WORKCOVER DIVISION Case No. E S GARNETT MELBOURNE REASONS FOR RULING ---

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1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION Case No. E CHERYL ANN COWIE Plaintiff v ELYNWOOD PTY LTD Defendant --- MAGISTRATE: S GARNETT WHERE HELD: MELBOURNE DATE OF HEARING: 4 & 6 FEBRUARY 2015 DATE OF DECISION: 6 FEBRUARY 2015 Reasons Dated 17 February 2015 CASE MAY BE CITED AS: COWIE v ELYNWOOD REASONS FOR RULING --- Catchwords: Application by defendant to court to refer medical questions to a Medical Panel on Hearing date pursuant to s 274 Workplace Injury Rehabilitation and Compensation Act 2013 Delay reliance by defendant in Amended Defence on s 114 (2A)(d) of the Accident Compensation Act Application refused issues in dispute more properly determined by the court. --- APPEARANCES: Counsel Solicitors For the Plaintiff Ms Radzaj Arnold Thomas & Becker For the Defendant Mr Chammings IDP Lawyers

2 HIS HONOUR: 1 This matter was listed before the court on 4 February 2015 and adjourned to 6 February to enable submissions to be made by the parties in support of the unopposed application by the defendant to the court to refer medical questions to a Medical Panel for an opinion pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act The history and particulars of the proceeding are: a. Ms Cowie issued proceedings on 26 August 2014, seeking orders that she is entitled to weekly payments of compensation from 12 May 2014, medical treatment expenses from 27 May 2014 and declarations of liability concerning right shoulder and neck surgery; b. in her Statement of Claim, Ms Cowie alleges that in the course of her employment with the defendant as a cleaner, and in particular, on 19 November 2013, she sustained injuries to her neck requiring surgery in the form of a discectomy and fusion and an injury to her right shoulder requiring hydrodilatation; c. liability was accepted by the defendant for her claimed injuries but by way of a Notice dated 24 April 2014, the defendant gave her notice of its intention to terminate her weekly payments as from 12 May 2014 and her entitlement to medical expenses as from 27 May 2014 on the grounds that she was no longer incapacitated for employment or that any incapacity was not materially contributed to by her work injuries. The defendant also rejected her treating doctors requests to accept liability in relation to the recommended surgery to her neck and shoulder; d. the disputes were referred to the Accident Compensation Conciliation Service who found that a genuine dispute existed; e. the defendant filed a Notice of defence on 7 October 2014; 1 DECISION

3 f. the proceeding was listed for a Directions Hearing on 16 December 2014, notice was not given to the court by either party of a possible application to the court to refer medical questions to a Medical Panel and accordingly, the proceeding was fixed for Hearing on 4 February 2015; g. the defendant s lawyers, by way of letter dated 19 January 2015, gave notice to the court of its intention to refer medical questions to a Medical Panel for determination. The letter also informed the court that it would request the plaintiff s lawyers to sign consent orders vacating the Hearing date on 4 February and requesting that the proceeding be listed for a Mention on that date; h. the defendant s lawyers correspondence was received by the court on 22 January but was apparently ed or faxed to the court on 19 January; i. on 29 January, Minutes of Consent Orders signed by the parties were filed with the court seeking that the Hearing listed on 4 February be vacated and the proceeding listed for a Mention on the date. 3 The defendant contended that the issues in dispute between the parties were essentially medical in nature and therefore it was appropriate for the court to refer the proposed medical questions to a Medical Panel for an opinion. It noted that Ms Cowie did not oppose the application. The court was informed that the defendant s lawyers obtained medical opinion in November 2014 and considered at that time a Medical Panel referral was appropriate. When questioned as to the reasons an application was not made by the defendant at the Directions Hearing on 16 December, in accordance with Practice Direction No. 1 of 2012, a reason could not be given. A copy of the proposed medical questions were provided to the court. 4 During discussions with the parties, I referred to the decisions in Skordos v Magistrate Garnett & Ors 1 and my recent decision in Baryla v Adecco 2 in 1 [2009] VSC DECISION

4 which I discussed the obligations of practitioners under the Civil Procedure Act 2010 and my view that it is incumbent on practitioners to take whatever reasonable steps are necessary to reduce delays in the determination of disputes to ensure that they are resolved in a timely, efficient and cost effective manner. In my opinion, an application to the court to refer medical questions to a Medical Panel, shortly prior to the Hearing date, even if notice is given in accordance with s 274 (1)(b), may not be consistent with those obligations. An application to the court should be made at an early stage and preferably when the proceeding is listed for a Directions Hearing as is required by Practice Direction No.1 of Furthermore, it should not be assumed that the filing of proposed Minutes of Consent Orders seeking to vacate an allocated Hearing date and have the proceeding listed for Mention will result in the Hearing date being vacated. The parties are required to appear on the Hearing date and make their application. If unsuccessful, the matter will remain in the Hearing list. This is consistent with the court s duty to control the case management of proceedings before it. 5 Prior to ruling on the application, it became apparent that the defendant would seek leave of the court to file and serve an Amended Defence dated 20 January The amended particulars sought to rely on s 114 (2A)(d) of the Accident Compensation Act, it being a disentitlement provision. The court granted leave to the defendant to file and serve the Amended Defence. 6 The amended particulars state: The Plaintiff s employment was terminated on 20 December 2013 due to breaches of the defendant s Occupational Health and Safety policy and/or misconduct on behalf of the Plaintiff and her weekly compensation payments are not payable by operation of s 114 (2A)(d) of the Act. 7 Notwithstanding this amendment, the defendant submitted that it was still 2 7 October DECISION

5 appropriate for the proposed medical questions to be referred to a Medical Panel for an opinion. The defendant contended that if the Medical Panel formed the opinion that Ms Cowie continued to have an incapacity for work as a result of her alleged injuries, the matter could then be re-listed for Hearing before the court to determine the merits of the defendants defence. It was also suggested that if the application to refer medical questions to a Medical Panel was refused there would be a delay of 3 months or more before the matter would be listed for Hearing before the court. This submission is plainly wrong as the court is now able to list matters for Hearing within 7-14 days of a request as a consequence of the additional resources that have been allocated to the workcover jurisdiction since May In my opinion, to grant the application and then have the court determine the merits of the defence based on s 114 (2A)(d) where lay evidence would be required and questions of fact (and law) determined is akin to putting the cart before the horse. In fact, the Act allows for questions of fact to be firstly determined by the court and then, if appropriate, to refer medical questions to a Medical Panel for an opinion. 3 9 In my opinion, if a defendant seeks to rely on a special defence 4, or a jurisdictional issue in addition to a defence to a claim based on medical opinion, or, for example, an allegation that a plaintiff is not a worker within the meaning of the Act coupled with a medical dispute as to causation or incapacity, it is not appropriate for those factual and/or legal issues to be determined by the court subsequent to the court obtaining a medical opinion from a Medical Panel. In such cases, the court is equipped to determine all issues in an efficient and cost effective manner with minimal delay. Ms Cowie is entitled to have her claim for weekly payments and medical expenses, including a declaration of liability in respect to the proposed surgery, determined without further delay. 3 S S 82 (2A), 82 (3), 82 (4), 102, 103 or 114 (2A) for example. 4 DECISION

6 10 Accordingly, the application by the defendant is refused and the matter is relisted for a contested Hearing on 26 February DECISION