1 This is an application for leave to appeal from an order of a judge of the County Court made on 29 June 2009. By the order, her Honour in effect determined that, for the purposes of the respondent's application for leave to institute proceedings pursuant to s 134AB(16) of the Accident Compensation Act 1985, the court was not bound by the opinion of a Medical Panel on a medical question that the respondent's employment was not a significant contributing factor to her alleged injury. That question was referred to the panel for the purposes of establishing the respondent's entitlement to compensation under s 82 of the Act.

2 On 13 September 2006 the respondent lodged a claim under s 82 of the Act for weekly compensation payments and medical expenses in respect of thoracic and cervical spine injuries, and other physical and mental injuries, which she alleged she suffered in the course of her employment as a factory hand with the first applicant between 20 October 1999 and 20 June 2006.

3 On 20 October 2006, QBE Workers Compensation (Vic) Ltd, as the authorised agent of the second applicant, Victorian WorkCover Authority, rejected the claim and the respondent referred the matter to conciliation pursuant to s 55 of the Act.

4 A conciliation conference was held on 13 December 2006 and, pursuant to s 56(6) of the Act, the conciliation officer referred three medical questions to a Medical Panel for opinion under Division 1A of Part III of the Act.

5 On 4 June 2007 the Medical Panel expressed its opinion in answer to the three questions so referred as follows:

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injuries?

Answer: The Panel is of the opinion that the worker is not suffering from any medical condition, relevant to the claimed injuries.

Question 2: Was the worker's employment in fact, or could it have been, a significant contributing factor to the worker's injury (including any reoccurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease)?

Answer: No.

Question 3: Does the worker's incapacity for work result from, or is it materially contributed to by the (claimed) injuries?

Answer: Not applicable.

6 On 14 June 2007, the Conciliation Officer issued a Conciliation Outcome Certificate in which he stated that 'in line with the Medical Panel decision there was no variation of the original decision' and that 'the worker has taken all reasonable steps to settle the dispute.'

7 On 28 December 2007, the respondent lodged an application under s 134AB(4) to bring proceedings under s 134AB on the ground that she had a serious injury within the meaning of the section.

8 Within 120 days thereafter, the second applicant gave notice in accordance with s 134AB(7) that the respondent's application was refused.

9 By originating motion dated 8 May 2008 the respondent instituted an application in the County Court at Melbourne for leave pursuant to s 134AB(16)(b) of the Act to bring proceedings to recover common law damages in respect of her alleged injuries.

10 On 26 March 2009, counsel for the applicants moved ore tenus that the judge should determine as a preliminary point, pursuant to Rule 47.04 of the Rules of the County Court, whether it followed from the opinion of the Medical Panel 'that there was no injury which was compensable' that the respondent had been found to be not 'entitled to compensation' within the meaning of s 134AB.

11 After hearing oral submissions and receiving written submissions on the point, the judge ruled that she was bound by the decision of this court in Pope v Walker & Sons Pty Ltd[1] to hold that an opinion of a Medical Panel on a medical question referred for the purposes of determining a claim for compensation under s 82 of the Act, although binding on the court for the purposes of any hearing or determination of a claim for such statutory compensation, is not binding on the court in relation to an application for leave to institute common law proceedings pursuant to s 134AB of the Act.

Section 64(4) which was inserted in the Act in 1997 reads as follows:

For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and 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.

In Pope's case the appeal raised the question of whether a judge, hearing an application under s. 134AB of the Act for leave to institute a proceedings [sic] claiming common law damages, is bound to treat as final and conclusive an opinion of a Medical panel which had not been sought by the judge for the [purpose] of 134AB proceedings, but had been obtained in earlier proceedings concerned with the entitlement of the worker to statutory benefits.

In Pope the Court of Appeal held that a County Court judge hearing an application under s. 134AB is not bound (although it might well have regard to it) by the opinion of a Medical Panel which is not sought by the Judge for the purpose of s 134AB proceedings concerned with entitlement to a claim for statutory benefits.

...

... I consider that it would be inconsistent with the reasoning of the Court of Appeal in Pope's case where the distinctiveness between leave applications and claims for statutory benefits was stressed. If the court was bound by the Medical panel's opinion not only would the distinctiveness of the 134AB process be unrecognised but the additional referral power the Court possess[es] in relation to 134AB applications would also be undermined.

...

Therefore I reject the defendant's case that the Medical Panel's opinion that the plaintiff's employment was not a significant contributing factor to the injuries claimed by her is binding on this court and that it has determined the issue of whether the plaintiff may be entitled to compensation. I find that it is for the court in this case as part of the 134AB application to determine the issue of whether there is a causal connection between the injury alleged and the plaintiff's employment which may give rise to an entitlement to compensation.

