Yealand v Traveller Caravans Pty Ltd
[2013] VCC 1048
•28 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04809
| LUKE YEALAND | Plaintiff |
| v | |
| TRAVELLER CARAVANS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2013 | |
DATE OF RULING: | 28 August 2013 | |
CASE MAY BE CITED AS: | Yealand v Traveller Caravans Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1048 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Application pursuant to s134AB of the Accident Compensation Act 1985 – defendant seeking referral of medical questions to the Medical Panel – application of s45(1)(b) of the Act
Legislation Cited: Accident Compensation Act 1985, s134AB, s5, s45 and s68(4)
Cases Cited:Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; United Doormakers (Vic) Pty Ltd v Amendola (unreported, VSCA, 16 November 2012) Kirby v Victorian WorkCover Authority (Ruling) [2013] VCC 594; Adones v Retirement Care Australia Operations (2) Pty Ltd (Ruling) [2013] VCC 171; Kocak v Wingfoot Australia Partners & Goodyear Tyres Pty Ltd [2012] VSCA 259; Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; X v Director of Public Prosecutions [1995] 2 VR 622; Adones v Retirement Care Australia Operations (2) Pty Ltd [2013] VCC 171
Ruling: Relief granted to defendant pursuant to s45(1)(b) of the Accident Compensation Act 1985; medical questions to be referred to the Medical Panel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Hutchinson | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr G Kotnik | Hall & Wilcox |
HIS HONOUR:
1 By a Summons filed on 19 July 2013, the defendant applies for the referral of certain “medical questions” to a Medical Panel pursuant to s45 of the Accident Compensation Act 1985 (as amended) (“the Act”). Such application is supported by an affidavit of one Gavin Brett Kotnik sworn on 19 July 2013 (“Kotnik’s affidavit”).
2 The plaintiff opposes such application on the basis that s45(1D) of the Act is applicable and the Court “must not refer” such medical questions.
Background
3 On or about 14 May 2012, the plaintiff made an application (“the application”) in the prescribed form seeking a serious injury certificate to pursue damages for both pain and suffering and loss of earning capacity. In such application, the plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]See exhibit “GBK-1” attached to Kotnik’s affidavit
4 In the application, the plaintiff specifies the injury or injuries on which he relies to be:
·injury to the neck and/or cervical spine
·aggravation of previous degeneration in the neck and/or cervical spine
·referred sensory disturbance to the back and arms
·anxiety and depression.
5 In support of his application, the plaintiff swore an affidavit on 14 May 2012 (“the plaintiff’s affidavit”) and submitted a Draft Statement of Claim.[2]
[2]See exhibits “GBK-2” and “GBK-3” attached to Kotnik’s affidavit
6 By way of such affidavit, the plaintiff deposes that he suffered injury over time as a result of the “cumulative stresses and strains of my employment with the defendant and as a result of a specific incident occurring on or about 2 August 2007”. In his Draft Statement of Claim, the plaintiff pleads the same injuries as are set out in his application for serious injury.
7 The WorkCover agent for the defendant accepted a claim for compensation made by the plaintiff in respect of such injuries and he was paid statutory benefits, consisting of weekly payments of compensation and medical and like expenses. The plaintiff was paid 130 weeks of weekly payments from 3 August 2007 to 29 January 2010.
8 By Notice dated 16 October 2009, the WorkCover agent for the defendant advised the plaintiff that his payments would be terminated as from 29 January 2010 on the grounds that he had received at least 130 weeks of weekly payments of compensation and he had a current work capacity or, alternatively, he had no current work capacity which was not likely to continue indefinitely.[3]
[3]See exhibit “GBK-4” attached to Kotnik’s affidavit
9 The plaintiff disputed such decision and referred the Notice to the Accident Compensation Conciliation Service which, in turn referred various medical questions to the Medical Panel on or about 16 September 2010.
10 On 10 November 2010, the Medical Panel provided a Certificate of Opinion which, omitting formal parts, stated:
“1What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
In the Panel’s opinion, the worker is suffering from a mild chronic soft tissue injury of the cervical spine and from a mild Adjustment Disorder with Depressed Mood and Anxiety, relevant to the claimed injury.
2Does the worker have a current work capacity?
The Panel is of the opinion that the worker has a current work capacity.
