Royce v Mecwa Care Pty Ltd (Ruling)
[2016] VCC 460
•27 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06522
| PAMELA ROYCE | Plaintiff/Respondent |
| v | |
| MECWA CARE PTY LTD | Defendant/Applicant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March and 15 April 2016 | |
DATE OF RULING: | 27 April 2016 | |
CASE MAY BE CITED AS: | Royce v MECWA Care Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 460 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to refer questions to a Medical Panel – whether the proceeding involved the resolution of factual issues which are more appropriately determined by the Court – workplace injury – serious injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Isuzu General Motors Australia Limited & Anor v Jordan (2000) 2 VR 212
Ruling: The application to refer the proceeding to a Medical Panel is refused. Defendant to pay the plaintiff’s costs of the application.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Respondent | Mr G Chancellor | Slater & Gordon Ltd |
| For the Defendant/Applicant | Mr P R Trigar | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 The plaintiff filed an Originating Motion dated 23 December 2014 seeking an order from the Court that she be given leave to bring a proceeding at common law to recover damages for pain and suffering consequences resulting from an injury she alleges she suffered to her lower back in the course of, and within the scope of, her employment with the defendant.
2 The proceeding was listed for trial on 27 January 2016. On that day, the trial date was vacated. The proceeding was listed for a Directions Hearing on 31 March 2016.
3 On 31 March 2016, Mr G Chancellor of counsel appeared for the plaintiff, and Ms E Topp, solicitor, appeared for the defendant. I was informed that the defendant intended to apply to have medical questions referred to the Medical Panel. The application was opposed. The hearing of the application was adjourned to 15 April 2016 before me.
4 I made orders on 31 March 2016 that, among other things, each party was to file and serve a short factual summary and submission, and that I was to be provided with a court book limited to the documents which demonstrated the basic evidence on which submissions were to be based.
The application
5 Mr P R Trigar of Counsel appeared for the defendant/applicant, and Mr G Chancellor of counsel appeared for the plaintiff/respondent.
6 At the commencement of the application, I was provided with the following documents:
·A draft of the three questions to be submitted to a Medical Panel
·A joint chronology
·A “Judge’s Court Book”
·Submissions in writing.
7 It was not in issue that the three questions constitute proper questions for the consideration of a Medical Panel.
Some basic facts
8 The plaintiff is a forty-two-year-old woman who was born in August 1973. She commenced employment with the defendant on 30 January 2012 as a casual direct care worker.
9 Counsel for the plaintiff informed me that the application for serious injury is based upon the contribution by the whole of the plaintiff’s work to the production of a lower back injury, and additionally, a specific incident which occurred on 13 December 2012.
10 The specific incident is of particular importance to my consideration of this application. The plaintiff swore an affidavit on 14 August 2014 in support of her application for serious injury. In that affidavit, she swore to the following:
“6.A part of my job involved assisting a client in Pakenham who had Multiple Sclerosis and was very difficult to move. On 13 December 2012, whilst attempting to roll the client in her bed, I felt a popping sensation and pain in my lower back as well as a tingling sensation in both legs. After a few minutes the pain eased and I continued working … .
7.On 16 December 2012 I woke up with excruciating pain in my lower back and in both legs, particularly the left leg. I went to see my GP that day and was prescribed Celebrex and Tramadol and certified unfit for work. I was referred for a CT scan of my lower back which took place on 18 December 2012.”
11 Both Counsel informed me that they had inspected the clinical notes of the plaintiff’s general practitioner. The notes reveal that the plaintiff did not inform her general practitioner of the specific incident when she first saw her general practitioner.
12 It is obvious that whether the specific incident occurred or not is in issue because the plaintiff obtained an affidavit from Julie Margaret McLeod, sworn 11 April 2016, in which Ms Macleod deposed to having witnessed the plaintiff suffer an injury to her lower back. Ms Macleod was unable to recall the date upon which that occurred. That evidence was no doubt obtained by the plaintiff to provide some verification for her allegation that she suffered injury as a result of the specific incident.
13 The plaintiff had a raft of conservative treatment before finally having surgery on her lower back on 9 May 2013, performed by Mr Drnda, neurosurgeon.
The medical evidence
14 I have been provided with a number of medical reports which I assume the parties consider to be representative of the medical opinions which are likely to be put before the judge who may hear the application for serious injury.
15 Mr Drnda provided a medical report, dated 27 September 2013. He was led to understand that the plaintiff injured herself in December 2012 when “She was helping a patient to turn in bed. She was bent and experience the sudden onset of back pain … .”
16 Associate Professor Love, orthopaedic surgeon, obtained a history of the specific incident. The plaintiff told him that she suffered injury to her lower back on 13 December 2012:
“She said that she was rolling a client who had soiled herself and was performing this task with a co-worker. As she rolled the client she felt what she described as a ‘pop’ in the lower back … .”
17 Dr Boys obtained a similar history:
“… on 13 December 2012 working with a co-worker and performing a bed bath on a patient. She relates having rolled the patient and was leaning over when she was conscious of a popping sensation in the lower back … .”
18 My analysis of the limited medical evidence is that there does not appear to be any controversy regarding the contribution of the plaintiff’s work to the production of her lower back injury for which she had surgery. Associate Professor Love considered that the plaintiff had suffered an aggravation of the underlying degenerative condition of her lumbar spine. Dr Boys considered that her history (which included the specific incident) suggested an L5-S1 disc protrusion “occurring in the course of work activities on 13 December 2012”.
