Valspar Paint (Australia) Pty Ltd v MA - [2020] VSC 304

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04575

VALSPAR PAINT (AUSTRALIA) PTY LTD	Plaintiff
v
HOA MA	First Defendant
and
JULIAN FREIDIN, DAVID FISH, PETER GARD, GEOFFREY KLUG and PETER DOHRMANN	Second to Sixth Defendants

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2020
DATE OF JUDGMENT:	29 May 2020
CASE MAY BE CITED AS:	Valspar Paint (Australia) Pty Ltd v Ma
MEDIUM NEUTRAL CITATION:	[2020] VSC 304

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Panel of opinion that worker had ‘no current work capacity’ – Whether Panel failed to ask itself the right question – Whether Panel failed to have regard to relevant material, consideration of which was essential to its statutory function – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 313.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr MF Fleming QC with Ms FC Spencer	Russell Kennedy Lawyers
For the First Defendant	Mr AG Uren QC with Mr LB Allan	Shine Lawyers

HER HONOUR:

Hoa Ma worked for Valspar Paints (Australia) Pty Ltd as a filling line process worker from April 1996 until April 2015. During that time, he suffered a number of work-related injuries, including a back strain in 2006, injuries to his right arm and elbow in 2008 and 2013, and an injury to his right knee in 2009. On 28 April 2015, when he was working on the VORTEX filling machine, packing 4 litre cans of paint onto a pallet, he injured his lower back. He has not worked since.

Mr Ma made a series of workers compensation claims in respect of his injuries, each of which was accepted by Valspar’s claims agent. His back injury was diagnosed as disc protrusions at L4-L5 and L5-S1. His treating surgeon recommended that he undergo surgery, but this was not approved by the claims agent.

In July 2017, the claims agent gave notice to Mr Ma that his weekly payments would cease from 21 October 2017, on the basis that he had a current work capacity or, if he had no current work capacity, this was not likely to continue indefinitely.[1] From November 2017, the agent ceased paying Mr Ma’s medical and like expenses in relation to his back injury, for reasons including that his injury was no longer work-related.
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), s 163(1) provides that a worker’s entitlement to weekly payments ceases after 130 weeks ‘unless the worker is assessed … as having no current work capacity and likely to continue indefinitely to have no current work capacity’.

Mr Ma disputes these decisions in a County Court proceeding commenced in 2018. On 20 December 2018, Judge Wischusen referred five medical questions to a Medical Panel for an opinion, pursuant to s 274 of the Workplace Injury Rehabilitation…

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 304
Decision Date: 29 May 2020

CaseChat Overview and Summary

Valspar Paint (Australia) Pty Ltd sought judicial review of a decision made by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Panel had concluded that the claimant, MA, had 'no current work capacity'. The primary issue before the court was whether the Panel erred in its opinion by failing to ask itself the right question or by not having regard to relevant material that was essential to its statutory function. The court also needed to determine if the Panel's reasons were adequate.

The court found that the Panel had indeed asked itself the correct question and had considered the relevant material. The Panel's reasons were deemed adequate as they clearly set out the basis for their opinion. The court emphasised that the Panel's role was to assess the claimant's current work capacity based on the medical evidence provided, and the Panel had done so without error. The claimant's argument that the Panel had failed to consider certain aspects of the evidence was rejected as the Panel had, in fact, taken into account all relevant information.

The court concluded that no error was established in the Panel's decision-making process, and the proceeding for judicial review was dismissed. The court's decision underscored the importance of ensuring that the Panel's opinion is based on a comprehensive assessment of the evidence and that their reasons are clear and sufficient to justify their conclusion.

Orders