Baumgartner v VWA
[2019] VCC 1435
•6 September 2019
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-01245
| DEANNE BAUMGARTNER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June and 19 July 2019 | |
DATE OF JUDGMENT: | 6 September 2019 | |
CASE MAY BE CITED AS: | Baumgartner v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1435 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s274 – dispute re referral of medical questions – physical and mental injuries – injury to cervical spine and right upper limb and shoulder – resultant mental injury – whether questions should be referred – alleged abuse of process – questions concerning specified occupations – only expert reports those obtained by defendant – report from occupational physician and psychiatrist – whether such reports create dispute – a situation if no dispute exists – whether, in absence of any dispute referable to Medical Panel should proceed – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater & Gordon |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of a dispute concerning the proposed referral of medical questions pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). Mr G Chancellor of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf of the defendant. Numerous documents were placed before me. Helpful and detailed submissions were made by counsel.
2 The argument before me was essentially focused upon the contents of reports, and particularly more recent reports, from two medical practitioners who had examined the plaintiff at the request of the defendant. They are Associate Professor Umberto Boffa, occupational and environmental physician, and Dr Dush Shan, consultant psychiatrist.
3 The proposed referral of medical questions is at the request of the defendant. At one stage, there were aspects of this proposed referral which seemed to me to at least raise prima facie questions concerning whether Associate Professor Umberto Boffa, who had seen the plaintiff at the request of the defendant, may have been “pressurised” into reconsidering his opinion. Whilst he does seem to have had something of a change of mind, I am now quite satisfied that this was not the result of pressure which should not have been applied. None of this is in anyway an observation directed at the presentation and submissions of Mr McKenzie on behalf of the defendant. He presented the defendant’s case in his usual thorough, well-prepared and completely fair manner. However, I can well understand why those advising the plaintiff raised the proposition that if the referral to the Medical Panel represented an abuse of process, why I should rule against such referral, and whether there was a change of position by Associate Professor Boffa. I might add that, when the matter was mentioned on 19 July 2019, Mr McKenzie put forward an explanation as to the behaviour of the defendant and its solicitors. Of course, I accept this. My initial impression was that there may have been attempted badgering of Associate Professor Boffa in a possible endeavour to get him to change his mind as to the level of the plaintiff’s incapacity (which, ultimately, he appeared to do). As stated, I accept the explanation advanced by Mr McKenzie insofar as it relates to the behaviour of the defendant’s solicitors. I shall have a few further observations concerning this aspect of the matter after dealing with the merits of the case.
4 In any event, whether a referral of questions to a Medical Panel is an abuse of process pursuant to s274(3) of the Act is the matter to be determined.
Factual background
5 The factual material placed before me for the purposes of the present application could be summarised as follows.
6 The plaintiff is a 45-year-old woman with a background of learning difficulties and dyslexia. She has had a number of employments. Whilst working for an entity called Godfrey’s Sunbury, a business which sold vacuum cleaners and the like, she sustained a specific injury on 19 February 2015. Without going into unnecessary details, she is alleging that injury was sustained when a box fell and struck her in the region of the right neck and shoulder. This shall hereinafter be referred to as “the accident”. There is no dispute as to the occurrence of the accident or as to the injury to the neck. Apparently, injury specifically to the right shoulder, reference to which is contained in the proposed questions, is not being relied upon for the purposes of this application. In addition to reliance upon paragraph (a), the plaintiff also relies upon paragraph (c) of the definition – permanent severe mental or permanent severe behavioural disturbance or disorder.
7 An MRI scan of the plaintiff’s neck conducted on 16 April 2015 showed multilevel cervical spondylosis, disc bulges and a moderate canal stenosis at C4-5 and C5-6. Perhaps more significantly, it showed a right paracentral disc protrusion with impingement of the right C7 and C8 nerve roots at the C6-7 level.
8 The plaintiff, who had previously worked full-time, worked with pain and on modified duties for a maximum of four days per week, three hours per day, until ceasing work in late July 2015. She had been a full-time worker prior to the accident.
9 On 30 July 2015, the plaintiff underwent surgery in the form of a C6-7 anterior cervical discectomy and fusion. This was performed by a neurosurgeon, Dr Tanya Yuen. There is nothing particularly controversial about any of these matters. As I understand it, liability was accepted by the defendant and relevant expenses, including medical expenses, have been paid by it.
