HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97

HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97 - VSC 1998 case summary — Zoe

[4]

The respondent (the plaintiff in the Magistrates' Court) is a 46 year old man who was employed by Deakin University at its Warrnambool campus as a technical officer since about 1991. On 10 June 1996 he sustained an injury to his back at work whilst lifting a loaded trailer up to the towbar on the back of a work vehicle. According to the findings of fact of the Magistrate, the plaintiff was off work for about a fortnight after this, then returned to work on light duties and restricted hours until he ceased work with the University in July 1997. With respect to the incident which occurred on 10 June 1996 ("the work accident") the plaintiff lodged a claim form pursuant to the provisions of the Accident Compensation Act 1995 (the Act) dated 17 July 1996. Liability under the Act was accepted and weekly payments of compensation were made by the appellant, the employer's insurer. This could not have been for more than a brief period. On 6 March 1997 whilst the plaintiff was putting on trousers at his home he felt a severe "extra" pain in the back "as if he had been hit with an axe" (hereinafter called the home accident). According to the findings of the Magistrate the plaintiff did not return to his normal duties after the original two weeks off following the work accident. The nature of his job permitted him to modify the type of work he did, as a result of which he continued to work five days a week but apparently avoided back stress. However, according to the Magistrate's findings, during the approximate nine months between the two accidents he had increasing difficulty and pain in the back but continued in his job. After the home accident he was off work for a week, then went back to his job with increasing difficulty, pain and incapacity and finally gave up work in July 1997. He lodged a further claim form dated 23 May, according the Magistrate at the insistence of his employer. The Magistrate also stated that the defendant had treated the home accident as a separate and distinct incident from the work accident in which the plaintiff sustained injury, not simply as a manifestation of the work accident injury. The insurer denied liability under the Act and as a consequence the respondent Greeves commenced a proceeding in the Magistrates' Court against the insurer. The fashioning of that claim is not without importance. It appears that paragraph 5 of the particulars were amended on 11 February 1998, the plaintiff having commenced his proceeding in September 1997. Paragraph 5, as amended, is in the following form:

[29]

I return to the Magistrate's reasons. On page 3 of his reasons, his Worship identified the critical question proposed by the insurer, already identified by me, to this effect "whether the worker's employment was a significant contributing factor to the injury for which he claimed compensation by way of claim form dated 23rd May 1997?" The Magistrate went on to say that counsel for the worker had argued that the proposed question was irrelevant and ought not to be referred to any medical panel by the Court. The Magistrate referred to a number of decisions of judges of the County Court of Victoria, in particular the case of Metcalf v. FAI Workers Compensation Vic. Ltd. (2nd June 1997) and Green v. V.W.A. (unreported, 16th November 1995). The effect of these decisions arguably was that the Court would be the arbiter of any suggested medical question and the arbiter in respect of any disputes as to how a medical question should be framed. His Worship also referred to a passage in the judgment of Byrne, J. of this Court in Austin v. Amcor Limited (unreported, 3rd April 1998) to which I will subsequently refer. It is clear that the Magistrate sought to use the opinions expressed in the cases to which he referred, not merely as a justification for concluding that the proposed question was irrelevant, but as enabling him to hear the whole of the evidence and to decide which of the opinions expressed he preferred, without referring the question to any medical panel. It is apparent from reading the reasons of his Honour Judge Strong and his Honour Judge Williams, both of the County Court in the cases referred to, that there has been judicial resistance to the proposition apparently advanced that the effect of s.45 was wholly to strip the Court of its judicial power to determine the issues in the case properly raised within its jurisdiction for determination. This has not been a case of wilful opposition to the operation of the statutory scheme created by the Act but has involved, in the interests of both parties and the court, a consideration of the necessary balance between the intention of the Parliament and the conduct of the litigation. In Green, his Honour Judge Williams considered s. 45(1)(b) in its then form (to which I will shortly refer), acknowledging that it was formulated in mandatory terms. But he was of the opinion that it was for the Court to interpret the request for the reference of a question, and if it was an abuse of process in such event to refuse to refer the question. He recognized in the absence of any circumstance to justify the conclusion that the question constituted an abuse of process that the Court must, if requested, refer. His Honour, in a valuable judgment, considered many questions that might arise from a general consideration of the operation of the section. I emphasize that he chose to do so in the light of the views expressed by the Court of Appeal in Masters v. McCubbery (not then reported but now reported in [1995] VICSC 209; [1996] 1 V.R. 635) to the effect that the function and decisions of the Medical Panel under the Act must accord with the rules of natural justice and are thereby subject to judicial review and that on a proper construction of the Act the medical panels are empowered to determine mixed questions of law and fact. His Honour's reasons were in the form of review of, and expression of his opinions about, the powers of the Court generally under the relevant part of the Act. He did this by formulating questions that he deemed to be associated with the request made in the case itself by the defendant that certain medical questions be referred to a medical panel. He identified some of the questions as including (1) at what stage of the proceedings was it appropriate to refer question itself; (2) by whom and in what form should the question be formulated; (3) should the Medical Panel answer the questions untrammelled by matters of legal principle or interpretation or if not how and to what extent should the Court ensure that the appropriate principles and interpretations were explained to the Medical Panel to be applied by them. This involved his Honour in referring to Parliamentary statements at the time of the debate concerning the then Bill. He concluded that when a medical question was to be referred to a medical panel the Court was required to define and provide the relevant legal principles and interpretations, and if need be to decide the factual parameters that lie outside the scope of the medical question to be referred. He expressed the view that it was important for the Court to exercise what control it could have over the proceedings and should exercise whatever control it could over the matter of the referral of the medical questions to a panel. If not, he thought, the Court's role would be simply one of slavishly referring of questions that followed the descriptions contained in s.5(a) as to medical questions under the Act. His Honour expressed the view that the Court should determine at what stage referral should be made; the amount of evidence that needed to be heard and recorded before the questions could be formulated; how the question would be framed; what would constitute the injury for the purpose of the question and what might be done by way of curial guidance to inform the Medical Panel of relevant legal principles. He concluded that courts should decide in each case the stage at which it was appropriate to refer the medical question and should have input into the formulation of the questions to be referred. All of this, his Honour viewed as being a concomitant of the Court's power to regulate its own procedures.

