Addison-Radford v State of Victoria
[2023] VSC 457
•14 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 02176
| JODI ADDISON-RADFORD | Plaintiff |
| v | |
| STATE OF VICTORIA & ORS (according to the attached Schedule of Parties) | Defendants |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 July 2023 |
DATE OF JUDGMENT: | 14 August 2023 |
CASE MAY BE CITED AS: | Addison-Radford v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 457 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Assessment of degree of whole person psychiatric impairment – Panel did not obtain detailed oral history of traumatic incidents experienced by worker accepted as cause of psychiatric injury – Whether Panel failed to obtain a whole history of the illness – Whether Panel failed to properly apply the Guide to the Evaluation of Psychiatric Impairment for Clinicians – Whether Panel committed jurisdictional error – Whether Panel’s Opinion legally unreasonable – No error established – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45 – St Luke’s Anglicare v Handrinos [2018] VSC 356 – Chang v Neill (2019) 62 VR 174 – Edwards v The State of Victoria [2021] VSC 423 – Schamel v Leach [2020] VSC 562 – Chandra v Webber (2010) 187 FCR 31.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P Czarnota C Viney | Fortitude Legal |
| For the First Defendant | M Fleming KC R Kumar | Hall & Wilcox |
| For the Second to Third Defendants | No appearance | DLA Piper Australia |
HER HONOUR:
Introduction
The plaintiff, Ms Addison-Radford, is a 52 year old woman who, during the course of her employment as a police officer with Victoria Police, was exposed to a multitude of critical and traumatic incidents and fatalities. This included her role as a first responder following the murder of Darcey Freeman. Ms Addison-Radford claims that exposure to the traumatic incidents caused her to suffer a work related psychiatric injury (the workplace injury).
Ms Addison-Radford made a claim for non-economic loss compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act) in respect of the workplace injury. Ms Addison-Radford is only entitled to such compensation if her degree of psychiatric impairment is assessed as 30% or more.[1] The Medical Panel who examined Ms Addison-Radford in accordance with the Guide to the Evaluation of Psychiatric Impairment for Clinicians (the GEPIC),[2] assessed her as having a whole person psychiatric impairment of 20% (the Opinion).
[1]The Act, s 212.
[2]The Act, ss 54, 64 and 67.
Ms Addison-Radford now seeks judicial review of the Panel‘s Opinion. Ms Addison-Radford alleges that in reaching its Opinion, the Panel failed to obtain a ‘full and complete’ history from her, in particular in respect of the traumatic incidents. In doing so, Ms Addison-Radford claims that the Medical Panel failed to properly apply the GEPIC which requires consideration of a person’s whole history of illness prior to the evaluation of a person’s impairment, and claims that its failure to take such a history was so legally unreasonable that it amounts to a constructive failure to exercise jurisdiction.
Ms Addison-Radford seeks an order quashing the Panel’s Opinion, together with an order remitting the referred medical questions to a differently constituted medical panel.
The State of Victoria, as the employer of Ms Addison-Radford, defended this application on the basis that the members of the Panel exercised their clinical judgement in assessing Ms Addison-Radford, including the manner in which it took her history. It was said that there was no error by the Panel in the way in which it performed its task.
For the reasons that follow, Ms Addison-Radford has failed to satisfy me in respect of either of her grounds of review, and I therefore dismiss the application.
Procedural background
On 31 August 2021, Ms Addison-Radford completed a Workers Claim for Impairment Benefits Form, in respect of the workplace injury.
On 22 November 2021, her employer’s claims agent, Gallagher Bassett, arranged for Ms Addison-Radford to be examined by independent medical examiner, psychiatrist, Dr Richard Prytula. In a report of the same date, Dr Prytula diagnosed Ms Addison-Radford as suffering post-traumatic stress disorder (PTSD) with symptoms of anxiety and depression, and stated that, in his opinion, this condition had arisen as a consequence of her exposure to the traumatic incidents. Dr Prytula performed a psychiatric impairment evaluation in accordance with the GEPIC and assessed Ms Addison-Radford to have a whole person impairment of 16%.
Accordingly, on 26 November 2021, the claims agent advised Ms Addison-Radford that it accepted liability for her claimed psychiatric condition, and that her whole person impairment had been assessed at 16%.
On 8 December 2021, in her Workers Response Form, Ms Addison-Radford accepted the liability decision, but disputed the impairment assessment.
Thereafter, on 5 January 2022, the claims agent sent a referral to the Convener of Medical Panels for an opinion as to Ms Addison-Radford’s degree of permanent whole person impairment resulting from her accepted psychiatric condition injury.
