Bluescope Steel Limited v Willmot
[2020] VSC 297
•29 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04138
| BLUESCOPE STEEL LIMITED | Plaintiff |
| v | |
| ROBIN ANTHONY WILLMOT & ORS (according to the schedule) | Defendants |
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JUDGE: | Kennedy J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2020 |
DATE OF JUDGMENT: | 29 May 2020 |
CASE MAY BE CITED AS: | Bluescope Steel Limited v Willmot |
MEDIUM NEUTRAL CITATION: | [2020] VSC 297 |
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ADMINISTRATIVE LAW – Judicial Review – Certificate of Medical Panel – Diagnosis of conversion disorder – Whether failure to take into account evidence concerning worker’s credit – Whether reasons inadequate - No error established - Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 302, 304, 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Mr R Kumar | Hall and Wilcox |
| For the First Defendant | Mr M Fleming QC with Mr L Allan | Zaparas Law |
HER HONOUR:
In this proceeding, the plaintiff, Bluescope Steel Limited (the employer), applies for review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 of an opinion of a Medical Panel (the Panel) dated 12 July 2019 that Mr Willmot (the first defendant) had a ‘conversion disorder.’
The employer applies for an order in the nature of certiorari quashing the opinion of the Panel (comprising the second to fifth defendants), and an order in the nature of mandamus remitting the referred medical questions to a differently constituted panel.
The employer alleges that the Panel has failed to take into account relevant considerations (ground 1) and/or failed to provide adequate reasons for its opinion (ground 3).[1]
[1]Ground 2 - which alleged that there was jurisdictional error by making findings which were grossly illogical or irrational, and/or unreasonable - was abandoned at the hearing: Transcript of proceeding, 19 May 2020, 64 [1]-[6].
The Panel did not appear at the trial and will abide by the outcome of this proceeding.[2]
[2]See letter to the Court from Pater Rashleigh of DLA Piper, dated 4 March 2020.
Background
Mr Willmot was born on 30 July 1973 (and is currently 46 years of age). He was employed by the employer as a process technician, commencing in February 2014.
On 10 November 2015, Mr Willmot completed a worker’s injury claim form citing injury by way of back trauma involving ‘waist down, legs, feet’, arising from an incident on 5 November 2015 when he slipped and fell to the floor.
Following the incident, he was taken to Frankston Hospital where he remained for four to five days, subsequently being transferred to the Golf Links Hospital where he remained until late November 2015. Scans and examination did not demonstrate an organic cause of symptoms. An impression was noted of functional neurological deficit likely to improve over time. He did not return to work.
The employer accepts that Mr Willmot was involved in a fall on 5 November 2015 (and the claim was initially accepted).
Following discharge from hospital, Mr Willmot was managed by his local doctor and received treatment in the form of medication, physiotherapy and hydrotherapy. His symptoms, at the time, were predominantly back pain and lower extremity weakness.
On 30 May 2016, Associate Professor Brazenor saw the worker and opined that, on the balance of probabilities, he was feigning a spinal injury. As will be seen below, the employer places great weight on events that occurred during this attendance, and alleges that Mr Willmot lied when he told Dr Brazenor that he did not drive to this appointment.
Mr Willmot was also seen during 2016 by his treating neurologist, Dr Frayne. In a report dated 17 November 2016, she noted that there had been some inconsistencies in examination with no medical cause. However, her impression was that there was likely a conversion disorder, and she referred him to a pain clinic.
On 27 June 2016, the employer advised Mr Willmot of its decision that his entitlement to weekly payments and medical and like expenses would cease that day (the decision). The decision was made on a number of grounds, which included that he had obtained weekly benefits fraudulently.
On 16 December 2016, Mr Willmot was summarily dismissed from his employment, effective that day. He made an unfair dismissal application which was ultimately unsuccessful.
