Yianni v Victorian WorkCover Authority (Ruling)
[2016] VCC 348
•7 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04727
| ANDREW YIANNI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2016 | |
DATE OF RULING: | 7 April 2016 | |
CASE MAY BE CITED AS: | Yianni v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 348 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Application pursuant to s274(1)(b) of Workplace Injury Rehabilitation and Compensation Act 2013 for “medical questions” to be referred to a Medical Panel – relevance of questions – whether questions constitute “medical questions” as defined – whether questions depend substantially upon factual issues more appropriately determined by the Court than by a Medical Panel
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985
Cases Cited: Isuzu General Motors Australia Ltd & Anor v Jordan (2000) 2 VR 212; Isikli v Surville Pty Ltd & Anor [2004] VSC 236; Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; United Doormakers (Vic) Pty Ltd v Amendola (unreported, VSCA, S APCI 2012 0162, 16 November 2012); MacDonald v Royal District Nursing Service (Ruling) [2013] VCC 413; Yealand v Traveller Caravans Pty Ltd (Ruling) [2013] VCC 1048; Dransfield v G A Gathercoles Pty Ltd (Ruling) [2014) VCC 151; Law v Leftrade Limited & Anor (Ruling) [2015] VCC 1326; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Briggs v Victorian WorkCover Authority (Ruling) [2016] VCC 204
Ruling: Questions 1 and 2 be referred to a Medical Panel. The defendant’s application to refer the other questions is refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J F Goldberg | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr B R McKenzie | IDP Lawyers Pty Ltd |
HIS HONOUR:
Preliminary
1 This is an application by the defendant for referral of certain questions, said to be “medical questions” to a Medical Panel, pursuant to the provisions of s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
2 The questions are as follows:
“1.What is the nature of the Plaintiff’s medical condition relevant to the alleged:
(a)the right knee injury; or
(b)psychiatric condition?
2.Is any medical condition of the Plaintiff’s:
(a)the right knee injury; or
(b)psychiatric condition –
permanent?
3.Is the Plaintiff incapacitated for work as an aviation re-fueller?
4.If any incapacity is identified in response to question 3, above:
(a)Does such incapacity continue to result from, or be materially contributed to, by any, and if so what, injury referred to in question 1 hereof?
(b)Is such incapacity likely to be permanent?
5.Referring to the vocational assessment report of Ayres Management Services dated 14 October 2013, is the Plaintiff capable of performing suitable employment (and if so for how many days and hours per week) as a:
(a)Sales representative (building and plumbing supplies);
(b)Sales assistant;
(c)Despatching and receiving clerk;
(d)Project builder (building supervisor);
(e)Inquiry (sic) /customer service clerk/information desk clerk;
(f)Light process worker;
(g)Machine operator;
(h)Product assembler; or
(i)Hand packer?
6.If any incapacity is identified in response to question 5(a) to (i) above:
(a)Does such incapacity continue to result from, or be materially contributed to, by any, and if so what, injury referred to in question 1 hereof?
(b)Is such incapacity likely to be permanent?
7.Referring to the vocational assessment report of Recovre dated 11 March 2016, is the Plaintiff capable of performing suitable employment (and if so for how many days and hours per week) as a:
(a)Packer;
(b)Despatch clerk;
(c)Rental salesperson; or
(d)Forklift driver?
8.If any incapacity is identified in response to question 7(a) to (d) above:
(a)Does such incapacity continue to result from, or be materially contributed to, by any, and if so what, injury referred to in question 1 hereof?
(b)Is such incapacity likely to be permanent?
9.Does the Plaintiff have ‘no current work capacity’ within the meaning of the Accident Compensation Act 1985 (‘the Act’)?
10.If ‘yes’ to question 9:
(a)Does such incapacity continue to result from, or be materially contributed to, by any, and if so what, injury referred to in question 1 hereof?
(b)Is such incapacity likely to be permanent?”
3 Section 274 of the WIRC Act relevantly provides:
“Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a)may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b) if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
…
(3) If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4) A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
(5) A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
Relevant background
4 The proceeding is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the AC Act”) for leave to bring common law proceedings.
