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Legal Firm challenges workers compo claim Fiona BROWN v Maurice BLACKBURN

#1 User is offline   hukildaspida 

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Posted 16 February 2011 - 10:02 PM

This is an interesting case currently before the Courts in Australia and highlights just how distressing working in a Law Firm that deals with workers Compensation cases may be.

Fiona BROWN was a former partner in Maurice Blackburn. She brought to her managers attention she was been harassed at her workplace, which so happened to be a Law firm that is there to help injured people get their legal entitlements with

http://www.vic.gov.a...mpensation.html

http://www.worksafe.vic.gov.au etc



Maurice Blackburn has offices throughout Australia and is known to do a number of Class Action cases.

http://www.theage.co...0515-1av4m.html

Submissions were filed in The High Court of Australia in Melbourne on 1 February 2011.
(hope this link works)

http://www.hcourt.go...Maurice_App.pdf

http://www.mauriceblackburn.com.au

A very good website and support network on the following link with some very helpful resources ;)

http://workcovervictims.blogspot.com/
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#2 User is offline   DARRELLGEMMA 

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Posted 17 February 2011 - 11:46 AM

View Posthukildaspida, on 16 February 2011 - 10:02 PM, said:

This is an interesting case currently before the Courts in Australia and highlights just how distressing working in a Law Firm that deals with workers Compensation cases may be.

Fiona BROWN was a former partner in Maurice Blackburn. She brought to her managers attention she was been harassed at her workplace, which so happened to be a Law firm that is there to help injured people get their legal entitlements with

http://www.vic.gov.a...mpensation.html

http://www.worksafe.vic.gov.au etc



Maurice Blackburn has offices throughout Australia and is known to do a number of Class Action cases.

http://www.theage.co...0515-1av4m.html

Submissions were filed in The High Court of Australia in Melbourne on 1 February 2011.
(hope this link works)

http://www.hcourt.go...Maurice_App.pdf

http://www.mauriceblackburn.com.au

A very good website and support network on the following link with some very helpful resources ;)

http://workcovervictims.blogspot.com/

Hi hukildaspida it is Darrell here. Interesting case, just goes to show that acc can cut your entitlement off on fictious evidence which is what they did to me & yet the entitlements are protected by statute how the hell do they cut them off. Be interesting to see what the result is from this case & perhaps we should look at using in cases that us claimants have to take to review & then onto the district court.
Kind Regards
Darrell Pearce
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#3 User is offline   hukildaspida 

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Posted 17 February 2011 - 04:17 PM

View Posthukildaspida, on 16 February 2011 - 10:02 PM, said:

This is an interesting case currently before the Courts in Australia and highlights just how distressing working in a Law Firm that deals with workers Compensation cases may be.

Fiona BROWN was a former partner in Maurice Blackburn. She brought to her managers attention she was been harassed at her workplace, which so happened to be a Law firm that is there to help injured people get their legal entitlements with

http://www.vic.gov.a...mpensation.html

http://www.worksafe.vic.gov.au etc



Maurice Blackburn has offices throughout Australia and is known to do a number of Class Action cases.

http://www.theage.co...0515-1av4m.html

Submissions were filed in The High Court of Australia in Melbourne on 1 February 2011.
(hope this link works)

http://www.hcourt.go...Maurice_App.pdf

http://www.mauriceblackburn.com.au

A very good website and support network on the following link with some very helpful resources ;)

http://workcovervictims.blogspot.com/

IN THE HIGH COURT OF AUSTRALIA
MELBOURNE OFFICE OF THE REGISTRY
No. M 176 of2010
BETWEEN:
HIGH COURT OF AUSTRALIA
FILED
MAURICE BLACKBURN
CASHMAN
Appellant
10 -iFEB 2011 - and-
FIONA HELEN BROWN
THE REGISTRY MELBOURNE Respondent
APPELLANT'S SUBMISSIONS

