VICTORIA POLICE PUBLIC SERVANT SEEKS TO QUASH THE OPINION OF A MEDICAL PANEL UNDER THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT
Jerak v Dr Lazarus & Ors [2020] VSC 729 (6 November 2020)
The plaintiff seeks orders quashing the opinion of a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act to assess impairment since one member of a panel was already previously engaged to examine the plaintiff.
Facts:
Mr. Marin Jerak sustained eye injuries while working as a truck driver for Victoria Police.
Subsequently, he lodged a claim for an impairment benefit and the claims agent managing the claim arranged for the plaintiff to be examined by Dr Mark Lazarus. The letter to Dr Lazarus made clear that liability for injury was to be accepted and only an assessment of impairment in accordance with the American Medical Association Fourth Edition Guidelines was required. The plaintiff missed the appointment and the examination did not occur. He was assessed instead by Dr Nave.
The claims agent accepted liability for injuries to both eyes and assessed the plaintiff with a 25% whole person permanent impairment in accordance with the assessment of Dr Nave. The plaintiff accepted the liability decision but disputed the physical impairment assessment. In accordance with s.207 of the WIRC Act, the dispute regarding the level of assessment was referred to a Medical Panel.
The Medical Panel (‘the first Panel’) determined the plaintiff to have a whole person impairment of 55%. The second Panel comprised Dr David Fish, Specialist Occupational and Environmental Physician as the presiding member and ophthalmologist Dr Mark Lazarus. The second Panel’s opinion, was that Mr Jerak has a whole person impairment of 0%.
The plaintiff seeks judicial review and orders for certiorari to quash the second Panel’s opinion asking the Court to remit the medical questions again to a differently constituted panel.
Issue: Should the opinion of the medical panel be quashed on the ground that the second Panel fall into jurisdictional error or alternatively breach the rules of natural justice, because it failed to comply with section 537(8) of the WIRC Act as Dr Lazarus was a member of the second Panel in circumstances where s.537(8) expressly prohibited his membership?
Law:
- 537(8) of Workplace Injury Rehabilitation and Compensation Act 2013- If a medical practitioner on the list of members has treated or examined or been engaged to treat or examine a worker (otherwise than in his or her role as a member of a Medical Panel) he or she must not be a member of a Medical Panel examining the worker.
Analysis:
Whilst it might be said that a medical practitioner previously engaged to treat or examine a worker, who did not in fact ever do so, could and would bring an impartial mind to the task of the panel, the legislation has included engagement as a circumstance of disqualification. The identity of the decision maker goes to the heart of the process of forming the opinion. It is not merely a prescribed procedural step taken by a person properly authorised to do so. The objection to Dr Lazarus’ participation in the Panel was not a question of whether he had been validly appointed to the list of eligible practitioners by the Governor, but whether the statute prohibited his participation in a Panel concerning Mr Jerak. If so, the opinion is formed by someone not empowered by statute to do so. Given the binding nature of Medical Panel opinions on other decision makers, it is clear in the court’s view that the consequence that legislature intended in such circumstances is invalidity.
Conclusion: The effect of Dr Lazarus’ participation as a member of the Medical Panel is that the opinion was attended by jurisdictional error and should be set aside.
