Bluescope Limited v Clare Burford
[2011] VSC 64
•7 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2010 of 5349
| BLUESCOPE STEEL LIMITED | Plaintiff |
| v | |
| CLARE BURFORD (AS CONCILIATION OFFICER, MEMBER OF ACCIDENT COMPENSATION CONCILIATION SERVICE) | First Defendant |
| WENDY BOYD | Second Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2011 | |
DATE OF JUDGMENT: | 7 March 2011 | |
CASE MAY BE CITED AS: | Bluescope Limited v Clare Burford & Anor | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 64 | |
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ADMINISTRATIVE LAW – judicial review – Accident Compensation Act 1985 (Vic) s 56(6) – proposed referral by a conciliation officer of medical questions to a medical panel – whether relief in the nature of prohibition should be granted – whether conciliation officer would fall into jurisdictional error – whether, in the circumstances, referral involves a denial of procedural fairness – unnecessary to decide whether a conciliator’s discretion under s 56(6) is amenable to court’s supervisory jurisdiction
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Wallace | Sparke Helmore |
| For the first Defendant | No appearance | |
| For the second Defendant | Mr A Keogh SC | Shine Lawyers |
| Mr B Anderson |
HIS HONOUR:
Introduction
This is an application for an order in the nature of prohibition seeking to prohibit a conciliation officer appointed under the Accident Compensation Act 1985 (Vic) (“the Act”) referring medical questions to a medical panel to be convened under Division 3, Part III of the Act.
The question of substance is whether the relevant conciliation officer will act in excess of jurisdiction if she refers the medical questions which she proposes to refer. An antecedent question was also argued before me, namely whether the decision of a conciliation officer who makes, or proposes to make, such a referral under the Act is amenable to judicial review. For reasons which will become apparent I find it unnecessary to express any definitive conclusion on that issue.
The plaintiff (“Bluescope”) is the former employer of the second defendant (“Boyd”). Clare Burford, the first defendant, is the conciliation officer appointed to conciliate a dispute between Bluescope and Boyd who proposes to refer medical questions to a medical panel. Because of objections which Bluescope raised with Burford with respect to that referral, Burford has refrained from making the referral pending the outcome of this proceeding.
Bluescope and Boyd were represented in the proceeding before me. Burford, through the Victorian Government Solicitor’s Office, announced that she did not intend to take an active role in the proceeding[1] but would merely abide the decision of the Court.
[1]Relying upon R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13, 35.
Background facts
Boyd was employed by Bluescope between 1983 and 1998 as a Cold Mill operator at the BHP Steel Mill at Hastings. On 6 October 1998, Boyd lodged a claim for weekly payments and medical expenses under the Act alleging injuries to her shoulders, neck and wrist (“the shoulders claim”) alleged to have occurred in the course of her employment with Bluescope. Such injuries are said to have developed over a lengthy period of time, although originally arising from a work incident in 1992. On or about 9 November 1998, Boyd lodged a further claim for weekly payments and medical expenses for a back injury (“the back claim”) alleged to have occurred in the course of her employment with Bluescope. That injury was said to have occurred from a slip in August 1998. In both cases, liability was accepted by Bluescope and payments of weekly compensation, and for medical and other expenses, were made to her in respect of each of them.
Boyd ceased work in 1998 because of her injuries. Since that time, Boyd has had two operations to her lower back: a microdiscectomy at L4/5, and an instrumented fusion and decompression at L4/5 and L5/S1. She has also had three operations to each of her shoulders over the years, including: (a) to the left shoulder - a subacromial decompression on 3 November 1994, anterior stabilisation in March 1995 and capsular plication in September 2003, and (b) to the right shoulder - laser capsulorrhaphy on 11 November 1998, arthroscopic stabilisation on 29 November 2005 and subsequent revision stabilisation with bone grafting on 20 January 2010.
Boyd continued to receive treatment, therapy and various forms of household assistance (i.e. home help and gardening services), all compensated pursuant to the provisions of s 99 of the Act.
Bluescope decided that, on and from 25 January 2010, compensation for medical and like expenses was no longer payable to Boyd in respect of the back claim and shoulders claim. On 24 May 2010, it wrote to Boyd saying it had reviewed her entitlement and, in respect of her back claim, it considered that she was no longer entitled to payment for medical and like services in accordance with s 99 of the Act because:
· The treatment is no longer considered a reasonable medical and like expense.
· Stopping treatment will not affect your ability to remain in work.
· The evidence provided by independent medical examiners indicate that treatment is not essential to ensuring that your health and your ability to undertake the necessary activities of daily living will not significantly deteriorate.
