Yum v Owczarek - [2022] VSC 262

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01189

SHAWN SOOHYN YUM	Plaintiff
v
DR JACK OWCZAREK	First Defendant
ASSOCIATE PROFESSOR MICHAEL MURPHY	Second Defendant
MR ROBERT PIANTA	Third Defendant
TOSAMI PTY LTD	Fourth Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2022
DATE OF JUDGMENT:	26 May 2022
DATE R-ISSUED:	3 June 2022
CASE MAY BE CITED AS:	Yum v Owczarek & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 262

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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Plaintiff’s medical condition and whether proposed surgery ‘appropriate’ – Whether medical panel opinion affected by jurisdictional error and/or legally unreasonable – Whether consideration given to and ‘engagement with’ radiology including ‘screenshot’ of MRI images – Dordev v Cowan [2006] VSCA 254 and Sidiqi v Kotsios [2021] VSCA 187 considered – Whether medical panel failed to afford procedural fairness – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	PA Czarnota with L Burke	Shine Lawyers
For the Fourth Defendant	CM Harris QC with FL Batten	IDP Lawyers

HIS HONOUR:

A Background

On 17 October 2019, in the course of his employment, the plaintiff slipped and fell while climbing down from a forklift. He was treated at the Alfred Hospital and underwent investigations including a CT brain and cervical spine dated 17 October 2019 and MRI cervical spine dated 18 October 2019.[1] Among other things, the latter recorded –

There are multilevel bilateral neural exit foraminal stenoses secondary to a combination of uncovertebral and facet joint arthropathy. Of note, there are severe left C5-6, bilateral C6-7 and bilateral C7-T1 foraminal stenoses.

[1]Amended Court Book ‘ACB’ CB71-72.

In neither report did the radiologist express the opinion that there was any compression of the nerve roots.

The plaintiff subsequently lodged a form claiming worker’s compensation that identified the following injuries –

Big Pain, can’t rotate (turn) my neck properly.
Neck, Shoulder, Back and Numbness on my left hand’s thumb, index and middle finger.[2]

[2]ACB21.

The claim was accepted.

On 1 April 2020, Mr Yagnesh Vellore, neurosurgeon, wrote to the claims agent seeking approval to conduct neck surgery in the nature of anterior cervical discectomy and three level fusion with intersegmental fixation. Among other things, he identified the presentation as ‘severe left-sided radiculopathy’ and, in respect of management, stated –

I saw Shawn today. We had a Skype consult today in light of the coronavirus situation. He is a 61-year-old gentleman who had a fall off a forklift in October 2019 injuring his neck and back. He was admitted to The Alfred Hospital and was cleared of any acute spinal trauma at that stage. He had progressive onset of pain and weakness in his neck and left arm thereafter which continued to worsen. He has not had any improvement. He also developed some weakness in his left leg, according to him. He does not have any sphincteric disturbance as such.
Review 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.

Continue reading Yum v Owczarek

Details

AGLC: Yum v Owczarek [2022] VSC 262
Case: [2022] VSC 262
Decision Date: 26 May 2022

CaseChat Overview and Summary

In this judicial review matter, Yum sought to challenge the decision of Owczarek, who was a part of a medical panel. The crux of the dispute was whether the medical panel's opinion that a proposed surgery was not appropriate was legally sound, specifically focusing on whether the panel's decision was influenced by a jurisdictional error or was legally unreasonable. Additionally, the case examined whether the medical panel had properly considered the radiology reports, including a'screenshot' of MRI images, and afforded procedural fairness to the plaintiff. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the medical panel's opinion was tainted by any jurisdictional error or was otherwise legally unreasonable, and whether the panel had failed to afford procedural fairness by not adequately considering the radiology evidence, including the MRI screenshot. The court was required to determine if the panel's failure to consider the radiology evidence amounted to a denial of procedural fairness and whether this impacted the legality of the panel's decision.

The court found that the medical panel's opinion was not affected by any jurisdictional error and was not legally unreasonable. It was held that the panel had indeed considered the radiology evidence, including the MRI screenshot, and had engaged with it appropriately. The court emphasised that the panel's decision was based on a comprehensive assessment of the available evidence and was not influenced by any failure to consider the radiology reports. The court further noted that the medical panel had afforded procedural fairness by considering all relevant evidence, including the MRI screenshot, in reaching its decision. Consequently, the proceeding was dismissed.

The court's decision was that the proceeding was dismissed, and no further orders were made. The court found that the medical panel's opinion was legally sound and that procedural fairness had been observed in the decision-making process. The plaintiff's challenge to the medical panel's decision was therefore unsuccessful.

Orders