Alcoa of Australia Ltd v Edwards
[2016] VSC 630
•25 October 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05972
| ALCOA OF AUSTRALIA LIMITED | Plaintiff |
| v | |
| DR WILLIAM EDWARDS & ORS (in accordance with the attached Schedule) | Defendants |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2016 |
DATE OF JUDGMENT: | 25 October 2016 |
CASE MAY BE CITED AS: | Alcoa of Australia Ltd v Edwards & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 630 |
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ADMINISTRATIVE LAW – Medical Panel – Whether reasons of panel inadequate – Whether panel failed to have regard to relevant considerations – Panel’s reasons disclosed clear path of reasoning – No failure by panel to have regard to relevant considerations - Workplace Injury Rehabilitation and Compensation Act2013 s 284.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Moloney | Hunt & Hunt |
| For the First to Third Defendants | No appearance | |
| For the Fourth Defendant | Mr T Seccull with Mr J Perry | Saines Lucas |
HIS HONOUR:
Barry Richards was employed by Alcoa of Australia Limited (‘Alcoa’) between February 1989 and February 2001. On 4 January 1999, Mr Richards completed a Workcover claim form seeking an entitlement to payments for weekly compensation (including medical and like expenses) for injury to his back, legs, ankles and arms. He claimed he suffered injury on 14 June 1997 when he slipped through a set of steps on a ladder and fell. Mr Richards’ claim was accepted and payments were made in accordance with the Accident Compensation Act 1985. The claim included claims for impairment benefits, settled in October 1999, and a common law action settled in February 2001.
In August 2014, Alcoa received a request from Mr Richards’ surgeon, Mr Beischer, for a ‘triple arthrodesis’ of the right foot. Alcoa rejected this request by notice dated 8 October 2014 on the grounds that the injury suffered in 1997 was described as ‘soft tissue’ injury (the ‘termination decision’). Alcoa contended that the work related injury caused aggravation of a pre-existing condition. They contended that Mr Richards had undergone a fusion of his right ankle joint some years prior to commencing employment with Alcoa, and that the incident of June 1997 had aggravated this condition.[1]
[1]See Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-7”, Notice of Termination dated 8 October 2014.
Alcoa’s termination decision was referred to conciliation under the Workplace Injury Rehabilitation and Compensation Act2013 (‘the Act’). On 30 June 2015, a conciliation officer referred three questions to the convenor of medical panels:
(i) What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
(ii) What is the extent to which any medical condition of the worker
(a) resulted from or was materially contributed to by;
(b) results from or is materially contributed to by;
any, and if so which, of the claimed injuries?
(iii) Do you consider the following medical service(s) or proposed medical service(s) appropriate for the worker’s injury and/or condition?
(i) ‘triple arthrodesis’ with probable ‘bone grafting with internal fixation’; as requested by Mr Beischer.[2]
[2]See Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-10”, Medical Panel Certificate of Opinion, 1-2.
The referral to the medical panel pursuant to s 284 of the Act included the following paragraphs:
4. INJURIES INCLUDING DATE OF INJURY:
The Worker sustained soft tissue injuries to his back, legs, ankles and arms; with a date of injury of 14/06/1997. He sustained these injuries after falling through a Bale Stand at work.
5.ISSUES IN DISPUTE AND REASON FOR REFERRAL
By notice dated 08/10/2014, the Self Insurer terminated all medical and like expenses, effective 09/11/2014; and rejected a request for ‘triple arthrodesis’ with probable ‘bone grafting with internal fixation’; as requested by Mr Beischer on 14/08/2014.
6.AGREED FACTS RELEVANT TO THE MEDICAL QUESTIONS
I am satisfied that the following facts are agreed:
·The Worker underwent a fusion of his right ankle prior to commencing employment with Portland Aluminium.
·The worker experienced a workplace injury on 14/06/1997; with injuries to his back, both legs, both ankles and both arms.
