Popal v Panda Care Pty Ltd - [2021] VSC 812

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…

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: [2021] VSC 812
Decision Date: 8 December 2021

CaseChat Overview and Summary

The case of Popal v Panda Care Pty Ltd involved the applicant, Mr Popal, challenging the decision of a Medical Panel to terminate his weekly payments for a workplace injury under the Workplace Injury Rehabilitation and Compensation Act 2013. Mr Popal sought judicial review of the Panel's determination that he had a current work capacity, which led to the cessation of his payments. The respondent, Panda Care Pty Ltd, defended the Panel's decision. The case was heard in the Supreme Court of New South Wales, specifically in its administrative law division.

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