Kirby v Victorian WorkCover Authority (Ruling)
[2013] VCC 594
•22 March 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-06077
| JOHN KIRBY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2013 | |
DATE OF JUDGMENT: | 22 March 2013 (Revised) | |
CASE MAY BE CITED AS: | Kirby v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 594 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – application by the defendant to refer medical questions to a Medical Panel pursuant to s45(1)(b) of the Accident Compensation Act 1985 – whether referral should be made – no referral where factual issues more appropriate to be determined by the Court
Legislation Cited: Accident Compensation Act 1985, s45(1)(b) and (1D)
Cases Cited:Amendola v United Doormakers (Vic) Pty Ltd [2012] VCC 1038; United Doormakers (Vic) Pty Ltd v Amendola (Unreported, S APCI 2012 0162, 16 November 2012)
Ruling: The application is refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Spenser | Arnold Dallas McPherson |
| For the Defendant | Mr S Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 21 December 2010 in the Registry of the County Court at Bendigo, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 ("the Act"), to bring a proceeding at common law for injuries sustained by him in the workplace.
2 By a Summons filed on 20 February 2013, the defendant seeks an order, pursuant to s45(1)(b) of the Act, to have medical questions referred to a Medical Panel.
3 Ms S Manova of Counsel appeared for the applicant/defendant, and Ms F Spenser of Counsel appeared for the respondent/plaintiff.
The Application
4 I will firstly set out the material which Ms Manova and Ms Spenser put before me:
· A Notice of particulars pursuant to section 65(6A) of the Act : Exhibit A;
· An index of documents relevant to the referral to the Medical Panel: Exhibit B;
· E-mails with a payroll attachment relevant to the plaintiff dated 29 March 2011 and 2 June 2011: Exhibit C;
· The affidavit of the plaintiff sworn 11 August 2010: Exhibit D;
· A report of Centre State Assessors Pty Ltd dated 24 September 2002: Exhibit E;
· A medical report of Mr Weaver, orthopaedic specialist, dated 27 September 2002: Exhibit F;
· A medical report of Professor Marshall, surgeon, dated 10 December 2008: Exhibit G;
· A medical report of Dr Fraser, rheumatologist, dated 3 May 2011: Exhibit J.
The Plaintiff's Claim and the Medical Evidence
5 The plaintiff was born in 1978. He is now thirty-three years of age. He worked for a company known as Ozimeats Pty Ltd (“Ozimeats”).[1] The plaintiff worked for about a year in 1999 before seeking out work in Queensland. He resumed work with Ozimeats in about March 2002. He ceased working with Ozimeats towards the end of 2002.
[1]The Originating Motion only refers to the Victorian WorkCover Authority, but the affidavit of the plaintiff refers to Ozimeats Pty Ltd as a second defendant
6 In paragraphs 5 and 6 of his affidavit, he referred to the heavy nature of the work he was required to undertake with Ozimeats. The work involved, among other things, grabbing ostriches from pens and placing them in a crush where the birds were stunned. According to the plaintiff, the difficulty he encountered in performing those tasks occurred because the ostriches struggled when he grabbed them, and struggled while in the crush. In both instances, he was required to manually control the birds.
7 In the boning room he was required to push ostrich meat into a machine with a great deal of force to skin the birds. He worked 8 to 10-hour shifts doing that work.
8 In paragraph 7 of his affidavit and following, he described developing pain in his right shoulder and a clicking sensation in both of his elbows. He subsequently obtained medical treatment, which he described in paragraphs 7 to 13.
9 Mr Weaver examined the plaintiff on 26 September 2002. He was of the opinion that the plaintiff had suffered the onset of what he described as an unusual lesion which he suspected involved the region of the long head of the biceps tendon on the right side. He appears to have concentrated on complaints made by the plaintiff of injury to his right upper limb. He did not examine the plaintiff’s left upper limb.
