JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2020
DATE OF JUDGMENT:	6 November 2020
CASE MAY BE CITED AS:	Jerak v Dr Lazarus & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 729

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JUDICIAL REVIEW – Workers compensation – Medical Panel – 0% whole person impairment assessed by the panel – Dr Lazarus member of panel and previously engaged to examine the plaintiff – Breach of s 537(8) of Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) due to failure to preserve impartiality and independence – Breach of s 537(8) is not cured by s 540 – Jurisdictional Error – Opinion set aside – Remitted to differently constituted panel – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Masters v McCubbery & Others [1996] 1 VR 635 – Ryan v The Grange at Wadonga Pty Ltd & Ors [2015] VSCA 17 – WIRC Act s 56, 311, 312, 537, 540 – Accident Compensation (General Amendment) Act (No 64 ) 1989 – Accident Compensation (Workcover) Act (No 67) 1992 s 63(5)

PROCEDURAL FAIRNESS - Application of AMA Guides – Chapter 2 & 8 – No failure to resolve disparity as to underlying cause of eye injury – Medical Panel acted in accordance with the Guides and its obligation of procedural fairness – HJ Heinz & Anor v Kotzman & Ors [2009] VSC 311– American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Hayes QC Mr P. Czarnota	Carbone Lawyers
For the First and Second Defendant	DLA Piper Australia
For the Third Defendant	Mr M. Fleming QC Ms S. Gold	Hall & Wilcox

HER HONOUR:

The plaintiff seeks orders quashing the opinion of a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the WIRC Act’) to assess impairment.

Mr Marin Jerak sustained eye injuries while working as a truck driver for Victoria Police. On 30 May 2015, while he was under a car fitting a chain so the car could be towed by a tilt tray truck, debris fell into his eyes and his right eye was struck by the chain. He has an accepted claim for compensation.

Subsequently he lodged a claim for an impairment benefit and the claims agent managing the claim arranged for the plaintiff to be examined by Dr Mark Lazarus on 13 February 2017. The letter to Dr Lazarus made clear that liability for injury was to be accepted and only an assessment of impairment in accordance with the American Medical Association Fourth Edition Guidelines (‘the AMA Guides’) was required. The plaintiff missed the appointment and the examination did…

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 Jerak v Dr Lazarus & Ors

Details

AGLC: Jerak v Dr Lazarus [2020] VSC 729
Case: [2020] VSC 729
Decision Date: 6 November 2020

CaseChat Overview and Summary

The applicant, Jerak, sought judicial review of a decision by a medical panel assessing the applicant’s whole person impairment under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The panel found Jerak had a 0% whole person impairment. Dr Lazarus, a panel member, had previously examined Jerak. The applicant alleged a breach of section 537(8) of the WIRC Act, which requires panel members to preserve impartiality and independence. The applicant also contended that the panel failed to properly apply the AMA Guides to the Evaluation of Permanent Impairment.

The court considered whether Dr Lazarus’s prior involvement in the case constituted a breach of section 537(8) of the WIRC Act. The court noted that the statutory provision was not satisfied due to Dr Lazarus’s prior engagement with the applicant, thereby failing to maintain impartiality and independence. The court further examined whether section 540 of the WIRC Act could cure the breach. The court held that section 540 did not apply to rectify the breach of section 537(8). Consequently, the court found a jurisdictional error due to the failure to adhere to the statutory requirement for impartiality and independence. The court set aside the opinion and remitted the matter to a differently constituted panel for reconsideration.

The court found that the panel did not breach procedural fairness by failing to resolve the disparity as to the underlying cause of the eye injury. The court held that the panel acted in accordance with the AMA Guides and its obligation of procedural fairness. The court emphasised that the panel had appropriately applied the AMA Guides and resolved the issue of the underlying cause of the injury. Therefore, the court dismissed the applicant's claims of procedural unfairness.

The court set aside the decision of the medical panel and remitted the matter to a differently constituted panel for reconsideration, in accordance with section 537(8) of the WIRC Act. The court held that the prior involvement of Dr Lazarus in the case constituted a breach of impartiality and independence, leading to a jurisdictional error. The court further held that the panel’s application of the AMA Guides and its consideration of the underlying cause of the injury did not amount to a breach of procedural fairness.

Orders