Steel Smith Engineering Pty Ltd v McPhee - [2020] VSC 571

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05089

STEEL SMITH ENGINEERING PTY LTD	Plaintiff
- and -
PETER JOHN MCPHEE and ORS (according to the attached Schedule)	Defendants

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2020
DATE OF JUDGMENT:	8 September 2020
CASE MAY BE CITED AS:	Steel Smith Engineering Pty Ltd v McPhee & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 571

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ADMINISTRATIVE LAW – Judicial review – Medical panel opinion – Whether medical panel made typographical error or erred in reaching conclusion of ‘no current work capacity’ – Whether medical panel erred by limiting inquiry of ‘no current work capacity’ to only five identified employment options – Whether medical panel reasons and conclusions lacked intelligible justification – Whether medical panel failed to take into account mandatory consideration of employment history – Whether medical panel failed to give proper and adequate written reasons – Accident Compensation Act 1985 ss 91, 98C – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3 and 313 – Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 22 CLR 480 – Minister for Immigration and Citizenship v Li & Ors (2013) 249 CLR 332 – Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Michael Fleming QC with Ms Fiona Spencer	IDP Lawyers
For the Defendants	Mr Stephen Moloney with Ms Simone Bailey	Saines Lucas Solicitors

HER HONOUR:

Introduction

The first defendant (‘Mr McPhee’) was employed by the Plaintiff, Steel Smith Engineering Pty Ltd as a boiler maker and welder from 2003 to 2010.

In May 2008, Mr McPhee made a claim for injury to his left knee sustained on 11 November 2004. This claim was accepted. Between May 2008 and June 2010, Mr McPhee was off work or on modified duties.

From June 2008 to December 2012, Mr McPhee underwent eight surgical procedures on his left knee.

In July 2010, Mr McPhee lodged an impairment benefits claim for injuries to his left leg/knee, right knee, lumbar spine and both hips.

On 21 August 2013, liability was accepted for the left leg (knee only), but rejected for the other claimed injuries. This was disputed, and referred to a medical panel which provided its opinion on 27 July 2016.

That medical panel found that Mr McPhee’s employment with the Plaintiff was a significant contributing factor to his lumbar spine and left hip, but not to his right knee dysfunction.

On 17 August 2016, the Plaintiff’s insurer, CGU, received a request from Mr McPhee’s surgeon, Mr Phong Tran, for approval for a total right hip replacement. On 8 September 2016, CGU rejected the request (‘the first dispute’).

Mr McPhee underwent a right hip replacement on 24 October 2016.

On 11 January 2018, Mr McPhee submitted a WorkCover claim alleging injuries to his…

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: [2020] VSC 571
Decision Date: 8 September 2020

CaseChat Overview and Summary

Steel Smith Engineering Pty Ltd sought judicial review of a decision made by a medical panel under the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The dispute centred on the panel’s conclusion that the claimant, McPhee, had ‘no current work capacity’. The case was heard in the Supreme Court of Victoria. The legal issues before the court involved whether the medical panel had made a typographical error or erred in its conclusion about McPhee’s work capacity, whether the panel had erred by restricting its inquiry to only five specified employment options, and whether the panel’s reasons and conclusions lacked intelligible justification. Further, the court examined whether the panel failed to consider McPhee’s employment history as required, and if it had failed to provide proper and adequate written reasons for its decision.

The court considered whether the medical panel had made a typographical error or an error in its conclusion by focusing on the available employment options. It examined the panel’s adherence to statutory requirements for providing reasons and its consideration of all relevant factors, including the claimant's employment history. The court referred to previous cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Wingfoot Australia Partners Pty Ltd v Kocak, and Minister for Immigration and Citizenship v Li & Ors to determine the standard of review and the requirements for adequate reasoning. The Supreme Court found that the medical panel had indeed erred in its conclusion and reasoning, particularly in limiting its inquiry to only five employment options and in failing to provide intelligible justification for its conclusion.

In light of the findings, the court quashed the decision of the medical panel and remitted the matter back for reconsideration, ensuring that the panel adequately considered all relevant factors and provided proper and adequate written reasons. The decision underscored the importance of thorough and justifiable reasoning in administrative decisions, aligning with the principles established in Gruma Oceania Pty Ltd v Bakar. The court’s ruling emphasised the need for medical panels to comprehensively evaluate all potential employment options and consider all relevant employment history to reach a justified conclusion about a claimant’s work capacity.

Orders