KAMENER and Others v GRIFFIN and Others

12 VR 192·Ashley J
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KAMENER and Others v GRIFFIN and OthersSupreme Court of VictoriaAshley J2, 6, 21 June 2005[2005] VSC 202Administrative law — Reasons for decision — Adequacy — Accident compensation — Workers compensation — Aggravation injury — Medical panel — Jurisdiction — Referral of questions — Opinion — Panel deciding employment was a significant contributing factor to part of worker’s alleged injuries — Panel opinion set aside because of inadequacy of reasons — Panel re-examining plaintiff and forming same opinion — Whether basis of second opinion exposed — Accident Compensation Act 1985 (No 10191) s 5..

Section 5(1) of the Accident Compensation Act 1985 provided in part that “injury” meant any physical or mental injury and without limiting the generality of the foregoing included:

In a workers compensation claim, the employers contended that the worker’s evidence about suffering a compensable injury was fabricated or otherwise unreliable and that any condition from which he was suffering was attributable to an earlier motor vehicle accident or a later household accident. The second of four questions which the County Court judge referred to a medical panel constituted under the Act was: “Was the plaintiff’s employment with the first and second defendants a significant contributing factor to any, and if so which, injuries alleged in the statement of claim?” The panel answered the question affirmatively regarding part of the worker’s injury. Williams J quashed the panel’s opinion because of the inadequacy of its reasons: [2004] VSC 235. After re-examining the worker, the same panel again concluded that the employment was a significant contributing factor to part of the worker’s injuries. The panel’s reasons listed a large amount of material which it had considered, including the worker’s evidence in the County Court trial, medical and like reports, the decision of Williams J and the parties’ submissions highlighting the issues presented to the panel. The employers’ submissions emphasised the worker’s alleged dishonesty. In seeking to address what Williams J had found to be shortcomings in its first set of reasons, the panel considered the parties’ submissions, dealt with the evidentiary inconsistencies by tacitly resolving them against the worker, but none the less expressed itself as being satisfied “on balance” that the worker had suffered compensable injury. The employers applied to quash the panel’s second opinion asserting that the reasons given for it were inadequate and that the panel had failed to exercise its jurisdiction.

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