Law v Leftrade Limited and Anor (Ruling)
[2015] VCC 1326
•11 September 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-01173
| JANNELLE MAREE LAW | Plaintiff |
| v | |
| LEFTRADE LIMITED | First Defendant |
| and | |
| VICTORIA WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 1 September 2015 | |
DATE OF JUDGMENT: | 11 September 2015 (Revised) | |
CASE MAY BE CITED AS: | Law v Leftrade Limited & Anor (Ruling) | |
| MEDIUM NEUTRAL CITATION: [First revision 24 September 2015] | [2015] VCC 1326 | |
RULING
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Subject:Defendant seeking referral of medical question to Medical Panel – Application of the Workplace Injury Rehabilitation and Compensation Act 2013
Catchwords: Serious Injury Application – referral of matter to Medical Panel
Legislation Cited: Accident Compensation Act 1985; Workplace InjuryRehabilitation and Compensation Act 2013
Cases Cited:United Doormakers (Vic) Pty Ltd v Amendola (unreported) VSCA, 16 November 2012; Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Moyston Court Fisheries Ltd v Malios & Ors [2007] VSC 518; Masters v McCubbery & Ors [1996] 1 VR 635; Monteiro v Tiago Enterprises Pty Ltd (Ruling) [2012] VCC 362
Judgment: Relief granted to defendants pursuant to s274(1) of the Workplace Injury Rehabilitation and Compensation Act 2013. Medical questions to be referred to the Medical Panel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendants | Mr P A Jewell QC with Ms M Tait | Minter Ellison |
HER HONOUR:
1 On June 1 2006 (“the said date”), the plaintiff, who was working as a supervisor in the defendant’s fish business, suffered injury to her right shoulder when she fell off a pallet (“the incident”). She later developed secondary depression.
2 Liability was accepted in respect of the plaintiff’s right shoulder and secondary depression. She was paid medical and like expenses and 130 weeks of weekly payments. She also received a lump sum benefit.
3 On 13 March 2013, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB of the Accident Compensation Act 1985 to bring common law proceedings in relation to the injuries she suffered to her right shoulder, and psychiatric injuries in the incident.
4 This is an application by the defendants for the referral of certain questions, said to be medical questions,[1] to a Medical Panel pursuant to the provisions of s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).
[1]Defined in s3 of the WIRCA
5 Section 274 of the WIRCA provides:
“274 Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a)may, on the court’s own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b)if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party’s intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2)This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985—
(a) so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b) so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of medical question in section 3)—
to a Medical Panel for an opinion.
(3)If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4)A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
(5)A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
6 The Court was notified the defendants intended to refer the matter to the Medical Panel at the call-over prior to the circuit commencing on 11 May 2015, and the Serious Injury Applications listed to be heard in the circuit commencing 24 August 2015.
7 The Court was, therefore, notified by the defendants of their intention to refer the matter to the Panel more than 14 days prior to the date listed for hearing, thus complying with s274(1)(b)(ii)) of the WIRCA.
8 Mr Jewell, on behalf of the defendants, provided five proposed questions which fell into two main categories, namely diagnosis of the shoulder and psychiatric condition and the capacity for employment in terms of both conditions.
9 Counsel for the plaintiff “did not abandon the proposition the questions were unsatisfactory”, but made no submissions in relation thereto.[2]
[2]Transcript (“T”) 7
10 The questions were as follows:
(1)What is the nature of the plaintiff’s current medical condition relevant to the injuries referred to in the letter from Maurice Blackburn dated 24 August 2015, namely:
(a) right shoulder injury?
(b)mental or behavioural disturbance or disorder (hereinafter referred to as the accepted injuries)?
(2)Do any of the current physical or mental conditions identified in response to Question (1) result from, or are they materially contributed to, by the injuries sustained on 1 June 2006?
(3) Does the plaintiff have:
(a) a current capacity for her pre-injury duties?
(b) a current capacity for suitable employment?
(4)If yes to Question 3(a) or (b) above, for how many hours per week can she perform such duties or employment?
(5)If no to Question 3(a) or (b) above:
(a)does the plaintiff’s incapacity for work result from, or was it materially contributed to by any, and if so, which of the accepted injuries?
(b)is any such impairment permanent?
11 Counsel for the defendants submitted that the Court’s function is to refine a question advanced so as to be a medical question. The questions that go to the Panel must be relevant to a serious injury application.
12 Further, there is no requirement that the questions themselves be calculated to be determinations that are entirely dispositive of particular issues within the serious injury range of cases. Thus, the Panel does not deal with the narrative or the issue of 40 per cent loss of earning capacity.[3]
[3]Transcript (“T”) 2
13 The plaintiff opposes the questions going to the Medical Panel on the basis of s274(3) and s274(5) of the WIRCA.
14 Counsel for the defendant made detailed submissions as to why the matter was appropriate for referral and why the Sections relied upon by the plaintiff did not apply in the present case.
