Pilvar v Kuc Nominees Pty Ltd (Ruling)
[2022] VCC 1048
•14 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
WORKCOVER LIST
Case No. CI-21-02187
| MOHAMMAD PILVAR | Plaintiff |
| v | |
| KUC NOMINEES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2022 | |
DATE OF RULING: | 14 July 2022 | |
CASE MAY BE CITED AS: | Pilvar v Kuc Nominees Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1048 | |
REASONS FOR RULING
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Subject:Accident Compensation
Catchwords: Medical Panel – referral documents – investigation report
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Victorian WorkCover Authority v Nedelkovska [2017] VSC 186; CGU Workers Compensation (Vic) Ltd and Anor v Magistrates’ Court of Victoria and Anor [2004] VSC 22; Baumgartner v Victorian WorkCover Authority and County Court of Victoria [2022] VSCA 21; Alcoa of Australia Ltd v McKenna [2003] VSCA 182
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Haddad | Zaparas Lawyers |
| For the Defendant | Mr D Churilov | IDP Lawyers Pty Ltd |
HIS HONOUR:
Background
1The plaintiff in this proceeding, Mr Mohammad Pilvar, was previously employed by KUC Nominees Pty Ltd (“the defendant”) as a painter.
2The plaintiff alleges that in the course of his employment with the defendant he suffered injury. He lodged a claim for compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), and for periods of time received benefits pursuant to the Act.
3By several notices, Allianz Australia Workers Compensation (Vic) Ltd, as the authorised insurer of the defendant and as the authorised agent of the Victorian WorkCover Authority (“VWA”), made various determinations to cease or deny statutory benefits claimed by the plaintiff pursuant to the Act.
4The plaintiff, by his further amended statement of claim dated 14 October 2021, seeks various orders in respect to his entitlement to receive statutory benefits pursuant to the Act. By amended defence dated 15 October 2021, the defendant denies the relief sought by the plaintiff.
5As part of the procedural process, the defendant gave notice of its intention to refer medical questions to a Medical Panel for the Panel’s opinion. That referral was not opposed by the plaintiff.
6A set of medical questions, together with a statement pursuant to s304 of the Act, have been prepared. The parties agree that those documents are to be provided to the Panel. By orders made 9 June 2022, I referred the medical questions to the Panel together with the agreed accompanying documents, which included video surveillance of the plaintiff. I further ordered that the referral was not to include an investigation report relating to the video surveillance.
7The defendant obtained covert video surveillance of the plaintiff (“the video surveillance”). The parties agree that the video surveillance is a document relevant to the medical questions and is to be provided to the Panel.
8As mentioned, in addition to the video surveillance, the defendant obtained a report from Elite Investigations dated 25 March 2021 (“the investigation report”), which records the circumstances in which the video surveillance was obtained. The investigation report includes commentary as to what was observed of the plaintiff during the period of surveillance. The investigation report discloses that the video surveillance is not a complete record of the total period of surveillance.
9The defendant now makes application to include the investigation report amongst the documents to be provided to the Panel.
10The plaintiff opposed the provision of the investigation report to the Panel.
11Initially the defendant contended that the investigation report should be provided to the Panel because:
(i) the report plainly relates to the agreed medical questions; and
(ii) the surveillance report was provided to Dr Clayton Thomas and was commented on by him in a report dated 9 April 2021 (“the Thomas report”) in forming his conclusions and his conclusions are relevant and related to the medical questions.
12In response to a question whether a conclusion that the investigation report was relevant to the agreed medical questions would lead to the result that in every case an investigation report could be provided to the Panel, counsel for the defendant[1] advised the Court that the only basis upon which the defendant submitted the investigation report was relevant in this proceeding was because it had been provided to Dr Clayton Thomas.
[1] After obtaining instructions from the VWA.
13Therefore, ultimately, the sole basis relied on by the defendant for the submission that the investigation report was related to a medical question was that as the Panel would have the Thomas report, then the investigation report should be provided so the Panel could properly understand how Dr Thomas had formed his opinions regarding the plaintiff.
