JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2022
DATE OF JUDGMENT:	24 October 2022
CASE MAY BE CITED AS:	Jamali v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 634

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Determination by a medical panel of medical questions as referred under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Whether medical panel made a jurisdictional error and/or error of law on the face of the record – Medical panel determined that the plaintiff’s lower back injury caused by the workplace incident was resolved and referred to plaintiff’s earlier lower back pain – Plaintiff claim that the conclusion reached by the panel could not be reasonably anticipated by plaintiff – Conclusion alleged to have been made by the panel not made, but if it was, it was not unexpected.

JUDICIAL REVIEW – Whether medical panel failed to consider the question of whether in the alternative to the lower back injury being organically based that the symptoms of the plaintiff could be explained by any mental or behavioural disturbance or disorder or chronic pain disorder – Whether medical panel failed to take into account a mandatory relevant consideration – Relevance of reasons – Medical Panel failed to fulfill statutory function by not taking into account a mandatory relevant consideration – Opinion quashed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Kenneally	Zaparas Lawyers Pty Ltd
For the First Defendant	Ms F Spencer	Russell Kennedy Lawyers
No appearance for the Second to Seventh Defendants

HER HONOUR:

Mr Jamali is a 27-year-old man who until 25 September 2018 was engaged as a sub‑contractor truck driver and then as a storeman by Super Metal Recycling Pty Ltd (‘employer’). In his work as a storeman, he spent most of his time on the factory floor dealing with large shipping containers, and driving forklifts.

On 20 September 2018, Mr Jamali experienced a sudden onset of lower back pain whilst at work when closing some heavy doors of a shipping container (‘September 2018 incident’). He saw his general practitioner (‘GP’), and had three days off work. His attempt to return to work on 24 September 2018 was unsuccessful, owing to severe lower back pain, and he has suffered lower back pain and related symptoms ever since. Given his background (he is a refugee from Afghanistan, and migrated to Australia from Pakistan as a teenager) and lack of formal education, any inability to undertake heavy manual labour is a significant impediment to him finding regular employment. He also suffers from some psychological impairments associated with his back injury.

As well as being under the regular care of his GP and a psychologist, Mr Jamali has seen a raft of medical…

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 Jamali v Victorian WorkCover Authority

Details

AGLC: Jamali v Victorian WorkCover Authority [2022] VSC 634
Case: [2022] VSC 634
Decision Date: 24 October 2022

CaseChat Overview and Summary

In the matter of Jamali versus the Victorian WorkCover Authority, the plaintiff sought judicial review of a decision made by a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The panel had determined that the plaintiff's lower back injury, caused by a workplace incident, had resolved and was instead a recurrence of the plaintiff's earlier lower back pain. The plaintiff contested this decision, arguing that the conclusion reached by the panel was not reasonably foreseeable and that the panel had not properly considered the possibility that the plaintiff's symptoms could be explained by a mental or behavioural disorder or chronic pain disorder.

The primary issue before the court was whether the medical panel had made a jurisdictional error or an error of law on the face of the record. The court had to determine if the medical panel failed to consider whether the plaintiff's symptoms could be explained by a mental or behavioural disturbance or disorder, or a chronic pain disorder, as an alternative to the lower back injury being organically based. Furthermore, the court needed to assess whether the medical panel's failure to consider this alternative explanation constituted a failure to take into account a mandatory relevant consideration, thereby rendering the panel's opinion invalid.

The court found that the medical panel had failed to consider the alternative explanations for the plaintiff's symptoms. The court held that the medical panel's omission constituted a failure to take into account a mandatory relevant consideration, which rendered the panel's opinion invalid. The court quashed the opinion of the medical panel, finding that the panel had not fulfilled its statutory function by neglecting to consider the alternative explanations for the plaintiff's symptoms. The court's decision highlighted the importance of ensuring that all relevant considerations are taken into account when making determinations under the Act.

The court quashed the opinion of the medical panel, thereby invalidating the panel's determination that the plaintiff's lower back injury had resolved and was a recurrence of the plaintiff's earlier lower back pain. The case underscores the necessity for medical panels to thoroughly consider all relevant factors and alternative explanations when making determinations under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

Orders