Abbott v Eptec Victoria Pty Ltd

[2011] VSC 267

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6150 of 2010

MALCOLM ABBOTT

Plaintiff

v

EPTEC VICTORIA PTY LTD

DR PETER LOWTHIAN (as Convenor of Medical Panels pursuant to the provisions of the Accident Compensation Act 1985)

MEDICAL PANEL (constituted by Dr Andrew Newman-Morris, Mr Steven Leitl and Dr Peter Lowthian)

Firstnamed Defendant

Secondnamed Defendant

Thirdnamed Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2011
DATE OF JUDGMENT:	21 June 2011
CASE MAY BE CITED AS:	Abbott v Eptec Victoria Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 267

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ADMINISTRATIVE LAW – Review of Medical Panel – Whether jurisdictional error – Whether error of law on the face of the record – Adequacy of reasons – Whether failure to consider relevant material.

ACCIDENT COMPENSATION – Review of Medical Panel – Whether jurisdictional error – Whether error of law on the face of the record – Adequacy of reasons – Whether failure to consider relevant material – Accident Compensation Act 1985, ss 5, 56, 67, 68 and 98C.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.G. Uren QC with Mr A.D.B. Ingram	Melbourne Injury Lawyers
For the Firstnamed Defendant	Mr M.F. Fleming SC with Ms F.L. McKenzie	Lander & Rogers
For the Secondnamed and Thirdnamed Defendants	No appearance	Monahan & Rowell

HIS HONOUR:

Introduction

1. On 6 March 2007, Mr Malcolm Abbott, the plaintiff, commenced employment with Eptec Victoria Pty Ltd, the first defendant. On 18 November 2009, the plaintiff completed a claim form seeking impairment benefits pursuant to s 98C of the Accident Compensation Act 1985. The claim was in respect of an alleged injury to the plaintiff’s left foot, left leg and back, suffered during the course of the plaintiff’s employment with the first defendant.

1. Initially, the claim was rejected. However, on 22 February 2010, QBE Workers’ Compensation (Vic) Limited, on behalf of the first defendant, accepted liability pursuant to s 98C of the Act for “injury to the right (sic, left) foot and leg sustained in the course of [the plaintiff’s] employment to 18 September 2007”. In March 2010, the plaintiff sought conciliation in respect of the failure by QBE to accept liability for his back condition.

1. On 19 July 2010, a conciliation officer, pursuant to s 56(6) of the Accident Compensation Act, referred the following medical question to a Medical Panel for its opinion:

“What is the nature of the worker’s medical condition (including any sequelae) relevant to the accepted foot injury?”

1. The second defendant is the Convenor of Medical Panels pursuant to the provisions of the Accident Compensation Act.  Following the referral of the medical question, on 20 September 2010, a Medical Panel, the third defendant, answered the medical question in the following terms:

“In the Panel’s opinion, the worker is suffering from the residual effects of a Morton’s neuroma of the second web space of the left foot, treated surgically relevant to the accepted left foot injury”.

1. In this proceeding, the plaintiff seeks orders:

(a)in the nature of certiorari quashing the opinion of the Medical Panel;  and

(b)remitting the medical question back to the second defendant to be reconsidered by a differently constituted Medical Panel in accordance with law.

1. In his further amended originating motion, the plaintiff claims to be entitled to this relief because “the reasons for opinion of the Medical Panel are in error of law”.  Specifically, the grounds relied upon by the plaintiff are as follows:

“(a)the Medical Panel having found –

(i)that the Plaintiff was suffering from the residual affects of a Morton’s Neuroma of the second web space of the left foot surgically treated;

(ii)that the Plaintiff had long standing constitutional spinal degenerative changes;

(iii)that there was no pre-existing symptomatology resulting from such long standing constitutional spinal degenerative changes;

(iv)that the Plaintiff had an altered gait at the time of development of left foot symptoms and in the post-operative period;  and

(v)that the Plaintiff developed low back pain several months after the onset of his foot symptoms -

erred or acted unreasonably in concluding that the Plaintiff’s left foot injury and its subsequent treatment had not and could not possibly have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbo-sacral degenerative changes.

(b)The Medical Panel made a finding which was not open on the whole of the evidence, namely, that it was not possible for the Plaintiff’s left foot injury to have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbosacral degenerative changes and that it had not done so.