A two member medical panel was convened and composed of psychiatrists Dr Samari Jayarajah and Dr Sandra Hacker. The Panel members are the respective second and third defendants to the proceeding. As is the usual arrangement, the second and third defendants adopted a Hardiman[3] position, in that they did not take an active role in the proceedings and indicated by way of correspondence that they would abide by the decision of the Court.
[3]R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman (1980) 144 CLR 13.
The Panel Opinion
On 14 April 2022, the Panel examined Ms Addison-Radford.
On 29 April 2022, the Panel provided its Certificate of Opinion and written statement of Reasons for Opinion.
The parts of the Opinion relevant to this application are as follows:
Question i)What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?
Answer: The Panel is of the opinion that there is a 20% psychiatric impairment resulting from the accepted psychiatric condition injury when assessed in accordance with Section 54 of the Act. The degree of psychiatric impairment is permanent.
In its Reasons, the Panel stated that it had formed its Opinion with regard to the following:
(a) Documents and information provided to it as part of the referral, which included: the report of Dr Prytula; medical reports from Ms Addison-Radford’s treating practitioners; reports from medico-legal psychiatrists, Dr Edmond Ammers and Dr Martin Linden; clinical notes from Austin Health, and general practitioner and psychological clinics upon whom Ms Addison-Radford had attended. In addition, the Panel was provided with photographs of art work which Ms Addison-Radford prepared following her attendance at the murder of Darcey Freeman (the referral material); and
(b) The history provided by Ms Addison-Radford and the examination findings elicited by the Panel during its examination of her.
Under the heading ‘Referral’, the Panel detailed Ms Addison-Radford’s background, including her family history, her upbringing with an abusive father, where she attended school, her relationship history, and the birth of her children. The Panel then noted Ms Addison-Radford’s employment history, which included work she had performed prior to commencing with Victoria Police. The Panel also noted Ms Addison-Radford’s medical history and that she had no past psychiatric history.
The Panel then stated:
History of injury
The worker commenced employment with Victoria Police on 16 October 1991. During the course of her employment, she was exposed to multiple critical and traumatic incidents and fatalities. Some examples include being the first responder to Darcy (sic) Freeman who was thrown off the Westgate Bridge in 2010 and having sustained contact with family members of murder victims in her role as media liaison. The worker was also exposed to numerous other violent incidents including suicides, fatalities, road trauma, family violence and assaults. The worker was hospitalised for a panic attack in 2011. She has completed a PTSD course through the Austin and sees a psychiatrist and counsellor on a regular basis. The worker ceased work in 2018 after developing low mood, social withdrawal, irritability, anxiety, panic attacks, flashbacks, and nightmares. The Panel considered that reviewing in detail the nature of the incidents that resulted in the worker’s injury would further traumatise the worker without providing any utility to the Panel given the extensive and detailed documentation provided in conjunction with an accepted psychiatric condition injury.
Under the heading ‘Current symptoms and functional status’, the Panel noted a history from Ms Addison-Radford which detailed the following: she feels easily triggered; she startles easily; she experiences panic attacks on a regular basis; she is constantly reminded about a particularly traumatic day at work whenever she is near the Westgate Bridge; she avoids certain roads and areas as they trigger her; she experiences flashbacks and reliving experiences, with memories, fear and nausea; she is triggered daily by the news; and her memory and concentration are impacted by ruminations.
The Panel outlined Ms Addison-Radford’s daily activities, and thereafter noted her current treatment. The Panel stated that Ms Addison-Radford attends a psychiatrist every 2-3 weeks and sees her general practitioner as required. It also noted that as at that date, Ms Addison-Radford had not trialled antidepressants, as she preferred the ‘natural route’.
Thereafter, the Panel performed a mental state examination in accordance with the GEPIC. It specifically assessed Ms Addison-Radford’s appearance and behaviour, speech, mood, affect, thought form, thought content, perception, cognition, insight and judgement. In respect of her affect, the Panel noted that Ms Addison-Radford was ‘anxious and tearful on occasion, particularly when talking about her workplace injury’.
The Panel concluded that Ms Addison-Radford was suffering from PTSD, relevant to the accepted psychiatric injury. The Panel stated that it had conducted an impairment assessment in accordance with the GEPIC[4] and determined that Ms Addison-Radford had a median class 2 impairment, and total degree of psychiatric impairment of 20%. The Panel considered that the degree of impairment was permanent.
[4]The Act, s 64.
The Panel acknowledged that in performing its task it was required to disregard any unrelated impairment.[5] The Panel stated that, notwithstanding adverse early childhood events, Ms Addison-Radford was functioning well prior to her workplace injury and it considered that there was no evidence of an impairment from an unrelated injury or cause that was playing a part in her current impairment.