10 Professor Marshall examined the plaintiff; however, the report tendered into evidence is a supplementary medical report which he provided, commenting on a report from another medical practitioner. He considered that the plaintiff’s left elbow injury might relate to employment engaged upon by the plaintiff subsequent to 2003. It should be noted that the plaintiff ceased employment with Ozimeats towards the end of 2002.
11 Dr Fraser examined the plaintiff on 29 March 2011. On the history given to him by the plaintiff, he was of the opinion that the injury to the plaintiff’s right shoulder had settled. He made no further comment about the plaintiff’s right shoulder. He considered that the plaintiff’s bilateral elbow symptoms were clearly due to osteoarthritis which he considered was not attributable to the plaintiff’s employment with the Ozimeats. He considered that the onset of bilateral osteoarthritis was due to a previously unrecognised condition of osteochondritis dissecans of the capitellum duty constitutional factors.
The Proposed Referral
12 The Notice of Particulars pursuant to s65(6A) (“the Notice”) firstly refers to injuries claimed by the plaintiff to his right elbow, left elbow and right shoulder as the injuries which the plaintiff contends are compensable injuries.
13 Secondly, it purports to contain facts which have been agreed by the plaintiff and the defendant. However, Ms Manova informed me that the plaintiff had not agreed to those stated facts.
14 Thirdly, it contains the actual questions to be referred to the Medical Panel:
“13The nature of the plaintiff's medical condition relevant to the alleged right elbow, right shoulder and left elbow injuries.
14Whether employment with the defendant was a significant contributing factor [to] the alleged left elbow injury;
15Whether the plaintiff's physical condition results from or is materially contributed to by the alleged injuries (i.e whether the plaintiff's current symptoms are referable to the alleged injuries or are due to other non-work-related factors).”
15 The index of documents refers, among other things, to claim documents, radiological investigations, medical reports and employment documents. The medical reports include the medical reports which were tendered in this application.
The Relevant Provisions of the Act
16 The relevant provision in the Act to the application made by Ms Manova is s45(1)(b), which is in the following terms:
“(1) If the court exercises jurisdiction under this Part, the court—
(a) may on the court's own motion, refer a medical question to a Medical Panel for an opinion under this Division; or
(b) subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if—
(i) a party to the proceedings requests that a medical question or medical questions be referred; and
(ii) that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.”
17 No issue was taken by Ms Spenser that the notification had been made to the Court of the defendant’s intention to make a request of the Court to refer medical questions to a Medical Panel. Nor that the questions in the Notice constituted “medical questions” as defined in s5 of the Act.
18 The Court must refuse to refer medical questions if the circumstances contemplated by s45(1D) exist. The section is in the following terms:
“(1D) The court must not refer a medical question if it appears to the court that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
The Issues
19 Ms Manova submitted that the reason for the referral is to determine whether the plaintiff has suffered compensable injuries to his right shoulder, right elbow and left elbow.
20 The submission was put simply, but it presupposes that there are no factual issues requiring determination through a thorough examination of lay and medical evidence.
21 Ms Spenser submitted that I should not make the order sought, because whether the plaintiff succeeds in proving that he has suffered a serious injury will depend substantially on the resolution of factual issues, and in particular:
· Were the work tasks described by the plaintiff in paragraphs 6 and 7 as arduous as he describes?
· If the work tasks were that arduous, were the stresses and strains placed upon the plaintiff’s right shoulder, right elbow and left elbow likely to have been affected to such a degree as to produce a compensable injury?
· Is the impairment to the plaintiff’s right shoulder, right elbow and left elbow materially contributed to by the plaintiff’s work?
· If the plaintiff continues to suffer impairment of function to his right shoulder, right elbow and left elbow, is the impairment caused or contributed to by work which the plaintiff undertook subsequent to 2003?
· Did the plaintiff suffer injury to his right shoulder and/or right elbow and/or left elbow when he worked as a bouncer at a nightclub in Bendigo?[2]
[2]Mr Weaver obtained a history that the plaintiff might have suffered his injuries when working as a bouncer. He referred to that on page 4 of his report medical report.
