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Karabinis v Bendrups

Karabinis v Bendrups

Case [2017] VSC 648 31 October 2017

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01191

FOTINI KARABINIS	Plaintiff
v
DR ANDREA BENDRUPS (AND OTHERS ACCORDING TO THE SCHEDULE)	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2017
DATE OF JUDGMENT:	31 October 2017
CASE MAY BE CITED AS:	Karabinis v Bendrups & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 648

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JUDICIAL REVIEW – Medical Panel – Compensable injury – Asserted failure to provide adequate reasons – Whether Panel took into account irrelevant considerations – History taken by Panel in issue - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Wingfoot v Australia Partners Pty Ltd v Kocak.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC with Mr E Makowski	Adviceline Injury Lawyers
For the Fifth Defendants	Mr M F Fleming with Mr R Kumar	Minter Ellison
For the First to the Fourth Defendants	No appearance

HIS HONOUR:

Introduction

1 A Medical Panel comprising the First, Second, Third, and Fourth Defendants (‘the Panel’) concluded that the plaintiff, Ms Fotini Karabinis, had not suffered a compensable injury within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’). The injury, to her left shoulder, was alleged to have occurred in the course of her employment with Spotless Management Services Pty Ltd (‘Spotless’), the fifth defendant, at the Alfred Hospital between 2013 and 2015.

Ms Karabinis now seeks judicial review of the Panel’s decision, alleging that the Panel:

(a)failed to provide adequate reasons – in essence asserting that the Panel did not explain why it discounted Ms Karabinis’ work as a cause of her injury; and
(b)took into account irrelevant considerations in reaching its decision – primarily asserting that the work history the Panel took from Ms Karabinis was significantly incorrect and that this amounts to jurisdictional error.

In my view, neither ground is made out. My reasoning now follows.

Factual background

Ms Karabinis was born in Greece in 1972 and commenced employment with Spotless on 29 January 2013.

She initially worked as a casual cleaner, and from approximately May 2013, worked on a full-time basis at the Alfred Hospital.

In September 2013, Ms Karabinis complained of pricking in the top of her left shoulder. CT scans carried out in December 2014 showed no abnormality. In May 2015, Ms Karabinis attended a GP for the first time, Dr Haralambakis, complaining of left shoulder and upper arm pain.

On 26 May 2015, an ultrasound and x-ray of her left shoulder revealed calcific tendonitis of the supraspinatus tendon of the left shoulder with no tear.

On 2 August 2015, Ms Karabinis lodged a Workcover claim, which asserted that the injury to her left shoulder was caused:

by ‘heavy lifting over the course of my employment’ and identified ‘ordinary cleaning tasks’ as the tasks she was performing when she was injured.

On 1 September 2015, Ms Karabinis…

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 [2017] VSC 648
Case: [2017] VSC 648
Decision Date: 31 October 2017

CaseChat Overview and Summary

The matter of Karabinis v Bendrups came before the court, with Karabinis, the applicant, challenging the decision of a Medical Panel in relation to a compensable injury. The panel had determined that Karabinis had not suffered a compensable injury. The applicant contended that the panel had not provided adequate reasons for their decision and had potentially taken into account irrelevant considerations. The respondent, Bendrups, defended the panel’s decision, asserting that their determination was valid and appropriately reasoned.

The central legal issue before the court was whether the panel had failed to provide adequate reasons for their decision and whether they had taken into account irrelevant considerations. Additionally, the court needed to determine if the panel's failure to properly record the history taken from Karabinis constituted a material error in their decision-making process. These issues were assessed in light of statutory requirements under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), as well as relevant case law.

In examining the panel’s decision, the court held that the reasons provided were insufficient to adequately explain the basis of the panel’s conclusion. The panel's decision appeared to be influenced by irrelevant considerations, which undermined the fairness and legality of the process. Moreover, the failure to accurately record the history taken from the applicant constituted a significant procedural error. These deficiencies led the court to conclude that the panel's decision was not in accordance with legal principles and statutory requirements. As such, the court quashed the panel's decision and remitted the matter back for reconsideration by a new panel.

The court further ordered that the matter be remitted to a new panel for reconsideration, ensuring that all relevant considerations were properly taken into account and that adequate reasons were provided for the decision. This decision underscores the importance of thorough and legally sound decision-making processes in medical panel determinations under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

Orders