Mr Willmot continued to seek treatment for pain management during 2017 and 2018. In a report dated 8 May 2018, Professor Kanaan diagnosed a conversion disorder. In terms of certain video surveillance, he agreed it did show symptoms that were milder than on examination by Dr Brazenor. However , this was explained given the symptoms were worse when the patient was paying attention to them. He considered that the footage always showed that Mr Willmot had symptoms.
A different view was taken by the defendant’s doctor, Associate Professor Mendelson, who considered that Mr Willmot did not have a diagnosable depressive illness, or any form of anxiety disorder.
Mr Willmot commenced proceedings in the Magistrates’ Court in respect of the decision. By order made on 27 March 2019, certain medical questions were referred to the Panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) as cited below.
In the statement provided to the Panel pursuant to s 304 of the Act (the s 304 statement), the facts or questions that were said to be in dispute were identified as including whether the worker suffers from a ‘conversion disorder.’ Further, whether ‘inconsistencies in the plaintiff’s presentation, including by reference to … matters occurring during the plaintiff’s examination at the rooms of Dr Graeme Brazenor on 30 May 2016’ were more consistent with a diagnosis of conversion disorder or malingering.
In the employer’s submissions to the Panel, it suggested that there needed to be an assessment of the plaintiff’s reliability in the description of his symptoms (though a finding of fraud was unnecessary). Further, that the Panel was being asked to assess whether the ‘inconsistencies’ featured were most consistent with a diagnosis of conversion disorder or malingering.[3] It cited a number of ‘inconsistencies’ or features of concern, including extensive surveillance footage as well as ‘inconsistencies’ as to events occurring during the plaintiff’s attendance at the rooms of Dr Brazenor.[4]
[3]Court book, 105: Submissions of the Defendant, 16 October 2018, 2 [5].
[4]Ibid [6].
The Panel was constituted by two specialist psychiatrists (Dr John King and Dr Julian Freidin), a specialist orthopaedic surgeon (Mr David de la Harpe), a specialist musculoskeletal physician (Associate Professor Peter Gibbons), and a specialist neurosurgeon (Mr Rondhir Jithoo).
Mr Willmot was examined by the physical doctors on 25 June 2019, and by the psychiatrists on 3 July 2019.
Certificate of opinion
The Panel produced a certificate of opinion dated 12 July 2019 in respect of the relevant questions as follows:
Question 1: What is the nature of the plaintiff’s medical condition/s relevant to the injuries alleged in paragraph 5 of the Further Amended Statement of Claim (the alleged injuries), namely :
a. An injury to the back;
b. Psychological injuries?
Answer:a. The Panel is of the opinion that the Plaintiff suffered a temporary soft tissue injury of the thoracic and lumbosacral spine which has now resolved and there is no longer any intrinsic medical condition of the Plaintiff’s back relevant to the alleged injury to the back.
b. The Panel is of the opinion that the Plaintiff is suffering from a Conversion Disorder and chronic Adjustment Disorder relevant to the alleged psychological injuries.
Question 2: To what extent do the conditions found in answer to question 1 result from, or are they materially contributed to by, either and if so which of the alleged injuries?
Answer: The Panel is of the opinion that the Plaintiff’s temporary soft tissue injury of the thoracic and lumbosacral spine has now resolved and there is no longer any intrinsic medical condition of the back that results from or is still materially contributed to by the alleged back injury. The Panel is also of the opinion that the Plaintiff’s Conversion Disorder and chronic Adjustment Disorder results from and is still materially contributed to by the alleged psychological injury.
Question 3: Was the plaintiff’s employment with the defendant on 5 November 2015 a significant contributing factor to the alleged Injury to the back?
Answer:The Panel is of the opinion that the Plaintiff’s employment on 5 November 2015 was a significant contributing factor to a temporary soft tissue injury of the thoracic and lumbosacral spine which has now resolved and a Conversion Disorder and chronic Adjustment Disorder that persist.
