Maio v Kotzman - [2007] VSC 502

Fcohen

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5667 of 2007

GIUSEPPE MAIO	Plaintiff
v
DR DAVID KOTZMAN and ORS	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 28 November 2007
DATE OF JUDGMENT:	10 December 2007
CASE MAY BE CITED AS:	Maio v Kotzman and Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 502

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ADMINISTRATIVE LAW - Accident Compensation –Workers’ compensation – Medical questions referred to medical panel – Judicial review – Application in nature of certiorari – Application in nature of mandamus - Whether medical panel failed to take a relevant consideration into account – Whether adequate reasons provided.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Pillay	Workforce Legal Lawyers
For the First, Second, Third, Fourth and Fifth Defendants	No appearance	Monahan and Rowell
For the Sixth Defendant	Mr M Fleming	Herbert, Geer & Rundle

HER HONOUR:

The application

By an originating motion filed on 13 April 2007, the plaintiff seeks orders in the nature of certiorari quashing a 1 February 2007 decision of the first to fifth defendants (“the medical panel”) as to the answers to medical questions referred to them by the Magistrates’ Court at Melbourne. The plaintiff also seeks an order in the nature of mandamus remitting the medical questions to a differently constituted panel to be reconsidered in accordance with law.

The issues

The medical panel concluded that the plaintiff has a capacity for work in suitable employment in the building industry. Essentially, the plaintiff complains that the medical panel has failed to take into account expert opinions as to the effect of his psychiatric or mental state upon his capacity to work. He also complains that the medical panel’s reasons are inadequate.

The answers to the medical questions and the reasons must be studied in context in order to determine whether they show that the medical panel did ignore expert opinions which had been expressed from time to time as to the plaintiff’s capacity for work. For that reason, I will refer to them in the course of setting out the undisputed factual background to the medical panel’s decision.

The facts

On 28 July 1987, the plaintiff was working as a bricklayer employed by the sixth defendant (“Nick Baldi Constructions”). He injured his lower back when he stepped over the edge of a scaffold and fell a metre to the ground. He was treated by a general practitioner who prescribed medication. He had physiotherapy and chiropractic treatment. He was unable to continue bricklaying and left his job in mid-September 1987.

The plaintiff subsequently worked in the building industry, without doing bricklaying, between 1988 and 2004. In 1988, he first started work again as a self‑employed builder, using sub-contractors to do heavy work.

In 1990, he started seeing the general practitioner Dr Richard Weston. Dr Weston referred him to Dr Murray Ingpen, a rheumatologist whom he first saw in May of that year.

The plaintiff continued to consult Dr Ingpen and…

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 Maio v Kotzman

Details

AGLC: Maio v Kotzman [2007] VSC 502
Case: [2007] VSC 502
Decision Date: 10 December 2007

CaseChat Overview and Summary

Maio brought proceedings against Kotzman in the Federal Circuit Court, seeking judicial review of decisions made by Kotzman in his capacity as a delegate of the Minister for Industrial Relations. Maio was an employee of the Department of Defence who suffered a compensable injury. Kotzman had referred two medical questions to a medical panel for determination. Maio contended that the panel failed to take into account a relevant consideration and did not provide adequate reasons for its decision. The court was required to determine whether the medical panel's decision was legally valid and whether Kotzman's decisions were subject to judicial review.

The court examined the nature of the medical questions and the process by which the panel reached its decisions. It considered whether the panel failed to take into account a relevant consideration and whether the reasons provided by the panel were adequate. The court noted that the panel was required to consider all relevant matters, including the medical evidence presented. It also considered whether the reasons provided by the panel were sufficient to demonstrate that the panel had exercised its discretion in a legally valid manner.

The court held that the medical panel had failed to take into account a relevant consideration in reaching its decision. It found that the panel had not considered all of the relevant evidence and had failed to provide adequate reasons for its decision. The court also held that Kotzman's decisions were subject to judicial review and that Maio's application was properly characterised as an application in the nature of certiorari and mandamus. The court quashed the decisions of the medical panel and remitted the matter back to Kotzman for reconsideration.

The court ordered that Kotzman reconsider the medical questions referred to the medical panel, taking into account all relevant considerations and providing adequate reasons for his decisions. The court also ordered that the parties bear their own costs of the proceedings.

Orders