10 At surgery, a large disc fragment was found and removed and the nerve root was decompressed. It is asserted by the plaintiff that, despite the surgery, her symptoms have continued to be very troublesome, involving a lot of pain in the right neck and arm. She has had further treatment, including physiotherapy. There were a couple of attempted returns to work, including one in early August 2016 for a maximum of three days per week, two hours per day. She ceased work on 26 November 2016 because of increasing pain. She resigned her employment on 6 January 2017 as she simply could not cope with it. She perceives the surgery as having failed and has developed a substantial psychiatric injury for which she receives counselling. She takes a wide range of what Mr Chancellor described as “heavy duty medication”, including an antidepressant. The plaintiff has not returned to any form of work.
11 This proposed referral to a Medical Panel arises in the context of a “serious injury” application pursuant to the provisions of the Act. In bringing her application, the plaintiff is relying upon paragraphs (a) and (c) of the definition of “serious injury” found in s325. The defendant seeks a referral of medical questions in this regard.
12 I shall not set out the relevant provisions in full. The definition of “medical question” is to be found in s3 of the Act. Effectively, pursuant to s274(1)(b), the Court must refer medical questions requested by a party, subject to the operation of s274(3)-(5). Section 274(3) could be summarised as follows. The Court can refuse to refer a question if it is of the opinion that the referral would, in all the circumstances, constitute an abuse of process. Section 274(4) refers to the Court’s discretion in relation to the form of a question. Section 274(5) states that a Court must not refer a medical question if it appears to it that the formation of an opinion by a Panel would depend substantially on the resolution of factual issues more appropriately determined by the Court.
13 The argument advanced by the plaintiff is essentially that, having regard to the material available to both parties in this case, referral to a Medical Panel would constitute an abuse of process within the meaning of s274(3). Accordingly, there should be no referral. The basic position of the defendant is that, even if there is no dispute, the proposed referral is a proper one and should be made. Secondly, in any event there is a dispute. I would add that the argument before me is essentially based upon reports obtained by the defendant from two medical practitioners. One of these is Associate Professor Umberto Boffa, an occupational physician. The other is Dr Dush Shan, psychiatrist. I shall now turn to a summary of the competing submissions.
The submissions on behalf of the parties
(a)The plaintiff
14 The submissions of Mr Chancellor on behalf of the plaintiff could be summarised as follows.
15 The main issue concerning which referral to the Panel is sought concerns the plaintiff’s loss of earning capacity. Both Associate Professor Boffa and Dr Shan effectively support the plaintiff’s position that she has at least a 40 per cent loss of earning capacity. This would satisfy the requirements of ss325(2)(c), (e) and (f) of the Act.
16 The first relevant report of Associate Professor Boffa is that of 6 March 2019. In it, he states that the plaintiff has permanent aggravation of pre‑existing cervical spondylosis and is not fit for her pre‑injury duties and hours. She could return to part-time work, perhaps totalling 20 hours per week, performing sedentary duties with various restrictions imposed. (It should be added that Associate Professor Boffa had been forwarded a number of documents, including a Recovre report of 19 February 2019.) Associate Professor Boffa expressed the view that the plaintiff was physically unsuited to sales, stock or retail roles and would have difficulty in a receptionist role. She would be physically fit for listed administrative and customer service roles, providing her dyslexia could be accommodated. He also observed that her current physical impairment was permanent. It is submitted that, on the basis of that report limiting the plaintiff to a maximum of 20 hours’ work per week, she would inevitably meet the 40 per cent test. There is then a follow up report from Associate Professor Boffa, this being dated 30 May 2019. He appears to have been forwarded the Recovre report of 19 February 2019 for specific comments, although it is apparent that this had previously been forwarded – I would refer to the list of documentation provided at the commencement of his report of 6 March 2019. Associate Professor Boffa provided answers to specific questions. He expressed the opinion that the plaintiff was not fit for retail roles, because they involve unsuitable manual handling of stock and prolonged standing. She was not fit for showroom sales for much the same reasons. She was fit for customer service and ordering clerk roles, providing that her dyslexia could be accommodated. She would have difficulty in a receptionist role, because she needs to be able to move around. Essentially this is consistent with what he had said in his earlier report.
