Aged Care Services v Kontopoulos

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 3660

AGED CARE SERVICES PTY LTD	Plaintiff
v
EDNA KONTOPOULOS	First Defendant
DR RODERICK McRAE	Second Defendant
DR SUSAN BRANN	Third Defendant
MR JOHN BOURKE	Fourth Defendant
PROFESSOR ROBERT HELME	Fifth Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2017
DATE OF JUDGMENT:	15 November 2017
CASE MAY BE CITED AS:	Aged Care Services v Kontopoulos
MEDIUM NEUTRAL CITATION:	[2017] VSC 684 First Revision: 20 November 2017

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Diagnosis that could not reasonably be anticipated – Insufficiency of Medical Panel reasons – Application to quash Medical Panel’s Opinion – Mandamus remitting medical questions for reconsideration by a new Medical Panel – Admissibility of further expert medical evidence – Workplace Injury Rehabilitation and Compensation Act 2013, s 282, 284.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fleming QC with Ms F Spencer	Thomson Geer
For the First Defendant	Mr A Pillay	Adviceline Injury Lawyers
For the Second, Third, Fourth and Fifth Defendants	No Appearance	Moray & Agnew

HIS HONOUR:

The plaintiff’s application

This is an application for judicial review in which the employer Aged Care Services Pty Ltd (the plaintiff) seeks orders in the nature of:

(a) certiorari quashing the opinion of the Medical Panel dated 12 July 2016; and

(b) mandamus remitting the medical questions in respect of which the certified opinion was given to a differently constituted Panel to be reconsidered in accordance with law.

The Medical Panel comprised the second, third, fourth, and fifth defendants who took no active part in the trial of this application (the Panel).[1]
[1]By letter dated 10 February 2017 to the Court the solicitors for the second, third, fourth and fifth defendants advised that their clients will not appear or be represented at the trial but will submit to such orders as the court might make, save they would wish to be heard in the event that a costs order was proposed against them.

Summary of plaintiff’s complaints in relation to the Panel’s process and findings

The plaintiff contends that the Panel fell into jurisdictional error by failing to accord the plaintiff procedural fairness, in essence because the Panel’s psychiatric diagnosis of a Pain Disorder associated with both psychological factors and a now resolved general medical condition in respect of the first defendant and its findings that this condition:

(a) had developed in the context of Edna Kontopoulos, (the first defendant) sustaining soft tissue injuries to her left periscapular region and left peri-hip joint region in the course of her employment on 16 April 2015, yet persisted notwithstanding the resolution of the soft tissue injuries; and

(b) incapacitated the first defendant for her pre-injury employment,

were unexpected and could not reasonably have been anticipated by the plaintiff.

The plaintiff contends that:

(a) the first defendant’s case was not advanced in the way now reflected in the Panel’s opinion;

(b) the Panel’s answers to the referred questions do not arise from a fair assessment of the issues and material before the Panel;

(c) the diagnosis of a Pain Disorder was not based on any medical opinion in that regard being provided to the Panel and without such injury having been relied on by the first defendant;

(d) the Panel failed to appreciate that, based on the material before it:

(i) that there was no suggestion that the first defendant suffered from a Pain Disorder associated with both psychological factors and a general medical condition which had resolved, at the time of the Panel’s consideration of the referred questions, and

(ii) that the condition in (i) above persisted notwithstanding the resolution of the first defendant’s work-related physical injuries, and

(iii) that the condition referred to in (i) above incapacitated the first defendant for her pre-injury duties;

(e) although the Panel was entitled to form its own opinion applying its own experience and expertise, in the circumstances presented to the Panel, the Panel’s recourse to its own knowledge and expertise without giving the plaintiff any opportunity to explore the diagnosis of Pain Disorder associated with both psychological factors and a general medical condition, now resolved, and the said finding associated therewith in relation to the first defendant’s employment, amounted to a denial of procedural fairness to the plaintiff;

(f) the Panel’s Reasons dated 12 July 2016 are inadequate in that they give rise to real doubt about whether the Panel correctly performed its statutory function in circumstances where the diagnosis arrived at by the Panel was derived from an obsolete diagnostic manual which even when in vogue, did not contain the diagnosis opined by the Panel.

Plaintiff’s grounds of appeal

By its Originating Motion filed 7 September 2016 the plaintiff relies upon the following grounds of appeal:

(a) Procedural unfairness

In arriving at its certified Opinion on the referred medical questions the Panel denied the plaintiff procedural fairness by failing to afford the plaintiff a fair opportunity to address the Panel in connection with its conclusion that the worker was suffering from a Pain Disorder associated with both psychological factors and a general medical condition (now resolved), which conclusion as to diagnosis, adverse to the plaintiff was not reasonably to have been expected.

(b) Inadequate Reasons

The Panel erred in law by failing to give a proper and adequate written statement of reasons for its opinion in respect of the referred medical questions in accordance with s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA).

Background

The relevant agreed background facts are in summary as follows:[2]
[2]The first defendant accepts the plaintiff’s summation of the factual background of this matter as set out in Plaintiff’s Submissions, 1 December 2016, [7]–[15]; refer also First Defendant’s Submissions, 8 February 2017, [1]. The background to this proceeding is also set out in the Affidavit of Nicholas Blayney, 6 September 2016 [CB45-49] and the Affidavit of Deidre Petrakis, 28 February 2017, Exhibit ‘DZP-1’ (letter, 16 June 2016).

(a) The first defendant lodged an Injury Claim Form dated 27 May 2015,[3] claiming for compensation on the basis that she had sustained the following injuries:
[3]CB58-59.

left gluteal tendinopathy and trochanteric bursitis, left cervical ligament, left hip, knee and left arm (the injuries);

(b) The first defendant claimed that the injuries were sustained on 16 April 2015 when she fell after tripping on a resident’s buzzer cord;

(c) The first defendant’s claim was accepted on or about 30 April 2015 and she was paid weekly payments of compensation and medical and like expenses;

(d) By notice dated 7 January 2016 issued by Gallagher Bassett Services Workers Compensation Vic Pty Ltd (on behalf of the Victorian WorkCover Authority),[4] the first defendant was advised that she would cease to be entitled to weekly payments from 27 January 2016 and medical and like expenses from 10 February 2016 (first dispute) because:
[4]CB66-68.

(iv)she was no longer incapacitated for work;

(v) her condition was no longer materially contributed to by an injury sustained in the course of her pre-injury employment;

(vi)she no longer required any medical treatment for her injury;

(e) By notice dated 15 February 2016 issued by Gallagher Bassett Services Workers Compensation Vic Pty Ltd (on behalf of the Victorian WorkCover Authority),[5] the first defendant was advised that her request for payment of a left trochanteric bursa ultrasound-guided injection had been refused on the basis that the injection was for a condition unrelated to the first defendant’s work-related injury (second dispute).
[5]CB69-72.

(f) Pursuant to s 282 of the WIRCA, the first defendant referred the above first and second disputes for conciliation by a Conciliation Officer, and on or about 28 April 2016, certain questions were referred by the Conciliation Officer to a Medical Panel for an opinion pursuant to s 284 of the Act;[6]
[6]CB51-57.

(g) A Panel comprising the second to fifth defendants was convened to give its opinion in connection with the referred medical questions.

(h) By letter dated 16 June 2016 which was communicated to the parties, the Convenor of Medical Panels stated:

I refer to the Referral dated 28 April 2016.
I am advised that the referral lists the injuries to be assessed as left gluteal tendinopathy and trochanteric bursitis, left cervical ligament, left hip, knee and left arm. I am also advised that the referral states that the workers’ certificates of capacity list incapacity as being related to a left shoulder injury as well as reactive depression and panic attacks.
I advise that the worker was examined by a Medical Panel on 9 June 2016 which was comprised of specialists in physical medicine. After examining the worker the Panel were of the opinion that the worker’s medical condition and capacity for work could possibly be affected by a psychiatric condition. The Panel has requested that I add a specialist in psychiatry to the Panel which I have now done.
Should the parties to the dispute wish to make any submissions to the Panel in respect of this matter they should do so within 14 days.
Should you have any enquiries regarding this matter please contact the Medical Panels office on 8256 1555.

(i) The Panel published its certified Opinion dated 12 July 2016 (the Panel’s Opinion) in respect of the referred medical questions.[7] The relevant questions and opinions in response were as follows:[8]
[7]CB152-153.
[8]The Panel also gave written reasons for opinion dated 12 July 2016, CB155-166.

