Zlojic v Toyota Motor Corporation Australia Limited (Ruling)
[2016] VCC 1446
•31 August 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-00983
| AIDA ZLOJIC | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2016 | |
DATE OF RULING: | 31 August 2016 (Revised) | |
CASE MAY BE CITED AS: | Zlojic v Toyota Motor Corporation Australia Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1446 | |
RULING
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Subject:ACCIDENT COMPENSATION
Catchwords: Certificate of Opinion from Medical Panel, whether Opinion brings the proceeding to an end – relevance of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – relevance of Civil Procedure Act 2010 – how medical opinion is to be construed by the Court
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Lianos v Inner & Eastern Health Care Network (2001) 3 VR 136; Nelson v Arrium Ltd (formerly known as Onesteel Ltd) [2015] VSCA 488; Solak v Registrar of Titles & Ors (2011) 33 VR 40; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454
Ruling:Certain matters must be adopted and applied by the Court pursuant to s313(4) of the WIRC Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Mr D Seeman | Patrick Robinson & Co |
| For the Defendant | Mr D Churilov | Minter Ellison |
HIS HONOUR:
1 This Ruling concerns the legal effect of a Certificate of Opinion by a Medical Panel dated 25 February 2016 (“the Certificate of Opinion”).
Background
2 Aida Zlojic, who I shall refer to as “the plaintiff”, is a thirty-six‑year-old woman who was born in Bosnia, where she attended school up until sometime in Year 9.
3 She came to Australia in 1997 as a refugee and spent the first two years learning English, after which she worked in a hotel as a housekeeper for about two years.
4 She commenced employment with Toyota Motor Corporation Australia Limited, which I shall refer to as “the defendant”, in March 2003 in the capacity of a process worker, helping to build cars on an assembly line. Her hours of work were from 7.00am to 3.30pm, Monday to Friday, and particularly in the early years, she was given overtime from 3.30 to 5.00pm on weekdays and from 7.00am to 12.00pm on Saturdays. During the course of such employment, she alleges that she suffered the following injuries:
(a)In or about September 2004, she injured her right shoulder, wrist and hand at work. She submitted a WorkCover claim in relation to such injuries, which was accepted only in relation to the right shoulder;
(b)In or about April 2008, she suffered further pain in her right shoulder. She submitted a WorkCover claim for medical and like expenses, which was accepted;
(c)In or about 2009, her job was changed and she was given a job that involved inspecting finished cars at the end of the production line. She asserts that this work involved “frequent and repetitive bending”, and after about one year, she developed pain in her low back. She asserts that such claim was initially rejected by the defendant, and was then referred to the Medical Panel, and the claim was subsequently accepted.
5 The plaintiff ceased working for the defendant in or about February 2011 and was advised in April 2012 that her position had been made redundant. It is to be noted that also between the period from June 2006 to July 2007, she was off work on maternity leave, with a child being born in August 2006.
6 As I have already recorded, the defendant initially rejected the claim for the back injury. Ms Susan Martin, a conciliation officer, referred various questions to the Medical Panel pursuant to s56(6) of the Accident Compensation Act 1985 (“the Act”) following the rejection of such claim. I record the questions and answers making up the Certificate of Opinion dated 16 December 2010:
“Question 1: What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer: In the Panel’s opinion the worker is suffering from mechanical low back pain, relevant to the claimed injury.
Question 2: Was the worker’s employment in fact, or could it possibly have been, a significant contributing factor to the worker’s injury (including any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease)?
Answer: In the Panel’s opinion the worker’s employment could possibly have been and was in fact a significant contributing factor to the worker’s mechanical low back pain.
Question 3: What is the extent to which any medical condition (minor disc bulges at L2/3 and L5/S1) resulted from or was materially contributed to by the claimed injury?
Answer: In the Panel’s opinion the worker’s mechanical back pain is still materially contributed to by the claimed low back injury. The Panel is also of the opinion that the minor disc bulges at L2/3 and L5/S1 did not result from and were not materially contributed to by the claimed injury.”