To Refer or Not?
22 In Amendola v United Doormakers (Vic) Pty Ltd,[3] Judge O'Neill refused to refer questions to a Medical Panel on the footing that the medical questions depended substantially on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel. His Honour operated on the basis that the questions were medical questions as defined in s5 of the Act. He then said:
“Further, in this application, there is the prospect of real issues as to the nature and extent of the plaintiff’s earlier injuries and conditions, and the subsequent motor vehicle accident, and whether, and to what extent, those injuries play a role in the plaintiff’s present condition. There is also the question of the plaintiff, it appears, having suffered three separate workplace incidents. No doubt the plaintiff will be carefully cross-examined about those incidents and defendant’s counsel, will seek to direct responsibility for pain and restriction away from them and towards the other non-work incidents.”[4]
[3][2012] VCC 1038
[4]paragraph 18
23 Judge O'Neill also made similar observations where the serious injury application brought by the worker seeks an order giving leave to recover damages for loss of earning capacity. He highlighted the process by which an application for serious injury is brought by the worker and answered by the employer which, among other things, includes the filing of affidavits, examination-in-chief and cross-examination and dealing with questions of credit, which then led his Honour to conclude:
“It is only after that whole detailed process has been undertaken that an assessment can be properly made as to the nature and extent of the plaintiff’s medical condition, and his or her capacity for employment.”[5]
[5]paragraph 22
24 Judge O'Neill’s order refusing the application to refer medical questions to the Medical Panel was appealed.[6] On appeal, the Chief Justice and Priest JA approved of the reasoning of his Honour. The Chief Justice relevantly said:
“… To my mind, it was open to the judge to determine that the formation of an opinion by the Medical Panel as to the medical questions (which concerned the existence and extent of the respondent injuries, and his capacity for gainful employment) would depend substantially on the resolution of factual issues, and that those factual issues were more appropriate for determination by [a] court. It seems obvious that where the nature and extent of the putative plaintiff's injuries (and their effect on the capacity for employment) are disputed, and whether resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would be the Medical Panel. Very often the most illuminative evidence on such matters flows from cross examination in an adversarial setting - something which is not available to a Medical Panel. The judge’s approach thus does not seem to me to be erroneous; or, at least, sufficiently dubious to justify a ground of appeal.”[7]
[6]United Doormakers (Vic) Pty Ltd v Amendola (Unreported, S APCI 2012 0162, judgment delivered on 16 November 2012).
[7]paragraph 20
25 I will follow the same approach taken by Judge O'Neill and will assume that the questions to be put to the Medical Panel do constitute medical questions. However, I am not prepared to make the referral. The language of s45(1D) is, by the use of the word “must”, mandatory in its terms. Therefore, if I am satisfied that the medical questions will depend substantially on the resolution of factual issues which are more appropriately determined by the Court, then I must not make the referral.
26 It seems to me that the plaintiff’s proceeding will require a determination of what work the plaintiff did and whether it materially contributed to the injuries to his right shoulder, right elbow and left elbow, whether those injuries were caused by work which the plaintiff engaged upon subsequent to 2003, and whether he suffered those injuries in his work as a bouncer in a nightclub in Bendigo.
27 It is difficult to appreciate how the Medical Panel will be able to determine those factual issues when, as was observed by the Chief Justice, that where the nature and extent of the plaintiff’s injuries are disputed and where the resolution of those matters might turn on issues of credit, a court is in a much better position to resolve those factual issues than would be a Medical Panel. I also respectfully adopt the observations made by the Chief Justice relevant to cross-examination in an adversarial setting which is something not available to the Medical Panel.
Disposition
28 It seems to me that the issues in the plaintiff’s application bear out issues which are better determined by a Court. Therefore, having reached that conclusion, I refuse the application, as I must.
29 The orders I propose to make are that the application is refused, and that the defendant pay the plaintiff’s costs of the Summons to be assessed by the Costs Court in default of agreement.
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