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Schmael v Leach

Schmael v Leach

Case [2020] VSC 562 3 September 2020

Judicial Review

Natural Justice & Procedural Fairness

Jurisdictional Error

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03134

ANNETTE SCHMAEL	Plaintiff
v
DR MARY LOU LEACH, DR ANDREA BENDRUPS and MR IAN JONES	First to Third Defendants
and
COLETTE ACCESSORIES PTY LTD	Fourth Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2020
DATE OF JUDGMENT:	3 September 2020
CASE MAY BE CITED AS:	Schmael v Leach
MEDIUM NEUTRAL CITATION:	[2020] VSC 562

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Panel’s opinion that there was no organic cause for worker’s upper body chronic pain – Where Panel formed opinion without obtaining results of MRI examinations ordered by worker’s treating surgeon – Admissibility of MRI results not before Panel – Whether Panel’s opinion legally unreasonable – Whether Panel failed to make obvious inquiry – Whether failure to inquire was material to Panel’s opinion – Whether Panel procedurally unfair – Jurisdictional error established – Whether questions should be reconsidered by differently constituted Medical Panel – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 312.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DJ Williams QC and Mr PA Czarnota	Slater & Gordon
For the Fourth Defendant	Mr MF Fleming QC and Ms FC Spencer	Hall & Wilcox

HER HONOUR:

In September 2014, Annette Schmael was employed by Colette Accessories Pty Ltd as a store manager. Her duties included using a computer with a horizontal screen that was located under the glass surface of the counter. During 2015, she began to experience pain in her neck, shoulders, and upper back. While massage and analgesia provided temporary relief, the pain gradually increased and became more persistent.

On 3 June 2018, Ms Schmael made a claim for workers’ compensation in respect of chronic pain in her upper back, neck, and shoulders, and took some time off work. Her claim was accepted. While she was away, alterations were made to her workplace, including installation of an above-counter computer screen. She returned to work part-time and underwent some treatment.

In October 2018, Colette’s claims agent advised that Ms Schmael’s entitlement to weekly payments of compensation and payment of medical and like expenses would cease in November 2018. She returned to her full duties for about three weeks, during which she took eight days of sick leave due to ‘intolerable’ pain, centred in her shoulders and upper arms. She stopped work in November 2018 and has not returned.

The decision to terminate her entitlement to compensation was made on the basis that Ms Schmael was no longer incapacitated for work, and no longer required any medical treatment for her injury. Ms Schmael disputes this decision and has lodged a dispute with the Accident Compensation Conciliation Service (ACCS), under s 282 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).

On 6 March 2019, the ACCS referred medical questions to a Medical Panel for an opinion, pursuant…

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 Schmael v Leach

Details

AGLC: Schmael v Leach [2020] VSC 562
Case: [2020] VSC 562
Decision Date: 3 September 2020

CaseChat Overview and Summary

Schmael brought a case against Leach concerning a decision by a Medical Panel that found no organic cause for the worker's chronic upper body pain. The dispute was heard and determined by the Supreme Court of Victoria. The central issue before the court was whether the Panel's opinion, formed without obtaining the results of MRI examinations ordered by the worker's treating surgeon, was legally unreasonable and whether the Panel failed to make an obvious inquiry. Additionally, the court needed to determine if this failure was material to the Panel's opinion and if it rendered the Panel's process procedurally unfair. The court also considered whether a jurisdictional error had been established and if the questions should be reconsidered by a differently constituted Medical Panel under section 312 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The court found that the Panel's opinion was legally unreasonable because it was formed without the MRI results, which were not before the Panel. The court held that the Panel failed to make an obvious inquiry by not obtaining and considering these results. The failure to inquire was deemed material to the Panel's opinion, as the MRI results could have provided significant insights into the worker's condition. Consequently, the court concluded that the Panel's process was procedurally unfair. Furthermore, the court determined that a jurisdictional error had been established, as the Panel did not follow the correct procedure in reaching its conclusion. Based on these findings, the court decided that the questions should be reconsidered by a differently constituted Medical Panel.

In conclusion, the Supreme Court of Victoria quashed the Panel's decision and remitted the matter back to the tribunal for reconsideration by a differently constituted Medical Panel, ensuring that the MRI results were properly considered. This decision underscores the importance of procedural fairness and the necessity for decision-makers to consider all relevant information when forming their opinions.

Orders