Isikli v Surville Pty Ltd [2004] VSC 236

5. There is no dispute that the plaintiff's weekly payments were terminated on the date referred to. The grounds stated for the decision to terminate were that the plaintiff:

(a) did not make every reasonable effort to participate in an occupational rehabilitation service or return to work plan as required by s 93CB(3)(b)(i) and s 93CB(4) of the Accident Compensation Act 1985 ("the Act");

(b) did not make every reasonable effort to return to work in suitable employment pursuant to s 93CB(3)(b)(ii) and s 93CB(4).

11. Section 93 CB of the Act relevantly provides:

"... (3) A worker is entitled to receive weekly payments under this section only if-

(i) participates in an occupational rehabilitation service or a return to work plan; and

(ii) makes every reasonable effort to return to work in suitable employment at the worker's place of employment in co-operation with the employer and the Authority or with the self-insurer (as the case may be);

(4) Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or her case, the workers entitlement to further weekly payments in respect of the injury shall there upon cease and determine."

21. By ss 39 and 43 of the Act, the Magistrates' Court had jurisdiction to "inquire into, hear and determine any question or matter under this Act arising after the commencement of s 10 of the Accident Compensation (WorkCover) Act 1992, out of:

(a) any decision of the Authority, employer or a self-insurer . . ."

25. The plaintiff issued proceedings in a form which relevantly alleged:

"2. At all material times the Plaintiff was employed by the Defendant. 3. On or about 29 January, 2001 the Plaintiff suffered injury arising out of or in the course of his employment with the Defendant whilst tilting and or lifting a board onto a saw table.

PARTICULARS OF INJURY

Injury to the back involving sciatic pain in the left leg.

Aggravation of degenerative changes in the L4/5 disc.

Production and or aggravation of lateral recess stenosis at the L4/5 level.

5. The Plaintiff's claim for weekly payments of compensation was accepted on 12 February 2001. 6. The Plaintiff resumed work in the performance of a return to work plan on 18 February, 2001, 24 November, 2001, 29 April, 2002 and 10 August, 2002. 7 Subsequent to 10 August, 2002 the Plaintiff ceased work as from 2 September, 2002 due to increased pain and/or symptoms. 8. On 5 September, 2002 the Plaintiff's weekly payments of compensation were terminated with the termination to take effect from 5 October, 2002. 9. Since 2 September, 2002 the Plaintiff has been, for varying periods, unfit for any work duties, fit for modified duties only or fit for alternative duties only. 10. Since 2 September, 2002 the Defendant has failed to: (a) Provide or offer modified duties work to the Plaintiff (b) Provide or offer alternative duties work to the Plaintiff (c) Comply with the provisions of the return to work plan signed on 8 August, 2002 (d) Provide the Plaintiff with suitable employment as defined in section 5 Accident Compensation Act 1985 11. The plaintiff disputes the termination of his weekly payments of compensation as and from 5, October 2002. 12. The dispute regarding the termination of the Plaintiff's weekly payments of compensation was referred to the Accident Compensation Conciliation Service which issued a genuine dispute certificate on 25 November, 2002."

36. By its defence, the first defendant[1] admitted that the plaintiff was employed by it. It did not admit the allegation of injury at work. It admitted however that the plaintiff's claim for weekly payments was accepted in January 2001, and that he resumed work pursuant to a return to work plan on a series of dates in 2001 and 2002. It did not admit the plaintiff ceased work as and from 2 September 2002 due to increased pain and/or symptoms. It did admit that on 5 September 2002 the plaintiff's weekly payments of compensation were terminated with the termination to take effect from 5 October 2002. It did not admit that since 2 September 2002 the plaintiff has been for varying periods unfit for any work duties, fit for modified duties only or fit for alternative duties only. It denied that since 2 September 2002 the defendant has failed to provide or offer modified or alternative work duties to the plaintiff or to comply with the provisions of a return to work plan or to provide the plaintiff with suitable employment. It admitted that the dispute regarding termination of the plaintiff's weekly payments of compensation was referred to the Accident Compensation Conciliation Service which issued a genuine dispute certificate.

39. The defence went on to deny that the plaintiff was entitled to relief by way of payment of weekly payments of compensation from 5 October 2002 onwards. It stated by way of particulars the following:

"1. The Plaintiff did not make every reasonable effort to participate in an occupational rehabilitation service or a return to work plan. 2. The Plaintiff did not make every reasonable effort to return to work in suitable employment. 3. The Plaintiff's incapacity for work no longer results from and is not materially contributed to by an injury arising out of or in the course of employment. 4. Further or in the alternative, the Defendant says that in the event that it is determined that the Plaintiff is entitled to weekly payments of compensation, the such entitlement should not exceed an aggregate of 104 weeks on the grounds that the Plaintiff; has either (a) a current work capacity or; (b) no current work capacity but such incapacity is not likely to continue indefinitely."