Question 4. Does the plaintiff have an incapacity for work which results from, or is materially contributed to by, either and if so which of the alleged injuries?
Answer: The Panel is of the opinion that the Plaintiff has no incapacity for work which results from or is materially contributed to by the alleged back injury but there is an incapacity for work that results from and is materially contributed to be the alleged psychological injuries (Conversion Disorder and chronic Adjustment Disorder).
Reasons
The Panel also provided reasons for its opinion dated 12 July 2019.
At the outset of these reasons, the Panel recorded that it formed its opinion ‘with regard to’ a number of matters, which include the documents and information referred to in ‘enclosure A.’ The reasons thereafter recite the facts or questions in dispute, as contained in the s 304 statement.
The reasons then, first, deal with the physical assessment of Mr Willmot, and recite the history of physical injury and progress.
The Panel recorded that Mr Willmot uses medication and rest to self-manage his symptoms. His current physical symptoms were that he suffers from a loss of ability to get up and function. He described the lower extremity pain as not being constant, and described intermittent burning sensation in his left leg. He claimed that if he has to get up, he has to use crutches, describing use of crutches permanently, within his home and outside. He said that he does not get up without a crutch. He said he is able to manage with one crutch if he is an area he knows and he is aware of all the trip hazards.
On physical examination, the Panel noted that Mr Willmot was able to rise from the sitting position and use his forearm crutches to ambulate. When assessed walking without crutches and foot orthoses, he displayed a ‘bizarre hip twisting gait.’ When attempting to sit on the examination couch, he lifted each leg as if the limbs were paralysed, but entirely inconsistent with his ability to rise from and lower himself into a sitting position and to walk. The Panel continued:
Examination of his hands identified no callosity whatsoever entirely inconsistent with his history of being unable to ambulate without crutches. The lack of callosity indicated that he was either not using the crutches to ambulate or was simply, for the most part, carrying them. … Assessment of power identified volitional and give way weakness in all major muscle groups in both lower extremities again inconsistent with his ability to rise from and lower himself from the sitting position and to walk. … There was no consistent pattern to the reported disordered sensory responses … The Panel noted multiple inconsistencies on physical examination and was unable to identify any organic neurological cause for his clinical presentation.
The Panel noted that there was no radiological cause for the patient’s symptoms.
In terms of surveillance, the reasons record that the Panel ‘viewed surveillance video footage of Mr Willmot included with the referral and all surveillance reports.’ It continued:
Whilst for the most part Mr Willmot was observed using crutches he was seen undertaking activities using one or both legs that was inconsistent with any organic paresis of the lower extremities. The Panel considered that the actions depicted on the video surveillance footage are entirely inconsistent with his presentation on physical examination and are entirely inconsistent with an organic paraparesis or weakness from any radicular involvement.
The Panel made inquiries of Mr Willmot as to the disparity between his clinical presentation and the activities depicted in the video footage, and concluded:
Whilst the explanations offered by Mr Willmot were not a reasonable explanation for the disparities observed the Panel noted that Mr Willmot was of the view that his explanations were a real and reasonable account for the disparity. He was unable to see or identify why the Panel might have reason to question his disability (emphasis added)
The Panel then concluded that the worker suffered a temporary soft tissue injury of the thoracic and lumbosacral spine which had now resolved, and that there was no current physical medical condition that resulted from or still materially contributed to by the alleged back injury.
The Panel also made reference to the various reports of Dr Brazenor who reviewed the video footage and stated:
The Panel further considered that the activities depicted on video surveillance footage are not consistent with his history of physical disability or functional restrictions with the Panel also noting an absence of callosity of either hand entirely inconsistent with a person with organic lower extremity weakness using crutches to ambulate which would require weight to be taken through the hands and arms …
The Panel then recorded its psychiatric assessment and set out relevant background and history. The Panel noted that there was disagreement amongst the assessing medical specialists as to whether Mr Willmot’s symptoms were better explained by conversion disorder or by malingering. Thus, while Dr Epstein diagnosed a major depressive disorder with features of anxiety, Associate Professor George Mendelson said Mr Willmot did not have a diagnosable depressive illness, and did not have conversion disorder. However, Professor Richard Kanaan diagnosed conversion disorder.