(c)The Medical Panel, in viewing as ‘not possible’ any causal link between the Plaintiff’s left foot injury and the aggravation, acceleration, exacerbation of deterioration of his pre-existing lumbosacral degenerative changes or that there was no such link, failed to take into account relevant material to the contrary.

(d)The Medical Panel failed to state the symptoms, evidence or other material upon which it found that the Plaintiff’s left foot injury and its subsequent treatment had not and could not possibly have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbo-sacral degenerative changes.

(e)The Medical Panel failed to give any or any adequate reasons for concluding that the Plaintiff’s left foot injury and its subsequent treatment had not and could not possibly have contributed to the aggravation, exacerbation or deterioration of degenerative changes in the Plaintiff’s lumbo-sacral spine after:

(i)concluding the Plaintiff suffered residual affects of Morton’s Neuroma of the second web space of the left foot which was treated surgically;

(ii)concluding the Plaintiff had long standing but asymptomatic degenerative changes of the lumbo-sacral spine;

(iii)accepting that the Plaintiff had an altered gait at the time of development of left foot symptoms and in the post-operative period;  and

(iv)accepting that the Plaintiff developed low back pain several months after the onset of his left foot symptoms.

(f)The Medical Panel failed to explain in a rational way having made the findings referred to any alternate cause for the development of symptoms in the Plaintiff’s lumbo-sacral spine at the time such symptoms did develop.”

1. Further, the plaintiff contends that by reason of these putative errors of law, “the opinion and reasons of the Medical Panel were not in accordance with the provisions of the Accident Compensation Act 1985 such that they are liable to be quashed”. It is, of course, immediately to be recognised that a distinction must be drawn between the opinion (decision) of the Medical Panel and the reasons for that decision.[1]  It is the opinion (decision) of the Medical Panel that may be liable to quashing (as claimed in the relief sought in the amended originating motion) – rather than the reasons of the Medical Panel.

   [1]See Kennedy v Australian Fisheries Management Authority [2009] FCA 1485, [65] (Tracey J).

1. The first defendant opposes the relief sought by the plaintiff, contending that there are no grounds for quashing the Medical Panel’s decision.  At trial, the second and third defendants took no part in the proceeding – contending that they would “submit to such orders as the Court might make in the proceeding”.[2]

   [2]See R v The Australian Broadcasting Tribunal & Ors;  ex parte Hardiman & Ors (1980) 144 CLR 13, 35.

The referral by the conciliation officer

1. The conciliation officer’s referral of the medical question was made in a document headed “Referral to Medical Panels for an opinion pursuant to s 56(6) of the Accident Compensation Act 1985” (“the referral document”). In section 4 of the referral document, under the heading “Injuries including date of injury”, the following was stated:

“The worker alleges that he sustained a left foot and leg injury during the course of his employment due to the wearing of inappropriate work boots.  As a result of limping and altered gait due to his foot injury, the worker alleges that he suffered a sequelae injury to his back”.

1. In section 5 of the referral document, under the heading “Issues in dispute and reason for referral”, the conciliation officer stated:

“The authorised agent has rejected an impairment benefit claim for the back injury”.

1. In section 6 of the referral document, under the heading “Agreed facts relevant to the medical question”, the conciliation officer stated:

“I am satisfied that the following facts are agreed:

·     Liability has been accepted for injuries to the left foot and left leg.

FACTS IN DISUPTE RELEVANT TO THE MEDICAL QUESTION

I am satisfied that the following facts are in dispute:

·     Whether the worker sustained a compensable back injury”.

1. Finally, in section 8 of the referral document, under the heading “Medical questions”, the conciliation officer stated the medical question in the following terms:

“What is the nature of the worker’s medical condition (including any sequelae) relevant to the accepted foot injury?  (See section 4 above)”.

1. It is thus apparent from the referral document that there was no dispute between the parties concerning the existence of the plaintiff’s left foot and left leg injury.  What was in dispute was whether the plaintiff had sustained a back injury as a consequence of his left foot injury.  More specifically, what was in dispute was whether or not the plaintiff had sustained a back injury as a result of limping and altered gait due to the foot injury.

