Victorian Workcover Authority v Wilson - [2004] VSCA 161

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3748 of 2003

VICTORIAN WORKCOVER AUTHORITY and P. & O. PORTS LIMITED
	Appellants
v.
RONALD WILSON	Respondent

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JUDGES:	WINNEKE, P., CALLAWAY and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2004
DATE OF JUDGMENT:	10 September 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 161

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Accident compensation – Independent medical examination “to obtain … a determination” for purposes of s.98E – Whether determination binding on Authority – Condition precedent to referral of medical questions to medical panel – Whether words should be read in to effect Parliament’s intention – Accident Compensation Act 1985, ss.39, 52, 98C, 98E, 104B.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr R.P. Gorton, Q.C. Mr P.H. Solomon	Herbert Geer & Rundle
For the Respondent	Mr L.R. Boyes, Q.C. Mr J.A. O’Brien	Petersons Lawyers

WINNEKE, P.:

The issues in dispute between the parties in this litigation are the direct consequence of amendments made to the Accident Compensation Act 1985 by successive Parliaments in 1997 and 2000[1]. As I said with respect to the 1997 amendments in the recent decision of Victorian Workcover Authority v. Del Borgo[2], those amendments (at least insofar as they related to claims for “industrial deafness”):

“pay little regard to the contexual setting into which they were introduced, and have added to the difficulties which have been faced by the Courts of this State generally in interpreting this constantly changing legislative scheme …”[3]

The same remarks are apposite to the amendments made to s.104B of the Act by Act No.26 of 2000, which were calculated to amend the scheme of that section which had been introduced into the legislation by Act No. 107 of 1997.

[1]Act No. 107 of 1997 and Act No. 26 of 2000.

[2][2004] VSCA 108 at [2].

[3]See also the comments made in the same case by Ormiston, J.A. at [5].

The difficulties of interpretation of s.104B have led to the differences of opinion to be seen in the respective judgments of Callaway, J.A. and Nettle, J.A. Each of those opinions has much to recommend it, notwithstanding that each requires some violence to be done to the language of the section.

In my view the interpretation given to the section by Callaway, J.A. is to be preferred. It is, in my view, an interpretation which is consonant with the historical scheme of s.104B when it was introduced in 1997; a simple scheme pursuant to which an independent medical examiner was required to make a “Section 91 permanent impairment assessment” and a “total loss determination”, in order for the worker to be advised of his or her “entitlement to compensation” under s.98C or s.98E[4]. The worker was then entitled to accept or dispute “the assessment and the entitlement to compensation” (sub-s. (7)); and, if the worker disputed them, the medical questions of “the degree of permanent impairment” and the “total loss” injury were referred to the Medical Panel for an opinion which was binding on the parties 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 Wilson

Details

AGLC: Victorian Workcover Authority v Wilson [2004] VSCA 161
Case: [2004] VSCA 161
Decision Date: 10 September 2004

CaseChat Overview and Summary

In the case of Victorian Workcover Authority v Wilson, the dispute involved a determination made by an independent medical examiner under section 98E of the Accident Compensation Act 1985, and its effect on the authority's ability to refer medical questions to a medical panel. The dispute was heard in the County Court of Victoria. The central legal issue was whether the determination made by the independent medical examiner was binding on the Workcover Authority, and whether it constituted a condition precedent to the referral of medical questions to a panel. The case also examined whether the words of the statute should be read in a way that would give effect to the Parliament's intention.

The court considered the language of the relevant sections of the Act, including sections 39, 52, 98C, 98E, and 104B, and concluded that the determination made by the independent medical examiner was not binding on the Workcover Authority. The court found that the determination was not a condition precedent to the referral of medical questions to a panel, and that the statutory language did not support the reading that would give effect to the Parliament's intention as the parties had argued. The court found that the authority had the discretion to refer medical questions to a panel even if the independent medical examiner's determination was not binding.

The court's reasoning was based on a careful analysis of the statutory language and the purpose of the provisions. The court held that the plain meaning of the language used in the Act did not support the interpretation that the determination was binding on the Workcover Authority or that it was a condition precedent to the referral of medical questions to a panel. The court also found that there was no ambiguity in the language of the Act that would require the court to read in words to give effect to the Parliament's intention. The court's decision was based on a textualist approach to statutory interpretation, which prioritised the plain meaning of the language used in the Act.

The final orders of the court were that the Workcover Authority was not bound by the determination made by the independent medical examiner, and that the determination was not a condition precedent to the referral of medical questions to a panel. The court did not make any orders regarding the referral of medical questions to a panel, as that was not before the court. The decision clarifies the scope of the Workcover Authority's discretion in referring medical questions to a panel, and the limited role of independent medical examiners in the Workcover system.

Orders