In determining, then, whether there was malingering versus a conversion disorder, the Panel recorded a detailed description of each condition. The Panel noted that malingering could be defined as the intentional presentation of false or misleading health information for personal gain. Conversion disorder was a condition that could not be explained by neurological disease or other medical condition, however, the symptoms were ‘real’ for the patient and caused significant distress or problems functioning.
The Panel stated:
The Panel noted from the “Facts or questions that are in dispute” that the Panel is being asked whether the inconsistencies in the Plaintiff’s presentation, including by reference to the included surveillance footage; matters occurring during the Plaintiff’s examination at the rooms of Dr Graeme Brazenor on 30 May 2016; and observations made and recorded in respect of the Plaintiff are more consistent with a diagnosis of “conversion disorder”, or malingering. When considering this matter, the Panel also took account of its own physical and psychiatric assessments of Mr Willmot.
The Panel concluded as follows:
On the basis of the Medical Panel’s physical and psychiatric examination of Mr Willmot, the opinions of the different medical specialists whose opinions have been provided and those of the physical Panel, and review of the surveillance material, the Panel concluded that Mr Willmot suffers from a Conversion Disorder. The consequent physical symptoms have caused him emotional distress resulting in the additional diagnosis of a chronic Adjustment Disorder with Depressed Mood. The Panel considered that elements of his presentation physically and explanations for observed disparities in the video surveillance footage were consistent with the development of a conversion disorder rather than malingering.
The Panel considered that Mr Willmot was not in voluntary control of his physical symptoms or physical presentation and this was an explanation for the inconsistencies noted by the Panel and in the surveillance footage and elsewhere referred to in the referral material. The Panel further considered that whilst the reported symptoms and functional impairments were more obvious and disabling during the physical examination this was, in this instance, consistent with a conversion disorder rather than malingering.
The Panel concluded that, despite there being no organic physical cause, the functional impacts relating to the conversion disorder were ‘real’ to Mr Willmot.
Grounds
Ground 1 – failure to take into account relevant considerations
Ground 1 relevantly read as follows:[5]
In the process of determining whether the first defendant had a genuine conversion disorder or was consciously exaggerating his symptoms, the Panel failed to have regard to, in the sense of failed to intellectually engage with, the relevant considerations that:
a)the first defendant was shown to have made a number of statements to Dr Brazenor that could only have been deliberate, conscious falsehoods;
b)the first defendant had been observed (by Ms Towey, who provided a signed statement) walking without a crutch, and then starting to use that crutch after he became aware that he had been seen;
c)an examination of the first defendant’s hands showed that they were ‘entirely inconsistent’ with the history he gave to the Panel that he was unable to ambulate without crutches; and
d)the first defendant was found by the Panel to have engaged in ‘volitional’ give way weakness in all major muscle groups in both lower extremities, and the Panel found that this weakness was inconsistent with the first defendant’s observed abilities.
[5]In oral submission, the plaintiff abandoned reliance on ground (e) (wrongly recorded as ‘b’ in the originating motion): Transcript of proceeding, 19 May 2020, 5 [13].
Employer’s submissions – driving statement
The primary case for the plaintiff was that there was a failure to take into account deliberate false statements (as opposed to inconsistencies in presentation).
The employer played a recording of a medical examination of 30 May 2016 (provided to the Panel) wherein Mr Willmot told Dr Brazenor a number of matters, including that he had trouble driving, about eight minutes of driving was enough for him, he was better in the passenger seat, and that his sister had come down from Darwin to drive him to the appointment. These statements were shown to be ‘uncontrovertibly false’ given the surveillance material showed that Mr Willmot in fact drove himself to the appointment over the course of one hour and 20 minutes (with a break for petrol).