20 Part I - Internet certification:
30
1. These submissions are in a fonn suitable for publication on the internet.
Part 11 - Concise statement of issues:
2. The issue which arises from the grounds of appeal is -
• Does s 134AB(15) of the Accident Compensation Act 1985 (Vie), either alone,
or in combination with s 68(4), operate so that a worker, whose degree of
impairment has been assessed under s 104B of the Act at 30% or more, is
deemed to have suffered a "serious injury" for the purpose of the
adjudication of the issues arising in a damages proceeding brought pursuant
to s 134AB, with the consequence that defendants are prohibited from
conducting their case in the manner specified by the orders of the Court of
Appeal?
Part III ,... Judiciary Act, s 78B:
3. The appellant has ·considered whether any notice should be given in compliance
with s 78B of the Judiciary Act 1903 (Cth), and considers that no such notice
should be given.
Filed on behalf of: The appellant
Minter Ellison
Lawyers
Rialto Towers
525 Collins Street
MELBOURNE VIC 3000
DX 204, Melbourne
Tel: (03) 86082000
Fax: (03) 8608 1000
Ref: CXB:DSP (Carmen Buccheri)
carmen.buccheri@minterellison.com
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#4 User is offline   hukildaspida 

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Posted 17 February 2011 - 04:22 PM

View Posthukildaspida, on 17 February 2011 - 04:17 PM, said:

IN THE HIGH COURT OF AUSTRALIA
MELBOURNE OFFICE OF THE REGISTRY
No. M 176 of2010
BETWEEN:
HIGH COURT OF AUSTRALIA
FILED
MAURICE BLACKBURN
CASHMAN
Appellant
10 -iFEB 2011 - and-
FIONA HELEN BROWN
THE REGISTRY MELBOURNE Respondent
APPELLANT'S SUBMISSIONS
20 Part I - Internet certification:
30
1. These submissions are in a fonn suitable for publication on the internet.
Part 11 - Concise statement of issues:
2. The issue which arises from the grounds of appeal is -
• Does s 134AB(15) of the Accident Compensation Act 1985 (Vie), either alone,
or in combination with s 68(4), operate so that a worker, whose degree of
impairment has been assessed under s 104B of the Act at 30% or more, is
deemed to have suffered a "serious injury" for the purpose of the
adjudication of the issues arising in a damages proceeding brought pursuant
to s 134AB, with the consequence that defendants are prohibited from
conducting their case in the manner specified by the orders of the Court of
Appeal?
Part III ,... Judiciary Act, s 78B:
3. The appellant has ·considered whether any notice should be given in compliance
with s 78B of the Judiciary Act 1903 (Cth), and considers that no such notice
should be given.
Filed on behalf of: The appellant
Minter Ellison
Lawyers
Rialto Towers
525 Collins Street
MELBOURNE VIC 3000
DX 204, Melbourne
Tel: (03) 86082000
Fax: (03) 8608 1000
Ref: CXB:DSP (Carmen Buccheri)
carmen.buccheri@minterellison.com



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2
Part IV - Citation of the reasons for jndgment of the Court of Appeal:
4. The reasons for judgment of the Court of Appeal are not reported. They are
available on Austlii, where the reasons may be downloaded in RTF format:
Brumar (Vic) Pt' Ltd v Norris; Brown v Maurice Blackburn Casbman [2010]
VSCA 206 (25 August 2010).
Part V - Narrative statement of relevant facts:
5. The appellant is a firm of legal practitioners. In 2003 the respondent was
employed by the appellant as a salaried partner and as the head of its family law
practice in Melbourne.
6. The respondent claims that from 8 January 2003 to 17 November 2003 she was
"[Ystematically undermined, harassed and humiliated' by a fellow employee, and that
complaints and requests to the managing partner for intervention went
unanswered and that, as a consequence, she suffered psychological injury and
associated loss and damage.
7. On about 12 December 2005, and pursuant to s 98C of the Accident Compensation
Act, the respondent made a claim for statutory compensation for non-economic
loss. The amount of compensation payable to the respondent was determined,
in part, by the assessment of the respondent's degree of impairment in
accordance with s 91 of the Act, which required that the assessment be made in
accordance with the AMA Guides (4'h edition) as modified by s 91, and in
particular as modified by s 91(6) which substituted for Chapter 14 of the AMA
Guides, the Clinical Guidelines to the Rating of Psychiattic Impairment'.
8. On or about 23 February 2006, the Victorian WorkCover Authority ("the
Authority"), by its authorised agent, accepted that the respondent had a
psychological injury arising out of her employment with the appellant.
9. On about 22 March 2006, and pursuant to s 104B(9) of the Accident Compensation
Act, the Authority referred the following medical questions to a Medical Panel
for its opinion under s 67 of the Act -
I Section 91(6) was subsequently substituted by s 9(2) of the AcddCll1 COlnpeJIsalioll OIld Other Legis/alioll (Anmu/nJelI/) Act
2006 which commenced on 26 July 2006, so that there is now substituted for Chapter 14 of the AMA Guides the
guidelines entitled "The Guide to the Evaluation of Psychiatric Impainnent for Clinicians". The transitional provision
is in s 290 of the Accidnll Compel/sa/ioll Act.
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#5 User is offline   hukildaspida 

