Hungry Hampers Catering v Rossington
[2025] VSC 84
•12 March 2025
| 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, for the purposes of the Medical Panel Opinion was ‘right shoulder injury’.
Injury is defined in the Act to mean
any physical or mental injury and, without limiting the generality of that definition includes –
…
a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.[3]
[3]Workplace Injury Rehabilitation and Compensation Act 2013, s 3.
At this point in time, no reference was made by the agent to the accepted injury being a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury.
On 25 August 2020, the Medical Panel provided their opinion. The Certificate of Opinion set out the opinion of the Medical Panel on the medical questions as follows:
Question i) What is the workers degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?
Answer: In the Panel’s opinion the worker has a 7% whole person impairment resulting from the accepted Right shoulder injury when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent.
The degree of impairment includes a 7% whole person impairment assessed in accordance with Chapter Three of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition).
Question ii) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table on Section 221?
Answer: No.
In assessing the worker’s degree of permanent whole person impairment, the Medical Panel was obliged to consider the extent to which there was impairment from an unrelated injury or cause which was playing a part in the worker’s current impairment. Specifically:
impairments from unrelated injuries or causes are to be disregarded in making an assessment.[4]
[4]Workplace Injury Rehabilitation and Compensation Act 2013, s 53(2)(d).
In their reasons for opinion, the Medical Panel stated:
As the Panel is of the opinion that there was no pre-existing functional impairment prior to the accepted date of injury of the right shoulder and if the Panel estimated a pre-existing impairment strictly using the information in the report from Mr Kudelka contained in the referral, the Panel concluded that this would result in an inaccurate evaluation of the pre-existing impairment and therefore would be considered to be capricious, arbitrary, and irrational.
The Panel used its clinical judgment, it[s] examination of [the worker] and the material provided with the referral to estimate that [the worker’s] pre-existing right shoulder condition resulted in a 0% whole person impairment.
The Panel is therefore of the opinion that there is no physical impairment from an unrelated injury or cause which is playing a part in [the worker’s] current physical impairment and which ought to be disregarded in accordance with section 53(2)(b) of the Act.
The Panel therefore concluded that [the worker] has a 7% whole person impairment resulting from the accepted right shoulder injury when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent.
On 27 August 2024, the agent issued a further notice of entitlement (further notice) stating that the worker’s whole person impairment for the 2018 injury had been determined at 7 percent equating to a lump sum benefit of $17,216.00. However such sum was reduced to $nil by reason of a prior lump sum paid to the worker. The notice stated:
As your current impairment is a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing Right shoulder injury (the earlier injury) and you have previously received lump sum compensation for the earlier injury, in accordance with section 217(4) of the Act the amount of that compensation must be deducted from the current impairment benefit calculation.
This was the first occasion that the agent asserted the injury to be a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury.
Magistrates’ Court proceeding
The worker brought a proceeding in the Magistrates’ Court seeking to have the further notice set aside and a determination made that he has an entitlement to impairment benefit compensation in the sum of $17,216.00.
The learned Magistrate:
(a) held that the consequence of adopting and applying the opinion expressed by the Medical Panel ought to have been that the worker had an entitlement to the $17,216.00 in full;
(b) ordered that the further notice be set aside; and
(c) determined that the worker was entitled to impairment benefit compensation of $17,216.00 with respect to the 2018 injury.
Grounds of appeal
The employer has appealed the decision of the Magistrate on the following grounds:
(a) The learned magistrate erred in law in construing section 313(4) of the Act;
(b) The learned magistrate erred in law by misapplying or misunderstanding the effect of section 313(4) of the Act, by treating the reasons given by the Medical Panel – including as to any pre-existing impairment under section 53(2)(b) – as binding rather than the Medical Panel’s Opinion in the certificate being its opinion on the medical question in fact referred to under section 207(1)(a); and
(c) The learned magistrate erred by holding that the terms and effect of the said Opinion, once adopted and applied in accordance with section 313(4) of the Act, foreclosed the agent, as a matter of law, from making any reduction from the calculation of entitlement in accordance with section 217(4) of the Act to take account of a prior payment of lump sum compensation.[5]
[5]Notice of Appeal, 10 May 2024.
Section 313(4) of the Act provides that:
(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel –
(a) is to be adopted and applied by any court, body or person; and
(b)must be accepted as final and conclusive by any court, body or person –
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
Appellant’s submissions
The employer made the following submission by way of overview:
The short point is that the magistrate misunderstood that s 313(4) of [the Act] renders the opinion of the Panel binding, but not the reasons issued in support of the opinion. The Court of Appeal in Yirga-Denbu v Victorian WorkCover Authority[6] confirmed that this would constitute an error.
Had the magistrate properly applied s 313(4), it would have been held that nothing in the Panel’s opinion that the whole person impairment of the [worker] was 7% was inconsistent with the application of s 217(4) of [the Act]. Section 217(4) required the compensation paid for a right shoulder injury in August 2011 to be deducted from the compensation payable for a later recurrence, aggravation or exacerbation of that injury in October 2018.[7]
[6](2018) 57 VR 545, 564-565 [58] (Priest, Beach and Niall JJA).