3If the answer to Question 2 is “no”, is this situation likely to continue indefinitely?
Not applicable.”[4]
[4]See exhibit “GBK-5” attached to Kotnik’s affidavit
11 At the time of referral, the plaintiff supplied medical reports from Dr Justin J Scarlett (his treating general practitioner) dated 21 October 2008, 1 March 2010 and 3 March 2010 and from Dr Clayton Thomas (his treating rehabilitation specialist) dated 6 July 2009.[5]
[5]See exhibit “GBK-6” attached to Kotnik’s affidavit
12 The application by the plaintiff for “serious injury” was rejected on 11 September 2012, causing the plaintiff to issue an Originating Motion which is fixed for hearing on 6 September 2013.
13 By way of letter dated 20 June 2013, the solicitors for the defendant advised the solicitors for the plaintiff that the defendant sought to refer the following proposed medical questions to the Medical Panel for opinion:
“1What is the nature of the plaintiff’s medical conditions relevant to the injuries alleged in paragraph 3 of the Statement of Claim (‘the alleged injuries’), namely:
(a)injury to the neck and/or cervical spine;
(b)aggravation of previous degeneration in the neck and/or cervical spine;
(c)anxiety and depression?
2To what extent do the conditions found in Question 1 result from, or are materially contributed to by, the alleged injuries?
3As at the date of examination by the Medical Panel, does the plaintiff have a current work capacity?
4If ‘no’ to Question 3, at the date of examination by the Medical Panel, is the plaintiff likely to continue indefinitely to have no current work capacity?”[6]
[6]See exhibit “GBK-8” attached to Kotnik’s affidavit
14 By letter dated 8 July 2013, the solicitors for the plaintiff advised those acting for the defendant that such a course was opposed. In such letter, it is stated:
“We advise we oppose the questions being referred to the Medical Panel as we believe the formation of an opinion by the Medical Panel will depend substantially on the resolution of factual issues which are more appropriately determined by the Court than a Medical Panel.”[7]
[7]See exhibit “GBK-9” attached to Kotnik’s affidavit
Relevant legal principles
15 Section 45 of the Act states relevantly:
“(1) If the court exercises jurisdiction under this Part, the court—
(a) may on the court's own motion, refer a medical question to a Medical Panel for an opinion under this Division; or
(b) subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if—
(i)a party to the proceedings requests that a medical question or medical questions be referred; and
(ii)that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.
(1A)This section extends to, and applies in respect of, an application for leave under section 134AB(16)(b)—
(a) so as to enable in accordance with subsection (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of medical question in section 5(1)); or
(b) so as to require in accordance with subsection (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of medical question in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition)—
for the opinion of a Medical Panel.
(1B)The Court may refuse to refer a medical question to a Medical Panel on an application under subsection (1)(b) if the Court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(1C)The Court has on an application under subsection (1)(b) the discretion as to the form in which the medical question is to be referred to a Medical Panel.
(1D)The court must not refer a medical question if it appears to the court that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.
(1E)If under subsection (1D) a court has not referred a medical question to a Medical Panel, the court may—
(a) state a question to be answered by the court for the purposes of determining the factual issues referred to in subsection (1D); and
(b) give directions for the hearing and determination of that question; and
(c) hear and determine the question, and by the answer to that question, make appropriate findings of fact.
(1F)After answering a question referred to in subsection (1E) the court may refer a medical question to a Medical Panel for an opinion.
(1G)If, under subsection (1F), the court refers a medical question to a Medical Panel, the court must provide the Medical Panel with—
(a) a copy of the question and the court's answer to the question; and
(b) any reasons published by the court in relation to the question; and
(c) any further documents the court considers appropriate.
(1H)In forming an opinion on the medical question referred to a Medical Panel under subsection (1F), the Medical Panel is bound by the answer to the question stated and answered by the court under subsection (1E).
(2)If the Court refers a medical question to the Panel, the Court must give each party to the proceedings, copies of all documents in the possession of the Court relating to the medical question.
(4)If the Court refers a medical question to a Medical Panel, the Court must give a copy of the Panel's opinion to the worker and to the employer, Authority or self-insurer and may give a copy to a party to the proceedings.”
[my emphasis].
