Victorian WorkCover Authority v Roska Nedelkovska
[2017] VSC 186
•11 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 01643
| Victorian WorkCover Authority | Plaintiff |
| v | |
| Roska Nedelkovska | First Defendant |
| Magistrates’ Court of Victoria | Second Defendant |
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JUDGE: | Macaulay J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 March 2017 |
DATE OF JUDGMENT: | 11 April 2017 |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Roska Nedelkovska |
MEDIUM NEUTRAL CITATION: | [2017] VSC 186 |
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ADMINISTRATIVE LAW — Judicial review — Decision of magistrate to refuse to refer certain documents to a medical panel pursuant to s 304(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 — Whether certiorari should be granted — Certiorari granted and the decision of the magistrate quashed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Fleming QC and Mr B R McKenzie | Wisewould Mahony |
| For the First Defendant | Mr C Harrison QC Ms K Galpin | Patrick Robinson & Co |
| For the Second Defendant | No appearance |
HIS HONOUR:
On 17 March 2016, a magistrate refused to include two reports (‘the Recovre reports’) prepared by an occupational therapist among documents to be referred to a medical panel pursuant to s 304(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the WIRCA’) (‘the decision’). The Recovre reports concerned the suitability of a particular employment role for Roska Nedelkovska, the first defendant, who had suffered a workplace injury and was seeking weekly payments of compensation and payment of physiotherapy expenses from the plaintiff, the Victorian WorkCover Authority (‘the VWA’).
The VWA sought judicial review of the decision under Order 56 of the Supreme Court (General Civil Procedure) Rules2015 (Vic).
It began as an argument concerning whether the decision involved jurisdictional error and, if so, whether relief in the nature of certiorari should, in the court’s discretion, be granted to quash the decision, but is now confined to the second question. Ms Nedelkovska conceded, correctly in my opinion, that the decision did involve jurisdictional error. It follows that the only question for me is whether, in all the circumstances, I should grant the relief sought.
For the reasons given below I think the relief sought by the VWA should be granted and the decision quashed.
Principles
It is not disputed that judicial review is available in respect of the decision on the grounds of jurisdictional error. Nor is it in dispute that the relevant guiding principle in relation to jurisdictional error for the purpose of this case is as pronounced in Craig v State of South Australia[1] in which the High Court said, most pertinently for present purposes—
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.
…
[A]n inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.[2]
[1](1995) 184 CLR 163.
[2]Ibid 177-8.
Certiorari is without doubt a discretionary remedy.[3] Where a basis for granting the remedy has been established (such as the existence of a jurisdictional error) the opponent bears the onus of persuading the court to exercise the discretion against the applicant for relief.[4] Considerations which are relevant to the exercise of that discretion were recently restated by McDonald J in HW Greenham & Sons Pty Ltd & Anor v Bruns & Ors[5] as including—
… the conduct of the applicant and the utility of the relief which is sought.[6] Relief may be refused if an applicant has acquiesced in the making of the orders which are the subject of the application for certiorari,[7] or does not come to court with clean hands.[8] Relief may also be refused if the applicant has in fact suffered no injustice because statutory law compels a particular outcome.[9]
[3]Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45, 50; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 415; Hanna v Patricia O’Shane [2003] NSWSC 1055 [14]-[18].
[4]Garde-Wilson v Legal Services Board [2008] VSCA 43 [99] (Dodd-Streeton JA).
[5]HW Greenham & Sons Pty Ltd & Anor v Bruns & Ors [2016] VSC 669 (‘Bruns’)
[6]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 [17] (Nettle JA).
[7]TA v Thompson (2013) 46 VR 10, 26 [83] (Beach JA).
[8]SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294, [80] (McHugh J).
[9]Ibid; Bruns [2016] VSC 669 [3].
Background
Ms Nedelkovska was, at an earlier time, employed by Fine Lines Extraordinary Apparel Pty Ltd (‘Fine Lines’) as a sewing machinist. She completed a claim for compensation on 19 June 2005 alleging an injury described as ‘RSI on hands’ sustained while sewing. The claim was accepted. By notice dated 19 November 2011, CGU Workers Compensation (Vic) Pty Ltd (‘CGU’), as agent for the VWA, terminated Ms Nedelkovska’s entitlement to physiotherapy expenses as from 1 December 2011. By a further notice dated 21 January 2013, CGU terminated Ms Nedelkovska’s entitlement to weekly payments of compensation as from 18 April 2013 on the grounds that she had received 130 weeks of weekly payments of compensation under the Accident Compensation Act1985 (Vic) (‘the ACA’) and that, if she did not have a current work capacity, this was not likely to continue indefinitely.
