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[2006] VSCA 103
Court of Appeal (Vic)
2006-05-10
CHERNOV, REDLICH, JJ.A., and MANDIE, A.J.A.
Original judgment source is linked above.
Accident compensation - Workers' compensation - Entitlement to weekly payments after 104 weeks - Whether worker had current work capacity - Medical panel - Court bound by opinion of medical panel - Whether medical panel's opinion operates retrospectively - Whether open to court to make finding that differs from opinion of medical panel - Accident Compensation Act 1985 ss.93CC and 114(2)(b).
1 On 8 February 1999 the appellant, Alfred Arvind Kumar, suffered a lower back strain whilst lifting a bag of material at work. He lodged a claim for weekly payments of compensation pursuant to the Accident Compensation Act 1985 ("the Act") in relation to his incapacity. The claim was accepted by the Victorian WorkCover Authority ("the Authority") and shortly thereafter the appellant was paid weekly payments under the Act. On 17 March 1999 he resigned from his employment because, he said, he was unable to perform the work that had been assigned to him, but continued to receive the weekly payments.
2 So far as is relevant, s.93CA of the Act provided at the relevant time that an injured worker in the position of the appellant was entitled during "the first entitlement period", which was essentially 13 weeks after commencement of the payments, to weekly compensation as prescribed by the section, provided that he or she has satisfied the conditions set out in sub-s.(3). The amount of such entitlements varied depending on whether the worker had "current work capacity".[1] Section 93CB of the Act relevantly provided that if the incapacitated worker had satisfied certain conditions prescribed by the section, he or she became entitled to a continuation of weekly payments (usually in smaller amounts) during "the second entitlement period", which was essentially the balance of the period of 104 weeks from the date on which the worker commenced receiving the payments. Again, the amount of weekly compensation payable during the latter period varied depending on whether the worker did, or did not have, "current work capacity". Section 93CC**,** however, relevantly stated that, after the expiry of the second entitlement period, the worker's entitlement to compensation by way of weekly payments would cease unless he or she was assessed by the Authority as having no current work capacity and that this was likely to continue indefinitely. The Authority was given the right by s.114(2)(b) of the Act to terminate such weekly payments on the ground that the worker was no longer entitled to them - relevantly where the Authority determined that the worker had "current work capacity". Presumably purporting to act pursuant to s.114(2)(b), the respondent informed the appellant, by notice dated 20 June 2001, that it would terminate the weekly payments as from 20 July 2001 because, it said, he was no longer entitled to them given that he had already received payments for a period exceeding an aggregate of 104 weeks and had a "current work capacity" within the meaning of the Act.
3 The appellant disputed the respondent's determination in that regard, essentially on the basis that his general practitioner, Dr McIntosh, had issued at the relevant time numerous certificates to the effect that the appellant was "unfit for any duties". Although a conciliation conference was held no agreement was reached by the parties and, in the result, the appellant filed the present proceeding on 25 March 2004 seeking orders reinstating the weekly payments and requiring the respondent to pay arrears. The proceeding was instituted by the appellant personally and he represented himself in the court below and before us.
4 On 25 October 2004, the respondent requested the court, pursuant to s.45(1)(b) of the Act, to refer three medical questions to the medical panel. On 28 October 2004, a judge of the County Court ruled on that request and referred the three questions for opinion of a medical panel. It is relevant to note that the reference included a statement, as required by s.65(6A) of the Act, that comprised seven pages and which described, amongst other matters, the alleged injuries to which the medical questions related, the facts relevant to the medical questions, including the statement that the appellant's weekly payments were terminated on 20 July 2001 on the ground that he had a "current work capacity" and that the decision was challenged by the appellant. Moreover, the reference referred to, and enclosed, a considerable number of documents, including the Statement of Claim, the Defence, numerous medical reports and related material prepared between 15 March 1999 and 23 December 2004, including "certificates of capacity" issued by Dr McIntosh between 5 April 2001 and 30 September 2004 that certified that the appellant was unfit for any duties, as well as his reports of 6 July 2001 and 6 October 2004. Also included in the material was a Certificate of Opinion of a medical panel, dated 27 December 2001, which concluded, consequent upon an examination of the appellant, that he "does not have a total injury or total loss of use injury when assessed pursuant to s.98E of the Act". All the documentation that was forwarded to the panel constituted the Appeal Book in this appeal.