13 The judge also rejected subsidiary submissions by the applicants that the opinion of the Medical Panel meant that the question of whether the respondent was entitled to compensation was res judicata or the subject of issue estoppel. Her Honour said that:

In making this finding I reject the defendant's submissions with respect to issue estoppel and res judicata. I accept the plaintiff's submission that even if it could be said that the Medical Panel opinion was final and determinative in respect of the present application it could only be determinative in relation the facts at the time the Medical Opinion was given. If subsequent circumstances shed new light upon the plaintiff's capacity these circumstances must be taken into account because to do otherwise would ignore the structure of the Act; namely that the plaintiff's incapacity is to be determined at the date of the application to the Court.

The grounds of application for leave to appeal

14 The applicant does not seek to overturn the decision in Pope, but contends (as it did before the judge below) that Pope is to be distinguished on the basis that the Medial Panel's opinion in that case was not directed to the 'foundation question' of whether the worker was entitled to compensation, but only to an issue of whether compensation payments should be terminated.

15 The judge rejected that distinction as untenable and so do we. The ratio of Pope was that a Medical Panel opinion on a medical question referred to the panel for the purposes of an application for statutory compensation is not binding on the court for the purposes of an application for leave to institute proceedings pursuant to s 134AB. As the judge below rightly held, the principle applies equally whether the referral was for the purposes of determining whether a worker was entitled to compensation or for the purposes of determining whether an entitlement to compensation ought be terminated.

16 Counsel for the applicants submitted that, even so, because the Medical Panel's opinion in this case was that the respondent's employment was not a significant contributing factor to her alleged injury, and because that opinion would be binding on a court for the purposes of determining whether the respondent is entitled to compensation, it has the same result, in effect, as a decision made by a court exercising jurisdiction under s 39 of the Act that the respondent is not entitled to compensation.

17 That submission cannot be accepted. In the way in which s 68(4) of the Act was construed in Pope, a medical question referred to a Medical Panel for the purposes of an application for statutory compensation under the Act is binding on a court for the purposes only of any hearing or determination of the worker's entitlement to statutory compensation.

18 No doubt, if a court were to determine a worker's claim for compensation in respect of an injury, the court would be bound by s 68(4) to make the determination in accordance with the Medical Panel's opinion. It may also be that, once made, the court's determination would be binding as an issue estoppel.[2] Accordingly, if the court's determination were that the worker was not entitled to compensation in respect of the injury, a subsequent claim under s 134AB for leave to institute common law proceedings in respect of the same injury would be likely to fail.[3]

19 But until and unless the court made a binding determination that the worker was not entitled to compensation, the fact that a Medical Panel has expressed an opinion in answer to a question (referred for the purposes of determining the worker's claim for compensation) that the worker was not entitled to compensation, would not be binding for the purposes of the application under s 134AB. As was held in Pope, the Medical Panel opinion would only be binding on the court for the purposes of a s 134AB application, if expressed in answer to a question referred to the panel pursuant to s 45(1A) for the purposes of determining the s 134AB application.

20 Counsel for the applicants argued that so to hold would create the possibility of conflicting decisions in relation to the question of whether the respondent had suffered a compensable injury. More precisely, he submitted, if the court acting under s 134AB were to determine that, notwithstanding a Medical Panel opinion expressed for the purposes of a claim for compensation, the worker was entitled to compensation in respect of an injury arising out or in the course of or due to the nature of her employment, and if the worker were subsequently to institute proceedings for compensation, it was possible that the court charged with the determination of the claim for compensation might come to a different conclusion to the court that determined the claim under s 134AB - because the court determining the claim for compensation would be bound by s 68(4) to treat the Medical Panel opinion as determinative.

21 We do not find that submission persuasive either. As at present advised, it appears to us to posit a most unlikely possibility: if only because, although the opinion of the Medical Panel is not conclusive for the purposes of the application under s 134AB, it is (as the judge observed) something to which the court might well have regard. The posited possibility also raises nice questions as to whether, in its application to a proceeding for statutory compensation, s 68(4) requires a court to accept a Medical Panel opinion as final and binding notwithstanding an earlier inconsistent curial determination under s 134AB that the worker was entitled to compensation. One answer, perhaps, is that the issue estoppel which would arise from the earlier curial determination of entitlement to compensation would so operate as to eliminate or foreclose the 'question or matter' to which s 68(4) might otherwise apply. We do not say that is necessarily so, however, and we do not find it necessary to consider the question further.

22 The decision in Pope is not challenged and, that being so, it is sufficient to dispose of this application that, according to Pope, the Medical Panel opinion which was obtained for the purposes of the respondent's claim for compensation was not binding on the judge in respect of the respondent's application under s 134AB. Any possible difficulties to which that conclusion may give rise in other circumstances should wait to be dealt with when and if ever they arise.

23 In our view, the decision of the judge below was correct and, accordingly, the application for leave to appeal will be refused.

[1] [2006] VSCA 227; (2006) 14 VR 435 (Eames and Neave JJA and Bell AJA).

[2] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2 (Dixon J).

[3] See and compare Linsley v Petrie [1998] 1 VR 427, 429 (Hayne JA) and 451 (Smith AJA).