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Posted 17 February 2011 - 04:23 PM

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(1) What is the degree of impairment resulting from the accepted injury / s
assessed in accordance with Section 91, and is the impairment
permanent?
(2) Does the worker have an accepted injury which has resulted in a total
injury mentioned in the table in Section 98E(1)?
10. The Medical Panel was constituted by Dr Diane Neill and Dr Nathan Serry. On
28 June 2006 the Panel certified as follows2
-
(1) The Panel is of the opinion that there is a 30% psychiatric impairment
resulting from the accepted psychological injury, when assessed in
accordance with Section 91(2) for the purposes of Sections 98© and
134AB(3) & (15) of the Act. The degree of psychiatric impairment is
permanent within the meaning of the Act.
(2) No.
11. On about 15 August 2006, the Authority advised the respondent of the Panel
opinion and of her entidements under s 98C of the Act.
12. On about 25 October 2006 the respondent made application pursuant to
s 134AB(4) of the Accident Compensation Act, by which she sought access to the
statutory "serious io/ur:j' gateway beyond which she could then commence a
common law proceeding against the appellant for damages3

13. By s 134AB(15) of the Accident Compensation Act, the respondent was deemed to
have suffered a "serious io/ur:j', because the assessment undertaken under s 104B
of the Act was 30 per centum or more.
14. On 18 July 2007 the respondent commenced a proceeding in the County Court
of Victoria by which she claimed common law damages for negligence4
• The
mode of trial nominated by the respondent on the writ was trial by jury'.
15. By its amended defence dated 29 September 2009, the appellant denied (inter
alia) the respondent's allegations of causation and injury·.
2 See certificate of opinion dated 28 junc'2006.
3 BarwollSpiJlllers Ply Ud v. Podolak (2005) 14 VR 622; D»yer v. Calco Tilllbers PlyUd(2008) 234 CLR 124.
4 Sec writ & statement of claim dated 18 July 2007.
5 COIIIl{y COllrt Rules oJProcednre ill Civil Proceedillgs 1999, Rule 47.02(1) and (1.1). See now, COUllty COllrt Civil Procedure
RIll" 2008, Rule 47.02(1)(a) and (1.1).
6 See amended defence dated 29 September 2009, para 7.
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#6 User is offline   hukildaspida 

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Posted 17 February 2011 - 04:24 PM

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16. By her amended reply dated 15 October 2009, the respondent alleged that the
Medical Panel opinion must be accepted as final and conclusive in the common
law damages proceeding. The respondent alleged that the appellant is estopped
from making any assertion inconsistent with (inter alia) the opinion of the
Medical Panel7

17. The proceeding came on for trial before His Honour Judge Lacava who, on 22
October 2009, pursuant to s76(1) of the County Court Act 1958 (Vic), stated the
following questions for determination of the Court of AppealS -
18.
19.
(1)
(2)
Do any, and if so which of the estoppels pleaded in paragraph 1A(i) of
the plaintiffs amended reply to the amended defence arise?
Is this Honourable Court obliged to accept as final and conclusive in any
trial of this action any, and if so which, of the matters pleaded by the
plaintiff at paragraph 1B(a) and (B) of her amended reply to amended
defence?
(3) Is the defendant precluded from acting in any, and if so which, of the
ways claimed by the plaintiff in para.1B© of her amended reply to
amended defence?
The stated case was argued together with the appeal in Brumar (Vilj Pty Lld v.
Noms before the Court of Appeal constituted by Ashley JA, Mandie JA and
RossAJA'.
On 25 August 2010, for the reasons given by Ashley JA, with which Mandie JA
and Ross AJA agreed, the Court answered the stated case as follows lO
-
(1) Unnecessary to answer.
(2)&(3) The defendant (appellant) is prohibited in this proceeding from-
(a) making any assertion, whether by pleading, submission or
otherwise; and
(B) leading or eliciting evidence, whether in evidence in chief, cross
examination or re-cross examination,
7 See amended reply dated 15 October 2009, paras lA & tB.
8 Scc Ruling dated 22 October 2009.
9 Bmmor (Vie) PlY Ud v. Po/ricin Noms raised a .cognate issue which issue is now affected by statutory amendment,
namely the insertion of s 134AB(19A) and the '"peal of s 134AB(19)©.
10 Brnmar (Vie) Pg Lld v. Pa/tiaa Noms,' Fiolld Hefell BroWIJ v. MOllfice BlockbJlrJI COS/JlIJt111 [2010] VSCA 206.
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#7 User is offline   hukildaspida 