The Panel’s decision and reasons

1. In answering the medical question, “In the Panel’s opinion, the worker is suffering from the residual effects of a Morton’s neuroma of the second web space of the left foot, treated surgically relevant to the accepted left foot injury”, the Panel found against the plaintiff on the issue of whether or not he had sustained a back injury in compensable circumstances.  In its reasons for its opinion, the Panel stated that it formed its opinion by reference to:

(a)certain documents and information provided to the Panel;

(b)the history provided by the plaintiff;  and

(c)the examination findings elicited by the Panel at an examination on 12 August 2010.

1. The documents and information provided to the Panel (and upon which the Panel said it formed its opinion by reference to) included:

-reports from Dr T. Brophy dated 9 September 2008 and 5 October 2009

-a report from Mr R. Richardson dated 24 November 2008

-a report from Dr P. Rice dated 30 April 2010

-a report from Dr C. Freyer dated 6 May 2010

-the referral document

-a three page submission from the plaintiff’s solicitors dated 9 August 2010

-an undated report of the Werribee Foot Clinic signed by Mr M. Randles.

1. Having said that the Panel formed its opinion by reference to the documents and information, the history and the examination to which I have already referred, the Panel then commenced its reasons for its opinion by “Not[ing] from the referral documents, that it is accepted that liability has been accepted for injuries suffered by the worker to the left foot and left leg”.  The Panel then set out the plaintiff’s history in the following terms:

“The worker told the Panel that he had been employed as a painter for most of his working life.  He said that he had worked at the Williamstown shipyard from March 2007 where his duties involved painting Anzac frigates during construction.  He said that he had a previous period of employment in the same job for two or three years some ten year earlier.

He described to the Panel the tasks and manner of work involved in his job including the necessity to wear steel capped ‘safety’ boots and the need to repeatedly climb ladders and work from scaffolding.  He said that his work boots were provided from the company store on site.  There were two styles of boot and a variety of different sizes.  He told the Panel that he had been able to select a comfortable pair of boots which fitted him appropriately.  He said that he had not had any problems with the boots while at work.

He told the Panel that to his knowledge, he had not suffered injury to his back prior to 2007 and had never been involved in a motor vehicle accident.

The worker told the Panel that over time during 2007 he gradually developed pain in his left foot.  He persisted at work but eventually attended his local doctor who arranged a plain X-ray, and he later attended an Occupational Medicine clinic where further investigations including CT scan, ultrasound and MRI were undertaken with an eventual diagnosis of Morton’s neuroma being reached.  He said that towards the end of 2007, he thought about November, he was put onto restricted duties which did not require prolonged periods on his feet or climbing ladders.  By the end of 2007 he was only able to walk for some five or ten minutes before having to stop due to the severity of foot pain he suffered.  Eventually in April 2008 he was told that there were no further restricted duties and ceased work.  He underwent two cortisone injections into his foot with good albeit short term relief and on 6^th October 2008 underwent an operation on his foot.

He told the Panel that following the operation he used elbow crutches for some two weeks.  When weight bearing on the foot he suffered pain but he said that he attributed the pain to the fact that he ‘had just had my foot cut open’.  He later underwent a further four cortisone injections into the area, most recently in April 2010 but found that the last two of these had no beneficial effect.  He told the Panel that he thought that his foot condition had been stable from about the second half of 2009.

The worker told the Panel that he started to develop pain in his low back from late 2007 although he was unsure exactly when it started.  He was unaware of any specific incident which caused the pain, which slowly worsened over time.  He said that he mentioned it to the occupation [sic] medicine clinic doctor and attended a physiotherapist for treatment of his back on some seventeen occasions.  He told the Panel that once he stopped work his back settled significantly.  The pain was present across the low back on both sides and spread into both buttocks and hips but not down either leg.  Initially he did not take much notice of the back pain as he ‘just thought it would get better’.  He was not aware that use of crutches affected his back pain but commented that at this time he was taking Endone, a strong narcotic analgesic.

The worker told the Panel that at present he has intermittent back pain which occurs when particularly walking for more than ten minutes or driving a car for greater than half an hour.  He said that he is working on a casual basis as a painter, employed by his brother and working a maximum of five hours a day and up to five days a week.  He is unable to climb a ladder because of pain in the left foot but can manage stairs without suffering foot pain or developing low back pain.  He takes Voltaren 50mg tablets once a day when he is working as this helps prevent or delay the onset of back pain.  He has no other active treatments and does not undertake any exercise or other program for his back or foot condition.”

