Chubb Security Pty Ltd v Kotzman
[2010] VSC 242
•4 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6299 of 2009
| CHUBB SECURITY AUSTRALIA PTY LTD | Plaintiff |
| v | |
| DR DAVID KOTZMAN & ORS | Defendants |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 2, 5 October 2009 | |
DATE OF JUDGMENT: | 4 June 2010 | |
CASE MAY BE CITED AS: | Chubb Security Pty Ltd v Kotzman & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 242 | First Revision: 11 June 2010 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Impairment assessment for lump sum benefits – Whether Panel should have excluded or apportioned part of assessed impairment – Allegations of jurisdictional error and inadequate statement of reasons – Reasons unclear – Consequences – Jurisdictional error not established – Whether further and better statement of reasons should be ordered – Procedural and discretionary issues arising – Further submissions invited – Accident Compensation Act 1985 (as in force in May 1995) ss 5, Division 3 of Part III, 82(1), 98, 98A; Administrative Law Act 1978 s 8.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J L Parrish SC Mr M F Fleming | Wisewould Mahony |
| For the Defendants | Mr M O’Loghlen QC Mr B Anderson | Shine Lawyers |
HIS HONOUR:
Overview
The plaintiff employer applies by originating motion for judicial review[1] of a certified opinion of a Medical Panel under the Accident Compensation Act 1985 (“the Act”) concerning the fourth defendant, Mr Adrian Andrighetto (“the worker”). Alternatively, the employer seeks[2] an order under s 8(4) of the Administrative Law Act 1978 that the Panel provide a further and better statement of its reasons.
[1]By way of an order in the nature of certiorari and an order in the nature of mandamus, as provided for in Order 56 of the Supreme Court (Court Civil Procedure) Rules 2005.
[2]By the same originating motion.
The Panel’s opinion essentially consisted of answers to three medical questions referred by the Magistrates’ Court in relation to a claim made by the worker in October 2006 for lump sum benefits under ss 98 and 98A of the Act. The only answer in dispute is the Panel’s answer to the second question, whereby the Panel determined that the worker currently had a “whole person impairment” of 15% attributable to an injury to his back suffered on 11 May 1995.
The employer’s principal contention is that, in arriving at its assessment of the impairment of the worker’s back, the Medical Panel included impairment that was, on the Panel’s own findings, not properly attributable to the injury suffered on 11 May 1995. More particularly, the employer submits that the Panel included impairment found to have been due entirely to certain events or injuries in relation to which no claim could be made under s 98 or s 98A (being events or injuries that occurred or arose on or after 12 November 1997) and, in particular, impairment found to have been due entirely to an event in January 1999 when the worker was playing golf. It is common ground that, if the Panel did make the underlying findings alleged by the employer, then the Panel’s answer to the relevant (second) medical question involved error of law amounting to jurisdictional error. However the worker denies that the Panel made any such findings. According to the worker, the Panel duly concluded that the whole of his impairment was attributable to the 1995 injury.
A further or alternative ground of review pleaded and argued by the employer was alleged inadequacy in the Panel’s statement of its reasons. The employer submitted that the Panel’s certified opinion should be quashed by reason of this alleged inadequacy. For some years there has been debate in this Court about the availability of such a ground of review as a basis for quashing a decision of a Medical Panel. At the hearing of this proceeding both parties submitted that I should defer giving judgment until after the hearing and determination of the then pending appeal to the Court of Appeal against the decision of Kyrou J in Sherlock v Lloyd,[3] which was expected to settle the debate. The judgment of the Court of Appeal has now been given.[4] Subject to any further appeal, it appears to establish definitely that inadequacy of reasons is not, in itself, an available ground of review but rather may warrant, only, an order under s 8(4) of the Administrative Law Act 1978 for a further and better statement of reasons.
[3][2008] VSC 450.
[4]Sherlock v Lloyd [2010] VSCA 122 (28 May 2010).