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Posted 17 February 2011 - 04:25 PM

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30
5
which is inconsistent with the opinion of the Medical Panel provided on
or about 28 June 2006; and in particular from making any assertion, or
leading or eliciting evidence, to the contrary of the following-
(i) that the plaintiff, as at 28 June 2006, suffered a permanent (in the
sense of it being likely to last into the foreseeable future) mental
or behavioural disturbance or disorder which was severe by
reference to its consequences with respect to pain and suffering
and loss of earning capacity, when judged by comparison with
other cases in the range of possible mental or behavioural
disturbances or disorders;
(ii)
Part VI - Argument:
that it was the pain and suffering and loss of earning capacity
consequences of the accepted psychological injury which
constituted the permanent mental or behavioural disturbance or
disorder which was severe.
The errors in the Court of Appeal's reasons
20. The Court of Appeal erred in its construction of s 134AB(15) and s 68(4) of the
Accident Compensation Act 1985. The errors are found in paragraphs [170] and
[176] of the reasons for judgment of Ashley JA, with whom the other members
of the Court agreed, where his Honour considered that -
(a) it would be anomalous if an injury which is deemed to be serious injury
had no effect in a permitted common law proceeding [170];
(B) the panel opinion which is to be adopted and applied by a court is the
opinion with its "mandated serious injury consequences" [170]; and
© the effect of s 68(4) is that an impairment assessment of more than 30
per cent given under s 104B(9), having the operation commanded by s
134AB(15), has the effect, in a common law proceeding, that the
employer is not entided to put in issue the fact that, at the time when the
opinion was expressed, the worker suffered serious injury, which in the
present
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#8 User is offline   doppelganger 

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Posted 17 February 2011 - 08:08 PM

My link
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#9 User is offline   hukildaspida 

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Posted 18 February 2011 - 01:22 PM

View Postdoppelganger, on 17 February 2011 - 08:08 PM, said:




Thanks for your random act of kindness Doppleganger of ensuring the full link in online.
Much appreciated. :)

Yes, this will be an interesting case in all aspects and for all parties whom have "issues" within life relating to Harassment and other matters that cause distress.

Those whom have stumbled across this forum and found this Topic may like to read our Harassment Law & ACC discussion/ resource Topic as it is interelated.
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#10 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:42 PM

IN THE HIGH COURT OF AUSTRALIA
MELBOURNE OFFICE OF THE REGISTRY
BETWEEN
No M176 of 2010
MAURICE BLACKBURN CASHMAN
Appellant
AND
FIONA HELEN BROWN
Respondent
RESPONDENT'S SUBMISSIONS

Part I -Internet certification
1. These submissions are in a form suitable for publication on the interne!.
Part" - Concise statement of issues
2. The first issue which arises from the grounds of appeal and the notice of
contention is the legal effect on a common law damages trial of a medical
panel opinion under s.68(4) of the Accident Compensation Act 1985 (Vic)
where that opinion is to be adopted and applied by any court, body or person
and must be accepted as final and conclusive.
3. The second issue is whether any and if so what estoppel arises from the
opinion of a medical panel upon the hearing and determination of a common
law damages trial.
Part 111- Judiciary Act, s.78B certification:
4. The respondent considers that no notice should be given in compliance with
s.78B of the Judiciary Act 1903.
Filed on behalf of: The Respondent
Lennon Mazzeo
Lawyers,
Level 12, 256 Queen
Melbourne Vic 3000
HIGH COURT OF AUSTRALIA
F I LED Tel: (0 )
treet, 1 5 FEB 2011 Fax: (0 )
Ref: P I
. admin~ I
THE REGISTRY MELBOURNE
96705999
96706999
DB 00081 (Pat Lennon)
mlegal.net
--~-----~--~--------~----------
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#11 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:44 PM