15 It was submitted that it was a clear legislative intention to give a preference to Panel determinations on the plain reading of s274 of the WIRCA, because reference to the Panel is mandated unless the exceptions apply.[4] One could discern an unequivocal intention that that was the preferred position by the legislature.[5]
[4]United Doormakers (Vic) Pty Ltd v Amendola (VSCA, unreported, 16 November 2012) per Priest JA at paragraph 11
[5]T3
16 In Wingfoot Australia Partners Pty Ltd v Kocak,[6] the High Court explained the function of the Medical Panel.
[6](2013) 252 CLR 480
17 In particular:
“The function of a Medical Panel’s neither arbitral nor adjudicative: it’s neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”[7]
[7](Supra) paragraph 47
18 It was submitted that the function of the Panel and the Court are entirely different, as are their processes. The example was cited that a court may have to decide between the opinion of practitioner A and B about the ability of the plaintiff to work. It is not the Panel’s function. It has to take those opinions into account under the rules of natural justice but, fundamentally, makes its own decision.[8]
[8]T4
19 Further, the Panel is peculiarly better placed than a court to decide the issue itself if it chooses, because they are expert medical practitioners. Thus in a case involving psychiatric injury, a psychiatrist would be part of the Panel. A dispute between medical practitioners is not a relevant factual issue that would trouble the Panel.[9]
[9]T5
20 It was submitted the fairness of the Panel’s process is ensured by administrative law. As Forrest J said in Moyston Court Fisheries Ltd v Malios & Ors,[10] the rules of natural justice prescribe certain matters that are essential for the Panel to look at.
[10][2007] VSC 518
21 The Panel is required to take into account matters on a genuine basis and not merely pay lip service to them. There are principles to ensure fairness from the start.[11]
[11]T6
22 Importantly, the Panel is bound to accord procedural fairness to the parties, giving them an opportunity to be heard, and it may inform itself under s306 of the WIRCA:
“306 When opinion on medical question may not be given
(1) Despite sections 302(2) and 313(1), if a Conciliation Officer refers a medical question to a Medical Panel under section 284 and it becomes apparent to the Convenor or the Medical Panel 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 a court than by a Medical Panel—
(a)the Convenor may decline to convene a Medical Panel; or
(b)the Medical Panel may decline to give an opinion on the medical question.
(2) The Convenor must inform the Conciliation Officer, in writing, of a decision made by the Convenor or the Medical Panel under subsection (1)(a) or (b).”
23 It was submitted on the defendants’ behalf that the Panel’s opinion sought in this case does not depend substantially on the resolution of factual matters which are more appropriately determined by the Court.
24 Section s274(5)) of the WIRCA provides:
“(5) A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
25 The word “substantially” was emphasised by the defendants. It was submitted clearly not every factual dispute will bring it within the exception.
26 It was submitted it is clear the Panel is permitted to decide some factual matters. Subsection (5) requires that the resolution of the medical condition question must depend “substantially” on the resolution of factual issues which are more appropriately determined by a court.
27 It was submitted the medical questions in this application centred on issues of diagnosis, causation and work capacity. These questions are quintessential Panel issues and their resolution does not depend substantially on the resolution of the factual issues.
28 It was submitted the matters in issue were:
(a) whether the plaintiff had any current consequences of impairment from the right shoulder injury or secondary mental or behaviour disturbance or disorder;
(b) in relation to the plaintiff’s mental condition, the contribution of various causative elements to her current state; and
(c) whether the plaintiff has a capacity for her pre-injury work or any suitable work.
29 The diagnosis of the shoulder condition is a medical question which can be decided by the Panel. It was submitted, as a matter of law, the requesting party is entitled to the Medical Panel consideration of medical questions.[12]
[12]T56
30 It was submitted what was in dispute was the causative contribution of those elements to the plaintiff’s current psychiatric condition, which the defendants submitted was an entirely appropriate issue for the Panel to determine.
31 Furthermore, the Panel is not requested to determine any factual issues relevant to questions regarding the plaintiff’s diagnosis or her work capacity. The dispute between medical practitioners about the diagnosis of the plaintiff’s condition and work capacity is not a factual dispute.
32 Similarly, in Masters v McCubbery & Ors,[13] the Court of Appeal acknowledged that a panel can be called upon to decide matters of mixed law and fact. Indeed, it would be impossible for a panel to ever reach any opinions on medical questions if it did not make factual findings as a precursor to doing so. Therefore, the fact the Panel may have to determine some factual issues does not enliven ss(5).