Thus, the main ground, as developed in oral submission, was that the Panel had failed to take into account a deliberate lie of Mr Willmot that he was driven to the appointment with Dr Brazenor by his sister - when he had in fact driven himself (the driving statement).
The employer submitted that the key deciding feature in the case was whether the worker could be trusted in telling the truth i.e. his reliability. Therefore, if there was material which demonstrated him consciously lying, it needed to be actively engaged with if jurisdiction was to be properly exercised.
The employer further submitted that if the worker’s answers and documents raised an issue which the reasons do not address, then the Panel has failed to take account of a relevant consideration.[6]
[6]Citing Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60]; also Robert Bosch (Aust) Pty Ltd v Barton [2008] VSC 227.
It was submitted that there was no reference to the driving statement in the reasons at all. An absence of reference to it thereby justified an inference that it was not ‘actively engaged with’ because, if the Panel was so engaged, it would have referred to the driving statement given it was so important.
The employer further submitted that the references to ‘inconsistencies’ in the reasons were references to inconsistencies between what was depicted on video and the history given of the worker’s ability. Such references did not encompass deliberate false statements such as the driving statement.
Employer’s other submissions
The other grounds were not developed in oral submission and the employer essentially accepted that the case would be won or lost on the strength of the complaint about the driving statement made to Dr Brazenor.[7] However, the other matters were:
·an alleged conflict between Mr Willmot’s account in claiming that he soiled himself whilst at Dr Brazenor’s rooms on 30 May 2016, and that of Dr Brazenor who specifically refuted that there had been any smell of urine;
·a further conflict in respect of Mr Willmot’s interaction with Dr Brazenor’s secretary. Thus, contrary to Mr Willmot’s account, the secretary denied that he asked her about sanitary disposal or that she took him to the bathroom (though she accepted that he did ask if they had bathrooms and she gave him the location);
·in a witness statement, a Ms Towey claimed that when she first observed Mr Willmot at a shopping centre, he ‘did not appear’ to be using his crutch which ‘shocked’ her ‘based on the information’ she had been provided with by another employee. However, after she smiled at him, Mr Willmot later commenced using his crutch (though she was not certain whether he had recognised her);
·the Panel’s conclusion on examining Mr Willmot’s hands was that they were ‘entirely inconsistent’ with the assertion that he was unable to ambulate without crutches;
·the Panel’s finding of ‘volitional’ give way weakness in all major muscle groups while being examined was inconsistent with the worker’s ability to rise and lower himself from a sitting position and to walk.
[7]E.g Transcript of proceeding, 19 May 2020, 14 [27], 29 [21], 30 [18].
Mr Willmot’s submissions
The first defendant submitted that the various matters identified in ground 1 were all considered by the Panel.
Firstly, the matters were the very matters that the parties drew to the Panel’s attention in the s 304 statement; secondly, the considerations were encompassed in documents contained in enclosure A; thirdly, there were specific instances where the evidence was explicitly considered by the Panel.
In relation to the last point, the Panel:
·clearly read and considered the reports of Dr Brazenor (at page 10);
·quoted verbatim from the s 304 statement (at pages 4 to 5);
·explicitly identified that it was being asked whether the inconsistencies generally cited were more consistent with a diagnosis of conversion disorder (at page 14).
Further, the Panel went on to unequivocally confirm that it had considered the matters in the light of the relevant framework, expressing its opinion that the relevant matters ‘were consistent with the development of a conversion disorder rather than malingering’ (at page 15).