17 The defendant’s solicitors then asked him for an additional urgent supplementary report (although, somewhat confusingly, the only additional document forwarded to him seems to have been his own previous supplementary report which, as far as I can see, was referred to by the wrong date). This time his conclusions appear to be inconsistent with his first report, which referred to a maximum of 20 hours’ employment. He had not seen the plaintiff again and, as stated, he appears not to have been provided with any further material, other than his own earlier supplementary report. In any event, Associate Professor Boffa stated that the plaintiff was not fit for work as a retail sales assistant and that such incapacity is permanent. She was not fit for work as a showroom sales person and, again, such incapacity is permanent. She is physically fit for customer service/ordering clerk roles, provided her dyslexia can be accommodated. She should commence with four hour shifts on three non-continuous days per week, with graduation to full-time hours likely over 12 weeks. Of course, without his having received any additional information, that is inconsistent with what was contained in Associate Professor Boffa’s initial report, where a maximum limit of 20 hours’ work per week was imposed. In any event, this apparent change of opinion seems to represent the only window of opportunity for the defendant in terms of the physical injury. Associate Professor Boffa went on to state that the plaintiff is not physically fit for work as a retail/customer service officer or as a receptionist, and such incapacities are permanent.
18 Turning to the reports of Dr Dush Shan, consultant psychiatrist, the earliest of these is dated 19 January 2017. However, the view as to the plaintiff’s capacity for employment expressed by Dr Shan in that report has been overtaken by the opinion expressed in his subsequent reports. Following examination on 5 February 2019, Dr Shan reported to the defendant on that day. In that later report, he diagnosed the plaintiff’s condition as being one of a Chronic Adjustment Disorder with mixed depression and anxiety. Her functioning appeared to have deteriorated since he had last seen her in 2017. On this occasion, Dr Shan seems to have become aware of the fact that the plaintiff had the additional limitation of dyslexia, first diagnosed when she was in primary school, and he noted that she had attended a special school. Dr Shan thought that only work such as an administrative assistant or a similar back room position would be available from a psychiatric viewpoint and that the plaintiff would have to commence with not more than 20 hours’ work per week. He added that such work would have to be within the additional limitation of dyslexia. Dr Shan implicated employment as a significant contributing factor to the plaintiff’s condition and expressed the opinion that her current level of psychiatric impairment would continue into the foreseeable future. Based upon the plaintiff’s description of her current level of mental functioning, other identified employment options such as call centre operator, receptionist, secretary, medical receptionist, retail store manager, customer service and personal assistant would not be suitable.
19 Dr Shan reported again on 19 February 2019, without seeing the plaintiff on a further occasion. He had been forwarded the Recovre report of 19 February 2019. Identified employment options in that report were sales assistant, showroom sales assistant, order clerk, retail sales person and community centre receptionist. In the opinion of Dr Shan, none of these positions is suitable. (I note that he pointed out that it was emphasised by the plaintiff that she is not able to emerge from the house to go to busy areas unless accompanied by someone).
20 This is essentially a “40 per cent case”. If the plaintiff can demonstrate that she is incapable of working more than 20 hours per week or unable to work at all, she will succeed.
21 The plaintiff relies upon a decision of his Honour Judge Rendit in Stewart v GUD Manufacturing Co (delivered 4 May 1999). Further, it is to be remembered that the provisions in relation to medical questions, and in particular s274 of the Act, are to be found in Part 6 of the Act, which is headed “Dispute Resolution”. A real dispute between the parties must exist before there is any need for medical questions to be sent. In relation to the question of whether, in the present case, there is a 40 per cent loss of earning capacity, there is no dispute. There is no need for dispute resolution and, if a matter was referred in such situation, it would effectively amount to an abuse of process.
22 In Stewart, his Honour Judge Rendit referred to the necessity of there being a dispute. He stated that, if there was no medical dispute on the evidence, the proposed medical question is not relevant and is not required to be referred. His Honour went on to refer to other decisions and to extracts from Hansard.
23 The only “ray of light” for the defendant is the ultimate report of Associate Professor Boffa of 1 June 2019 and that is inconsistent with what was said in his initial report.
(b) The defendant
24 The submissions, oral and written, of Mr McKenzie on behalf of the defendant could be summarised as follows.
25 Firstly, it is not conceded that, if the plaintiff can only work 20 hours per week, it is an automatic win for her in relation to the “60 per cent test” found in s325(2)(e) and (f). Reference is made to the earning rate in some of the jobs set out in the Recovre Vocational Assessment Report of 19 February 2019. Whilst the plaintiff would succeed if the figures set out in the draft Statement of Claim were accepted, this is subject to the determining of the number of hours for which the plaintiff can work and at what rate of income.
