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Karabinis v Bendrups

Karabinis v Bendrups

Case [2018] VSCA 124 16 May 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0122

FOTINI KARABINIS	Applicant
v
DR ANDREA BENDRUPS and ORS (according to the Schedule attached)	Respondents

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JUDGES:	OSBORN, SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2018
DATE OF JUDGMENT:	16 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 124
JUDGMENT APPEALED FROM:	[2017] VSC 648 (J Forrest J)

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ADMINISTRATIVE LAW – Appeal – Judicial review – Medical panels – Reasons – Adequacy of reasons – Whether reasons disclosed panel’s path of reasoning – No error in judge’s conclusion that reasons adequate.

ADMINISTRATIVE LAW – Appeal – Judicial review – Jurisdictional error – Whether medical panel erred in recording worker’s history – Whether medical panel mistook worker’s history – Judge’s finding that not satisfied that panel made factual error – No error in judge’s conclusion that jurisdictional error not made out.

ACCIDENT COMPENSATION – Appeal – Medical panel – Evidence – Medical panel’s notes tendered to prove history given by worker to panel – Conflicting evidence from worker – Judge not accepting worker’s evidence – No error in judge’s conclusions – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A G Uren QC with Mr N D Horner	Adviceline Injury Lawyers
For the First to Fourth Respondents	No appearance	Moray and Agnew
For the Fifth Respondent	Mr M F Fleming QC with Mr R Kumar	Minter Ellison

OSBORN JA
SANTAMARIA JA
BEACH JA:

Between January 2013 and August 2015, Ms Fotini Karabinis (‘the applicant’) was employed as a cleaner, at the Alfred Hospital, by Spotless Management Services Pty Ltd (‘Spotless’), the fifth respondent.

In August 2016, the applicant made a WorkCover claim in relation to her employment with Spotless. In her claim form,[1] the applicant alleged that she had sustained injury to her left shoulder and psychiatric injury. The injuries were alleged to have been caused by ‘heavy lifting over the course of [her] employment’.
[1]Dated 11 August 2016.

In September 2016, EML Vic Pty Ltd (‘EML’), as agent for the Victorian WorkCover Authority, rejected the applicant’s claim, contending that the applicant had not sustained an injury arising out of or in the course of her employment.

The applicant referred EML’s decision to the Accident Compensation Conciliation Service and, on 24 November 2016, pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) two medical questions were referred to a medical panel for an opinion under div 2 of pt 6 of the Act. The medical questions were:

1.What is the nature of Ms Karabinis’s medical condition (including any sequelae) relevant to the claimed left shoulder injury and psychological condition?
2.If the Panel is of the opinion that Ms Karabinis’s medical condition is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, was her employment in fact or could it possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?

On 31 January…

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 Karabinis v Bendrups

Details

AGLC: Karabinis v Bendrups [2018] VSCA 124
Case: [2018] VSCA 124
Decision Date: 16 May 2018

CaseChat Overview and Summary

The case of Karabinis v Bendrups involved an appeal against a decision made by a medical panel regarding an accident compensation claim. The appellant, Karabinis, contested the adequacy of the reasons provided by the panel and alleged a factual error in the recording of his medical history. The decision was subject to judicial review in the court, which had to determine whether the panel's reasons were sufficient and whether any jurisdictional error occurred. Additionally, the appeal questioned the evidence presented to the panel and the judge's acceptance of conflicting evidence.

The legal issues before the court were primarily centered on the adequacy of the reasons provided by the medical panel and the potential for a jurisdictional error in the panel's recording of the appellant's history. The appellant argued that the reasons given by the panel did not adequately disclose their path of reasoning and that the panel had made a factual error in recording his history. The court also had to consider the evidence presented to the panel and the judge's assessment of that evidence.

The court found that the reasons provided by the panel were sufficient, as they disclosed the panel's path of reasoning and adequately explained the basis for their decision. The judge concluded that there was no error in determining that the reasons were adequate. Furthermore, the court held that the judge was not satisfied that the panel had made a factual error in recording the appellant's history and found no jurisdictional error. The judge's decision to not accept the appellant's conflicting evidence was also upheld, as it was within the judge's discretion.

Consequently, the appeal was dismissed, and the original decision of the medical panel was affirmed. The court's reasoning and conclusions were based on the adequacy of the reasons provided, the absence of jurisdictional error, and the judge's assessment of the evidence presented.

Orders