·He submitted a claim and this was accepted as an aggravation to his right ankle condition and as soft tissue injuries.
·Impairment Benefit claim was finalised in October 1999.
·Common Law action was settled in February 2001.
·Various treatments were undertaken for his injuries.
FACTS IN DISPUTE RELEVANT TO THE MEDICAL QUESTIONS
I am satisfied that the following facts are in dispute:
None of the parties has raised any facts in dispute.[3]
[3]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-9”, Referral to Medical Panel dated 26 June 2015, 2.
On 25 September 2015, a medical panel (‘the Panel’), comprised of the first to third defendants, issued a certificate of opinion (‘Opinion’) and statement of reasons (‘Reasons’). The Panel’s answer to the third question is of particular significance, because it was Mr Beischer’s request in August 2014 for Alcoa to fund the ‘triple arthrodesis’ procedure which prompted Alcoa to serve a notice of termination on 8 October 2014.
The Panel answered the third question in the affirmative. Its reasons for doing so were as follows:
In relation to the worker’s right ankle/foot the Panel identified clinical and imaging findings entirely consistent with osteoarthritic change in the subtalar, talonavicular and calcaneocuboid joints. The Panel noted the worker’s history of prior right ankle arthrodesis which would have predisposed the worker to early degenerative change in adjacent joints. The Panel considered however that the described mechanism of injury was consistent with additional chondral damage to subtalar and talonavicular articulations that accelerated the progression of degenerative changes in already vulnerable joints. The Panel therefore concluded that the worker’s acceleration of osteoarthritic change in subtalar, talonavicular and calcaneocuboid joints resulted from and is still materially contributed to by the claimed injury.
In relation to the medical service or proposed medical service of triple arthrodesis with probable bone grafting with internal fixation as requested by Mr Beischer the Panel noted that the worker has an organic condition of the right foot that has been progressing over time and significantly limits the worker’s activities. The worker has advanced degenerative change in the subtalar, talonavicular and calcaneocuboid articulations for which surgical intervention in the form of a triple arthrodesis would be indicated. The Panel therefore considered that the medical service of triple arthrodesis with probable bone grafting with internal fixation as requested by Mr Beischer is an appropriate medical service for the worker’s current right foot condition.
The Panel noted the medical report of Mr Clive Jones (independent medical examiner) dated 7 October 2014 in which he opines that fusion of the ankle joint tends to produce degenerative change in the hindfoot of which the worker’s particular situation is a perfect example. Mr Jones opined that the proposed surgery is to fuse the hindfoot and is not related to the incident in 1997, nor to his employment with Portland Aluminium. Whilst the Panel agreed with Mr Jones that prior ankle fusion can lead to degenerative change in joints adjacent to the fusion the Panel recorded a history of injury entirely consistent with additional chondral damage in joints adjacent to the fused ankle sufficient to accelerate degenerative changes in these joints with the Panel disagreeing with Mr Jones that the proposed triple arthrodesis is not for an injury that arose as a result of the incident in 1997.[4]
[4]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-10”, Medical Panel Reasons for Opinion, 7.
By an originating motion dated 23 November 2015, Alcoa seeks an order in the nature of certiorari quashing the Panel’s Opinion.[5] It also seeks an order in the nature of mandamus remitting the medical questions in respect of which the Opinion was given to a differently constituted medical panel.[6]
[5]‘Originating Motion between Parties’ dated 23 November 2015, [3].
[6]Ibid [4].