5 A medical panel examined the appellant in early 2005 pursuant to the court's request of 28 October 2004 and, by a Certificate of Opinion dated 23 January 2005, answered the three medical questions that were referred to it. Relevantly, the panel said that, although the appellant suffered from a lower back dysfunction and had an incapacity for pre-injury employment, it was of the opinion that he had a "current work capacity" within the meaning of the Act. More particularly, question 3 and its answer, read as follows:
"Question 3 (a) Does the Plaintiff have a current work capacity as a result of the said injuries having regard to the definition of 'current work capacity' in Section 5 of the Accident Compensation Act?
(b) If 'no' to (a), whether the Plaintiff is likely to continue indefinitely to have no current work capacity having regard to the definition of 'no current work capacity' in Section 5 of the Accident Compensation Act?
Answer: (a) The Panel is of the opinion that the Plaintiff has a current
work capacity.
6 The matter came back before the court on 6 May 2005 by way of a mention to determine the future disposition of the proceeding in light of the panel's opinion. The respondent's counsel applied for an order dismissing the proceeding on the ground that the court was bound by the opinion of the medical panel in accordance with s.68(4) of the Act and, therefore, was required to treat the appellant as having had capacity for work at all relevant times. It was submitted for the respondent that this position was made apparent by the decision of this Court in Ajinvan Pty Ltd v. Laurie Fry.[2] Thus, said counsel, the appellant was not entitled to the relief sought and, therefore, his proceeding should be dismissed. Her Honour adjourned the matter until 12 May 2005, partly because the appellant was unrepresented and would need to consider his position, and partly to allow her Honour the opportunity to consider the matter and "peruse the file". As I understand it, the "file" consisted essentially of the documentation that had been forwarded to the medical panel.
7 The matter returned to her Honour on 12 May 2005. The judge noted that it was decided in Ajinvan that the court cannot make a finding that was inconsistent with the opinion of the medical panel "unless there [was] some intervening event or change of circumstances in a significant way" and concluded that, in the circumstances, she was bound by the opinion of the panel, given that the appellant had not provided any material that suggested that he "did not have any work capacity between 20 July 2001 and 23 January 2005" and that, therefore, the proceeding "must be dismissed". Her Honour went on to order accordingly.
8 On 23 May 2005, the appellant instituted this appeal against her Honour's decision pursuant to s.52 of the Act, the terms of which limit the appeal to a question of law. The notice of appeal raises a number of grounds but, for reasons which will become apparent, it is only necessary to consider ground 4, under cover of which it is alleged that the panel's opinion that the appellant has current work capacity was based on an examination of him on 6 January 2005 and, therefore, could not be properly relied on to determine that issue during the preceding period, and in particular, as at 20 July 001. Before us, Mr Kumar argued that, whatever may be the force of the panel's opinion on the question whether he had current work capacity on 23 January 2005, it could not be determinative of the issue at the date of termination of the weekly payments, namely, 20 July 2001. The appellant emphasised that both the relevant question and responsive opinions are expressed in the present tense thereby showing, it was said, that the opinion did not relate to his work capacity as at 20 July 2001. It seems to me that her Honour took the view that the opinion of the medical panel operated retrospectively to 20 July 2001 unless it was demonstrated that there was some significant "change of circumstances" to justify a different conclusion. That her Honour considered that the opinion operated retrospectively is made apparent, I think, by her reference to "the intervening event or change of circumstances" which I take to be a reference to an event or circumstance that may have occurred subsequent to the date on which the opinion was thought to operate, namely, 20 July 2001. Hence, the critical question on appeal is whether her Honour erred in assuming that the opinion in question operated retrospectively to 20 July 2001.
9 It will be recalled that in the proceeding Mr Kumar sought two relevant orders: one reinstating the weekly payments and the other, back payments of the weekly payments to 20 July 2001. In light of the panel's opinion that the appellant has "current work capacity", his claim for reinstatement of weekly payments must fail. In the end, I think that Mr Kumar accepted that position.