7 On or about 21 October 2013, the plaintiff, through her solicitors, lodged a Form A Application, being the “serious injury” application approved by the Victorian WorkCover Authority under s134AB(5) of the Accident Compensation Act 1985. Such application specified the following injuries to be those relied on by the plaintiff:
· soft tissue injury to right shoulder, scapular area and right arm
· chronic pain in the right shoulder radiating down and into the right arm/elbow and hand
· myofascial pain in the right arm/scapular area radiating down and into the right arm/elbow and hand
· right rotator cuff impingement
· injury to the low back involving mechanical and degenerative low back pain
· anxiety and depression
· pain and suffering.
8 When queried in the Application as to what subparagraph or subparagraphs of the definition of “serious injury” contained in s134AB(37) of the Act, the plaintiff recorded:
(i) paragraph (a), “Permanent serious impairment or loss of a body function”
(ii) paragraph (c), “Permanent severe mental or permanent severe behavioural disturbance or disorder”.
9 When queried in the Application as to what body function or functions were impaired, the plaintiff recorded functions of the right shoulder/arm/hand/lower back and mind were impaired.
10 The Application also records that the plaintiff relies on consequences with respect to “pain and suffering” and “loss of earning capacity”.
11 Accompanying such application was a large number of medical and radiological reports, some taxation returns, a draft Statement of Claim and an affidavit sworn by the plaintiff on 1 October 2013.[1]
[1]The factual material recorded above up to the time of the issuing of the Form A Application comes from the affidavit sworn by the plaintiff on 1 October 2013
12 On or about 3 March 2014, the plaintiff, through her solicitor, issued an Originating Motion against the defendant, seeking leave from the Court to issue common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of her various injuries.
13 On or about 4 May 2015, the defendant’s solicitors advised the plaintiff’s solicitors that they sought to refer various medical questions to the Medical Panel. At that time, the Originating Motion had been fixed for hearing on 6 July 2015, but by consent was vacated, and thereafter there was a series of mentions culminating on 19 November 2015 when various questions posed by the defendant were referred by the Court to the Medical Panel for its opinion.
14 On 25 February 2016, the Medical Panel, as I have already recorded, delivered its Opinion. I set out the various medical questions and the answers thereto:
“Question 1 – What is the nature of the plaintiff’s current medical condition relevant to the alleged injuries referred to in the Draft Statement of Claim, namely:
(a)soft tissue injury to the right shoulder, scapular area and right arm;
(b)chronic pain in the right shoulder radiating down and into the right arm/elbow and hand;
(c)myofascial pain in the right shoulder/scapular area and radiating down into the right arm/elbow and hand;
(d)right rotator cuff impingement;
(e)injury to the low back involving mechanical and degenerative low back pain;
(f)anxiety and depression?
Answer: The Panel is of the opinion that the plaintiff is currently suffering from:
(a)no physical medical condition;
(b)no physical medical condition;
(c)no physical medical condition;
(d)no physical medical condition;
(e)mechanical lower back pain;
(f)a mild adjustment disorder with depressed mood.
Question 2 – Was the plaintiff’s employment with the defendant a contributing factor to any current injury/injuries identified in response to Question 1 above?
Answer: The Panel is of the opinion that the plaintiff’s employment with the defendant was a contributing factor to the mechanical low back pain and a mild adjustment disorder with depressed mood.
Question 3 – Does the plaintiff have:
(a)a current work capacity?
(b)no current work capacity?
Answer: In the Panel’s opinion:
(a)Yes
(b)No
Question 4 – If yes to Question 3(a) above, do any of the following jobs constitute suitable employment:
(a)Medical receptionist;
(b)Phlebotomist;
(c)Pharmacy sales assistant;
(d)Interpreter;
(e)Admissions clerk;
(f)Out of school hours childcare worker;
(g)Office administrator;
(h)Customer service representative (office based);
(i)Retail assistant (light retail only);
(j)Inbound call centre;
(k)The plaintiff’s pre-injury work?
Answer: In the Panel’s opinion:
(a)No
(b)No
(c)Yes
(d)No
(e)Yes
(f)Yes
(g)Yes
(h)Yes
(i)Yes
(j)Yes
(k)No.