Question 1.What is the nature of Mrs Kontopoulos’ medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion the first defendant suffered soft tissue injuries to her left periscapular region and to her left peri-hip joint region, now resolved, relevant to the claimed left gluteal tendinopathy and trochanteric bursitis, left cervical ligament, left hip, knee and left arm injuries, with no current intrinsic physical medical condition.
In the Panel’s opinion the first defendant is also suffering from an Adjustment Disorder with depressed and anxious mood, including panic attacks, and a Pain Disorder associated with both psychological factors and a general medical condition (now resolved), relevant to the claimed injuries.

Question 2.What is the extent to which any medical condition of Ms Kontopoulos results from or is materially contributed to by any, and if so which, the claimed injuries? [sic]
Answer:In the Panel’s opinion, the first defendant’s medical conditions of soft tissue injuries to the left periscapular region and left peri-hip joint region, now resolved, and the Adjustment Disorder with depressed and anxious mood, including panic attacks, and a Pain Disorder associated with both psychological factors and a general medical condition (now resolved), result from and are still materially contributed to by the claimed injuries.
Question 3.From 27 January 2016 to the date of the Panel’s Opinion, did/does Mrs Kontopoulos have an incapacity for work? (If the Panel is of the opinion that Mrs Kontopoulos was incapacitated for work for only part of this period, please specify the period/periods).
Answer:In the Panel’s opinion, the first defendant has had an incapacity for work from 27 January 2016 to the date of the Panel’s Opinion.
Question 4.Do you consider that ultrasound-guided injection to the trochanteric bursa appropriate for the first defendant’s injury and/or condition? Specify frequency if necessary.
Answer:In the Panel’s opinion the ultrasound-guided injection to the trochanteric bursa is not appropriate for the first defendant’s injury and/or condition.

(j) The Panel also gave its written Reasons for Opinion in respect of The Panel’s Opinion on 12 July 2016.

FIRST GROUND – PROCEDURAL FAIRNESS
Plaintiff’s Submissions

The plaintiff argues under this ground that the Panel fell into jurisdictional error as a result of the plaintiff being denied procedural fairness by not being given the opportunity by the Panel to address the Panel’s diagnosis in circumstances where that diagnosis was both a conclusion adverse to the plaintiff and a diagnosis which was not obviously open on the known material or could not reasonably have been anticipated.

In particular, the plaintiff submits that the Panel must as a matter of fairness bring to the attention of an affected party a proposed adverse conclusion which may be reached by the Panel of the type that ‘would not be obviously open on the known material’ or which could not ‘reasonably be expected’, so as to enable the affected party an opportunity to respond. Such failure by the Panel to afford procedural fairness to the plaintiff in this respect, the plaintiff argues, constitutes jurisdictional error.

The plaintiff contends that the first defendant’s case was never put by the first defendant as ultimately found in the Panel’s Opinion in that before the Panel the first defendant advanced a claim of incapacity resulting from a persisting physical injury, and the plaintiff was not on notice that the Panel might make the findings it did, namely that the first defendant was incapacitated for her pre-injury work by reason of an ongoing Pain Disorder associated with both psychological factors and a general medical condition which had resolved by the time of the Panel’s Opinion.

The plaintiff however accepts that the Panel was entitled to form its own opinion including by applying its own expertise and experience, however in the process of doing so it must also accord procedural fairness to the parties.

The plaintiff argues that it could not have reasonably anticipated the Panel’s findings:

(a) that the first defendant was suffering from a Pain Disorder that had developed in the context of the first defendant sustaining soft tissue injuries to her left hip in her employment on 16 April 2015 and which persisted notwithstanding resolution of the soft tissue injuries; and

(b) that this Pain Disorder incapacitated the first defendant for her pre-injury employment because it prevented her from lifting weights and making beds.

The plaintiff submits that, before the Panel, the first defendant’s case was that she continued to be incapacitated for work and she required ongoing medical and related expenses to be paid because of her persisting left hip injury.

The plaintiff submits that at no stage was it part of the first defendant’s case that she suffered from a Pain Disorder of the type concluded by the Panel and it was at no time part of the first defendant’s case that she suffered from an incapacitating Pain Disorder which had arisen in the context of formerly work-related soft tissue injuries, which had resolved by the time of the Panel’s Opinion.

Further the plaintiff submits that there was no material before the Panel which alerted the plaintiff to the materiality of a Pain Disorder in the first defendant’s case or the possibility that the Panel may make findings to the effect referred to in the last preceding paragraph or that the first defendant’s Pain Disorder incapacitated her for her pre-injury employment.

The plaintiff also argues that relief in the nature of certiorari should be ordered because should it be unsuccessful in its challenge of the Panel’s Opinion pursuant to s 313(4) of the WIRCA, the Panel’s Opinion would be bound to be adopted and applied by a court and would thereby result in an order for payments of weekly compensation and thereby clearly affect the plaintiff’s rights.[9]
[9]T28.30–T29.19; T38.22-T39.19.

The Issues and Materials before the Panel

The plaintiff submits that the ‘issues in contest’ before the Panel, which it says can be identified in relation to the referred medical questions, the referral documents prepared by the Conciliator and the medical reports and submissions that were exchanged by the parties and supplied to the Panel, did not put the plaintiff on notice that the Panel might come to the conclusions it did.

The plaintiff contends that the first defendant’s case had always been a case relying on physical injuries alone, that is in summary that the first defendant was incapacitated by reason of a persisting left hip injury.

The plaintiff submits that not only did the first defendant not argue that she suffered from an incapacitating ‘Pain Disorder’ which had arisen in the context of now resolved soft-tissue injuries, but further there was no suggestion on the first defendant’s part of any ‘Pain Disorder’ before the Panel.

The plaintiff also argues that the first defendant’s case before the Panel was based on the reports of the first defendant’s own treating physicians, namely Mr Pang and Dr Rattan, and her physiotherapist, Mr McCrane. The plaintiff also submits that the Panel in substance rejected the first defendant’s contention that there was a compensable persisting physical injury and consistently made a finding that the ultrasound-guided hip injection was not appropriate.

The plaintiff emphasises that the diagnosis that the Panel made was not raised or suggested in any of the materials before the Panel, and further points out that there was no diagnosis of a psychiatric medical condition in any of the medical or other materials provided to the Panel.

Moreover, the plaintiff points out that the first defendant did not claim incapacity arising from or in relation to any psychiatric condition, and in those circumstances the plaintiff submits that the diagnosis of the Panel in its opinion dated 12 July 2016 came ‘out of the blue’.

In relation to the first defendant’s certificates of capacity which were included in the material before the Panel in respect of which the first defendant submits such material raised and relied upon incapacity relating to the ‘left shoulder and reactive depression and panic attacks’, the plaintiff stresses that no mention is made of any psychiatric condition in the first defendant’s claim form or in her submissions before the Panel.[10]
[10]T40.15-24.

Moreover, although the plaintiff conceded that the said certificates were part of the referral materials and therefore gave an indication that there was a relevant potential mental or psychological ‘background’ issue, the plaintiff submits that these certificates were not sufficient for the Panel to conclude that the plaintiff ought to have anticipated that the Panel would have made the diagnosis it did.[11]
[11]T96.6-16.

The plaintiff ultimately submits that the relevant question is whether the plaintiff should have reasonably anticipated the Panel’s findings that:[12]

(a)that the worker was suffering from a Pain Disorder that had developed in the context of the worker sustaining soft tissue injuries to her left hip in her employment on 16 April 2015 and which persisted notwithstanding the resolution of the soft tissue injuries; and
(b)that this Pain Disorder, albeit apparently a psychiatric condition, incapacitated the worker for her pre-injury employment because it prevented her from lifting weights and making beds.

[12]Plaintiff’s Reply Submissions, 23 February 2017, [7].

The plaintiff submits in the above regard that the first defendant accepted in her case that she was incapacitated for work (and required medical treatments) because of her physical injury and this was the tenor of the reports the first defendant relied upon before the Panel. Accordingly, the plaintiff submits no medical report provided to the Panel opined that the first defendant was suffering from any psychiatric medical condition, nor a Pain Disorder related to employment via resolved soft tissue injuries to the hip.

The Medical Reports of Mr Shannon and Dr Graham

The plaintiff rejects the first defendant’s submission that the plaintiff was placed on notice by the reports of its own experts, Mr Shannon and Dr Graham, that a possible outcome of the referral to the Panel might be a finding of compensable psychiatric injury because those reports contained opinions to the effect that while the first defendant’s physical injuries were resolving, or had resolved, the reports of Mr Shannon and Dr Graham (on the first defendant’s case) raised the potential for a finding that the first defendant’s ongoing incapacity was caused or materially contributed to by stress and/or psychological factors.

