The function of the Medical Panel is to give its opinion on any medical question in respect of injuries arising out, of or in the course of, or due to the nature of, employment.
A medical question can be referred to the panel by a conciliation officer, the court, VCAT, the Victorian WorkCover Authority or a self-insurer.
There are 15 sub-paragraphs to the definition of a “medical question” under section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act). These include a question as to the nature of a worker’s medical condition relevant to an injury, a question as to any incapacity of a worker for work and a question as to the medical, personal and household or occupational rehabilitation service supplied to a worker. In particular, a medical question can be directed to a particular date or during a particular period, which is useful where a worker once had a capacity for employment following the injury but is totally incapacitated by the time of a Magistrates’ Court hearing.
When should a matter be referred to the Medical Panel
Usually, a defendant would seek to refer terminations of weekly payments or medical expenses, 130 week terminations of weekly payments or decisions relating to particular forms of medical and like services.
It is not appropriate to refer a matter to the Medical Panel where there is a factual dispute in relation to the circumstances of the injury or credit issues on the part of the plaintiff. A referral is also not appropriate where the injury is a mental injury and the defendant asserts that there is no entitlement to compensation on the basis that the injury was caused by reasonable management action under section 40(1) of the WIRC Act.
Parties should remember that, pursuant to section 275 of the WIRC Act, a court can determine factual matters before the medical question is referred to the Panel.
Where a dispute over statutory benefits has progressed to proceedings in the Magistrates’ Court, a referral to the Medical Panel must take place as soon as possible. Practice Direction 1 of 2012 provides that it is expected that if a party wishes to refer medical questions to a Medical Panel for an opinion then the application to do so must be made prior to the date of the first directions hearing. This is usually convened 10 weeks after the date on which a notice of defence is filed in the proceeding.
Section 274 of the WIRC Act also provides that, if a court is exercising its jurisdiction under Part 6 of the Act, a party must notify the court of its intention to request that a medical question be referred no later than 14 days prior to the date fixed for hearing if the court is going to refer the matter to the Medical Panel.
Parties need to be wary of late applications for a referral to the Medical Panel, because it provides the court with a basis to make a finding of an “abuse of process” against a party. Magistrate Garnett has refused a number of late referrals due to the timing of the application, where, for example, a matter was previously listed for hearing or the number of times a matter has been listed for interlocutory matters.1
What to do after the Medical Panel delivers its opinion
The opinion of a Medical Panel cannot be appealed on its merits. Only judicial review is permitted.
Judicial review can take place either under the Administrative Law Act 1978 or pursuant to Order 56 of the Supreme Court Rules. Under the former, an application for review must be made no later than 30 days after the giving of the decision. Under the latter, the proceeding must be commenced within 60 days. Such proceedings are in the Supreme Court.
The grounds for review include:
- Jurisdictional error, such identifying the wrong issue or ignoring relevant material;
- Procedural fairness, such as the denial of an opportunity to be make submissions on information provided to the Panel or a lack of knowledge about documents given to the Panel;
- Unreasonableness, where a decision is so unreasonable that no reasonable decision maker could come to it; or
- Inadequacy of reasons.
The standard order is for the decision to be quashed and an order made for mandamus for the Medical Panel to answer the questions again.
This article was written by David Guthrie, Partner.
1For example, Baryla v Adecco Industrial, 7 October 2014