43. It can be seen that the particulars first go squarely to the grounds of termination (although they do not reflect with precision the terms of s93 CB (3)(b)(i) and (4)). It is to be noted however that the particulars then proceed to alternative allegations which were not the stated basis of the determination in issue and were not the subject of pre-existing dispute.

46. At the hearing before me Mr Parish SC who appeared with Mr Kozicki for the defendant conceded that these latter matters were not properly before the Magistrates' Court. It would be necessary for them to form the subject of a decision by the authority before they could be referred to the Court. The jurisdiction under s 39 of the Act is limited to questions or matters arising out of prior decisions. I shall return to this issue in due course but it is necessary first to further articulate the history of the proceeding and the relevant statutory framework.

49. When the matter came before the Magistrates' Court on 24 November 2003 it became apparent that the proceeding would not receive a hearing on the merits on that day. Counsel for the plaintiff then formulated an application pursuant to s 45(1)(b) of the Act to refer medical questions to a medical panel. This application was put over to the following day on which after hearing argument the learned magistrate refused the plaintiff's application pursuant to s 45(1B) of the Act on the ground that it constituted an abuse of process. The learned magistrate further ordered that the plaintiff pay the defendant's costs of the application.

52. Section 45 of the Act relevantly states:

"(1) Where the County Court exercises jurisdiction under this Part, the County Court - (a) may refer a medical question; or (b) if a party to the proceedings requests that a medical question or medical questions be so referred, must, subject to sub-sections (1B) and (1C), refer that medical question or those medical questions -

to a Medical Panel for an opinion under this Division.

(1B) The County Court may refuse to refer a medical question to a Medical Panel on an application under sub-section (1)(b) if the County Court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process. (1C) The County Court has on an application under sub-section (1)(b) the discretion as to the form in which the medical question is to be referred to a Medical Panel."

59. In the circumstances of this case the magistrate had the powers of the County Court under s 45 by reason of the provisions of s 43 of the Act.

62. Sub-sections (1B) and (1C) of s 45 were introduced to the Act by way of s 5(3) of Act No 26 of 2000 which came into operation on 31 May 2000. They post-date the decisions of the Court of Appeal in Masters v McCubbery & Ors[2] and Isuzu General Motors Australia Ltd & Anor v Jordan.[3]

65. The medical questions forming the subject of the request made on behalf of the plaintiff were as follows:

"1. What is the nature of the Plaintiff's medical condition relevant to injuries to his: (a) Back; (b) Left leg; (c) Lumbar disc disruption; (d) Lateral recess stenosis at the L4/5 level; (e) Generalised anxiety disorder; (f) Anxiety and depression? [The above alleged injuries are hereinafter referred to as 'the said injuries'.] 2. Has the Plaintiff's incapacity for work, if any, resulted from or been materially contributed to by the said injuries? 3. Does the Plaintiff have a current work capacity or have no current work capacity? 4. If the Plaintiff has a current work capacity what employment would or would not constitute suitable employment?"

69. The questions which it was sought to refer to a medical panel were formulated within the terms of reference framed by the definition of `medical question' under s 5 of the Act. Section 5 relevantly provides:

(a) a question as to the nature of a worker's medical condition relevant to an injury or alleged injury; or

(ab) a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated; or

(aba) a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment; or

(abb) a question as to whether a worker has no current work capacity and is likely to continue indefinitely to have no current work capacity; or

(abc) a question as to whether a worker has a current work capacity and because of the injury, is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work, and if not so incapable, what further or additional employment or work the worker is capable of undertaking; ..."

76. It is established that such questions may properly encompass questions of fact and law.[4] Further it is the clear intention of the Act that the disposition of such questions may resolve a proceeding. Thus in Masters v McCubbery Winneke P stated:

"These ultimate conclusions expressed by the Panel as `opinions' dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the Court with no relevant function but to give effect to them in money terms. The conclusions by virtue of the Act become binding on the court. Thus the effect which the Act gives to the Panel's `opinion' is apt to demonstrate how clearly the powers invested in the Panel are capable of interfering with the rights of the individual. By virtue of those opinions the appellant's claims that he was entitled to compensation as a person who had suffered a `serious injury' and/or was `totally incapacitated for work' were conclusively determined against him."[5]