Part IV - Contested material facts in the Appellant's narrative and chronology.
5. In paragraph 7 of the Appellant's submissions the respondent's claim made on
12 December 2005 referred to was a claim for statutory compensation for noneconomic
loss under s.98C and a claim that she had a deemed serious injury
pursuant to s.134AB(15). The elaborate procedural requirements of s.104B
governed the making of the claim.
6. In paragraph 8 of the Appellant's submissions the Authority's decision referred
to on 23 February 2006 to accept that the respondent had a psychological
injury arising out of her employment with the appellant was in compliance with
s.104B(2)(a) which required it to accept or reject the claim.
7. In paragraph 10 of the appellant's submissions there is a typographical error.
I n fact the certificate of opinion correctly refers to section "98C" and not
section "98©" as alleged.
8. On or about 31 August 2006 the respondent advised the Authority that she
accepted the entitlement to compensation in response to the letter of the
Authority dated 15 August 2006.
9. The application made by the respondent referred to in paragraph 12 of the
appellant's submissions was required to be made as a pre-condition to
recovering damages by reason of s.134AB(3)(a)&(4)(a)(ii).
20 Part V - Appellant's statement of applicable statutes
10. The respondent accepts as applicable the statutes set out in Part VII of the
Appellant's submissions.
Part VI - Respondent's argument
Epitome of the appellant's submissions and the respondent's response
2
11. The appellant contends 1 that the construction placed by the Court of Appeal
on s.68(4) and s.134AB(15) conflicts with s.134AB(23). The appellant further
contends that the Court of Appeal's construction of s.68(4) is inconsistent with
the decision of Pope.2
At [21] of its submissions dated 1 February 201l.
Pope v WS Walker & Sons Pty Ltd (2006) 14 VR 435.
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#12 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:51 PM

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12. The respondent submits no such errors were made by the Court of Appeal and
in particular:-
(a) The appellant's process of reasoning to support its interpretation of
s.134AB(19)© is circular.
(B) The appellant's construction of ss.(19)© is, as found by the Court of
Appeal, contrary to the obiter of this court in Dwyer v Calco Timbers Ply
Ltd.3 Further, difficulties with the appellant's construction identified by
the Court of Appeal at [59] and [60] have thus far gone unanswered.
© The Court of Appeal was right to conclude that Pope was not
inconsistent with its interpretation of s.68(4t Further it is submitted first
that this interpretation was consistent with the logic underpinning Pope.
Secondly, in any event, Pope was wrongly decided and failed to give
full effect to the unambiguous language and purpose of the provision.
(d) The legislature employed s.134AB(15) to clothe a Medical Panel
opinion that a worker has a 30% or more permanent impairment with
the mandated attributes of a "serious injury" within the meaning of the
s.134AB. The Court of Appeal was right to give effect to the statutory
deeming by the impugned orders made.
(e) Alternatively, if the Court of Appeal went too far by the orders made,
20 then in any event the more circumspect orders sought by her below are
properly made
3
4
(f) By her Notice of Contention the respondent submits that in any event
the Court of Appeal ought to have concluded that the Medical Panel
opinion gave rise to an issue estoppel with the same effect as it found
to arise from s.68(4).
13. The logic of the structure of these submissions is as follows:-
(a) The legislative history of Medical Panels under the Act is provided to
give context to their statutory function.
(2008) 234 CLR 124. at [11].
At [174].
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#13 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:52 PM

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20
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(B) The procedures instituted by s.104B in respect of a s.98C impairment
claim are set out to enable a resulting Medical Panel opinion to be seen
in its proper statutory context.
© The operation of s.68(4) is explained, exposing the error in Pope.
(d) The inter-relationship of ss.(2), (15), (19)© and (23(B) of s.134AB is
examined, exposing the fallacies of the appellant's submissions
identified in 12(a)&(B) above.
(e) With all the above necessary backgrounding, the effect on the common
law trial of the Panel opinion of 28 June 2006 is explained.
(f) Finally, in the alternative, the point raised by the Notice of Contention is
dealt with.
The Medical Panels' dispute resolution function
5
6
7
8
14. Medical Panels were first introduced to the Act by s.8 of Act No. 64 of 1989.
Under s.72E of the Act as it was the function of the Medical Panel to give its
opinion on any medical question referred to it by the Appeals Board or the
Tribunal (statutory bodies abolished in 19925
). The Tribunal then had
exclusive jurisdiction to determine matters under the Ad with rights of appeal
limited to questions of law raised during the proceedings before the Tribunal7
A medical question was, (and still is) defined in s.5(1) of the Act. By s.60(3)
the Tribunal was obliged to adopt the opinion as the answer to the medical
question but with qualifications provided for in s.60(4)&(5) as follows:8
(4) An opinion of a Medical Panel . .. need not be adopted by the Tribunal
(a) if the Tribunalis satisfied that-
By Act No. 67 of 1992.
S.51 of the Accident Compensation Act 1985 (reprint No. 2)
S.61(3) of the Accident Compensation Act 1985 (reprint No. 2)
See Calloway J.A. in Masters v McCubbery [1996]1 V.R. 635 at 655.32 et seq.
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#14 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:53 PM