26 In relation to the decision in Stewart, this is inconsistent with what was said by the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64. In no case other than Stewart has the issue of the absence of a medical dispute been commented upon or determined. There have been decisions of the County Court in relation to an alleged abuse of process where the referral of questions to a Medical Panel would delay the hearing of the serious injury application. (These are listed in the written submissions.)
27 Reference is also made to the discussion of abuse of process in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256. That was another case involving delay.
28 In Kocak, the High Court stated that it was the function of a Medical Panel in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. According to the High Court, it would be going too far to conceive of the function of a Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. A comparison was drawn with the decision in Masters v McCubbery (1996) 1 VR 635.
29 In summary, what was said in in Kocak was that a Medical Panel is not adjudicating between competing medical opinions; is not constrained by the opinions of other medical practitioners engaged by either side; and is required to express its own opinion, which may be completely at odds with the opinions of medical practitioners.
30 Reference is also made to the decision of the Court of Appeal in McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293. A Medical Panel is required to form its own opinion based on the information available to it at the time of its assessment. It is submitted that if, as found in McVey, a subsequent Medical Panel cannot be bound by the opinion of a previous Panel, then equally a Medical Panel cannot be bound by the views of treating or medico-legal practitioners who have assessed the plaintiff to date.
31 Whilst the defendant maintains that the abuse of process argument advanced by the plaintiff is not sustainable, it also makes these additional submissions. The Court should exercise caution in relation to being too quick to determine that there is no medical dispute. Reference is made to what was said in HIH Winterthur Workers Compensation (Vic) Ltd v Greeves [1998] VSC 97 and the subsequent decision of the Court of Appeal in Greeves v HIH Winterthur Workers Compensation (Vic) Ltd (2000) 1 VR 344. The Court should not hear the evidence, make its own decision, and then effectively state that a referral is then irrelevant.
32 The plaintiff is contending that the defendant cannot seek to have a Medical Panel answer questions as to five specified occupations listed in the Recovre report of 19 February 2019. The plaintiff so contends because of views expressed by Associate Professor Boffa and Dr Shan. The plaintiff has not served any current medical material in relation to whether these occupations would constitute “suitable employment”.
33 In relation to the plaintiff’s psychiatric condition, the defendant acknowledges that Dr Shan has stated that none of the proposed roles set out in the Recovre report of 19 February 2019 are suitable. However, in a report of 5 February 2019, Dr Shan, when considering the position of an administrative assistant as set out in an IPAR Vocational Assessment Report of 20 February 2017, stated that “based on the plaintiff’s description of her current level of mental functioning, only administrative assistant or similar back room positions would be suitable, from a psychiatric viewpoint”.
34 The plaintiff has not served any report from the treating psychologist, nor any medico-legal psychiatric opinion. Her treating general practitioner, Dr John Pattison, simply states that the plaintiff is unfit for all work because of her severe neck injury, her shoulder injury and the depression that followed these injuries.
35 In relation to the plaintiff’s neck condition, Associate Professor Boffa considered the position of Customer Service/Ordering Clerk as described in the Recovre report to be suitable. It is acknowledged that Associate Professor Boffa considered that the roles of Retail Sales Assistant and Showroom Sales Assistant, as referred to in the Recovre report, were unsuitable. However, this reflected a misapprehension of the requirements of those roles. The same could be said about his opinion that the roles of a Retail/Customer Service Officer and Community Centre Receptionist were also unsuitable. He considered the role of Administration Assistant set out in the IPAR Vocational Assessment Report of 20 February 2017 to be suitable. There is no current medical material from the plaintiff, apart from the report of Dr Pattison. Given these matters, the defendant submits that the views of Associate Professor Boffa and Dr Shan cannot be said to preclude the defendant from referring the proposed questions to a Medical Panel on the basis that there is no medical dispute.
36 Whatever the ruling in relation to the “abuse of process” issue, the Medical Panel will need to form its own assessment of the plaintiff’s current neck condition and psychiatric condition. This will form the basis for its assessment of the plaintiff’s capacity for work and what employment is or is not suitable. It may well form a different view to that expressed by Associate Professor Boffa and Dr Shan and cannot be constrained by the views of those doctors.