[5]The Act, s 53(2)(b).
Notes of the Panel members
A central issue in this judicial review is what oral history, if any, the Panel took from Ms Addison-Radford. The parties agreed that in considering this application I should have regard to the assessment notes of the Panel members, namely, the handwritten notes of Dr Hacker (undated) and the typed notes of Dr Jayarajah dated 14 April 2022.
The notes of Dr Hacker are confined to one page. Although, at times, the contents are difficult to decipher,[6] it is apparent that a considerable part of the notes contain information subsequently included in the Reasons under the headings ‘Referral’ and ‘Current symptoms.’ I note that Dr Hacker’s notes do not contain any of the material outlined in the History part of the Reasons.
[6]No disrespect or criticism intended.
The typed notes of Dr Jayarajah duplicate some of the information contained within Dr Hacker’s notes. On the whole, the notes of Dr Jayarajah are more fulsome and reflect much of the material contained in the Reasons.
In relation to Ms Addison-Radford’s history, I note the following was recorded by Dr Jayarajah in her notes:
Hx of injury
Vic police from 16/10/91
multiple critical incidents and fatalities
General duties at waurn ponds
32 h/ week
IT and maintaining computers assessing ost fitness media liaison pr.First responder to 4yo who was thrown from west gate. Darcy freeman. 2010.
Had already been thrown in the water and ambulance working on her.
Witnessed resus. Looking for second child. Child helicoptered and call came
to chaplain that she had died. Ptsd
Media liaison- sustained contact with family members of murder victims and
lost. hard to be near westgate, moved to torquay.
Exposed to violent incidence including suicides fatalities road trauma family
violence assaults.
Losing confidence to perform duties
Physical sx, immersed self in work
Hospitalised for heart attack that was panic attack in 2011. Insomnia anxiety
Overwhelmed.
Ms Addison-Radford’s evidence as to her attendance at the Panel
In support of Ms Addison-Radford’s application for judicial review, she sought to rely upon her affidavit dated 20 October 2022, in which she stated that:
6… I attended the Panel’s examination having prepared myself to be extensively questioned about the traumatic incidents to which I had been exposed, and my history of my injury following those traumatic incidents. I expected to be given a full opportunity to explain the devastating impact those incidents have had on my life. I appreciated this was needed for the Panel to understand and accurately assess my impairment.
7I remember being asked various questions by the Third and Fourth Defendants (sic) about my background and my current status. I was not asked any questions, however, in respect of the traumatic incidents which were the source of my injury and how those specific incidents continue to cause my impairment now (for example, I was not asked about the actual details of the nature, content and frequency of my intrusive thoughts, flashbacks and the images I regularly see including reliving the experience of seeing dead bodies, and in particular that of the small child, Darcey Freeman). I left the examination feeling very upset and unsatisfied, believing that the Third and Fourth Defendants (sic) did not actually understand and appreciate the full extent of trauma I suffered from exposure to the workplace incidents which gave rise to my injury and consequent impairment for which I was being examined.
At hearing, the State required Ms Addison-Radford to be called as a witness so that it could cross-examine her in respect of the contents of her affidavit.
In cross-examination, Ms Addison-Radford accepted the Panel’s description that her affect was ‘anxious and tearful on occasion, particularly when talking about her workplace injury.’ She confirmed that she told the Panel that she ‘experiences panic attacks on a regular basis.’
Ms Addison-Radford also accepted that she told the Panel she is:
constantly reminded about a particular traumatic day at work whenever she is near the Westgate. She avoids certain roads and areas; that they trigger her and she experiences flashbacks and reliving experiences with memories, fear and nausea. She is triggered daily by the news.
Ms Addison-Radford was then cross-examined as to the contents of the typed notes of Dr Jayarajah pertaining to her history, as set out at [27] above. Ms Addison-Radford accepted that she either told, or confirmed, parts of what was contained in those notes, including her exposure to violent incidents, such as suicides, fatalities, road trauma, family violence, and assaults. Further, she accepted that she either told, or confirmed with, the Panel that she was a first responder following the murder of Darcey Freeman. However, Ms Addison-Radford‘s evidence was that she did not state all of what was recorded in Dr Jayarajah’s notes. Specifically, she said that she did not go into the level of detail as recorded in the notes in respect of the circumstances surrounding the murder of Darcey Freeman.
The GEPIC
The GEPIC was co-authored by psychiatrists Dr Michael Epstein, Associate Professor George Mendelson, and Dr Nigel Strauss. It is a guide which provides for the assessment of a person’s psychiatric impairment. Under the GEPIC, a determination is based upon an assessment of six aspects of mental functioning: intelligence, thinking, perception, judgement, mood, and behaviour.