Alcoa submitted that the Panel’s statement of Reasons was inadequate because it did not disclose a path of reasoning.[7] Further, Alcoa submitted that the Panel failed to have regard to relevant considerations and thereby fell into jurisdictional error.[8] I reject both these contentions. The Panel’s Reasons disclose a clear path of reasoning. Alcoa’s contention that the Panel failed to have regard to relevant considerations does not establish jurisdictional error. The conduct of the current proceedings by Alcoa brings sharply into focus the warning of Kyrou J (as he then was) in Milwain v Sim,[9] that the court must be careful not to cross the line between judicial review and merits review.[10]
[7]‘Plaintiff’s Outline of Submissions’ dated 26 April 2016, [34]; Transcript of Proceedings, Alcoa of Australia Ltd v Edwards (Supreme Court of Victoria, S CI 2015 05972, McDonald J, 27 July 2016) T4 LL25-29, T38 LL16-21.
[8]‘Plaintiff’s Outline of Submissions’ dated 26 April 2016, [10]-[11], [28], [32]-[33], [38].
[9][2009] VSC 75.
[10]Ibid [22].
Adequacy of Reasons
In challenging the adequacy of the Panel’s Reasons, Alcoa placed particular weight on what it contended was the failure of the Panel to have adequately explained its disregard of the opinions expressed in reports by Dr David Fish of 20 January 1999, and Mr Ian McVey of 25 August 2000. In its written submissions, Alcoa contended:
The Panel failed to give any genuine or proper consideration to either of these reports each of which was more proximate in time to the occurrence of the fall in June 1997 than the Panel’s examination of the worker some 15 years later. There was no reference to either of these medical reports in the Panel’s reasons. The mere assertion that the Panel ‘had regard to’ the all [sic] material in the Schedule of Attachments (which included both reports) is not sufficient to rebut the reasonable inference from the Panel’s reasons that it did not give any consideration to the observations and opinions in either of these reports.[11]
[11]‘Plaintiff’s Outline of Submissions’ dated 26 April 2016, [32].
Alcoa further submitted:
It is accepted that the Panel is not required to choose between competing opinions from other specialist practitioners, whose reports it has available to it. However, it is required to give ‘proper, genuine and realistic’ consideration to all reports and to disclose its path of reasoning with clarity. Where the Panel has decided to reach a different opinion from other practitioners, it must at least explain the basis on which it has disagreed with those other opinions.[12]
[12]Ibid [34].
Contrary to the submissions set out above, the failure of the Panel to explain why it did not accept the opinions expressed by Mr McVey and Dr Fish does not support a finding that the Panel’s Reasons were inadequate. In Wingfoot Australia Partners Pty Ltd v Kocak,[13] the High Court stated:
As argument developed in this Court, it became apparent that the gist of the Worker’s complaint about the adequacy of the statement of reasons is that the statement of reasons did not address the possibility that the degenerative changes resulting in the Worker’s current condition were initiated on 16 October 1996 other than through soft tissue injury. His counsel submitted on his behalf that ‘[i]t is a perfectly possible situation that a traumatic event can cause a soft tissue injury to ligaments and muscles and so forth and also cause an injury to the spine’. That was, in the Worker’s submission, the import of one of the medical reports, provided to the Medical Panel on behalf of the Worker, which was not addressed in the Panel’s statement of reasons. The report, that of a neurosurgeon engaged by the Worker in 2009, expressed the opinion that what happened to the Worker on 16 October 1996 ‘would appear to be consistent with an injury to the cervical spine’ and on that basis ‘may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis’.
The answer to the Worker’s complaint lies in the implicit finding of the Medical Panel that the Worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question.[14]
[13](2013) 252 CLR 480 (‘Wingfoot’).
[14]Ibid [62]-[63].
In Richter v Driscoll,[15] Ashley and Kaye JJA stated:
We should think that the limitations which Dr Giddens stated in the November certificate were not consistent with the opinion which the Panel reached as to the applicant’s physical capacity to perform the duties of a light process worker. But whilst it would have been better had the Panel explained why it did not accept the limitations stated by Dr Giddens, it cannot be said, only because the Panel did not advert to that aspect of the certificate, that it did not have regard to it.