1. The Panel then described the physical examination it conducted and the review of radiological and other material in the following terms:

“On physical examination the Panel noted that the worker was of large build.  He told the Panel that he was 5’9” (175cm) and weighs about 128 kilograms (BMI>41).  He had a normal gait with no limp and normal toe off.  There were normal spinal curves and no tenderness on palpation over the spine or para-spinal muscles.  There was no palpable para-spinal muscle spasm.  There was a normal range of low back motion with flexion enabling the worker to touch the toes.  Lateral flexion was to just proximal to the knee bilaterally with mild low back pain at the limit.

Neurological examination of the lower limbs revealed normal muscle power and reflexes with no sensory change consistent with radiculopathy.  Straight leg raise was to 80° without the development of sciatic pain.  The legs were of equal length when measured between the anterior superior iliac spine and the medial malleolus.

On examination of the left foot there was a three centimetre, flat, slightly pigmented surgical scar over the dorsum of the second web space centred at the level of the metatarso-phalangeal joint.  The adjoining surfaces of the second and third toes were numb but there was no hyperalgesia and no other alteration of sensation in the foot.  There was no excess callosity of the sole of the foot.  The peripheral pulses around the foot and ankle were present and symmetrical bilaterally.

The Panel reviewed an x-ray of the left foot dated 5^th September 2007 which showed a well corticated calcaneal spur but  not other abnormality.  A CT of the foot dated 24^th September 2007 showed no significant abnormality.  MRI of the lumbo-sacral spine dated 23^rd May 2008 showed long standing multi-level degenerative changes with mild bulging of the intervertebral discs not compressing neurological structures and mild facet joint arthritis.  The Panel noted the reports of ultrasound examinations of the left forefoot dated 22^nd January 2008 and 20^th January 2009 included in the medical report of Mr J. Kendall Francis dated 19^th November 2009.  The first of these examinations was reported to demonstrate inter-metatarsal fibromata in the second and third web spaces while the latter scan showed a fibroma in the second web space and mild bursitis in the third web space.”

1. Finally, the Panel then expressed its conclusions in the following terms:

“The Panel concluded that the worker is suffering from the residual effects of a Morton’s neuroma of the second web space of the left foot treated surgically.  The Panel also concluded that the worker has long standing constitutional degenerative changes of the lumbo-sacral spine resulting in intermittent mechanical low back pain with no clinical evidence of radiculopathy.  The Panel also noted [sic].

The Panel considered

·     the worker’s history of his left foot injury;

·     the worker’s history of the development of low back pain several months later at about the time he was transferred to restricted duties;

·     the management of his foot condition including numerous corticosteroid injections, operative treatment and subsequent use of crutches for some two weeks;

·     the worker’s assessment that his back condition improved over time after stopping work;

·     the MRI scan of the lumbar spine which demonstrated multilevel lumbar disc degenerative disease;

·     the submission of the worker’s solicitor dated 9^th August 2010 and the documents enclosed with that submission;

·     the worker’s body mass index of over 41 kilogram/metre²;  and

·     the results of its examination of the worker.

The Panel accepted that the worker would have had an altered gait at the time of development of left foot symptoms and in the postoperative period, and that he developed low back pain several months after the onset of his foot symptoms, but considered on balance that the accepted left foot condition and/or its treatment have not affected the natural history of the worker’s underlying (and previously asymptomatic) lumbar degenerative disc disease in any way.

The Panel therefore concluded that the worker’s injury to the left foot and its subsequent treatment could not possibly have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbo-sacral degenerative changes.”

1. The heart of the Panel’s reasons for determining that the plaintiff did not sustain a back injury as a consequence of the left foot injury, is contained in the last two paragraphs of the Panel’s reasons.  Whilst the Panel accepted that the plaintiff would have had an altered gait as a result of his left foot injury, and that the plaintiff did develop low back pain after the onset of left foot symptoms, it made two conclusions which are not easy to reconcile:  first, it concluded “on balance” that the left foot injury had not affected the natural history of the pre-existing degenerative changes in the plaintiff’s low back;  and secondly, it reasoned from this first conclusion that the left foot injury “could not possibly” have contributed to any aggravation, acceleration, exacerbation or deterioration of those pre-existing degenerative changes.  In making its first conclusion “on balance”, it must also be said that nowhere in the reasons is there any reference to the material that was balanced – although this may have included the Panel’s own expert views (notwithstanding any lack of an express statement to that effect[3]).