16 Section 5(1) of the Act defines “medical question” to mean one or more of the questions set out in that sub-section. The sub-section sets out a variety of questions running from paragraph (a) to paragraph (i). Clearly enough, many of the questions are probably peculiar to a statutory benefit claim, although some questions would be relevant to both statutory benefit claims and serious injury applications. Furthermore, I note questions (h) and (i), which state:
“(h)a question prescribed to be a medical question in respect of an application for leave under s134AB(16)(b);
(i)a question determined to be a medical question by a court hearing an application for leave under s134AB(16)(b).”
17 I refer to the Court of Appeal decision in Kocak v Wingfoot Australia Partners Pty Ltd and Goodyear Tyres Pty Ltd.[8] In particular, I refer to paragraphs [26] – [28] of such decision, wherein it is stated:
“[26] Counsel for the employer explained that the reason for the employer’s change in attitude was that, since the matter was last before the County Court, the employer had come to the view that nothing said by the High Court in Brown[9] affected the conclusion reached by this court in Pope v W S Walker & Sons Pty Ltd that s 68(4) of the Act makes a Medical Panel Opinion, if obtained in proceedings for determining an application for statutory benefits, binding only for the purposes of such proceedings. In other words, counsel submitted, although the High Court held in Brown that the words in s 68(4) ‘For the purposes of determining any question or matter’ mean ‘for the purposes of determining any question or matter arising under or for the purposes of the Act’, the High Court did not thereby overturn the conclusion in Pope v Walker that ‘any question or matter’ means ‘any question or matter arising in a proceeding of the same nature as the proceeding in which the question was referred to the Medical Panel’. The correct view of Brown, counsel submitted, is that ‘for the purpose of determining any question or matter arising under or for the purposes of the Act’ means ‘for the purposes of determining any question or matter arising under or for the purposes of the Act in a proceeding of the same nature in which the question was referred to the Medical Panel’.
[27] Counsel for the appellant supported that view of the legislation. He submitted that it was plain as a matter of historical context. The legislative predecessors to s 68(4) were confined to proceedings for statutory benefits. Later, those provisions were removed from the legislation. When re-introduced as s 68(4), common law proceedings were not permitted and, therefore, there were no serious injury applications. Accordingly, it was said, s 68(4) cannot have been intended to apply to serious injury applications. Further, s 45(1A) provides for a judge determining a serious injury application under s 134AB(16)(b) to refer a medical question to a Medical Panel for opinion. If s 68(4) applied to serious injury application proceedings, a judge could be faced with competing medical opinions. In counsel’s submission, that cannot have been intended.
[28] Despite the ingenuity of those arguments, we do not accept that Brown should be read as preserving Pope v Walker. If the High Court had intended to convey that s 68(4) applies only to a Medical Panel Opinion in the same kind of proceedings as those in which the opinion was obtained, their Honours would surely have said so. To the contrary, they referred to Pope v Walker as exemplary of the ‘the then … state of authority in Victoria’ in apparent contradistinction to the state of authority which the High Court created by their re-interpretation of s 68(4). The High Court also stated that, once the step has been taken of obtaining a Medical Panel Opinion for determining any question or matter arising under or for the purposes of the Act, it is clear that s 68(4) does not speak at all to the litigation of questions or matters that are not questions or matters arising under or for the purposes of the Act. With respect, as we read that, the High Court intended to contrast serious injury application proceedings, being proceedings for ‘determining a question or matter arising under the Act’, in which s 68(4) operates to make a Medical Panel Opinion binding, with the common law damages proceedings which may follow, to which s 68(4) has no application.”
[my emphasis].
[8][2012] VSCA 259. The defendant in that proceeding sought and was granted special leave by the High Court to appeal the decision and such appeal, I have been told, has been recently heard but yet to be determined.