Ms Nedelkovska instituted proceedings in the Magistrates’ Court of Victoria in relation to the termination of weekly payments and physiotherapy expenses. As Fine Lines had been deregistered, the VWA was named as defendant in the Magistrates’ Court proceeding. The VWA obtained the Recovre reports dated 14 January 2016 and 16 March 2016 intended to address the requirements spelt out in Giankos v SPC Ardmona Operations Pty Ltd[10] that the employer produce evidence of specific alternative suitable employment for the injured worker.
[10]Giankos v SPC Ardmona Operations Pty Ltd (2011) 34 VR 120, 144 [155] affirming Public Transport Corporation v Pitts [2007] VSC 356 (Smith J).
Recovre reports
Ms Janette Ash is the author of the two Recovre reports. In the report dated 14 January 2016 headed ‘Suitable employment report’ with a total of 12 pages she states her qualification as an occupational therapist/injury management consultant (‘first report’). The report dated 16 March 2016 by the same author, is only two pages long and is headed ‘Supplementary information’ (‘second supplementary report’).
First report
In the first report Ms Ash states the purpose of the report in these terms:
The purpose of this report is to determine the physical demands and labour market factors associated with the identified employment options within reasonable travel distance from Ms Nedelkovska’s residence in Kings Park.
Ms Nedelkovska was not personally interviewed for the purpose of completing this report. All details and opinions are based upon the documents provided unless otherwise stated.
The documents that were provided to Ms Ash and reviewed were a report of Dr Michael Baines 19 November 2015 and a Vocational Assessment Report dated 28 November 2012. Ms Ash sets out a summary of information (evidently provided to her) of the injury sustained by Ms Nedelkovska in mid-2005. She noted that it was an injury that commenced with the development of right lateral elbow pain including numbness of the third and fourth fingers later spreading to include her thumb and index fingers. Ms Ash noted that shortly after those symptoms emerged Ms Nedelkovska reported developing similar symptoms in the left arm, was diagnosed with carpal tunnel syndrome and underwent decompressive surgery bilaterally in November 2005. Minimal improvement was noted. Ms Nedelkovska returned to work completing pre-injury duties but her right side symptoms persisted and she underwent a second decompression surgery on 2 June 2008. The business was sold around that time and her employment was terminated.
Ms Ash quoted from Dr Baines’ opinion as follows:
I believe that she does have a capacity for work at least on a part time basis of around 20-25 hours per week where she is able to use her hands in a neutral position and where she is not involved in repetitive forceful pushing or pulling or ripping with the hands. There should be no lifting greater than five kilograms. She should not be involved in forceful pushing or pulling with both arms or work above shoulder height.
Ms Ash noted that Dr Baines thought Ms Nedelkovska had limited English capacity and no computer literacy. She also noted the doctor thought Ms Nedelkovska had capacity to perform light assembly or packing work within the noted restrictions and that she may be able to perform basic customer service roles because she previously operated a milk bar business. Ms Ash also referred to the vocational assessment as identifying suitable employment options of product assembler, quality controller and machine operator.
Based upon the documents provided, Ms Ash expressed the view that a specific example of suitable employment for a person with Ms Nedelkovska’s limitations was as a packer with a hosiery manufacturing business 29 minutes’ drive from Ms Nedelkovska’s place of residence. The actual name of the business was not given.
The balance of Ms Ash’s report contains a description and assessment of the packer role at the hosiery manufacturing business. The description includes the location of the business, number of staff, hours of work, salary for packers, a list of the equipment used and a description of the environment in which the packer’s role would be carried out. It also includes descriptions of the particular tasks that a packer would be responsible for performing such as sock grading, product labelling and packing. Photographs are supplied of the work, measurements of equipment height and lifting height are given and other details about the required practices are explained. The report concludes with some recommended restrictions for Ms Nedelkovska to observe at work based upon the medical information Ms Ash had been provided with. Other general details are given about educational and literacy requirements for the particular occupation and some average weekly wage figures for full time packers obtained from two identified sources.