   [3]Cf Tisdall v Webber [2011] FCAFC 76, [134].

The material before the Panel

1. As I have noted above, the Panel had two reports from Dr T. Brophy, a general practitioner who had provided treatment to the plaintiff.  In Dr Brophy’s first report, Dr Brophy stated:

“Mr Abbott also developed low back pain in the months following his foot injury which he felt was induced by his constant limping.  A Workcover claim was submitted for this and was subsequently denied after specialist opinion.  In the course of investigations, CT and MRI exams of the back were performed and these showed some disc bulging and degenerative changes affecting the lumbar sacral spine.  Quite clearly these were pre existing changes.  However in the interim between his foot injury and his complaints of back pain there were no obvious precipitating factors to account for his back pain other than his chronic antalgic gait.  To dismiss this as non contributory is a bit unfair as this phenomena arises quite frequently in general practice and physiotherapy practice.  More often than not correction of the gait will ease the knee or back pain which has occurred as a secondary issue.

As such Mr Abbott remains unfit for his pre-injury duties and it is hoped that surgery will correct his foot problem.  He is fit for seated duties at present or duties where minimal walking, standing or lifting is involved.  He has pre existing constitutional degenerative changes in his lower back which have recently caused some pain, the likely causative factor being his chronic antalgic gait”.

1. In Dr Brophy’s second report, Dr Brophy stated:

“In regards to Mr Abbott’s back pain, he complained of this developing in the months after his foot injury and felt that his constant limping had precipitated this.  CT and MRI imaging have shown pre-existing degenerative change in the lower spine and his claim was denied subsequent to specialist opinion.  As there were no other precipitating factors for back pain in the interim between his foot injury and the onset of back pain, I would have thought that his constant limping and antalgic gait played a role in his back pain”.

1. Additionally, the Panel had the report of Mr Richardson (physiotherapist) dated 24 November 2008.  In that report, Mr Richardson stated:

“On initial examination on the 07/03/08 Malcolm presented as a well but somewhat overweight gentleman who was wearing an orthotic that was prescribed by a podiatrist.  The orthotic was for facilitating treatment of his Morton’s neuroma in his left foot.  He presented limping heavily and it was obvious that his low back had been overloaded over a period of time due to his altered gait.

On initial examination of his lumbar spine, Malcolm displayed good range of movement with some minor pain at the end of range and overpressures, on forward flexion, end of range of extension and on overpressure to both left and right quadrants.  There were no neurological signs and he displayed full muscular strength in both legs.  There was no skin discolouration or swelling, however the paravertebral muscles were tight bilaterally and there was pain on moderate postero-anterior pressure to L4, 5 and S1.  It appeared that Malcolm had a simple musculoligamentus and facet joint overload from his constant limping due to his left foot pain.  He was therefore treated with acupuncture, interferential, spinal mobilisations and manipulations.  We limited his bending, lifting and sitting in low soft chairs, so as not to overload the lumbar structures.  He was not given exercises at this particular stage until he showed signs of responding to physiotherapy treatment.  When this was achieved he was given core strengthening and specific erector spinae strengthening.  He was also give [sic] a home mobilization exercise program and self managed hydrotherapy”.

1. A little further on in his report, Mr Richardson stated:

“In essence I do believe that because Malcolm was not a young man that there is some degeneration in his low back that his being somewhat overweight with constant limping the inevitable happened and that is the predictable secondary problem of low back overload occurred as a direct result of the constant limping caused by his neuroma.  This is not an uncommon development, and such secondary problems are well documented.

I believe that until Malcolm has his foot condition rectified that a combination of his weight, his age and the type of work he is to do and has been doing and the natural level of degeneration of a 48 year old male all combine to produce his perpetuation of his secondary problem ie. low back pain”.