5 Mr Yianni was born in 1969 and is currently forty-six years of age. He was educated to Year 12, and completed a four-year apprenticeship as a construction carpenter-joiner. He worked as a carpenter for about seven years. He undertook and completed a security course and worked as a security officer at a hotel for about ten years. He commenced work for Cootes Transport Pty Ltd (“Cootes”) in May 2005 as an aviation re-fueller on a full-time basis.
6 On 9 August 2011, Mr Yianni tripped while walking on the footpath at the Cootes’ premises and injured his right knee. I was informed by Mr McKenzie, counsel for the defendant, that there is no issue, firstly, that Mr Yianni suffered an injury to the anterior cruciate ligament (“ACL”) of that knee and, secondly, there is no issue as to the causative relationship between the incident and Mr Yianni’s present right knee condition.
7 Mr Yianni made a claim for compensation by way of Claim Form dated 15 August 2011. The claim was accepted. A lump sum benefit under the AC Act was paid.
8 On 26 September 2011, Mr Andrew McQueen, orthopaedic surgeon, performed surgery, being an ACL reconstruction and medial meniscectomy.
9 In May 2012, another orthopaedic surgeon, Mr Stephen Doig, performed further surgery, being removal of a LARS ligament and bone patellar reconstruction.
10 In May 2013, Mr Yianni underwent an arthroscopic examination of the knee, again by Mr Doig.
11 Mr Yianni’s employment was terminated in March 2014. He worked for a short period as a shop assistant over a few days in May 2015, but has not otherwise returned to work.
12 As a result of the physical injury, it is alleged Mr Yianni has suffered a psychiatric reaction in the nature of an Adjustment Disorder. The application for leave is thus in respect of both ss(a) and ss(c) of the definition of “serious injury” as set forth in s134AB(37) of the AC Act. Leave is sought in respect of both pain and suffering and loss of earning capacity.
13 Apparently, according to some administrative oversight, the proceeding has not yet received a trial date. The parties agree I should list the matter for trial, which I shall do when this Ruling is handed down. It is unlikely that the matter will be listed for trial within the next twelve months.
Authorities
14 In Isuzu General Motors Australia Ltd & Anor v Jordan,[1] Phillips JA made the following observations in determining whether certain questions ought to be referred to a Medical Panel:
“So far as concerns the criteria adopted by Hedigan J in Greeves, it is unnecessary, I think, to consider the residual possibility of abuse. Perhaps the possibility is real but it may be left until it arises (if ever it does), for the other criteria are of more immediate interest. I agree with his Honour that a question must be referred to a medical panel under s45(1)(b) (that is upon application by a party) if it is a ‘medical question’ as defined in s5 of the Act and if it is relevant to the litigation then before the Court. In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the Court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the Courts, but nevertheless it is the Court which, in the end, must adopt and apply the opinion in the determination of the litigation before it.”
[1](2000) 2 VR 212 at paragraph [13]
15 Further, Osborne J (as his Honour then was) in Isikli v Surville Pty Ltd & Anor,[2] said:
“In order to establish that the question was relevant it was not necessary for the plaintiff to establish it would necessarily determine the case. It was sufficient in the words of Phillips JA in Isuzu to show that the opinion sought ‘will be, or might be, capable of assisting the Court in resolving the dispute before it’. Question 2 met this test and could not be regarded as irrelevant in the sense which would enable it to be characterised as an abuse of process.”