[7]Appellant’s Submissions, 28 August 2024, [3]-[4].
The employer specifically relied on a passage from Yirga-Denbu v Victorian WorkCover Authority (Yirga-Denbu) where the Court said:
… The admission of the Panel Reasons on the basis of a need for the provision of context has the capacity to give rise to a risk of a court determining that an issue dealt with in the reasons, but not as part of an answer to a medical question in the certificate of opinion, might be held to be final and conclusive within the meaning of s 313(4) of [the Act], in circumstances where such a result could not be justified in terms of the statute.[8]
[8](2018) 57 VR 545, 564-565 [58].
The employer submitted that the Medical Panel had not been asked to give its opinion on whether the subject injury is a recurrence, aggravation or exacerbation of a prior injury.[9] Thus the Medical Panel, by force of logic, cannot have given a binding opinion on that question. Rather, whether or not a deduction from compensation ought to occur because of the provisions of section 217(4) is a statutory task given to the Victorian WorkCover Authority and its agents.
[9]Nor could it have been.
The employer further submitted that, even if the reasons could permissibly be used in some way by the Magistrate, the Medical Panel’s views as to any pre-existing impairment under section 53(2)(b) of the Act did not compel a conclusion that there had been no recurrence, aggravation or exacerbation of the earlier shoulder injury on 3 October 2018.
Respondent’s submissions
The worker submitted that, in the court below, the reasons were tendered by consent. Counsel appearing for the employer in the Magistrates’ Court said:
There’s no issue raised by the [employer] with respect to the tendering of the reasons. We intended to tender them anyway.[10]
[10]Transcript of proceedings, 21 February 2025, [24]-[26].
Further, the Magistrate has not made any findings which conflicted with the Medical Panel Opinion. The only conflict that exists is a conflict between the decision of the agent in the further notice and the opinion expressed by the Medical Panel.
The consistency between the reasons and the opinion of the Medical Panel Opinion and indeed the decision of the Magistrate (in contrast to the decision of the agent) is demonstrated by the following:
(a) The Medical Panel acknowledged they must have an evidentiary basis upon which it can be positively satisfied of an unrelated impairment which is to be disregarded and clearly the Medical Panel found that it had no such evidentiary basis in this case;
(b) The Medical Panel noted the worker’s statement that he had recovered fully from the injury in 2011 and regained full function of the right shoulder without residual impairment;
(c) The Medical Panel noted the report of the treating surgeon Mr Eng, in which he confirmed that the previous episode of adhesive capsulitis sustained after the injury in 2011 had fully resolved;
(d) The Medical Panel noted the worker’s ability to perform pre-injury duties without restriction up until the date of the 2018 injury;
(e) The Medical Panel noted the mild degenerative changes between the MRI scan of 20 August 2012 and the MRI scan of 14 January 2019, which they considered to be a constitutional condition which was asymptomatic prior to the injury and therefore not contributing to the current impairment of the right shoulder;
(f) The Medical Panel stated that if they estimated a pre-existing impairment strictly using the information in the report from Mr Kudelka, this would result in an inaccurate evaluation of the pre-existing impairment and therefore would be considered to be capricious, arbitrary and irrational;
(g) The Panel used its clinical judgment, its examination of the worker and the material provided with the referral to estimate that the worker’s pre-existing right shoulder condition resulted in a zero per cent whole person impairment.
Finally, it is clear that the learned Magistrate understood and correctly applied the principles in Ajinvan Pty Ltd v Fry,[11] Lianos v Inner Eastern,[12] and Yirga-Denbu.
[11](2001) 3 VR 644.
[12](2001) 3 VR 136.
Consideration
The reasons of a Medical Panel may be admitted into evidence on the basis that they contain expert opinion evidence, relevant to fact in issue, in accordance with ss 55 and 79 of the Evidence Act 2008.[13]
[13]Yirga-Denbu, 565 [59], 565-566 [62].
In the court below, the Medical Panel’s reasons were admitted into evidence by agreement, along with other medical reports.[14]
[14]Rossington v Hungry Hampers Catering [2024] VMC 6, [7].
Once admitted, the reasons formed part of the evidence, but they were not binding. They were to be contrasted from the Medical Panel Opinion set out in the Certificate, which:
(a) is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person.[15]
[15]Workplace Injury Rehabilitation and Compensation Act 2013, s 313(4).
In the court below, the worker sought to have the further notice set aside. The further notice:
(a) set out the impairment benefit calculations; and
(b) provided notice that there would be a deduction for past payments in accordance with section 217(4) of the Act on the basis that the current impairment was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing right shoulder injury for which the worker had previously received lump sum compensation.
The impairment benefit calculation in the further notice[16] was required to be, and in fact was, in accordance with the Medical Panel Opinion.
