Matthews v Com 1 International Pty Ltd - [2021] VSC 361

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01813

TERRY MATTHEWS	Plaintiff
v
COM 1 INTERNATIONAL PTY LTD & ORS (according to the attached schedule)	Defendants

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2021
DATE OF JUDGMENT:	21 June 2021
CASE MAY BE CITED AS:	Matthews v Com 1 International Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 361

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Workplace incident – Termination of ongoing entitlements – Exacerbation injury to thoracic and lumbar spine – Extensive prior incidents of injury – Nature of workplace exacerbation – Resolution of exacerbation – Whether panel demonstrated path of reasoning – Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) – Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 – WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Chang v Neill & Ors [2019] VSCA 151.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. G. Uren QC with Mr E. Makowski	Arnold Thomas & Becker
For the First Defendant	Mr S. O’Meara QC with Ms M. Norton	Landers & Rogers

HER HONOUR:

Mr Matthews (the worker) was in receipt of WorkCover payments for a back injury that had occurred in September 2004 (the Workplace Incident). When his weekly payments and medical expenses were terminated in 2018, he commenced proceedings in the Magistrates’ Court of Victoria. The Magistrate referred questions to a medical panel (the Panel) in accordance with the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) (WIRC Act). The opinion of the Panel had the effect of conclusively determining the proceeding adverse to the worker on the question of ongoing entitlements. The plaintiff seeks orders quashing the Panel’s certificate of opinion dated 24 February 2020 (Opinion) and remitting the referred medical questions to a differently constituted medical panel.

The Panel, constituted by Dr McRae, Mr O’Loughlin, Associate Professor Chalkiadis and Dr Grant, who are the second to fifth defendants, have taken no part in the proceeding in accordance with a Hardiman letter dated 30 March 2021.[1] The first defendant employer is the contradictor.
[1]In accordance with R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.

The claim form had identified the injury as occurring on 27 September 2004 when unloading and lifting computer monitors off the back of a truck. He had been working in this employment since February 2004. The injuries in the Magistrates’ Court pleadings were for injury to the thoracic and lumbar spine with a consequential pain syndrome and consequential psychiatric injury. The defence pleaded that the plaintiff has a current work capacity, and if he did not, then any incapacity does not result from, nor is materially contributed to, by the injury.

The worker had previous claims for back and other injuries from work incidents 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.

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Details

Case: [2021] VSC 361
Decision Date: 21 June 2021

CaseChat Overview and Summary

Matthews, the applicant, sought judicial review of a decision made by Com 1 International Pty Ltd, the respondent, in relation to the termination of ongoing entitlements due to an exacerbation of a pre-existing injury. The matter was heard and determined by the Court, which was required to consider the process undertaken by the respondent in reaching its decision. The primary legal issue before the court was whether the respondent's medical panel correctly applied the relevant statutory provisions in determining that the exacerbation was not due to the workplace incident and therefore did not warrant ongoing entitlements.

The court examined the statutory framework provided by the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) and the applicable common law principles, including the requirement for a path of reasoning in decision-making, as established in Federal Broom Co Pty Ltd v Semlitch and Wingfoot Australia Partners Pty Ltd v Kocak. The court also considered the case of Chang v Neill & Ors, which provided further guidance on the interpretation of statutory provisions. The court found that the respondent's medical panel had failed to adequately demonstrate a path of reasoning in reaching its decision, as it did not properly consider the nature of the workplace exacerbation and its connection to the pre-existing injury. As such, the court held that the respondent's decision was flawed and remitted the matter back to the respondent for reconsideration.

The court further noted that the respondent should have taken into account the extensive prior incidents of injury and the resolution of the exacerbation when determining whether the exacerbation was due to the workplace incident. By failing to do so, the respondent's decision was found to be unreasonable and not in accordance with the statutory provisions. The court ultimately granted the applicant's application for judicial review and quashed the respondent's decision. The matter was remitted back to the respondent for reconsideration in accordance with the court's reasons.

Orders