Tuffa Workwear v Ha - [2015] VSC 557

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 00989

TUFFA WORKWEAR PTY LTD	Plaintiff
v
BINH NGUYEN HA	First defendant
and
JENNIFER HARMER	Second defendant
and
JOEL AIZENSTROS	Third defendant
and
SUSANNE HOMOLKA	Fourth defendant
and
PAUL KIERCE	Fifth defendant

---

JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2015
DATE OF JUDGMENT:	16 October 2015
CASE MAY BE CITED AS:	Tuffa Workwear v Ha
MEDIUM NEUTRAL CITATION:	[2015] VSC 557

---

ADMINISTRATIVE LAW – judicial review – procedural fairness – workers’ compensation – opinion of medical panel that worker was suffering from a work-related injury - whether opinion of panel could reasonably have been anticipated by employer – whether ‘out of the blue’– Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 274(1)(b).

---

APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr M Fleming QC and Ms F Spencer	Lander & Rogers Lawyers
For the first defendant	Mr A Uren QC and Ms M Schilling	Zaparas Lawyers
For the second to fifth defendants	No appearance

HIS HONOUR:

Tuffa Workwear Pty Ltd seeks judicial review of the opinion expressed on 7 January 2015 by a medical panel in respect of Binh Nguyen Ha. Tuffa was the employer of Mr Ha who was injured during the course of his employment. The opinion of the panel related to Mr Ha’s entitlement to weekly payments of compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Tuffa contends that it was denied natural justice by the panel. On that and other grounds, it seeks an order quashing the opinion and for reconsideration by a differently constituted panel.

The question of Mr Ha’s medical condition was before the panel on the reference of the Magistrates’ Court of Victoria under s 274(1)(b) of the Act. Mr Ha had been receiving weekly payments of compensation in respect of his injuries. Tuffa’s authorised insurer terminated those payments upon the ground that the injuries were resolved. Mr Ha issued a proceeding in the Magistrates’ Court seeking (among other things) continuation of those weekly payments. The outcome of that proceeding will substantially turn upon the opinions given to the medical questions referred to the panel.

The questions referred to the panel, and the opinions expressed with respect to those questions, were certified by the panel as follows:

Question 1.What is the nature of the plaintiff’s medical condition relevant to the claimed injuries, namely:
(a)       Back and lumbar disc;
(b)       Right hand;
(c)       Pain and distress.
(‘the alleged injuries’)?

Answer:(a) and (b) In the Panel’s opinion the plaintiff has previously suffered from soft tissue injuries to the lumbar paraspinal musculature and to the right hand, but these conditions have now resolved.
The Panel is also of the opinion that the plaintiff is currently suffering from ankylosing spondylitis with fibromyalgia, but this condition is not attributable to any alleged injury.
(c) The Panel is also of the opinion that the plaintiff is currently suffering from…

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 Tuffa Workwear v Ha

Details

AGLC: Tuffa Workwear v Ha [2015] VSC 557
Case: [2015] VSC 557
Decision Date: 16 October 2015

CaseChat Overview and Summary

The case involved Tuffa Workwear and Ha, with the dispute centred on procedural fairness in the context of workers' compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The matter was heard and determined in the Supreme Court of Victoria. Ha sought judicial review of a decision made by the WorkCover Authority of Victoria, which had rejected his claim for workers' compensation. The crux of the issue was whether the employer, Tuffa Workwear, could reasonably have anticipated the medical panel's opinion that Ha was suffering from a work-related injury and whether the panel's opinion was an unexpected or "out of the blue" development.

The court had to decide if the employer was afforded procedural fairness by the WorkCover Authority when it evaluated the claim. Specifically, the court examined whether the employer had the opportunity to respond to the medical panel's opinion that Ha's injury was work-related. The decision hinged on the interpretation of section 274(1)(b) of the Act, which provides that a decision-maker must give an affected person an opportunity to make submissions if the decision will be adversely affected by something that was not reasonably foreseeable. The court needed to determine if the panel's opinion was such an unforeseen element.

The Supreme Court held that the medical panel's opinion could reasonably have been anticipated by the employer, and thus was not an unforeseen event. The court reasoned that the employer should have been aware of the potential for the panel to find a work-related injury based on the evidence presented. Consequently, the court found that the employer had not been denied procedural fairness. The court also noted that the employer had not demonstrated that the panel's opinion was so unexpected that it could not reasonably have been foreseen. As a result, Ha's application for judicial review was dismissed.

Orders