The GEPIC states that there are five principles to be considered when assessing psychiatric impairment. In her first ground of review, Ms Addison-Radford relied upon Principle 5, which states:
A careful review must be made of the treatment and rehabilitation methods that have been applied or are being used. No final judgement can be made until the whole history of the illness, the treatment, the rehabilitation phrase, and the individual’s current mental and physical status and behaviour have been considered.
Relevantly, the GEPIC also states:
Use of the Guides
The presence and extent of impairment is a medical issue, and is assessed by medical means. This Guide has been designed for use by medical practitioners; in evaluating psychiatric impairment in accordance with this Guide clinical information has to be obtained and assessed, together with an examination of the individual’s mental state.
The evaluation of psychiatric impairment in accordance with the Guide is meant to be informed by clinical judgement, based on appropriate training and experience, and the specific rating criteria are not meant to be used in a “cookbook” fashion.
Ms Addison-Radford’s grounds of review and submissions in support
Ms Addison-Radford alleged that:
(i) the Panel erred by failing to properly apply the GEPIC; and
(ii) the Panel’s failure to obtain a full and complete history from Ms Addison-Radford as part of its mental status examination, was legally unreasonable and amounted to a constructive failure to exercise jurisdiction.
It is relevant to note there is some overlap between grounds (i) and (ii). Both grounds of review claim that the Panel failed to take a detailed oral history from Ms Addison-Radford in respect of the traumatic incidents, which were accepted as causing her psychiatric injury.
Ms Addison-Radford acknowledged that the Panel’s decision not to review ‘in detail’ the nature of the incidents (on the basis that to do so would ‘further traumatise’ her), may, on one view, be considered ‘admirable’. However, Ms Addison-Radford submitted that ‘sympathy’ must not ‘take precedence’ over the Panel’s obligation to perform its statutory task.
Relevant to both grounds of review, it was suggested that parts of Ms Addison-Radford’s history recorded in Dr Jayarajah notes (and detailed by the Panel in its Reasons), were ‘strikingly’ similar to the history detailed in the reports of Ms Addison-Radford’s general practitioner, Dr Johanna Yorke,[7] and treating psychiatrist, Dr van Ammers.[8] Ms Addison-Radford submitted that this suggested Dr Jayarajah’s notes were not made contemporaneously based on information provided by Ms Addison-Radford during the examination, but rather, was a recording of her review of material annexed to the referral. It was submitted that I should prefer the hand written notes of Dr Hacker to those of Dr Jayarajah on the basis that it could be inferred the handwritten notes were more likely to be contemporaneous to the examination, and such notes made no reference to the history of injury.
[7]Dated 1 September 2021.
[8]Dated 11 August 2020.
I was also invited to note that, unlike other parts of the Reasons which frequently contained phrases such as ‘the worker said that…’ or ‘she said she…’, there were no equivalent phrases under the History part of the Reasons. Ms Addison-Radford submitted this supported her contention that the Panel did not obtain the history directly from her, but rather from other sources.
In relation to her first ground of review Ms Addison-Radford submitted that, pursuant to Principle 5, the Panel could not make a final judgement in respect of her impairment until the ‘whole history’ of the illness was considered. It was put that this involved taking a full and complete history from Ms Addison-Radford of the traumatic incidents. Ms Addison-Radford submitted that this was fundamental to an assessment under the GEPIC, and the Panel’s decision not to take a detailed history from her was therefore a failure to assess her in accordance with it.
In relation to the second ground of review, Ms Addison-Radford submitted that the failure to obtain such detail was a failure by the Panel to engage with a fundamental issue. It was also a failure to make obvious inquiries about critical facts, which were readily ascertainable and centrally relevant to the medical questions it was obliged to answer. Ms Addison-Radford submitted that the Panel’s failure to take a full and complete history from her was a breach of the Panel’s duty to act reasonably.[9] She submitted that this ground of review could be used to impugn a decision of a medical panel.[10]
[9]Minister for Immigration and Citizenship v Li [2013] HCA 18, [26]-[29], [63]-[67], [88]-[90]; Schmael v Leach [2020] VSC 562, [36]-[37]; Nguyen v Disler [2021] VSC 140, [10]-[14].
[10]Schmael (n 9); Nguyen (n 9); Total Transport v Tasiopoulos [2019] VSC 266, [22], and acknowledged as a possible ground of review in Sidiqi v Kotsios [2021] VSCA 187, [56]-[58].
Ms Addison-Radford contended that a psychiatric impairment assessment relies heavily (if not wholly) on the examination itself, and the history taken from an injured person. It was said that this could be compared to a physical impairment assessment which, to an extent, may rely on external objective indicators of injury and impairment, such as radiological report findings.
