Court determination first, where facts and credibility remain in issue26 April 2017
The County Court of Victoria recently rejected an employer's application for medical questions to be referred to the Medical Panel, as it was more appropriate for questions of fact and issues of credibility to be determined by a Court.
In Sarac v Ozdemir Holdings Pty Ltd (Ruling)  VCC 1985, the County Court deliberated on whether a worker was seriously injured. The worker had sustained injuries to the right shoulder and lower back as well as a severe psychological condition. The employer made an application to refer questions to the Medical Panel, but the worker objected on the basis that it would constitute an abuse of process and/or that the Medical Panel's opinion would depend on the resolution of factual issues, more appropriately determined by a Court. According to the worker, the issues were:
- the appropriateness of job options identified in a vocational assessment
- that the vocational assessment did not include descriptions that would allow the Medical Panel to assess her work capacity accurately, and
- that the worker's medical evidence suggested there was a secondary gain to be made in the application, as the worker was also looking after her ill husband.
The employer argued that the worker's credibility was not in issue. The worker's representatives argued that her honesty and credibility were central issues, which was why the matter should be referred to a court, and not to the Panel.
Successful objection of referral
The Court held that the matter was not appropriate for referral to the Medical Panel on the basis that "there would need to be considerable cross-examination of the Plaintiff as to the influence of the so-called secondary gains with respect to her husband's illness, the receipt of weekly payments of compensation and 'other factors' as yet unidentified". It stated that the psychiatric injuries would need to be disentangled from the physical injuries.
To successfully object to a Medical Panel referral, a party must show there are issues of credit that would be more appropriately handled by a Court, where parties are afforded the right to cross-examination. Questions of fact—such as what particular roles identified in a vocational assessment entail—are outside the scope of a Medical Panel's role and better traversed in court, where further evidence can be led from the vocational assessor.