Second supplementary report
The second (supplementary) report answers some further questions from VWA’s lawyers about the circumstances and details under which the worksite assessment was completed. It itemises the general way in which the assessment was undertaken, the persons with whom the assessor discussed the tasks (not identified by name but rather by roles) and the number of times that consultants with Recovre (including Ms Ash) had attended the particular site to make an assessment. The report records that the workplace had been visited on multiple occasions over a six year period by various consultants of Recovre, including Ms Ash herself on six occasions. The most recent assessment of Ms Ash had been completed on 17 September 2015.
Relevant medical questions
In the Magistrates’ Court proceeding the VWA applied to refer certain medical questions to a medical panel pursuant to s 274 of the WIRCA. Among those questions were the following:
2. Does the plaintiff have
(a)A ‘current work capacity’ within the meaning of the Accident Compensation Act 1985 (‘the Act’); or
(b)No ‘current work capacity’ within the meaning of the Act?
3. If ‘yes’ to question 2(b) above, is this likely to continue indefinitely?
There was no dispute before the magistrate whether the question should be referred to the medical panel. The only dispute concerned the documents that were to be given to the medical panel for the purposes of answering the medical questions.
Magistrate fell into jurisdictional error
Section 304 of the WIRCA provides:
304 Reference of medical question
A person or body referring a medical question to a Medical Panel must give the Convenor—
(a) a document specifying—
(i)the injury or alleged injury to, or in respect of, which the medical question relates; and
(ii)the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and
(b)copies of all documents relating to the medical question in the possession of that person or body.[11]
[11]Underlining added.
Two categories of documents were the subject of the dispute. The magistrate ordered that one of the categories of documents be given to the medical panel but the other, the Recovre reports, were not to be provided.
At the hearing, the magistrate heard arguments from counsel both in support of and in opposition to the supply of the Recovre reports. The grounds for opposing the supply of the Recovre reports to the medical panel were that the reports contained hearsay, the identity of persons who made statements to the report writer were not identified and the substance of what they told the report writer had not been identified. It was said that the report was ‘probably not even expert evidence, it’s lay evidence in one respect’[12] and so it would not be admissible as an expert report.
[12]Transcript of Proceedings, Roska Nedelkovska v Fine Lines Apparel Pty Ltd (Magistrates’ Court, F11008313, Magistrate O’Brien, 17 March 2016) 5 (‘Ruling’).
Counsel for the VWA directed the Court’s attention to s 303 (Procedures and powers) and 312 (medical panel may request further information) of the WIRCA and various authorities. Notably, and I will return to this shortly, counsel for the VWA did not expressly refer the magistrate to s 304 still less its mandatory nature.
The magistrate adjourned to read the reports then returned and gave his ruling. He began with a reference to s 274 of the WIRCA. He then continued:
As a general principle the court maintains control over its business even though the matter has gone to a medical panel for a medical opinion. In maintaining that control the court has to be mindful of the principles of natural justice and procedural fairness applicable to both parties, and in my view the provisions of s 303 of the Act do not impinge upon the principles of procedural fairness and natural justice. Section 303 does not say, the court must send everything that is bundled up by a party that it wants sent to the medical panel, it rather puts it the other way, it says, once the matter has got to a medical panel, the panel is not bound by rules or practices as to evidence, but may inform itself. So that is the next step in the chain of events. The first step is the step we are taking here right now. And in dealing with that particular step I have to be mindful particularly of natural justice.[13]
[13]Ruling, 20.
After making observations about some of the cases which had been referred to him during argument, the magistrate then turned to the Recovre reports saying as follows:
I will deal first of all with the Recovre reports because they just happen to be the first in order in this folder. I’m not going to allow those reports to go to the medical panel for this reason, and it appears in the third paragraph on the first page of the first report, ‘Mrs Nedelkovska was not personally interviewed for the purpose of completing this report, all details and opinions are based upon the documents provided unless otherwise stated’. Now, it is not only a report of a Ms Ash that cannot be tested in open court, but there is also other materials with which she has been provided, we do not know what views she formed in relation to those materials.
See in the cases of … Pitts and Giankos whilst there is reference to evidence being given about suitable job options, there was an opportunity in each of those cases for that evidence to be tested in open court by the judicial officer at first instance. So I am not going to allow the two Recovre reports to go.[14]
[14]Ruling, 21-2.