In relation to the report of Mr Shannon, the orthopaedic surgeon engaged by the plaintiff to examine the first defendant on 10 August 2015, the plaintiff submits that his findings included that the first defendant had sustained soft tissue injures to the left side of her body in the fall on 16 April 2015, which had resolved save for her left hip which had not completely resolved, resulting in partial incapacity in relation to the first defendant’s pre-injury duties. The plaintiff however points out that the first defendant relied on this opinion from Mr Shannon in support of her claim for incapacity as a result of the physical injury. The plaintiff submits that nothing in Mr Shannon’s report could possibly have alerted the plaintiff to the possibility that the Panel might find that the first defendant’s symptoms and incapacity were related to psychiatric Pain Disorder.

The plaintiff accepts that Mr Shannon did relate the first defendant’s absence from work at the time of his examination to a claim by the first defendant that she was stressed because she was experiencing harassment and resultant stress upon her return to work because she was being asked to perform duties she said were outside her return to employment conditions. The plaintiff contends, inter alia, that in this regard Mr Shannon was explaining why the first defendant had ceased to perform those light duties.

The plaintiff submits that the first defendant’s claim of stress related incapacity was entirely distinct from the first defendant’s claim of fall-injury incapacity, and also emphasises that the first defendant’s submissions before the Panel were that the alleged work harassment and incident reports were unrelated and irrelevant to the work claimed injuries, and did not need to be considered by the Panel in answering the referred medical questions.[13] Accordingly, the plaintiff submits that Mr Shannon’s report could not be said to have put the plaintiff on notice that the Panel might make the findings it did in relation to the first defendant’s Pain Disorder.
[13]CB145-146, [20].

In relation to the report of Dr Graham, an occupational physician engaged by the plaintiff to examine the first defendant on 16 December 2015, the plaintiff points out that in his report of that same date, Dr Graham stated that he had been unable to diagnose the first defendant as suffering from any injury or medical condition in circumstances where there was no significant abnormality evident on clinical examination. Dr Graham also considered the first defendant’s MRI scan findings to be of limited significance.[14] Consequently, Dr Graham stated that he could ‘offer no explanation for [the first defendant’s] claimed symptoms’, and concluded that there was no incapacity and no need for treatment and further he considered the first defendant fit to resume her full pre-injury duties.
[14]Plaintiff’s Reply Submissions, 23 February 2017, [15].

The plaintiff rejects the first defendant’s characterisation of Dr Graham’s answer that ‘it would appear that there may be other factors affecting the first defendant’s recovery, although I am unable to identify these’ as an implication or implicit postulation that psychological factors were the likely source of the first defendant’s ongoing pain and the first defendant’s contention based thereon that this statement by Dr Graham put the plaintiff on notice. The plaintiff submits that Dr Graham’s opinion was that he could not offer any explanation for the claimed symptoms, and that his reference to ‘other factors’ meant factors other than compensable injury or sequelae were at play.

The plaintiff further submits that at the end of his report Dr Graham concluded that his clinical examination revealed that the first defendant was essentially normal and that he could not offer any explanation for her claimed symptoms. Accordingly, the plaintiff submits it was not Dr Graham’s opinion that the first defendant’s psychological state was a likely source of her reported ongoing pain.

As with Mr Shannon, the plaintiff submits that Dr Graham’s opinions could not have reasonably put the plaintiff on notice that the Panel might conclude that the first defendant was incapacitated in relation to her pre-injury duties as a result of a compensable psychiatric condition diagnosed as a Pain Disorder.

Composition of the Panel and Formation of the Medical Questions

The plaintiff submits, contrary to the first defendant’s contention, that it was not placed on notice that the Panel might make the finding it did by the Panel appointing a psychiatrist to examine the first defendant. The plaintiff contends that it was not ever suggested that the first defendant had an incapacity caused by a Pain Disorder. The plaintiff also submits that by the Panel appointing a psychiatrist, and the plaintiff not disputing that initiative by the Panel, the plaintiff was not accepting that the Panel could make novel findings of incapacitating psychiatric conditions without the Panel affording the first defendant procedural fairness in relation to that issue.

The plaintiff further disputes the first defendant’s characterisation of what it says was a ‘forensic decision’ by the plaintiff during the formation of the referred medical questions not to limit the questions to ‘those directly pertinent to the physical injury as put by the first defendant’. The plaintiff submits that the form of the questions posed to the Panel about the nature of the first defendant’s medical condition, including any sequelae, cannot be said to represent an acceptance by the plaintiff that there might be psychiatric sequelae in this particular case and therefore the plaintiff was on notice to investigate that particular avenue if it wanted to provide submissions on this issue.

The plaintiff contends that while ‘sequelae’ may exist, the most common expression of sequelae is typically pain, for example lasting pain from a bone fracture, and that in this case the inclusion of those words ‘including any sequelae’ in the referred Question [1] served to make it explicit that the Panel was obliged to consider any sequelae to the first defendant’s claimed injury. This is so, the plaintiff submits, because under the Accident Compensation Act 1985 (Vic) and the WIRCA, compensable injury includes sequelae of an injury. Accordingly, because the Panel is not solely concerned with the injury as at the day it was suffered but must consider sequelae associated with the injury that might produce incapacitating consequences, the inclusion of such words is appropriate and commonplace.[15]
[15]T35.11-T36.5

The plaintiff emphasises that including the reference to sequelae in referred question 1 did not ‘give the Panel licence’ to proceed to diagnose the first defendant as suffering from a medical condition that could not reasonably have been anticipated without giving the parties an opportunity to be heard.

In response to the first defendant’s argument that the statutory requirement[16] for the Panel to act within 60 days, and as speedily as ‘proper consideration’ requires, indicates that the Panel should not interrupt its decision making process midway to alert the parties to a potential diagnosis, the plaintiff submits that the effect of the WIRCA is that expedition must not come at the cost of required proper consideration by the Panel, including a procedurally fair process. Moreover, the plaintiff notes that in this context a suspension of time operates in relation to invitations by the Panel for submissions or additional documents from the date of the request until the end of the period specified in the request, and therefore the time limit imposed on the Panel is unaffected in such circumstances.[17]
[16]WIRCA ss 303(2), 313.
[17]WIRCA s 312.

First Defendant’s Submissions
Procedural Fairness

The first defendant’s primary submission is that the Panel’s diagnosis of a Pain Disorder was one which was to be expected or at least was in the realm of expected diagnoses when the Panel come to perform its assessment of the first defendant.

Further, it is submitted by the first defendant that consistent with the role of the Panel as explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[18] the Panel acts as neither arbitrator nor adjudicator but rather as a body tasked with forming and giving its own opinion within the boundaries of the dispute on the medical questions referred to it by applying its own expertise and experience.
[18](2013) 252 CLR 480 (‘Wingfoot’).

The first defendant submits that the Panel in this case came to a diagnosis that was within the boundaries of the dispute between the parties. Accordingly, the first defendant submits the Panel was under no obligation to ‘test out’ its diagnosis on the parties. Furthermore, the first defendant submits that the lack of material before the Panel from the plaintiff as to the psychiatric condition of the first defendant was the result of a forensic decision by the plaintiff.

The first defendant accepts that the boundaries of the dispute between the parties is a question of fact and degree but contends that the history of this matter clearly demonstrates that by the time the matter came before the Panel the first defendant had been experiencing ongoing and non-remitting pain, despite various treatments, a fact that was universally found by both the first defendant’s physicians and the plaintiff’s experts. Further, the first defendant submits that her psychological problems including stress, reactive anxiety and depression were part of the what was in the realm of what was in dispute because ‘in the referral which made its way to the medical panel what was clearly in dispute between the parties was: one, was there an ongoing physical injury as opined about by Drs Pang and Rattan; was there some stress overlay as opined by Dr Shannon; was there a psychological or psychiatric injury as set out in the certificates of capacity by Dr Rattan and flagged by the conciliator? Obviously, did those lead to any incapacity?’[19]
[19]T82.15-25.

The first defendant submits that the terminology or diagnosis of ‘Pain Disorder’ did not need to specifically appear prior to the Panel coming to examine the first defendant or reaching its opinion, and indeed the diagnosis of pain disorder that the Panel ultimately came to was in the realm of the dispute between the parties. The first defendant submits further that this is borne out by the Panel’s decision that there were psychiatric issues at play and to appoint a psychiatrist to the Panel following its initial examination of the first defendant on 9 June 2016.[20]
[20]T82.27-T83.21.

