McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293

McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293 - VSCA 2014 case summary — Zoe

[27]

104B Claims for compensation under section 98C

...

(2) [VWA] ... must within 120 days of receiving a claim made by the worker ... -

(a) ... accept or reject liability for each injury included in the claim;

(b) obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;

(c) after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of -

(i) section 98C; ...

...

(e) calculate any entitlement to compensation under section 98C or 98E;

(f) advise the worker as to -

(i) ... the decision to accept or reject liability for each injury included in the claim;

(ii) each of the determinations as to the degree of permanent impairment (if any) of the worker ... resulting from the injury or injuries in respect of which liability is accepted;

(iii) the calculation of any entitlement to compensation under section 98C or 98E;

(g) provide to the worker a copy of -

(i) any medical reports, correspondence and other documents provided to; and

(ii) any medical reports, correspondence and other documents obtained from -

any medical practitioner ... conducting an independent examination.

...

(2A) [VWA] ... is not bound by the assessment or assessments obtained under subsection (2)(b) in determining the degree of permanent impairment (if any) under subsection (2)(c).

...

(5) [VWA] ... must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of -

(a) determining any entitlement of the worker to compensation under section 98C ...

...

(5B) A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.

...

(9) [VWA] ... must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment ... in respect of the injury or injuries claimed, refer the medical questions as to -

(a) the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and

...

to a Medical Panel for its opinion under section 67.

...

(11) For the purposes of this section, liability in relation to a claim does not include a question as to the degree of permanent impairment of a worker ...

[55]

The Panel noted that the worker first experienced psychotic symptoms in 1983 when playing golf, and the worker said that at this time he heard a voice telling him that he should 'be sincere' and that he would have 'a ministry of compassion.' The worker said that ever since then he had remained in various forms of direct communication with God, including hearing God's voice directly and in various forms starting in the late 1980's until the present. He said that he had also experienced 'visions' over the years and that in 1992 he started speaking in tongues ...

The Panel was satisfied that these long term and implausible experiences were all of a psychotic nature and had preceded the relevant workplace incident.

... [T]he Panel was satisfied that in the initial period after the relevant incident, the worker had suffered from an exacerbation of the pre-existing psychotic illness due to the additional stress that the worker endured as a result of the incident and subsequent physical assessments and treatment.

The Panel noted that the worker came under a psychiatrist's care for the first time in 2000 (after the relevant workplace incident), and considered that this was indirectly indicative of a deterioration in the worker's condition around the time of the relevant workplace incident. The worker said that he had continued to attend a psychiatrist until 2007. The worker said that the psychiatrist no longer felt that the worker needed to attend and that since 2007 the worker had been attending his General Practitioner and had continued receiving antipsychotic medication prescriptions.

...

The Panel was satisfied that since the previous Panel assessment the worker had continued to suffer from a range of religious psychotic experiences ...

The Panel concluded that the worker suffered from an exacerbation of a

pre-existing Chronic Schizophrenia, and that the exacerbation of this condition has since resolved, relevant to the accepted

psychiatric-schizophrenia injuries.

The Panel is therefore of the opinion that the entirety of the current psychiatric condition results from the worker's pre-existing Chronic Schizophrenia.

...

The Panel ... concluded that ... the worker's psychiatric condition is ... permanent.

[68]

As the High Court held in [Wingfoot], the opinion of the previous medical panel must be adopted and applied for the purposes of determining the question or matter in which the medical question arose and in respect of which the medical question was referred to the medical panel. However, it does not require the opinion of the medical panel to be adopted for the purposes of determining some other question or matter. The two questions asked of the medical panel were substantially different from those asked of the previous medical panel, and were asked as to a much later date.

The medical panel undertook its examination in July 2013. The previous medical panel conducted its examination in 2007. It is not surprising that over six years later the medical panel reached the conclusion that it did that while there had been an exacerbation or aggravation of the pre-existing chronic schizophrenia caused by the incident in April 1999 that exacerbation or aggravation had since resolved. The conclusion reached by the medical panel is not inconsistent with the opinion of the previous medical panel given as it was in 2007.