19 The only opinion which might run counter to the question of causation is that of Associate Professor Karma, radiologist, who was asked to assess a number of radiological studies. He compared radiological studies between February 2011 and April 2013 and concluded that there was really no change in what he observed between 2011 and 2013. I assume that the defendant will rely on that opinion in support of a submission that there was no pathological change in the plaintiff’s spine caused by her work with the defendant.
The issues in the serious injury application
20 In the course of my debate with both Counsel, it became reasonably clear to me that the issues that will require consideration by the trial judge in the serious injury application are many.
21 Firstly, the nature and extent of the plaintiff’s lower back condition prior to the time when she commenced work with the defendant.
22 Secondly, the nature of the tasks which the plaintiff was required to perform with the defendant, and whether they are likely to have exposed the plaintiff to stresses and strains consistent with an aggravation or acceleration of her pre-existing lower back condition.
23 Thirdly, whether the specific incident actually occurred or not.
24 Fourthly, whether the specific incident also aggravated or accelerated her pre-existing lower back condition.
25 Fifthly, if the plaintiff suffered an aggravation or acceleration of her pre-existing lower back condition, whether the aggravation or acceleration alone has produced impairment consequences which are both permanent and serious and which meet the statutory test of seriousness.
Counsels’ submissions
26 Before turning specifically to counsels’ submissions, it is relevant to refer to some of the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013.
27 Section 304(a) provides that the person or body referring medical questions to a Medical Panel must give the convener a document specifying:
“(ii)the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed on those facts or questions that are in dispute … .”
28 I have not been provided with such a document. Instead, I have been provided with a Court Book which I understand is to represent the facts and the questions of fact which will be referred to the Medical Panel. I am assisted in that understanding by the drafting of the actual questions, which I was provided at the commencement of this application.
29 I am obligated not to make the referral pursuant to s274 (5) if:
“… it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
30 Counsel for the defendant submitted that there is nothing unusual about the factual matrix of the plaintiff’s case nor the questions which the Medical Panel will be asked to consider.
31 Counsel for the plaintiff submitted that there are basically two issues which are more appropriate for the Court to determine.
32 Firstly, did the specific incident occur or not? The fact that the plaintiff did not make a complaint is in issue; however, from the standpoint of composing this ruling, it appears to me that the evidence strongly favours the view that the incident did occur, and if I were the trial judge I would be unlikely to find otherwise. Having said that, I appreciate that I am not in possession of all of the evidence, nor have I had the advantage of seeing that evidence tested.
33 Secondly, the defendant has filed affidavits of David Kohl, sworn 27 January 2016, and Peter White, sworn 18 March 2016. Essentially, they depose to the fact that the insurance agent was not aware of the plaintiff’s pre-existing back condition, and if it had been aware, then its decision to accept liability for ‘no fault’ payments might not have been favourable to the plaintiff. That evidence goes to meeting the submission which the plaintiff might be inclined to make based upon Ansett Australia Ltd & Anor v Taylor,[1] that the acceptance of the claim is evidence upon which the plaintiff can rely when causation is an issue.
[1](2006) VSCA 171
34 The submission was that much depends upon the view taken by the Court on hearing evidence as to whether the acceptance of the claim was properly made, and whether the plaintiff can then rely upon Ansett.
Disposition
35 I was referred to Isuzu General Motors Australia Limited & Anor v Jordan[2] in which Phillips JA observed that the provisions relating to referral of medical questions to a Medical Panel are designed to have medical people answer medical questions in place of the court.
[2](2000) 2 VR 212 at paragraph [13]
36 It is not lost on me that the extensive provisions relevant to referral of such medical questions to a Medical Panel are subject to a reasonably high burden placed upon the plaintiff. The burden requires the plaintiff to satisfy me that it would not be appropriate to refer medical questions to the Medical Panel because the formation of an opinion by a Medical Panel on a medical question would depend substantially on the resolution of factual issues.
37 Therefore, the relevant questions are:
(i) whether the specific incident occurred or not?
(ii) whether it was capable of causing the plaintiff an injury?
(iii) whether the Ansett point is relevant and important to the plaintiff's case? and
(iv) whether the enquiry into these questions relies substantially upon the resolution of factual issues?
38 I think the answer is that the enquiry will rely substantially on the resolution of factual issues.
39 Whether the specific incident occurred or not will entirely depend upon whether the plaintiff is believed that she was undertaking work on 13 December 2012 of the kind alleged in her affidavit.
40 Similarly, whether the acceptance of liability for ‘no fault’ payments was properly made will depend upon the adducing of relevant evidence and an analysis of that evidence. The mere fact that the insurance agent was unaware of the plaintiff’s prior lower back condition may be of no account at all; however, it may be. The only way to determine whether it is or not, is to adduce and test relevant evidence.
41 Although I have acknowledged that the Court should be reluctant to prevent a Medical Panel from answering questions, I think that there is a sound basis upon which I should refuse the application to refer the question.
Orders
42 I order that, firstly, the application to refer the proceeding to a Medical Panel is refused, and, secondly, I order that the defendant pay the plaintiff’s costs of the application, including any reserve costs, to be assessed by the Costs Court on a standard basis, in default of agreement.
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