Question 5 – If yes to any of Questions 4(a)–(k) above, for how many hours per week does the plaintiff have a capacity to do each of the jobs for which she has a current work capacity?
Answer: In the Panel’s opinion:
(a)Not applicable
(b)Not applicable
(c)15 hours per week
(d)Not applicable
(e)15 hours per week
(f)15 hours per week
(g)15 hours per week
(h)15 hours per week
(i)15 hours per week
(j)15 hours per week
(k)Not applicable.
Question 6 – If yes to Question 3(b) above:
(a)Does the plaintiff’s incapacity for work result from an injury of which her employment with the defendant is still a cause?
(b)Is the no work current permanent?
Answer: Not applicable.”
15 Neither the plaintiff nor the defendant sought to review such medical Opinion pursuant to Order 56 of the Supreme Court (General and Civil Procedure) Rules 2005 or, alternatively called the Administrative Law Act 1978.
Statutory framework
16 Both parties assumed that the operative Act was the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”). No real argument was advanced on this aspect as both parties considered that there was no material difference between the Medical Panel provisions in the WIRC Act compared to the Act. I consider the WIRC Act to be applicable.
17 Although s5(1)(a) of the WIRC Act provides that the WIRC Act applies to the entitlement of a worker to compensation arising under the WIRC Act in respect of compensable injury on or after 1 July 2014, s6(6)(b) of the WIRC Act applies to, and in respect of, any dispute arising under the WIRC Act in respect of a claim for compensation under that Act, or in relation to a claim for compensation under the Act, whether made before, on, or after, 1 July 2014.
18 In particular, s6(8)(b) of the WIRC Act states that for the purposes of ss(6) a dispute concerning a matter arises when –
“If the matter is a medical question, when the medical question is, or was, referred to a Medical Panel in accordance with section 304 of this Act or section 65(6A) of the Accident Compensation Act 1985 … .”
19 Section 627(3) of the WIRC Act repeals Parts II and III of the Accident Compensation Act 1958, which involves referral of medical questions. Part 6 of the WIRC Act is headed “Dispute resolution” and, in particular, contains ss274 – 277.
20 Section 274 of the WIRC Act states:
“(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 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.
(2)This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985—
(a)so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b) so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of medical question in section 3)—
to a Medical Panel for an opinion.
(3) …
(4) …
(5) … .”
21 Subsections 3, 4 and 5 of s274 of the WIRC Act, set out the circumstances where a court may refuse to refer a medical question to the Medical Panel.
22 Section 3 of the WIRC Act defines “medical question” to be one of a variety of questions as set out in paragraphs (a) – (o). In particular, paragraphs (n) and (o) seemingly are peculiar to serious injury applications. They state:
“(n) a question prescribed to be a medical question in respect of an application for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985;
(o) a question determined to be a medical question by a court hearing an application for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985.”[2]
[2]Workplace Injury Rehabilitation and Compensation Act 2013, s3
23 The Court is unaware as to whether any question has been “prescribed” to be a “medical question” pursuant to paragraph (n).
24 Division 3 of Part 6 of the WIRC Act is headed “Medical Panels”. That Division contains various sections involving the function of a Medical Panel (s302), the procedures and powers of a Medical Panel (s303), what is required when a medical question is referred (s304), when opinions on medical questions may not be given (s306), and various sections involving the examination by a Medical Panel of a worker and what a worker may be required to do so by the Panel (ss307, 308, 309, 310, 311 and 312).
25 Section 313 of the WIRC Act, headed “Opinions” provides that a Medical Panel to whom a medical question is so referred, must give a certificate as to its opinion and a written statement of reasons for that opinion (s313(2)). In particular, a Medical Panel, within seven days after forming its opinion on a medical question, must give such written opinion and written statement of reasons to the body which referred the question (s313(3)).
26 In particular, s313(4) of the WIRC Act 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—
(a) is to be adopted and applied by any court, body or person; and
(b)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.”