It was open to the medical panel to take the view that the aggravation in 1999 was a transient or passing or past aggravation that had no current impairing consequences. It was also open to the medical panel to take the view that once the aggravation had passed the continuing chronic schizophrenia was due to Mr McVey's pre-existing condition prior to the aggravation incident. These matters were properly before the panel. As an expert panel, it was open to it to be of the opinion that the current permanent psychiatric impairment was due only to Mr McVey's pre-existing schizophrenic condition, and not as to the whole or any part due to the aggravation in 1999. The medical panel had the opinion of the previous medical panel as well as the opinion of Dr Adlard before it. It was open to it to come to the opinion which it did. It did not act contrary to the requirements of s 68(4) of the Act.[17]

[70]

The Judge was wrong in holding that the injury for which [Mr McVey] had made a claim for compensation in 2008 under the [Act] was a claim for exacerbation or aggravation of chronic schizophrenia, and should have held that the relevant injury for which [Mr McVey] had claimed compensation was 'psychiatric injury including schizophrenia'.
The Judge was wrong in not holding that the injury for which the [Employer] had accepted liability under s 104B(2)(a) of the Act to [Mr McVey] in respect of his claim was 'Psychiatric Injury-Schizophrenia', and was wrong in holding that liability had been accepted only for an aggravation or exacerbation of a pre-existing schizophrenia.
The Judge was wrong in not holding that the injury of [Mr McVey] in respect of which the Medical Panel was required, in the questions put to it, to give its opinion was schizophrenia, and was wrong in holding that the injury for those purposes was an exacerbation or aggravation of chronic schizophrenia.
The Judge was wrong ... in [not] holding that it was not open to the Medical Panel to decide that [Mr McVey's] permanent whole person impairment resulting from the injury for which the Medical Panel was required to give its opinion was 0%, as the Medical Panel had found that the permanent whole person impairment of [Mr McVey] resulting from his schizophrenia was 35%.
The Judge was wrong in holding that [Mr McVey's] schizophrenia was an impairment from an unrelated injury or cause within the meaning of s 91(7)(c) of the Act.
The Judge was wrong in holding that the Medical Panel was entitled to answer the questions put to it on the basis of its view of what was [Mr McVey's] compensable injury.
The Judge was wrong in holding that the words 'unrelated injury or cause' in s [91(7)(c)] of the Act meant 'unrelated to the incident' and should have held that they meant 'unrelated to the injury the results of which are being assessed; that is, the injury in respect of which the claim was made.'
The Judge was wrong in not holding that the reasons of the Medical Panel showed that it had not answered ... the question put to it, or had done so on a mistaken view of the injury of [Mr McVey] for which it was required to give its opinion, or on an erroneous view of the meaning and application of s 91(7)(c) of the Act.
The Judge was wrong in holding that the conclusion reached by the Medical Panel was not inconsistent with the opinion of the previous Medical Panel given as it was in 2007, as the Medical Panel's opinion that [Mr McVey] had suffered only a transient exacerbation of his schizophrenia in 1999 is inconsistent with the opinion of the previous Medical Panel, which was that in 2007 [Mr McVey] was suffering from schizophrenia and that his employment was a significant contributing factor to that schizophrenia. In not adopting applying and accepting the opinion of the previous Medical Panel as final and conclusive the Medical Panel has not complied with the requirements of s 68 (4) of the Act in forming its opinion.
On 21 March 2007, in proceedings for weekly compensation brought by [Mr McVey] in the County Court of Victoria ... His Honour Judge Coish applied and adopted the Opinion of the 2007 Medical Panel, pursuant to s 68(4) of the Act, and ordered that the [Employer] pay to [Mr McVey] weekly payments of compensation at the rate applicable for no current work capacity from April 2004 and continuing in accordance with law. The Medical Panel, and the [Employer], were bound by that decision and order, and were obliged to, but did not, apply and adopt that Opinion and act consistently with it. The Judge was wrong in not deciding that s 68(4) of the Act required that the Medical Panel and the [Employer] perform their functions by applying the previous Medical Panel's Opinion, which was that:

At a glance

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Source

Judgment (135 paragraphs)

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Legislation Cited (2)

Cases Cited (1)