[13][1996] 1 VR 635 at 642
33 It was submitted, in any event if, in the course of the Panel’s process, information emerges which points to a factual dispute, the resolution of which is important to the Panel’s determination of a medical question (which foreseeably is unlikely in this case), the Panel has specific power and is bound to consider and accord the parties procedural fairness under s306 of the WIRCA to decline to give an opinion to the medical question. In that event, the plaintiff would have the opportunity to determine which is the appropriate forum to decide the dispute and if both parties agree, there would be a high probability the issue would be referred to a court.
34 Counsel for the plaintiff indicated that that the Serious Injury Application would be brought under sub-paragraphs (a) and (c). Whilst it will be argued there was an organic right shoulder injury, the main focus will be on the psychiatric impairment.[14]
[14]T8
35 The plaintiff’s first and primary submission was that this is a matter for the Court, not the Panel – s274(5).
36 The second submission relates to s274(3) in relation to an alleged abuse of process, given the matter has been “hanging around” for a couple of years.[15]
[15]T8
37 Counsel for the plaintiff submitted that referral to the Panel was not mandatory in the absence of the application of s274(3) or (5) – “no one starts on the inside rail.” It is a matter for the judge’s discretion.[16]
[16]T62
38 Reliance was placed on Judge O’Neill’s decision in Amendola[17] that, within serious injury cases generically, there are a range of factual disputes in every case that can only be properly teased out through cross-examination and are best determined by a judge.[18] It was submitted that was the substance of Amendola and it strongly favoured the plaintiff in this case.[19]
[17]Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038
[18]T40
[19]T62
39 On appeal,[20] Priest J did not consider Judge O’Neill’s approach to be erroneous or at least sufficiently dubious to justify a grant of leave.
[20](Supra)
40 Where resolution of matters relating to injuries and employment capacity turn on issues of credit, Priest J noted the Court is in a much better position to resolve factual matters in issue than the Panel.[21]
[21](Supra) at paragraph 20
41 Even if wrong in this regard, Priest J would still refuse leave, noting:
“There was much to be said for the proposition that this case turns on its own facts and is unlikely to be influential in other cases where it is sought to invoke the relevant section.”[22]
[22](Supra) at paragraph 21
42 Priest J further noted, if left to stand, the decision does not finally determine the ultimate controversy between the parties.[23]
[23](Supra)
43 Counsel for the defendant distinguished Amendola on the basis that that case involved other matters not relevant in the present application such as pre-existing conditions and other work incidents.[24] As Priest JA said in Amendola, each case is to be considered on its facts and there is no general approach.[25]
[24]T21
[25]T22
44 I accept this submission. The present application does not involve questions where credit and the need for cross-examination arises, as in Amendola, such that the matter would be more appropriately dealt with by the Court rather than the Panel.
45 Counsel for the plaintiff also submitted there were further specific factors in the present application that invoked the operation of s274(5) of the WIRCA.
46 It was submitted there were substantial factual issues in relation to shoulder injury and capacity for employment. The real issue in dispute was not the medicine but the plaintiff’s physical capacity for certain jobs.[26]
[26]T33
47 It was submitted all orthopaedic surgeons involved in this application considered the plaintiff had a capacity for light work. The question must therefore be what work she is capable of performing.[27]
[27]T36
48 Counsel for the plaintiff noted the defendants rely on a vocational assessment setting out suitable jobs. It was submitted it is a matter of evidence as to whether they are light work jobs, and that is a task for the vocational assessor to describe in detail.[28]
[28]T36
49 The plaintiff would propose to call a vocational assessor to adduce evidence the suggested jobs are not light work and give evidence as to their availability in Gippsland for a person with the plaintiff’s educational and work background.[29]
[29]T37
50 Whilst counsel for the plaintiff ultimately conceded the plaintiff could obtain a report of an occupational physician or vocational assessor and put that report before the Panel, it was submitted it was nonetheless material of a non-medical nature that the Panel is being asked to determine and that these sort of considerations are much better heard by a court.[30]
[30]T61
51 It was submitted whether a job is light or available is clearly not a medical question; it is a question of fact, with no medical expertise.[31] Nor is it a medical question whether the plaintiff is suitable for work because of her education or previous work experience.[32]
[31]T38
[32]T39
52 In my view however, as counsel for the defendant submitted, a conflict between vocational assessors is similar to a conflict between doctors and does not depend substantially on the resolution of factual issues.[33] The Panel would come to a conclusion as to fitness for work or for a particular role and the Court would then decide the 40 per cent issue. [34]
[33]T61
[34]T52
53 Further, if the Panel required more evidence as to this issue, the convenor could request an occupational physician’s report.[35]
[35]T50
54 The second factor relied upon by counsel for the plaintiff related to psychiatric diagnosis, work capacity from a psychiatric viewpoint and the contribution of non-incident related factors to the plaintiff’s psychiatric presentation.[36]
[36]T44
55 Counsel for the plaintiff submitted the plaintiff’s history of functioning well pre-incident and her life “falling apart” thereafter would not appear by inference to be accepted by Dr Kornan or Dr Entwisle.[37] It was submitted “plain justice” required the proper ventilation of the contribution of psychosocial issues to the plaintiff’s psychiatric condition.[38]
[37]T41
[38]T43
56 Counsel for the defendants advised that the defendants would not be giving away any argument about the role of non-incident related factors, but pointed out all psychiatrists thought work had contributed to the plaintiff’s condition.[39] No psychiatrist disconnects the part played by the work injury in the plaintiff’s psychological state but they gave differing emphasis to psychosocial matters.[40]
[39]T16
[40]T53
57 It was submitted by counsel for the defendants any argument that the matter not be referred to the Medical Panel because the plaintiff wishes to cross-examine the defendants’ medical witnesses on the facts relied upon when reaching their opinions regarding her psychiatric condition and the contribution that these have had to her psychiatric demise are not sufficient to enliven s274(5).