On the same date, Bluescope also wrote to Boyd in relation to her shoulders claim. It was Bluescope’s opinion she was no longer entitled to medical and like expenses for that claim because:
· You no longer require any medical treatment for your injury.
· The medical and like expenses you are claiming are not reasonable and/or necessary.
On 28 May 2010, as she was entitled to do under s 55(2) of the Act, Boyd requested a conciliation of her dispute with Bluescope with respect to the provision of ongoing medical and like services. In her request for conciliation, Boyd stated her reason for conciliation as follows –
I disagree with the insurer’s refusal to provide ongoing medical and like services – given past history.
Prior to Bluescope making its decisions, it had obtained two medical reports pertaining to the ongoing treatment and like services which Boyd was receiving - one from Mr Edward Schutz, consultant surgeon, dated 3 June 2008, and the other from Dr Michael Bowles, occupational physician, dated 6 May 2010.
In relation to her back, Mr Schutz considered (in 2008) that, following her 2007 spinal fusion, and allowing 3-6 months until she could resume active exercises, Pilates was reasonable for her at the time. However, by June 2008, he considered that her own exercises were probably all that was required. In relation to her shoulders he was of the view, following a then recent right shoulder aggravation, that a short course of physiotherapy was reasonable, which could continue for another two months. Specifically in relation to whether Boyd was able to undertake the necessary activities of daily living if treatment was ceased, he considered that the main need for treatment was her own exercises. He further considered that there was a need for medication from the GP, most of which was unlikely to require more than minor over-the-counter medication and, for the present, and with the recent deterioration in the right shoulder, the physical treatment she was having was reasonable. In the future, he thought she should continue her own active exercises, but wean herself off other forms of physical treatment and prescription medication.
In his report, Dr Bowles commented on her need for medical and like treatment in respect of both her shoulder and neck injury, and her back injury. He noted she had had 300 sessions of physiotherapy since the commencement of the claim and 150 massage therapy sessions. He noted she continued to attend Pilates programs twice a week, massage once a week and physiotherapy twice a week. She was using Temtabs to assist her sleeping and told Dr Bowles she felt she was dependent on sleeping tablets and could not sleep without them. He then commented on her current treatment in the following terms:
The current treatment I would view as over-servicing, unnecessary and not indicated from a medical point of view.
Physiotherapy twice a week I found difficult to quantify, but it appeared to be of a passive nature.
Massage similarly I could not view as being medically reasonable or necessary.
In my opinion, Ms Boyd could undertake a self-management program as a satisfactory management. She could use Thera-Bands and light weights to maintain rotator cuff muscle strength.
In terms of other treatments, there needs to be ongoing objective assessments in terms of pain, range of movement and application of suitable outcome measures, none of which appear to have been undertaken. There needs to be suitable treatment goals and a program of how those goals are going to be achieved.
Without these issues being specifically addressed, I cannot support the ongoing nature of endless allied health treatment without end points and objectives being set.
…
In my opinion, passive treatment should be curtailed immediately. I see no indication for it apart from reinforcing pain behaviours and leading to claims amount (sic) for medical costs increasing.
…
In my opinion, Ms Boyd could quite adequately cope with activities of daily living if current treatment were ceased.
…
In my opinion, this [exercise physiology] is not reasonable or appropriate. Ms Boyd has been through the mill over a number of years and I cannot see any reason why she cannot undertake a self-directed exercise program using Thera-Bands and light weights or similar in her own time.
On 2 August 2010, Clare Burford, the conciliation officer at ACCS appointed to conciliate the dispute between Bluescope and Boyd, requested various medical reports in relation to Boyd’s injuries and treatment. A number of reports were obtained from the previous medical service providers of Boyd. Relevantly, those opinions were as follows:
· On 19 August 2010, Mr David E. de la Harpe, orthopaedic surgeon, described the fusion surgery he performed in 2007 and, in response to specific questions relevant to her back condition, said he did not consider she had capacity for any manual work, she had very limited employment capacity for the foreseeable future and “future treatment requirements at this stage revolve around self-directed exercises and hydrotherapy”.
· Michelle Blake, physiotherapist, said on 23 August 2010 in respect of her spinal injury:
“The best form of treatment is an activity strengthening program of Exercise Physiology +/- Pilates as required. Myotherapy for pain management if require (sic) would be more beneficial than physiotherapy”.
· On 23 August 2010, in relation to the shoulder injuries, Michelle Blake further opined she believed:
“Exercise physiology and the opportunity to complete an exercise program that has been administered 2/3 times a week is required for the next four months … From a pain management perspective, I believe myotherapy that is specific would be beneficial to accompany Wendy’s exercise program”.