As earlier stated, following a concession made during argument it was not disputed that the learned magistrate fell into jurisdictional error in deciding not to refer the Recovre reports to the medical panel. In my view, that concession was correctly made. The statutory power the magistrate was exercising was confined. It was limited to determining whether a document related to a medical question to be referred to the medical panel. If a document related to a medical question, absent any suggestion of abuse of process, the magistrate was bound to refer that document to the convenor of the medical panel. So much is clear from the word ‘must’ in the opening words of s 304 and the words ‘relating to the medical question’ in sub-s (b).
It is not to be doubted, and it is common ground, that the Recovre reports related to the medical questions 2 and 3 extracted at [17] above and, so, the magistrate was bound to refer them. Instead, the magistrate appeared to consider the weight of the evidence contained in the reports and whether such evidence might have been admissible in a court of law. The magistrate also appeared to be concerned with a question of fairness to Ms Nedelkovska arising from a limited ability to test the opinions being expressed in the reports or the factual basis on which they were based.
None of these considerations are matters that the magistrate was called upon by the legislation to take into account. Indeed, apart from s304 in substance excluding any such consideration, surrounding sections make it clear that the medical panel itself is not bound by rules or practices as to evidence, may inform itself on any matter relating to the reference in any manner it thinks fit, and may request further information it considers is required to enable it to form its medical opinion on the questions. Such provisions reinforce the irrelevance of the magistrate’s consideration of the matters I have identified for the task he was to perform.
In short, therefore, the magistrate misconstrued the statute and thereby misconceived the nature of the function which he was performing and in so doing he fell into jurisdictional error.
Should the court refuse to grant the relief sought?
The relief sought by the VWA is an order in the nature of certiorari quashing the decision of the magistrate on 17 March 2016 to refuse to include in the documents to be referred to the medical panel the Recovre reports. In written submissions, the VWA also sought an order remitting to the Magistrates’ Court the referral of medical questions to the medical panel for completion of steps pursuant to s 304 of the WIRCA in accordance with law.
Ms Nedelkovska argued that the court should exercise its discretion to decline the relief sought by the VWA. She put her argument on several grounds:
(a) First, the VWA did not direct the magistrate to the critical provision, s 304, but instead actively participated in misleading the magistrate into thinking he had a discretion in whether or not to refer the Recovre reports to the medical panel despite them relating to a medical question.
(b) Secondly, there is no evidence the writer of the Recovre reports has the expertise to give the opinions expressed in them; the reports are not specific to Ms Nedelkovska; she was not interviewed for the report; the job referred to is unsuitable for her; there is unidentified hearsay; and insofar as medical opinion forms a factual basis for the writer’s suitable employment opinion, only one medical opinion has been relied upon.
(c) Thirdly, Ms Nedelkovska’s ability to counter the reports is constrained by the fact that the VWA will not identify the business the subject of the report, the makers of the statements of fact relied upon in the reports or allow her access to the business.
Did the VWA actively participate in misleading the magistrate?
Dealing with the first argument, it is true that the VWA did not direct the magistrate to the critical provision, s 304. I am not persuaded, however, that it is apt to characterise the VWA’s conduct before the magistrate as actively participating in misleading the magistrate. Even if it were, I do not regard the nature of the conduct in this case to be such as to warrant me refusing to exercise my discretion in favour of the relief sought.
Ms Nedelkovska sought to draw an analogy between the VWA’s conduct in this case and the conduct of the employer in Bruns’ case which led McDonald J to refuse to grant the relief sought. In my view the comparison of the two cases is instructive and, in fact, highlights the difference between conduct which might reasonably lead a court to refuse to exercise a discretion in favour of relief and conduct that would not.
In Bruns the employer applied to a County Court judge to refer medical questions to a medical panel in the face of opposition by the injured employee. To meet the employee’s argument that it would be unfair to do so because a previous medical panel had made adverse findings against him, the employer argued that the judge should exclude the previous medical panel’s opinion and its reasons from documents to be given to the panel. The employer further argued that the judge should request the convenor not to include any members of the previous panel in the new panel.
After the judge decided, in the employer’s favour, to refer the medical questions to a panel, adopting the employer’s suggestion to exclude the previous medical panel’s opinion and make the request to the convenor as described, the employer resiled from its position. That is, it argued that the judge should refer the previous medical panel’s opinion to the new panel, referring specifically to s 304(b), and sought to dissuade the judge from making the request about the composition of the new panel. In adhering to his decision to refer the medical questions to a medical panel, the judge declined to send the previous panel’s opinion and reasons and also made the request that had initially been sought.