Ms Addison-Radford also submitted that the Panel’s failure to obtain a full and complete history in relation to the traumatic incidents was comparable to this Court’s finding of unreasonableness in Schmael v Leach. In that case, Richards J held that a medical panel failed to make obvious inquiries of a worker who was due to have MRI scans taken in respect of her claimed injury. Ms Addison-Radford submitted that, analogously, it was legally unreasonable for the Panel not to make inquiries of her regarding the traumatic incidents.
In support of both grounds of review, Ms Addison-Radford sought leave to rely upon two medical reports of Dr Strauss dated 6 June 2022 and 11 October 2022. These reports were commissioned by Ms Addison-Radford’s solicitors to obtain Dr Strauss’ opinion of the requirements in respect of history taking under the GEPIC, and whether the Panel had performed the task required of it.
In his first report, Dr Strauss stated that in his opinion, an examining doctor should ask an individual who has been allegedly traumatised, to recount their experiences. Dr Strauss stated that although this can be a distressing process for the victim, it is a process that he considers to be ‘extremely important in the quantitative impairment assessment of the individual concerned.’ Dr Strauss stated that this was particularly so for people suffering from PTSD, and that an individual’s emotional state as they recount their experiences is an important indicator in any psychiatric assessment to determine the severity of the condition.
Based upon his review of the material provided to him,[11] Dr Strauss was of the opinion that the Panel did not properly and correctly fulfil its task in applying the GEPIC when assessing Ms Addison-Radford’s level of whole person impairment.
[11]Dr Strauss did not examine Ms Addison-Radford, and obviously was not aware of the evidence given by Ms Addison-Radford in cross-examination.
In his second report (which addressed the contents of a responsive report from Dr Mendelson dated 26 August 2022),[12] Dr Strauss stated that ‘[s]imply interviewing someone and not going into detail as to what has happened in my opinion is unhelpful in relation to how serious a condition the person has.’ Dr Strauss again stated that, in failing to review in detail the traumatic incidents which resulted in Ms Addison-Radford’s injury, the Panel did not properly and correctly fulfil its task in applying the GEPIC.
[12]In this report, Associate Professor Mendelson stated that upon his review of the relevant material, he was of the opinion that the Panel had properly and correctly fulfilled its task in applying the GEPIC, and that it was entirely appropriate for the Panel not to review in detail all of the various traumatic incidents to which Ms Addison-Radford had been exposed at work. The State submitted that it would only seek to rely upon this report in the event that I ruled the reports of Dr Strauss were admissible.
Ms Addison-Radford submitted that both reports of Dr Strauss were admissible as the reports were relevant to the question of whether the Panel’s Opinion was tainted by unreasonableness.[13] Ms Addison-Radford submitted that there was clear authority which supported the adducing of evidence not before the original decision maker to advance a claim of legal unreasonableness.[14] She submitted that, where the subject matter of the opinions expressed could establish that the Panel, in making the impugned decision, disregarded any fundamental principles, or that the decision lacked an intelligible foundation, the opinion was admissible.[15]
[13]City of Melbourne v Neppessen [2019] VSC 84, [71]-[90]; Mackenzie v Head, Transport for Victoria [2020] VSC 328, [65]; Schmael (n 9), [21]-[26]; Vision Precast Pty Ltd v Ferguson [2021] VSC 808, [82]-[88]; Yum v Owczarek & Ors [2022] VSC 262, [48].
[14]City of Melbourne (n 13), [85]-[89]; Port Phillip Scallops Pty Ltd v Minister for Agriculture [2018] VSC 589, [18]-[19], [22]-[29]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, [458]; Mackenzie (n 13), [171]-[175].
[15]Mackenzie (n 13), [175].
Further, Ms Addison-Radford submitted that the reports of Dr Strauss were relevant and probative of whether or not the Panel complied with its statutory task of assessing Ms Addison-Radford’s whole person impairment in accordance with the GEPIC. She submitted that, had the Panel conducted a full and complete examination, ‘it may or could possibly have’ resulted in a different whole person impairment rating.
Ms Addison-Radford submitted Principle 5 made clear by the words ‘no final judgement can be made until the whole history of the illness … have been considered’ that taking a complete history was essential to its ultimate task of assessing the six aspects of mental functioning. She submitted that the words ‘final judgement’ referred to the outcome of the degree of psychiatric impairment.
Ms Addison-Radford contended that if it was not plain on the face of the words of the GEPIC what was required, then the Court could be assisted by expert opinion to ascertain the specialised meaning of the words and phrases ‘whole history of the illness’.[16]
[16]Victorian Workcover Authority v Elsdon (2013) 42 VR 434, 454 [84], cited in City of Melbourne (n 13), [74].
