DAVID TERRY V. VICTORIAN WORKCOVER AUTHORITY and HELLA AUSTRALIA

TRANSCRIPT OF PROCEEDINGS

T02329098

MAGISTRATES' COURT

DAVID TERRY v. VICTORIAN WORKCOVER AUTHORITY and HELLA AUSTRALIA

R U L I N G

MONDAY 22 MAY 2006

BEFORE MR B. WRIGHT, MAGISTRATE

Mr. P. Wischusen (instructed by Ryan Carlisle Thomas) for the

Plaintiff

Ms. G. Carosi (solicitor) for the Defendants

ACCIDENT COMPENSATION - TERMINATION OF WEEKLY PAYMENTS AND MEDICAL

AND LIKE EXPENSES - FURTHER GROUNDS FOR TERMINATION IN DEFENCE NOT

SUBJECT OF FORMAL NOTICE - REFERRAL SOUGHT TO MEDICAL PANEL

WHETHER ISSUES OR DISPUTES BETWEEN PARTIES SUITABLE FOR REFERRAL TO

MEDICAL PANEL - ACCIDENT COMPENSATION ACT S. 39(lAA), 45

(TRANSCRIBED BUT NOT RECORDED BY LEGAL TRANSCRIPTS)

LEGAL TRANSCRIPTS PTY LTD

Suite 18, 600 Lonsdale Street, Melbourne - Telephone 9642 0322

D E C I S ION

A ruling is sought in this matter as to the referral

of questions to a medical panel by the defendants and

material to go with those questions.

The plaintiff is apparently aged 59 years old and

had an admitted fall at work in 1987, ceasing work

finally in 1995.

He was in receipt of weekly payments at

the 90 per cent rate as for serious injury until those

payments were terminated together with his medical and

like expenses as at 1 July 2005, by way of a Notice dated

30 May 2005.

It is not disputed that he underwent spinal

surgery in 1989 and 1995.

The defendants admit paying s.98 compensation to the

plaintiff as well. Counsel for the plaintiff states that

this was based on a 37 and a half per cent impairment to

the back and $53,000 for permanent and partial loss of

mental powers.

The notice seeks to terminate weekly payments on the

basis that any continuing capacity no longer relates to a

work related injury.

In support of the decision the

Notice sets out extracts from three medical reports.

Essentially, the extracts from the medical reports state

the plaintiff has recovered from any work related injury

and that the plaintiff is capable of returning to the

work force.

These opinions are made despite this man's

history of two bouts of spinal surgery and the apparently

large amount of compensation paid pursuant to s.98.

received weekly payments for 10 years. As stated, he was

being paid at the maximum rate at the date of

termination.

The plaintiff issued these proceedings seeking to

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DECISION

set aside the Notice.

In their Defence the defendants

have, in addition to the matters raised in the Notice,

pleaded the plaintiff has a "current work capacity".

Also, the solicitors for the defendants have foreshadowed

an application to add a further particular to the defence

to the effect that if the plaintiff has "no current work

capacity", that this is not likely to continue

indefinitely.

Obviously, this raises the question of the

entitlement to weekly payments after 104 weeks receipt of

The solicitor for the defendants concedes that no

same.

Notice has been issued in accordance with those further

particulars.

In fact she concedes that in accordance

with the grandfather provision in s.93C, there has been

no review of the workers classification pursuant to

s.93C(7) and that there have been no AMA (2nd Edition)

assessments conducted for at least a number of years to

ascertain whether the plaintiff still has a "serious

injury" within the meaning of the Act.

Further, the defendants have not conducted any

vocational assessments to review the plaintiff's

classification in accordance with s.93C(8).

However,

this is less of a concern having regard to the doctors'

opinions set out in the grounds to the Notice.

The solicitor for the defendant says that the

allegation of current work capacity arises solely in

connection with the suggested 104 week termination in any

event.

The defendants seek to refer four questions to a

medical panel.