[2][2004] VSC 236 at paragraph [24]
16 In Giankos v SPC Ardmona Operations Limited,[3] the Court of Appeal, in considering an appeal against orders refusing leave to bring common law proceedings, commented upon the admissibility of certain expert evidence. It cautioned against a medical expert offering an opinion outside his or her particular field of expertise.[4]
[3][2011] VSCA 121
[4]Giankos at paragraphs [96] – [97]
17 I was further taken to, and have considered, rulings of judges of this Court on the issue of the referral of questions to a Medical Panel. These include:
· Amendola v United Doormakers (Vic) Pty Ltd (Ruling)[5]
[5][2012] VCC 1038, Judge O’Neill – see further United Doormakers (Vic) Pty Ltd v Amendola (unreported VSCA, S APCI 2012 0162, 16 November 2012)
· MacDonald v Royal District Nursing Service (Ruling)[6]
[6][2013] VCC 413, Judge O’Neill
· Yealand v Traveller Caravans Pty Ltd (Ruling)[7]
[7][2013] VCC 1048, Judge Parrish
· Dransfield v G A Gathercoles Pty Ltd (Ruling)[8]
· Law v Leftrade Limited & Anor (Ruling).[9]
[8][2014) VCC 151, Judge Brookes
[9][2015] VCC 1326, Judge K L Bourke
18 In Dransfield, his Honour Judge Brookes commented upon vocational assessments where a worker was said to be fit for a range of suitable employment. He said there were many issues contained in such reports which raised questions of fact which were better resolved in the court process, where there is the capacity to cross-examine medical and vocational experts.[10]
[10]At paragraph [36]
19 In Wingfoot Australia Partners Pty Ltd v Kocak,[11] the High Court explained the function of the Medical Panel:
“… The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”[12]
[11](2013) 252 CLR 480
[12]At paragraph [47]
20 In United Doormakers (Vic) Pty Ltd v Amendola,[13] the Court of Appeal said:
“… To my mind, it was open to the judge to determine that the formation of an opinion by the Medical Panel as to the medical questions (which concern the existence and extent of the respondent’s injuries, and his capacity for gainful employment) would depend substantially on the resolution of factual issues, and that those factual issues were more appropriate for determination by a court. It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting – something which is not available to a Medical Panel. … .”[14]
[13](supra)
[14]At paragraph [20]
21 However, the Court emphasised that each matter must be determined upon its own facts.
Submissions on behalf of Mr Yianni
22 Mr Goldberg, in relation to Questions 1 and 2, said there was no issue as to the injury suffered to Mr Yianni’s right knee, nor its causative relationship to the incident. Further, the medical evidence was clear that he had suffered a depressive reaction in the nature of an Adjustment Disorder. It was therefore unnecessary and irrelevant for the Medical Panel to determine the nature of his medical condition. Further, as there was no trial date yet fixed, there was a paucity of medical evidence in both the plaintiff and the defendant’s camps as to the nature of his current medical condition and whether or not it was permanent. He said the Medical Panel would be “working in a vacuum” without up-to-date comprehensive medical reports from both treating and consultant practitioners. If Questions 1 and 2 were to be put to the Medical Panel, which he did not concede ought to occur, they ought to be put at some time prior to trial when the medical assessments were complete.
23 In relation to Questions 3, 4, 5, 6, 7 and 8, Mr Goldberg said that the various areas of suitable employment identified in those questions arose out of two vocational assessments of Ayres Management Services Pty Ltd of October 2013 (“the Ayres’ report) and a report of Recovre dated 11 March 2016 (“the Recovre’ report”). He said each report was flawed, as:
(i) Neither author had the medical expert qualifications to form a view as to Mr Yianni’s work capacity for any of the areas of employment suggested;
(ii) Each report relied upon a flawed and insufficient history;
(iii) The Ayres’ report relied only upon a medical assessment of Dr Barton of July 2013 in relation to physical injury and a medical report of Dr Athey, psychiatrist, of July 2013, together with a letter from Dr Lewis, a treating psychiatrist. Again, there was insufficient medical material provided for there to be any proper basis for an opinion to be formed as to the work capacity;
(iv) The Recovre’ report relied upon the assessments made in the Ayres’ report, and further, the author did not interview Mr Yianni;
(v) The Ayres’ report provided a range of physical restrictions in any employment Mr Yianni would undertake, including that the employment needed to be sedentary or light, involved lifting of no more than 5 to 10 kilograms, with the ability to change posture as required, and with limitations on walking for long periods, squatting or kneeling. He said nowhere in either report was there details of the particular tasks involved in the various jobs suggested, such as would comply with these physical restrictions;
(vi) A number of the jobs required Mr Yianni to be retrained, in particular as to computer skills. Again, there was no assessment of the extent to which the various jobs required computer skills, nor whether Mr Yianni would be able to complete retraining in that area.