[9]See Maurice Blackburn Cashman v Brown (2011) 242 CLR 647
18 I also refer to s68(4) of the Act, which states:
“For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
Submissions on behalf of the Defendant
19 Various submissions are set out in Kotnik’s affidavit and include:
(a) On 15 November 2012, orders were made by this Court whereby any further material to be relied on by either party must have been served by 14 January 2013. Furthermore, no further material could be adduced at trial without the leave of the Court. Notwithstanding the order, correspondence from those acting on behalf of the plaintiff dated 12 June 2013 exchanged the following medical material in support of the application for serious injury:
(i)reports of Dr Justin J Scarlett dated 19 November 2007 and 14 May 2013;
(ii)report of Dr Clayton Thomas dated 4 June 2010;
(iii)the Dorset Rehabilitation Centre reports dated 3 June 2008 and 12 January 2009;[10]
[10]See exhibit “GBK-7” attached to Kotnik’s affidavit
(b) That the reports of Dr Justin J Scarlett dated 19 November 2007 and 14 May 2013 are “not significantly different” to previous reports written by him and which were available to the Medical Panel when it delivered its opinion on 10 November 2010. Furthermore, the report from Dr Clayton Thomas dated 4 June 2007 simply provides that he has given no further treatment to the plaintiff since July 2010. The reports from the Dorset Rehabilitation Centre state that the plaintiff attended five sessions and failed to attend another four sessions between 8 August 2008 and 26 November 2008;
(c) Since the Medical Panel Opinion delivered on 10 November 2010, there has been the addition of only the reports referred to above and in such circumstances, no factual issues require resolution if they are not in dispute;
(d) In particular, the defendant asserts that it does not intend to rely on any surveillance material in the event that the referral to the Medical Panel was granted by this Court.
Submissions made on behalf of the Plaintiff
20 Counsel for the plaintiff made the following general submissions:
(a) He referred to the process which commonly occurs in serious injury applications involving at least the cross-examination of the plaintiff and not infrequently, the cross-examination of a medical practitioner or practitioners relied on by the plaintiff in support of his or her claim for serious injury. In this respect, it followed, so it was submitted, that the formation of an opinion by the Medical Panel on any medical question will depend substantially on the resolution of factual issues more appropriately determined by a court than a Medical Panel;
(b) Reference was also made to the plaintiff seeking to rely on a report from a vocational assessor, Ms Katrine Green, who apparently has consulted with the plaintiff. Such report has yet to be exchanged and, of course, leave would have to be given to exchange such report given the earlier orders made by the Court. On the assumption that such report forms part of the material that is to be relied on by the plaintiff, Counsel for the plaintiff also emphasises that there is the potential for further factual issues to arise which would be more appropriately determined by the Court than a Medical Panel. There was no evidence before me as to what Ms Katrine Green will say in any proposed report.
(c) Counsel for the plaintiff referred to in particular, the decision of Amendola v United Doormakers (Vic) Pty Ltd (Ruling),[11] a decision of his Honour Judge O’Neill pertaining to this issue, and a later decision of Kirby v Victorian WorkCover Authority (Ruling),[12] a decision of his Honour Judge Misso which effectively adopted the same approach taken by his Honour Judge O’Neill in Amendola. Furthermore, reference was made to United Doormakers (Vic) Pty Ltd v Amendola,[13] a decision of the Court of Appeal (Warren CJ and Priest JA) wherein leave was refused to appeal from the Orders made by Judge O’Neill on 15 August 2012. It was submitted that such decisions supported the position of the plaintiff.
[11][2012] VCC 1038
[12][2013] VCC 594
[13](Unreported VSCA, S APCI 2012 0162, 16 November 2012)
General Comments
21 I make the following general comments:
(a) Whereas the use of various “medical questions” contained in s5(1) of the Act has the potential to completely determine issues arising out of claims for statutory benefits (although not always the case), the potential for such “medical questions” completely determining issues under s134AB of the Act is far more limited.
By this I mean, no medical question can determine an issue, for example, as to whether or not the consequences of a permanent impairment in relation to a back satisfy the requirements of the narrative test or indeed, no “medical question” can determine that a plaintiff discharges his or her onus in relation to the pecuniary loss provisions, given that the Court must make a finding, amongst other things, of the “without injury earnings” and the earnings (if any) of a plaintiff engaging in suitable employment.
However, potentially, there are some questions which could determine some applications, such as the nature of any worker’s medical condition relevant to the alleged compensable injury. In circumstances where there is no medical condition, for example, in relation to say, a low-back injury, such would have the potential for the worker to fail in such application. Another example may be that where the medical opinion is that a worker is totally and permanently incapacitated for work, it may well be very relevant to a determination of pecuniary loss issues and potentially, the whole serious injury application;
(b) Notwithstanding that any opinion given by a Medical Panel to a medical question may not be able to completely determine the issue in dispute is, in my view, not relevant to the issue to be determined by the Court in this proceeding.
