VICTORIAN WORKCOVER AUTHORITY (and others according to the schedule)
First Defendant
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JUDGE:
Croucher J
WHERE HELD:
Melbourne
DATE OF HEARING:
19 November 2021
DATE OF JUDGMENT:
19 August 2022
CASE MAY BE CITED AS:
Zapparoni v VWA
MEDIUM NEUTRAL CITATION:
[2022] VSC 463
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JUDICIAL REVIEW — Decision of medical panel — Where plaintiff seriously injured in workplace accident in 2008 — Where, after return to work on restricted hours and duties, in 2011, employer terminated plaintiff’s employment — Where claim for compensation accepted — Where weekly payments of compensation commenced — Where, in 2014, a medical panel opined plaintiff had no current work capacity, likely to continue indefinitely — Where, in 2018, VWA terminated weekly payments on basis of claimed “current work capacity” — Where, in 2020, Magistrates’ Court referred medical questions to second medical panel — Where medical panel opined that plaintiff had “current work capacity” because “picking team leader” constituted “suitable employment” — Whether panel failed to have regard to relevant considerations — Whether issues received real and genuine consideration — Whether reasons adequate — Whether opinion unreasonable or irrational — Whether no evidence for opinion — Application granted — Decision quashed — Matter remitted to third medical panel for redetermination — Accident Compensation Act 1985 (Vic), s 5.
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Appearances:
Counsel
Solicitors
For the Plaintiff
Mr A G Uren QC with Mr E Makowski
Ryan Carlisle Thomas
For the First Defendant
Mr M F Fleming QC with Ms F C Spencer
Wisewould Mahony
For the Second to Fifth Defendants
Submitting appearance
Victorian Government Solicitor
HIS HONOUR:
OVERVIEW
In Death of a Salesman, a discomposed Willy Loman plaintively exclaims, “You can’t eat the orange and throw the peel away — a man is not a piece of fruit!” A lot of ink has been spilled about these words since the great American playwright Arthur Miller wrote them in the 1940s. But they strike me as an apt metaphor in this case.
On 20 February 2008, Gillian Zapparoni, then aged 48, was seriously injured while working as a machine operator/supervisor at the biscuit factory in which she had been employed for the past eleven years. She was on her hands and knees cleaning the overflow from a machine when a heavy crusher toppled over and landed on her lower back and right leg. She suffered fractures to her spine and her right foot.
Somewhat heroically, it might be thought, after only three months of recuperation, Ms Zapparoni returned to work on restricted hours and duties. Later, her job was varied to that of a “packer”. However, as her duties resulted in worsening pain in her lower back and right foot, she increasingly required time off work. In May 2011, Ms Zapparoni was told that her employer no longer had a job for her. Her position was terminated. She…
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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AGLC
Zapparoni v VWA [2022] VSC 463
Case
[2022] VSC 463
Decision Date
CaseChat Overview and Summary
The case of Zapparoni v VWA arose from a dispute between the plaintiff, who was injured in a workplace accident in 2008, and the defendant, VWA, over the termination of his employment and the cessation of weekly compensation payments. After a period of returning to work on restricted hours and duties, the plaintiff’s employment was terminated in 2011. However, a claim for compensation was accepted, and weekly payments commenced. In 2014, a medical panel opined that the plaintiff had no current work capacity, a situation likely to continue indefinitely. In 2018, the defendant terminated the weekly payments on the basis that the plaintiff had "current work capacity". This decision was challenged by the plaintiff, who sought judicial review.
The central legal issues in this case were whether the medical panel had failed to consider relevant factors, whether the issues received genuine consideration, whether the reasons provided were adequate, whether the panel's opinion was unreasonable or irrational, and whether there was evidence to support the opinion. The plaintiff argued that the panel’s decision to terminate weekly payments based on the availability of "suitable employment" as a picking team leader was flawed because it did not take into account the plaintiff’s physical limitations and other relevant considerations.
The court found that the medical panel had indeed failed to consider all relevant factors in reaching its opinion. It was held that the panel did not give real and genuine consideration to the plaintiff's physical limitations and the nature of the proposed employment. The reasons provided by the panel were deemed inadequate, as they did not sufficiently address the plaintiff's specific circumstances and the impact of his injuries on his ability to perform the duties of a picking team leader. The court concluded that the panel's opinion was unreasonable and irrational, given the evidence presented. The court quashed the decision of the medical panel and remitted the matter to a third medical panel for redetermination, in accordance with section 5 of the Accident Compensation Act 1985 (Vic).
The final orders of the court were that the decision of the medical panel was quashed, and the matter was remitted to a third medical panel for redetermination in light of the court’s findings. The plaintiff’s application for judicial review was granted, and the decision was set aside on the basis that it was unreasonable and irrational. The court emphasized the importance of ensuring that all relevant considerations are taken into account when determining an individual’s work capacity in the context of workplace injury compensation.