5
(B) if, on the application of a party, the Tribunal is satisfied that there
are exceptional circumstances which make it unjust or manifestly
unreasonable for the opinion to be adopted.
(5) Exceptional circumstances include, but are not limited to -
(a) an error of law made by the Medical Panel; or
(B) a case where the Medical Panel acted unfairly; or
© a failure of the Medical Panel to observe its own procedures.
15. Upon the abolition of the Tribunal in 1992 the County Court was given
exclusive jurisdiction to hear and determining disputes in respect of decisions
made under the Act,9 by the Authority, employer or self-insurer. Under s.45(1)
the Court could itself refer a medical question to a Panel for opinion and was
required to do so at the request of either party. The function of Medical Panels
to give opinions in respect of medical questions remained unchanged but
s.45(1)©&(3) provided:
S.45(1)© the opinion of the Panel on that question shall, subject to this
section, be adopted by the Court as the answer to that question.
S.45(3) If in the opinion of the County Court -
(a) new information in respect of the medical question had
emerged since the Medical Panel gave the opinion; or
(B) there is evidence that the worker's medical condition had
changed since the Medical Panel gave the opinion -
the Court may refer the new medical question to the Medical
Panel for opinion.
16. The Court of Appeal in Masters v McCubbery [1996] 1 VR 635 found that a
Medical Panel was a tribunal within the meaning of the Administrative Law Act
1978 because it was obliged to observe the rules of natural justice. Thus it
was required to give reasons for its opinion pursuant to s.8 of that Act.
S.39(1).
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#15 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:54 PM

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11
6
Winneke P .10: made important observations in respect of the function of
medical panels.
It cannot be denied, as the trial judge found (correctly in my view) that
the scheme of the legislation is such that the medical panels are
empowered to decide, in a manner which binds the court making the
referral, the critical issues which have arisen between the worker and
the authorised insurer, [liability has since reverted to the Authority, selfinsurer
andlor employer] which issues the worker has referred to the
court as a consequence of action taken by the insurer. Although these
critical issues are referred to the medical panel couched in terms of
"medical questions" and the responses of the panel to them are
couched in terms of "opinions", such legislative terminology cannot
obscure the fact that the panel is being called upon to decide matters of
mixed law and fact which decisions operate by virtue of the provisions
of the Act to bind the court and thus to effectively dispose of the issues
which have been raised by the worker and placed by him before the
court for its determination."
17. Winneke P noted the range of powers the panels had to carry out their
function and opined11
:
These ultimate conclusions expressed by the panel as "opinions"
dispose in all practical senses with the dispute raised by the claim
between the worker and the authorised insurer and leave the court with
no relevant function but to give effect to them in money terms . ... In my
view it can be seen that the legislature did intend to create the medical
panels as an alternative method of dispute resolution to the court.
18. By s.21(7) of Act No. 107 of 1997 s.45(1)© & (3) were repealed and 5.68(4)
as it now is was inserted. Amendments to the Act since the decision in
Masters v McCubbery only confirm the conclusions of Winneke P.
At 642.19 - 0
At 643.
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#16 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:55 PM

(a) S.65(6A)(B) was inserted 12 to require the referring body (in the present
case this was the Authority pursuant to s.1048(9» to submit in writing
details of the facts or questions of fact relevant to the medical question
which have been agreed and those facts or questions in dispute;
(B) written reasons of the Panel opinion are now required - see s.68(2) 13;
© s.45(1 0)-(1 H) was inserted14 to enable the Court (where applicable) to
determine factual issues more appropriately determined by it than the
Medical Panel.
19. Despite the range of medical questions defined in s.5 having expanded, at no
time has a Medical Panel been able to give opinion in respect of a medical
question designed to determine whether an injury in the "primary sense" has
been relevantly caused by a worker's employment: "primary" as opposed to
injury in the extended sense set out in (a),(B)&© of the definition of injury in
s.5(1). Although an injury might satisfy the primary definition and the extended
definition15
, only injury in the extended definition is capable of being the
subject of a medical question. 16
20. Following Masters v McCubbery a body of case law developed in respect of
the adequacy of the reasons for opinion of Medical PanelsH The result of
these decisions has been that considerable scrutiny has been and is available
by way of judicial review in respect of opinions made and reasons given.
Procedures under s.1 048 for the determination of lump sum claims under s.98C
12 Inserted by Act No 26 of 2000. As an illustration of the extent to which this provision
has been given adversarial content see Kamener and ors v Griffin and ors (2005) 12 VR 192
at [18], [19], [28] and [29].
13 Inserted by Act No 9 of2010.
14 Inserted by Act No 90f2010.
15 For which see Kennedy Cleaning Co. v Petkovski 200 CLR 206.
16 Kamener v Griffin and ors 12 VR 192 per Ashley J (as he then was) at 205-8
rarticularly at [76].
7 A useful epitome of the approach is found in Moyston Court Fisheries Ltd v Malios &
Ors [2007] VSC 518 per Forrest J. at [69] to [72]. This was generally the approach taken to
the adequacy of reasons before the Court of Appeal decision of Sherlock v Lloyd & Ors
[2010] VSCA 122 (28 May 2010) - a decision the effect of which has itself been reversed by
the amendment of s.68(2) that now requires written reasons be given.
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#17 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:56 PM