In terms of the suggestion that there was a lack of ‘intellectual engagement’, Mr Willmot submitted that, in reality, the employer’s argument was a disguised submission that the Panel did not place adequate weight on relevant parts of the material. However, it is not the role of a reviewing court to determine whether a decision-maker gave sufficient weight to a consideration (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (‘Peko-Wallsend’)[8]). Further, that, with respect to the requirement for intellectual engagement, this was limited to matters made mandatory by the relevant statute (citing Vellios Electrical Contractors Pty Ltd v Barton (‘Vellios’)[9]).
[8](1986) 162 CLR 24.
[9][2014] VSC 664.
In oral submission, Mr Willmot highlighted that the lengthy definition of malingering involved more complexities than just conscious deception, and that deceit was not determinative.
Further, the individual piece of evidence about the driving statement was not a ‘mandatory consideration’ (citing Vellios). Rather, the question the Panel needed to consider was whether Mr Willmot suffered a conversion disorder or whether he was malingering.
Mr Willmot also submitted that the driving statement was, in any event, taken into account given the assurance on the first page that the Panel had regard to the materials which included reference to that statement. Giving a beneficial construction to the reasons (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang[10]), words like ‘inconsistency’ included matters the subject of complaint. Thus, by way of example, the other matters also had an element of deception e.g. someone presenting themselves as walking on crutches all the time, though having no calluses, can suggest misrepresentation of the amount of time he is on crutches. Finally, it was not the case that just because a person was lying in one respect that this meant the person was lying for all purposes (citing Whisprun Pty Ltd v Dixon[11] referred to in Li v Toyota Motor Corporation Australia Limited[12]).
Analysis
[10](1996) 185 CLR 259.
[11](2003) 77 ALJR 1598, 1619 [119]-[120].
[12][2010] VSC 458, [37].
In considering this ground the following principles are applicable:
·a failure by a decision-maker to take into account a relevant consideration which he or she was bound to take into account will constitute jurisdictional error if that consideration could have materially affected his or her decision;[13]
·the requirement to engage in an ‘active intellectual process’ is also a requirement that applies only in relation to mandatorily relevant matters, factors or considerations;[14]
·identification of mandatorily relevant considerations is to be determined by construing the relevant legislation;[15]
·a mandatory relevant consideration in the Peko-Wallsend sense does not extend to every individual item of evidence or fact;[16]
·in considering whether relevant considerations have been taken into account, the reasons must also be read fairly, as a whole and in context, and should not be subjected to over-zealous judicial review.[17]
[13]Peko-Wallsend (1986) 162 CLR 24, 40.
[14]Vellios [2014] VSC 664, [79].
[15]Peko-Wallsend (1986) 162 CLR 24, 39-40.
[16]See Chang v Neill [2019] VSCA 151, [71]-[73]; Vellios [2014] VSC 664, [78].
[17]See Dundar v Yucel Bas & Ors [2019] VSCA 315 [51]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
I accept that, as a matter of natural justice, the Panel was generally obliged to read the material provided to it under s 304.[18] However, in identifying what considerations were mandatory in the Peko-Wallsend sense, reference is necessary to the Act. Pursuant to s 302(2) the Panel was obliged to give its opinion on the relevant medical questions, which included a question as to the nature of Mr Willmot’s medical condition. Further, the s 304 statement provided under the Act identified that a crucial issue was whether he suffered a conversion disorder, or, alternatively, whether he was malingering. In determining this issue, consistent with the submissions, a key issue as to the credit of the worker was raised as a relevant consideration for the Panel.[19]
[18]Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’) (2013) 252 CLR 480, 498-9 [47]; Ryan v The Grange Wodonga Pty Ltd (‘Ryan’) [2015] VSCA 17, [60].
[19]And see Ryan [2015] VSCA 17, [60].
However, I am satisfied that the Panel considered, and ‘intellectually engaged’ with, the question as to the worker’s credit. Thus, the Panel expressly set out the questions in dispute contained in the s 304 statement (at pages 4-5). It also asked and answered whether the ‘inconsistencies’ (which included the matters surrounding Dr Brazenor’s examination), were more consistent with a conversion disorder or malingering (at pages 14-15). The Panel also watched the surveillance videos, identified a range of inconsistencies with Mr Willmot’s presentation, and cited the relevant opinions of others, including Dr Brazenor (which squarely raised issues of credit).
