| 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,…
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- Case
- [2025] VSC 84
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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