The legal effect of a Certificate of Opinion
27 The plaintiff submits that the effect of the Certificate of Opinion is to bring the serious injury application “to an end” in favour of the plaintiff. In particular, it is submitted on behalf of the plaintiff that:
(a)Pursuant to s313(4) of the WIRC Act, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by the Court;
(b)In the present circumstances, those acting for the plaintiff query what issues, if any, can the defendant now agitate after the receipt of the medical Opinion;
(c)Although acknowledging that a court must be satisfied that the plaintiff has a “serious injury” within the meaning of the relevant legislation, the plaintiff submits:
(i)The Court operates on the “presumption that all medical issues in dispute will be referred (in the absence of any indication to the contrary)”;
(ii)The opposing party – in this case, the plaintiff – in agreeing to the referral – as was the case here – presumes that all medical issues will be put to the Panel and, likewise, that all medical issues will be finally determined. It is submitted that such an approach to a referral in a serious injury context, is consistent with the overarching obligations set out in the Civil Procedure Act 2010 – to wit, to minimise delay (see s25 of the Civil Procedure Act 2010) and to narrow the issues in dispute (see s23 of the Civil Procedure Act 2010);
(iii)It is further submitted on behalf of the plaintiff that, in such circumstances, the defendant should not be permitted to agitate any medical issue that has already been referred to the Panel, and any medical issue that could and should have been referred, but was not. The plaintiff submits that to allow the defendant to pursue any such course would amount to a “second bite at the cherry”, constitute an abuse of process and “offend” the principle set out in Port of Melbourne Authority v Anshun,[3] wherein, at pages 597 – 598, the High Court stated:
“The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson,(143), 3 Hare, at 115; 67 ER at 319. The Vice-Chancellor expressed the principle in these terms: ‘Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’”
(iv)The plaintiff highlights that the defendant chose and drew the questions, set out the facts, or questions of facts relevant to the medical question, and, thus, “defined what the issues in dispute were”. The plaintiff notes that she did not challenge or alter the materials in this regard and thus there was either “an expressed, or implied agreement, as between the parties and the court, as to what the issues in dispute were”. The primary position of the plaintiff was essentially based on the principle enunciated in Port of Melbourne Authority v Anshun,[4] although, so it was submitted, the present circumstances may not be regarded as “subsequent litigation. It was submitted that it was “unreasonable” for the defendant to be permitted to rely on further medical issues when these could have been referred to the Medical Panel.
[3](1981) 147 CLR 589
[4](1981) 147 CLR 589
28 If I may divert slightly at this point, and note that both parties submitted that it would be inappropriate for the Court, in the present circumstances, to peruse the written reasons of the Medical Panel. Reference was made to the Court of Appeal decision of Lianos v Inner & Eastern Health Care Network[5] and a more recent decision of Nelson v Arrium Ltd (formerly known as Onesteel Ltd).[6]
[5](2001) 3 VR 136
[6][2015] VSC 488
29 I also point out that s271 of the WIRC Act provides for the admissibility of a certificate given by the Medical Panel which probably suggests that reasons continue to be inadmissible. It has been suggested in some authorities that there are some exceptions where the reasons of a Medical Panel may be admitted into evidence – for example, to disclose that the defendant had accepted the plaintiff suffered a compensable injury (as evidence of an admission against interest by the defendant)[7] and, also, in limited circumstances, to assist and explain the reasoning of any particular doctor.
[7]See Grech v Orica Pty Ltd & Anor (2006) 14 VR 602 at paragraph [41]
30 I raise this issue because both parties informed me that at the Medical Panel hearing, the plaintiff informed the Medical Panel that she had obtained employment working in an administration/data entry/customer service role seven weeks prior to attending the Medical Panel, with a company called Syscob Pty Ltd. Apparently the plaintiff also informed the Panel that she could only work five hours, three days a week because of her back pain. In submissions prepared by the plaintiff dated 1 July 2006 relevant to this Ruling, there is annexed thereto various payslips pertaining to the plaintiff and her employment with Syscob Pty Ltd.
31 I also refer to s271 of the WIRC Act, which states:
“Information given to a Medical Panel must not be used in any civil or criminal proceedings in any court or tribunal other than proceedings—
(a)under this Act or the Accident Compensation Act 1985 before a court or VCAT; or
(b)…
(c)… .”
