McVey v GJ & LJ Smith Pty Ltd - [2014] VSCA 293

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0064

WILLIAM JAMES MCVEY (a person under a disability who brings this Proceeding by his Litigation Guardian ANTHONY BULARD)	Appellant
v
GJ & LJ SMITH PTY LTD & ORS	Respondents

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JUDGES:	SANTAMARIA, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 November 2014
DATE OF JUDGMENT:	21 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 293
JUDGMENT APPEALED FROM:	McVey v GJ & LJ Smith Pty Ltd [2014] VSC 236 (Garde J)

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ACCIDENT COMPENSATION – Appeal against decision of trial judge dismissing application for judicial review of medical panel opinion – Claim for psychiatric schizophrenia injury under s 98C of the Accident Compensation Act 1985 – Appellant suffering from schizophrenia condition prior to injury – Assessment of impairment under s 91 of the Act – Effect of acceptance of liability pursuant to s 104B(2)(a) of the Act – Respondent only accepted liability for any permanent impairment causally related to the injury, as assessed by medical panel.

ACCIDENT COMPENSATION – Medical panel not bound by opinion of a previous medical panel pursuant to s 68(4) of the Act – ‘Question or matter’ referred to medical panel different to ‘question or matter’ referred to previous medical panel – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Melbourne Injury Lawyers
For the Respondents	Mr M F Fleming QC with Mr R Kumar	Thomson Geer

SANTAMARIA JA
BEACH JA
KYROU JA:

Introduction and summary

This is an appeal brought by the appellant, Mr William McVey, by his litigation guardian from a decision of a judge in the Trial Division made on 21 May 2014.[1] That decision dismissed an application for judicial review of an opinion of a medical panel (‘2013 Medical Panel’) dated 15 July 2013 (‘2013 Opinion’).
[1]McVey v GJ & LJ Smith Pty Ltd [2014] VSC 236 (‘Reasons’).

The genesis of the litigation is an incident that occurred on 30 April 1999 (‘1999 incident’) while Mr McVey was employed as a truck driver by the first respondent, GJ & LJ Smith Pty Ltd (‘Employer’). On that day, Mr McVey lifted the fibreglass hood covering the engine of the truck he was driving and, while he was checking the engine, a gust of wind caused the hood to descend and strike him on the neck and left shoulder girdle. According to Mr McVey, the 1999 incident caused physical and psychiatric injuries.

The 2013 Opinion was provided for the purposes of an application by Mr McVey for a lump sum impairment benefit pursuant to s 98C of the Accident Compensation Act 1985 (‘Act’)[2] in relation to a schizophrenia injury which he claimed he sustained as a result of the 1999 incident. The 2013 Opinion answered the following medical questions that were referred to the 2013 Medical Panel by the Victorian WorkCover Authority (‘VWA’) claims agent, Allianz Australia Workers’ Compensation (Vic) Ltd (‘Allianz’), pursuant to s 104B(9) of the…

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] VSCA 293
Decision Date: 21 November 2014

CaseChat Overview and Summary

McVey v GJ & LJ Smith Pty Ltd involved the appellant, McVey, appealing against the decision of the trial judge who dismissed his application for judicial review of a medical panel opinion. The dispute centred on whether McVey was entitled to compensation for a psychiatric injury of schizophrenia under section 98C of the Accident Compensation Act 1985, given that he had been suffering from the condition prior to the incident. The crux of the matter was whether the impairment caused by the accident was assessable under section 91 of the Act and whether the respondent's acceptance of liability under section 104B(2)(a) of the Act covered the psychiatric condition. The respondent, GJ & LJ Smith Pty Ltd, accepted liability only for any permanent impairment causally related to the injury, as assessed by the medical panel.

The primary legal issue for the court was whether the medical panel was bound by the opinion of a previous medical panel under section 68(4) of the Act. The court had to determine if the 'question or matter' referred to the medical panel was the same as that referred to the previous panel. If the questions or matters were different, the medical panel was not bound by the previous panel's opinion. The court also needed to examine the effect of the respondent's acceptance of liability on the scope of compensable injuries.

The court found that the medical panel was not bound by the previous panel's opinion because the 'question or matter' referred to the current panel was different from that referred to the previous panel. Consequently, the appeal was dismissed. The court held that the acceptance of liability by the respondent was limited to the impairment causally related to the injury, as assessed by the medical panel. This meant that the psychiatric condition was not covered unless it was found to be causally related to the injury by the panel.

Orders