| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01799
| NAJIA POPAL | Plaintiff |
| v | |
| PANDA CARE PTY LTD and ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 April 2021 |
DATE OF JUDGMENT: | 8 December 2021 |
CASE MAY BE CITED AS: | Popal v Panda Care Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 812 |
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JUDICIAL REVIEW – Medical Panel – Worker’s challenge to termination of weekly payments – Questions referred to Medical Panel for determination – Work capacity test – Relevant considerations – Whether Medical Panel failed to take into account worker’s personal circumstances when determining work capacity – Whether Medical Panel erred in concluding that worker had a current work capacity – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 313(2).
JUDICIAL REVIEW – Medical Panel – Medical Panel’s statement of reasons – Whether failure to provide adequate reasons – Workplace Injury Rehabilitation and Compensation Act 2013 s 313(2).
WORDS AND PHRASES – ‘no current work capacity’; ‘current work capacity’; ‘suitable employment’.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A G Uren QC with Ms C Willshire | Zaparas Lawyers |
| For the First Defendant | Mr R Kumar | Minter Ellison |
HIS HONOUR:
Background
The plaintiff, Ms Najia Popal, immigrated to Australia from Afghanistan in 1988 and lives with her husband and three daughters in Dandenong. She commenced full-time work with Panda Care Pty Ltd in 2013 as a childcare worker, caring for children less than four years of age. She would play, feed and clean up after the children.
On 7 December 2015, while Ms Popal was on duty watching children in a playground, she twisted her left ankle inwards on the edge of a concrete area. She immediately experienced pain in her left ankle. She attended her local medical practitioner, who recorded:
walking at home, missed a step and had a fall, twisted left foot inwards. X-rays requested.
She said that she described the incident as occurring at home as she did not want to lose her job.
Her left ankle became swollen and bruised. But she returned to her normal fulltime pre-injury duties as a child care worker despite persisting pain. She took Panadol Osteo and Nurofen which she obtained over the counter at the chemist.
She received treatments for her left ankle including physiotherapy, hydrotherapy, massage and an injection, but they did not help. She saw a specialist and was treated with a cast, which she wore for three months, but her left ankle pain persisted. She told the Panel that prior to the incident she had not suffered any left foot or ankle restriction of movement or pain.
She continued working for six months after the incident until the end of June 2016, when she ceased because of pain and depression. She says that since then she has not been able to work because of her pain.
On 2 May 2017, Ms Popal lodged…
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- Case
- [2021] VSC 812
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Medical Panel erred in its conclusion that Mr Popal had a current work capacity, particularly in relation to the Panel's consideration of his personal circumstances. Additionally, the court had to examine whether the Panel provided adequate reasons for its decision, as required by the Act. The key issue was whether the Panel correctly assessed Mr Popal’s work capacity and if it appropriately considered his personal circumstances in making that assessment.
The court found that the Medical Panel had not adequately considered Mr Popal’s personal circumstances when determining his work capacity, which constituted a failure to take into account a relevant consideration. This failure rendered the Panel's decision to terminate his payments flawed. The court also held that the Panel's reasons for its decision were inadequate as they did not sufficiently explain the basis for concluding that Mr Popal had a current work capacity. Consequently, the Panel's decision was quashed, and the matter was remitted back to the Panel for reconsideration.
The final orders included the quashing of the Medical Panel's decision and the direction that the matter be remitted to the Panel for a new determination, taking into account Mr Popal's personal circumstances and providing adequate reasons for its decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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