37 Both Associate Professor Boffa and Dr Shan referred to the plaintiff’s dyslexia needing to be accommodated in any employment. However, it is pointed out that she has worked in retail and customer services as a sales assistant, assistant manager and store manager. The Panel can determine for itself the nature and extent of any dyslexia. That is similar to what the Panel would do in relation to English language skills – see the decision of his Honour Judge Wischusen in Besnek v City of Boroondara [2017] VCC 1482. There is no medical or other expert opinion to support the plaintiff’s claim of dyslexia or other learning difficulties. If the Court decided against referring the matter to a Medical Panel based on the issue of dyslexia, it would be falling into error. It is an issue which a Panel can determine – reference is made to the decision of Ferguson v VP Employment Pty Ltd [2017] VCC 1481.
(c) Some subsequent discussion
38 At the conclusion of the addresses of counsel, I raised a number of issues and sought clarification in relation to some matters. Essentially, these commence at page 22 of the Transcript. Mr Chancellor made it clear that the plaintiff was objecting to the matter going to a Medical Panel at all. That was the plaintiff’s primary position. It might be that there would be no objection to certain questions if a referral took place, but the plaintiff’s primary position remained that there should be no referral. If there is to be a referral, the subject of individual proposed questions can then be discussed or argued.
39 Mr McKenzie argued that, given the above position, the proposed suitable employment set out in the IPAR Vocational Assessment Report of 16 February 2017 is also relevant. Occupations referred to in that report were thought to be appropriate. Associate Professor Boffa also thought that a call centre position as identified by IPAR was appropriate, provided that there was a suitable workstation. Mr McKenzie submitted that, even in 2019, Associate Professor Boffa thought that the administrative assistant position was appropriate, provided that the plaintiff’s dyslexia could be accommodated.
40 Mr McKenzie further argued that there has also been other medical material to the effect that the plaintiff would have a capacity for work. Reference was made by him to a report of Dr David Barton of 6 July 2016. Further, Mr Richard Pease, also reporting in 2013, thought that the plaintiff was capable of lighter duties. Whilst these reports might be older, nevertheless they generate a basis for a medical dispute. Mr McKenzie also submitted that the current state of the plaintiff’s medical material is inadequate. Dr Pattison, in his most recent report of 10 July 2017, has stated that the plaintiff is unfit for all work, but has not disentangled the various injuries. There is no up-to-date report in relation to the plaintiff’s mental condition.
41 In answer to a question of mine, Mr McKenzie stated that, even if medical practitioners for both parties said that the plaintiff was totally incapacitated, such a matter could nevertheless be referred to a Medical Panel and there would be no abuse of process. The concept of abuse of process is a difficult one to articulate, but Mr McKenzie referred again to the decision in Batistatos. Mr McKenzie also referred again to what was said by the High Court in Kocak to the effect that the function of the Medical Panel is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. (I might add that this proposition presumes that there is referral, as opposed to the question of whether there should or should not be referral in a situation of alleged abuse of process.)
42 Mr McKenzie again mentioned what was said in McVey and particularly to the effect that the Panel is required to express its own opinion, although this may be completely at odds with the opinions of the medical practitioners associated with the case. The approach that was adopted in Stewart is inconsistent with that adopted by the High Court in Kocak, and the Court of Appeal in McVey. In any event, there is a medical dispute in the present case, as opposed to the position in Stewart. Mr McKenzie also referred to the decision of Richter v Driscoll (2016) 51 VR 95 and to the criticism made in that decision of generic vocational assessment reports. It is submitted that the Recovre report does provide the type of detail that is required.
43 Mr Chancellor also raised some further matters. He submitted that the IPAR report should be given no evidentiary strength as it does not comply with the requirements of Richter. Further, it is submitted that in both Kocak and Masters there were competing contentions or opinions. In Stewart, there was no such competition, because the defendant’s reports supported the plaintiff’s case. Accordingly, what was said in Kocak and in Masters takes nothing away from the argument that was raised in Stewart.
44 Before getting to the step of referral, there must be some competition or dispute. If there is a dispute or there are genuine competing points, a Medical Panel can determine this. Medical Panels exist and are in place to deal with disputes. That dispute can extend to uncertainty. However, Mr Chancellor repeated, there has to be a dispute on the face of it, and then the Medical Panel can deal with everything or ignore whatever it wishes so to do.
45 Mr McKenzie then referred me to a further decision, namely Victorian WorkCover Authority v Nedelkovska [2017] VSC 186. This bears upon the criticism of the validity of the IPAR report. It was determined that, ultimately, it is for the Medical Panel to consider the quality of such reports.