80. In the course of the hearing before me Mr Parish and Mr Kozicki submitted that "none of the various medical questions contained in the definition of `medical question' contained in s 51(1) of the Act are relevant to the decision" (ie. the decision of the issues before the magistrate). I do not accept this proposition, it is apparent questions could have been formulated within definition (a) and the first form of question defined in (ab), which inquired after the plaintiff's condition and incapacity at the relevant time in September 2002. The real question however is not whether relevant questions could have been formulated but whether they were in fact proposed. Because this is an application by way of judicial review the plaintiff must demonstrate an error of law on the face of the record. The record is understood to include the magistrate's reasons by virtue of s 10 of the Administrative Law Act 1978. Moreover an error of fact will not amount to an error of law unless there was no basis on which the conclusion was reasonably open.[6]

83. It is apparent from the transcript of proceedings in the present case that in substance the learned magistrate formed the view that the answers to the questions proposed were irrelevant to the ultimate determination of issues before him. If it was open to him to conclude they were irrelevant to the dispute before him then the referral to the medical panel might in my view properly be regarded as an abuse of power within the meaning of s 45(1B). Conversely, if the questions were, as a matter of law, relevant to the litigation before the Magistrates' Court then the Court was obliged to refer them to a medical panel. In Isuzu Phillips JA, with whom Brooking and Chernov JJ A agreed, referred to the predecessor of s 45(1)(b) as follows:

"Despite the use of the mandatory expression 'must refer' in para (b), it was common ground before us that the court to whom a party addresses a request under s 45(1)(b) still has some discretion in the matter. Relying upon the decision of Hedigan J in HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97 (2 October 1998) both sides submitted that when application was made to the court to refer medical questions under s 45, the questions must be referred if the questions are 'medical questions' as defined in s 5 of the Act, are relevant to issues which are live in the proceeding before the court and are not otherwise an abuse of the process. ... So far as concerns the criteria adopted by Hedigan J in Greeves, it is unnecessary, I think, to consider the residual possibility of abuse. Perhaps the possibility is real but it may be left until it arises (if it ever does), for the other criteria are of more immediate interest. I agree with his Honour that a question must be referred to a medical panel under s 45(1)(b) (that is upon application by a party) if it is a 'medical question' as defined in s 5 of the Act and if it is relevant to the litigation then before the court. In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the courts, (see Hansard, Legislative Assembly, 30 October 1992, vol 409, p 310.) but nevertheless it is the court which, in the end, must adopt and apply the opinion in the determination of the litigation before it."[7] [My emphasis]

87. I accept the submission made on behalf of both parties before me that the addition of sub-sections (1B) and (1C) by Act No 26 of 2000 reflects the judicial approach which was adopted to the interpretation of s 45(1)(b) prior to the addition of those sub-sections.

90. In the present case, it is apparent the medical questions 1, 3 and 4 proposed would not dispose in any practical sense of the dispute between the parties and do not have the potential to do so. In particular the answers to them would not bear in any direct way upon the dispute which had been referred to the Magistrates' Court. This dispute was whether the plaintiff had made reasonable efforts to participate in a return to work plan and had made every reasonable effort to return to work in suitable employment. The dispute fell to be determined in circumstances where the Plaintiff himself alleged that "since 2 September 2002 the Plaintiff has been, for varying periods, unfit for any work duties, fit for modified duties only, or fit for alternative duties only."

93. Proposed question 1 is expressly formulated by reference to the plaintiff's current medical condition. Proposed questions 3 and 4 expressly relate to the plaintiff's current work capacity. Whilst I accept that it is theoretically possible that in answering questions 1, 3 and 4, the medical panel might make some incidental finding of fact which would inform the decision of the Court as to the issues before it, the answers to the medical questions do not themselves directly bear on the issues before the Magistrates' Court. Those issues necessarily involved a consideration of the plaintiff's medical condition as at 2 September 2002 up until his termination on 5 September 2002 and of his capacity to work in this period, but they did not necessarily involve or require at all a consideration of his current condition or his current capacity to work. Proposed medical questions 1, 3 and 4 did not in terms refer to "a necessary step along the way to decide the case".[8] In my view the learned magistrate was therefore entitled to form the opinion that these medical questions were not relevant to the litigation before the court. Having formed this opinion he was under no obligation to refer them to a medical panel.

96. I turn then to question 2. This question was "has the plaintiff's incapacity for work, if any, resulted from or been materially contributed to by the said injuries?" It was not suggested that this was other than a question which fell within the terms of relevant definition of medical questions and in my view it falls within the first category of question identified in definition (ab).

