Wortel v Disler - [2023] VSC 646

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 02138

MAX WORTEL	Plaintiff
v
PROFESSOR PETER DISLER & ORS	Defendants
(in accordance with the attached schedule of parties)

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2023
DATE OF JUDGMENT:	8 November 2023
CASE MAY BE CITED AS:	Wortel v Disler
MEDIUM NEUTRAL CITATION:	[2023] VSC 646

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ADMINISTRATIVE LAW — Judicial review — Medical panel — Workplace injury compensation — Panel’s opinion and statement of reasons as to injury — Whether Panel misconstrued medical question and addressed injury too narrowly — Whether Panel’s opinion that employment could not possibly have been a significant contributor to injury was open to be reached — Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 302, 304.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A Saunders with J Clark	Zaparas Lawyers
For the Defendant	M Fleming KC with C Viney	Hall & Wilcox

HIS HONOUR:

Overview

The plaintiff seeks judicial review to quash an opinion certified by a medical panel constituted by the first to fifth defendants (the Panel) on medical questions referred by the County Court of Victoria pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) in a proceeding under pt 6 of the WIRC Act.[1]
[1]The proceeding was brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. The plaintiff also sought a consequential order for remitter of the matter to be redetermined by a differently constituted medical panel, relying on Toyota v Bendrups & Ors [2016] VSC 718.

The plaintiff was a ‘worker’ within the meaning of the WIRC Act. He claimed compensation for injury arising out of or in the course of his employment. The claim was refused. The plaintiff commenced a proceeding under pt 6 of the WIRC Act in the County Court, and the County Court referred medical questions for the opinion of a medical panel.

In this proceeding, the plaintiff contended that the Panel misconstrued a medical question and thereby answered the wrong question, narrowing its consideration of the plaintiff’s injuries and its consideration of subsequent questions, and falling into jurisdictional error. The plaintiff also contended that, in determining its opinion on the same questions, the Panel reached a conclusion that was not open on the evidence before it.

I have decided that neither of the grounds pressed by the plaintiff is made out. The proceeding must therefore be dismissed.

Relevant provisions of the WIRC Act

Part 5, div 2 of the WIRC Act establishes an entitlement for workers to weekly payments and medical and like expenses in various circumstances. Such an entitlement may arise for a period of incapacity from a work-related injury even in the absence of permanent impairment.

The entitlement to compensation is relevantly set out at s 39 of the WIRC Act as follows:

(1) If there is caused to a…

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 Wortel v Disler

Details

AGLC: Wortel v Disler [2023] VSC 646
Case: [2023] VSC 646
Decision Date: 8 November 2023

CaseChat Overview and Summary

The case of Wortel v Disler involved a dispute regarding a medical panel's determination in the context of workplace injury compensation. The applicant, Wortel, sought judicial review of the panel's decision, which was made under the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013. The primary issue was whether the panel had misconstrued the medical question at hand and had addressed the injury too narrowly, as well as whether the panel's opinion that employment could not possibly have been a significant contributor to the injury was open to be reached.

The court examined whether the panel's opinion was legally sound and whether it had considered all relevant factors. The applicant argued that the panel had not properly understood the medical question and had failed to adequately consider the potential contribution of employment to the injury. The court analysed the statutory provisions, particularly sections 274, 302, and 304 of the Act, to determine if the panel's conclusions were within the scope of permissible decisions. The court also considered the standard of review applicable to such decisions and the extent of deference owed to the panel's expertise.

In reaching its decision, the court concluded that the panel's opinion was open to be reached and that the applicant had not demonstrated that the panel had misconstrued the medical question or had failed to consider all relevant factors. The court found that the panel's conclusion that employment could not possibly have been a significant contributor to the injury was a permissible one, given the evidence and the applicable legal standards. The court held that the panel's opinion was not irrational or outside the scope of permissible decisions, and therefore, the applicant's application for judicial review was dismissed.

The court's final order was that the application for judicial review was dismissed, with no orders for costs. The decision underscored the importance of deference to medical panels in matters of workplace injury compensation and the limited scope of judicial review in such cases.

Orders