On Friday, 10 May 2013 the High Court granted special leave to the Victorian Workcover Authority to appeal a decision of the Victorian Supreme Court of Appeal in the matter of Wingfoot and Anor v Kocak.
The Court of Appeal decision had held that:
(1) an Opinion of a Medical Panel binds any further statutory claim bought by the worker including a serious injury proceeding. The Court of Appeal said this on the basis of what the High Court itself had said in Maurice Blackburn Cashman and Brown and which the Court of Appeal said explicitly overruled the case of Pope and Walker. Pope and Walker had said that a Medical Panel Opinion binds only the statutory compensation scheme and not the serious injury or common law stages.
(2) secondly the Court of Appeal had said that a Medical Panel hearing an Accident Compensation Act matter by reason of s68(2) of the Accident Compensation Act must provide reasons of a judicial standard. Where the reasons provided are not of an adequate standard then that will amount to an error on the face of the record leading to a quashing of the Medical Panel Opinion itself.
The Victorian WorkCover Authority seeks to argue contrary to both those positions, firstly that a Medical Panel Opinion does not bind a serious injury application or a common law matter and secondly that the Medical Panel Reasons needs not be of a judicial standard because they do not adjudicate any matters. Furthermore that any inadequacy of reasons does not lead to a quashing of the opinion but rather simply to the provision of further reasons as was held in Sherlock v Lloyd.
The sleeper issue in all of this seems to be the fact that Medical Panels in Victoria decide not only Accident Compensation Act matters but also Wrongs Act matters. The current state of the law in respect of Wrongs Act matters is that the Medical Panel does not need to provide reasons of a judicial standard and secondly any inadequacy does not lead to a quashing of the opinion. This was decided in Colquhoun v Capital Radiology. At present then there are actually two different standards of Medical Panel Reasons required: that as set out in Kocak in the Court of Appeal the other standard as established in Colquhoun in the Court of Appeal.
I have been told that the losing party in Colquhoun, being the injured person, is seeking special leave to appeal the Court of Appeal decision. It seems preferable that special leave be granted and that that matter be sent to be heard by the High Court together with Kocak so that at least the High Court appreciates that the Medical Panel should be held only to one particular standard and a deficiency of reasons that they provide should lead to a particular result for any aggrieved party (whether a worker or under the Wrongs Act). If that situation does not eventuate then we are in the terrible position of having injured people treated vastly differently by the Medical Panels to claimants under the Wrongs Act.