14When asked to deal more specifically with the contents of the investigation report, the defendant placed emphasis on the observation of an investigator, that the plaintiff drove a vehicle for 45 minutes, apparently contrary to histories that he has given to other doctors. It was those observations of the plaintiff’s driving capacity that was relied on by Dr Thomas in expressing his ultimate opinions. Therefore, according to the defendant, that made the investigation report a relevant document. It is convenient to set out an excerpt of the timestamped investigation report on which the defendant relies, below:
12:03pm The Worker emerged from the office and walked back to the White Mitsubishi Pajero 4x4 wagon (Automatic transmission) registration number 1OV-4LB and opened the rear passenger using his right hand. the Worker interacted with the young child in the back seat. The Worker walked freely around the vehicle and entered the driver’s seat. The female entered the front passenger seat. The Worker reversed the vehicle out of the parking spot and departed the area.
12:03pm to 12:49pm The Worker drove the White Mitsubishi Pajero 4x4 wagon (Automatic transmission) registration number 1OV-4LB, through various traffic conditions.
12:49pm to 12:55pm The White Mitsubishi Pajero 4x4 wagon (Automatic transmission) registration number 1OV-4LB is driven to the given address, 18 Tanner Street, Glen Waverley Vic 3150. [2]
[2]Elite Investigations, Confidential Surveillance Investigation Report (25 March 2021), 39.
15The plaintiff in reply submitted that the investigation report does not meet the threshold of relevance. The plaintiff agreed that if the investigation report related to a medical question, then it must be referred. But the plaintiff submitted that the investigation report is one step removed from the actual surveillance footage, and as such is not a relevant document to be related to the medical questions.
16The plaintiff does not seek to exclude the Thomas report from the referral documents. Although not explicitly stated by the defendant, effectively the defendant’s argument boils down to the plaintiff’s acquiescence to the Thomas report being provided to the Panel and therefore all documents relied on by him as being capable of provision to the Panel.
Legislative provisions
17The relevant legislative provisions are not in dispute. It is convenient to set them out in full as follows:
“Division 3—Medical Panels
302 Function of Medical Panel
(1)The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.
(2)A Medical Panel must give its opinion on a medical question in accordance with this Division.
303 Procedures and powers
(1)A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2)The Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
(3)The Minister may, for the purposes of—
(a)ensuring procedural fairness in the procedures of the Medical Panels; and
(b)facilitating the proper administration of the Medical Panels—
make guidelines as to the procedures of Medical Panels.
(4)The Minister must consult with the Attorney-General before making any guidelines under this section.
(5)Guidelines made by the Minister under this section must be published in the Government Gazette and on a Government Internet website.
(6)The Convenor may give directions as to the arrangement of the business of the Medical Panels but must not give directions inconsistent with any guidelines made by the Minister.
304 Reference of medical question
A person or body referring a medical question to a Medical Panel must give the Convenor—
(a)a document specifying—
(i) the injury or alleged injury to, or in respect of, which the medical question relates; and
(ii) the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and
(b)copies of all documents relating to the medical question in the possession of that person or body.”
Relevant authorities
18The parties each referred the Court to the decision of Macaulay J in Victorian WorkCover Authority v Nedelkovska.[3] The facts of that case involved a refusal by a Magistrate to refer two vocational reports to a Panel, in which it was agreed on appeal that the Magistrate’s decision involved jurisdictional error. Counsel for the defendant in this proceeding relied upon what his Honour said in Nedelkovska in support of its submissions as follows:
[3][2017] VSC 186.
“[21]At the hearing, the magistrate heard arguments from counsel both in support of and in opposition to the supply of the Recovre reports. The grounds for opposing the supply of the Recovre reports to the medical panel were that the reports contained hearsay, the identity of persons who made statements to the report writer were not identified and the substance of what they told the report writer had not been identified. It was said that the report was ‘probably not even expert evidence, it’s lay evidence in one respect’ and so it would not be admissible as an expert report.
[22] Counsel for the VWA directed the Court’s attention to s 303 (Procedures and powers) and 312 (medical panel may request further information) of the WIRCA and various authorities. Notably, and I will return to this shortly, counsel for the VWA did not expressly refer the magistrate to s 304 still less its mandatory nature.