· On 24 August 2010, Dr Zev Barr, Boyd’s general practitioner, in a 27-page report that comprehensively detailed her GP’s services and prescribed medication, concluded:
“Further medications, physiotherapy and specialist care is ongoing … I believe that she desperately needs ongoing management for her work-related injuries which includes medications, home & gardening assistance, enhanced physiotherapy including gym, Pilates, pool & massage and specialist care”.
· On 26 August 2010, Dr Amanda Sillcock, consultant occupational physician, expressed the view with respect to Boyd’s injuries to shoulders and back that it had:
“… left her with ongoing disability and she needs ongoing treatment. I recommend her home help and gardening assistance should continue. She also needs to continue treatment indefinitely. She needs to keep taking medication and I also believe that it is reasonable to continue with physiotherapy as it helps her to stay relatively mobile”.
· On 30 August 2010, Dr Tim March (at “The Sports Injury Clinic”) set out a short history of both shoulder and back injuries, said he had seen Boyd for various problems over the years since 2001, and concluded:
“… She still gets symptoms and she finds that she gets significant relief from physiotherapy. At this conciliation she is only requesting the costs involved for physiotherapy and Pilates and the gym. It is my belief that, if she gets relief, then this should be accepted. There is no doubt that her injuries were initially caused at work and have been aggravated by various work activities since this time”.
On 2 September 2010, a conciliation conference was held between the parties, with Burford, at which it was evidently decided that a request would be made to a medical panel for an opinion on a medical question. According to Burford’s conciliation progress certificate of that date, Bluescope had agreed, without prejudice and whilst maintaining their decision, to continue to fund Boyd’s medication costs until such time as the medical panel returned its opinion. It also agreed to honour an earlier decision to continue to fund home help and gardening services in accordance with that decision until October 2010. Burford stated she would continue to conciliate in connection with the dispute to bring the parties to agreement.
It was against this background of dispute that the conciliation officer proposed three questions for referral to a medical panel for an opinion. After a process of email correspondence, Burford tried to settle the terms of the medical questions with the parties by sending drafts and seeking their comments.[2] Bluescope objected to some of the questions for reasons which it ultimately pressed before me in argument.
[2]Email exchanges and correspondence between 3 and 29 September 2010 contained in Exhibits JJ 3-JJ 14 to the affidavit of James Johnson affirmed 27 October 2010, and Exhibits JT 13-JT 19 to the affidavit of John Typaldos sworn 7 February 2011. Neither party referred me to or relied upon s 61A of the Act which renders evidence of oral or documentary statements during the conciliation inadmissible except for limited purposes. Whilst it is debatable whether any of the exhibits tendered might be inadmissible under that section the position of Bluescope as disclosed in the exhibits reflects the arguments that were made before me. I have relied only upon the arguments made before me.
The final draft referral[3] contains the following relevant sections:
[3]Exhibit JJ 14.
INJURIES INCLUDING DATE OF INJURY
Ms Boyd (nee Garland) sustained injuries to both shoulders, wrist and neck which was claimed for on the 6th October 1998 but for which Ms Boyd states they developed over time from an initial injury to her left shoulder in 1992. Ms Boyd also sustained a lower back injury (prolapsed disc) on the 7th August 1998 which was claimed for on 9th November 1998.
ISSUES IN DISPUTE AND REASON FOR REFERRAL
[Here the conciliator set out Bluescope’s grounds for termination as extracted in paragraphs 9 and 10 of these reasons].
AGREED FACTS RELEVANT TO THE MEDICAL QUESTION
[Here the conciliator listed basic employment facts relating to Boyd, details of the operations on her shoulders, all of which was ultimately agreed by the parties in the exchange of correspondence].
FACTS IN DISPUTE RELEVANT TO THE MEDICAL QUESTION
I am satisfied that the following facts are in dispute:
•The Self-Insurer has not paid for treatment for the back condition since 2008;
•Ms Boyd says that she has received treatment on the back injury concurrent with treatment for the shoulder injuries. She was not aware of whether treatment to her back injury was being invoiced under the back claim or not;
•Ms Boyd says that the Self-Insurer has in the past attempted to consolidate the two claims for the purposes of medical and like treatment. The Self-Insurer denies this.
RELEVANT LEGISLATION
[Here the conciliator set out appropriate references to provisions in ss 99 and to s 5 of the Act, as requested by Bluescope].
MEDICAL QUESTIONS
Question 1: What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injuries?
Question 2: Do you consider the medical services or proposed medical services namely:
·Myotherapy once per week, supervised Pilates once per week, physiotherapy once per month and attendance at a gym;
·The provision of Temtabs (Temazepam), Mersyndol Forte and Mersyndol tablets, Lexotab tablets, Digesic tablets and Voltaren medications;
to be appropriate and adequate for the worker’s back, shoulder, wrist and neck conditions?