The Panel considered that an explanation for the inconsistencies in presentation was that Mr Willmot was not generally in voluntary control (at page 15). It further found that he suffered a conversion disorder such that the symptoms for him were ‘real’ (e.g. at pages 10 & 16). This view was reached consequent on an examination by the Panel members (which included two psychiatrists), and was also supported by the reports of both Doctors Frayne and Kanaan.
It was otherwise unnecessary for the Panel to explicitly consider each individual piece of evidence which might shed light on credit (such as the driving statement), as such evidence did not constitute a mandatory consideration in the Peko-Wallsend sense.
This is sufficient to dispose of ground 1. However, I am, in any event, unable to be satisfied that the matters identified were not taken into account. To the contrary, for reasons, below, I am satisfied that the Panel considered, and engaged with, the matters relating to the examination on 30 May 2016, including the driving statement.
First, as the employer accepted, the relevant matters relating to the 30 May 2016 examination were referred to in the material before the Panel.[20] The reasons also record that the Panel formed its opinion with regard to all the documents and information referred to in Enclosure A which included this material. There is no reason to discard this statement.[21] Secondly, the reasons make express reference to the matters occurring during the 30 May examination.[22] It is true that they do not expressly cite the driving statement, but this is readily explicable given, as the employer ultimately conceded, the statement was not highlighted ‘as explicitly’ as was the case in this court.[23] To the contrary, it was treated as part of a large range of matters going to credit. Thirdly, I am unable to be satisfied that the Panel’s references to, and consideration of, ‘inconsistencies’ always involved the narrow meaning suggested by the employer. This is particularly so given the employer itself described the events surrounding the 30 May 2016 attendance as under the umbrella of ‘inconsistencies’, both in its submissions, and in the s 304 statement.
[20]Such material included the s 304 statement; the reports of Dr Brazenor, the recording of Dr Brazenor’s examination, the submissions and correspondence of the employer of 19 October 2016 and 22 July 2016; see also Plaintiff’s Outline of Submissions, 10 December 2019, 7 [24].
[21]Mailton Holdings Pty Ltd v Jussy [2019] VSC 421, [30]; leave to appeal this decision was refused in Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281; Vellios [2014] VSC 664, [81].
[22]Court book, 39, 44, 48: Medical Panel ‘Reasons for Opinion’, 12 July 2019, 5, 10, 14.
[23]Transcript of proceeding, 19 May 2020, 31 [19]-[20], 37 [1]-[2].
Accordingly, I am satisfied that the Panel has had regard to the matters raised in terms of the examination of Dr Brazenor on 30 May 2016, including the driving statement.
Leaving aside issues as to the reliability of Ms Towey’s statement, I am also satisfied that this evidence has been taken into account. Thus, the statement is included in the enclosure the Panel says it has had regard to. The Panel’s general engagement with the ‘inconsistencies’ in the material can also be readily understood as including the sort of evidence provided by Ms Towey.
In relation to the other matters raised, the Panel clearly took into account that the worker’s hands were inconsistent with the history he had provided (that he was unable to ambulate without crutches) given it made this finding.[24] It further expressly took into account that there was ‘volitional’ weakness.[25] However, the Panel also found that, although the reported symptoms were more obvious during the physical examination, this was consistent with a conversion disorder (at page 15). Support for such a view was found in the report of Dr Kanaan, who opined that symptoms would be worse when a patient was paying attention to them.
[24]Court book, 42, 44: Medical Panel ‘Reasons for Opinion’, 12 July 2019, 8, 10.
[25]Ibid 8.