[23] The magistrate adjourned to read the reports then returned and gave his ruling. He began with a reference to s 274 of the WIRCA. He then continued:
As a general principle the court maintains control over its business even though the matter has gone to a medical panel for a medical opinion. In maintaining that control the court has to be mindful of the principles of natural justice and procedural fairness applicable to both parties, and in my view the provisions of s 303 of the Act do not impinge upon the principles of procedural fairness and natural justice. Section 303 does not say, the court must send everything that is bundled up by a party that it wants sent to the medical panel, it rather puts it the other way, it says, once the matter has got to a medical panel, the panel is not bound by rules or practices as to evidence, but may inform itself. So that is the next step in the chain of events. The first step is the step we are taking here right now. And in dealing with that particular step I have to be mindful particularly of natural justice.
[24] After making observations about some of the cases which had been referred to him during argument, the magistrate then turned to the Recovre reports saying as follows:
I will deal first of all with the Recovre reports because they just happen to be the first in order in this folder. I’m not going to allow those reports to go to the medical panel for this reason, and it appears in the third paragraph on the first page of the first report, ‘Mrs Nedelkovska was not personally interviewed for the purpose of completing this report, all details and opinions are based upon the documents provided unless otherwise stated’. Now, it is not only a report of a Ms Ash that cannot be tested in open court, but there is also other materials with which she has been provided, we do not know what views she formed in relation to those materials.
See in the cases of … Pitts and Giankos whilst there is reference to evidence being given about suitable job options, there was an opportunity in each of those cases for that evidence to be tested in open court by the judicial officer at first instance. So I am not going to allow the two Recovre reports to go.
[25] As earlier stated, following a concession made during argument it was not disputed that the learned magistrate fell into jurisdictional error in deciding not to refer the Recovre reports to the medical panel. In my view, that concession was correctly made. The statutory power the magistrate was exercising was confined. It was limited to determining whether a document related to a medical question to be referred to the medical panel. If a document related to a medical question, absent any suggestion of abuse of process, the magistrate was bound to refer that document to the convenor of the medical panel. So much is clear from the word ‘must’ in the opening words of s 304 and the words ‘relating to the medical question’ in sub-s (b).”[4]
[4]Ibid, paragraphs [21]-[25].
19The plaintiff referred to a decision of Kaye J in CGU Workers Compensation (Vic) Ltd and Anor v Magistrates’ Court of Victoria and Anor.[5] That case involved a refusal by a Magistrate to allow various subpoenaed documents to be provided to a Medical Panel. Counsel for the plaintiff emphasised his Honour’s comments that:
“[T]he medical panel determines issues which would otherwise be determined by the Court, and that in referring a question or questions to it, the Court legitimately plays a role in eliciting facts and documents which might assist the panel to make an informed decision in respect of those questions.”[6]
[5][2004] VSC 22.
[6]Ibid, paragraph [40].
20The defendant did not refer the Court to any direct authority in support of its contention that the provision of a document to a medical practitioner for comment makes the document – in the absence of any other defining characteristic – relevant to medical questions.
21The process of referring questions to a Medical Panel is a significant departure from some conventional aspects of the trial process, as was recently noted in Baumgartner v Victorian WorkCover Authority and County Court of Victoria.[7] This extends to a departure from a strict application of the general rules of evidence.
[7][2022] VSCA 21.
22Pausing here, the departure from the usual trial process is of some significance because the investigation report is largely a hearsay document and would otherwise be inadmissible unless the author of the document was available for cross-examination.[8] The test for the provision of documents to a panel is relevance to medical questions, and not admissibility.
[8]Alcoa of Australia Ltd v McKenna [2003] VSCA 182.
Discussion
23Counsel for the parties each relied on the words of s304 of the Act, and the mandatory nature of that section such that the Court must provide to the Panel copies of all documents relating to the medical question in the possession of that person or body, regardless of whether the documents would otherwise be inadmissible in accordance with the Evidence Act 2008 or common law principles.
24There is no argument that the investigation report is a document currently in the possession of the parties and the Court. The question is whether it is a document relating to the agreed medical questions that the Panel is to answer.
