JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2021
DATE OF JUDGMENT:	17 December 2021
CASE MAY BE CITED AS:	Putrus v Fish & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 853

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JUDICIAL REVIEW – Review of a decision of a Medical Panel – Section 304 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Where Medical Panel found that plaintiff’s physical medical condition had been resolved – Whether Medical Panel disclosed an adequate path of reasoning – Whether Medical Panel turned its mind to psychological source of physical pain – Unreasonableness – Illogicality or irrationality – Whether a chronic pain syndrome was squarely raised on the material before the Medical Panel – Failure to take into account a relevant consideration – Adequacy of reasons – Held the Medical Panel erred – Remittal to a differently constituted medical panel – Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 applied – Chang v Neill [2019] VSCA 151 applied – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 applied – Schmael v Leach [2020] VSC 562 and Nguyen v Disler [2021] VSC 140 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Cal Viney	Lawyers of Preston
For the Sixth Defendant	Ms Maree Norton	Injury Disputes Practice Lawyers

SCHEDULE OF PARTIES
S ECI 2019 03592
BETWEEN:
ROBERT PUTRUS	Plaintiff
-and-
~~CONVENER OF MEDICAL PANELS~~	~~Defendant~~
-and-
DR DAVID FISH	Second Defendant
-and-
DR ARMIN DRNDA	Third Defendant
-and-
ASSOCIATE PROFESSOR SHARAIN VAN DOORNUM	Fourth Defendant
-and-
DR REMY GLOWINSKI	Fifth Defendant
-and-
VICTORIAN WORKCOVER AUTHORITY	Sixth Defendant

HER HONOUR:

Background

In July 2015, Robert Putrus, the plaintiff, sustained injuries to his back and lumbar spine in the course of his employment with BDS People Pty Ltd, a labour hire company.

Mr Putrus submitted a serious injury application relating to these injuries in April 2018.

A Medical Panel was convened to consider various medical questions referred to it in the course of the proceeding[1] arising from his injury claim.
[1]Robert Putrus v Victorian Workcover Authority (County Court of Victoria, Cl-18-03755, commenced in or around December 2015).

Dr David Fish, specialist occupational and environmental physician and specialist public health physician, Dr Armin Drnda, specialist neurosurgeon, associate Prof Sharon Van Doornum, specialist rheumatologist and Dr Remi Glowinski, specialist psychiatrist comprised the Medical Panel (the Panel). The members of the Panel are the 2^nd to 5^th Defendants in this proceeding. The first defendant was removed as a party from this proceeding by the plaintiff’s ‘Further Amended Originating Motion Pursuant to Notice of Order Dated 25 June 2020 by Judicial Registrar Keith’ dated 27 July 2020.

The Panel examined the Plaintiff on 3 April 2019 and 20 May 2019 and…

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 Putrus v Fish

Details

AGLC: Putrus v Fish [2021] VSC 853
Case: [2021] VSC 853
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the case of Putrus v Fish, the plaintiff, Putrus, sought judicial review of a decision made by a Medical Panel, with Fish as the defendant, under section 304 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The crux of the dispute was whether the Medical Panel had properly evaluated the plaintiff’s claim for ongoing physical pain and whether the Panel had adequately considered the psychological sources of the pain.

The primary legal issue before the court was whether the Medical Panel's decision was unreasonable due to an inadequate path of reasoning. Specifically, the court had to determine whether the Panel sufficiently addressed the psychological aspects of the plaintiff's physical pain and whether there was an omission of relevant considerations. Furthermore, it was necessary to establish if the Panel had turned its mind to the possibility of a chronic pain syndrome, which was a matter squarely raised by the material before them.

The court concluded that the Medical Panel had indeed erred in its reasoning. The Panel failed to adequately consider the psychological sources of the plaintiff's physical pain and did not sufficiently address the potential for a chronic pain syndrome. This omission led the court to find that the Panel had not disclosed an adequate path of reasoning and had failed to take into account a relevant consideration. The court deemed the decision unreasonable, illogical, or irrational, and thus remitted the matter to a differently constituted Medical Panel for reconsideration. The principles from Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480, Chang v Neill [2019] VSCA 151, Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, Schmael v Leach [2020] VSC 562, and Nguyen v Disler [2021] VSC 140 were applied in reaching this conclusion.

The court’s final order was to annul the decision of the Medical Panel and remit the matter back to a differently constituted Medical Panel for re-evaluation, ensuring that all relevant considerations, particularly the psychological sources of the plaintiff’s physical pain, are adequately addressed.

Orders