Australia: Medical Panel time limits for delivering opinions on medical questions in Victoria

In brief - Rules under Wrongs Act different to other schemes

The Victorian Court of Appeal in Ryan v Grange At Wodonga Pty Ltd has differentiated between the Wrongs Act 1958 (Vic) and workers' compensation statutory schemes with regard to the time limit imposed on a medical panel for making a determination about a medical question referred to it.

Whereas a failure to comply with the 30 day time limit imposed on a medical panel for making a determination under Part VBA of the Wrongs Act invalidates a medical panel opinion, this is not the case where a medical panel fails to comply with the 60 day time limit imposed by the Accident Compensation Act 1985 (Vic) or the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ("the WIRC Act").

The provisions guiding a referral to the Medical Panel in workers compensation matters are now found in the WIRC Act.

Role of the Medical Panel

Pursuant to section 302 of the WIRC Act, a medical panel is convened to give its opinion on any medical question referred to it in respect of injuries arising out of, or in the course of, or due to the nature of, employment.

Under the Wrongs Act, a medical panel is convened to determine whether the degree of impairment resulting from an injury satisfies the threshold level. Relevantly, the Wrongs Act restricts the rights of a person to sue for damages for non-economic loss unless the person injured has suffered a significant injury (an injury assessed to be greater than the respective threshold levels for physical injuries (5%) and psychiatric injuries (10%)).

Worker sustained damage to shoulder in the course of her employment

The case of Ryan v Grange At Wodonga Pty Ltd [2015] VSCA 17 involved a 47 year old kitchenhand who commenced working at Grange's aged care facility in 2010. On 14 January 2012, the plaintiff, Ms Ryan, was diagnosed with bilateral shoulder impingement syndrome which she alleged arose in the course of her employment. On 25 January 2012, the plaintiff lodged a claim for weekly payments of compensation under the Accident Compensation Act, which was accepted.

The WorkCover claims agent later terminated the plaintiff's weekly payments on the basis that she was no longer incapacitated for work. A medical question was referred to the medical panel which formed its opinion on 6 February 2013, that the plaintiff was capable of performing her pre-injury duties.

Trial judge finds that the Medical Panel did not exceed its jurisdiction

At first instance, Kyrou J considered the plaintiff's application for judicial review of the medical panel's opinion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff sought an order quashing the opinion on the grounds that the medical panel did not formulate its opinion within the 60 day period prescribed by section 68(1) of the Accident Compensation Act. (Section 68(1) is now found in section 313(1) of the WIRC Act in almost identical wording. The key difference is that section 313(1) is now subject to section 312(1) which provides that the 60 day time limit may be suspended from the date a Medical Panel requests further information to enable it to form its opinion until the end of the period specified in the request.)

In discussing the applicable legal principles in proceedings of this nature, His Honour relied upon the High Court judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, in which McHugh, Gummow, Kirby and Hayne JJ said that:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition...

By applying the principles in Project Blue Sky, Kyrou J held that while section 68(1) of the Accident Compensation Act imposes a legal duty on a medical panel to comply with the prescribed period, an opinion formed after the expiration of that period in breach of that duty is not invalid due to a number of relevant factors:

  • while the word "must" in section 68(1) is unequivocally mandatory, its strength is "diluted" by the fact the word "must" also appears elsewhere in the Act in a context which indicates that non-compliance with those provisions would not automatically invalidate the medical panel's opinion on a medical question
  • a comparison with those other provisions in the Act supports the proposition that the prescribed period in section 68(1) of the Act is a procedural condition for the exercise of power rather than an essential preliminary to the exercise of that power
  • there is nothing in the purpose of the Act that warrants, let alone requires, a strict construction of the prescribed period

His Honour also distinguished the reasoning of Kaye J in Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42, where it was held that the provisions of the Wrongs Act did require that the medical panel formulate its decision within a period of 30 days. Further, Justice Kyrou rejected the plaintiff's other grounds for judicial review; namely, that the medical panel took into account irrelevant considerations and provided inadequate reasons.

Court of Appeal upholds findings in relation to a Medical Panel opinion made outside of time limits

The Court of Appeal (Neave, Santamaria JJA and Ginnane AJA agreeing) found that Kyrou J correctly held that even if the opinion was formed after the 60 day time limit required by section 68(1) of the Accident Compensation Act, it was within the jurisdiction of the medical panel.

The Court of Appeal held that while the use of the word "must" in section 68(1) supports the argument that parliament intended that a failure to comply with the time limit would make the opinion invalid, it also observed that the use of the word "must" in procedural sections relating to medical panels did not support the invalidity of an opinion. Furthermore, the fact that the referrer can extend the time limit also supports the view that section 68(1) was not intended to make an opinion delivered outside the time limit invalid.