Specify service and frequency if necessary.
Question 3: In relation to the back injury only, are the medical services/proposed medical services namely:
·Myotherapy once per week, supervised Pilates once per week, physiotherapy once per month and attendance at a gym;
·The provision of Temtabs (Temazepam), Mersyndol Forte and Mersyndol tablets, Lexotab tablets, Digesic tablets and Voltaren medications;
essential to ensuring the worker’s health or ability to undertake the necessary activities of daily living does not significantly deteriorate?
Bluescope ultimately did not object to question 2, but only objected to questions 1 and 3. Its objections to those questions may be summarised as follows:
(a)Question 1:
•Irrelevant – because there was no dispute as to the injury suffered;
•Unfair – because, not having notice of any additional injuries that may be comprehended by “sequelae”, it could not address the medical panel with all relevant medical evidence and arguments; and
•Inconsistent with the Act – because the words “including any sequelae” do not appear in any s 5 definition of medical questions.
(b)Question 3 – it does not conform to any defined medical question in s 5 of the Act.
Before the questions were referred, Bluescope indicated to Burford it intended to seek judicial review of the decision to refer the questions and she agreed to refrain from executing the reference until the court adjudicated upon that review.
Relevant statutory framework
A worker is entitled to compensation in accordance with the Act if there is caused to a worker an injury arising out of or in the course of any employment.[4]
[4]Section 82(1).
Part IV, Division 2 deals with various forms of benefits payable as compensation. Section 93 provides for payment of weekly payments of compensation, s 98A provides for a lump sum payment of compensation for pain and suffering, and s 98C provides for a lump sum payment of compensation for non-economic loss based upon an assessment of whole person impairment.
Section 99, which is of particular significance in this matter, provides that, if there is caused to a worker an injury which entitles the worker to compensation, the Authority, self-insurer or employer (as the case may be) shall be liable to pay as compensation the reasonable costs of various services, that is –
(1)(a)the reasonable costs of the road accident rescue services, medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services received because of the injury;
…
which shall be in addition to any other compensation payable under this Act.[5]
[5]Section 99(1)(a). The expressions “medical services”, “personal and household services” and “occupational rehabilitation services” are all defined in s 5.
The continued entitlement to the costs of such services is linked to entitlement to weekly payments, except if subsection 99(14) applies, as the following provisions make clear:
(11)Subject to sub-section (13), if weekly payments are payable, compensation under this section ceases after 52 weeks after the entitlement to weekly payments ceases, unless sub-section (14) applies.
(12)Subject to sub-section (13), if compensation is payable only under this section, compensation under this section ceases after 52 weeks after the entitlement arises, unless sub-section (14) applies.
(12A)Before compensation under sub-section (11) or (12) ceases, the Authority or self-insurer –
(a) must give at least 28 days written notice to the worker; and
(b) must state in the notice –
(i) the reasons for giving the notice; and
(ii) the date when the entitlement will cease.
…
(14)Compensation under this section does not cease if –
…
(c)the service provided under sub-section (1) is essential to ensuring that the worker’s health or ability to undertake the necessary activities of daily living does not significantly deteriorate.
For the purposes of Bluescope’s entitlement to terminate payments for the back claim the provisions of sub-s 99(14)(c) were of pivotal significance.[6]
[6]Compare the third ground set out in paragraph 8 above.
Part III of the Act concerns dispute resolution. Division 1 vests the County Court and Magistrates’ Court with jurisdiction to inquire into, hear and determine any question or matter under the Act arising out of a decision of an Authority, employer or self-insurer, or the recommendation or direction of a conciliation officer.[7] Importantly for present purposes, a court exercising such jurisdiction may, on its own motion or upon the request of a party to the proceeding, refer a medical question[8] to a medical panel[9] for an opinion.
[7]Sections 39 and 43.
[8]Defined in s 5.
[9]Established under Part III, Division 3 – see further below.
Part III, Division 1A establishes the Accident Compensation Conciliation Service (“the Service”). The Service consists of a senior conciliation officer and other conciliation officers as appointed by the Governor in Council.[10] The function of the Service is to provide conciliation services,[11] and it may do all things necessary or convenient to enable it to carry out that function.[12] The Service engages people appointed as conciliation officers to assist it to carry out its functions, although such officers are not taken to be employed by the Service.[13]
[10]Section 52D.
[11]Section 52B.
[12]Section 52C.
[13]Section 52E(1) and (3).