The State’s submissions
The State submitted that there was nothing in the GEPIC which required the Panel to traverse the multitude of traumatic incidents experienced by Ms Addison-Radford over the course of 27 years in a level of detail whereby the particular circumstances of each incident was explored, and the effect of each upon her was noted. Further, that there was nothing in the GEPIC which precluded an assessor from having regard to the referral material when considering the ‘whole history of the illness’. The State submitted that, as the Panel was not bound by rules or practices as to evidence, it could inform itself of ‘any matter relating to a reference in any manner it thinks fit’[17] including, for example, histories contained in medical reports of others.
[17]The Act, s 303(1).
The State submitted that Ms Addison-Radford had failed to explain how the history of particular incidents was relevant to any of the six aspects of mental functioning which the GEPIC assessment was based upon. It was stated that this was especially so in circumstances where there was an accepted injury and the Panel had found no evidence of an impairment from an unrelated injury or cause.
In respect of the allegation of legal unreasonableness, the State submitted that if this ground was open to Ms Addison-Radford,[18] then it had stringent requirements.[19] The State contended that if I was satisfied that the Panel had properly applied the GEPIC, then it would not be open to find that the Panel had acted unreasonably.
[18]Noting that there has been no Court of Appeal decision to date which expressly held this.
[19]Sidiqi (n 10), [52]-[60].
The State submitted that the decision in Schmael was in contrast to the facts of this case. It was submitted that the Panel’s reasons made clear that it had directly raised with Ms Addison-Radford those matters which it considered were relevant to its assessment of her. Further, the ‘nature and extent’ of the questions asked by the Panel was a matter for the Panel, informed by its own medical expertise.[20]
[20]Sidiqi (n 10), [34].
In respect of Ms Addison-Radford’s attempt to rely upon the opinion of Dr Strauss, the State urged me to refuse the admission of his reports. It was submitted that the reports were not needed to assist in the interpretation of the GEPIC, and further the opinion of Dr Strauss should not be admitted to assess the merits of the unreasonableness ground.
Analysis
At the outset, the following principles are relevant to this application.
In Gamble v Emerald Hill Electrical Pty Ltd,[21] the Court of Appeal made observations in respect of judicial review alleging an erroneous application by a medical panel of the American Medical Association Guides to the Evaluation of Permanent Impairment (the AMA Guides). Although this present application involves the use of the GEPIC, the following observations are nonetheless relevant:
Where, as here, the medical panel states in its reasons that it has carried out the assessment in accordance with the AMA Guides, there will be heavy onus on the challenging party to persuade the reviewing court that this statement should not be taken at face value. The court will ordinarily be most reluctant to conclude that medical practitioners, who have stated that they followed the assessment methodology laid down by the Guides, did not in fact do so.[22]
[21](2012) 38 VR 45.
[22]Ibid [56].
I also refer to and endorse the following statements made by Richards J in St Luke’s Anglicare v Handrinos:[23]
As is the case with the AMA Guides, the prescription of the GEPIC for assessing psychiatric impairment is designed ‘to promote precision, certainty and consistency’ and ‘to make as objective as possible the process of estimating impairment’.[24]
…
While the interpretation of the GEPIC is a question of law, the determination of a level of impairment is a question of fact. A clinical judgment reached by a Medical Panel in accordance with the methodology prescribed by the GEPIC is a finding of fact.[25]
[23][2018] VSC 356.
[24]Ibid [26] (citations omitted).
[25]Ibid [30] (citations omitted).
In Chang v Neill,[26] the Court of Appeal outlined the general obligation of a medical panel to make enquiries of a worker:
As a matter of common sense, where a medical panel requires a worker to attend an examination for the purpose of obtaining information to assist it to answer the medical questions referred to it, the panel must direct and guide the discussion with the worker to ensure that the information that the panel considers relevant is elicited from the worker. In such a case, the panel could not simply leave it to the worker to determine what information should be provided to the panel. Rather, the panel must ask such questions as it considers necessary to enable it to provide an informed professional opinion on the medical questions.
It follows that there may be circumstances in which a medical panel may need to seek information from a worker that is not included in the material submitted to the panel …[27]
[26](2019) 62 VR 174.
[27]Ibid 190-191.
It is common ground between the parties that the impairment assessment was required to be performed in accordance with the GEPIC. Under this guide, before a final judgement can be reached, the whole history of the illness must be considered by the Panel.