The Medical Reports

In relation to the abovementioned context of the matter, the first defendant points to the various medical reports prepared by her treating physicians and also to those experts of the plaintiff who examined the first defendant in order to diagnose and comment on the first defendant’s incapacity. The first defendant submits that taken together those reports reflect a consistent history of pain experienced by the first defendant before her referral to the Panel for assessment, although the first defendant accepts that the conclusions of these medical reports differ as to whether the pain was the result of a persisting physical injury.

The first defendant identifies the medical reports of Mr Pang,[21] an orthopaedic surgeon, and Dr Rattan,[22] one of the first defendant’s treating physicians, as substantiating the first defendant’s medical history of persisting pain that was not responding to treatment following the injury on 16 April 2015.
[21]Report of Mr Grant Pang, 29 February 2016: Exhibit ‘NB-1’ to Affidavit of Nicolas Blayney, 6 September 2016.
[22]Report of Dr Rattan, 7 February 2016: Exhibit ‘NB-1’ to Affidavit of Nicolas Blayney, 6 September 2016.

The reports of the first defendant’s physiotherapist Mr McCann,[23] and Dr Rattan also support the diagnosis of a left hip and left gluteal injury. In particular, the first defendant submits that the conclusion of Mr Pang, as summarised in his report of 29 February 2016, was that the first defendant’s pain had a physical cause. Thus it was the first defendant’s claim that by reason of her physical injuries she was incapacitated for work and required medical treatment.
[23]Report of Mr McCann, 3 February 2016: Exhibit ‘NB-1’ to Affidavit of Nicolas Blayney, 6 September 2016.

The first defendant also points to the report dated 11 August 2015 of Mr Shannon, an orthopaedic surgeon engaged by the plaintiff to examine the first defendant on 10 August 2015, which found, inter alia, that the first defendant’s physical injuries were resolving but had not completely done so, that the first defendant had a partial incapacity for work and that the first defendant was experiencing stress regarding treatment by other staff members at her employment. The first defendant argues that these findings in the report of Mr Shannon were clear evidence to the plaintiff that the physical injuries were resolving but that there was potential for a stress or psychological aspect to the first defendant’s ongoing incapacity.

The first defendant contrasts the conclusion of Mr Pang, that is that the first defendant’s pain had a physical cause, with the conclusion reached by Dr Graham, an occupational physician engaged by the plaintiff to examine the first defendant on 16 December 2015, in his report of that date where he recorded, consistent with the opinions of Mr Pang and Dr Rattan, that the first defendant continued to experience ‘severe pain’ but concluded that he was unable to diagnose any injury or medical condition.

The first defendant notes Dr Graham’s answer to the question as to whether there were other factors affecting the first defendant’s recovery, namely that ‘it would appear that there may be other factors, although I am unable to identify these’.[24] Implicit in this finding, the first defendant submits, is a rejection of the first defendant’s contention that she suffered from a physical injury and associated sequale and an implication that psychological factors were at play.
[24]Page 6 Q.11 and conclusion of Dr Graham’s Report, 16 December 2015.

The first defendant submits that, in addition to the other material available to the plaintiff, including the various reports noted above, the plaintiff expressly relied upon Dr Graham’s opinion in deciding to terminate the first defendant’s weekly payments and medical and like expenses. The first defendant argues that accordingly the plaintiff accepted and preferred Dr Graham’s opinion over those of the first defendant’s physicians, and necessarily accepted that the first defendant was experiencing ongoing severe pain concurrently with no physical injury and while there were other factors affecting the first defendant’s recovery.

In summary, the first defendant contends that the decision by the plaintiff to not investigate these clear implications of a psychological component to the first defendant’s injury was a forensic choice by the plaintiff that it must now live with.

The first defendant submits that by her disputing the plaintiff’s decision to terminate her entitlements an issue thereby arose between the parties as to whether the first defendant suffered an ongoing incapacity for work caused by a work related injury and implicitly what the cause or causes of that injury, or those injuries were.

Referral to the Panel

The first defendant notes that in the referral document to the Accident and Compensation Conciliation Service ‘reactive depression and panic attacks’ as well as injuries to the left shoulder are identified in the certificates of capacity. The first defendant submits that despite the insurer rejecting liability for those particular claimed injuries, it is clear that psychological or psychiatric injuries were part of the referral materials before the conciliator, and further were in the material on referral from the conciliator to the Panel.

Thus, the first defendant submits, by the time the medical questions and materials were referred to the Panel, non-remitting severe pain experienced by the first defendant was accepted, and it was clearly in dispute between the parties whether there was:

(a) an ongoing physical injury, as opined by Mr Pang and Dr Rattan and refuted by Dr Graham;

(b) a stress component to the first defendant’s claim, as opined by Mr Shannon;

(c) a psychological or psychiatric injury, as set out in the certificates of capacity prepared by Dr Rattan and noted by the conciliator,

and an open question as to whether any of these led to a compensable incapacity on the part of the first defendant.

The first defendant rejects the plaintiff’s claim that the plaintiff was denied procedural fairness in not being given a chance to put on material before the Panel in response to an adverse diagnosis that the plaintiff asserts was unexpected, namely that the first defendant’s incapacity stemmed from psychiatric factors.

The first defendant also argues that the plaintiff had input into how the medical questions were framed and in respect of the material during the referral to the Panel, and therefore had the opportunity at that time to limit the questions to those directly pertinent to the physical injury as put by the first defendant. Not having done so whilst being aware of the context established by the medical reports noted above, namely the first defendant’s non-remitting severe pain which according to its own expert was not caused by a persisting physical injury, the first defendant’s action in this regard should be characterised as reflecting a forensic decision by the plaintiff which it now must ‘live with’.

Composition of the Panel

The first defendant further submits, in essence, that the plaintiff’s opportunity to investigate potential psychological factors impacting the first defendant’s capacity to work, and provide any necessary material and submissions on that aspect should have been clear to the plaintiff at the time of the referral to the Panel and again also arose when the plaintiff knew that the Panel had appointed a psychiatrist following its initial examination of the first defendant on 9 June 2016.

The first defendant contends that the appointment of a psychiatrist to the Panel provided a clear indication to the parties that the Panel was of the opinion that a psychiatrist’s expertise was called for in answering the medical questions posed.

In the first defendant’s submissions, given the claim as advanced by the first defendant that her pain was caused by a physical injury, and where the plaintiff knew from its own expert as early as December 2015 that the first defendant was suffering severe pain which was not based on physical factors and given also that the plaintiff had terminated the first defendant’s entitlements on that basis, the first defendant submits that the plaintiff’s decision, at the time of the appointment of a psychiatrist to the Panel, not to investigate or provide submissions to the Panel as to the psychiatric condition of the first defendant, was a forensic decision that the plaintiff must now live with.

The Obligation of the Panel to Afford Procedural Fairness

The first defendant submits that the role of the Panel is not one of arbitrator or adjudicator in the sense that it must choose between competing arguments or contentions of the parties but rather is investigatory in nature and is in addition to give its own expert opinion on the underlying dispute between the parties.

This is because, the first defendant contends, the Panel is under no obligation to disclose an adverse conclusion which is open on the known material, that is to say within the boundaries of the dispute between the parties. The first defendant further submits that in this case the diagnosis reached by the Panel was one that was open on the known material, even though the precise diagnosis of a ‘Pain Disorder’ had not been raised prior to the giving of the Opinion.

The first defendant accepts that there are cases where the Panel must go back to the parties such as where the diagnosis falls outside the boundaries of the dispute between the parties, but that this was not the case here.

The first defendant also raises the statutory requirements in ss 303(2) and 313 of the WIRCA, pursuant to which the Panel should act within 60 days and as speedily as ‘proper consideration’ permits, and submits that the plaintiff’s submission that the Panel must ‘interrupt its decision making process midway to alert the parties to a potential diagnosis’, is untenable.

Considerations
Procedural Fairness

In my view the Panel’s diagnosis of Pain Disorder was one reasonably able to be anticipated by the plaintiff because:

(a) At the time when the Panel came to examine the first defendant and form its opinion, the material that was before it included what are now Enclosures A and B to the Panel’s Opinion and Reasons, as exhibited to the Affidavit of Nicholas Blayney sworn 6 September 2016 at Exhibits ‘NB-2’ and ‘NB-3’, including the first defendant’s Claim Form outlining her injuries from the fall on 16 April 2015 as purely physical injuries to the left side of the body. That incident report recorded that the injury was to the ‘left knee and surround (sic) area’;[25]
[25]CB62.

