Plaintiff v First Defendant

1 The plaintiff brought proceedings in the Magistrates' Court claiming a continuing entitlement to compensation under the Accident Compensation Act 1985 (Vic) (ACA) for injuries he sustained in the course of his employment with the first defendant. A magistrate referred medical questions relevant to the plaintiff's proceeding (the questions) to a medical panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRCA). The medical panel, constituted by the third defendant, provided a certified opinion on 1 September 2016 answering the medical questions. The plaintiff commenced this proceeding seeking an order in the nature of certiorari quashing the opinion of the medical panel.

2 The plaintiff and first defendant agree the opinion of the medical panel should be quashed. They have provided the Court with a joint memorandum submitting the Court should set aside the medical opinion and that the matter be remitted to a differently constituted medical panel.

3 In judicial review proceedings it is necessary for the Court to be satisfied that it is appropriate to make consent orders which the parties propose.[1] For the following reasons, I am satisfied that the Court should make the orders sought by the parties.

4 The plaintiff has two accepted claims for compensation under the ACA, the first in respect of a low back injury allegedly sustained on 3 August 2010, and the second in respect of a right shoulder injury and psychological injury from July 2011.

5 The plaintiff was notified in April and July 2015 that his weekly payments and entitlement to certain therapies would cease in August 2015.

6 The plaintiff commenced the proceeding in the Magistrates' Court challenging the decisions to terminate his entitlement to compensation under the ACA. In that proceeding he relied on both work injuries.

7 In April 2016, Magistrate O'Brien referred medical questions relevant to the proceeding to the medical panel. Those questions included inquiry as to the nature of the plaintiff's medical condition relevant to the low back injury. On 1 September 2016 the medical panel returned its opinion on the referred questions, which was as follows:

Question 1. What is the nature of the plaintiff's medical condition relevant to the following alleged injuries, namely:

(a) Right elbow;

(b) Right shoulder;

(c) Psychological condition;

(the said injuries)?

Answer: (a)-(c) In the Panel's opinion the Plaintiff is currently suffering from a residual dysfunction of the right shoulder as a consequence of a soft tissue injury, surgically treated, and from asymptomatic scarring of the right elbow, and from an adjustment disorder with mixed anxiety and depression, attributable to the alleged said injuries.

Question 2. What is the extent to which any physical or mental condition of the plaintiff results from or is materially contributed to by any, and, if so which, of the said injuries?

Answer: The Panel is of the opinion that the Plaintiff's current physical and psychiatric medical condition of a residual dysfunction of the right shoulder as a consequence of a soft tissue injury, surgically treated, and asymptomatic scarring of the right elbow, and adjustment disorder [sic] with mixed anxiety and depression results from, and is materially contributed to by the alleged right shoulder, right elbow and psychological condition injuries.

Question 3. Does the plaintiff have:

(a) a current work capacity; or

(b) no current work capacity?

Question 4. If the plaintiff has no current work capacity, is the plaintiff likely to continue indefinitely to have no current work capacity?

Answer: Not applicable.

Question 5. If applicable, whether the Plaintiff's incapacity for work results from or is materially contributed to by any, and if so, which, of the said injuries?

Answer: The Panel is of the opinion that the Plaintiff has an incapacity for his full pre-injury duties and hours of work as a self-employed courier/driver with the Defendant, and this incapacity results from and is materially contributed to by the alleged right shoulder injury.

Question 6. In the period from 9 August 2015 (the date of termination of the following medical and like expenses) to the date of the Medical Panel examination, was it appropriate and, if so with what frequency, for the Plaintiff to undergo:

(a) hydrotherapy;

(b) physiotherapy;

(c) chiropractic attendances;

(d) osteopathy;

(e) remedial massage;

(f) acupuncture;

as treatment for any, and if so which, of the said injuries?

Answer: (a)-(f) The Panel is of the opinion that in the period from 9 August 2015 to the date of the Medical Panel's examination hydrotherapy, physiotherapy, chiropractor attendances, osteopathy, remedial massage and acupuncture were not appropriate for the alleged said injuries.

Question 7. As at the date of the Medical Panel examination, is it appropriate and, if so with what frequency, for the plaintiff to undergo:

(a) hydrotherapy;

(b) physiotherapy;

(c) chiropractic attendances;

(d) osteopathy;

(e) remedial massage;

(f) acupuncture;

as treatment for any, and if so which, of the said injuries?

Answer: (a)-(f) The Panel is of the opinion that as at the date of the Medical Panel's examination hydrotherapy, physiotherapy, chiropractor attendances, osteopathy, remedial massage and acupuncture are not appropriate for the alleged said injuries.

The medical panel provided written reasons for its opinion dated 1 September 2016.

(a) recorded the history it obtained from the plaintiff, which included the plaintiff's complaint to the panel that he continued to suffer chronic pain in his low back;

(b) set out its physical examination and examination findings which included the right shoulder, neck and right elbow, but not the low back; and

(c) made findings about the appropriate diagnosis of the medical conditions of the plaintiff's right shoulder and right elbow and psychiatric condition and their relationship to the plaintiff's employment, but failed to make any finding about what, if any, medical condition the plaintiff was suffering in his lower back and its relationship to his employment.

9 When considering the issue of the plaintiff's current work capacity the panel said:

"The Panel gave consideration to whether the Plaintiff has a current work capacity or no current work capacity. In accordance with the decision of Minter Ellison v Darbyshire & Ors [2012], when determining whether the Plaintiff has no current work capacity the Panel did not consider any incapacity arising from any medical condition other than the Plaintiff's workplace injury that creates an entitlement under the Act".

The parties agreed the case reference is to Minter Ellison Services Pty Ltd v Kotzman.[2]

10 The panel's reasons demonstrate that, when considering the plaintiff's capacity for suitable employment, they limited their assessment to whether and what extent the plaintiff's right shoulder, elbow and psychiatric conditions restricted his capacity for employment. The panel did not consider whether and if so what restrictions flowed from his prior low back injury. It is apparent that the panel considered itself obliged to ignore the plaintiff's prior back condition altogether when assessing his current work capacity resulting from his subsequent neck, shoulder and psychiatric conditions.

11 In the joint memorandum the plaintiff and the first defendant contend:

That was an error. Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375 is authority for the proposition that a subsequent, unrelated and non-compensable medical condition should be disregarded when considering what incapacity flows from a prior compensable injury. But it is not authority for the proposition that a prior, work-related injury or condition is to be ignored. Indeed, when assessing what incapacity results from a compensable injury to a worker, at least work-related prior conditions should be considered. So much is apparent from authorities including Ward v Corrimal-Balgownie Collieries [1938] HCA 70; (1938) 61 CLR 120 and Walsh v Department of Human Services [2014] VSCA 244.

The plaintiff and first defendant contend the medical panel's failure to consider the plaintiff's back condition was an error of law.

12 The second defendant is the convenor of medical panels, and the third defendant is the medical panel. The second and third defendants neither consent to nor oppose the making of the orders that are sought.

13 I am satisfied, for the reasons given in the joint memorandum, that the medical panel has erred in law and that the opinion should be set aside. The plaintiff and first defendant agree that prior to the matter proceeding for redetermination by a differently constituted medical panel, it should be referred back to the Magistrates' Court for consideration as to whether or not the questions referred to the panel should be amended. I consider it is appropriate this occur. I will make the orders to which the plaintiff and the first defendant have consented.

[1] Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323, 323-327; Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 [12]-[16].

[2] [2012] VSC 375 (10 October 2012). The worker in that case was Deberra Darbyshire.