Part III of the Act is headed “DISPUTE RESOLUTION” and consists of:
§ Division 1 – County Court;
§ Division 1A – Accident Compensation Conciliation Service;
§ Division 2 – Conciliation of Disputes, and
§ Division 3 – Medical Panels.
Since the establishment of Medical Panels, it has been intended seemingly by the legislature that Medical Panels can be utilised in dispute resolution and hopefully to avoid issues of “duelling doctors”.
Such a position is reinforced when one considers s45 of the Act. In particular, s45(1A) of the Act makes clear that the powers given under s45 extend to and apply in respect of applications under s134AB of the Act.
In this respect, pursuant to s45(1)(b), the Court must refer a medical question to the Medical Panel for opinion under that Division if a party to the proceedings request that a medical question or questions be so referred, and that such request is no later than fourteen days prior to the date fixed for hearing of the proceedings.
However, s45(1)(b)(i) is subject to ss(1B), (1C) and more particularly, in the circumstances of this proceeding, ss(1D) of s45 of the Act;
(c) Subsection (1D) directs that the Court “must not refer a medical question” if it “appears to the Court” that the formation of any opinion by the Medical Panel will depend “substantially” on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel.
Accordingly, ss(1D) recognises that a Medical Panel can resolve factual issues in forming a medical opinion – however, if such potential medical opinion will depend “substantially” on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel, then the Court must not refer such a medical question.
It is probably the case that in general terms, factual issues are probably better determined by a court than by a Medical Panel considering the nature of a court proceeding and the adversarial process. However, that is not the end of the matter considering that it must appear to the court that the formation of an opinion will depend “substantially” on the resolution of factual issues;
(d) In the circumstances of this application, there is the added factor of the Medical Panel decision made on 10 November 2010. Given the operation of s68(4) of the Act and the present state of the law as set out in Kocak,[14] I consider that there would be no issue that as at that date, the worker suffered a compensable injury – “a mild chronic soft-tissue injury of his cervical spine” and a “Mild Adjustment Disorder with Depressed Mood and Anxiety”. Furthermore, again based on s68(4) and Kocak, I am of a view that there can be no issue that the plaintiff had a “current work capacity” within the meaning of the Act as at 10 November 2010.
Of course, circumstances change and it may be that the plaintiff has improved or indeed worsened since that date. Of course, the assessment of serious injury is to be made at the time the application is heard.[15]
[14]Op cit
[15]See s134AB(38)(j) of the Act
Resolution of the issue
22 I should note that during the course of argument, Counsel for the plaintiff expressly disclaimed any argument that the “medical questions” were not “medical questions” within the meaning of s5(1) of the Act and furthermore, accepted that the plaintiff was notified of the defendant’s intention to make the request no later than fourteen days prior to the date for hearing. Furthermore, it was not suggested that there was any other issue other than the operation of s45(1D) which should prevent such questions being referred to the Medical Panel.
23 I also make reference to the decision of Judge O’Neill in Amendola v United Doormakers (Vic) Pty Ltd (Ruling),[16] wherein he noted that the plaintiff in that matter had suffered three separate workplace incidents, and also had been involved in a motor vehicle accident, and issues would arise whether and to what extent other injuries play a role in that plaintiff’s present condition. Furthermore he notes, in many serious injury applications, the credibility of the plaintiff is a key issue and it is only after the plaintiff has been cross-examined that a judge is capable of determining whether or not to accept the allegations made by the plaintiff in his or her affidavit and in the histories to the various medical practitioners. He notes that it is only after the whole detailed process has been undertaken that an assessment can be properly made as to the nature and extent of the plaintiff’s medical condition, and his or her capacity for employment.
[16]Op cit
24 Leave was not granted to the defendant to appeal the decision of Judge O’Neill. In order for the grant of leave to appeal with respect to an interlocutory decision (as is the case here), such leave should not be granted unless the original decision was wrong, or at least attended with sufficient doubt to justify the grant of leave and in addition, where a substantial injustice would be done by leaving the decision unreversed. In particular, the Court of Appeal referred to X v Director of Public Prosecutions,[17] wherein Callaway JA stated, at page 626:
“… The critical point, and the ratio decidendi of Niemann’s case, is that the requirements are cumulative. Even if the decision below was wrong, it will be allowed to stand if there is no risk of substantial injustice. To take a different view would be to disregard the legislative policy of discouraging interlocutory appeals except where they are necessary in the interests of justice. … .”
