Sachau v Specialty Chickens Pty Ltd
[2017] VCC 234
•17 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01746
| CHRISTINE SACHAU | Plaintiff |
| v | |
| SPECIALTY CHICKENS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2017 | |
DATE OF JUDGMENT: | 17 March 2017 | |
CASE MAY BE CITED AS: | Sachau v Specialty Chickens Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 234 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s3 and s274 – whether questions should be referred to a Medical Panel – exceptions contained in s274(3) and (5) – whether questions are appropriate – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Zaparas Lawyers |
| For the Defendant | Mr D Seeman | Minter Ellison |
HIS HONOUR:
1This matter comes before me by way of a dispute concerning the proposed referral of medical questions to a Medical Panel pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. The proposed referral is made in relation to a “serious injury” application made pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, being the predecessor of the Act.
2Mr L Allan of counsel appeared on behalf of the plaintiff. Mr D Seeman of counsel appeared on behalf of the defendant. The request for medical questions to go to a Medical Panel is that of the defendant. Thus, it is the applicant for the purposes of this matter. However, for the sake of simplicity, I shall refer to it as “the defendant”.
3No oral evidence was called. Various documents were placed before me, either by consent or without objection. Each counsel made detailed and helpful submissions.
The Statutory requirements
4The basic provisions relating to the referral of medical questions are to be found in s274 of the Act. I shall not set them out here. Essentially, if a party requests that a medical question be referred and notifies the Court no later than 14 days prior to the date fixed for hearing of the matter of the intention to so refer, the Court must refer such question, subject to certain provisos. The Court may refuse to refer a question if it is of the opinion this referral would constitute an abuse of process – s274(3). Secondly, the Court has a discretion as to the form in which a medical question is in when referred to a Panel – s274(4). Thirdly, the Court must not refer a question if it appears to the Court that the formation of the opinion by a Panel on that question would depend substantially upon the resolution of factual issues which are more appropriately determined by the Court – s274(5). The term “medical question” is defined in s3 of the Act, and some fifteen medical questions, or types of medical questions, are set out therein.
Factual background
5 The plaintiff, who is aged 47 years, essentially is arguing that she is suffering from injuries to her neck, left shoulder and right shoulder, in addition to a psychiatric injury. She is bringing a serious injury application based upon these injuries. In that application, she is seeking leave in respect of both pain and suffering and pecuniary loss damages. In essence, the plaintiff is relying upon the manual duties performed in the course of her employment, together with a specific incident on 5 November 2009, as the bases for her serious injury application.
6 The plaintiff has had considerable medical treatment, including ultrasound-guided steroid injections into the right shoulder, a rotator cuff repair operation performed on 4 May 2013, and the like. Subsequently I shall turn to a brief discussion as to the alleged acceptance by the defendant, by reason of payment of medical and like expenses, of the claim insofar as it relates to the shoulders and neck.
7 It is against that background that this dispute as to the referral of questions to a Medical Panel has arisen.
The Questions
8 There are five questions. I shall deal with them in two parcels or groups. The first grouping contains Questions 1, 2 and 3. They are as follows:
“1. What is the nature of the plaintiff’s current medical condition (if any) of the:
(a)Alleged injury to the neck;
(b)Alleged injury to the left shoulder;
(c)Alleged psychiatric injury; and
(d)Accepted injury to the right shoulder.
2. To what extent does any medical condition identified by the Panel in answer to Questions 1(a) and/or 1(b) and/or 1(c) result from, or to what extent are they materially contributed to by, the plaintiff’s employment with the defendant?
3. Are any, and if so which, of the medical conditions identified by the Panel in answer to Question 1 permanent?”
9 After considerable dispute and consultation, the wording of Question 1(a) above was altered to read:
“(a) Accepted injury to the neck.”
10 The plaintiff also argued that the injury to the left shoulder should be treated as having been accepted, but there was no alteration to the questions in this regard. Thus, injuries to the right shoulder and the neck can be described as accepted.
11 As a result of the alteration to Question 1(a), Question 2 also changed so that the words “1(a) and/or” were removed.
12 Questions 1 and 2 seem to me to be comparatively conventional medical questions capable of being answered by a Medical Panel. They are worded in accordance with paragraphs (a) and (m) of the definition of “medical question” found in s3 of the Act. Answers to questions of this type are provided routinely by both medico-legal examiners and treating practitioners. Answers to questions such as these are seen frequently in medical reports. Indeed, it seems to me that Questions 1 and 2 are difficult to challenge.
