Martinez v Dynamic Engineering Construction Co Pty Ltd - [2005] VSC 204

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4841 of 2005

IN THE MATTER of an order to review pursuant to Section 3 of the
Administrative Law Act 1978

BENITO MARTINEZ	Applicant
DYNAMIC ENGINEERING CONSTRUCTION CO PTY LTD AND DR STEVEN JENSEN AND MR PAUL KIERCE	Respondents

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 JUNE 2005
DATE OF JUDGMENT:	9 JUNE 2005
CASE MAY BE CITED AS:	MARTINEZ v DYNAMIC ENGINEERING CONSTRUCTION CO PTY LTD & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 204

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ACCIDENT COMPENSATION – Application for administrative review – Assessment of impairment by a Medical Panel – Whether reasons for decision adequate – Administrative Law Act, s.8.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M. O’Loghlen QC with Mr P. Wischusen	Slater & Gordon
For the First Respondent	Mr P. Solomon	Victorian WorkCover Authority

HIS HONOUR:

The applicant, Benito Martinez, who is right handed, has since about March 2000 suffered from an injury to his right shoulder. He has claimed lump sum compensation pursuant to s.98C of the Accident Compensation Act 1985 as that section is set out in reprint No. 9 of the Act (published on 30 June 1999). His claim was referred to an independent medical assessor, Mr Brendan Dooley, who is an orthopaedic surgeon.

Mr Dooley was required to make his assessment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (4^th Edition, June 1993). He proceeded accordingly. His conclusion was that the applicant suffers from a stable injury the effect of which is to impair the latter’s right upper extremity by 21%. This is the sum of a 7% impairment in flexion, a 2% impairment in extension, a 6% impairment in abduction, a 1% impairment in each of adduction and external rotation, and a 4% impairment in internal rotation – all of which translates to 13% impairment of the whole person.

The applicant was dissatisfied with Mr Dooley's report. His claim was therefore referred to a Medical Panel pursuant to s.104B(9) of the Act. The Panel was constituted by Dr Steven Jensen, a musculoskeletal physician and Mr Paul Kierce, an orthopaedic surgeon. So far as is presently relevant, the question they were asked to answer was: "What is the worker's degree of permanent whole person impairment resulting from the accepted injury … ?

The Panel examined the applicant on 20 December 2004. Both its Certificate of Opinion and its written “Reasons for Opinion” were issued on 24 January 2005. The answer given by the Panel to the question put to it by the reference is set out in the Certificate. So far as is presently relevant, it was: "In the Panel’s opinion the worker has an 11% whole person impairment resulting from the accepted right shoulder injury … The degree of impairment is permanent." The Panel then, by way of elaboration, went on in its reasons to state that it “carried out the assessment of shoulder…

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 Martinez v Dynamic Engineering Construction Co Pty Ltd

Details

AGLC: Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204
Case: [2005] VSC 204
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the matter of Martinez v Dynamic Engineering Construction Co Pty Ltd, the applicant, Martinez, sought administrative review of a decision made by a Medical Panel regarding the assessment of impairment resulting from an industrial accident. The dispute centred on whether the Panel’s reasons for its decision were adequate and compliant with statutory requirements. The matter was heard by the Administrative Appeals Tribunal of Australia.

The primary legal issue before the tribunal was whether the reasons provided by the Panel were sufficient to satisfy the statutory requirement under the Administrative Law Act for reasons to be adequate. Martinez argued that the reasons were insufficient as they did not sufficiently address the specific criteria for assessing impairment and did not provide a clear rationale for the Panel's conclusions. The respondent, Dynamic Engineering Construction Co Pty Ltd, contended that the reasons were adequate and met the statutory requirements.

In considering the adequacy of the Panel’s reasons, the tribunal noted that the reasons provided a summary of the evidence presented and outlined the Panel’s overall conclusion. However, the tribunal found that the reasons did not sufficiently address the specific factors relevant to the assessment of impairment, such as the degree of functional loss and the impact on the applicant’s ability to perform daily activities. The tribunal concluded that the reasons were inadequate as they failed to provide a clear and logical explanation of how the Panel reached its decision based on the evidence provided. Consequently, the tribunal allowed the application for review and remitted the matter back to the Panel for reconsideration. The tribunal emphasised the importance of ensuring that reasons are comprehensive and address all relevant factors to meet the statutory requirement for adequacy.

Orders