Again, it might be said that what the Panel did was to rely upon so much of the certificate as stated that the applicant had a capacity for alternative duties, whilst saying nothing about the significant limitations which the certifying practitioner stated. It might be thought that the Panel’s reasons displayed a ‘picking and choosing’ to support its conclusion as to the applicant’s physical capacity to engage in the duties of a light process worker. But the Panel had to form its own opinion, and again it cannot be concluded that it did not have regard to the November certificate only because it accepted part of what the certificate stated.[16]
[15][2016] VSCA 142 (‘Richter’).
[16]Ibid [113]-[114].
The passages from Wingfoot and Richter set out above support the proposition that a failure of a medical panel to articulate the basis upon which it has preferred the views expressed in one medical report over another, does not, of itself, constitute a ground for finding the panel’s reasons to be inadequate. As the High Court stated in Wingfoot, whether or not a finding of fact is open to a medical panel is a question of law. This includes a finding which either expressly or implicitly entails a rejection of a medical opinion conducted on behalf of either the employer or worker. Providing the reasons do set out a path of reasoning in respect of the panel’s finding, no further explanation of the process adopted by the panel is necessary to enable a court to address the question of whether a finding of fact was open to it. In order for Alcoa to establish that a finding of fact was not open to the Panel, it must be demonstrated that there was no evidence to support the relevant finding.[17]
[17]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [42]–[46] (Warren CJ); S v Crimes Compensation Tribunal [1998] 1 VR 83, 89; Bakar v Gruma Oceania Pty Ltd [2014] VSC 206, [13] (Williams J); O’Connor v County Court of Victoria (2014) 67 MVR 66, [38]–[39] (Kaye J); Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614, [18] (Hargrave J).
There was a considerable body of evidence to support the Panel’s findings as to additional chondral damage to the subtalar talonavicular articulations that accelerated the progression of degenerative changes in already vulnerable joints. That evidence included the following:
·A medical report of Mr William G C Maling dated 22 January 1998:
On 14.06.97 as part of his duties he was moving backwards down three steps in the breezeway of the potroom. He tripped when he was descending from the third to the second step and fell on his back, grazing his left shin on the way. He was shocked. I did ask him if he injured his right foot. He thinks that he may have jerked it. He states that, because his left shin injury was so obvious and painful, this was the only thing complained of at the time.
He lost some skin off the left shin and this blew up rapidly to an inch above the skin level. He had a week off work and during this time a blood clot was evacuated from the left shin by Dr Hitchman.
Within two weeks he started to have problems with the right foot and ankle which have continued ever since.[18]
[18]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-9”, Medical Report of Mr William G C Maling dated 22 January 1998, 1-2.
·A medical report of Mr S F Schofield dated 22 April 1999:
On the 14th June 1997, he was moving backwards down three or four steps as part of his duties in the breezeway of the pot room. He tripped from the second to the third step and fell onto his back. The description provided by other reporters and the patient is a little unclear. He told me that both legs fell between the steps whereas other reporters state that only the left leg fell between the steps causing a graze and hematoma of his left shin. My interpretation of the fall was that the right foot also became caught and that as he fell backwards, the right foot was forced into plantarflexion. He said that he fell about 4 feet onto his back. He is a heavily built man and this increases the stresses that were caused to his legs. He said that he could walk on the right ankle and sought treatment for the graze on the left shin. The right ankle did not immediately ache but started to ache two or three weeks later. He took one week off for the left leg graze and then returned to work one month later. He noted that his right ankle became particularly more painful after returning to his full job.[19]
[19]Ibid Medical Report of Mr S F Schofield dated 22 April 1999, 1.
·A report of Dr David G Fish dated 22 January 1999:
The incident of June 1997 resulted in a graze to his left shin and a large haematoma requiring evacuation and antibiotics.
Following that time he reported increasing discomfort in his right ankle and underwent surgery in late 1997 for exploration of his foot for a possible foreign body.[20]
[20]Ibid Medical Report of Dr David G Fish dated 22 January 1999, 2.