(b) The above materials which comprise the referral to the Panel included the reports of Mr Pang and Dr Ratten which recorded that the first defendant had a history of persisting pain which was not responding to treatment;

(c) The materials comprising the referral to the Medical Panel also recorded that the first defendant’s Certificate of Capacity described ‘a reactive depression and panic attacks’ in the diagnosis;[26].
[26]Certificate of Capacity, [2]; CB102 and 104; Referral to Medical Panel, page 2 [4], CB52.

(d) During the course of the worker’s claim the plaintiff arranged for assessment of the first defendant by Mr Michael Shannon, orthopaedic surgeon, on 10 August 2015. After that examination Mr Shannon provided a report dated 11 August 2015 in which he opined at page 4 that ‘The impression is however, that her physical injuries have substantially resolved and her current absence from work relates to a stress claim in that she believes that she is being harassed by other staff members who are not complying with her return to work arrangements and asking her to perform what she regards as inappropriate work outside her job description’. Thereby Mr Shannon identified the ‘stress’ as a further potentially relevant factor;[27]
[27]Report of Mr Shannon, 11 August 2015, pages 4 and 6 [11], [14].

(e) Dr Graham observed that although unable to diagnose an injury or medical condition in relation to the first defendant, he considered that there may be other unidentifiable factors causing the first defendant’s pain;

In my view Dr Graham’s conclusions and observations should have alerted the plaintiff to the possibility that, if the first defendant apparently did not suffer injury or medical condition, the yet unidentified factors referred to by Dr Graham causing the first defendant pain could be, or were, the first defendant’s psychological state;[28]
[28]Report of Dr Graham, 16 December 2015, page 4 [1], page 5 [4], page 6 [11], and page 7, Conclusions.

(f) A number of the medical reports before the Panel, including reports produced by the plaintiff’s consultant medical experts disclose a consistent history of the first defendant suffering from persistent significant pain[29] prior to her referral to the Panel, although various medical opinions differ as to the cause of the first defendant’s persistent pain.

That body of expert medical evidence included the observation by Dr Graham, a medical consultant for the plaintiff, who noted that the first defendant’s severe pain was not able to be ascribed to any injury or medical condition. This was sufficient in my view to place the plaintiff in a position where it should have anticipated that the Panel may conclude that the first defendant’s incapacity was caused or contributed to by psychological factors;[30]

(g) Furthermore, in my view the real possibility of the Panel reaching a diagnosis based on psychological factors was made explicit in a letter dated 16 June 2016 from Dr John Malios to Ms Helen Tsakmakis of the Conciliation Service which notified the parties that given that materials in the referral stated that the first defendant’s incapacity related, amongst other things, to reactive depression and panic attacks, and further advised the parties that following the examination of the first defendant on 9 June 2016 by the Panel, which at that point was comprised of specialists in physical medicine, the Panel was of the opinion ‘that the worker’s medical condition and capacity for work could possibly be affected by a psychiatric condition’ and that for these reasons a psychiatrist had been appointed to the Panel.[31]

[29]Ibid page 3 (Exhibit ‘NB-1’).

[30]Ibid pages 2, 3 and 4 ‘Responses to specific questions’, Question 1, Exhibit NB-1 to the First Blayney Affidavit; CB85; Dr Graham Report, pages 5 [4] and 6 ‘Responses to specific questions’, Question 11, CB87; Dr Graham Report, page 7, ‘Conclusion’, CB88.

[31]CB272; T83.28-T85.5.

Accordingly, I accept the first defendant’s submissions that after about February 2016, there was material available to the plaintiff and its advisers and to the Panel in relation to its deliberations and Opinion, which reflected expert medical views that the first defendant’s physical injuries were substantially resolved however separate to those physical injuries other factors were the cause of the first defendant’s persistent pain and associated ongoing incapacity.[32]
[32]Report of Mr Shannon dated 11 August 2015, page 4 ‘Opinion’, CB 76, Exhibit NB-1 to the First Blayney Affidavit.

In my view the expert evidence and related material produced in relation to the first defendant and presented to the Panel raised both the potential issue of a possible psychological cause of the first defendant’s ongoing pain and consequent incapacity and enabled the plaintiff to anticipate that there was an issue as to the first defendant’s ongoing pain and incapacity being caused, or materially contributed to, by psychological factors and not just the first defendant’s substantially resolved physical injury.

In my view the plaintiff’s anticipation of the issues referred to in the two last preceding paragraphs should have been instigated, or further elevated, by the 16 June 2016 letter to the parties referred to above which notified that the Panel were, after examining the first defendant, of the opinion that her medical condition and capacity for work could possibly be affected by a psychiatric condition and therefore the Panel wished to add a specialist in psychiatry to the Panel.[33]
[33]Convenor of Medical Panel’s to the Conciliation Service, 16 June 2016 (CB272) and the parties were expressly invited to make submissions in respect of that matter. The plaintiff took no action in that regard; T83.28-T85.5.

Subsequent to the Panel’s advice conveyed by the letter of 16 June 2016, the plaintiff did not seek to limit the questions before the Panel to those directly pertinent to the first defendant’s physical injury, nor did the plaintiff seek to put additional materials or submissions to the Panel, although in June 2016 the Panel invited the parties to do so.

Accordingly, the plaintiff was aware that the Panel would comprise a psychiatrist and was very likely to consider whether the first defendant’s psychiatric condition was relevant to her incapacity.

In the above circumstances, in my view, from about early 2016 the plaintiff should have anticipated that it may ultimately be concluded by the Panel that the first defendant was suffering from a relevant psychological component to her injury. I also consider it likely in the circumstances referred to above that the plaintiff made a forensic decision not to investigate that possibility.

Accordingly, in my view, the Panel’s diagnosis of Pain Disorder associated with both psychological factors and a general medical condition (now resolved) was a diagnosis which fell within the range of expected diagnoses which the plaintiff could reasonably have expected to be considered and perhaps arrived at by the Panel.

Furthermore, the High Court in Wingfoot clarified that a panel such as the subject Panel is not tasked with either arbitrating or adjudicating the dispute between the relevant parties. In Wingfoot the High Court explained that the Panel’s task is not to choose or opine between competing arguments. The task of the Panel is to form and give its own opinion on the relevant medical question by applying its own medical expertise and experience.

Accordingly, any consideration as to whether the Panel has ultimately reached a conclusion which neither party before it could reasonably have considered open, is to be considered in this somewhat special context.

Given the background and context I have highlighted above it is in my view not persuasive for the plaintiff to assert that the Panel’s Opinion was one which was not obviously open on the material before the Panel and therefore could not reasonably have been anticipated by the plaintiff. Nor in my view is it persuasive in the circumstances of this matter for the plaintiff to contend that it was denied procedural fairness because the Panel applied its own knowledge and expertise without foreshadowing the possible nature and range of its conclusion and without giving the plaintiff the opportunity to address such possible diagnoses.

Because of the somewhat special legal context in which the Panel is called upon to opine, in my view, although it is likely to be a matter of particular circumstances and degree in each case, it is not here incumbent on the Panel to foreshadow to the parties that it may come to a conclusion at variance with the medical views advanced by the parties’ medical consultants, and to further proceed to provide its opinion without doing so does not amount to conduct on the part of the Panel which denies the plaintiff a fair opportunity to be heard.

I recognise however, that it may be said in a particular case that were the Panel to proceed to publish its opinion, say as to a diagnosis or an aspect of disability previously unnoticed by the parties’ medical advisers that went beyond the boundaries of the dispute between the parties, without inviting the parties to explore this potential diagnosis, such a situation could arguably result in a party being deprived of a fair opportunity to address that potentially adverse outcome.[34]
[34]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [34].

Accordingly, I do not accept the plaintiff’s submission that it could not have anticipated that the Panel may conclude that the first defendant’s relevant incapacity was caused or contributed to by psychiatric factors.

Indeed in my view the contrary is the position. The plaintiff should have anticipated the potential for such a conclusion by the Panel and addressed the matter accordingly, if it desired to do so.

I do not consider in this case that the Panel was under any obligation of procedural fairness to raise the possibility that it considered that it was open to it to conclude, adversely to the plaintiff, that the first defendant’s incapacity was caused, or partly caused by psychological factors or the particular diagnosis of Pain Disorder.[35]
[35]Wingfoot (2013) 252 CLR 480, 498 [47]; Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 592.

In addition, for the reasons I have outlined above, in its particular role as an expert medical panel authorised by statute to form its own opinion on medical questions referred to it by applying its own medical experience and its own medical expertise, the Panel was in any event acting lawfully in the circumstances in reaching an opinion which departed from the medical opinions submitted by others on behalf of the parties.