[17][1995] 2 VR 622
25 As stressed by the Court of Appeal, the decision by his Honour Judge O’Neill turned on the facts of that matter and indeed, as stated by Priest JA:
“Further, I doubt that in future cases of this kind, judges of the County Court will consider themselves fettered by the ruling made by the judge in this case based on the facts peculiar to it.”[18]
[18]United Doormakers (Vic) Pty Ltd v Amendola (op cit)
26 I consider that consistent with the dicta from the Court of Appeal, that such decisions as Amendola, Kirby and indeed a ruling made by her Honour Judge Kings in Adones v Retirement Care Australia Operations (2) Pty Ltd,[19] all turn on the facts established therein.
[19][2013] VCC 171 (delivered 6 February 2013)
27 In the circumstances of this matter, and based on the material before me, I am not persuaded that s45(1D) has operation, as it does not appear to the Court that the formation of an opinion by the Medical Panel in relation to the medical questions sought to be answered by the defendant will depend “substantially on the resolution of factual issues” which are more appropriately determined by the Court than by a Medical Panel.
28 Indeed, it is not particularly clear what “factual issues” the Medical Panel will have to determine. I would have thought that in the circumstances of this case, the Medical Panel was essentially determining what is the medical condition, bearing in mind the Medical Panel opinion in November 2010. Similarly, it is substantially a medical issue as to whether or not someone is incapacitated for work. It needs to be stressed in the circumstances of this case, for the reasons I have already advanced, I consider that it is now established that as at 10 November 2010, the plaintiff was suffering a compensable condition as described therein and had a current work capacity. The issue becomes whether or not that situation has changed over the ensuing years.
29 There is no suggestion of credit issues and indeed, on the basis of the information which has been exchanged by those acting for the plaintiff, adds very little on a factual basis to that known by the Medical Panel in November 2010.
30 Having made such ruling, I make the following comments:
(a) Save perhaps in circumstances where the Medical Panel opines that the plaintiff no longer suffers from a mild, chronic soft-tissue injury of the cervical spine and or from a Mild Adjustment Disorder with Depressed Mood and Anxiety, which would give rise, in my view, to a definite determination of the proceeding against the plaintiff, other opinions may be of some advantage to the Court but not conclusive of any particular issue.
For example if the plaintiff is found to be continuing to suffer from a mild, chronic soft-tissue injury of the cervical spine, the answer to that question cannot determine the issue as to whether or not any organic consequences of that condition satisfy the narrative test. Similarly, an opinion that the worker does have a current work capacity does not determine the issue of whether or not the plaintiff satisfies the pecuniary loss provisions of s134AB of the Act. For example, it may be that the plaintiff has some current work capacity which may well be extremely limited – for example working 10 hours a week which would, subject to other provisions of the Act, satisfy the requirement that the plaintiff is incapable now or into the foreseeable future of earning more than 60 per cent of his or her “without injury earnings”.
(b) I am also conscious that this matter is fixed for hearing on 6 September 2013. Having made this ruling, I consider that such date be maintained and for the trial judge to direct how the matter should proceed on that day.
Conclusion
31 I grant the relief sought by the defendant and order that pursuant to s45(1)(b) of the Act, the following medical questions be referred to the Medical Panel for it to provide an opinion in accordance with s68 of the Act:
(a) What is the nature of the plaintiff’s medical condition/s relevant to:
(i) the alleged injury to the cervical spine; and
(ii) the alleged psychiatric/psychological injury referred to in paragraph 3 of the Statement of Claim?
(b) To what extent do the physical and medical conditions as found in Question (a) result from or materially contribute to:
(i) the alleged injury to the cervical spine; and
(ii) the alleged psychiatric/psychological injury referred to in paragraph 3 of the Statement of Claim?
(c) to what extent do the physical and mental conditions as found in Question (b) incapacitate the worker for suitable employment?
(d) If, the physical or mental conditions are found in Question (c) to incapacitate the plaintiff for work or suitable employment, is that incapacity for work or suitable employment:
(i) partial or total;
(ii) permanent?
32 I will hear the parties on the issue of costs.
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