The Court of Appeal also considered the practical effects of a strict interpretation of section 68(1) and noted that an injured worker has no control over when a matter is referred to the Convenor or how long the medical panel takes to reach its decision. The invalidation of an opinion delivered outside of the 60 day time limit would cause considerable delay and result in additional cost occasioned by again referring the medical question to a differently constituted medical panel.

Court of Appeal confirms decision made outside Wrongs Act 30 day time limit is invalid

The Court of Appeal rejected the plaintiff's submission that the decision of Kaye J in Mikhman ought to be followed in the present case. Their Honours agreed with the decision of the trial judge that while non-compliance with the time limit imposed on a Medical Panel for making a determination under section 28LZG(3)(a) of the Wrongs Act invalidates the Medical Panel's decision, it did not require the same conclusion to be reached in relation to section 68(1) of the Accident Compensation Act.

Their Honours accepted that there were "significant" differences between the Wrongs Act provisions and section 68(1). At [36] Neave JA observed:

As Kaye J remarked in Mikhman, the provisions of the Wrongs Act spell out "a series of time limits, within which each particular step, in the statutory scheme, is to be carried out". Section 28LZG(3)(a) of the Wrongs Act sets out a period of 30 days for a Medical Panel to make a determination and that period commences only once the Medical Panel has all the necessary information. There are also default provisions which spell out the consequences for a claimant or respondent of failure to comply with those time limits. These features are sufficient to differentiate the statutory scheme in the Act from the statutory scheme in Mikhman. For these reasons ground 3 fails.

Ultimately, on separate grounds, the Court of Appeal held that the primary judge had incorrectly concluded that the medical panel had not failed to take account of a relevant consideration. The Court of Appeal allowed the appeal, quashing the opinion, and remitted the medical questions to a different panel.

Holloway v Department of Human Services and Ors

On 14 May 2015, McDonald J of the Victorian Supreme Court delivered his judgment in Holloway v Department of Human Services and Ors [2015] VSC 184. The main issue in this case was whether a determination of a medical panel convened pursuant to the Wrongs Act was invalid if the determination is given outside of the 30 day period prescribed by section 28LZG(3)(a). The proceedings before McDonald J were previously adjourned pending the Court of Appeal judgment in Ryan.

In his recent judgment, McDonald J noted that while the Court of Appeal was tasked with considering the proper construction of the Accident Compensation Act, the judgment of Neave JA expressly endorsed the reasoning of Kaye J who held that a determination of a medical panel outside the 30 day limit prescribed by section 28LZG(3) is invalid. At paragraph [9], McDonald J summarised the reasoning which underpinned Kaye J's conclusion:

  • the time limit specified in section 28LZG(3)(a) is expressed in mandatory terms ("must")
  • the verb "must" is used repeatedly in Division 4 and 5 of Part VBA of the Wrongs Act in its normal, mandatory, sense
  • the intention of the Wrongs Act is to provide for a speedy resolution of the threshold question as to whether a claimant, in a particular case, has sustained "significant injury"
  • the existence of provisions expressly providing for the consequences of a failure of a party to comply with a time limit indicate a "statutory intention that the time limits, prescribed for each of the steps to be taken leading to the assessment of impairment by a medical panel, must be strictly complied with"
  • no public inconvenience is caused by the invalidation of a medical panel decision by reason of failure to comply with the prescribed time period

Consistent with the approach of Kaye J in Mikhman, McDonald J found that as the Medical Panel had made its determination outside the 30 day time limit, the appropriate order was to quash the Certificate of Determination and reasons for determination. His Honour ordered that the medical question be referred back to the Convenor of medical panels for determination by a differently constituted medical panel.

Be aware of a medical panel decision made outside of the prescribed time limit

The decision of Ryan v Grange has resolved any question which may have existed about the accuracy of Kaye J's judgment in Mikhman. The Victorian Court of Appeal endorsed his Honour's conclusions and made it clear that a failure by a medical panel to comply with the time limit imposed on it for making a determination under Part VBA of the Wrongs Act invalidates the medical panel's determination.

For a respondent, this means that any determination made by a medical panel outside the 30 day time limit is able to be quashed and referred back to the Convenor for determination by a differently constituted medical panel. In practice it appears unlikely that a Medical Panel will allow such an error to occur in the future. Indeed, since the decision in Mikhman, the Convenor of medical panels has been seeking extensions from the parties if it appears it cannot comply with the 30 day time limit in delivering its determination. However, practitioners should be aware that such an error is subject to judicial review and may constitute a tactical benefit if there is potential for a newly constituted panel to determine the medical question differently.

On the other hand, a medical panel opinion delivered outside the 60 day time limit prescribed by section 313 of the WIRC Act is not invalid.

For further information, please contact:

Ana Kolovos
Health and medical
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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