claim – Prior payment of compensation – Whether recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury – Opinion of Medical Panel – Extent to which Medical Panel opinion is final and conclusive – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 217(4), 313(4) – Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Fleming KC Mr M Hooper SC	Wisewould Mahony Lawyers
For the Respondent	Mr A Ingram KC Mr B Johnson	Maurice Blackburn Lawyers

TABLE OF CONTENTS

Factual background........................................................................................................................... 1

Magistrates’ Court proceeding........................................................................................................ 4

Grounds of appeal............................................................................................................................. 4

Appellant’s submissions.................................................................................................................. 5

Respondent’s submissions............................................................................................................... 6

Consideration...................................................................................................................................... 7

Remittal to the Magistrates’ Court................................................................................................ 10

HER HONOUR:

This is an appeal pursuant to s 109 of the Magistrates’ Court Act against final orders made by the Magistrates’ Court on 11 and 29 April 2024.

The appeal relates to an impairment benefit claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) by the respondent (the worker) in respect of a right shoulder injury suffered in October 2018 in the course of employment with the appellant (the employer).

Factual background

The relevant facts date back to around 2011.

On 23 October 2012, the worker made a claim for impairment benefits for injury sustained to his right shoulder[1] in 2011 in the course of employment with a previous employer.
[1]As well as a claim for injury consisting of anxiety and depression.

A notice of entitlement was issued to the worker on 24 April 2013, in which liability was accepted for injury to the worker’s right shoulder.[2] The worker was assessed as having a physical whole person impairment of 11 percent which was modified to 11.95 percent, with an entitlement to non-economic loss calculated at $23,116.00.
[2]Liability was rejected for anxiety and depression.

On 9 May 2013, the worker accepted the offer of $23,116.00 representing 11 percent whole person impairment.

On or about 3 October 2018, the worker suffered injury to his right shoulder in the course of his employment with the employer (the 2018 injury).

In or about March 2020, the worker made a claim for impairment benefits for the 2018 injury.

On 4 May 2020, the employer’s insurance agent (the agent) issued a notice of entitlement, accepting liability for the 2018 injury and determining a zero percent whole person impairment resulting in a $nil entitlement.

The worker disputed the whole person impairment determination, following which the agent referred medical questions to the Medical Panel for opinion.

The accepted injury,…

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: [2025] VSC 84
Decision Date: 12 March 2025

CaseChat Overview and Summary

Hungry Hampers Catering, the appellant, brought a claim against Rossington, the respondent, concerning an impairment benefit appeal. The dispute originated from a decision by the Workplace Injury Rehabilitation and Compensation Authority of Victoria, which was later affirmed by the County Court of Victoria. The central issue was whether the respondent's injury had worsened, leading to a claim for additional impairment benefits. The appellant argued that the respondent's initial injury had deteriorated, warranting a reassessment of the impairment benefit. This appeal was heard by the Supreme Court of Victoria.

The primary legal question before the court was the extent to which the opinion of the Medical Panel was final and conclusive. Specifically, the court needed to determine whether the Medical Panel's assessment of the respondent's injury was binding, given the prior payment of compensation. The court also had to consider the statutory provisions under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and how they interacted with the case law, particularly the decision in Yirga-Denbu v Victorian WorkCover Authority. The appellant contended that the Medical Panel's opinion should not be considered final and conclusive due to new evidence suggesting a worsening of the injury.

The Supreme Court found that the Medical Panel's opinion was indeed final and conclusive regarding the impairment benefit awarded. The court held that once an impairment benefit was determined by the Medical Panel and paid, it could not be reassessed based on subsequent claims of worsening or deterioration of the injury. The statutory provisions and the case law supported this conclusion, indicating that the opinion of the Medical Panel on the initial assessment of the impairment was binding. The court dismissed the appeal, affirming the previous decisions of the Workplace Injury Rehabilitation and Compensation Authority and the County Court.

In summary, the Supreme Court upheld the finality of the Medical Panel's opinion on the impairment benefit, rejecting the appellant's claim for reassessment. The court's decision was based on statutory interpretation and the precedent set by Yirga-Denbu v Victorian WorkCover Authority, reinforcing the principle that an impairment benefit once determined and paid cannot be altered based on subsequent claims of injury aggravation.

Orders