JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 AUGUST 2016
DATE OF JUDGMENT:	25 AUGUST 2016
CASE MAY BE CITED AS:	TAN v KOTZMAN & ORS
MEDIUM NEUTRAL CITATION:	[2016] VSC 482

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Inadequate Reasons – No reasoning in opinion about chronic pain syndrome – Syndrome raised by medical questions and by reference materials – Opinion as to capacity for work – Suitable employment – Whether panel failed to give consideration to relevant matters – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 3, 302, 303, 304, 307, 313 – Accident Compensation Act 1985 (Vic), s 5(1B).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Schilling	Zaparas Lawyers
For the Sixth and Seventh Defendants	Mr M Fleming QC with Mr R Kumar	Russell Kennedy
For the First, Second, Third, Fourth and Fifth Defendants	No appearance.

HIS HONOUR:

The plaintiff applied, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial review of a Medical Panel opinion dated 5 October 2015 made pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013, in respect of the plaintiff’s capacity to work following injuries allegedly suffered as a result of her employment. By her second amended originating motion filed pursuant to leave granted on 1 August 2016, the plaintiff sought an order in the nature of certiorari, quashing the opinion of the Medical Panel, and an order in the nature of mandamus, remitting the questions in respect of which its opinion was given to a differently constituted medical panel to be determined in accordance with law.

The first to fifth defendants, who did not appear and will abide the court’s decision, constituted the members of the Medical Panel whose joint reasons are the subject of this application. The sixth defendant was the plaintiff’s previous employer, and the seventh defendant is the employer’s claims manager and an authorised agent of the Victorian WorkCover Authority (collectively ‘the defendants’).

For the following reasons, I will grant to the plaintiff the relief she seeks.

Background to the application
The plaintiff’s injuries

In 2003 the plaintiff commenced full-time employment, through a labour hire agency,[1] as a machine operator at Fyna Foods, a confectionary factory. The plaintiff’s duties involved lifting and pulling heavy pallets of chocolate to her workstation, feeding the chocolate into a hopper, restacking the pallets, lifting and replacing 13kg rolls of plastic film in a machine and cleaning the machine. The work was manual and involved repetitive handling, bending, twisting and lifting of heavy items. On or about 5 January 2012, the plaintiff fell backwards and onto the ground while trying to lift a wooden pallet off a stack of pallets. When she returned to work, in order to reduce her exposure to…

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 Tan v Kotzman

Details

AGLC: Tan v Kotzman [2016] VSC 482
Case: [2016] VSC 482
Decision Date: 25 AUGUST 2016

CaseChat Overview and Summary

The plaintiff, Tan, sought judicial review of a decision made by a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013. The panel had determined that Tan had capacity for suitable employment, despite her chronic pain syndrome. The defendant, Kotzman, was the panel's convenor. The dispute centred around whether the panel had adequately considered the plaintiff's chronic pain syndrome in its assessment of her capacity for work. The case was heard in the Supreme Court of Victoria.
The court was required to determine whether the panel had failed to give consideration to relevant matters when assessing the plaintiff's capacity for work, specifically her chronic pain syndrome. The court considered whether the panel's reasons were sufficient and whether they provided a rationale for the opinion that the plaintiff had capacity for suitable employment.
The court found that the panel had failed to consider the plaintiff's chronic pain syndrome in its assessment of her capacity for work. The panel's reasons did not provide any reasoning in relation to the syndrome, despite it being raised by the medical questions and reference materials. The court held that the panel's failure to consider the syndrome was a material error that led to an unjust outcome. As a result, the court quashed the panel's decision and remitted the matter back to the panel for reconsideration.
The court did not make any further orders in relation to the case. The matter was remitted back to the panel for reconsideration in light of the court's findings. The panel was required to consider the plaintiff's chronic pain syndrome and provide reasons for its assessment of her capacity for work. The court did not make any orders in relation to costs or any other matters.

Orders