Iannacone v Kotzman - [2020] VSC 489

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04366

MARIO IANNACONE	Plaintiff
v
DR DAVID KOTZMAN & ORS	Defendants

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May, 22 July 2020
DATE OF JUDGMENT:	11 August 2020
CASE MAY BE CITED AS:	Iannacone v Kotzman
MEDIUM NEUTRAL CITATION:	[2020] VSC 489

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ADMINISTRATIVE LAW – Judicial Review – Certificate of Medical Panel – Error of Fact -Whether panel erred in concluding that worker suffered from a temporary exacerbation of his condition which resolved - No reviewable factual error - Whether reasons inadequate - No error established - Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 302, 304, 313(2) – Accident Compensation Act 1985 s 134AB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Walsh with Mr G Taylor	McCristal Injury Lawyers
For the Defendant	Mr M Fleming QC with Ms M Schilling	Hall & Wilcox

HER HONOUR:

Introduction

By further amended originating motion, the plaintiff seeks an order in the nature of certiorari quashing the opinions of the first to fifth defendants (the Panel) dated 25 July 2019, and an order of mandamus remitting the referred medical questions to a differently constituted medical panel to be reconsidered in accordance with law.

The members of the Panel did not participate in the hearing.[1] Rather, the orders were opposed by the sixth defendant employer, Boeing Aerospace Pty Ltd, (hereinafter the defendant).
[1]The first to fifth defendants advised, by letter on 18 March 2020, that they would be taking the Hardiman position, and so would not appear nor be represented at the trial, and would submit to such orders as the court might make, save that they would wish to be heard in the event that a costs order were proposed against them.

The Panel was asked to consider injuries relating to the plaintiff’s lower back and his mind. A key issue in relation to the back was the nature of an injury suffered by the plaintiff in May 2012.

Insofar as his back was concerned, the Panel concluded that the plaintiff had a mild persisting back dysfunction as a consequence of constitutional lumbar and cervical spondylosis and, further, that he suffered only a temporary exacerbation of his back condition in May 2012 which had resolved.

The primary complaint of the plaintiff was that this finding constituted a material ‘mistake of fact’ (ground 1). It was also submitted that the Panel failed to provide adequate reasons (ground 2).

For reasons expressed below, I have rejected the plaintiff’s claims.

Factual background
Magistrates’ Court statutory benefit proceedings

The plaintiff commenced working for the defendant on 5 September 2011 as an aerospace worker. He was 43 at the time.

On 30 May 2012, the plaintiff made a claim for injury to his lower back when pulling a bag off a tool at work on 22 May 2012, which was initially accepted.

The plaintiff returned to work…

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.

Continue reading Iannacone v Kotzman

Details

AGLC: Iannacone v Kotzman [2020] VSC 489
Case: [2020] VSC 489
Decision Date: 11 August 2020

CaseChat Overview and Summary

The applicant, Mr Iannacone, sought judicial review of a decision made by the respondent, the Medical Panel, which determined that Mr Iannacone had suffered from a temporary exacerbation of his pre-existing condition, which had since resolved. The case was heard and determined by the Supreme Court of South Australia. The applicant argued that the panel had made an error in fact by concluding that his condition had resolved and that the reasons provided by the panel were inadequate.

The court considered whether the panel had made a reviewable factual error in concluding that Mr Iannacone's condition had resolved and whether the reasons provided by the panel were inadequate. The court found that there was no reviewable factual error and that the reasons provided by the panel were adequate. The court held that the panel had properly considered the evidence before it and had reached a conclusion that was reasonable in the circumstances. The court also held that the reasons provided by the panel were sufficient to enable the applicant to understand the basis upon which the panel had reached its decision.

The court dismissed the applicant's application for judicial review, finding that there was no basis upon which to interfere with the decision of the panel. The court held that the panel had properly exercised its discretion and that the decision was not affected by any error of law or fact. The court also held that the reasons provided by the panel were adequate to enable the applicant to understand the basis upon which the panel had reached its decision.

The court made no orders as to costs.

Orders