24 Again, Mr Goldberg submitted that any assessment by a Medical Panel as to Mr Yianni’s suitability for the various jobs would be undertaken “in a vacuum”. There would need to be a comprehensive assessment of the tasks involved in the various positions suggested, and opinions of treating and consulting practitioners on the issue. In all these circumstances, the question of the suitability of Mr Yianni for any of the positions would be better undertaken by a court having available all relevant and up-to-date medical material. Mr Goldberg said there was little up-to-date medical material at the present time to found a proper assessment.
25 Further, Mr Goldberg said because the insurer had accepted liability for a lump sum assessment under the AC Act based at least in part upon Mr Yianni’s work capacity, it would be argued that acceptance was an admission within the principles established by Ansett Australia Ltd & Anor v Taylor.[15] That was not a matter for a Medical Panel to take into account. It would be necessary for a court to determine whether any admission was established.
[15][2006] VSCA 171
26 In relation to Questions 9 and 10, Mr Goldberg said it was irrelevant as to whether Mr Yianni had “no current work capacity”. It would be necessary for a court to determine whether Mr Yianni had suffered a loss of earning capacity of 40 per cent or more, in order to determine whether he met the statutory test.
27 Mr Goldberg further submitted that Questions 5, 6, 7 and 8 fell outside the definition of “medical question” contained in s3 of the WIRC Act.
Submissions on behalf of the Victorian WorkCover Authority
28 Mr McKenzie submitted that all of the questions were appropriate and fell within the definition of “medical question” contained in the WIRC Act.
29 In relation to Questions 1 and 2, Mr McKenzie accepted that there was no issue that Mr Yianni had suffered an ACL injury in the workplace incident, nor that there was a causative relationship between that injury and his current presentation. He said it was not a question of what “label” was applied to the injury, but rather as to the nature of Mr Yianni’s “medical condition” at the present time, and whether that condition was permanent. He said there were medical reports available which could be relied upon by a Medical Panel, including reports of the treating surgeon, Mr Doig, of August 2013 and of the general practitioner of January 2014. He said it was a matter for the defendant as to the timing of the referral to a Medical Panel, and particularly emphasised that if the application was made closer to a fixed trial date, there was the risk of a trial date being vacated to accommodate the time needed for a Medical Panel assessment. He referred to various authorities of this Court which stood for the proposition that if a Medical Panel assessment caused the loss of a trial date, then a referral could be refused on the grounds that it was an abuse of process.[16]
[16]See Briggs v Victorian WorkCover Authority (Ruling) [2016] VCC 204 and the authorities referred to therein.
30 In relation to Questions 3 to 8, Mr McKenzie referred to Isikli[17] where it was sufficient to show that a Medical Panel opinion “will be, or might be, capable of assisting the court in resolving the issue before it”.[18] He referred to Giankos,[19] where it was said that there was an evidentiary onus upon a defendant to adduce sufficient evidence to show there was a real possibility of the availability of employment.
[17]Isikli v Surville Pty Ltd & Anor (supra)
[18]Isikli at paragraph [24]
[19]Giankos v SPC Ardmona Operations Limited (supra) at paragraph [115]
31 Mr McKenzie said that Medical Panels regularly retained occupational physicians with expertise as to capacity for employment and it was entirely appropriate for a Medical Panel to make such an assessment, given such expertise.
32 Further, he said that each of the authors of the reports had sufficient expertise to make recommendations as to the areas of alternative employment. In particular, Ms Ash, the author of the Recovre’ report, was an occupational therapist with scientific qualifications. Mr Maguire, the author of the Ayres’ report, was an experienced vocational consultant. He said it was necessary only for the defendant to show there were various areas of alternative employment be raised for consideration by the Medical Panel and it was not to the point either as to the qualifications of the authors of the reports, nor whether there was other medical evidence. An expert Medical Panel had the ability to determine Mr Yianni’s employment capacity.
33 In relation to Questions 9 and 10, while saying the questions were relevant, Mr McKenzie did not press those questions being referred to the Medical Panel, and accepted the possibility that they would not be relevant for the determination of work capacity.
