Whelan v Victorian WorkCover Authority - [2022] VSC 351

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 02015

MARK WHELAN	Plaintiff
v
DR SUMITRA SHANKAR	First Defendant
-and-
DR CHRIS GRANT	Second Defendant
-and-
PROFESSOR MALCOLM SIM	Third Defendant
-and-
ASSOCIATE PROFESSOR MARTIN RICHARDSON	Fourth Defendant
-and-
MS PHI-VAN HOUSTON	Fifth Defendant
-and-
VICTORIAN WORKCOVER AUTHORITY	Sixth Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2022
DATE OF JUDGMENT:	23 June 2022
CASE MAY BE CITED AS:	Whelan v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 351

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JUDICIAL REVIEW – Opinion of medical panel – Current work capacity – Whether approach of panel affected by a ‘pre-condition’ that the plaintiff undertake a ‘work conditioning program’ – Whether panel erred in referring to ‘work conditioning program’ without further explanation – Consideration of panel reasons must not be ‘over-zealous’ – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	PA Czarnota with P Santamaria	Maurice Blackburn
For the First to Fifth Defendants	No appearance	DLA Piper Australia
Sixth Defendant	MF Fleming QC with FC Spencer	Wisewould Mahony

HIS HONOUR:

A Introduction

The plaintiff was 51 years of age and righthanded. He commenced work with the sixth defendant as a truck driver in February 2006. In May 2006 and March 2008, in the course of his employment, the plaintiff suffered accepted injuries to his right shoulder and right side of his neck.

In the first of those incidents, the plaintiff was pulling down a ‘dog bar’ to unload steel from his truck and slipped, wrenching his right shoulder. After the incident, he returned to full-time work in alternative duties as a maintenance controller. It was office-based clerical work. The plaintiff coped in those duties.

The second incident involved throwing a chain over a load on the plaintiff’s truck. The plaintiff suffered right shoulder and neck pain. He again returned to the alternative duties and coped. However, he was retrenched in September 2008. The plaintiff initially looked for ‘new work’, but had ‘no success’ and ‘so has not been looking for work for many years’.[1]
[1]Joint Court Book ’JCB’ 35.

The plaintiff claimed right sided neck and shoulder pain since the incidents.

There was a dispute concerning the plaintiff’s capacity for employment and any need for household help services. Eight questions were referred to a medical panel.

A five member panel was assembled comprising two psychiatrists, an occupational and environmental physician, an orthopaedic surgeon and an occupational therapist. The plaintiff attended the panel for examination by the ‘physical doctors’ on 25 February 2021.

In the usual way, the panel was provided with a significant collection of medical reports and other information including the written submissions prepared on behalf of the plaintiff and sixth defendant respectively.[2]
[2]JCB47-49.

The panel answered the questions by certificate of opinion dated 12 April 2021.[3] Questions 1 to 5 were posed and answered as follows –
[3]JCB31-33.

Question 1What is the nature of the Plaintiff’s medical condition…

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 Whelan v Victorian WorkCover Authority

Details

AGLC: Whelan v Victorian WorkCover Authority [2022] VSC 351
Case: [2022] VSC 351
Decision Date: 23 June 2022

CaseChat Overview and Summary

In the case of Whelan v Victorian WorkCover Authority, the applicant, Mr. Whelan, sought judicial review of a decision made by a medical panel regarding his work capacity. The case was heard in the Federal Court of Australia, where Mr. Whelan challenged the authority's determination that he should undergo a work conditioning program before his current work capacity could be assessed. The dispute centred on whether the panel's approach was unduly influenced by a requirement that he participate in a work conditioning program and whether the panel erred in making reference to this program without providing adequate explanation.

The court was required to determine whether the medical panel's opinion was legally sound and whether their approach was tainted by an inappropriate pre-condition. Specifically, the court had to consider if the panel's reference to a work conditioning program constituted an error in reasoning, and if their failure to further explain this recommendation rendered their decision flawed. Additionally, the court had to assess whether the panel's consideration of the panel's reasons should be 'over-zealous', meaning whether it was appropriate to closely scrutinise the reasoning provided by the panel.

The court found that the panel's approach was not unduly influenced by the pre-condition of the work conditioning program, and that there was no error in their reference to this program. The court held that the panel's reasons were sufficient and did not need to be further explained, and that the applicant's argument was over-zealous in its scrutiny of the panel's reasoning. As a result, the court dismissed the proceeding, upholding the medical panel's decision.

Orders