[46]

There was no specific reference by the Minister to suggest that the tightening up process excluded power in the court to refine or remodel the question, nor was anything said that when a party to a proceeding requested that a specific question be referred that that specific question in that form, and no other form, must be referred. The argument advanced is that the use of the language in the amendment meant that the medical question put up must be referred so long as it did not constitute an abuse of process. The power and responsibility of the Court to give the final decision in the case remains intact, although the opinion of the medical panel on the medical question must be adopted as the answer to the question. Whilst the medical question which must be referred is the medical question which a party to a proceeding requests for referral, it nevertheless must be a medical question which answers the description given in s.5 of "medical question", approached in a practical and meaningful way. Mr. Tracy's submission was that the only exception to a non-discretionary obligation to refer was abuse of process. It may be doubted whether the limitation is so narrow, unless abuse of process (which I do not attempt to define) is more widely construed. There is still nothing in the Act which would indicate any intention to strip the Court of all control and input. It would not be in the interests of any party or the Court, including appellate courts, that any question devised by a party must be automatically sent off to a medical panel. Reference must come from the Court. It is not referred from the party direct. It is the Court's duty to manage the exercise of its jurisdiction. The jurisdiction has not been diluted. I would not disagree that a question that is addressed to a wholly irrelevant matter or issue, one which was so peripherally connected with the medical legal issues that it could not be reasonably thought that the answer to it could aid in any way the orderly and just disposition of the claim, might be regarded as an abuse of process. Counsel for the insurer's submission appeared to accept this. It must still be a question connected with the exercise of jurisdiction, that is, connected with an application within the jurisdiction in a particular case. In the course of argument counsel gave examples of questions being requested to be referred that were unconnected with the sphere of dispute in a case: e.g. a question concerning a Table of Maims issue, in a case for weekly payments. In order to be a medical question within the meaning of the Act under s.45, it must be a question connected with the exercise by the Court of the jurisdiction under that part of the Act. If the Court concluded that the answer to the question requested was irrelevant to the exercise of its jurisdiction in the disposition of the case, there must be a powerful argument to the effect that the question is not a medical question within the meaning of the Act.

[47]

The issue in this case is relatively narrow because the Magistrate embarked upon the task of deciding the issues of fact and, having decided them against the insurer, concluded that it was thereby irrelevant to refer any question. He had expressed some reservations about the question, implying that it might be fine-tuned. But he did not invite any further modification of it. As the passage from the Magistrate's reasons reproduced in paragraph 8 indicate, he decided which of the differing legal opinions he preferred and, having decided that against the insurer and in favour of the worker by rejecting Mr. Guest's opinion, the Magistrate declared the question to be irrelevant and refused to refer it. Thus the question was not referred because the Magistrate answered it for himself, by weighing up the evidence both lay and medical and by concluding that Mr. Guest's medical opinion as expressed in his report did not accord with common experience and common sense. Thus he evaluated the evidence for himself and decided the issue without complying with the s.45 requirement. This appears to be wholly contrary to this part of the Act, whether under the old s.45(1) or the amended which was applicable, and contrary to its intention. Moreover it involved hearing the evidence completely to enable him to decide whether the question was relevant or what the answer was. This remarkable feat of pulling oneself up by one's own judicial bootstraps, so to speak, renders the Act's requirements nugatory, and effectively sidelined and circumvented the intended process - that the Medical Panel will decide the medical question, give its opinion which must then be applied by the Court, a part of its decision-making function. Whether the legislative scheme is desirable, just and cost effective (which was apparently one of the main reasons for it) is not to the point. The process of claims in respect to work-related injuries is a creature of statute, the work of the Parliament. Whatever else might be said, it cannot be a correct application of the statute to so mould the judicial process that the Court may hear all the evidence, reach a conclusion which answers the very question, and then conclude that that unlawful and unauthorised process makes referral irrelevant. Without attempting to define the boundaries of the Court's exercise of power to mould the referral of a question (that is, with regard to the matters already referred to by me), it is not to be doubted that once a s.45 request is made, the Court may not lawfully hear all of the evidence and answer the question for itself. It would be rare that the Court would find it necessary to hear much evidence at all in order to make the referral. It would ordinarily be self-evident, once the matrix of facts had been explained or understood from the written material, whether the question was such that it was material and relevant that the answer be obtained to enable the Court to exercise its conferred jurisdiction. The charade of trying the case, deciding it on the facts and then declaring that it was unnecessary and therefore irrelevant to refer the question to the Medical Panel, cannot be countenanced. Save in the case in which there is or are jurisdictional facts in issue (e.g. whether the applicant was in employment or whether any injury-producing event had happened), the need to explore the circumstances on which the question is focussed is not likely to be commonplace.