Counsel for the plaintiff does not

contest the referral of Question 1 as to the nature of

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DECISION

the worker's medical condition subject to minor

amendments, which the solicitor for the defendants agrees

are appropriate.

Question 2 is appropriate in my opinion as well.

Counsel for the plaintiff agrees with this as well.

The

real dispute concerns Questions. 3 and 4 which go to

"current work capacity" and the likely continuation of

any "no current work capacity".

This involves the consideration of two separate

issues. Firstly, whether the defendants can proceed with

their allegations as to non-entitlement to weekly

payments after 104 weeks without the issue of a formal

notice. Secondly, can questions covering that issue be

referred to a medical panel?

The two issues are separate

ones and should not be confused together.

The solicitor for the defendants submits that

despite the fact that grounds for termination pursuant to

s.93B(3), s.93C and/or s.93CC(1) have not been the

subject of a formal decision by the VWA or its authorised

agent, such further ground can be considered by this

court pursuant to s.39(lAA) of the Act.

Counsel for the plaintiff says that s.39(lAA) does

not contemplate that a court can consider further grounds

for termination without the issue of a formal Notice.

says that s.39(lAA) only contemplates a court being able

to consider grounds for termination directly related to

the original Notice.

On 17 May 2006 I delivered an ex tempore ruling in

Sangster v. Kookaburra Security in which I ruled that a

court could consider further questions for termination of

weekly payments other than those set out in a formal

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DECISION

Notice the subject of proceedings.

However, the extent

and applicability of s.39(lAA) was not argued in that

case.

Certainly a court must consider the existence,

nature and extent of the dispute or disputes between the

parties in considering whether a question should be

referred to a medical panel and the wording of the

question (see HIH v. Greeves,

[1998] VSC 97).

The issue has also recently been considered by the'

County Court in Grech v. Complete Concreting [2006] VCC

312.

However, that case involved issues which had been

the subject of formal Notices and were relevant to the

issues defined in the pleadings as well.

In my view, s.39(lAA) contemplates a court

considering a question of entitlement of a worker to

weekly payments pursuant to a decision as defined by the

Act which is properly before the court, that is the

subject of a valid Notice or otherwise.

The provision then allows the court to have

jurisdiction in that proceeding to consider any other

question or matter relating to the termination of, or

entitlement to, weekly payments pursuant to the Act.

Counsel for the plaintiff submits that the words"

. by virtue of this Act" contemplate the issue of a

further proper Notice under the Act.

Further, he submits

that such provision contemplated and sought to remedy

only the situation in VWA v. Balogh (2004) VSCA 200,

where the 104 week period fell between the original

Notice of Termination and the hearing of the court

proceedings arising out of that Notice. I do not accept

31 .

that those three arguments raised by counsel for the

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DECISION

plaintiff are correct.

Both parties cite the Explanatory Memoranda and

second reading speech to the Bill which became Act No. 28

of 2005, which inserted s.39(lAA) into the Act in support

of their arguments.

Certainly I can consider those documents as an aid

to interpretation pursuant to the Interpretation of

Legislation Act s. 35 (b) (ii) and (iii).

At p.17 of the Explanatory Memorandum in relation to

"Division 6 - Amendments relating to Weekly Payments"

which included the amendment inserting s.39(1)AA into the

Act it was stated:

"The need for these amendments arose as a result of the

recent Court of Appeal decision in Victorian WorkCover

Authority v. Balogh (2004) VSCA 200.

The consequences of

that decision were that the VWA and its agents could not

challenge a worker's continuing entitlement to arrears of

weekly payments in cases where a procedural step was not

completed.

To address the issues raised by that decision the

Accident Compensation Act 1985 is being amended to ensure

that the procedural provisions of the Act concerning the

giving of a notice do not take precedence over provisions

concerning entitlements".

Further, in relation to the proposed s.39(IAA)

specifically, it stated:

"This is not intended to expand the exclusive

jurisdiction of the County Court, but merely to indicate

that the court is not limited to considering issues

arising out of the decision to terminate or reject the

claim".