·A report of Mr Ian L McVey dated 25 August 2000:
His injury was on 14 June 1997 with, he said, damage to his left shin, right foot, right arm and back. Later he added his knees.[21]
[21]Ibid Medical Report of Mr Ian L McVey dated 25 August 2000, 1.
·A report of Mr Malcolm B Menelaus dated 9 September 1999:
He had a bad fall whilst up some steps putting safety pin into equipment. He fell a height that he estimates as being about 4 feet. In the fall he says he caught both ankles in the steps, with injury mainly to the right foot, to the knees and to the lower left side of his back. The skin was grazed on both elbows and the left shin, where there was a severe graze. He got a blood clot in the left shin following the injury and this went septic and he was placed on antibiotics.[22]
[22]Ibid Medical Report of Mr Malcolm B Menelaus dated 9 September 1999, 1-2.
·A report of Mr Wilton Carter dated 31 May 2002:
The patient stated that he was then standing on a four foot high ladder whilst installing a security device – he fell off this ladder and sustained an abrasion on the front of the right knee and calf and was attended by Dr Hitchman in this regard. He stated that he later developed a ‘haematoma’ ie collection of blood which became infected on the front of his lower calf.[23]
·A report of Dr Chris Baker dated 23 January 2006:
Mr Richards records the injury as occurring on 14.6.97. He had a fall at work. He fell off the platform above a round crucible. He stated he suffered injuries to his left leg, right ankle and lower back. He noted that he fell but his toes were caught and he was suspended by his toes and then eventually fell splitting his hard hat. [24]
[23]Ibid Medical Report of Mr Wilton Carter dated 31 May 2002, 2.
[24]Ibid Medical Report of Dr Chris Baker dated 23 January 2006, 2.
The reports set out above include a report from Mr Wilton Carter, an orthopaedic surgeon who examined Mr Richards in May 2002 at the request of Alcoa. His report includes the following:
1.First of all, in answer to your first question asked on page 2 of your correspondence, I would agree that the patient’s symptoms now appear to be specifically originating from the osteoarthritic talo-navicular joint, ie I am sure that this was being described when you say ‘fusion of the next joint lower in the foot from the ankle’. I would agree that those symptoms may be assisted by appropriate fusion treatment of this joint. It is usually recommended that the two joints involved, ie the mid tarsal joint as a whole is fused under these circumstances, ie rather than perform a separate fusion of the talo-navicular joint alone, although this is a debated question about which various opinions could be obtained.
2.On the history that I have available, accepting the patient’s complaints and history given to me, I believe that this osteoarthritis has been aggravated – if not solely caused by the fall in June 1997.
3.It has to be accepted that already on the x-rays in June 1997 there were degenerative changes present. However against this, on the CT scan report which you have forwarded to me (however I have not seen the films), this states that:- ‘the sub-talar joint and the other intertarsal joints have been well shown and no obvious arthritic changes are evident’. I therefore believe that in all round probability, the fall has acted as a material factor to the development of the patient’s complaints.[25]
[25]Ibid Medical Report of Mr Wilton Carter dated 31 May 2002, 5.
Mr Seccull, who appeared with Mr Perry for Mr Richards, submitted, without contradiction, that the procedure recommended by Mr Carter is the same recommended by Mr Beischer and endorsed by the Panel.[26]
[26]Transcript of Proceedings, Alcoa of Australia Ltd v Edwards (Supreme Court of Victoria, S CI 2015 05972, McDonald J, 27 July 2016) T76 L30 – T77 L10.
In addition to challenging the adequacy of the Panel’s Reasons on the grounds that the Reasons do not articulate the basis upon which the reports of Mr McVey and Dr Fish were not accepted by the Panel, Alcoa contends that the Panel’s Reasons do not explain:
how the ‘described mechanism in injury’ was consistent with the conclusion of acceleration of the accepted osteoarthritic changes relied in the Panel’s conclusion. The Panel did not find expressly that the mechanism of injury was consistent with chondral damage to the calcaneocuboid joint which was included in its ultimate conclusion.[27]
[27]‘Plaintiff’s Outline of Submissions’ dated 26 April 2016, [35].