25Turning to the contentions of the defendant, I do not accept that the provision of the investigation report to Dr Thomas for his comment is a sufficient basis to conclude that the investigation report is a relevant document. Indeed, in my view, it might be a sufficient basis to conclude that the Thomas report should not be provided to the Panel because he has taken an irrelevant document into account, although that is not a submission that was made by the plaintiff. Regardless, I conclude that the provision of a document to a medical practitioner is not enough to conclude that the document relates to the medical questions if it is otherwise irrelevant.
26In a broad context, I do not accept that a comment by a medical practitioner on an otherwise irrelevant document is sufficient to make it relate to medical questions to be answered by the Panel. I agree with the submission of the plaintiff that unlike the situation in Nedelkovska where “primary” documents were considered, the investigation report is a step removed from the actual “primary” document, namely the video surveillance.
27At this point it is enough to refuse to provide the investigation report to the Panel because I do not accept the contentions of the defendant, but for completeness and as this issue may arise again, I consider it useful to consider the issue in the broader context of the provision of relevant documents to the Panel.
28In that context, I consider that this issue can only be resolved by a consideration of the document itself, which in this proceeding involves a determination whether the investigation report is otherwise a relevant document. Of course, if it is a relevant document then it can be provided to the Panel regardless of whether Dr Thomas commented upon it.
29In short, I consider the real issue is whether the contents of the investigation report is sufficiently related to the agreed medical questions.
30On a simple reading of the investigation report there is no doubt that most of it is irrelevant to the medical questions. The report is commentary from an unidentified insurance investigator regarding the circumstances of the surveillance of the plaintiff. Most of the report is of little forensic use and is irrelevant to the agreed medical questions. It is largely a hearsay document. The inadmissibility of the investigation report is not a sufficient reason to refuse to provide the document to the Panel, but it is a relevant consideration in a determination if it relates to a medical question.
31In undertaking its functions under the Act, a Medical Panel must provide its opinion on any medical question referred to it. As part of that function, it must consider relevant considerations and ignore irrelevant considerations. Broadly, I consider there to be a real risk that the provision of irrelevant documents (unrelated to a medical question) may lead the Panel into error when answering medical questions.
32In this proceeding, the Panel will have available the video surveillance of the plaintiff. It can draw its own inferences from that surveillance, which of course it must do in answering medical questions. It may also discuss the surveillance with the plaintiff as part of the referral. That process should not be tainted by the provision of an otherwise irrelevant document.
33Returning to the specifics of this proceeding, having considered the contents of the document, I conclude that the investigation report is not a document relevant to the medical questions in this proceeding. It is a document containing commentary and irrelevant hearsay as to the circumstances in which the video surveillance was obtained. At best, it contains ambiguous commentary about observations of the plaintiff while driving a car. Those observations could have been captured on the actual video surveillance, or the maker of those observations could have provided an affidavit with a proper evidentiary basis to explain her or his observations of the plaintiff. That has not occurred.
34Ambiguous commentary in the surveillance report about whether the plaintiff drove a car continuously for 45 minutes or not is insufficient to relate the document to a medical question, and simply giving the report to Dr Thomas for his interpretation of it is not enough to cure it of the vice of irrelevance. Regardless, the Panel will have Dr Thomas’ opinion and can ask the Plaintiff about that opinion. Providing an irrelevant document to the Panel will do nothing to advance their understanding of the Thomas report and is more likely to lead to a misunderstanding of the relevant documents.
35There may be occasions where an investigation report is related to medical questions asked of a Panel. But the investigation report in this proceeding is not an example of such an occasion. When carefully scrutinised, it contains little or no relevant material to the agreed medical questions, such that it is an irrelevant document. I do not accept that the provision of such a document to a medical practitioner makes it relevant to a medical question.
36For the reasons given, I conclude that the irrelevant and ambiguous content of the investigation report is such that it is not a document related to the agreed medical questions in this proceeding that must be provided to the Panel pursuant to s304 of the Act. Accordingly, and as previously ordered, it is to be excluded from the documents to be provided to the Medical Panel.
37I will hear from the parties as to consequential orders.
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