[16]Prior to the deductions being made for past payments.
However, the decision of the agent that the 2018 injury was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury with resulting consequences pursuant to section 217(4) fell into a different category.
By reason of section 53(2)(b) of the Act, the answer to the first question posed to the Medical Panel necessarily required a consideration of whether there were impairments from unrelated injuries or causes which ought to be disregarded in the assessment.
As a consequence, there was considerable overlap between the medical issues upon which the Medical Panel was asked to express a conclusion and a determination as to whether the 2018 injury was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury. But they were not identical questions.
Further, the section 53(2)(b) analysis was set out in the Medical Panel’s reasons, which do not fall within the ambit of section 313(4), but instead[17] have the status of relevant expert opinion which may be taken into account along with all of the other evidence.
[17]When admitted into evidence as was the case here.
In other words, the Medical Panel did not provide a final and conclusive opinion in respect of the section 217(4) issue.
In her reasons the learned Magistrate stated:
The conflict between, on the one hand, the Panel findings in reaching its opinion (expressed in answer to medical question 1) and, on the other hand, the Agent’s decisions in the second notice is quite stark: first, the Agent stated: “…your current impairment is a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing Right shoulder injury…”; and, second, the Agent went on to state, “…your current entitlement of $17,216 less the amount you have previously been paid of $23,116 entitles you to an impairment benefit of $nil. Please note that the later reference in this letter to your ‘entitlement compensation’ is a reference to the amount of $nil”.[18]
[18]Rossington v Hungry Hampers Catering [2024] VMC 6, [56].
Her Honour went on to conclude:
…the Agent did fail to accept the opinion expressed by the Panel as “final and conclusive” in making the decision that it did in the second notice.
Further, the Agent failed to “adopt and apply” the opinion expressed by the Panel in the ordinary, accepted meanings of those words.
…
For the reasons already stated, it was not open to the Agent to apply s.217(4) because the opinion expressed by the Panel had to be accepted as final and conclusive. In deciding to apply s.217(4) – which required that “any impairment or total loss resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has been paid under this Division” – the Agent has not accepted the binding nature of the opinion.[19]
[19]Ibid, [60]-[61], [70].
The task of the Magistrate, when determining the section 217(4) issue was to ‘engage with all of the evidence tendered’[20] and determine the issue for herself ‘upon the whole of the evidence’.[21]
[20]Yirga-Denbu, 566-567 [67].
[21]Yirga-Denbu, 567 [68].
As the Magistrate simply adopted and applied the Medical Panel opinion and reasons rather than determining the relevant issue for herself upon the whole of the evidence, I am satisfied that the appeal must be allowed.
In particular, I am satisfied that the learned Magistrate erred by holding that the terms and effect of the Medical Panel Opinion, once adopted and applied in accordance with section 313(4) of the Act, foreclosed the agent, as a matter of law, from making any reduction from the calculation of entitlement, in accordance with section 217(4) of the Act.
Whether the Magistrate did in fact treat the reasons, as opposed to the opinion, as binding is not as clear. On the one hand, a fair reading of the Magistrate’s decision as a whole demonstrates that the Magistrate was aware that there was a difference in the way that the reasons and the opinion of the Medical Panel should be treated. On the other hand, the foundation for her Honour’s findings was her conclusion that that there was a stark contrast between the Medical Panel’s ‘findings in reaching its opinion’ and the agent’s section 217(4) decision.[22]
[22]Rossington v Hungry Hampers Catering [2024] VMC 6, [56].
Given my conclusions in respect of the third ground of appeal, and noting the overlapping nature of the three grounds, it is not necessary for me to make any final conclusions in respect of the other two grounds of appeal.
It can easily be appreciated how the learned Magistrate reached her conclusions, there not being any authorities on the operation of section 217(4) to guide the analysis.[23] But, after careful consideration of the competing submissions and the reasons of the Magistrate, I conclude that the appeal must be allowed.
[23]Ibid, [69]-[70].
Remittal to the Magistrates’ Court
Section 109(6) of the Magistrates’ Court Act 1989 provides:
After hearing and determining the appeal, the Supreme Court may make such orders as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.[24]
[24]Magistrates’ Court Act 1989, s 109(6).
Counsel for the employer submitted that the case should not be remitted to the Magistrates’ Court because the worker did not ask the Magistrate to form a view on the evidence at all and he is bound by the way the case was run below.
I reject this submission for the following reasons:
(a) such submission does not recognise that counsel for the worker had submitted that ‘the whole of the evidence, including the medical evidence, established that the 2018 injury was a new injury’;[25] and
(b) it is appropriate that the Magistrates’ Court make a determination as to whether the 2018 injury was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury rather than simply leaving the decision of the agent to stand without any scrutiny.
[25]Rossington v Hungry Hampers Catering [2024] VMC 6, [28].
Accordingly, I am satisfied that the case should be remitted to the Magistrates’ Court for hearing and determination in accordance with the law.
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