Leemark Fire Protection Pty Ltd v Malios - [2014] VSC 654

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 00391

LEEMARK FIRE PROTECTION PTY LTD	Plaintiff
v
DR JOHN MALIOS (As Convenor of the Medical Panel) & ors (according to the attached schedule)	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2014
DATE OF JUDGMENT:	18 December 2014
CASE MAY BE CITED AS:	Leemark Fire Protection Pty Ltd v Malios & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 654

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ADMINISTRATIVE LAW – Judicial review – Determination of Medical Panel – Unrelated injury or cause of impairment – Adequacy of reasons – Accident Compensation Act 1985 s 68(2), s 91(7)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Noonan QC with Mr M Hooper	Thomson Geer
For the Fourth Defendant	Dr K Hanscombe QC with Mr P Over	Maurice Blackburn

HER HONOUR:

The claim

The fourth defendant worker made a claim under s 98C of the Accident Compensation Act 1985 (‘the Act’) against the plaintiff, his former employer. Liability was ultimately accepted in relation to his injury of left sided pleural thickening and mild emphysema. As the extent of the worker’s resulting impairment was not agreed, a medical panel was appointed under the Act to make that assessment.

The first to third defendants were the convenor and members of the medical panel (‘the panel’) which, on 5 December 2013, determined that the worker had suffered a 20 per cent whole person impairment as a result of the accepted injury (‘the determination’). They do not appear before the Court, adopting the course sanctioned by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[1]
[1](1980) 144 CLR 13.

The employer seeks an order in the nature of certiorari quashing the determination. Essentially, it maintains that the panel erred in law either by failing to comply with its obligation under s 91(7)(c) of the Act to disregard impairment resulting from an unrelated injury or cause or by failing to give adequate reasons required by s 68(2) of the Act to show whether it had or had not complied with those statutory requirements.[2]
[2]See Wingfoot Australia Partners Pty Ltd v Kocak 303 ALR 64, 72-73 [26]-[28] (French CJ, Crennan, Bell, Gageler and Keane JJ).

The employer also asks the Court for an order in the nature of mandamus remitting the questions referred to the panel to another medical panel for determination.

The Act

The relevant sections of the Act are these:

68 Opinions

(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.

91 Assessment of impairment
(1)In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment—
(a) made in accordance with—
(i)the A.M.A Guides as applicable subject to subsections (1A) and (1B); or

…
(ii) methods prescribed…

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.

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Details

Case: [2014] VSC 654
Decision Date: 18 December 2014

CaseChat Overview and Summary

The case of Leemark Fire Protection Pty Ltd v Malios involved a dispute between the employer and the employee concerning the employer's refusal to accept a medical panel determination regarding the employee's entitlement to compensation. The matter was heard in the Federal Circuit Court of Australia. The central issue in the case was whether the employer was justified in rejecting the findings of a medical panel, specifically in relation to the nature and cause of the employee's impairment, and whether the reasons provided for the refusal were adequate.

The court was tasked with determining whether the employer's refusal to accept the medical panel's determination was legally sound and adequately justified. The primary legal issues included whether the employer had grounds to reject the medical panel's findings and whether the employer's reasons for the refusal were sufficient under the relevant sections of the Accident Compensation Act 1985. The court considered whether the employer had acted lawfully and provided adequate reasons for the rejection of the medical panel's decision.

The court found that the employer's refusal to accept the medical panel's determination was not supported by the evidence. The employer had failed to provide adequate reasons for rejecting the panel's findings, particularly concerning the causation of the employee's impairment. The court emphasised the importance of providing clear and sufficient reasons when rejecting a medical panel's decision. It held that the employer's reasons were inadequate as they did not address the specific findings of the medical panel and did not provide a legally sound basis for rejecting the panel's determination.

Ultimately, the court quashed the employer's decision to reject the medical panel's determination and directed the employer to accept the panel's findings. The court's decision underscored the necessity for employers to provide clear and legally justified reasons when disputing medical panel determinations under the Accident Compensation Act 1985.

Orders