Part III, Division 2 deals with conciliation disputes. A dispute means, in substance, any dispute in connection with a claim for compensation between the person making the claim and an employer, the Authority or a self-insurer.[14] Any party to the dispute may refer it to a conciliation officer for consideration.[15] The procedures before a conciliation officer, set out in s 56, include the following, of which sub-s (6) is critical in this matter –
[14]Section 53.
[15]Section 55.
(2)A Conciliation Officer must, having regard to the need to be fair, economical, informal and quick, and having regard to the objects of the Act, make all reasonable efforts to conciliate in connection with a dispute and to bring the parties to agreement.
(3)A person who is a party to any dispute is not entitled to be represented by a legal practitioner at any conciliation conference.[16]
…
(6)A Conciliation Officer may refer a medical question to a Medical Panel for an opinion under this Division.
[16]Although the parties may agree to such representation.
Section 57 provides that a conciliation officer, in connection with the dispute, may make recommendations to the parties as considered appropriate, give certain directions,[17] conciliate even though court proceedings are pending[18] and, if the dispute is resolved, must issue an outcome certificate setting out the terms on which the dispute was resolved, certifying that each party to the dispute is bound by the result (such certificate being admissible in any court proceeding).[19]
[17]Section 57(1).
[18]Section 57(2).
[19]Section 57(3), (4) and (5).
In addition to the discretionary power under s 56(6) to refer a medical question to a medical panel, s 55AA provides for the mandatory referral by a conciliation officer of a medical question to a medical panel in respect of a dispute concerning the continuation of weekly payments in certain circumstances. Further, s 55A provides for the referral of a medical question to a medical panel by the Authority or a self-insurer, with the consent of the worker, only after a conciliation officer has been satisfied, inter alia, that the question is relevant, in appropriate form, and the worker has given proper consent – in such circumstances the conciliation officer is bound to refer the question.
The relevant referring power in these circumstances is that contained in s 56(6). No particular purposes or circumstances are prescribed for the exercise of that power. It appears to be part of the arsenal the conciliation officer has to gather evidence or information to facilitate the conduct of the conciliation, that is, to endeavour to have the parties reach agreement.
It remains then to note the provisions relevant to the establishment and functions of the medical panel. These are contained in Part III, Division 3. Section 63 concerns the establishment of medical panels, the appointment of a convenor and provides that it is the convenor who convenes a medical panel and determines the number of members who constitute that panel.
The procedures and powers are set out in s 65 as follows:
(1)A Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2)The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
The panel is empowered to ask a worker to attend the panel, answer questions and submit to a medical examination.[20] It may also decline to give an opinion on a medical question referred to it by a conciliation officer if it is of the view that the formation of an opinion will depend on the resolution of factual issues more appropriately determined by a court.[21] The function of a medical panel is to give its opinion on any medical question in respect of the injuries arising out of, or in the course of or due to the nature of employment.[22] A conciliation officer is also given the power to require a worker who claims compensation under the Act or who is in receipt of weekly payments of compensation under the Act to submit himself or herself for examination by a medical panel.[23]
[20]Section 65(5).
[21]Section 65(5A).
[22]Section 67(1).
[23]Section 67(2).
Finally, a medical panel must form its opinion on a medical question within 60 days after the reference[24] and –
For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.[25]
[24]Section 68(1).
[25]Section 68(4).
The last provision is vital. Upon a referral to a medical panel, the issues the subject of the medical questions are, in effect, removed from the scope of the court’s power to determine and they are placed in the hands of the panel. Thus, there is considerable importance in the formulation of the posed “medical question” to ensure that it conforms to a question permitted to be referred (by reference to the definition of such questions in s 5 of the Act), that the question is one that is relevant to the dispute and that the circumstances permitting its referral have arisen.
As I have already stated, it is convenient that I deal first with the issue of whether the relevant conciliation officer will act in excess of jurisdiction or deny Bluescope procedural fairness if she refers the medical questions which she proposes to refer.
Excess of jurisdiction or denial of procedural fairness?
It is not disputed that the conciliation officer had power under s 56(6) to refer questions. What is disputed is whether questions 1 and 3 are relevant to the dispute or conform to questions permitted to be referred.
Bluescope’s originating motion specified the grounds for review as twofold – jurisdictional error and denial of procedural fairness. Jurisdictional error occurs when a tribunal (or decision maker) identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on any irrelevant material or, at least in some circumstances, makes an erroneous finding or reaches a mistaken conclusion.[26] In this case Bluescope contends that jurisdictional error would be committed because neither questions 1 or 3 are medical questions permitted by the Act and, additionally, question 1 is not relevant to the dispute. If that were so then the conciliation officer would implicitly have identified a wrong issue or asked herself wrong questions.