It is also common ground that the Panel did not take a detailed oral history from Ms Addison-Radford in relation to the traumatic incidents. This was acknowledged by the Panel in its Reasons. On her own evidence, Ms Addison-Radford either told the Panel, or confirmed to its members, that she had been exposed to the traumatic incidents at work, including suicides, fatalities, road trauma, family violence, and assaults, and that she had been a first responder following the murder of Darcey Freeman. However, the Panel did not seek details of these traumatic incidents from Ms Addison-Radford during the course of the examination.
It is further common ground that, as part of the referral material, the Panel had before it information containing details of Ms Addison-Radford’s history of illness.
What is in dispute is whether the Panel obtained the whole history of Ms Addison-Radford, prior to assessing her level of impairment. Put simply, Ms Addison-Radford says it did not, and the State says that it did.
In respect of the application of the GEPIC, its requirements are clear and straightforward. How a whole history of illness is obtained is a matter of clinical evaluation and professional judgement. It can be expected that the examining doctor(s) will consider oral statements provided by the patient, in answer to either closed or open questions, as well as any other statements volunteered by the patient - or a combination of those methods. In addition, regard may be had to the referral material, including (but not limited to) any treating practitioner reports, medico-legal reports, and clinical records supplied to the examining doctor(s). It is reasonable to expect that the examining doctor(s) will draw upon these sources of information in order to obtain a full and complete history.
There is no explicit instruction in the GEPIC which states that a history must be obtained by the examining doctor(s) exclusively or predominantly by way of oral history from a patient. To infer a prescribed or preferred methodology in respect of obtaining a history of illness, would be inconsistent with the GEPIC, being a guide that contains ‘broad, general statements of the approach to be taken by an assessor’.[28]
[28]Edwards v The State of Victoria [2021] VSC 423, [82].
In view of the above, it was for the Panel members, exercising their clinical judgement, and based upon their relevant training and experience as psychiatrists, to decide the manner in which to obtain a whole history of illness from Ms Addison-Radford. It may be that much of the history contained in the Reasons was obtained from the referral materials. There is nothing in the GEPIC stating that this is impermissible.
Further, it was open to the Panel to decide that it was unnecessary to obtain a detailed history from Ms Addison-Radford as to the traumatic incidents. This, too, was a matter of clinical judgement for the Panel members, having regard to the medical questions they were required to answer. As it was an accepted claim, the Panel’s task was to assess Ms Addison-Radford’s level of impairment, and to disregard any unrelated impairment.
I accept Ms Addison-Radford’s evidence as to what occurred during the examination. It is likely that the Panel asked her only some questions pertaining to the traumatic events. Ms Addison-Radford herself conceded that she either answered questions, or confirmed certain details, consistent with what was contained within some of Dr Jayarajah’s notes. Ms Addison-Radford also accepted that the Panel had been able to assess her as being anxious and tearful when discussing her work injury. Once again, this was a matter of clinical judgement for the Panel members to decide the extent of questioning required in order to ensure they had a whole history.
I reject the submission by Ms Addison-Radford’s counsel that similarities between parts of reports contained in the referral material and the notes of Dr Jayarajah suggested that Ms Addison-Radford was not asked about such matters during the examination. I also reject the attempt to draw a distinction between those parts of the Reasons which had phrases suggestive of direct contributions from Ms Addison-Radford and the information contained under History. As noted previously, Ms Addison-Radford herself accepted that a considerable part of the history component of Dr Jayarajah’s notes was either information she provided or confirmed. In addition, the Panel acknowledged that it had regard to the referral material. As explained above, there is nothing in the GEPIC which requires examining doctor(s) to do otherwise. For those reasons, Ms Addison-Radford’s submissions in respect of these points did not advance her claim.
In view of the above, I am satisfied that, in accordance with the GEPIC, it was for the Panel to decide whether it had a whole history of illness, and whether any further information was required, before it proceeded to undertake its assessment of Ms Addison-Radford’s psychiatric impairment.
I am also satisfied that the Panel obtained a whole history from Ms Addison-Radford after considering both her oral statements, and the referral material. There is no allegation that the records were not accurate and no claim that the Panel made an error in relation to a factual matter contained in such material. Having obtained the whole history in the manner that it did, and in accordance with the GEPIC, the Panel proceeded to perform its statutory task of evaluating Ms Addison-Radford’s level of impairment.
For those reasons, I am not persuaded that the Panel undertook its task in a manner other than that which was consistent with the requirements of the GEPIC. Ground 1 of this judicial review must therefore fail.
In respect of Ms Addison-Radford’s second ground of review, I will assume for the sake of my analysis that unreasonableness is a ground open in respect of a medical panel opinion. However, for the reasons that follow, this is not an application in which unreasonableness is made out.
As I have already explained, I reject Ms Addison-Radford’s allegation that the Panel did not assess her in accordance with the GEPIC.
