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Sidiqi v Kotsios

Sidiqi v Kotsios

Case [2020] VSC 446 24 July 2020

Judicial Review

Natural Justice & Procedural Fairness

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 05410

WAHID SIDIQI	Plaintiff
v
DR CHRISTINE KOTSIOS, DR SUSANNE HOMOLKA, MR KEVIN SIU, DR DANIEL LEWIS	First to Fourth Defendants
and
VICTORIAN WORKCOVER AUTHORITY	Fifth Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2020
DATE OF JUDGMENT:	24 July 2020
CASE MAY BE CITED AS:	Sidiqi v Kotsios
MEDIUM NEUTRAL CITATION:	[2020] VSC 446

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Diagnosis of chronic pain syndrome – Panel’s opinion that worker could perform pre-injury duties and had ‘current work capacity’ – Whether Panel failed to have regard to relevant matters – Whether Panel’s opinion irrational or not open – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 313.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AG Uren QC with Mr CE Hangay	Zaparas Lawyers
For the Fifth Defendant	Mr MF Fleming QC with Mr R Paoletti	Russell Kennedy

HER HONOUR:

Wahid Sidiqi began working for Dindas Australia Pty Ltd, a timber supplier, as a storeman and forklift driver in April 2016. On 26 August 2016, as he bent down to pick up a piece of timber, he experienced acute and severe pain in his lower back. He was unable to finish his shift due to the pain and sought medical attention that day. In September 2016, he made a claim for workers’ compensation in respect of injury to his lower back, which was described as two bulging discs. The claim was accepted.

Mr Sidiqi did not work again until early the following year, when he commenced a graduated return to work doing modified duties. He was unable to return to his pre-injury duties and, in October 2017, Dindas terminated his employment.

On 25 October 2018, Mr Sidiqi applied to the County Court of Victoria for a serious injury certificate under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). His application is opposed by the Victorian WorkCover Authority.

On 13 June 2019, on WorkCover’s application, Judge Wischusen referred medical questions to a Medical Panel for an opinion, pursuant to s 274 of the WIRC Act. A Medical Panel was convened to consider the referral, comprising Dr Christine Kotsios, psychiatrist, Dr Susanne Homolka, occupational and environmental physician, Mr Kevin Siu, neurosurgeon, and Dr Daniel Lewis, rheumatologist.

On 30 September 2019, the Panel provided its opinion and a written statement of reasons. In relation to Mr Sidiqi’s lumbar spine injury, the Panel found that he was suffering from chronic pain syndrome following a soft tissue injury that had resolved. It also found that he had a mild chronic adjustment disorder with mixed anxiety and depressed mood. It considered both conditions to be permanent. In relation to Mr Sidiqi’s capacity for work, the Panel found that neither condition resulted…

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 Sidiqi v Kotsios

Details

AGLC: Sidiqi v Kotsios [2020] VSC 446
Case: [2020] VSC 446
Decision Date: 24 July 2020

CaseChat Overview and Summary

Sidiqi was a plaintiff and Kotsios was a defendant in a judicial review proceeding concerning the opinion of a medical panel. The plaintiff sought to challenge the panel’s opinion that the plaintiff had chronic pain syndrome, but could perform pre-injury duties and had ‘current work capacity’. The case was heard in the Supreme Court of Victoria.

The central issue was whether the medical panel erred in its opinion, specifically whether the panel failed to have regard to relevant matters, whether the panel’s opinion was irrational or not open on the evidence, and whether the panel’s reasons were adequate. The plaintiff argued that the panel failed to consider the plaintiff’s psychological state, which was a relevant matter, and that the panel’s opinion was not supported by the evidence. The defendant argued that the panel’s opinion was open on the evidence and that the panel had adequately considered the relevant matters.

The court held that the medical panel did not err in its opinion. The court found that the panel had considered the plaintiff’s psychological state, and that the panel’s opinion was open on the evidence. The court also found that the panel’s reasons were adequate, as they demonstrated that the panel had considered all relevant matters and had reached a conclusion based on the evidence. The court dismissed the proceeding, finding that no error was established.

No further orders were made by the court. The plaintiff’s application for judicial review was dismissed, and the panel’s opinion stood.

Orders