Questions 1 and 2
34 In my view, Questions 1 and 2 are appropriate questions for referral to a Medical Panel. There is no doubt there are less medical opinions available at the present time than will be available when the serious injury application is finally determined, but that is not, of itself, sufficient to refuse the referral. A Medical Panel comprises a number of doctors with expertise in the area of the physical, alternatively psychiatric, injury. They are obliged, as a matter of natural justice, to consider those medical opinions which are placed before it, but are able to make their own determination, based on their particular expertise, as to the nature of a worker’s medical condition. The phrase “medical condition” is not defined in the WIRC Act and it is a somewhat inexact and vague phrase but in my experience, a worker’s “medical condition” is a question regularly answered by a Medical Panel and includes not only the medical label or diagnosis, but the nature and extent of the effect of that injury upon a worker.
35 I accept Mr McKenzie’s submission that the defendant is in a difficult position. If it leaves the referral to a Medical Panel to a date closer to trial, there is the risk that the Medical Panel process will take such a time as to jeopardise the trial date. In reality, all the medical material is not available until a month or two before the trial date. To bring an application to refer a matter to a Medical Panel at that point in time would run the risk of refusal as an abuse of process.
Questions 3, 4, 5, 6, 7 and 8
36 All of these questions in effect deal with Mr Yianni’s capacity, on either a full-time or part-time basis, to undertake a range of employment as suggested by the Ayres and Recovre’ reports. In my view, the facts underlying the determination of Mr Yianni’s capacity for those areas of employment depend substantially on the resolution of factual issues more appropriately determined by the Court.
37 It may be, as Mr Goldberg points out, the authors of the vocational reports do not have the expertise to say whether or not Mr Yianni has the capacity for the areas of employment involved. The admissibility of those opinions will be a matter to be determined by the trial judge. The fact that neither author may have sufficient expertise to offer the opinion, does not mean that the potential for Mr Yianni to perform those jobs cannot be raised.
38 However, it is necessary to assess the facts which underpin a determination of a worker’s work capacity following an injury. Undoubtedly one important area is medical opinion to determine the nature and extent of an injury, and the capacity of a worker to perform various employment tasks. But that is not the end of the matter. In applications of this nature, the starting point is the credibility of the plaintiff. In his affidavit material, a plaintiff will usually set forth the pain and restriction suffered as a result of a workplace injury and the effect upon his capacity to undertake a range of domestic, recreational, social and work-related activities. His or her credibility is very much the subject of challenge by defendant’s counsel in cross-examination using a variety of tools, including inconsistent histories, prior statements and video surveillance. The determination of a plaintiff’s credibility is far better undertaken in the court adversarial process.
39 Further, as Mr Goldberg points out, it is unclear at the present time the tasks involved in the various areas of employment said to be suitable. Without particular expertise and knowledge of those tasks, the Medical Panel may have difficulty answering such questions. As it is common practice for counsel both for the plaintiff and defendant to adduce evidence as to the capacity of the plaintiff to perform particular tasks, again, such questions are more appropriately resolved by a Court.
40 While the entitlement to cross-examine medical specialists is now a matter of leave,[20] it is still not uncommon for doctors’ opinions to be challenged, again on the basis of the accuracy of the history provided, and in respect of video surveillance.
[20]See Common Law Practice Note PNCLD1 - 2016
41 Further, there are various aspects of the areas of employment said to be suitable which are unclear, including the extent to which Mr Yianni would have to be retrained, particularly to improve his computer skills, and possibly in other areas.
42 Further, if the acceptance of a claim for payment of an entitlement under the AC Act is said to be an admission as to work capacity that will have to be decided by a court.
43 In summary, while medical opinion is an important aspect of assessment of work capacity for various areas of employment, there are other areas, including as to a worker’s credibility, capacity for retraining and exploration, and challenge as to ability to carry out various tasks in employment, which underlie a determination as to work capacity. In my view, those matters are substantial, and are better determined by a court.
Questions 9 and 10
44 In my view, Questions 9 and 10 should not be referred to a Medical Panel. Again, Mr Yianni’s work capacity is a matter better determined by a court. Further, the question for determination at the serious injury application is whether Mr Yianni’s work capacity, measured by loss of earnings, is reduced by 40 per cent. It is not to the point as to whether he has “no current work capacity”.
Conclusion
45 It is appropriate Questions 1 and 2 be referred to a Medical Panel. The defendant’s application to refer the other questions is refused.
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