10
20
18
19
8
21. Section 1048 applies to claims initiated by workers under s.98C18 and, where
liability has been accepted by the VWA or otherwise determined in respect of
an injury, by the VWA from 18 months post-injury.19 It is a complex section20
but in essence operates by taking the following sequential steps:-
(a) All injuries arising from the given event or circumstance must be
included in the claim21 .
(B) Where liability is disputed for any injury, that is, whether a claimed
injury gives rise to an entitlement to compensation under the Act, then
the liability dispute must be resolved before an impairment assessment
is made.22 Where there is a dispute as to liability, after conciliation, the
courts have jurisdiction to determine the dispute under s.39(1).
© Once liability is determined for all injuries arising from the given event
or circumstance, s.1048(5) or s.1048(7) as is applicable, provide that
the VWA obtain a permanent impairment assessment in accordance
with s.91 in respect of those injuries.
(d) Where a worker disputes the determination of impairment resulting from
the impairment assessment the VWA is required by ss.(9) to refer the
medical question to a Medical Panel.
22. Section 91 (8) prescribes the use of the AMA Guides 41h ed. To assess
psychiatric impairment s.91 (6)23 provides that Chapter 14 of the AMA Guides
is substituted for guidelines entitled "The Clinical Guidelines to the Rating of
Psychiatric Impairment' as provided for by s.91 (1)(a). The AMA Guides are
S.104B(I)
S.104B(lC) & (lCA).
20 It has received judicial criticism in VWA v Del Borgo and ors. (2003-04) 9 VR 470,
Winneke P at 473; Eames JA at 475; and in VWA & anor v Wilson 10 VR 298, Winneke P at
300 and subsequent further amendment.
21 See s.l 04B(5A)-(5E).
22 See s.l04B(2)(a), (2)(f), (2AA) definition of relevant date (B) and (3). Where
there is a dispute as to liability, after conciliation, the courts have jurisdiction to
determine the dispute under s.39(1).
23 As it was at the relevant time - for which see the appellant's submissions
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#18 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:58 PM

guides for the evaluation of permanent impairmenf4 and this is defined in the
Glossary to the AMA Guides at p.315 as:
"impairment that has become static or well stabilized with or without medical
treatment and is not likely to remit despite medical treatment. "
23. The medical question referred under s.104B(9)(a) is as "to the degree of
impairment in accordance with section 91 resulting from the injury or injuries
claimed for which liability is accepted or established". Paragraph (d) of the
definition of "medical question" in s.5(1) permits such a medical question to be
asked.2s
24. The appellant submits at [36] that the differences in procedural rigour between
a court decision on a s.134AB(16)© application and the opinion of a medical
panel explain the different outcomes in respect of issue estoppel. A close
examination of the procedural steps involved in referring an opinion under
s.104B coupled with the very narrow overtly medical nature of the decision
required of a Medical Panel in respect of permanent impairment obviates the
need for a curial hearing or cross-examination.
The operation of s.68(4)
24
25
25. By its terms it provides that the opinion of a Medical Panel on a medical
question is to be adopted and applied by any court, body or person. It must be
accepted as final and conclusive by any court, body or person. This is so
irrespective of who referred the medical question or when the medical
question was referred.
26. The language is plain and unqualified. The virtue of finalit/6
, even with
administrative decisions, is recognized. It is accepted that the "basic rule
Reinforced by the requirement in s.9I(lA) that assessment must be made after the
injury has stabilised.
It is noted in passing that paragraphs (h) and (i) of the definition of medical
question together with s.45(lA), inserted by the Accident Compensation (Common
Law Benefits) Act 2000, give a court on a s.134(AB) application, wide powers of referral,
f,resumably in respect of the "narrative tesf'.
6 See Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v
Workcover Authority of New South Wales at [93].
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#19 User is offline   hukildaspida 