10 Such a conclusion, however, does not necessarily determine the fate of his claim for arrears. As has been mentioned earlier, the question to the panel and its opinion were expressed in the present tense so that, on the face of things, the opinion did not relate to the appellant's work capacity as at 20 July 2001. Mr Fleming, for the respondent, nevertheless contended that, by necessary inference, the opinion operated retrospectively to 20 July 2001, with the result that it was determinative of the appellant's capacity for work during the period in question. Counsel argued that Phillips, J.A. (with whom Ormiston and Batt, JJ.A. agreed) in Ajinvan made it apparent that the opinion could not be read as operating only on the date on which it was given. It was accepted in that case, counsel said, that the opinion operated prospectively to the date of the hearing and that it had retrospective force to the date when the weekly payments were stopped, notwithstanding that it was expressed in current terms. Thus, it was claimed, the relevant opinion here effectively disposed of the entirety of the live issues in the proceeding, including the appellant's claimed entitlement to arrears, leaving her Honour with no alternative but to dismiss the appellant's claim.[3] As I will mention again later, that was the case that Mr Kumar was asked to meet on 12 May 2005.
11 Given that counsel and her Honour relied on the decision in Ajinvan to the extent referred to, it is necessary to look briefly at the relevant aspects of this decision. The critical issue in that case was whether the trial judge was entitled to find, as he did on 17 May 1999, that the plaintiff was totally and permanently incapacitated between 14 November 1996 and 26 May 1998 (and, thus, entitled to weekly payments under s.93B(1)(b) of the Act as it then stood), notwithstanding that the medical panel expressed the opinion, on 27 May 1998, that the plaintiff was partially (though permanently) incapacitated. Section 93B(3) - which is relevantly similar to s.93CC(1) - operated to disentitle the worker to the weekly amounts after 104 weeks of payments unless the worker had a serious injury or was totally and permanently incapacitated. There had been an earlier finding of serious injury up to 13 November 1996 but not thereafter. Thus, from 14 November 1996, any entitlement by the plaintiff to weekly payments was dependent solely upon a finding that he was totally incapacitated. The trial judge found, as I have said, that, notwithstanding the medical opinion of 27 May 1998, the plaintiff was totally incapacitated between 14 November 1996 and 26 May 1998, but thereafter was only partially incapacitated. Unsurprisingly, the Authority successfully contended on appeal that the finding of total incapacity was necessarily inconsistent with the medical panel's opinion of 27 May 1998, and, therefore, could not have been properly made. As Phillips, J.A. said, the finding that the worker was totally incapacitated on 26 May was inconsistent with the medical panel's opinion that he was only partially incapacitated on 27 May, given that there was no circumstance or event occasioning such a "dramatic alteration" in the plaintiff's condition (virtually within a period of 24 hours).
12 His Honour made it plain, as the judge below correctly noted, that the referring court is bound by the opinion of the panel on an issue properly referred to it for resolution, and consequently the court cannot make a finding that is inconsistent with the opinion. But Phillips, J.A. rejected[4], in unequivocal terms, the plaintiff's argument that the medical opinion was of "value" about his relevant condition only as at the date of the opinion, going on to say: "Yet surely it cannot be that the opinion of the medical panel, if sought for the purpose of s.93B, must be expressed on and as at the very day on which the period of 104 weeks expires, if it is to be of any use at all under sub.s.(3) and I reject the plaintiff's submission to the contrary." It seems to me that his Honour thereby recognised that, notwithstanding that an opinion of a medical panel has been given in the present tense (and where the question was also posed in the present tense), it may have wider operation in the sense that the court could not make a finding about the worker's relevant capacity as at an earlier date that was inconsistent with the opinion. Ajinvan was an example of a situation where the trial judge's decision as to the worker's condition on the date preceding that of the opinion was necessarily inconsistent with the medical panel's determination of that issue on a subsequent date and was, therefore, impermissible. As I have said, the Court decided that the panel's opinion that the worker was partially incapacitated as at the date of the opinion was necessarily inconsistent with the trial court's later decision that the worker was permanently incapacitated during the preceding period.
13 Importantly, however, the Court did not say that the opinion had retrospective effect to the date of the determination of the weekly payments. It is true that Phillips, J.A. considered[5] that, in light of the opinion, it was not open to a court to find that the plaintiff was totally and permanently incapacitated "at any time prior to 27 May 1998". But his Honour said this because, as he explained, such a finding would necessarily be inconsistent with the panel's subsequent opinion that the worker was only partially incapacitated. With respect, his Honour was plainly correct. An opinion of partial incapacity given on a particular day would be inconsistent with a later finding of total incapacity in respect of the same worker during a proximate period before the date of the opinion.