Ruling
46 Initially, I shall deal with the issue of whether there should be any referral at all pursuant to Part 6 of the Act.
47 I am not of the view that, if a party requests a referral to a Medical Panel, effectively and in practical terms the Court has no option but to refer such questions, provided that they fall within the definition contained in s3.
48 Firstly, s274 and other relevant sections fall within Part 6 of the Act. That is headed “Dispute Resolution”. As stated in s274, the Court, in referring a medical question to a Medical Panel, is exercising jurisdiction under that part – that is, in the context of Dispute Resolution. In other words, the referral of medical questions takes place in the context of there being a dispute.
49 Further, the lengthy and multi-faceted definition of “medical question” contained in s3 of the Act includes multiple questions which, as might be expected, relate to medical conditions, incapacity for work or for suitable work, the provision of medical and like services, the contribution of employment to the injury, the level of impairment and the like.
50 In Stewart, his Honour Judge Rendit referred to various extracts from the parliamentary debates conducted at the time of the passage of the relevant Act (Act 67/1992) through Parliament. In those extracts, there is reference to disputes relating to diagnosis, treatment and/or capacity to work which will be determined by Medical Panels. In the Legislative Council, the Minister Responsible for WorkCare stated:
“In the past both parties to a dispute have employed their own medical experts and brought them to court. A debate about the particular complaint of the injured party has then been embarked upon in the courtroom. During the debate counsel for both sides, perhaps the judge, all the court officials, and perhaps the jury have sat on the side as little more than spectators.”
51 The Minister was contrasting this with the situation that would exist with the introduction of the Panel. However, the context to which the Minister was referring clearly was that of “a dispute”. The use of words such as “dispute” and “debate” should be noted. It seems apparent that the Minister was foreshadowing the potential transferring of such disputes or debates from the court to a Medical Panel.
52 In Stewart, his Honour Judge Rendit also stated as follows:
“Where there is no medical issue on the evidence before the Court, then a request for a referral is to be considered a last desperate throw of the dice by a party in the hope that an opinion of a medical panel will turn out to be favourable for that party’s cause. In my opinion, the true characterization of such a situation is that there is no medical dispute on the evidence and therefore the proposed medical question is not a relevant question and so is not required to be referred to a medical panel.”
53 His Honour also stated:
“If the medical opinions are not conflicting then a court does not need such assistance.”
That seems to me to summarise the situation neatly.
54 Very fairly, Mr McKenzie quoted the extracts from the decision in Stewart in his written submissions. He conceded that the defendant was not aware of any subsequent ruling specifically dealing with the issue of absence of a medical dispute as constituting an abuse of process within the meaning of s274(3).
55 Mr McKenzie also referred to the following passage from Kocak:
“The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
56 However, it seems to me that the observations of the High Court in Kocak to which reference has been made should be seen in the context of the overall decision. It is presumed that there has been a referral in accordance with the Act. The above statement in relation to the function of a Medical Panel and a referral to it is predicated on the existence of a dispute. The function of a Panel presupposes a dispute.
57 Given the existence of that dispute, and as stated in Kocak, the function of the Panel is then not to decide the dispute or to make up its mind by reference to competing contentions or competing medical opinions. Its function is not to choose between the competing arguments that constitute the dispute, but to arrive at its opinion.
58 The observations of the High Court in relation to the function of the Medical Panel appear to be based on the foundation that there is a dispute. For example, the High Court has said that the function of a Medical Panel is not to choose between competing arguments. I would also refer to what is said in paragraph 10 of Kocak:
“In each case, the person or body referring the medical question to a Medical Panel must specify the injury or alleged injury to which the medical question relates. The person or body must also specify those facts relevant to the medical question that have been agreed and those questions of fact that are in dispute, and submit to the Medical Panel copies of all documents relating to the medical question in the possession of that person or body.”
59 The High Court there may well have been simply restating what is now s304 of the Act, but again the existence of questions of fact that are in dispute arises. Section 304(a)(ii) specifically refers to those questions that are “in dispute”.