1. The report of Mr Rice (orthopaedic surgeon), which was provided to the Panel stated:

“Mr Abbott has been limping because of the pain in the left foot and this altered and protective gait pattern will have probably contributed to Mr Abbott’s back symptoms”.

1. Additionally, the report of Dr Freyer in the possession of the Panel stated:

“Whether Mr Abbott’s altered gait contributed to his back symptoms

Continued pain in the left foot causing him to alter his gait and postural compensation could contribute to his back problems.

Investigations, including MRI of his back excluded other significant causes for his back problems”.

1. Finally, the report of the Werribee Foot Clinic provided to the Panel contained the following statement:

“Regarding Malcolm’s back injury, I am not privy to the diagnosis and management of this issue.  However I think it is fair to say that an antalgic gait pattern may contribute to back pain”.

1. Whilst the Panel had, amongst the materials supplied to it, other medical reports, there was no other medical report (or report from any health care practitioner) expressing an opinion that the plaintiff’s back complaint was not related to his left foot injury – nor any such report expressing the opinion that the left foot injury “could not possibly have contributed to any aggravation, acceleration, exacerbation or deterioration of [the plaintiff’s] pre-existing lumbo-sacral degenerative changes”.  I turn now to deal with the plaintiff’s complaints concerning the adequacy of the Panel’s reasons.[4]

   [4]Grounds (d) and (e). But see also ground (f).

Principles to be applied

1. When considering the reasons of a medical panel, the following propositions need to be steadfastly borne in mind:

(a)First, the medical panel is an expert tribunal, whose members are chosen for their experience and its findings need to be viewed in that light.

(b)Secondly, a medical panel’s reasons are those of a tribunal, not that of a judicial body, and must be viewed from that perspective.

(c)Thirdly, the reasons of a medical panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.

(d)Fourthly, the reasons of a medical panel are meant to inform, and over-zealous judicial review is to be eschewed.

(e)Fifthly, the reasons of the medical panel do not need to advert in detail to those matters it has taken into account.

(f)Sixthly, the reasons should give sufficient explanation so as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.

1. The question of whether the mere failure of a body charged with making an administrative decision to give adequate reasons is, of itself, sufficient to vitiate the decision has been the matter of some controversy.  In Sherlock v Lloyd & Ors,[5] the Court of Appeal cited with approval the statement by Bongiorno J in Brambles Industries Limited v Nisselle:[6]

“The mere failure of a body charged with making an administrative decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respect, to exercise its powers according to law and that inference is drawn by the Court.  If the Court draws such an inference, then it may act upon it and proceed to review the administrative decision but the invalidity invoked as a justification for such review is not a mere failure to give reasons but is the inference drawn by the Court from such failure.  See Repatriation Commission v O’Brien;  Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW);  Sullivan v Department of Transport and Kentucky Fried Chicken Pty Ltd v Gantidis.  A Medical Panel’s decision is not a judgment of a Court.  It may leave unexpressed its rejection of any particular evidence if such rejection is a reasonable inference from the acceptance of a contrary version.”[7]

[5][2010] VSCA 122.

[6][2005] VSC 82, [21] (omitting footnotes).

[7]See Sherlock’s case at [69].

1. Bongiorno J’s judgment in Brambles Industries (to use the words of the Court of Appeal in Sherlock) “drew explicitly on the influential judgment of Brennan J” in Repatriation Commission v O’Brien,[8] where his Honour had said:[9]

“It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O’Brien’s claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction.  If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside.  In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law …”

[8](1985) 155 CLR 422.

[9]Ibid at 445-446.

1. In Sherlock’s case, the Court of Appeal held that the failure by a medical panel, appointed pursuant to the provisions of the Accident Compensation Act, to provide adequate reasons, was not, of itself, a ground for quashing the decision of that panel.  However, following the occurrence of the relevant facts in Sherlock’s case, s 68(2) of the Accident Compensation Act was amended by s 90 of the Accident Compensation Amendment Act 2010 by the insertion of the words “and a written statement of reasons for that opinion”. Section 68(2) now provides:

“The medical panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion”.

