Jankulovska v Hayman - [2017] VSC 752

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01843

LETKA JANKULOVSKA	Plaintiff
v
DR BRENDAN HAYMAN and OTHERS	Defendants

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JUDGE:	Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2017
DATE OF JUDGMENT:	14 December 2017
CASE MAY BE CITED AS:	Jankulovska v Hayman & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 752

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ADMINISTRATIVE LAW — Judicial review — Order 56 Supreme Court (General Civil Procedure) Rules 2015 — Workplace Injury Rehabilitation and Compensation Act 2013 — Review of Medical Panel opinion — Procedural fairness — No challenge to plaintiff’s credit — Medical Panel formed adverse view of plaintiff’s credit — Plaintiff entitled to notice that her credit may be in issue — Opinion quashed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Forbes QC with Mr P A Czarnota	John Dellios & Associates Pty Ltd
For the Defendants	Mr M Fleming QC with Ms R Kaye	Minter Ellison

HIS HONOUR:

The plaintiff, Letka Jankulovska, had been employed on a permanent basis by Sakata Rice Snacks Australia Pty Ltd, the fifth defendant, since 2006. She worked as a process worker on a production line that roasted, packed and boxed crackers. In about April 2012 she experienced neck and shoulder pain. Notwithstanding intervention by an on-site physiotherapist and various medical practitioners, she was certified unfit for work in about mid-September 2012. Her employment was terminated on 4 September 2015.

As might be expected, the plaintiff underwent various treatments prior to and after she was certified unfit for work. Her medical condition was first referred to a Medical Panel under s 45(1)(b) of the Accident Compensation Act 1985 in March 2014, following termination of weekly payments and medical and like expenses in September 2012. The Medical Panel, comprised of Dr David Barton, Dr Jennifer Harmer, Dr Stephen Adlard and Mr Barry Elliott, certified their opinion and gave reasons on 3 June 2014. I will refer to this Panel as ‘the first Panel’.

The first Panel found that the plaintiff did not suffer from any medical condition or loss of function as a result of her alleged injury at work. It concluded that soft tissue injury had been suffered by the plaintiff but had since resolved. The first Panel found that the plaintiff suffered from a mild Adjustment Disorder with depressed mood resulting from and contributed to by the alleged injury. It found that the plaintiff had no present inability arising from an injury such that she was not able to return to her pre-injury employment.

A second referral to a Medical Panel was made on 5 December 2016 pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. The second panel was comprised of the first to fourth defendants, Dr Armin Drnda (Neurosurgeon), Dr Brendan Hayman (Psychiatrist), Dr Daniel Lewis (Rheumatologist) and Dr Susanne Homolka (Occupational Physician). I will refer to the second Panel as the ‘defendant Panel’.

The defendant Panel certified its opinion and…

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 Jankulovska v Hayman

Details

AGLC: Jankulovska v Hayman [2017] VSC 752
Case: [2017] VSC 752
Decision Date: 14 December 2017

CaseChat Overview and Summary

In the case of Jankulovska v Hayman, the plaintiff, Jankulovska, sought judicial review of a decision made by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013. The defendant, Hayman, was the Minister for Industrial Relations, and the matter was heard in the Supreme Court. The central dispute revolved around the procedural fairness of the decision-making process undertaken by the Medical Panel, particularly concerning the plaintiff’s credibility.

The primary legal issue the court needed to resolve was whether the plaintiff was adequately informed that her credibility might be questioned during the assessment process. The court examined whether the procedural fairness was observed when the Medical Panel formed an adverse view of the plaintiff's credibility without notifying her of this potential issue. It was argued that the plaintiff was entitled to be aware that her credibility could be in question, as this would have allowed her to respond appropriately.

The court found that the plaintiff was not given proper notice that her credibility was being questioned, which violated the principles of procedural fairness. As a result, the court quashed the opinion of the Medical Panel. The court emphasised the importance of ensuring that any individual whose credibility is being assessed in such proceedings is given the opportunity to respond to such concerns. The court concluded that the procedural unfairness warranted the quashing of the Medical Panel's opinion.

Orders