JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2019
DATE OF JUDGMENT:	7 June 2019
CASE MAY BE CITED AS:	Lang v Spendless Shoes Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 376 First Revision: 17 June 2019

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ADMINISTRATIVE LAW – Judicial review – Workers’ compensation – Termination of weekly payments - Medical questions referred by Magistrates’ Court to Medical Panel – Application to quash certified opinion of Medical Panel – Failure to take into account pre-existing medical condition of opioid dependence in assessing work capacity – Failure to consider entirety of injured worker’s relevant personal circumstances – Errors of law on the face of the record – Certified opinion quashed - Questions referred to differently constituted Medical Panel - Accident Compensation Act 1985 ss 4A, 5(2), 82, 93, 93C(1) - Workplace Injury Rehabilitation and Compensation Act 2013 s 3 (definitions of ‘no current work capacity’ and ‘suitable employment’) – Richter v Driscoll (2016) 51 VR 95.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A G Uren QC with L Allan	Arnold Thomas & Becker
For the Defendant	J P Gorton QC with R Kaye	Minter Ellison

HIS HONOUR:

Overview

In 2018, in answer to certain medical questions referred by the Magistrates’ Court, a Medical Panel issued a certified opinion that stands in the way of the reinstatement of weekly payments of workers’ compensation to the plaintiff, Ms Lang. The plaintiff now challenges the Medical Panel’s opinion on several points. One of the plaintiff’s points – a point relating to the concept of employability in connection with the assessment of work capacity – raises a controversial legal issue that is of potential significance for other cases. However, in the end, that issue need not and will not be decided in this case, because the Panel’s opinion is affected by other vitiating errors that do not involve an issue of that kind. The opinion will be quashed on the basis of those other errors, and the medical questions will be remitted for reconsideration by a Medical Panel differently constituted.

The factual background, the referral to the Panel and the issues

The plaintiff was born in June 1965. In January 2004, when she was 39 years old, the plaintiff was engaged by the first defendant as a sales assistant/manager of a shoe shop. On 24 August 2004, in the course of that employment, the plaintiff ‘rolled’ her right foot and thereby injured it. She ceased work for two weeks from 1 September 2004, prior to returning to work on restricted duties and reduced hours on 17 September 2004. On 21 September 2004 she claimed workers’ compensation under the Accident Compensation Act 1985 (‘the ACA’) for a ‘broken foot’, and liability was accepted. The plaintiff ceased work completely…

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 Lang v Spendless Shoes Pty Ltd

Details

AGLC: Lang v Spendless Shoes Pty Ltd [2019] VSC 376
Case: [2019] VSC 376
Decision Date: 7 June 2019

CaseChat Overview and Summary

The case of Lang v Spendless Shoes Pty Ltd was heard in the Supreme Court of Victoria. The applicant, Lang, sought judicial review of decisions made by the respondent, Spendless Shoes Pty Ltd, in relation to the termination of weekly payments under the Workers’ Compensation scheme. Lang challenged the certified opinion of a Medical Panel that he had no current work capacity, arguing that the Panel failed to adequately consider his pre-existing medical condition of opioid dependence and his overall personal circumstances.

The central legal issues in the case revolved around whether the Medical Panel erred in law by not fully considering Lang’s pre-existing medical condition and his personal circumstances in assessing his work capacity. The court was required to determine whether these omissions amounted to errors of law on the face of the record, justifying the quashing of the Panel’s opinion.

The Supreme Court found that the Medical Panel did indeed commit errors of law. The court held that the Panel failed to take into account Lang’s pre-existing opioid dependence and did not consider the entirety of his relevant personal circumstances. These omissions were significant enough to constitute errors of law on the face of the record. Consequently, the court quashed the certified opinion and referred the questions back to a differently constituted Medical Panel for reassessment. The court emphasised the importance of a thorough and comprehensive assessment of all relevant factors in such medical evaluations.

The final orders of the court included the quashing of the original certified opinion and the referral of the questions back to a differently constituted Medical Panel for reassessment. This decision underscores the necessity for medical panels to consider all relevant factors, including pre-existing conditions and personal circumstances, in their assessments of work capacity under the Workers’ Compensation scheme.

Orders