1. The plaintiff contends that the new requirement in s 68(2) of the Accident Compensation Act for the medical panel to give its opinion and its reasons means that contrary to the position that pertained in Sherlock, if the reasons required by s 68(2) are inadequate, then the appropriate remedy is the quashing of the medical panel’s decision (the argument being that construing s 68(2) of the Accident Compensation Act in accordance with the principles stated in Project Blue Sky Inc v Australian Broadcasting Authority,[10] if inadequate reasons are given, then they are given in breach of s 68(2) and a purpose of the Accident Compensation Act is that an act done in breach of s 68(2) is invalid[11]). Whether the amendment to s 68(2) of the Accident Compensation Act has the effect contended for by the plaintiff may be doubted. The explanatory memorandum in respect of s 90 of the Accident Compensation Amendment Act 2010 suggests that the amendment to s 68(2) was “largely [to] enshrine” the then existing practice. Specifically, the explanatory memorandum provides:

“Section 90 amends section 68 of the Act to require a medical panel to provide a written statement of reasons for its opinion on a medical question, together with the opinion. In practice, medical panels often provide such written reasons at the request of the referrer. Thus, while the amendment will largely enshrine current practice, it will ensure that reasons are provided, whether they have been requested or not. This will mean that the parties have easier access to information that is relevant to the dispute”.[12]

[10](1998) 194 CLR 355, 390-1 [93].

[11]See further Georgiou v Capitol Radiology Pty Ltd [2011] VSC 158, [95].

[12]See also the Accident Compensation Act Review Final Report, Peter Hanks QC, August 2008 at paragraphs 10.319 – 10.321.

1. However, in the end, it is not necessary for me to resolve this question.  For the reasons given below, I am of the view that not only were the Panel’s reasons inadequate,[13] their inadequacy warrants the inference that the Panel failed to consider the material put before it to the effect that the plaintiff sustained a back injury as a consequence of his left foot injury.[14]

Inadequacy of reasons/failure to consider relevant material[15]

[13]Cf grounds (d) and (e) (and perhaps partially ground (f)).

[14]Cf ground (c).

[15]Grounds (c), (d) and (e) (and ground (f) insofar as it is a complaint as to inadequate reasons).

1. In its reasons, the Panel accepted that the plaintiff had an altered gait at the time he developed left foot symptoms and in the post-operative period (after 6 October 2008).  Further, the Panel accepted that the plaintiff developed low back pain several months after the onset of his foot symptoms.  The medical evidence provided to the Panel was all one way.  In substance, it was to the effect that there were no other obvious precipitating factors to account for the plaintiff’s back pain other than his altered gait, and back pain or injury was a recognised consequence of an altered gait caused by a foot injury.  Specifically, Dr Brophy expressed the opinion that the plaintiff’s constant limping and altered gait played a role in his back pain;  Mr Richardson referred to the constant limping as causing the inevitable to happen – being “the predictable secondary problem of low back overload”;  Mr Rice expressed the opinion that pain in the left foot led to limping and a protective gait pattern which “probably contributed to [the plaintiff’s] back symptoms”;  and Dr Freyer expressed the opinion that continued pain in the left foot causing an alteration to gait could contribute to back problems (investigations, including MRI, having excluded other significant causes for the plaintiff’s back problems).[16]

   [16]See further the opinion expressed in the Werribee Foot Clinic report.

1. Notwithstanding the Panel’s acceptance of the plaintiff’s altered gait following the development of left foot symptoms and the plaintiff’s complaint of the development of low back pain thereafter, the Panel determined “on balance” that there was no back injury that was causally related to the left foot injury.  However, nowhere in the reasons is it said (or even hinted at) what was “balanced” so as to deny the conclusion that the written evidence before the Panel appeared to mandate.  It was put in argument that the Panel almost certainly “balanced” against the written material, its own expert opinions.  Whilst that possibility cannot be ruled out, the short point is that nowhere in the reasons do the Panel say that was in fact their reasoning process.  The reasons are simply devoid of any path of reasoning that explains how the Panel came to its ultimate conclusion. All that is stated is the ultimate conclusion.

1. The matter is made all the worse by the assertion in the reasons that the left foot injury “could not possibly” have contributed to the plaintiff’s back condition.  Having made such an absolute statement, it was even more incumbent on the Panel to at least refer to, and deal with (however briefly), the opinions in the material to the effect that a causal link was both possible and something that occurred (according to the opinions in the written material) with relative frequency.

