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Victorian Workcover Authority v Putrus

Victorian Workcover Authority v Putrus

Case [2023] VSCA 28 23 February 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0018

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
ROBERT PUTRUS AND ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	BEACH, KENNEDY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2023
DATE OF JUDGMENT:	23 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 28
JUDGMENT APPEALED FROM:	[2021] VSC 853 (Quigley J)

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Whether medical panel erred in failing to take into account relevant consideration – Whether medical panel failed to intellectually engage with worker’s alternative claim – Whether medical panel fell into reviewable error by failing to provide adequate reasons – Primary judge quashed medical panel’s opinion for failing to take into account relevant consideration, failing to intellectually engage with part of worker’s claim and failing to provide adequate reasons – No error by primary judge – Application for leave to appeal refused.

Workplace Injury and Rehabilitation Act 2013, ss 274, 304, 325 and 335.

Wingfoot Australia Partners Pty Ltd (2013) 252 CLR 480, Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 and Sidiqi v Kotsios [2021] VSCA 187 referred to.

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Counsel
Applicant:	Ms CM Harris KC with Ms M Norton
First Respondent:	Mr PA Czarnota and Mr CN Viney
Second to Fifth Respondents:	No appearance

Solicitors
Applicant:	IDP Lawyers
First Respondent:	My Lawyer
Second to Fifth Respondents:	DLA Piper

BEACH JA
KENNEDY JA
J FORREST AJA:

Between 2010 and 2015, Robert Putrus was employed by a labour-hire company, BDS People Pty Ltd. In October 2013, he was assigned to work for Allied Mills in Tullamarine as a mixer/factory hand. His tasks were heavy and included picking up bags of flour off a pallet and pouring the contents into bowls, manoeuvring large mixing bowls on castors, loading and unloading trays of bread, pulling heavy pallets, and lifting, carrying and emptying bags of product each weighing approximately 25 kilograms.
On 26 October 2015, Mr Putrus submitted a WorkCover claim form in which he alleged that he had suffered a back injury on 9 September 2015. Mr Putrus attributed his injury to the heavy nature of his work. His claim for compensation was subsequently accepted and he was off work for a period before returning to work on alternative duties. Ultimately, his employment was terminated.
In August 2018, Mr Putrus commenced a proceeding in the County Court seeking leave to bring a claim for common law damages pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). He relied upon injuries to his back and lumbar spine, as well as psychological/psychiatric injuries in support of his application for leave to commence a common law proceeding.
On 7 February 2019, pursuant to s 274(1)(b) of the Act, a County Court judge referred 11 medical questions to a medical panel. Subsequently, a medical panel was convened comprising Dr David Fish, a specialist occupational and environmental physician and…

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 Victorian Workcover Authority v Putrus

Details

AGLC: VWA v Putrus [2023] VSCA 28
Case: [2023] VSCA 28
Decision Date: 23 February 2023

CaseChat Overview and Summary

The matter of Victorian Workcover Authority v Putrus involved a dispute between the Workcover Authority and an injured worker, Mr Putrus, concerning the assessment of his entitlement to compensation for a workplace injury. The case was heard and determined in the Court of Appeal. The primary judge had previously quashed the opinion of a medical panel, which had determined Mr Putrus's entitlement to compensation, on the grounds that the panel had failed to take into account relevant considerations, had not intellectually engaged with part of Mr Putrus's claim, and had not provided adequate reasons for its decision. The Workcover Authority sought leave to appeal the decision of the primary judge.

The court was required to decide whether the primary judge erred in quashing the opinion of the medical panel. The court had to consider whether the medical panel had indeed erred in its assessment of Mr Putrus's entitlement to compensation, and whether the primary judge had been correct in finding that the panel's opinion was flawed. The court also had to consider whether the primary judge had erred in any way in reaching his decision.

The court held that the primary judge had not erred in quashing the opinion of the medical panel. The court found that the panel had indeed failed to take into account relevant considerations, had not intellectually engaged with part of Mr Putrus's claim, and had not provided adequate reasons for its decision. The court held that these errors were sufficient to vitiate the panel's opinion, and that the primary judge had been correct in quashing it. The court also held that the Workcover Authority's application for leave to appeal was without merit.

The court refused the Workcover Authority's application for leave to appeal the decision of the primary judge.

Orders