32 It is not clear what this extends to as the word “information” is given no particular meaning in the WIRC Act. Arguably, the section may well extend to what the plaintiff informed the Medical Panel.
33 It is submitted on behalf of the plaintiff that, based on the foregoing submissions, it is not now open to the defendant to argue:
(a) That the plaintiff does not have a permanent impairment of her back;
(b)The present capacity for employment of the plaintiff (as represented by the fifteen hours) is anything other than permanent.
34 In so making such submission, counsel for the plaintiff made clear that it would not be open to the defendant to now ventilate issues as to:
(a)Whether the plaintiff will continue “permanently” to have a loss of earning capacity which will be productive of a loss of 40 per cent of more;[8] or
(b)Assert that the plaintiff would have had a greater earning capacity after rehabilitation or retraining.[9]
[8]See 134AB(38)(e)(ii) of the Act
[9]See 134AB(38)(g) of the Act
35 In such circumstances, so it is submitted, the plaintiff would then satisfy the loss of earning capacity requirements of s134AB of the Act and would be entitled, as a matter of statutory construction to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[10]
[10]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
36 When making his submissions to the Court, counsel for the defendant accepted that the plaintiff had a compensable lower back injury which gave rise to some permanent impairment.[11] Furthermore, counsel for the defendant also accepted that when the Medical Panel opined, in relation to current work capacity, such opinion was based on organic capacity resulting from the lower back injury rather than any involvement of psychological factors.[12] The latter concession was particularly relevant, bearing in mind the opinion of the Medical Panel that the plaintiff also suffered “a Mild Adjustment Disorder with Depressed Mood”. When queried in relation to current work capacity, the Opinion given by the Medical Panel does not make clear, from a bald reading of the answer, whether it involved organic and psychological consequences.
[11]T14, L21 - 24
[12]T20, L15-19
37 However, it was then submitted:
(a)Contrary to the plaintiff’s submissions, there is no “no presumption nor legislative requirement that all medical issues in dispute will or must be declared to a Medical Panel for determination” in a serious injury proceeding;
(b)There is no condition on a referral to a Medical Panel that all medical issues in dispute will be dealt by it unless the Medical Panel’s Opinion will result in the disposition of the entire proceeding;
(c)That the principles enunciated in Port of Melbourne Authorityv Anshun[13] only arises where there has been prior and subsequent litigation. Reference was made to Solak v Registrar of Titles & Ors,[14] wherein the Court of Appeal (Warren CJ, Neave JA and Hargrave AJA), stated:
“Authorities establish that a finding of Anshun estoppel should not be made lightly. ‘The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant’s right to have the merits of a claim adjudicated and may result in a serious injustice if applied too readily”;
(d)Counsel for the defendant highlighted that the question posed in Medical Question 6(b) was expressed as being linked to Question (b) which, in turn, enquired about the presence of “no current work capacity”;
(e)Counsel for the defendant noted that there was no medical question asking the Medical Panel as to whether any restriction in work hours which was found in respect of the identified suitable employment was “permanent” (meaning likely to last into the foreseeable future). He noted that, although the plaintiff criticised the defendant for not including such a medical question, it was open to the plaintiff to make changes to the referral documents, including the form and content of the medical questions;
(f)In particular, counsel for the defendant highlighted that it is for the plaintiff, who has the onus of proof in respect of her serious injury application before the Court, to establish in respect of the permanence of a requisite financial loss of 40 per cent of more after the date of the hearing (see s134AB(38)(e)(ii) of the Act). The Medical Panel found the worker to have a current work capacity, as at the date of its Opinion, to perform certain suitable employment options for fifteen hours per week which does not “foreclose the question or matter” before it as to whether such a restriction in hours per week is permanent.