14 It is relevant to note, however, that Phillips, J.A. recognised[6] that, although s.68(4) requires the court to treat the opinion of the panel as "final and conclusive", it was possible that a different finding may be made by it in respect of a date that preceded the date of the opinion. But his Honour emphasised that whether such a different finding is permissible will "depend upon the nature and extent of the difference, and I include in that a difference in the date at which the medical panel is speaking and the date at which the other finding is being made." The words that were italicised by his Honour in his reasons highlight, I think, his view that, whether a court can properly come to a conclusion on an issue that is different from that of a medical panel depends on the circumstances of the particular case. In Ajinvan it was held that a different conclusion was not open given, as his Honour said,[7] "that there was no circumstance or event occasioning such a dramatic alteration," the reference to "alteration" being, I think, a reference to a change in the worker's incapacity from total to partial. And a little later in his reasons, his Honour said[8] that "[n]othing of significance occurred on [26 May 1998] so there was nothing to justify or explain the change in the plaintiff's condition, from total incapacity on 26 May to partial incapacity on the day after". These passages give rise to the inference that his Honour accepted that, had there been a relevant "circumstance" or "event", a different conclusion may have been open. But in Ajinvan, the nature and extent of the difference between the panel's opinion concerning the plaintiff's capacity and that of the trial judge was so stark that there was plain inconsistency between the two and, thus, the medical opinion had to prevail. As his Honour said:[9] "The condition of prior total incapacity, on a permanent basis, was simply not possible consistently with the subsequent opinion ..."
15 It seems to me, therefore, that Ajinvan does not establish that, in a case such as the present, the opinion of the medical panel operates retrospectively to 20 July 2001. Rather, the case emphasises, I think, that a Court cannot properly conclude, for example, that an injured worker did not have "current work capacity" during the preceding period where that finding would be inconsistent with the medical opinion that he or she had such work capacity. Whether there is such inconsistency will depend on all the circumstances, including the date at which the other finding is made and the evidence pertaining to the worker's relevant capacity on the earlier date.
16 In the context of this case Mr Kumar must establish, if he is to be entitled to arrears of weekly payments, that he did not have relevant work capacity during the period preceding the opinion, or a part of it. In reality this means that he has to establish, at the very least, that he lacked such capacity as at 20 July 2001. If he fails to do that, then, obviously enough, he is unlikely to make good such a claim for the balance of the period. As I have said, the medical panel's opinion is not determinative of the issue as at 20 July 2001. The respondent did not seek to refer to the panel the question about Mr Kumar's work capacity as at 20 July 2001, and Mr Fleming did not suggest that this could not have been done. There may have been sound reasons why such a step was not taken, but I think it would be inappropriate to speculate on this. Importantly, as I have noted, the Court in Ajinvan did not suggest that, in a case such as the present, the opinion operates retrospectively. Thus, the relevant initial question is whether a determination by the court that the appellant lacked work capacity as at 20 July 2001 would necessarily be inconsistent with the opinion of 23 January 2005. In my view, there would be no such inconsistency if the court were to make such a finding on the evidence before it. Unlike the position in Ajinvan, there is no reason why the appellant may have lacked relevant capacity on the earlier date, but was capable of doing relevant work almost four and a half years later, on 23 January 2005. Thus, I consider that, contrary to her Honour's view, she was not bound by the panel's opinion on the question whether the appellant lacked relevant work capacity as at 20 July 2001. This means that he was entitled to lead evidence to establish that position, a course that was denied to him by her Honour's order that was, as I have said, based on the erroneous view as to the binding nature and extent of the medical opinion.
17 It follows that, in my view, his Honour erred in law and, therefore, the impugned decision should be set aside. Given the circumstances of this case, I think that the matter should be remitted to the County Court for determination. It is far from clear to me that all the evidence on which the appellant might wish to rely to establish his relevant work capacity as at 20 July 2001 was before the court. As I understand the matter, the proceeding had not been listed for hearing as at 6 May 2005 and the impugned decision was made in the context of a directions hearing, as if on a demurer. Relevantly, the only question that the respondent sought to agitate at the mention was whether the court was bound by the panel's opinion, that is to say, whether, as a matter of law, the opinion was determinative of whether the appellant had work capacity during the period 20 July 2001 and 23 January 2005. That was the only case that the appellant was required to meet on 12 May 2005. And, for the reasons I have given, that case had no merit. True it is that the judge perused the "file" to determine if there was material "suggesting" that the appellant did not have relevant work capacity during the period in question. But in my view that did not cure the problem because, as I have mentioned, it is not at all clear to me that the material was exhaustive of the evidence that the appellant might have wished to lead in support of his case, in particular, on the issue whether he lacked work capacity on 20 July 2001.