Upon judicial review of the decision to refuse to send the previous panel’s opinion and reasons to the medical panel, and to make the request concerning the constitution of the new panel, McDonald J declined the relief sought in the exercise of his discretion. His Honour did so because the employer had positively argued for the judge to make the two decisions in order to gain the benefit of the referral of the medical questions to a panel. He regarded the conduct of the employer in seeking to maintain the benefit of the principal decision to refer questions to a medical panel while resiling from an argument which had been put forward in aid of that principal decision as manifestly unfair.[15] Furthermore, his Honour found that there was no real prejudice to the employer flowing from the decisions made by the judge because, in practice, the new panel was aware of and could request the previous panel’s opinion. As to the request to the convenor not to include members of the former panel in the new panel, the accepted position was that it was the practice of the convenor not to do so in any event.[16]
[15]Bruns [2016] VSC 669 [19], [23].
[16]Bruns [2016] VSC 669 [27].
In my view the conduct of counsel for the VWA in this case bears no real resemblance to the conduct of the employer in Bruns. The VWA consistently advocated that the Recovre reports should be sent to the medical panel and it was chiefly Ms Nedelkovska’s argument against the sending of those documents that was accepted. If there was fault on behalf of the VWA it was one of omission rather than commission. The provisions which the VWA relied upon were relevant as a reinforcement to the primary argument under s 304(b), but it appeared to miss the central provision. In my view such conduct was not sufficiently close to acquiescence let alone participation in the misleading of the magistrate to be weighed against the VWA on discretionary grounds.
Moreover, in this case, the secondary influence that bore upon McDonald J is absent. That is, whereas there was no real prejudice to the employer in Bruns flowing from the two decisions, here there is real potential prejudice to the VWA should the Recovre reports not be sent to the medical panel. It was not disputed that the law casts an evidentiary burden on an employer in a case such as this to provide evidence of specific suitable employment for the particular worker[17] because the medical panel’s answers to the relevant questions concerning current work capacity become binding upon the parties.[18] The failure of the magistrate to refer the Recovre reports to the medical panel could potentially be fatal to the VWA’s case.
[17]See [8] above.
[18]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 313(4).
For these reasons I would not accept the first argument.
Evidential quality of the reports?
I turn now to the second argument. In my view, this argument is in substance a repetition of the argument put before the magistrate as to why the documents should not have been referred to the panel in the first place. To give these arguments any significant weight now, in the exercise of the discretion, is tantamount to recognising they have some relevance in deciding whether the documents should be sent to the panel on the reference. In the circumstances of this case, such arguments should not be accorded any significant weight in the exercise of my discretion.
The medical panel is the body to consider the quality and merits of the evidence and the weight to be given to it. Ms Nedelkovska is free to make all of the submissions that she has foreshadowed to the panel itself. The panel may call for any further information it needs. The panel can take into account the alleged limitations in the preparation of the report, if it considers those limitations to be significant. As to there being only one medical report relied upon, that can be pointed out to the panel which, itself, will be forming its own expert opinion on Ms Nedelkovska’s medical condition. In effect, Ms Ash has exposed the factual assumption upon which she has relied in expressing her views as to suitable employment: if that factual assumption turns out to be inaccurate, then the medical panel can form whatever view it considers appropriate in the light of any such inaccuracy.
Inability to counter the reports?
The same general observations can be made in respect of Ms Nedelkovska’s third argument. She can point out to the panel any constraint in her ability to counter the Recovre reports by reason of not having had access to the business or being unable to challenge the statements made by unidentified persons who were the sources of information contained in the reports. But none of this means that the Recovre reports ought not to go to the panel at all; their capacity to be helpful or unhelpful to the medical panel in all of the circumstances is a matter for the medical panel to resolve.
In exercising the power to send documents to a medical panel, a court (or other person) ought not pass the document through a filter for evidentiary weight, admissibility or other general fairness criteria. In the absence of some other factor being present, it would be odd if, upon judicial review of a decision refusing to send a document that related to the medical question, the same considerations would attract significant attention for the exercise of a discretion to grant relief.
In summary, neither alone nor in combination do any of the arguments put forward by Ms Nedelkovska persuade me to refuse the relief sought.
What relief should be granted?
For the reasons given above, I will order that the decision of the magistrate made 17 March 2016 to refuse to include the reports of Recovre dated 14 January 2016 and 16 March 2016 in the documents to be referred to the medical panel be quashed.
I will hear the parties on what further orders, if any, are appropriate and in respect of costs.
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