[26]Craig v South Australia (1995) 184 CLR 163, 179.
Insofar as denial of procedural fairness is relied upon, the ground stated in the originating motion is particularised as follows.
By including the words “(including any sequelae)” in proposed medical question 1 in the proposed Referral the Conciliation Officer has denied the plaintiff a fair opportunity to be heard by the Panel.
Before turning to each objection, it is convenient to have regard to some legal principles with respect to the formulation and referral of medical questions. For current purposes, they can be listed conveniently as follows:
(a)Each of the questions (“a question as to …”) enumerated in the definition of “medical question” in s 5 is taken to be “more indicative than definitive”.[27]
(b)The question must be relevant in the sense that the opinion which is sought of the medical panel will be, or might be, capable of assisting the court (or, I interpolate, a conciliator) in resolving the dispute.[28]
(c)It follows from (b) that any postulated question need not necessarily be the essential or critical question in dispute, but may be a question the answer to which assists in resolving that critical question (so long as each question remains a proper medical question).
(d)Nevertheless, “care must be taken in the formulation of the question because, ultimately, it involves the excision of an issue which might otherwise be resolved by a court if the matter proceeds to litigation.[29]
(e)The power to refer a medical question must be exercised for the purpose for which it exists,[30] and none other, which, in the present case, is to facilitate the resolution of the dispute.
Question 1[31]
[27]Greeves v HIH Winterthur Workers’ Compensation (Vic) Limited (2000) 1 VR 344, 30.
[28]Isuzu General Motors Australia Limited & Anor v Jordon (2000) 2 VR 212, 13.
[29]Austin v Amcor Limited (Unreported, Supreme Court of Victoria, Byrne J, 26 February 1998), Greeves v HIH WinterthurWorkers’ Compensation (Vic) Ltd (2000) 1 VR 344, 25-27.
[30]Isuzu General Motors Australia Limited v Jordon (2000) 2 VR 212, 21.
[31]See final draft referral at paragraph 17 above.
At trial Bluescope argued that question 1 is not permissible and should be prohibited because –
(a)it is irrelevant – that is, no dispute exists as to what injury was suffered;
(b)it does not precisely match any medical question as defined in s 5 of the Act;
(c)it invites the medical panel to expand the injuries beyond those as formulated by the conciliation officer, and about which there is no dispute, without giving Bluescope any effective right to be heard as to whether and how those injuries might be expanded; and
(d)it is not a true exercise of the statutory discretion because the conciliation officer was slavishly following a direction of the Service, which direction in itself originated from a direction apparently given by the convenor of medical panels.
Turning to the first of such arguments, contrary to Bluescope’s contention the question does not imply any dispute about the claimed injuries. By its terms, it addresses the nature of the worker’s medical condition relevant to those injuries.
In the past there have been doubts expressed about the real meaning and purpose of this question, which reflects sub-paragraph (a) of the defined medical questions in s 5 of the Act. It was argued by Boyd that the question is directed to the “current condition” of the worker, relevant to the claimed injuries, which must be of assistance when inquiring into what medical and other services may currently be required. Although the language of the question does not employ the words “current condition” or “current status”, it does appear to me that that is the sense of the question. Given that sense, it appears to me not only to be relevant, but of much assistance, preparatory to inquiring whether (as in questions 2 and 3) the proposed medical services are appropriate or adequate, or might ensure that the worker’s health or ability to undertake daily living activities does not deteriorate.
Although question 1 may not be an ultimate question in the sense that it is some touchstone for entitlement under the Act, it need not be so. In my view, it meets the criterion of being capable of assisting in the resolution of the dispute. Further the answer to it will, as a matter of transparency, assist in exposing the panel’s reasoning in answering the subsequent questions, because it should determine one of the premises necessary in answering questions which involve the relationship between the proposed medical services and the worker’s injury as it is affecting the worker at the current time.
As was pointed out on behalf of Boyd, both the back injury and the shoulders, neck and wrist injuries are quite old and there has been much invasive treatment between the date they were sustained and the present time. In those circumstances, it seems not only relevant, but necessary, that the medical panel address itself first to the nature of the worker’s medical condition relevant to each of those injuries before turning to the other questions.
The second of Bluescope’s argument with respect to question 1 was that the question does not precisely match paragraph (a) of the definition in s 5. That is true in that the conciliation officer proposes to insert after “medical condition” the parenthesised words “(including any sequelae)”. In my view, it is not desirable that the conciliation officer insert the parenthesised words in the question, but by doing so, I do not consider that any mischief is likely to arise from it. It is not disputed by Bluescope that the concept of “injury” in this arena includes “sequelae” of such injury.[32] I do not consider, as it was contended by Bluescope, that the inclusion of those parenthesised words necessarily implies that there is some further injuries not otherwise articulated in the formulation of them by the conciliation officer. Rather, the addition of those parenthesised words merely makes explicit what might be thought to be implicit by virtue of the accepted understanding of the concept of injury I have mentioned.