13 Question 3 seems at first blush to accord with paragraph (j)(ii), but, as is made clear by paragraph (j)(i), the issue of permanence described in (j)(ii) is to be seen in the context of impairment assessments pursuant to the AMA Guides. As I understand it, the plaintiff has already had some assessments in this regard. In any event, in the present situation what is on foot is a serious injury application and not an application based on permanent impairment pursuant to the AMA Guides.
14 Permanency is also mentioned in paragraph (b) of the definition of “medical question”. However, that is in the context of incapacity for employment. In the plaintiff’s serious injury application, she is seeking leave in relation to both pain and suffering and loss of earning capacity. I am not satisfied with the wording of Question 3. I also think that, for the assistance of the Panel, some explanation as to what is required for permanence in a serious injury application (perhaps a reference to “foreseeable future”) should be contained in the question.
15 In summary, I am prepared to refer Questions 1 and 2, but some modification of Question 3 might be necessary.
16 I then turn to Questions 4 and 5. These are both lengthy questions, which read as follows:
“4: Disregarding any psychiatric consequences of the physical injuries:
(a)Does the plaintiff have:
i. A current work capacity?
ii. No current work capacity?
(b)If yes to Question 4(a)(i), do any of the following jobs constitute suitable employment for the plaintiff:
i. Market researcher/interviewer;
ii. Assembler – light medical kits, confectionery etc;
iii. Security/concierge;
iv. Clerical/information desk;
v. Showroom sales – kitchen.
(c)If yes to any of Questions 4(b)(i–v), for how many hours per week does the plaintiff have the capacity to perform such employment?
(d)If no to any part of Questions 4(b)(i–v), then in respect of each part does the plaintiff’s incapacity for that work result from, or is it materially contributed to by any, and if so which, of the injuries identified by the Panel in Question 1?”
17 Question 5 is effectively identical to Question 4, save that the introduction is:
“Taking into account only any psychiatric condition:–”
18 I have difficulties with parts of these questions. Question 4(a) does not seem to me to be contentious. It seems to me to be based upon the first part of paragraph (c) of the definition of “medical question” contained in s3 of the Act. The second part of (c) has been omitted, it reading:
“... and what employment would or would not constitute suitable employment.”
19 Whilst the conjunction “and” is used between the two limbs of the question, in my opinion it is permissible to ask the Panel as to whether the plaintiff has a current work capacity or no current work capacity.
20 I am not so persuaded in relation to Question 4(b). For the Panel to answer this enquiry about specific jobs, it seems to me to be necessary that accurate and comprehensive details be supplied as to such employments. Without such material, a wide-ranging factual dispute could well arise and this in turn could well attract the operation of the exception contained in s274(5).
21 In the present case, the defendant had obtained a report from an organisation called Healthe Work, such report having apparently been compiled by Nicholas Janides, who describes himself as a “Consultant, Occupational Rehabilitation”. He has recommended five employment options. These have been lifted from his report and inserted as the five jobs contained in Question 4(b).
22 As stated, it is important that the material which forms the basis of questions and which is to be put before the Panel is accurate and timely. If it is not, any answers provided by the Panel run the risk of being of very little utility to the Court. If that were so, the referral of such a question could, in all the circumstances, constitute an abuse of process for the purposes of s274(3). In addition, an answer of little or no utility because of the absence of appropriate material could well mean that the formation of an opinion by a Panel would depend substantially on the resolution of factual issues more appropriately determined by the Court – see s274(5).
23 I turn now to the issue of whether the Healthe report appears to be accurate, reliable and timely. Dealing with that last word at the outset, this report is almost two years old. Work practices might have changed. The location of workplaces might have changed. Factors that would render the suggested employment suitable or unsuitable may have altered. That is leaving to one side possible changes in the state of the plaintiff’s health and capacity over the intervening period. Furthermore, Mr Janides seems to have been provided, for his assistance, with a vocational assessment report by IPAR, the date of it being 18 April 2012 – that is, a vocational assessment report compiled almost three years earlier and almost five years before the proposed referral.
24 However, there seem to me to be other relevant failings associated with the Healthe report. Indeed, Mr Allan was trenchant in his criticism of it. I must agree that the report of Healthe Work seems to me to be a very poor example of a vocational assessment report. It seems to have a number of weaknesses, several, if not all, of which were brought to my attention by Mr Allan. The following are some of them:
(i) As stated, the report is almost two years old.
(ii) It is quite apparent that at no stage did Mr Janides interview the plaintiff. I should add that this was not a follow-up or supplementary report. Simply, at no time did Mr Janides, performing a vocational assessment, interview the injured person. Surely, in an initial assessment such as this, some direct contact with the person involved is, at the least, highly desirable.