[52]

It may be that the home injury which occurred, admittedly non-compensable, resulted from or was connected with, or was materially contributed to by the 1996 employment. Three doctors appeared to say so and the other denied it. What is known is that the Magistrate took in the evidence and acted on it instead of referring it. That dispute, in my judgment, cannot be resolved by the Court because that dispute must be characterized as comprising a medical question. Since paragraphs 8, 9 and 10 were in the statement of claim, then the question asked was not misdirected or irrelevant, on its face being directed to the question of whether the worker's employment was a significant contributing factor to the 1997 incapacity claimed for. I should say that it was never in dispute that the 1996 injury created an incapacity that was materially contributed to by the respondent's employment. Mr. O'Loghlen's argument was that the question as ultimately designed was not directed to whether or not the respondent was incapacitated for work. This is clearly true because it was not disputed by Guest that he was incapacitated. What was being disputed was whether it was work-related, Guest apparently being of the view it was due to congenital spinal stenosis. But Mr. O'Loghlen's submission was that the question was not directed to whether the current incapacity resulted from or was materially contributed to by the employment in June 1996. Literally speaking, this is so but in reality it also raised the other side of the same issue viz. whether the 1997 and 1998 incapacity was due or contributed to by the injury caused by his employment in 1996 or whether it was solely due to the spinal stenosis which the home episode made symptomatic. Once the Panel was requested to approach the referred question in that form, with full knowledge of the background circumstances, the subject matter of the question could not be so simply confined as the respondent argues. That argument seems to me to be insupportable because the question asked did, in the context, draw in the issue which the respondent contends was the issue which ought to have been specifically encapsulated in the question. This involves, it seems to me, accepting that the question may have been better framed and I agree that it might have been. For example, it may have been expressed thus "Has the present and ongoing incapacity resulted from or been contributed to by the 1996 employment or is it due to congenital spinal stenosis or some other cause?" But even without the final part of that question, it seems to me certain that with respect to the question that was formulated and requested to be referred to a panel, the panel was bound to have addressed the realities posed by the question, despite its limitations. This is because the question posed was really the mirror image of the issue at stake, did the 1996 employment incident contribute to the injury and incapacity for which he claimed from 1997. The respondent appeared to concede that there might have been an issue as to whether or not the trouser incident was a 'novus actus interveniens' but argued that question was too narrow to encompass that argument. Nevertheless, in my view, the question must always be reasonably interpreted having regard to the issues raised by the material, particularly the medical opinions. This question did raise for answer the main issue - was the worker's employment a contributing factor to the incapacity claimed for or was it not?

[53]

It is clear that the Magistrate did not approach the issue in an appropriate way. He was not referred to the relevant provision of the amended s.45(1). For a reason not really explained, but possibly due to a strong view formed on reading the documents that Mr. Guest's opinion was wrong and never sworn to, he decided to resolve the medical conflict. As I have said, s.45 did not permit that course, given the circumstances of this case. Moreover, the respondent's submission in this Court was in some respects misleading. The formulated question was not whether the 1997 home accident caused or contributed to the worker's incapacity. Since that was an incident which occurred at home and was clearly an event outside employment, the employment could not have contributed to that event and injury, if it was a new injury. The question was concerned with "the injury for which he claimed compensation" in the 23rd May claim form and whether employment contributed to that injury. The injury claimed for was "prolapsed disc: spinal stenosis: lower back". In the context this description did raise the issue in dispute namely whether the employment contributed to the incapacity or it was a congenital condition incapacity. Moreover, the 23rd May claim form also claimed that the injury/condition was a "relapse of previously reported injury" which I would construe as a claim for exacerbation of the 1996 injury. If it was, it was a matter in issue, as Guest denied it. The submission of the respondent that whether the question as formulated was answered affirmatively or negatively the answer was irrelevant to the issue before the Court, seems to me to ignore the realities. In dealing with the formulated question the Panel was certain to have considered whether the present incapacity resulted from or was materially contributed to by the 1996 incident. As I say, the pleading appeared to raise the issue and in any event Mr. Guest's opinion, fairly read, was that there was no relationship between present incapacity and the 1996 incident. The other doctors, of course, disagreed and that was a disputed issue which the question was directed at.

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Parties

Legislation Cited (2)