[32]Western Health v Gallichio [2009] VSC 134, [13].
In any event, the practical answer to any concern entertained by Bluescope is that, first, it has an opportunity to make submissions to the medical panel by which it can expressly state what injuries or conditions it has addressed. Secondly, a medical panel obliged to afford natural justice to the parties[33] must give a party a proper opportunity to be heard in respect of any new matter with which it proposes to deal. Should it not do so, then Bluescope, like any other party, would have its remedies. It is premature at this stage to assume that any such new matter will arise simply because the question as formulated articulates a possibility which would exist even without its articulation.
[33]Masters v McCubbery [1996] 1 VR 635.
The third argument, as to the denial of a right to be heard, has been addressed in answering the second argument.
The fourth and last argument arises from the explanation which the conciliation officer gave, in email exchanges, for asking this question. She says[34] that the text of the question came from the “proforma on our system as it relates to the disputes in question … The Medical Panel requires us absolutely without exception to ask question 1 in the form it appears”.
[34]Email 24 September 2010, Exhibit JJ 7 to the affidavit of James Johnson affirmed 27 October 2010.
I accept that the answer given by the conciliation officer was a curious one and gives rise to some concern about the manner in which she exercised the statutory power. Nevertheless, objectively, there is a rational justification for the question (as set out above). One would not lightly conclude that a conciliation officer has failed to give proper consideration to the exercise of the statutory power or that the power has been exercised for improper purposes. It would not be wrong, in my view, for a conciliation officer to take note of the policy and guidelines of the Service when formulating questions although it would be wrong for a conciliation officer, in effect, to allow that power to be exercised by another person or body to which the power has not been conferred. Given that the question is, in my view, relevant and proper, and notwithstanding there may be some question concerning the intellectual process used in arriving at the conciliation officer’s satisfaction for the purpose of exercising the s 56(6) power, I would not exercise any discretion on my part to prohibit the referral of that question in these circumstances.
It follows from the foregoing that Bluescope’s arguments with respect to question 1 fails.
Question 3[35]
[35]See final draft referral at paragraph 17 above.
I turn to question 3. Bluescope’s arguments are in substance –
(a)there is no defined question in s 5 which exactly matches the question posed, and although the question in paragraph (ac) in s 5 comes closest, it is limited to questions as to the “adequacy, appropriateness or frequency” of a medical service and none of those issues are explicitly the subject of question 3;
(b)question 3 is not a relevant question;
(c)question 3 is not necessary because question 2 suffices and there are other mechanisms which the conciliation officer might pursue in the resolution of the dispute.
In my view, there is very little substance to any of the arguments raised by Bluescope on this question. Although it is true that question 3 does not precisely match the language of any of the questions in s 5, it is a question which is properly comprehended by paragraph (ac) of that section –
“a question as to the medical, personal and household or occupational rehabilitation service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service.”
The very issue which is raised by Bluescope’s grounds for terminating the medical services, arising from s 99(14)(c) of the Act, is an issue (or question) as to the medical services provided to Boyd for her back injury. That is enough to justify question 3. I do not read paragraph (ac) as limiting such a question only to a question as to the “adequacy, appropriateness or frequency” of any proposed service – indeed, the inclusive language demonstrates the complete opposite. It is a misconstruction of that paragraph to require that it be so limited, as Bluescope’s argument does.
Nevertheless, in my view, the word “appropriateness” is fitting to apply the general nature of the question set out in the opening words of paragraph (ac) to the specific issues raised in question 3, deriving as they do from s 99 (14)(c).
Far from being irrelevant, as Bluescope contends, question 3 goes to the heart of one of the grounds of termination relied upon by Bluescope, namely a denial that the services are essential to ensure that Boyd’s health or ability to undertake the necessary activities of daily living does not deteriorate. Question 2 does not suffice for the purpose of dealing with that issue; it does not address the correctness or otherwise of Bluescope’s denial of the existence of the s99(14)(c) conditions.
Finally, the other means which were (perhaps faintly) raised by Bluescope by which the conciliation officer might seek to resolve the dispute without recourse to referral of medical questions (viz s 57(2) and s 59(3)) appear to me to be unrealistic in the circumstances of the case. Such an argument does not sit well with the fact that Bluescope does not challenge the referral of question 2 to a medical panel. In any event, the simple fact that there may be other possible means of resolving the dispute does not deny the conciliation officer’s power to employ this particular means.
