Stankoski v Flickers Australia Pty Ltd - [2016] VSC 648

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05305

KOSTE STANKOSKI	Plaintiff
v
FLICKERS AUSTRALIA PTY LTD (ACN 005 660 837) and Others (according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2016 – final written submission 7 September 2016
DATE OF JUDGMENT:	28 October 2016
CASE MAY BE CITED AS:	Stankoski v Flickers Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 648 First Revision 28 October 2016

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JUDICIAL REVIEW – Medical Panel – Adequacy of reasons – Whether path of reasoning disclosed – Reasons inadequate – Error of law on the face of the record – Jurisdictional error – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3, 313(2), Accident Compensation Act 1985 (Vic) s 5; Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 56

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K A Bowshell	Shine Lawyers
For the First Defendant	Mr M F Fleming QC with Mr M J Hooper	IDP Lawyers

HIS HONOUR:

The plaintiff, Mr Koste Stankoski, seeks judicial review of the opinion of a Medical Panel (‘the Panel’), comprising the second, third and fourth defendants, given in writing dated 12 August 2015, constituted to provide an opinion concerning his medical condition relevant to a claimed injury and whether he had a current work capacity.

Mr Stankoski migrated to Australia from Macedonia in 1991, when he was 29 years of age. He began working for the first defendant company, Flickers Australia Pty Ltd (‘Flickers’), on 26 October 2009 as a machine operator. He described his duties to the Panel as including operating machinery, light machine cleaning, packing and general duties around the factory, duties which required him to use both hands consistently throughout the working day.

On 12 November 2012, Mr Stankoski’s left hand and arm became caught in a machine, where they were exposed to high temperature for a prolonged period of time. He sustained severe burns to his left arm and hand and to a lesser extent his right upper arm, before being freed and taken to the Sunshine Hospital. He has since undergone a number of operations. He told the Panel that he underwent surgery, that his arm became infected at the site of the skin graft and that was extremely painful. He spent 10 days in hospital and needed another five operations. The Panel’s reasons to which I refer below set out the present state and effects of those injuries.

Mr Stankoski’s worker’s compensation claim was accepted and he received weekly payments from the date of his injuries. Following a review by the authorised agent for the Victorian WorkCover Authority, the payments were suspended, with effect from 8 June 2015.

Mr Stankoski requested that decision be reviewed by the Accident Compensation Conciliation Service (‘ACCS’) which in turn referred two medical questions to the Panel. Those questions and the Panel’s answers were:

1.What is the nature…

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.

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Details

Case: [2016] VSC 648
Decision Date: 28 October 2016

CaseChat Overview and Summary

The case of Stankoski v Flickers Australia Pty Ltd involved a challenge to the decision of a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The applicant, Mr. Stankoski, sought judicial review of the panel's decision, which had determined his entitlement to compensation. The respondent, Flickers Australia Pty Ltd, was the employer against whom the claim had been made. The Supreme Court of Victoria was tasked with reviewing the adequacy of the reasons provided by the medical panel for its decision.

The primary legal issue before the court was whether the reasons provided by the medical panel were sufficient and disclosed the path of reasoning adopted by the panel in reaching its decision. The applicant argued that the reasons were inadequate, leading to an error of law on the face of the record and a jurisdictional error. The respondent contended that the reasons provided were adequate and that any perceived error did not rise to the level of a jurisdictional error warranting judicial review.

The court held that the reasons provided by the medical panel were inadequate as they did not disclose the path of reasoning adopted by the panel. The court found that the reasons did not clearly explain how the panel had reached its decision regarding the applicant's entitlement to compensation. This lack of clarity constituted an error of law on the face of the record, which the court determined to be a jurisdictional error. As a result, the court quashed the decision of the medical panel and remitted the matter back to the panel for reconsideration with proper reasons.

In light of the findings, the court ordered that the matter be remitted to the medical panel for reconsideration in accordance with the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and the Accident Compensation Act 1985 (Vic). The court also noted that the Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 56 applied in relation to the procedure for the review of the decision.

Orders