Finally, I am not persuaded that the cases cited by the plaintiff, including at paragraph [16] Footnote (4) of its submissions, relevantly go beyond the general assertions set out in that paragraph of the plaintiff’s written submissions. More particularly here, as I have outlined, I consider that the plaintiff should have anticipated the psychological causes based opinion which the Panel ultimately came to and therefore was not deprived of a reasonable opportunity to address that aspect.

Conclusion

For the above reasons I am not satisfied that the Panel in any way failed to afford the plaintiff procedural fairness.

Further, I consider that:

(a) for the reasons outlined above the plaintiff should have anticipated that the Panel may well arrive at the opinion it did in answer to Questions 1 and 2, including in relation to the first defendant’s pain disorder associated with psychological factors resulting from the first defendant’s claimed injuries, and

(b) at all events in the special context of the Panel’s statutory function it did not fall into jurisdictional error, including by breach of its obligation to afford procedural fairness, in forming its own opinion by applying its own medical experience and expertise, rather than choosing between the parties competing arguments including by accepting or rejecting the medical opinions presented.

SECOND GROUND – ADEQUACY OF REASONS
Plaintiff’s submissions

The plaintiff argues under its second ground for relief that the Reasons of the Panel are inadequate and do not accord with the standard for written reasons stated in Wingfoot, in that they fail to set out the actual path of reasoning by which the Panel arrived at its Opinion in detail sufficient to enable a court to ascertain whether the Opinion does or does not involve any error of law. The plaintiff also submits that it is not sufficient for the Panel’s Reasons to simply contain a statement of material considerations and conclusions.

The plaintiff submits that the Panel’s reasons must set out the bases the Panel in fact had for coming to the conclusion they did and the opinion they formed, that is to say the ‘how and why’ as to the Panel’s Opinion.

Further, the plaintiff submits that notwithstanding the beneficial construction which the plaintiff concedes is to be afforded to the reasons under challenge, the court should not validate the reasons by speculative ‘gap-filling’.

Specifically, the plaintiff argues that the Panel’s reasons are inadequate in that they do not explain how the Panel arrived at its diagnosis of a ‘Pain Disorder associated with both psychological factors and a general medical condition (now resolved)’.

Principally, the plaintiff argues that the failure to meet the Wingfoot standard arises in this case because the Panel’s Reasons leave the reader in real doubt about whether the Panel correctly performed its statutory function in circumstances where the Panel’s diagnosis was purportedly derived from an obsolete diagnostic manual,[36] and when that manual did not contain the diagnosis relied upon by the Panel in its Opinion. The plaintiff submits accordingly that this constitutes an error of law on the face of the record for which certiorari will go.
[36]Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV).

The plaintiff submits that the Panel’s Reasons do not enable an understanding of how the Panel arrived at its diagnosis of a ‘Pain Disorder associated with both psychological factors and a general medical condition (now resolved)’, a diagnosis which the plaintiff contends appears to have been derived from the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV). The plaintiff submits that, in the circumstances, the Panel’s lack of explanation in the Reasons as to how it arrived at this diagnosis leaves real doubt about whether the Panel correctly performed its statutory function, and moreover raises a question as to whether the diagnosis lacked a valid clinical basis.

In particular the plaintiff points to the following which it contends, when taken together with the lack of explanation in the Reasons as to how the Panel arrived at its diagnosis, leads to a failure to provide adequate reasons by the Panel:

(a) At the time the Panel made its diagnosis, the diagnostic terminology in relation to Pain Disorders in DSM-IV had been ‘rendered obsolete’ with the introduction of the DSM-5 in May 2013.

Further, the plaintiff contends that there is no diagnostic category of Pain Disorder in the DSM-5 which is associated with both psychological factors and a general medical condition, which had resolved, and in particular where the diagnosis was one which was not identified in any of the medical material before it. DSM-5 established a new category of mental disorders known as ‘Somatic Symptoms and Related Disorders’ which relate to diagnostic criteria which differ from that of Pain Disorder in the DSM-IV.

(b) In any event the precise diagnosis the Panel made, namely a ‘Pain Disorder associated with both psychological factors and a general medical condition (now resolved)’ never existed in the DSM-IV.

The plaintiff also submits that a Pain Disorder diagnosis in the DSM-IV generally required there be ‘current objectively demonstrable organic abnormality relevant to the pain complaints (even if the severity of the pain was disproportionate to the extent of the organic abnormality)’,[37] and had resolved.

(c) The Panel does not explain how it arrived at its diagnosis of Pain Disorder having regard to the relevant current diagnostic criteria in DSM-5 and in particular where its diagnosis was one which was not identified in any of the medical material before it.

[37]Plaintiff’s Submissions, 1 December 2016, [34].

The plaintiff further submits that its submissions in relation to the adequacy of the Panel’s reasons do not proceed on the basis that the Panel was bound to apply DSM-5 in arriving at its psychiatric diagnosis or that the Panel erred by apparently diagnosing in accordance with DSM-IV. Rather, the plaintiff argues, that its submissions on this point proceed on the basis that the Panel was bound to expose their reasoning by identifying what relevant classification they were applying in coming to the diagnosis they did.

It is this lack of identification and explanation in the Reasons that the plaintiff argues leaves real doubt about whether the Panel correctly performed its statutory function, such that it raises the question as to whether the diagnosis lacked a valid clinical basis. Should it be the case that the Panel’s diagnosis lacked a proper clinical basis, the plaintiff submits, this invalidity would be elevated to an error going to jurisdiction as not merely an error of fact, as contended by the first defendant.

The plaintiff submits that the Panel’s reasons will not comply with s 313(2) of the WIRCA if, as in this case, they leave real doubt about whether the Panel correctly performed its statutory function.[38]
[38]See Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [47].

Finally, the plaintiff rejects the first defendant’s submission that the Panel’s diagnosis of an adjustment disorder is sufficient to separately uphold the Panel’s finding that the first defendant had an incapacity for work from 27 January 2016 to the date of the Opinion.

The plaintiff also submits that, contrary to the submissions of the first defendant, the Panel’s Reasons do not relate any incapacity of the first defendant to the diagnosis of an adjustment disorder and that rather here a Pain Disorder diagnosis is apparently the critical and sole diagnosis of the Panel. The plaintiff makes this submission by reference to the following passage in the Reasons which the plaintiff submits contains the Panel’s explanation for its finding of incapacity in its Opinion in answer to Question 3 of the Referral:

The Panel considered that the severity of the first defendant’s Pain Disorder would prevent her lifting weights and making beds as was a requirement of her previous full time employment and so concluded that she is unable to perform her pre-injury duties. The Panel thus concluded [sic] the first defendant has had an incapacity for work from 27 January 2016 to the date of the Panel’s Opinion.

First defendant’s submission
Adequacy of Reasons
Independent basis to support finding of incapacity

The first defendant argues that the plaintiff’s attack on the adequacy of the Panel’s reasons is solely concerned with the diagnosis of ‘a Pain Disorder associated with both psychological factors and a general medical condition (now resolved)’, while the majority of the findings of the Panel made in respect of the first defendant’s psychiatric condition, namely ‘that the first defendant has developed an adjustment disorder with depressed and anxious mood, including panic attacks’, are not attacked by the plaintiff.

The first defendant contends that by the Panel’s diagnosis of psychiatric injury in the nature of an adjustment disorder with depression and anxiety and panic attacks, the Panel made findings of compensable injury, a fact conceded by the plaintiff,[39] which the first defendant then submits was sufficient to support the finding of incapacity by the Panel in its answer to Question 3 of the referral in its Opinion.
[39]T88.7-27; First defendant asserts a concession by the plaintiff with respect to the diagnosis, T88.16-18.

The first defendant in particular points to the final paragraph of the Panel’s Reasons which the first defendant submits supports the Panel’s finding of incapacity:

any ongoing symptoms are related to the development of a chronic Pain Disorder which has occurred conjointly with the development of a significant adjustment disorder with depressed and anxious mood, including panic attacks, which has seen the first defendant become somewhat isolative, poorly functioning and increasingly debilitated in the sick role.

The first defendant submits that the answers to Question 1 (the nature of the first defendant’s medical condition relevant to the claimed injury) and Question 3 (the first defendant’s incapacity for work from 27 January 2016 to the date of the Opinion) are on a fair reading of the Panel’s Opinions ‘linked’ by this final paragraph in the Reasons.

The first defendant contends that accordingly, even if inadequacy of reasons and procedural unfairness were made out as to the diagnosis of a Pain Disorder, the plaintiff has not been deprived of the possibility of success because the Opinion is supported on another basis elsewhere in the Reasons that is not under challenge.

