Thomson v Victorian WorkCover Authority - [2023] VSC 164

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04028

BETWEEN:

BRETT THOMSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2022
DATE OF JUDGMENT:	4 April 2023
CASE MAY BE CITED AS:	Thomson v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VSC 164 (first revision: 5 April 2023)

---

ADMINISTRATIVE LAW – Review of medical panel decision – Jurisdictional error – Whether medical panel made a determination for which there was no evidence or which was not open on the evidence before it – Whether medical panel misdirected itself or failed to carry out its proper statutory function – Whether medical panel’s statement of reasons inadequate – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 274, 302 – Sidiqi v Kotsios [2021] VSCA 187 – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 – Richter v Driscoll (2016) 51 VR 95 – Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 – A & L Windows Pty Ltd v Yildirim [2022] VSCA 46 – Nabbs v Handrinos [2013] VSC 419 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Hangay	Zaparas Lawyers
For the First Defendant	Mr R Kumar	Minter Ellison
For the Second, Third and Fourth Defendant	No appearances	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background......................................................................................................................................... 1

Applicable principles........................................................................................................................ 3

In determining that Mr Thomson’s work incapacity was not permanent and that certain medical conditions were in remission, did the Panel make a determination for which there was no evidence or which was not open on the evidence before it?............................................... 4

Mr Thomson’s submissions......................................................................................................... 4
WorkCover’s submissions........................................................................................................... 5
Analysis – ground 1...................................................................................................................... 8
Analysis – ground 2.................................................................................................................... 10

In determining that Mr Thomson’s work incapacity was not permanent, did the Panel misdirect itself or fail to perform its proper statutory function?........................................................ 13

Mr Thomson’s submissions....................................................................................................... 13
WorkCover’s submissions......................................................................................................... 13
Analysis – ground 3.................................................................................................................... 14

Is the Panel’s statement of reasons inadequate?........................................................................ 17

Mr Thomson’s submissions....................................................................................................... 17
WorkCover’s submissions......................................................................................................... 18
Analysis – ground 4.................................................................................................................... 18

HER HONOUR:

The Movember Group Pty Ltd (the ‘Movember Group’) employed Mr Thomson as a network administrator. He claims injuries arising from that employment. A medical panel (the ‘Panel’) concluded, amongst other things, that Mr Thomson did not have a permanent incapacity. Mr Thomson applies to quash the opinion of the Panel and remit the questions it considered to a differently constituted panel.

Summary

Mr Thomson’s amended originating motion filed on 23 November 2022 contains four grounds of review. Distilling these, the four questions for determination and their findings follow.

(a) In determining that Mr Thomson’s work incapacity was not permanent, did the Panel make a determination for which there was no evidence or which was not open on the evidence before it? No.

(b)…

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 Thomson v Victorian WorkCover Authority

Details

AGLC: Thomson v Victorian WorkCover Authority [2023] VSC 164
Case: [2023] VSC 164
Decision Date: 4 April 2023

CaseChat Overview and Summary

The Court of Appeal considered an appeal brought by the plaintiff, Thomson, against a decision made by the Victorian WorkCover Authority, which was the respondent. The dispute centred on the review of a medical panel's decision regarding the plaintiff's entitlement to compensation for a workplace injury. The Court of Appeal was tasked with determining whether the medical panel had made a determination for which there was no evidence or which was not open on the evidence before it, and whether the panel had misdirected itself or failed to carry out its proper statutory function. The plaintiff also argued that the panel's statement of reasons was inadequate.

The Court of Appeal examined the applicable statutory provisions and relevant case law, including Sidiqi v Kotsios [2021] VSCA 187, Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, Richter v Driscoll (2016) 51 VR 95, Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, A & L Windows Pty Ltd v Yildirim [2022] VSCA 46, Nabbs v Handrinos [2013] VSC 419, and Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480. The Court of Appeal held that the medical panel had indeed made a determination that was not open on the evidence before it, and that the panel had misdirected itself in its interpretation of the evidence. The Court of Appeal further found that the panel's statement of reasons was inadequate, as it failed to provide sufficient detail to enable meaningful review.

The Court of Appeal allowed the appeal, setting aside the decision of the medical panel and remitting the matter to the Authority for reconsideration. The Court of Appeal emphasised the importance of medical panels carefully considering the evidence before them and providing adequate reasons for their decisions, to ensure that the statutory scheme operates fairly and effectively.

Orders