18 I mention for completeness that in coming to the conclusion that the matter be remitted to the primary court, I am mindful that the preponderance of the medical reports that was before the panel (and her Honour) showed that the appellant had relevant work capacity when his weekly payments stopped so that, in the end, he
may fail to establish his case. Nevertheless, as I have said, he was not brought to court on 12 May 2005 for the purpose of his establishing by evidence that he had no "current work capacity" on, say, 20 July 2001. Consequently, I consider that it would be unjust to deny him the opportunity to put his case on that issue before the court. Hence, as I have said, I would allow the appeal, set aside her Honour's decision and remit the matter to the primary court for determination according to law.
19 I agree with Chernov, J.A. that the appeal should be allowed for the reasons stated by his Honour. I also endorse the additional observations made by Mandie, A.J.A.
20 I have had the benefit of reading, in draft, the reasons for judgment of Chernov J.A. I gratefully adopt his Honour's statement of the case.
21 The appellant, in his claim in the County Court, had sought: (i) "backpay of weekly workcover compensation payments to the date of termination" and (ii) "reinstatement of continuing weekly workcover compensation payments ...".
22 The defence dated 3 June 2004 filed by the respondent alleged that "the plaintiff has a current work capacity"[10]. The defence did not otherwise advert to the appellant's work capacity at and from the date of termination of payments, namely 20 July 2001.
23 Section 45 of the Accident Compensation Act 1985 ("the Act") empowers the
County Court to refer a medical question[11] to a Medical Panel for an opinion[12] and obliges the County Court to refer a medical question or medical questions to the Panel if a party to the proceedings so requests.[13]
24 By notice dated 25 October 2004 the respondent requested, pursuant to s.45(1)(b) of the Act, the County Court to refer the questions set out in the notice to a Medical Panel. Question 3(a) in the said notice set out the following question: "Does the Plaintiff have a current work capacity as a result of the said injuries having regard to the definition of "current work capacity" in Section 5 of the Accident Compensation Act?" It can be seen that the question was not formulated so as to relate back to 20 July 2001 and, on a plain reading, asked about the appellant's "current work capacity" at the time of referral to the Medical Panel.
25 The County Court had a discretion, on an application under s.45(1)(b) of the Act, as to the form in which the medical question was to be referred to the Medical Panel[14]. That discretion was not exercised in the present case. The Court ordered, on 28 October 2004, simply that "Medical questions be referred to a Medical Panel pursuant to Section 45(1)(b) of the Accident Compensation Act 1985 at the request of the Defendant". The order did not set out or identify the medical questions so referred, although obviously enough they were the questions contained in the respondent's notice of request. In my view it would be preferable for the order of the County Court to itself set out the medical question or questions referred. In the course of settling the form of such an order the County Court Judge would then have the opportunity to exercise, if appropriate, the discretion vested in the Court by s.45(1C) of the Act.
26 The apparent failure to consider the form of the medical question or questions has contributed to the consequences referred to in the reasons of Chernov J.A.
27 With those additional comments, I agree for the reasons given by Chernov J.A. that the appeal should be allowed.
[1] Section 5 of the Act defines current work capacity as "a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment. " "Suitable employment" is also defined in s.5.
[2] [2001] VSCA 148; (2001) 3 V.R. 644.
[3] I note for completeness that it was not suggested by Mr Fleming that the opinion had retrospective effect simply because the panel was made aware, through the s.65(6A) statement, that an issue before the court was whether the appellant was suitable for alternative work during the preceding period.
[4] At 650.
[5] At 652.
[6] At 650.
[7] At 650.
[8] At 651.
[9] At 652.
[10] The respondent, in its letter to the appellant dated 20 June 2001 had stated that his weekly payments of compensation would cease with effect from 20 July 2001 on the stated ground that "you have a current work capacity".
[11] As defined by s.5(1) of the Act.
[12] See s.45(1)(a) of the Act.
[13] See s.45(1)(b) of the Act, subject to the matters contained in s.45(1B) and (1C) of the Act.
Kumar
QBE Mercantile Mutual Workers' Compensation [2006] VSCA 103