In such circumstances, the first defendant submits that any grant of certiorari on the grounds pleaded would be inutile and moreover would allow the matter to be remitted to the Panel for fresh determination in circumstances where the first defendant’s weekly payments of compensation and entitlement to medical and like expenses continue to be terminated, circumstances which the first defendant submits should go against the exercise of discretion to grant certiorari.

Actual path of reasoning provided

The first defendant submits that the Reasons provided by the Panel comply with the requirements of Wingfoot because they describe the actual path of reasoning which the Panel embarked upon to reach its ultimate diagnoses.

In particular, the first defendant in oral argument pointed to the wholly separate psychiatric examination of the first defendant conducted by Dr Brann including a comprehensive history of the first defendant’s symptoms and present complaints, which it says ensured that the Reasons had a proper factual basis to proceed upon.

The first defendant also submits that after describing its examination based findings in the Reasons, the Panel arrives at its multi-factorial diagnosis, namely the psychiatric injury being the adjustment disorder with depressed and anxious mood, including panic attacks, and a Pain Disorder. The first defendant seeks to characterise this diagnosis as one arrived at through a holistic assessment dealing with all of the first defendant’s presenting symptoms, and that accordingly ‘to seek to fractionate them out would be improper’.

As to what the first defendant characterises as the plaintiff’s submissions that the Panel was bound to apply the DSM-5 in the assessment and diagnosis of the first defendant, the first defendant submits that there is no statutory mandate in the WIRCA requiring its use, or the use of any other specific assessment manual, when a panel is considering the issue of incapacity, and moreover even if the Panel was bound to apply the DSM-5 in arriving at a psychiatric diagnosis of the first defendant this would simply demonstrate an error of fact and not of law, and accordingly would not constitute a jurisdictional error founding a grant of certiorari.

Considerations
Adequacy of Reasons

The Panel is not, in my view, constrained to apply DSM-IV or DSM-5 in arriving at a psychiatric diagnosis of the first defendant. Both of those diagnostic and statistical manuals are in the nature of guides for the assistance of the medical profession.[40]
[40]CB174 (first paragraph; CB227 (first paragraph).

Further, the above Diagnostic and Statistical Manuals of Mental Disorders were not submitted to be the only relevant diagnostic guidelines, tools or criteria upon, or by reference to which, the Panel could reach the opinions it did.

Neither has the plaintiff pointed to any provision of the WIRCA, or any other basis, upon which the Panel is required to reason or reach its psychiatric or other diagnoses. Indeed the plaintiff’s reply submissions eschew the proposition that the Panel was bound to apply DSM-5 in arriving at its psychiatric diagnoses,[41] and the plaintiff’s oral submission was that the Panel would not fall into error by diagnosing in accordance with DSM-IV.[42]
[41]Plaintiff’s Outline of Submissions in Reply dated 23 February 2017, [28].
[42]T11.1-13.

The WIRCA does not require the Panel to utilise any specific assessment references or guides when considering the issue of incapacity. That Act does however stipulate in s 313(2) that:

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.

Ultimately, the Panel is obliged to meet the requirements of s 313(2) of the WIRCA and fulfil the statutory function in the manner summarised in Wingfoot.

Accordingly, the Panel was entitled to arrive at and base its opinions as to referred medical questions, applying its own medical experience and expertise, unfettered by the guidelines and assistance which may be provided by DSM-IV and DSM-5.

The legislative framework within which the Panel is to fulfil its primary function permits the Panel to form and to give its own opinion on the medical questions referred to it, by applying its own medical experience and its own expertise.

I consider that the Panel has in this instance in its Certificate of Opinion and Reasons for Opinion, both exhibited the application of its own expertise and experience and has adequately explained the actual path of reasoning by which, inter alia, it arrived at its Opinion that the first defendant was suffering from:

a Pain Disorder associated with both psychological factors and a general medical condition (now resolved)

Further, in my view the Panel’s Opinion and Reasons are, amongst other things, adequate to enable me to see whether its Opinion and Reasons do or do not involve any error of law; I consider for the following reasons that they do not involve any error of law.

The Panel’s Opinion is adequately reasoned because it reflects that on the material before it, the Panel was satisfied that the first defendant had suffered certain soft tissue injuries which, by the time of the Opinion, had resolved.

Further, it is clear from its Opinion and Reasons for Opinion that the Panel was also satisfied that the first defendant was suffering from an Adjustment Disorder, with depression, anxious mood, including panic attacks and a Pain Disorder of both psychological and general medical origins.[43]
[43]The Panel’s considerations included the Panel examining the first defendant [CB155].

The Panel clearly and expressly concluded and explained that its opinions referred to in the last two preceding paragraphs, including the existence of the first defendant’s Adjustment Disorder and her Pain Disorder, were caused and materially contributed to by the first defendant’s soft tissue injuries sustained by her fall on 16 April 2015.

The Panel concluded and opined that in the result the first defendant was incapacitated for work from 27 January 2016 to the date of the Panel’s Opinion.[44]
[44]Certificate of Opinion answer to Question 1, Question 2 and Question 3; Reasons for Opinion, including page 12 [1], [2] and [5].

Further, it is sufficiently clear from the reasoning of the Panel outlined above that it, inter alia, diagnosed Pain Disorder and Adjustment Disorder associated in part with the first defendant’s injuries which were to the first defendant’s left periscapular region and left hip region and related to her gluteal tendinopathy and trochanteric bursitis, left cervical ligament, left hip, knee and arm injuries, which had resolved by the time of the Panel’s assessment and Opinion.[45]
[45]Certificate of Opinion answer to Questions 1 and Question 2; Reasons for Opinion page 12 paragraphs [1], [2] and [3].

In so concluding, for the reasons I have outlined above, the Panel was not obliged to reason by reference to, or somehow satisfy or apply the ‘guidelines’ in DSM-IV or DSM-5. The Panel was entitled to reach the opinion that the first defendant suffered from a Pain Disorder based on its own collective medical experience and medical expertise.

Further, I am unpersuaded by the plaintiff’s submission that the Panel’s diagnosis lacked a properly reasoned basis because it did not reason in terms of the DSM-IV or DSM-5 guidelines or lacked a valid clinical basis because, if the Panel based its diagnosis on DSM-IV that guideline was obsolete at the date of the Opinion, or because there was, in any event, no diagnosis of ‘Pain Disorder’ associated with both psychological factors and a general medical condition (now resolved), in that guideline. I consider that my above conclusion as to the nature and scope of the Panel’s remit and the absence of any relevant prescription in relation to the use of and reliance upon DSM-IV (or DSM-5), render these arguments by the plaintiff unpersuasive.

The first defendant also argues that because the plaintiff attacks only one component of the Panel’s Opinion as inadequate, the other parts of the Panel’s reasons in relation to the first defendant’s psychiatric condition result in there being discretionary bases for the plaintiff’s claim for certiorari to be refused.

I accept the first defendant’s submissions in this regard. I consider that there are unchallenged substantive parts of the Panel’s reasons and findings which also found its conclusion that the first defendant developed an adjustment disorder with depressed and anxious mood, including panic attacks which in turn adequately expose the Panel’s reasoning in relation to its answers to Question 3 and the Panel’s conclusion that the first defendant is incapacitated for work.[46] In relation to Question 3 the Panel stated in its Reasons at page 12 [5]:

The Panel considers that any ongoing symptoms are related to the development of a chronic pain disorder which has occurred conjointly with the development of a significant adjustment disorder with depressed and anxious mood, including panic attacks, which has seen the worker become somewhat isolative, poorly functioning and increasingly debilitated in the sick role.

[46]Reasons page 12 [1].

In my view the above reasoning and resultant conclusions are also sufficient to independently support the Panel’s critical conclusions of incapacity and its answer to Question 3.

As a result of the diagnosis of psychiatric injury, namely an adjustment disorder with depression and anxiety and panic attacks, the Panel made a finding of compensable injury which was, in my view, sufficiently supported by its finding of incapacity founded on both Adjustment Disorder and associated conditions, and Pain Disorder which occurred co-jointly.[47]
[47]Certificate of Opinion answer to Question 1, Question 2 and Question 3; Reasons for Opinion, page 12 [1], [2] and [5].

Accordingly, even if I had come to a different conclusion in relation to the adequacy of that part of the Panel’s Opinion impugned by the plaintiff, I would refuse the plaintiff’s claimed relief in the nature of certiorari, because of the above independent basis for the Panel’s critical findings and conclusions.

