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Moore v Barton

Moore v Barton

Case [2014] VSC 78 17 March 2014

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2013 03126

GAYLE MAREE MOORE	Plaintiff
v
DAVID BARTON and OTHERS (according to the attached schedule)	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 DECEMBER 2013
DATE OF JUDGMENT:	17 MARCH 2014
CASE MAY BE CITED AS:	MOORE v BARTON
MEDIUM NEUTRAL CITATION:	[2014] VSC 78

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Workers’ compensation – Medical panel – Surveillance video used by Panel – Worker not afforded an adequate opportunity to explain what the video apparently showed – Finding of strong tendency to somatisation based on no clinical evidence of relationship between allergic reactions and accepted back injury– No evidence supporting finding of that tendency – Further finding that Panel had made no finding about that relationship – Finding unreasonable or irrational - Panel’s opinions quashed – Medical questions remitted for reconsideration by fresh panel – Accident Compensation Act 1985 s 68.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Dr K Hanscombe SC with

Mr CE Hangay

Shine Lawyers

For the Defendant

Mr M Fleming SC with

Mr R Kumar

Thomsons Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background facts................................................................................................................................ 1

The Panel’s reasons............................................................................................................................ 1

Issues in the proceeding................................................................................................................... 1

Was the plaintiff accorded procedural fairness?......................................................................... 1

Legal principles: procedural fairness......................................................................................... 1
Legal principles: reasons.............................................................................................................. 1
The seventh defendant’s contentions......................................................................................... 1
Analysis.......................................................................................................................................... 1

Did the Panel draw conclusions that were not open on the evidence before it.................... 1

Legal principles: findings not open on the evidence............................................................... 1
Legal principles: findings unreasonable or illogical................................................................ 1
The Panel’s finding....................................................................................................................... 1

Conclusions......................................................................................................................................... 1

HIS HONOUR:

Introduction

In October 1985, the plaintiff claimed compensation under the Accident Compensation Act 1985 (‘the Act’) for weekly payments of compensation and medical and like expenses alleging a back strain injury said to affect her hip and back. Her claim of serious injury was accepted and she received weekly payments and medical expenses. On 4 April 2012, the employer’s claims agent rejected a request made, on behalf of the plaintiff, by Mr Andrew Morokoff, a neurosurgeon, for a 3 level ‘extreme lateral interbody fusion’ or XLIF procedure. The claims agent considered that the procedure was not a reasonable medical expense. Further, as the plaintiff’s whole person impairment was assessed at 20 percent, the employer’s claims agent determined that the plaintiff no longer had a serious injury and gave notice reducing her weekly payments.

Both the rejection of the request for medical expenses and the reduction in the weekly payment entitlement rate were referred to conciliation pursuant to s 55 of the Act. Following conciliation, on 18 September 2012, the conciliator pursuant to s 56(6) of the Act referred certain medical questions to a medical panel for its opinion under s 68 of the Act. The Panel’s opinion was unfavourable to the plaintiff.

The plaintiff seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 to quash the Panel’s opinion. 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.

Continue reading Moore v Barton

Details

AGLC: Moore v Barton [2014] VSC 78
Case: [2014] VSC 78
Decision Date: 17 MARCH 2014

CaseChat Overview and Summary

Moore and Barton were the parties involved in the dispute which was heard by the court. The worker, Moore, sought judicial review of a decision made by a medical panel regarding the worker’s compensation claim. The panel had concluded that Moore had a strong tendency to somatisation and that there was no clinical evidence of a relationship between the worker’s allergic reactions and the accepted back injury. The court was tasked with determining whether the panel’s decision was lawful, reasonable, and just.

The primary legal issue before the court was whether the panel’s decision was flawed due to procedural unfairness and whether it was unreasonable or irrational. Specifically, the court had to consider whether Moore was afforded an adequate opportunity to explain what the surveillance video apparently showed and whether there was evidence to support the panel’s findings. The court also had to determine if the panel had made a finding about the relationship between the allergic reactions and the back injury, as the panel had stated that it had not.

The court found that the panel had erred in its process by not providing Moore with an adequate opportunity to explain the surveillance video, which was a significant factor in the panel’s decision. The court also held that the finding of a strong tendency to somatisation was unreasonable and irrational as there was no evidence to support it. Furthermore, the court found that the panel had not made any finding about the relationship between the allergic reactions and the back injury, which was also a flawed aspect of the decision. Consequently, the court quashed the panel’s opinions and remitted the medical questions for reconsideration by a fresh panel.

The final orders of the court were that the panel’s opinions were quashed, and the medical questions were remitted for reconsideration by a fresh panel, in accordance with the provisions of the Accident Compensation Act 1985 section 68.

Orders