60 In relation to the operation of s68(4) of the Act then in force, in paragraph 38 of Kocak the High Court referred to “the determination of the question or matter the subject of the statutory compensation application” – certainly the situation here. The High Court then went on:
“That question or matter comprised the controversy between the parties to the statutory compensation application about the Worker's entitlement to the statutory compensation …”
61 Again, the existence of “controversy” is, virtually, presumed.
62 Thus, it appears to me that the High Court was expressing its opinion on the basis that what brings a matter before a Medical Panel is a controversy or dispute. That in turn takes one back to the observations of his Honour Judge Rendit in Stewart, and the quite proper concession made by Mr McKenzie that, despite what has obviously been very considerable research, the defendant is unaware of any other case which specifically deals with the absence of a medical dispute, in the context of a referral, constituting an “abuse of process”.
63 The position adopted in Stewart seems to me, with respect, to make sense. Let us assume for the moment that, in a particular statutory benefits case, all medical examiners on both sides have concluded that the particular plaintiff is suffering from asbestosis. Surely, to then refer a medical question as to diagnosis to a Panel would constitute an abuse of the procedure that has been set out in relation to dispute resolution. As was said by his Honour Judge Rendit, it would be considered as “a last desperate throw of the dice by a party in the hope that an opinion of a medical panel will turn out to be favourable to that party’s cause”.
64 Surely such a “last desperate throw of the dice” is not what was intended when the legislation was introduced and discussed in Parliament.
65 That brings us to the present case.
66 The plaintiff is relying upon paragraphs (a) and (c) of the definition of “serious injury” found in s325 of the Act. There is no argument but that the issue of whether the statutory test has been satisfied is to be examined separately and individually in relation to the two paragraphs. Section 325(2)(h) makes it clear that psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. However, if, for example, a plaintiff satisfies the requirements relating to paragraph (c), a “serious injury” has been proven and there is no need to turn to paragraph (a). The burden in relation to such satisfaction could be so discharged by such plaintiff proving the loss of earning capacity referred to in s325(2) of the Act.
67 The next question is whether a dispute exists in the present circumstances. I shall deal with the proposed questions in numerical order, at all times bearing in mind that the relevant medical material placed before me is constituted by the reports of Associate Professor Boffa, who could be described as dealing with the plaintiff’s physical injury and its consequences, and Dr Shan, whose reports deal with the plaintiff’s mental condition. It is also to be borne in mind that questions concerning the plaintiff’s right shoulder can be ignored for the purposes of this dispute.
68 Question 1, which inquires as to the plaintiff’s medical condition in the cervical spine and in the mind is an unnecessary question. On the basis of the available material, there is no dispute in relation to the medical condition of either the plaintiff’s cervical spine or her mind. The diagnoses of Associate Professor Boffa and Dr Shan, both examining on behalf of the defendant, are unchallenged. It is the defendant who is seeking to refer these questions to the Panel. I repeat that there is no dispute concerning the diagnoses of those two doctors examining on its behalf. I am of the view that such a referral should not be permitted.
69 In relation to Question 2, parts (a) and (b) inquire concerning the plaintiff’s right shoulder condition and thus no further comment is required. The same could be said of parts (d), (e) and (f). That leaves Question 2(c). It inquires as to whether any medical condition of the cervical spine continues to result from or be materially contributed to by injury suffered in employment. There is simply no suggestion to the contrary. Associate Professor Boffa has stated that employment remains a significant contributing factor to the plaintiff’s condition. I see no point in the referral of a question concerning which there is no relevant dispute.
70 Question 3 inquires as to whether the medical condition of the plaintiff’s cervical spine and mind is permanent. Associate Professor Boffa has stated that the plaintiff has permanent aggravation of pre‑existing cervical spondylosis, that the plaintiff’s current physical condition will not materially alter and that she will require medication for the foreseeable future. Dr Shan, dealing with the plaintiff’s mental condition, has specifically stated that the plaintiff’s current level of impairment will continue into the foreseeable future. Again, there is no dispute. I do not regard this as a proper question to be referred.
71 Question 4 relates to the plaintiff’s cervical spine condition (excluding psychological or psychiatric consequences) and whether symptoms result in or materially contribute to the plaintiff having a current work capacity or no current work capacity. The question also includes reference to the right upper limb, and I am assuming that this will be deleted. On balance, it seems to me that there is some scope for disagreement in relation to the issue posed by this question. It is of sufficient breadth to encompass what appears to me to be the very limited area of dispute. In any event, this seems to me to be a question which can be referred.
72 The same can be said of Question 5, which presumes a positive answer to Question 4(a) – effectively centring upon whether there exists a current work capacity. Question 5 then inquires as to what type of employment would or would not constitute suitable employment within the meaning of the Act. There seems to me to be some foundation for a dispute and I am of the opinion that Question 5 is a valid question addressing a live issue.