Objections to Evidence
Background

The first defendant objects to the admissibility of the substance of the Further Affidavit of Nicholas Blayney sworn 1 December 2016 (the Further Blayney Affidavit) and its accompanying exhibits, on the basis of relevance.[48]
[48]The first defendant’s objection to the Further Blayney Affidavit is to paragraphs [4]-[7] inclusive, [9], [10], [11], [13] and [14] and exhibits [‘NB-4’]-[‘NB-8’], inclusive. This issue was not ruled on at trial, but, by consent, to be decided as part of the judgment in due course T21.25-T22.28.

The Further Blayney Affidavit exhibits extracts from the DSM-IV and DSM-5, a copy of a document published by the American Psychiatric Association entitled ‘Highlights of Changes from DSM-IV-TR to DSM-5’, a copy of a letter of instruction to Professor George Mendelson, consultant psychiatrist, from Thomson Geer solicitors for the plaintiff dated 7 October 2016, and a copy of a medical report of Professor Mendelson dated 21 November 2016 (Mendelson Report).

The Mendelson Report is a report prepared subsequent to the Opinion of the Panel. That report sets out Professor Mendelson’s opinion regarding the Panel’s diagnosis and discusses the status and clinical validity of the medical disorders referred to in the Panel’s Opinion and Reasons, being an adjustment disorder and Pain Disorder, in the context of the DSM-IV and DSM-5.

At trial, both written and oral submissions were made by Counsel for both parties on this issue and it was agreed that the appropriate course in the circumstances was for the first defendant’s objections to the Further Blayney Affidavit to be determined at the conclusion of the hearing and in the Court’s Judgment.

First Defendant’s Submissions

The first defendant contends that the DSM extracts and Mendelson Report should not be admitted into evidence because they are irrelevant and moreover likely to mislead.

The first defendant submits there is no utility to such evidence being introduced and that evidence does not assist the Court in illuminating whether there has been any error, either jurisdictional or in relation to the adequacy of reasons.

Further the first defendant submits that in this case admitting the evidence in issue would amount to a merits attack of the Panel’s opinion.

The first defendant also submits as to relevance that the WIRCA does not prescribe the use of either DSM-IV or DSM-V. More generally the first defendant argues that the Further Blayney Affidavit, and its Exhibits seek to exhibit material which is not required to be considered by the Panel.

The first defendant argues that in seeking to refer to the material objected to, the plaintiff urges the Court to go behind the record, examine the diagnostic criteria, understand the terminology used by the Panel and come to a view as to whether or not the Panel could arrive at the conclusion it did, and that in doing so the Court would be engaging in an improper inquiry.

The first defendant also argues that even were the Blayney exhibits to be admitted into evidence, those materials would only go to an error of fact[49] and not law.
[49]On a factual issue (were it to be relevant) the first defendant also observes that Professor Mendelson in his Report of 21 November 2016, page 5 at [5] concedes that in general usage involves ‘current objectively demonstrable organic abnormality’.

Finally, the first defendant submits that the Further Blayney Affidavit should be rejected because it is in the nature of an impermissible factual attack. Further the first defendant submits that in any event in relation to any jurisdictional fact in question the proposed evidence of Mr Blayney introducing Professor Mendelson’s views, could only rise as high as supporting one possible conclusion in respect of which the expert minds of the Panel differ. Accordingly, even if admitted, the evidence of Professor Mendelson would be most unlikely to be of significance or determinative.[50]
[50]Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 [130]-[133].

With respect to the relevance of the Mendelson Report to the plaintiff’s procedural fairness argument, the first defendant repeats its objection on the basis of relevance and submits that the Panel’s Opinion can be independently supported by the Panel’s diagnosis of the first defendant suffering from an ‘adjustment disorder’ with depressed and anxious mood, including panic attacks, a finding the first defendant submits it not challenged by the plaintiff. Thus, the first defendant argues, the plaintiff’s claim of relevance in this respect is rendered nugatory because the plaintiff has not, in any event, been denied a possibility of success.

Plaintiff’s Submissions

In essence, the plaintiff argues that it is commonly acceptable in proceedings such as these to admit evidence such as the DSM extracts and the Mendelson Report in order to assist the Court in understanding technical medical expressions in order to understand a Panel diagnosis and reasons. Moreover, the plaintiff submits that, in such proceedings DSM extracts are typically admitted as a matter of course in explaining relevant disorders. The plaintiff cites Barret Burston as an example where DSM extracts were accepted into evidence in order to understand a Panel diagnosis.[51]
[51]T5.1-10; T8.20-31.

The plaintiff also submits that the Mendelson Report should be admitted for three purposes. Firstly, in order to assist the Court to understand the nature of the Panel’s diagnosis. Secondly to identify the diagnostic criteria associated with the DSM-IV description of pain related psychiatric diagnosis. The plaintiff points to the decision of Midfield Meat Processing Pty Ltd v Fish[52] where both DSM material and an expert medical report were accepted into evidence.[53] These two purposes are, as submitted by the plaintiff, in aid of its second ground of review in this proceeding, namely its assertion that the Panel’s reasons were inadequate.
[52][2015] VSC 195.
[53]T9.26-T10.4

The plaintiff argues that here it can be inferred that the Panel relied on, or related its diagnosis of the first defendant to the diagnostic category of ‘Pain Disorder’ referred to in the DSM-IV. The plaintiff argues that the Panel was bound to expose its reasoning by identifying what statistical classification or diagnostic criteria it was applying in coming to its diagnosis, and that in failing to do so the Panel fell into error. Accordingly, the plaintiff submits that the admission of the DSM-IV is relevant and the Mendelson Report is also relevant to the plaintiff’s arguments as to its second ground of challenge, and should be admitted for that reason.

Thirdly, the plaintiff submits that the Mendelson Report is also relevant to the plaintiff’s primary ground, namely want of procedural fairness, in that the Mendelson Report is an example of material that the plaintiff would have put before the Panel had it been given the opportunity.

Considerations – first defendant’s objections

I accept the plaintiff’s submissions that on the particular facts and circumstances of this case that it is necessary, at least to an extent, to have reference to the published Diagnostic and Statistical Manual of Mental Disorders guidelines so as to be able to identify what is referenced by the Panel, and the nature of the Panel’s diagnosis, and to understand the parties’ arguments in this proceeding in that regard.[54]
[54]T4.24-31; T5; T6.1-11.

I also accept in the same vein that the utilisation by the parties and the Panel, and those who produced the two versions of the Diagnostic and Statistical Manual of Mental Disorders guidelines referred to in argument, of technical medical terms and concepts, gives rise to the relevance and utility of some explanation about that highly technical language and those concepts which are mentioned and utilised in those diagnostic guides and elsewhere in the material before the Panel and by the Panel itself and the parties, for the same reasons.

Accordingly, on these bases, I have admitted the whole of the Further Blayney Affidavit, including the medical report of Professor Mendelson.

However, I note that ultimately I have had regard to the Further Blayney Affidavit, and its exhibits, including Professor Mendelson’s report of 21 November 2016, bearing in mind that this proceeding is not in the nature of a merits review, and further bearing in mind that in this context I should not go behind the record of the Certificate of Opinion and Reasons for Opinion to examine and engage in an enquiry in respect of the diagnosis reflected in that record. Further, in considering this material, I have also kept in mind that in relation to its form the plaintiff does not seek to rely on what is said in the Blayney Affidavit itself as probative, but rather relies on that affidavit as an aid to understanding technical terms and concepts of possible relevance and that further the plaintiff does not, in any event, argue that the Panel would have fallen into error by diagnosing in accordance with DSM-IV.

Decision
Objections to admissibility of evidence

For the above reasons the Further Blayney Affidavit of 1 December 2016 and its exhibits have been admitted into evidence in this proceeding.

Disposition of the proceeding
Plaintiff’s submissions

The plaintiff submits, on the basis that it is upheld in its submissions that the Panel’s Opinion should be quashed, that the subject medical questions be remitted to a differently constituted Panel.

First defendant’s submissions

The first defendant submits that the proceeding be dismissed with costs.

Conclusion

For the reasons I have outlined above, I am not satisfied that the Panel failed to correctly perform its statutory function in any respect and further I find that the Panel’s Opinion and Reasons satisfactorily explain the actual path of reasoning by which it arrived at its Opinion, and do so with sufficient detail to enable the exposure of any error in law, were any such error to exist.

Decision

I shall dismiss the plaintiff’s application by Originating Motion for Judicial Review dated 7 September 2016.

Orders

Accordingly, I order that:

1. The plaintiff’s application by Originating Motion for Judicial Review dated 7 September 2016 is dismissed.
2. The plaintiff pay the first defendant’s costs on a standard basis.

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15 November 2017