58 Counsel for the defendants conceded matters relating to the plaintiff’s history are not a matter of dispute. The plaintiff had said what has happened in her life; her history is accepted. There is however, different emphasis given by psychiatrists as to the significance of those factors in their diagnosis.
59 As the defendants understand it, there is no dispute the facts relied upon by its medical witnesses are correct, namely:
(a) that the plaintiff separated from the father of her first daughter, Zoe, in about mid 2007, that she lived in her car for a few months after that separation and that Zoe had lived with her father ever since;
(b) that the plaintiff separated from the father of her second daughter, Hayley, at around the time of Hayley’s birth, as he was abusing drugs;
(c) that the plaintiff is under financial stress and has had difficulty finding a stable place to live;
(d) that the plaintiff has requested the assistance of the Department of Human Services to look after Hayley; and
(e) that the plaintiff has limited support from her parents.[41]
[41]T53
60 There has also been a recent examination by Dr Tagkaladis updating the plaintiff’s history.[42]
[42]T52
61 Psychiatrically speaking, I accept the issue seems to be one of work capacity rather than the nature of the diagnosis, with Dr Entwisle the only practitioner who considers the plaintiff has a capacity for work on psychiatric grounds.[43]
[43]T15
62 It is pretty much accepted that there is an Adjustment Disorder, with differing views as to the presence or role played by a Chronic Pain Syndrome.[44]
[44]T20
63 In my view, nothing raised by counsel for the plaintiff enlivens s274(5) as to psychiatric-related questions. Issues of diagnosis and capacity are clearly medical questions properly referable to the Panel.
64 The defendants are entitled to the Panel’s opinion as to diagnosis of both the physical and psychiatric conditions. If there is found to be a pathological problem in relation to the right shoulder, the chronic pain aspect diminishes. Similarly, if there was a finding there is no pathological problem, the chronic pain component from a psychiatric viewpoint would no doubt be elevated in importance and significance.[45]
[45]T17
Abuse of process
65 Counsel for the defendants submitted there was no abuse of process. Accordingly, it was not a situation where the Court may refuse to refer a medical question to the Panel pursuant to s274(3) of the WIRCA.
66 The application for referral of questions to the Panel was made some eighteen months after the plaintiff filed an Originating Motion, because her solicitors did not confirm the final nature of her case until 24 August 2015, during the Morwell circuit.
67 Counsel for the defendants explained the questions were not provided until that time because the plaintiff’s neck injury was potentially part of the Serious Injury Application until very recently.[46]
[46]T23-T24
68 Until that time, the defendants were uncertain as to the basis upon which the plaintiff was pursuing this application and, consequently, it was not possible for them to form a view earlier regarding the appropriateness of referral to the Panel.
69 Whilst counsel for the plaintiff submitted there was an abuse of process because of the late notification of the intended referral, it was conceded notice had been given as required by the WIRCA.
70 It was suggested that two years after proceedings were issued, the defendants were going back to the Panel because they were successful there previously. It was submitted any cervical spine injury was irrelevant in explaining delay because the defendants had always maintained it was not work related.[47]
[47]T47
71 Reliance was placed on the judgement in Monteiro v Tiago Enterprises Pty Ltd (Ruling),[48] where Judge Saccardo found delay constituted an abuse of process.[49]
[48][2012] VCC 362
[49]T48
72 In my view, there was no abuse of process in this application. The defendants were entitled to know the full ambit of any application before referring questions to the Panel. It was not possible for them to form a view as to the appropriateness of referral to the Panel at an earlier time. Further, the defendants notified the Court of their intention to make the referral within the time limits set out in the WIRCA.
73 Having found there to have been no abuse of process and that the proposed questions do not come within s274(5), I grant the relief sought by the defendants and order, pursuant to s274(1) of WIRCA, that the proposed medical questions be referred to the Medical Panel to provide an opinion in accordance with that Act.
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