Withers v Chalmers Industries Pty Ltd - [2020] VSC 635

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05740

GORDON WITHERS	Plaintiff
v
CHALMERS INDUSTRIES PTY LTD	First Defendant
and
ASSOCIATE PROFESSOR PETER GIBBONS as THE CONVENOR OF MEDICAL PANELS	Second Defendant
and
ASSOCIATE PROFESSOR ALEXANDER HOLMES, DR DENNIS HANDRINOS, DR SUSANNE HOMOLKA, DR ANDREA BENDRUPS, and MR PETER WILDE	Third to Seventh Defendants

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2020
DATE OF JUDGMENT:	29 September 2020
CASE MAY BE CITED AS:	Withers v Chalmers Industries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 635

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Claimed injury admitted by employer in Magistrates’ Court proceeding – Panel’s opinion that worker did not suffer claimed injury – Whether Panel assessed wrong injury – Whether Panel failed to have regard to employer’s admission – Whether Panel’s departure from parameters of dispute between parties procedurally unfair – Whether Panel’s reasons adequate – Jurisdictional errors established – Whether relief should be refused because worker acquiesced in or contributed to errors – Whether questions should be reconsidered by differently constituted Medical Panel – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 304.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AG Uren QC with Mr LBR Allan	Arnold Thomas & Becker
For the First Defendant	Mr MF Fleming QC with Mr RD Kumar	Minter Ellison

HER HONOUR:

Gordon Withers began working for Chalmers Industries Pty Ltd as a forklift driver in August 2012. He has not worked since 13 January 2016, when he felt sudden ‘unendurable’ pain in his thoracic back while driving his forklift on an uneven surface.

On 17 October 2016, Mr Withers made a claim for weekly payments of compensation and payment of medical and like expenses in respect of this injury, under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). His 2016 claim was rejected by Chalmers’ claims agent on 21 November 2016.

In September 2018, Mr Withers commenced a proceeding against Chalmers in the Magistrates’ Court of Victoria, disputing its rejection of his 2016 claim. In that proceeding, he claims to be entitled to compensation in respect of an injury arising out of or in the course of his employment with Chalmers on 13 January 2016, namely:[1]

(a)symptomatic exacerbation of a pre-existing T6 compression fracture and its associated T5-10 segment degeneration with residual thoracic back pain and referred pain in the chest; and
(b)consequential exacerbation of a pre-existing adjustment disorder with mixed anxiety and depressed mood.

[1]Magistrates’ Court Complaint and Statement of Claim dated 18 September 2018, [3].

Chalmers admits that Mr Withers suffered this injury in January 2016, but does not admit that he continues to suffer from it, and denies that he is incapacitated for work.

On 16 July 2019, at Chalmers’ request, Magistrate Wright referred a number of medical questions for the opinion of a Medical Panel under s 274 of…

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.

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Details

Case: [2020] VSC 635
Decision Date: 29 September 2020

CaseChat Overview and Summary

In the case of Withers v Chalmers Industries Pty Ltd, the plaintiff, Mr. Withers, sought judicial review of a decision made by a Medical Panel appointed under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The dispute centred around the Panel's opinion that Mr. Withers did not suffer the injury he claimed, despite the employer's admission in a Magistrates' Court proceeding that the injury occurred. Mr. Withers contended that the Panel had assessed the wrong injury, failed to consider the employer's admission, and departed from the parameters of the dispute between the parties in a manner that was procedurally unfair. Additionally, he argued that the Panel's reasons were inadequate and that the Panel had made jurisdictional errors.

The court was required to determine whether the Panel had indeed assessed the wrong injury, failed to take into account the employer's admission, and acted unfairly by departing from the parameters of the dispute. Furthermore, the court needed to assess whether the Panel's reasons were sufficient and whether any jurisdictional errors warranted relief despite Mr. Withers' acquiescence in or contribution to those errors. Finally, the court had to consider whether the questions should be reconsidered by a differently constituted Medical Panel.

The court found that the Medical Panel had indeed made jurisdictional errors by assessing the wrong injury and failing to take into account the employer's admission. The court also held that the Panel's departure from the parameters of the dispute was procedurally unfair. However, the court determined that the errors were not so significant that relief should be refused due to Mr. Withers' acquiescence or contribution to those errors. Instead, the court ordered that the questions be reconsidered by a differently constituted Medical Panel, ensuring that the correct injury was assessed and the employer's admission was duly considered.

Orders