(iii) In relation to material supplied, medical reports from only two practitioners were provided to Mr Janides. One of these was from Mr Ian Jones, orthopaedic surgeon, who had conducted a medico-legal examination on behalf of the defendant. The other practitioner whose material was provided was Dr Clayton Thomas, rehabilitation and pain specialist, who did treat the plaintiff, but the only extract from his two reports which is referred to by Mr Janides is one line to the effect that the plaintiff could work with a 5 kilogram lifting limit between waist and chest height. Given that Mr Janides was not going to interview the plaintiff, this seems to be remarkably little medical material to have forwarded. No material from the treating general practitioner, Dr Sheriff, or the treating orthopaedic surgeon, Mr Justin Hunt, was sent to Mr Janides. Each of those treaters certify the plaintiff as being totally unfit for work.
(iv) In describing some five occupations as being suitable employment for her, in some instances Mr Janides seems to have paid little or no attention to the plaintiff’s background, education level, skills and the like. It is asserted, and not contested, that the plaintiff attended school only until Year 8 and that she has no computer skills. It is also to be remembered that what is being considered is a real job.
In addition, in some instances there are clear conflicts with or omissions from the ANZSCO (Australian and New Zealand Standard Classification of Occupations) prepared by the Australian Bureau of Statistics. In his report, Mr Janides refers to the ANZSCO code for each of the proposed occupations. One example of this is the position of market researcher/interviewer suggested by Mr Janides. Clearly, he deems it suitable employment. He makes no reference to any educational requirement. However, the relevant ANZSCO code states that what is required is AQF Certificate 1 or compulsory secondary education.
I note that Mr Janides also says that staff members performing such work are typically responsible for the processing of feedback and the inputting of data into a centralised system. Further, the ANZSCO code also states that the work may involve the encoding of responses and the checking of their consistency. The requirements have at least the prima facie appearance of being beyond the plaintiff’s educational level or work experience. In addition, as Mr Janides has not even met the plaintiff, I struggle to see how, in the context of a real job, he could determine whether or not she is the type of person suitable for face-to-face interviews, random street interviews and the like.
(v) I agree that, in relation to the second and third positions recommended by Mr Janides, there seems to be little resemblance between the descriptions of the jobs given in his report and the descriptions contained in the relevant ANZSCO codes. For the position of an assembler, he seems to have added that the work would involve the assembling of light medical kits, confectionery and the like, whereas the ANZSCO code to which he refers deals with the putting together of components used in the production of metal products, electronic equipment, joinery products, precious metal articles and the like. It is also interesting that, in terms of whether what he is recommending is a real job which satisfies the requirements of the statutory definition of suitable employment, he has observed that there are currently no vacancies for work of this kind in the northern or western Melbourne suburbs. Whether Diggers Rest, where the plaintiff resides, falls into that description is another matter.
(vi) The third position recommended by him is that of security/concierge. Again, in the ANZSCO code referred to by him, there are educational requirements and people employed in the occupation specifically covered by the part of the code referred to, namely security guards, are expected to patrol and guard commercial properties, railway yards, stations and the like. The type of tasks as described by him are more in the nature of observing CCTV monitoring, alarm monitoring, observing guests and the like.
(vii) The fourth position recommended by him is clerical in nature. One need scarcely go past the statement of Mr Janides that education to Year 10 level is required before realising that this would not be a suitable job for the plaintiff. Incidentally, yet again, the total number of vacancies existing in the northern and western suburbs of Melbourne is, according to Mr Janides, zero.
(viii) I could go on. The bottom line is that this is an unsatisfactory vocational assessment. It does not provide the Medical Panel with the type of accurate and comprehensive material which is required if question 4(b) is to be answered. It seems to me apparent that factual disputes more appropriately determined by the court would arise, leaving to one side any arguments concerning the utility of any answers and possible abuse of process.
25 Question 4(c) depends upon answers to question 4(b), and 4(d) suffers from the same problem. The same could be said of question 5(b), (c) and (d). Questions 4(a) and 5(a) seem to accord more closely with at least the first part of (d) of the definition found in s3 of the Act. However, whether they should be referred in that broad form is something concerning which there may be argument.
26 In short, it seems to me that only a small part of questions 4 and 5 are capable of referral. Even then, it may be difficult for a Panel to answer such questions without having specific, detailed and up-to-date accurate information before it.
27 In the light of these findings, I shall hear the parties as to the future conduct of this application and as to any further orders that are required.
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