Separate to the GEPIC, and under the Act, a medical panel is entitled to inform itself on any matter as it sees fit.[29] This includes having regard to information contained within medical records and reports contained in the referral material. Therefore, there can be no criticism of the Panel informing itself of such materials, asking her about such materials during its examination of her, and including such information in its Reasons.
[29]The Act, s 303(1).
It was for the members of the Panel, using their professional experience and training, and applying their clinical judgment to inform themselves of those matters it considered necessary to assess Ms Addison-Radford’s whole person impairment. This included what information to obtain directly from Ms Addison-Radford, and what to obtain from other sources. Providing such scope to a medical panel is consistent with the Act, as well as the remarks of the Court in Chang – it is for a medical panel to decide what to ask, and to determine if it needs to seek more material or information from the worker.
The Court’s task in reviewing a decision of a medical panel, should not descend into a consideration of whether the degree to which a medical panel obtained a history from a worker, through oral statements, versus referral material, constituted legal unreasonableness. To do so would be akin to a medical question, not a question of law. Further, I consider it would be a slippery slope for a Court to critique what must clearly be a matter of professional judgement for the doctors undertaking the assessment.
I accept the State’s submission that the circumstances in Schmael are not comparable to this application. In Schmael, the relevant medical panel was informed by the worker that she was to undergo MRI examinations soon after the Panel’s examination. The medical panel formed an opinion that there was no evidence the worker was suffering an organic medical condition. Upon review, Richards J held that it was legally unreasonable for the medical panel not to inquire about the results of the MRI examinations, as this was information which was readily ascertainable and relevant to a critical fact.
In contrast to Schmael, the Panel who examined Ms Addison-Radford had the information necessary to fulfill its statutory task. Save for a criticism as to the degree of detail obtained orally from Ms Addison-Radford (which, for the reasons already given must fail), there is no additional allegation that the Panel lacked knowledge or consideration of a critical fact pertaining to the medical questions asked of it. Further, unlike in Schmael where injury and causation were in issue, the claim’s agent had accepted Ms Addison-Raford had suffered a psychiatric injury at work. For those reasons, the decision in Schamel does not assist Ms Addison-Radford in the way put.
For the aforementioned reasons, there is no genuine basis to contend that the Panel failed to engage with a fundamental issue, or acted illogically or irrationally. Ground 2 of this judicial review must also fail.
As to the admissibility of the Strauss reports, I accept that Dr Strauss is a co-author of the GEPIC and an expert in the field of psychiatry. However, there are two hurdles preventing the admission of his reports.
(i) There is no need in this case for an expert opinion to clarify the contents of the GEPIC. The wording of Principle 5, and other relevant parts of the GEPIC, is clear. This is not a situation in which an expert opinion is required to assist the Court for a limited purpose, such as understanding the nature of a panel’s diagnosis.[30]
(ii) The unreasonableness ground of review fails for the reasons given above. If the mere raising of a ground of unreasonableness justified admission of new evidence in judicial reviews, this would be open to abuse, and would ignore the general rule that evidence in a judicial review should ordinarily be confined to that which was before the original decision-maker.[31] There was an intelligible foundation to the Panel’s Opinion, and how it went about its task was both reasonable and open to it. I was able to so conclude without the need for the additional reports.
[30]See, for example, YG-1 Australia Pty Ltd v Dr Brann & Ors [2016] VSC 713 [29]; Midfield Meat Processing v Fish & Ors [2015] VSC 195 [10].
[31]Chandra v Webber (2010) 187 FCR 31, 43 [40].
In any event, even if Dr Strauss’ opinion was admitted, his view that a different approach ought to have been taken by the Panel is insufficient to establish legal unreasonableness. The manner in which a history is obtained from a worker for the purpose of conducting an impairment assessment is a matter of professional opinion, about which reasonable minds may differ. Indeed, in the responsive report obtained by the State from Associate Professor Mendelson,[32] he expressed a contrary view to that of Dr Strauss. For a Court to engage in an assessment of these competing professional views would open the door to merits review.
[32]See (n 12); the State only sought to tender this report if Dr Strauss reports were admitted.
Concluding remarks
I will hear from the parties as to the precise form of orders sought to give effect to these reasons.
SCHEDULE OF PARTIES
S ECI 2022 02176
| JODI ADDISON-RADFORD | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| -and- | |
| ASSOCIATE PROFESSOR PETER GIBBONS AS THE CONVENOR OF MEDICAL PANELS | Second Defendant |
| -and- | |
| Dr SAMARI JAYARAJAH | Third Defendant |
| -and- | |
| DR SANDRA HACKER | Fourth Defendant |
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