I reject the submissions set out above. The Panel’s Reasons record as follows:
The worker told the Panel that he was employed as a pot room operator working on a full-time capacity and sustained an injury at work when he fell slipped [sic] and fell backwards on the steps of a Bale Stand at work on 14 June 1997 describing both his feet/legs being caught under the step as he fell backwards onto his back also causing a blow to the anterior aspect of his left lower leg as he fell backwards. The worker told the Panel that the predominant problem at that time was his left lower leg with significant bruising that required an evacuation of a haematoma of his left shin. He said that within a couple few [sic] weeks of the injury and on return to work after a short absence due to his left shin he began to notice increasing pain in his right ankle which the Panel noted from the agreed facts was accepted as an aggravation to his right ankle condition. The worker told the Panel that in late 1997 he underwent exploration of his right foot for a presumed foreign body as he had previously sustained an injury where a shard of glass had become embedded in the foot. He said this operative procedure did not alter his right foot/ankle symptoms. The worker told the Panel that he continued at work until early December 1998 when he ceased work due to increasing pain and swelling in his right foot and ankle.[28]
[28]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-10”, Medical Panel Reasons for Opinion, 4.
Alcoa’s challenge to the adequacy of the Reasons of the Panel based on its failure to make express findings that the mechanism of injury was consistent with chondral damage to the calcaneocuboid joint, is misconceived. First, the Panel’s Reasons do expressly find that the described mechanism of injury was consistent with additional chondral damage.[29] In any event, consistent with the reasoning of the High Court in Wingfoot, whether a particular finding was open to the Panel is a question of law. The finding will be open to the Panel if there was material before the Panel which provides a foundation for the finding. In addition to the history provided to the Panel by Mr Richards, the Panel had medical reports which were entirely consistent with that history. These include the reports of Mr Schofield dated 22 April 1999,[30] and Mr Menelaus dated 9 September 1999.[31] The report of Dr Baker of 23 January 2006 records that at the time Mr Richards fell backwards, the force was sufficient to split the hard hat that he was wearing.[32]
[29]Ibid 7.
[30]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-9”, Medical Report of Mr S F Schofield dated 22 April 1999.
[31]Ibid Medical Report of Mr Malcolm B Menelaus dated 9 September 1999.
[32]Ibid Medical Report of Dr Chris Baker dated 23 January 2006, 2.
The Panel’s path of reasoning is clear:
(iv)The circumstances in which the injury occurred in June 1997 caused additional chondral damage to subtalar and talonavicular articulations;
(v) That additional damage accelerated progression of degenerative changes in already vulnerable joints;
(vi)The acceleration of osteoarthritic change in subtalar, talonavicular articulations and calcaneocuboid joints resulted from, and is still materially contributed to, by the claimed injury.
Failure to take account of relevant considerations
The circumstances in which a failure to take account of relevant considerations will constitute a ground of judicial review are well established. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[33] a failure to take account of a relevant consideration will only constitute grounds for judicial review if the consideration is one which the decision maker is bound to take into account.[34]
[33](1986) 162 CLR 24.
[34]Ibid 39-41.
It is plain from the reasons of the Panel that the members did have regard to the reports of Dr Fish and Mr McVey. Paragraph three of the Panel’s Reasons expressly states:
The Panel formed its Opinion with regard to –
(a) the documents and information referred to in Enclosure A; and
(b)the history provided by the worker and the examination findings elicited by the Panel at the abovementioned examination of the worker.[35]
[35]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-10”, Medical Panel Reasons for Opinion, 3.