99. It can be seen that this question is not expressed to refer to the plaintiff's current incapacity. Indeed it is expressed to refer to his past incapacity. As such it squarely embraces the question of whether the plaintiff was incapacitated for work as a result of the alleged injuries during the critical period in issue. The answer to the question proposed would or might be directly probative and potentially determinative of the plaintiff's allegation that he ceased to work as from 2 September due to increased pain and or symptoms. In turn the answer to the question proposed would or might be directly probative of and potentially determinative of the questions whether the plaintiff made reasonable efforts to participate in a return to work plan and every reasonable effort to return to work in suitable employment. This is so although the question is expressed by reference to incapacity for work as distinct from incapacity for suitable employment in terms of the definition of `medical questions' contained in (ab).

102. In order to establish that the question was relevant it was not necessary for the plaintiff to establish it would necessarily determine the case. It was sufficient in the words of Phillips JA in Isuzu to show that the opinion sought "will be, or might be, capable of assisting the Court in resolving the dispute before it." Question 2 met this test and could not be regarded as irrelevant in the sense which would enable it to be characterised as an abuse of process.

105. The learned magistrate expressed the view of the proposed referral to a medical panel that: "it would cloud the real issues which are whether or not efforts are made." This view (which was urged upon him by counsel for the defendant) does not reflect the correct test. The test is not one of balance of convenience or probable conclusiveness. It is one of possible potential to assist the Court. Having said this, it must be acknowledged that the magistrate's task was not made any simpler by the fact that three of the four questions proposed to him were irrelevant.

108. In addition I should record that it was (and will remain) open to the magistrate considering the matter (whether or not that be the magistrate who considered the matter on 25 November 2003) to confine question 2 specifically to the time period forming the focus of dispute, namely 2 to 5 September 2002. The magistrate could regard the form of the question as too wide and amend it to confine it to a specified time period pursuant to s 45(1C) which gives "discretion as to the form in which the medical question is to be referred to the medical panel". This discretion does not enable the magistrate to transform the question and ask an entirely new question but it does entitle the magistrate to modify a question and confine it to that ambit which is strictly relevant. In Isuzu Phillips JA expressed the underlying principles which should be applied as follows:

"As I follow s.45(1), where the applicant makes clear to the Court the issue that it seeks to have referred to a medical panel for opinion and that issue is fairly within at least one of the paragraphs in the definition of "medical question" in s.5, then, if relevant, it is that issue - or "that question" to use the language of s.45(1) - which the Court is bound to refer to a medical panel upon application by a party, under s.45(1)(b). It may well be that the wording of the question upon which the medical panel will be required to express its opinion by virtue of s.67 needs attention; but if the Court is alive to the issue to be referred and application is made for such referral and the issue is a "medical question", then the precise wording of the question posed for the medical panel is as much for the Court as for the applicant. After all, it is the Court which must be concerned to ensure that the opinion which is obtained is of assistance in the determination of the issues in the proceeding: it is for that very reason that the Court is regarded as retaining some control over the precise wording of the question. In my opinion, if the conditions I have described are satisfied the Court is not entitled to refuse altogether to refer to a medical panel under s.45(1) an issue which one of the parties is seeking to have referred, merely because the Court considers the present wording of the question unsatisfactory."[9]

112. It follows from my conclusion that proposed question 2 embraced a relevant issue that the plaintiff has established ground 1 upon which relief is sought namely, that the learned magistrate erred by determining that the plaintiff's request for referral under s 45(1B) constituted an abuse of process.

115. There is however one final aspect of the matter which emerged in debate before me and to which I shall refer for the sake of completeness. Whilst it was conceded before me that paragraphs 3 and 4 of the particulars of defence should be struck out, it was not so conceded before the magistrate. At the time the application was made on behalf of the plaintiff to the magistrate, the defence before the magistrate did squarely raise issues to which all the medical questions were directly relevant.

118. It follows that even if the defendant had been entitled to succeed entirely on the referral question by reference to the strict ambit of the underlying issues before the Magistrates' Court it would have been so entitled despite the terms of its defence and as a matter of procedure only upon the abandonment or striking out of paragraphs 3 and 4 of the particulars of defence.

121. Having regard to the above matters the substantive orders of this Court will be:

1. that the order of the Magistrates' Court made on 25 November 2003 be quashed; and

2. that the proceeding otherwise be remitted for further hearing by the Magistrates' Court in accordance with law.

[1] In accordance with the usual practice the second defendant has indicated that he will abide by the outcome of this proceeding and I will refer hereafter to the first defendant as `the defendant'.

[2] [1995] VICSC 209; [1996] 1 VR 635

[3] (2002) 2 VR 212

[4] Masters v McCubbery p 642 - 643 per Winneke P

[6] Australia Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason J at 356; Roads Corporation v Dacakis [1995] 2 VR 205 at 518.