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DECISION

In the second reading speech in the Lower House on

19 May 2005 at p.1244 of Hansard, the Attorney-General in

relation to the "Balogh amendments" said that:

"The Bill includes provisions intended to address

issues raised by the Victorian Court of Appeal's decision

in the matter of Balogh v. Shire of Yarra Ranges.

that case the court determined that in the absence of a

formal 104 week notice, it had no jurisdiction to

consider worker's entitlements and therefore the worker

is entitled to continuing weekly payments.

The decision overturned what was the common practice

and understanding of the provision in both the plaintiff

and defendant communities.

The amendments come with

their support, given the court decisions far-reaching

administrative and financial consequences that could

undermine the VWA's viability.

The amendments therefore

return to the position as it was understood prior to the

Balogh decision".

More importantly it was stated in the second reading

speech:

"The provisions operate to clarify Parliament's

intention with respect to the termination of weekly

payments in the absence of a formal notice."

Looking at both those documents it seems clear that

although the Balogh decision was one of the precipitators

to the amendments together with Williams v. Mullins

Wheels,

(CC (Vic), Judge Coish, unreported, delivered 12

February 2004).

The Parliament considered the whole

question, and sought to ensure that a court is able to

consider the whole question of continuing entitlement to

arrears of weekly payments in cases where a procedural

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DECISION

step including the issue of the formal Notice, or even

continuing medical certificates, had not been issued or

obtained.

Obviously the raising of further grounds of

termination or alteration of weekly payments, not the

subject of the formal Notice should be the subject of

proper particulars in a Notice of Defence in this court.

Also, the parties in the court should be able to properly

consider and deal with those further issues.

If counsel for the plaintiff is correct in his

argument, then there would be nothing to stop the issue

of a 104 week notice shortly after any favourable

decision of this court for his client in these

proceedings.

This would obviously entail further costs,

administration and delay.

Apart from dealing just with

the limited and discrete factual point in the Balogh

decision itself, I find that the intention of Parliament

was to deal with and remedy the general issue of

procedural points such as notices and certificates

delaying cases and increasing costs if a court is in

position to deal with all relevant issues in the one

proceeding.

It is appropriate for a court to consider the

question of a 104 week termination in the present

proceedings without the issue of a formal Notice going to

such.

However, that is not to say that the questions

going to that further ground should automatically be

referred to a medical panel as part of these proceedings.

As I have said, the Supreme Court in HIH v. Greeves

said that the court must consider the nature and extent

of the disputes between the parties in considering the

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DECISION

referral of questions to a medical panel in exercising

its functions pursuant to s.45 (see also, Isuzu v. Jordon

( 2 0 0 0 ) 2 VR 212, 218).

The solicitor for the defendants has frankly and

properly admitted that the worker's classification

pursuant to s.93C(7) and probably s.93C(8) has not been

reviewed pursuant to those sub-sections.

The plaintiff

and defendants have not obtained any AMA (2nd Edition)

assessments in recent times, nor have they considered any

vocational assessments.

So is there really a dispute between the parties on

these issues as at this date?

I believe not in the

circumstances of this case. Referring questions on a

potential 104 week termination at this stage is a fishing

exercise at best at this stage and is probably an abuse

of process pursuant to s.45(18) as well.

It seems to me that the medical panel process was

introduced to resolve existing and actual medical

disputes rather than create them in the first place (see

Masters v. McCubbery [1996] 1 V.R. 635, 642).

addition I note that there is no proposed medical

question as to the degree of the worker's impairment pursuant to AMA (2nd Edition) in relation to 'serious

injury' at this stage.

Thus, I do not believe it is appropriate as part of

this referral to refer Questions 3 and 4 to a medical

panel.

Obviously the question of material to go with the

referral will need to be reconsidered by the parties in

the light of this ruling.

- -

(Note; After delivering this Ruling I was informed

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from the Bar table by the solicitor for the defendants that the defendants had obtained an AMA (2nd edition)

assessment some time in 2004, but had not taken the

matter any further. She was did not give any more

detail.)

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DISCUSSION