The real gravamen of the employer’s complaint is not that the Panel failed to take into account relevant considerations. Rather, it is that the worker ought to have been disbelieved in respect of his condition. However, this is a merits review complaint and also presumes that a finding of untruth, in any respect, is fatal to a case as a whole. This is not a valid presumption.[26] Rather, the Panel was entitled to form its own views as to whether Mr Willmot was suffering from a conversion disorder on the basis of all the evidence, including its own assessment of Mr Willmot on examination.
[26]Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1619 [119]-[120], cited in Li v Toyota Motor Corporation Australia Limited [2010] VSC 458, [37].
Ground 1 is rejected.
Ground 3 - inadequate reasons
Ground 3 reads as follows:
The Medical panel failed to give adequate reasons for its conclusion that the first defendant had a conversion disorder.
Submissions
Alternatively to the above, the employer submitted that the Panel’s reasons were defective because they do not allow the court to ascertain whether or not it had regard to the various matters cited and, if so, how it reached the decision it did.
The employer cited the relevant test in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’),[27] highlighting that the statement of reasons must explain the actual path of reasoning. Further, that if the court was not satisfied that there was jurisdictional error, as alleged, it should nonetheless be satisfied that the reasons leave the Court in real doubt as to whether the Panel correctly performed its statutory function so as to warrant a quashing of the opinion (citing Gruma Oceania Pty Ltd v Bakar[28]).
[27](2013) 252 CLR 480.
[28][2014] VSCA 252, [47].
In oral submission, the employer suggested that if, contrary to the primary submission, the court did not positively find that the Panel had not had regard to the driving statement, ‘at best’ one is left unsure, in which case the reasons were defective.
Mr Willmot submitted that this ground was only faintly expressed and would seem to stand or fall based on ground 1. Further, that the Panel’s reasons were more than concordant with the Wingfoot standard. Indeed, the reasons in Wingfoot[29] were more austere than those in this case (which show that there has not been any error) .
Analysis
[29]Reliance was also placed on Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281.
Section 313(2) of the Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s actual path of reasoning in sufficient detail to enable a court to see whether the opinion involves an error of law.[30]
[30]Wingfoot (2013) 252 CLR 480, 501 [55].
However a Panel is not an arbitral or adjudicative body and is not required to choose between competing arguments or contentions. Rather, its function is to form, and give its own opinion on, the medical questions referred to it by applying its own medical experience and expertise.[31] Further , a Medical Panel is under no obligation to explain why it did not reach an opinion it did not form,[32] and is unlikely to deal with questions of credit as would a court.[33]
[31]Ibid 498-9 [47].
[32]Ibid 501-2 [56].
[33]Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281 [25].
In this case, the Panel did not explicitly deal with the driving statement. However, for reasons given already, I am satisfied that the Panel gave genuine consideration to the materials about the worker’s credit, including those surrounding this statement. Despite this material, on the basis of its own assessment, as well as that of Doctors Kanaan and Frayne, the Panel concluded that Mr Willmot had a conversion disorder. In so doing, it thereby believed Mr Willmot that the symptoms he experienced were real for him.
The reasons thereby do not leave ‘doubt’ as to whether the materials as to credit were considered as alleged. Further, I do not consider it necessary for the Panel to produce further details as to why it believed the worker insofar as his symptoms were concerned. There is sufficient detail to enable the court to determine that no error of law has been made.
Ground 3 is also rejected.
Conclusion
The proceeding will be dismissed.
SCHEDULE OF PARTIES
S ECI 2019 04138
BETWEEN:
| BLUESCOPE STEEL LIMITED | Plaintiff |
| AND | |
| ROBIN ANTHONY WILLMOT | First Defendant |
| AND | |
| DR JOHN KING | Second Defendant |
| AND | |
| DR JULIAN FREIDIN | Third Defendant |
| AND | |
| MR DAVID DE LA HARPE | Fourth Defendant |
| AND | |
| A/PROF PETER GIBBONS | Fifth Defendant |
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11
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