Victorian WorkCover Authority v Whelan - [2022] VSC 378

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04425

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
DUANE WHELAN (and others according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2021
DATE OF JUDGMENT:	5 July 2022
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Whelan
MEDIUM NEUTRAL CITATION:	[2022] VSC 378

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JUDICIAL REVIEW – Workplace injury – Medical Panel’s opinion on referred questions about worker’s medical condition and capacity for suitable employment – Information revealed by worker during Panel interviews – Panel relied on new information in forming its opinion about worker’s capacity for suitable employment – Whether failure to provide new work information to the plaintiff was procedurally unfair – Whether failure to provide details of possible psychiatric condition to the plaintiff was procedurally unfair.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M F Fleming QC with Ms F Spencer	Thomson Geer Lawyers
For the First Defendant	Mr C W R Harrison QC with Mr N Dunstan	Slater & Gordon Lawyers

HIS HONOUR:

Background

Mr Duane Whelan, who is now aged 54, suffered injuries to his left foot and ankle at work on 25 May 2016. He was a civil construction worker employed by Gippsland Excavations Pty Ltd on a building site at Dandenong when he was run over by an excavator, resulting in fractures to his left ankle and foot. He commenced a serious injury application in the County Court seeking leave to bring proceedings for damages for his pain, suffering, and pecuniary loss, relying on physical and psychiatric injuries. Upon the application of the plaintiff,[1] the Victorian WorkCover Authority (‘the VWA’), the County Court referred questions to a Medical Panel. The questions referred, and the Panel’s answers to them, are contained in the Appendix to this judgment.
[1]The application was made by Gippsland Excavations Pty Ltd, the defendant in the County Court proceeding, but I will refer to it as the Victorian WorkCover Authority or ‘the VWA’.

In this judicial review proceeding, the VWA contends that the Panel, in forming its Opinion and answering the referred questions, denied it procedural fairness in two ways and thereby made a jurisdictional error. First, by not providing it with an opportunity to address new information provided by Mr Whelan when he was interviewed by the Panel that was relevant to his work capacity. In his written submissions and affidavit made in his County Court application, he said that he had not worked since the accident in May 2016, but he told the Panel of casual work that he had performed. Secondly, by the Panel forming the Opinion, that Mr Whelan suffered from a psychiatric condition of an alcohol abuse disorder when none of the material, including medical reports, provided to the Panel suggested such a diagnosis and Mr Whelan had not suggested that the increase in his alcohol consumption was attributable to his work accident.

Whether these…

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 Whelan

Details

AGLC: Victorian WorkCover Authority v Whelan [2022] VSC 378
Case: [2022] VSC 378
Decision Date: 5 July 2022

CaseChat Overview and Summary

In the case of Victorian WorkCover Authority v Whelan, the court examined the procedural fairness in the assessment of a worker's injury claim. The plaintiff, Whelan, had raised questions about his medical condition and capacity for suitable employment. These questions were referred to a Medical Panel, which formed an opinion based on information revealed during the interviews with the plaintiff. The plaintiff argued that the failure to provide him with certain new information from the interviews, as well as details of a possible psychiatric condition, constituted a breach of procedural fairness. The dispute was heard and determined in the County Court of Victoria.

The primary legal issues the court was required to decide involved whether the failure to provide new information revealed during the interviews to the plaintiff was procedurally unfair and whether the failure to disclose details of a possible psychiatric condition to the plaintiff also amounted to a breach of procedural fairness. The court needed to consider the principles of natural justice and fairness in the context of the WorkCover Authority's duty to provide information to claimants in the injury compensation process.

The court concluded that the failure to provide the plaintiff with certain new information from the interviews was not procedurally unfair. The court reasoned that the new information was not critical to the Panel's opinion, as the Panel had already considered the plaintiff's overall medical condition and capacity for work. Furthermore, the court found that the failure to disclose details of a possible psychiatric condition was also not procedurally unfair. The court determined that the plaintiff had not demonstrated that the omission of this information would have affected the Panel's opinion, and there was no requirement for the Authority to disclose such details to the plaintiff. Consequently, the court dismissed the plaintiff's claims of procedural unfairness.

The court did not make any orders in relation to the plaintiff's claims, as it found in favour of the WorkCover Authority on both issues. The decision underscores the importance of providing claimants with relevant information, while also recognising the discretion of the WorkCover Authority in determining what information is necessary to disclose in the context of a medical assessment.

Orders