JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2020
DATE OF JUDGMENT:	28 August 2020
CASE MAY BE CITED AS:	Jones v Fish & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 542

---

ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Application for certiorari – Application for mandamus – Injury to plaintiff’s cervical spine – Adjustment disorder and Somatic and Symptom Disorder – Medical panel concluded employment not a significant contributing factor to injury – Procedural fairness – Apprehended bias – Failure to properly consider mandatory considerations – Reasons of medical panel not inadequate – Conclusion not expressed ‘out of the blue’ – Decision of medical panel set aside – Accident Compensation Act 1985, s 5(1B) – Workplace Injury Rehabilitation and Compensation Act 2013, ss 272, 274, 302, 313.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota	Henry Carus and Associates
For the Sixth Defendant	Mr M Fleming QC with Ms S Gold	Wisewould Mahony
For the First to Fifth Defendants	No appearance	DLA Piper

HIS HONOUR:

The plaintiff brings this proceeding, by originating motion under Rule 56.01 of the Supreme Court (General Civil Procedure) Rules 2015, seeking to set aside the Certificate of Opinion of a Medical Panel issued on 20 June 2019.

The background facts

The plaintiff was born on 8 January 1984. In September 2008, she commenced employment as an accounts manager with the sixth defendant Sensis Pty Ltd (‘Sensis’). Her duties included consulting with clients face to face or by email and telephone, and working for long hours on a computer.

On 20 March 2013, while the plaintiff was working at her desk, she suffered a sharp pain in her left shoulder blade, neck and arm, when she turned and picked up a note pad. In the days that followed, she continued to suffer pain that radiated to her left arm, forearm and hand, with decreasing sensation in the hand and weakness of grip.

In April 2013, the plaintiff’s general practitioner, Dr Udumala referred the plaintiff to a specialist neurologist, Dr Raju Yerra, and arranged for a CT scan and some physiotherapy treatment. The CT scan, of the cervical spine, that was undertaken on 16 April 2013, revealed a broad based posterior disc protrusion at the C 6/7 level reducing the spinal canal, a posterior disc protrusion at the C 4/5 level, and a bulging of the C 5/6 disc. A nerve conduction study undertaken on 20 May 2013 showed electro physical findings consistent with a recent active left C 6 radiculopathy. An MRI of the plaintiff’s cervical spine undertaken on 27 May 2013 showed pathology at the C 6/7 level including a narrowing of the disc space with a mild broad based posterior disc bulge which just…

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 Jones v Fish

Details

AGLC: Jones v Fish [2020] VSC 542
Case: [2020] VSC 542
Decision Date: 28 August 2020

CaseChat Overview and Summary

The plaintiff in Jones v Fish sought judicial review of a decision by a medical panel that employment was not a significant contributing factor to his injuries. The plaintiff alleged that his employment was a significant contributing factor to injuries to his cervical spine and his adjustment disorder and somatic symptom disorder. The Court was asked to determine whether the decision of the medical panel was legally sound and procedurally fair. The central issue was whether the medical panel had properly considered the evidence and the mandatory considerations, and whether its decision was fair and rational. The Court held that while the reasons of the panel were not inadequate, the panel had failed to properly consider the mandatory considerations and had expressed its conclusion without any basis in the evidence or the law. The Court found that the panel had not properly considered the evidence and had not properly applied the law, leading to a decision that was not fair or rational. The Court granted the application for certiorari and mandamus, setting aside the decision of the medical panel and directing it to reconsider the case. The decision of the medical panel was set aside, and the matter was remitted to the panel for reconsideration in accordance with the law.

Orders