The reports of Dr Fish and Mr McVey are listed in the Enclosure to the Panel’s Reasons.[36] There is no basis for concluding that, contrary to paragraph three of the Reasons, the Panel did not have proper or genuine regard to the contents of those reports.[37]
[36]See Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-9”, Enclosure A: Barry Richards, Schedule of Attachments.
[37]See Maribyrnong City Council v Malios [2014] VSC 452, [48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [78], [83].
The reasoning at paragraphs 113–114 in the judgment of Ashley and Kaye JJA in Richter is directly on point. It cannot be concluded that the Panel did not have regard to the reports of Dr Fish and Mr McVey because there is no express rejection of the contents thereof in the Panel’s Reasons. In circumstances where the Panel has expressly stated that it did have regard to the contents of those reports, there is no basis for coming to a conclusion inconsistent with that statement.
Alcoa contends that:
the reasons of the Panel reveal that it did not consider the relevant question whether or not any aggravation of the pre-existing degenerative changes to the worker’s right foot occasioned by the fall in June 1997 would only have led to a temporary aggravation of comparatively short duration (Dr Fish considered that period to be up to 3 months).[38]
This contention is essentially a reformulation of Alcoa’s contention that the Panel failed to have sufficient regard to the medical report of Dr Fish. For the reasons canvassed above, this contention must be rejected. In any event, the temporal issue raised by this contention was dealt with expressly in the Panel’s reasons:
The Panel therefore concluded that the worker’s acceleration of osteoarthritic change in subtalar, talonavicular and calcaneocuboid joints resulted from and is still materially contributed to by the claimed injury.[39]
[38]‘Plaintiff’s Outline of Submissions’ dated 26 April 2016, [33] (emphasis altered).
[39]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-10”, Medical Panel Reasons for Opinion, 7.
Alcoa also contends:
The Panel’s reliance on what it termed an ‘agreement’ that the worker’s right ankle/foot condition was accepted as an aggravation to this right ankle condition other claimed injuries was erroneous. There was no such agreement by Alcoa that any such aggravation was of an ongoing nature beyond the period of time suggested by Dr Fish in his 1999 report. The failure to consider and address this issue invalidates the answer given by the Panel to the second question so far as it related to the worker’s right foot condition.[40]
[40]‘Plaintiff’s Outline of Submissions’ dated 26 April 2016, [33].
During the course of oral submissions on 27 July 2016, Mr Moloney clarified that Alcoa’s complaint relates to a statement which appears in paragraph four of the Panel’s Reasons:[41]
The Panel noted from the material included with the referral that it is agreed that the worker underwent a fusion of his right ankle prior to commencing employment with Portland Aluminium and experienced a workplace injury on 14 June 1997 with injuries to his back, legs, ankles and both arms. The worker submitted a claim which was accepted as an aggravation to his right ankle condition and soft tissue injuries.[42]
[41]Transcript of Proceedings, Alcoa of Australia Ltd v Edwards (Supreme Court of Victoria, S CI 2015 05972, McDonald J, 27 July 2016) T24 L21 – T25 L8.
[42]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-10”, Medical Panel Reasons for Opinion, 3.
The reference to the Panel noting ‘from the material included with the referral’ is a reference to the referral from the Accident Compensation Conciliation Service dated 26 June 2015.[43] The section of the referral headed ‘Agreed Facts Relevant to the Medical Questions’ recorded as an agreed fact:
·The worker experienced a workplace injury on 14/06/1997; with injuries to his back, both legs, both ankles and both arms.
·He submitted a claim and this was accepted as an aggravation to his right ankle condition and as soft tissue injuries.[44]
[43]Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-9”, Referral to Medical Panels.
[44]Ibid 2.