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Posted 03 March 2011 - 03:59 PM

10
which applies to privative clauses generally ... that it is presumed that the
Parliament [or, it may be interpolated, a State parliament] does not intend to
cut down the jurisdiction of the courts save to the extent that the legislation in
question expressly so states or necessarily implies. 27
27. That the panel opinion must be adopted and applied by any court, body or
person and this adoption and application is not confined to the referring court,
body or person underlines the finality with which the issue the subject matter
of the opinion is dealt. Further, that the adoption and application is irrespective
of when the medical question was referred (and, by necessary implication,
when the medical opinion was given) the subject matter of any issue raised by
the opinion is un hinged by time. This is in stark contrast to earlier legislative
formulations noted at [14] and [15] hereof.
28.ln OBE Workers Compensation (Vic) Lld v Freisleben [1999] 3 V.R. 401
Phillips JA, with Buchanan JA agreeing, interpreted s.68(4) at p.415 as
follows:
I must say that this seems to me a most extraordinary provision,
appearing as it does to make conclusive, for all purposes it would
seem, the opinion of a medical panel on a medical question, no matter
when obtained or by whom . ... What matters now is that by virtue of
the 1997 amendments [by which s.68(4) was introduced], if the
authority, an authorised insurer or a self-insurer did refer a medical
question to a medical panel, the opinion would be binding, at least in
the main and even in later court proceedings.
29.lt was on the basis of this consideration that Phillips JA held at pp.415-6 that,
whether an implication arose before the 1997 amendment permitting an
authorised insurer to refer medical questions to a medical panel, no such
implication could be drawn after the 1997 amendment. This was so
notwithstanding s.67(1) as it then applied stated that the function of a medical
27 Fish v Solution 6 HoldingsLimited (2006) 225 CLR 180 at [33J per Gleeson CJ,
Gummow, Hayne, Callinan and Crennan JJ quoting PlaintijJS15712002 v The Commonwealth
(2003) 211 CLR 476 at 505 [72J per Gaudron, McHugh, Gummow, Kirby and Hayne JJ
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#20 User is offline   hukildaspida 

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Posted 03 March 2011 - 04:00 PM

panel was "to give its opinion on any medical question ... referred by ...
authorised insurer ... ".28
30. The appellant's submissions at [52]-[54] seek to draw support for a limitation
on the language of s.68(4) from the reasons of Eames J.A in Pope. At issue in
Pope was the effect of a medical panel opinion given in respect of an
accepted claim of right knee injury that, at the date "of the opinion that there is
now no medical condition of the knees relevant to the claimed injuries" upon a
subsequent s.134AB(16)(B) "serious injury" application. In reaching his
decision that the medical panel opinion in question was not determinative of
the serious injury application as had been held by the trial judge Eames JA
relied upon the fact that s.68(4) was introduced at the same time common law
rights were abrogated and must, by necessary implication, not have been
intended to apply to common law rights or to "serious injury" applications made
to pursue those common law rights.
31. Even assuming Eames JA was correct in supplying the words to s.68(4) that
he did (at 444 [37]) this does not support the submissions of the appellant for
the reasons given below by the Court of Appeal at [174]. Further, if the
distinction drawn by Eames J.A. between "statutory benefits" and "serious
injury applications" is valid, the underlying logic would suggest that if an issue
estoppel arises at trial from the decision of the court on a "serious injury"
application then likewise a medical panel opinion, as here, which was for dual
s.134AB and statutory benefits purposes ought be adopted and applied29
.
32.ln any event the preconditions nominated by Eames J.A. to supplying words to
a statute "to avoid absurdity and inconsistency" are not met30
. The same policy
considerations apply as are well-recognised and under-pin the rationale for
issue estoppels. It avoids inconsistent "final" decisions and reduces the cost to
parties of having to relitigate the same issue. 31
28 In the same matter Tadgell J.A. with whom Buchanan J.A. also agreed made a similar
f,0int at 408.
9 This is the extent of the argument based on "symmetry".
30 At 445.
31 For which see particularly the extract of the responsible minister's second reading
speech set out at 441 of the reasons of Eames J .A. in Pope .
. _
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