[13](1981) 147 CLR 589
[14](2011) 33 VR 40
Conclusion
38 Initially, pursuant to s313(4) of the WIRC Act, I consider that the following matters must be adopted and applied by the Court and accepted as final and conclusive:
(a)The plaintiff is currently suffering from “mechanical lower back” pain and, indeed, based on the admission by counsel for the defendant, there is some permanent impairment of the lower back;
(b)The plaintiff is currently suffering from a “Mild Adjustment Disorder with Depressed Mood”;
(c)The plaintiff does have a “current work capacity” to work as a pharmacy sales assistant for fifteen hours per week; an admissions clerk for fifteen hours per week; an out-of-school-hours child care worker for fifteen hours per week; an office administrator for fifteen hours per week; a customer service representative (office based) for fifteen hours per week; a retail assistant (light retail only for fifteen hours per week) and an inbound call centre operator for fifteen hours per week.
39 It should also be noted that the Medical Panel also opined that, currently, the plaintiff has no physical or medical condition in relation to her right shoulder, right arm, right elbow and hand. Furthermore, the Medical Panel was also of the opinion that although the plaintiff had a current work capacity, the jobs of medical receptionist, phlebotomist and interpreter, did not constitute suitable employment. The Medical Panel also opined that the plaintiff had no current work capacity to perform her pre-injury work.
40 After considering the competing submissions, I largely accept the submissions made by the defendant as to the construction and application of the various provisions relating to Medical Panels in the WIRC Act.
41 It must be borne in mind that it is for the plaintiff to establish, as a matter of probability, that she has a “serious injury” within the meaning of the Act. I do not consider that the principles enunciated in Anshun have any application to such a proceeding as this for the following reasons:
(a)As pointed out by both counsel, the principles of Anshun have potential application where one party fails to bring forward their whole case in one proceeding and then, in a subsequent proceeding, seeks to rely on matters which could have been earlier dealt with in the first proceeding. That is not the situation here;
(b)In any event, it is for the plaintiff to discharge her onus in establishing the relevant aspects of her claim for “serious injury”. I do not accept that because, as in this case, a defendant did not raise issues about permanent loss of earning capacity, or the effect of retraining and rehabilitation et cetera, that that somehow translates to a satisfaction of the onus by the plaintiff.
Future conduct
42 I direct that the plaintiff file and serve a further affidavit which should have, at least, details of her present employment and what she considers her present or future capacity for employment to be (and any other matter considered to be relevant).
43 I do point out that if, indeed, there was ultimately a finding that the plaintiff could earn 60 per cent or more of her “without injury” earnings, the case would then have to be looked at as to whether or not the plaintiff could discharge her onus and satisfy the narrative test in relation to “pain and suffering consequences” in relation to her lower back injury.
44 I further direct that the plaintiff is at liberty to file any further medical material in relation to the outstanding issues.
45 I further direct that this matter be fixed for hearing before me on a date as soon as possible, allowing for the plaintiff to gather any further material.
46 For the purposes of avoiding any doubt, I direct that, at the further hearing of this matter, it would not be open for the defendant to lead evidence and challenge that the plaintiff has a compensable lower back injury, that such injury has given rise to some permanent impairment, and that she has a current work capacity of fifteen hours per week doing the type of activity described in the Medical Panel Opinion.
47 I do accept that the defendant may lead evidence from Dr Yong and cross-examine the plaintiff in relation to:
(a)That after the date of the decision of the Court, the plaintiff will continue “permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more” (that is, s134AB(38)(e)(ii));
(b)Whether, after rehabilitation or retraining, the plaintiff would have a capacity for any greater employment, including alternative employment or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion (that is s134AB(38)(g) of the Act);
(c)Pain and suffering consequences, generally, in relation to her lower back injury, and psychological consequences and treatment in the event that the claim under paragraph (c) of the definition of “serious injury” is maintained.
48 Also, to avoid any doubt, I consider the plaintiff can also be cross-examined about the various jobs set out in the Medical Panel Opinion, some of which it was considered that she had a current work capacity to perform fifteen hours, and others that were found not to be suitable. Such cross-examination will be in the context that, although it cannot be gainsaid that the plaintiff only has a current work capacity of fifteen hours per week, whether it is likely that such number of hours will be permanent and, if not, the extent of any improvement in her hours. Such cross-examination can extend to whether jobs found not to be suitable by the Panel would be open to the plaintiff with further retraining and/or rehabilitation.
49 Are then issues which the parties wish to raise? Is it possible to arrange a date for hearing at this point?
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