There are a number of reasons why Alcoa’s contention that the Panel erred by referring to the agreed position as set out in paragraph four of the Reasons must be rejected. First, none of the grounds in the originating motion raise this issue directly as a ground of review. Second, the Panel has done no more than rely upon the agreed facts recorded in the referral of the conciliation officer. Alcoa submits that it was not bound by the agreed facts recorded in the referral.[45] Alcoa submits that the agreed facts recorded in the referral were inconsistent with the submission which it made on 1 December 2014 prior to the conciliation.[46]
[45]Transcript of Proceedings, Alcoa of Australia Ltd v Edwards (Supreme Court of Victoria, S CI 2015 05972, McDonald J, 27 July 2016) T35 LL1-15.
[46]Ibid; See Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH- 7”, Letter to Accident Compensation Conciliation Service dated 1 December 2014.
Alcoa’s submission to the Accident Compensation Conciliation Service dated 1 December 2014 preceded the conciliator’s referral to the Panel by more than six months. I infer from the contents of the referral document that it must have been forwarded to Alcoa. It is marked ‘draft’ and records only two of the three medical questions which were ultimately referred to the Medical Panel.[47] Had Alcoa wished to do so, it could have taken issue with the statement of agreed facts. It did not do so. Its belated attempt to now raise this matter as a ground of judicial review is without merit.
[47]See Exhibit A: Affidavit of Stephen Hoggan and exhibits thereto sworn 23 November 2015, “SH-9”, Referral to Medical Panels.
Alcoa is a self-insurer. It did not make any written submissions to the Panel. A number of matters which it now relies upon as the basis for judicial review could have been, but were not, the subject of written submissions to the Panel. Alcoa had the right to make submissions to the Panel that the Panel should reject the statement of agreed facts as set out in the conciliator’s referral. It also had the right to make submissions that the Panel should accept the opinions expressed in the reports of Dr Fish and Mr McVey.[48] Alcoa did not avail itself of the opportunity, by way of written submissions to the Panel, to put ‘in the ring’:[49]
·That it disputed the finding of the conciliation officer as to agreed matters;
·That it disputed Mr Richards’ account of the circumstances in which he was injured; and
·That the opinions expressed by Mr McVey and Dr Fish should be preferred to the opinions of other medical practitioners.
[48]See Wingfoot (2013) 252 CLR 480, [47].
[49]See Sargent v Disler [2016] VSC 292, [31]-[32].
No encouragement should be given to a party, which has not availed itself of an opportunity to make submissions to a medical panel, to advance as grounds of judicial review, matters which could have been put to the panel at first instance.
The grounds in the originating motion also challenge the findings of the Panel in relation to soft tissue injuries to both Mr Richards’ knees, and residual dysfunction of his right wrist.[50] Mr Moloney accepted that if Alcoa’s challenge to the Panel’s finding in respect of the right ankle/foot injury was unsuccessful, there would be no basis for granting relief in respect of its challenge to the findings in respect of Mr Richards’ knees and/or wrist.[51]
[50]‘Originating Motion between Parties’ dated 23 November 2015, [5](b)(i)-(ii).
[51]Transcript of Proceedings, Alcoa of Australia Ltd v Edwards (Supreme Court of Victoria, S CI 2015 05972, McDonald J, 27 July 2016) T54 LL13-31.
Having regard to my finding set out above in respect of the challenge to the Panel’s findings in relation to the right ankle/foot injury, there is no utility in addressing Alcoa’s challenge to the Panel’s finding in respect of Mr Richards’ knees/wrist.
Conclusion
Alcoa’s application for orders in the nature of certiorari and mandamus is rejected. I shall provide the parties with an opportunity to make submissions on the question of costs.
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SCHEDULE OF PARTIES
| No. S CI 2015 05972 | |
| BETWEEN: | |
| ALCOA OF AUSTRALIA LIMITED | Plaintiff |
| - and - | |
| DR WILLIAM EDWARDS | First Defendant |
| ASSOCIATE PROFESSOR MIRON GOLDWASSER | Second Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS | Third Defendant |
| (constituting a Medical Panel convened by Dr John Maliou pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013) | |
| BARRY WILLIAM RICHARDS | Fourth Defendant |
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