Yildirim v A&L Windows Pty Ltd - [2021] VSC 139

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00437

SERKAN YILDIRIM	Plaintiff
v
A&L WINDOWS PTY LTD	First Defendant
DR JOHN KING	Second Defendant
DR JULIAN FREIDIN	Third Defendant
CONVENOR OF MEDICAL PANELS	Fourth Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2020
DATE OF JUDGMENT:	25 March 2021
CASE MAY BE CITED AS:	Yildirim v A&L Windows Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 139	(First Revision 26 March 2021)

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Section 3 of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) – Whether Medical Panel erred in making finding of ‘no current work capacity ‘– Whether ‘no current work capacity’ includes psychological capacity to seek work – Whether ‘no current work capacity’ involves the worker’s capacity ‘for’ work, not capacity ‘to’ work – Failure to take into account a relevant consideration – Adequacy of reasons – Appeal allowed – Richter v Driscoll (2016) 51 VR 95 applied – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Uren QC with Ms Smietanka	Zaparas Lawyers
For the Defendant	Mr Gorton QC Mr Kumar	Lander & Rogers Lawyers (for the First Defendant)
For the Second to Fourth Defendants	DLA Piper Australia

HER HONOUR:

Introduction

The plaintiff, Mr Serkan Yildirim commenced employment as a sash maker in 2013 with the first defendant, A&L Windows Pty Ltd. He ceased his pre-injury duties on 5 December 2016, after which he undertook light duties for about 11 months.

In his WorkCover claim made 19 December 2016, the plaintiff alleged psychiatric injury sustained through the course of his employment suffered due to the mental and physical nature of the job including a heavy workload, a pressurised work environment, heavy work demands and expectations and a negative work environment (the WorkCover claim).

The insurer accepted the WorkCover claim and the plaintiff received weekly payments pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act) between 5 December 2016 and 1 June 2019. The insurer terminated the plaintiff’s entitlement to weekly payments effective from 1 June 2019 on the basis that he had a current work capacity or alternatively, he did not have a current work capacity but it was not likely to continue indefinitely (the Decision).

The plaintiff disputed the Decision and on or about 29 May 2019 he referred the Decision to the Accident Compensation Conciliation Service (ACCS) for conciliation. On 10 September 2019, the ACCS referred two medical questions to a Medical Panel pursuant to s 284 of the Act.

A Medical Panel, comprised of the second and third defendants, was convened to determine the two referred medical questions. They conducted an examination of the plaintiff on 27 November 2019 and on 4 December 2019 delivered their opinion on the referred medical…

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: [2021] VSC 139
Decision Date: 25 March 2021

CaseChat Overview and Summary

The case of Yildirim v A&L Windows Pty Ltd involved the applicant, Yildirim, who sought judicial review of a decision made by a Medical Panel under Section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The dispute centred on whether the Medical Panel correctly assessed the applicant's current work capacity, specifically whether the term ‘no current work capacity’ included psychological capacity to seek work, and whether it pertained to the applicant's capacity ‘for’ work rather than capacity ‘to’ work. The court was tasked with determining whether the panel had erred in their assessment and whether they had failed to consider relevant factors.

The legal issues before the court were primarily whether the Medical Panel's interpretation of ‘no current work capacity’ was legally sound, and if the panel had considered all relevant aspects of the applicant's condition. Additionally, the court examined whether the panel's reasons for their decision were adequate. The applicant argued that the panel had misunderstood the scope of ‘no current work capacity’ and had failed to take into account certain psychological factors that should have been considered. The respondent, A&L Windows Pty Ltd, maintained that the panel's decision was correct and adequately reasoned.

In its reasoning, the court found that the Medical Panel had indeed erred in their interpretation of ‘no current work capacity’. The panel had not sufficiently considered the psychological dimensions of the applicant's condition, nor had they distinguished between capacity ‘for’ work and capacity ‘to’ work. The court relied on Richter v Driscoll and Wingfoot Australia Partners Pty Ltd v Kocak to establish that the panel's failure to take into account relevant considerations and provide adequate reasons amounted to a reviewable error. Consequently, the court allowed the appeal and quashed the panel's decision, holding that the applicant’s work capacity should be reassessed with a proper understanding of the term ‘no current work capacity’ and with full consideration of all relevant factors.

The final orders of the court were that the decision of the Medical Panel be quashed, and the matter be remitted back to the panel for reassessment in accordance with the court's findings. The court emphasized the importance of correctly interpreting statutory terms and ensuring that all relevant considerations are taken into account when making such assessments.

Orders