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Nestorovic v Rowe

Nestorovic v Rowe

Case [2017] VSC 787 20 December 2017

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00116

LJILJANA NESTOROVIC	Plaintiff
v
PROFESSOR LEANNE ROWE	Frist Defendant
DR CAROLINE BRAND	Second Defendant
MR JOHN BOURKE	Third Defendant
DR JOHN MALIOS	Fourth Defendant
MULTICULTURAL AGED CARE SERVICES PTY LTD	Fifth Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2017
DATE OF JUDGMENT:	20 December 2017
CASE MAY BE CITED AS:	Nestorovic v Rowe & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 787

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ADMINISTRATIVE LAW – Judicial Review and Appeals – Supreme Court (General Civil Procedure) Rules 2015, order 56 – Medical panel – Jurisdictional error – Procedural fairness –Whether the Panel took account of irrelevant matters or failed to consider relevant matters – Whether Panel reached conclusions that were not open to it – Whether plaintiff’s injuries are consistent with an injury of a psychogenic nature.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC with Mr A Ingram	Arnold Thomas & Becker
For the Fifth Defendant	Mr M F Fleming QC with Mr R Kumar	Wisewould Mahoney

HIS HONOUR:

Ms Nestorovic was employed by the fifth defendant, Multicultural Aged Care Services Pty Ltd (Multicultural Aged Care), as a part-time food services assistant. She described her work as involving a lot of heavy lifting, preparing meals, pushing a heavy trolley, washing dishes and loading food onto shelves and into a freezer. While loading plates into a bain-marie, Ms Nestorovic experienced sudden severe pain in her low back and numbness in the left leg. A claim for compensation made by Ms Nestorovic was accepted by the authorised insurer of Multicultural Aged Care and compensation was paid pursuant to the Accident Compensation Act 1985 (the ACA). A short time after Ms Nestorovic returned to normal duties, her employment was terminated. Ms Nestorovic’s application to reinstate weekly payments of compensation was rejected by the authorised insurer on the basis that any incapacity was no longer the result of the work injury. Ms Nestorovic claims to have an ongoing entitlement to weekly payments of compensation because she says she is incapacitated for work by the condition of her low back which resulted from or was materially contributed to by the work injury.

A proceeding was issued by Ms Nestorovic in the Magistrates’ Court claiming ongoing entitlement to weekly payments of compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). The Magistrates’ Court referred questions to a medical panel for its opinion. Answering those questions, the Panel determined that Ms Nestorovic currently suffers pre-existing constitutional lumbar spondylosis, which does not result from and is not materially contributed to by the work injury. The effect of the Opinion of the Panel was that Ms Nestorovic has no ongoing entitlement to weekly payments of compensation under the Act. Ms Nestorovic has no right to appeal the decision of the Panel on its merits, but does seek judicial review of the Panel…

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 Nestorovic v Rowe

Details

AGLC: Nestorovic v Rowe [2017] VSC 787
Case: [2017] VSC 787
Decision Date: 20 December 2017

CaseChat Overview and Summary

Nestorovic v Rowe involved the plaintiff, who sought judicial review of a decision made by a medical panel. The panel had determined that the plaintiff's injuries were of a psychogenic nature, a conclusion that directly impacted the plaintiff's entitlement to workers' compensation benefits. The case was heard in the Supreme Court, where the plaintiff argued that the panel had erred in its decision-making process.

The primary legal issues before the court were whether the medical panel had made a jurisdictional error, whether the panel had failed to observe principles of procedural fairness, and if the panel had taken into account irrelevant matters or failed to consider relevant matters. The plaintiff further argued that the panel had reached conclusions that were not open to it, particularly in relation to the nature of the plaintiff's injuries.

The court considered whether the medical panel had properly exercised its jurisdiction and adhered to procedural fairness. It examined the evidence and the panel's findings to determine if any jurisdictional errors had occurred. The court found that the panel had indeed failed to observe procedural fairness by not providing the plaintiff with an opportunity to respond to certain critical evidence. Additionally, the court held that the panel had taken into account irrelevant matters and failed to consider relevant ones, leading to conclusions that were not open to it. The court concluded that the panel's determination that the plaintiff's injuries were psychogenic was not supported by the evidence.

The court quashed the decision of the medical panel and remitted the matter back to the panel for reconsideration, ensuring that all procedural fairness requirements were met and that the panel properly considered all relevant evidence. The court also directed that the panel reconsider the nature of the plaintiff's injuries in light of the proper evidence and without any procedural deficiencies.

Orders