It follows that I reject Bluescope’s arguments that the conciliation officer will, in referring the proposed medical questions, act in excess of her statutory jurisdiction or deny Bluescope procedural fairness.
Is the decision of a conciliation officer under s 56(6) amenable to the Court’s supervisory jurisdiction?
It was argued for Boyd that the decision of a conciliation officer under s 56(6) to refer medical questions is not amenable to the court’s supervisory jurisdiction. Her arguments can be briefly summarised as follows:
(a)The test whether the exercise of statutory power attracts any obligation to afford procedural fairness is whether the power involved is one that may destroy, defeat or prejudice a person’s rights, interests or legitimate expectations[36];
(b)But, some decisions are merely preliminary steps toward the exercise of a power which, if exercised, would affect the rights, interests or legitimate expectations, are not of their own force decisions which have such prejudicial effect, and thus are not amenable to judicial review[37];
(c)The giving of an opinion by a medical panel is an exercise of power which does attract the obligation of procedural fairness[38] and is amenable to judicial review because, by reason of s 68(4), its opinion clearly has prejudicial effect on rights etc;
(d)The decision of a conciliation officer to refer medical questions to a medical panel under s 56(6), however, is in the nature of a preliminary step which does not, of its own force, prejudicially affect any party’s interests, rights or legitimate expectations, and stands in stark contrast to the opinion of the medical panel (towards which it is such a step);
(e)Moreover, there are other opportunities available to parties subsequent to the referral to modify or influence the referral or its outcome, such as to make submissions to the convenor of medical panels concerning the proprietary and form of the proposed medical questions[39], to make submissions to the medical panel itself, or to seek relief in respect of the panel’s processes; and
(f)For these reasons the decision of a conciliation officer is not amenable to judicial review.
[36]Kioa v West (1985) 159 CLR 550, 584; Annetts v McCann (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 576.
[37]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 158-165; Byrne v Marles & Anor [2007] VSC 63, [65].
[38]Masters v McCubbery (1996) 1 VR 635.
[39]Hassan v Nisselle & Ors [2000] VSC 271.
Counsel were unable to refer me to any decision of this Court in which the power of a conciliation officer under s 56(6) has been reviewed. There are, however, numerous cases in which the power to refer medical questions to medical panels, particularly by judges or magistrates once proceedings have been issued, has been examined[40]. In some of these cases the court’s supervisory jurisdiction in relation to the exercise of referral power by persons other than conciliation officers has been assumed without apparent debate[41]. Throughout all, however, one can discern the significance that is attributed to the fact that a referral excises an issue from the power of determination by a court (other than upon judicial review), and the formulation of the medical questions define the scope of that excision.
[40]Austin v Amcor (Unreported, Supreme Court of Victoria, Byrne J, 26 February 1998); HIH Winterthur Workers’ Compensation (Vic) Ltd v Greeves [1998] VSC 97; Greeves v HIH Winterthur Workers’ Compensation(Vic) Ltd (2000) 1 VR 344; Freisleben v Nisselle [1999] VSC 191; Isuzu General Motors Australia Ltd v Jordon (2000) 2 VR 212; Victorian WorkCover Authority v Judge Punshon [2005] VSC 361.
[41]Austin v Amcor (Unreported, Supreme Court of Victoria, Byrne J, 26 February 1998); Victorian WorkCover Authority v Judge Punshon [2005] VSC 361.
Little attention was given by the parties in argument to the relevance of the decisions I have mentioned, other than Boyd contending that such decisions were not relevant because they concern a referral at a different stage of the process. I am not persuaded that the different stage is a particularly relevant point of distinction.
There is no question that the conciliation officer is exercising statutory power. It was argued on behalf of Bluescope that if the State’s Supreme Court could not review such exercise of power then there would exist an “island of power immune from supervision and restraint”, a proposition recently deprecated by the High Court.[42]
[42]Plaintiff M61/2010E v Commonwealth [2010] HCA 41, [54].
In the final analysis I need not make any final determination on this issue because, as I have explained, I do not consider that the proposed referral would involve any jurisdictional error or involve any denial of procedural fairness. The question of whether the referral ought to be prohibited does not arise. If there is any merit to the argument that such a power is not amenable to judicial review it can be left for another case upon fuller argument.
Conclusion
For the reasons I have given the proposed referral of medical questions by the conciliation officer does not involve jurisdictional error or any denial of procedural fairness. It is not necessary for me to consider whether the decision of a conciliation officer under s 56(6) is subject to the supervisory jurisdiction of the court. Accordingly the plaintiff’s proceeding will be dismissed.
I will hear the parties on the question of costs.
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