73 Question 6 assumes a positive answer to Question 4(a) and lists five possible occupations. It then inquires as to whether these would constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week. A question of this nature has been addressed to Associate Professor Boffa. Of the five proposed employments, he listed someas not being suitable employment. To state the obvious, no contrary medical view focussing on the plaintiff’s physical condition has been put before me. Therefore, there is no dispute in relation to the unsuitability of proposed employments (a), (c), (d) and (e). That leaves proposed employment (b) – showroom sales assistant. Whether or not Associate Professor Boffa had some reservations concerning this, it seems to me that Question 6(b) is a valid question and can be referred to the Panel.
74 Question 7 is premised upon a positive answer to Question 4(b) – that is, if the plaintiff has no current work capacity, whether such situation is permanent. Associate Professor Boffa has stated that the plaintiff’s physical condition and its consequences are permanent. There is no contrary view. There seems to me to be no dispute concerning this. I am not of the view that this question should be referred.
75 Questions 8, ,9, 10 and 11 all relate to the plaintiff’s right shoulder condition. No ruling in relation to them is required.
76 Questions 12 to 15 are essentially identical to Questions 4 to 7, save that what is being inquired after is the plaintiff’s psychiatric condition as opposed to her cervical spine injury. Question 12, relating to whether or not the plaintiff has a current work capacity or no current work capacity, but in what could be described as the psychiatric context, seems to me to be a valid question. As with Associate Professor Boffa, it seems to me that Dr Shan has placed some qualification upon his answer, but it cannot be said that he has provided an answer that rules out any dispute. Accordingly, I regard Question 12 as being a valid question which can be referred. That, in turn, means that Question 13, inquiring about what would constitute suitable employment, is also valid.
77 In relation to Question 14 – the question nominating six specified possible employments – Dr Shan, reporting to the defendant in his role as a consultant psychiatrist, has answered in the negative. I would refer to his report of 19 February 2019 where he has specifically said, and repeated, that none of the proposed positions are suitable. There is no psychiatric opinion to the contrary. Accordingly, I am of the view that Question 14 is not a proper question for referral. There is no psychiatric opinion to the contrary and hence no medical dispute concerning the opinion that has been obtained by the defendant.
78 Question 15 inquires as to whether the plaintiff’s psychiatric condition in relation to her work capacity is permanent. Dr Shan has answered that the plaintiff’s current level of impairment will continue for the foreseeable future. Hence, again, there is no dispute. This does not seem to me to be a proper question for referral.
79 Hence, in my opinion, Questions 4, 5, 69(b) (to a very limited extent), 12 and 13 are proper questions. The other proposed questions are directed to matters concerning which there is no dispute and are not proper questions for referral. Given the absence of any dispute and bearing in mind the opinions expressed by the defendant’s own witnesses, I would again refer to and adopt the wording employed by his Honour Judge Rendit in Stewart. At least in part what has occurred could be interpreted as a last desperate throw of the dice by a party in the hope that an opinion of a Medical Panel will turn out to be favourable to that party’s cause.
80 As stated earlier, I have a few observations to make concerning the manner in which this application has been handled by the defendant and by Associate Professor Boffa. Prima facie, the appearance of it was that Associate Professor Boffa may have been almost badgered into providing a type of report favourable to the defendant’s position. In light of further information put before me by Mr McKenzie at a mention of this matter on 19 July 2019, I accept that this was not what occurred. Rather, the solicitors for the defendant perceived that he had not answered questions in his earlier report concerning specific jobs. When the additional correspondence was drawn to my attention by Mr McKenzie, the situation was clarified. As was Mr Chancellor, I was originally concerned about the fact that Associate Professor Boffa seemed to have moved from saying that the plaintiff was fit for a particular job for twenty hours per week to a position of saying she would, in a short time, be fit for full-time work, and expressing those apparently inconsistent views within the space of less than three months, and without seeing the plaintiff again. While that is perhaps confusing, I accept that what occurred was not an attempt by the defendant or its solicitors to badger him, or improperly attempt to persuade him to change his opinion. I accept that, whilst he does seem to have at least altered his opinion, this was not as a result of any pressure placed upon him by the defendant or its solicitors.
81 I shall hear the parties as to any ancillary orders that are required.
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