1. The first defendant submitted that I should, in effect, disregard the absolute statement made in the last paragraph of the Panel’s reasons.  It was submitted that the statement of impossibility was no more than an emphatic way of expressing the conclusion made “on balance” in the penultimate paragraph of the Panel’s reasons.  I was again reminded that the Panel’s reasons should not be scrutinised over-zealously.  Accepting that proposition, it is still very difficult to see how the Panel could conclude that the plaintiff’s left foot injury could not possibly have contributed to the plaintiff’s back condition.  The conclusion flies in the face of the written material submitted to the Panel. Further, the failure to make any specific reference to the conclusions in the written material warrants an inference that the Panel failed to consider this material.

1. It was submitted on behalf of the first defendant that I should not infer that the Panel had failed to consider the written material, because, in its reasons, the Panel said that it formed its opinion by reference to the written materials, and that it considered the submissions of the plaintiff’s solicitor and the documents enclosed with that submission.  I reject this submission.  The somewhat formulaic expression “the Panel formed its opinion by reference to … [the documents referred to in specified enclosures]” merely identifies the documents in the Panel’s possession, some of which may have been read in more or less detail than others.[17]  Similarly, I am not persuaded that the reference in its reasons to considering the plaintiff’s solicitor’s submission and the documents enclosed with that submission[18] tells against the drawing of an inference on the whole of the evidence that the Panel did not consider the relevant written material.

   [17]See Santos v Wadren Pty Ltd [2009] VSC 303, [34].

   [18]Which enclosed documents were only an MRI scan of the plaintiff’s lumbar spine of 23 May 2008, a CT scan of the plaintiff’s lumbar spine of 17 March 2008 and the undated report of the Werribee Foot Clinic.

1. Further, this is not one of those cases where the Panel could have left unexpressed its rejection of the written material.  The written material was all one way as to causation.  The Panel’s opinion was not only that causation was not established, but also that it was not possible.  In those circumstances, the failure of the Panel to make any specific reference to the relevant written material well justifies the inference that it failed to consider that material.  For these reasons, the opinion of the Panel must be quashed.

1. Having concluded that the reasons are inadequate and that this inadequacy warrants an inference that the Panel failed to consider the written material to which I have already made reference, it is not necessary for me to deal with the plaintiff’s remaining complaints that the Panel’s conclusion (opinion) was unreasonable and not open.[19]  However, I should say that because no reasons are given for the Panel’s ultimate conclusions, it is not possible to say whether the conclusions are reasonable or unreasonable, or open or not open.  It may be that there was a basis for the Panel’s opinion (based on the Panel’s experience and expertise, remembering that it is an expert tribunal whose members were chosen for their expertise). However, one simply does not (and can not) know whether this is the case because of the paucity of the reasons. In any event, having regard to the conclusions I have already expressed, it is not necessary for me to say anything further in relation to these issues.

   [19]Grounds (a) and (b).

Disposition of the proceeding

1. The question now arises as to whether the opinion of the Panel should simply be quashed, or whether an order should also be made remitting the matter for determination by a differently constituted Panel.  A number of decisions of this Court have resulted in matters being remitted for determination by a differently constituted Panel.[20]  In other cases, the appropriateness of taking this course has been questioned.[21]  In this case, the plaintiff seeks the quashing of the Medical Panel’s opinion and remittal and re-determination by a differently constituted Panel.  In the event that the plaintiff persuaded me that the opinion of the Medical Panel should be quashed, the first defendant did not oppose an order for the re-determination of the medical question by a differently constituted Panel.  In the circumstances, I am prepared to make the order sought by the plaintiff, adopting the principle as stated by Ormiston J in Body Corporate Strata Plan (No. 4166) & Ors v Stirling Properties Limited.[22]

   [20]See, for example, Clarke v National Mutual Life Insurance Limited [2007] VSC 341.

   [21]See, for example, Davidson v Fish [2008] VSC 32.

   [22][1984] VR 903 at 912.

Conclusion

1. For the reasons given above, the decision of the Medical Panel made on 20 September 2010 will be quashed and the medical question referred back to the Convenor of Medical Panels for determination by a differently constituted Panel.  I will hear the parties on the question of costs.