I have concluded that the Panel’s reasons are ambiguous or unclear to such an extent that it is not possible to determine whether the Panel did or did not err in law as alleged by the employer. However, the only consequence of that conclusion, in the light of Sherlock v Lloyd,[5] appears to be that, at best, the employer may be entitled to an order under s 8(4) of the Administrative Law Act 1978 for a further and better statement of reasons. Even in that regard, certain procedural and discretionary issues arise in this case, not all of which were fully canvassed at the hearing. In order to allow these issues to be further ventilated, and in order to give the parties an opportunity to deal with Sherlock v Lloyd generally, I propose, before making any orders, to invite the parties to make such further submissions in those respects as they may be advised.
[5][2010] VSCA 122.
The statutory scheme
It is common ground that this case falls to be considered by reference to the provisions of ss 98 and 98A as they stood on the day of the alleged injury, namely 11 May 1995, save that ss 98(6) and 98A(6), which were introduced as from 12 November 1997 by the same amending Act,[6] also need to be considered. So far as relevant to the present case, s 98(1) provided:
[6]Accident Compensation (Miscellaneous Amendments) Act 1997, no 107/97, ss 33 and 34.
“98 Compensation for maims
(1)A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury mentioned in the Table to this sub-section, entitled to compensation equal to –
(a)…
(b)the assessed percentage of $93,080 within the range set out opposite that injury in the Table –
calculated, subject to sub-section(2), as at the date of the injury.”
The Table included an item for “Impairment of the back”. It also included the following provision:
“For the purposes of this Table –
(a)…
…
…
…
(e) the degree of impairment in the case of injuries to the back … is to be assessed according to the methods specified in the American Medical Association’s Guide to the Evaluation of Permanent Impairment (Second Edition…).”
Subsection 98(6) provided (and still provides):
“(6) Compensation under this section is payable only in respect of an injury that arose before 12 November 1997.”
Section 98A made provision for lump sum compensation for pain and suffering resulting from injuries mentioned in the Table in s 98. In effect, liability under s 98A is dependent on the prior establishment of liability under s 98. Subsection 98A(6) corresponds to s 98(6).
The amending Act which introduced ss 98(6) and 98A(6) also introduced[7] ss 98C-98E of the Act relating to lump sump compensation for non-economic loss in respect of compensable injuries which result in permanent impairment, being, in effect, injuries suffered on and after 12 November 1997.[8]
[7]By section 36 of Act no 107/97.
[8]By s 2(2) of the amending Act, s 36 thereof was deemed to have come into operation on 12 November 1997.
At the relevant time (May 1995), “injury” was defined in s 5 of the Act as follows (so far as relevant):
“‘injury’ means any physical or mental injury and without limiting the generality of the foregoing includes –
(a)industrial deafness;
(b)[a disease, in specified circumstances]; and
(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration …”.
Sub-section 82(1) provided:
Entitlement to compensation
“(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.”
The statutory provisions under which Medical Panels operate are set out in Division 3 of Part III of the Act. The current provisions apply in this case.
The events of 11 May 1995
It is common ground that the worker fell, or at least stumbled, on 11 May 1995 while on patrol at night at the premises of the Channel 9 television studios in the course of his employment with the plaintiff as a security guard. It is also common ground that if the worker suffered a relevant injury to his back in or as a result of that incident, then the injury was a compensable injury under s 82 of the Act.[9]
[9]It was established in Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296 that, despite initial appearances, the condition stated in s 82(1) that the worker’s employment be a “significant contributing factor” does not apply in the case of injuries within the primary sense of the definition of “injury”, but does apply in relation to disease claims and in relation to recurrences, aggravations et cetera. In the present case, there was material before the Medical Panel indicating that the worker may have had a pre-existing back condition; and it seems that the Panel took the view that the injury suffered by the worker on 11 May 1995 was best described as an aggravation of that condition, rather than a completely fresh injury. If the Panel’s apparent view be correct, then, in the light of Hegedis, any entitlement of the worker to compensation under s 82(1) (and therefore any ultimate entitlement under ss 98 and 98A) would depend on his establishing that his employment was a “significant contributing factor” to his injury. However, it is agreed that the worker’s employment was a significant contributing factor to any relevant injury he suffered on 11 May 1995: transcript, p 14, 29, 83-84.
The referral and the parties’ submissions to the Panel
The Panel received the referral from the Magistrates’ Court on 15 December 2008. Numerous medical reports accompanied it. So did the worker’s statement of claim in the Magistrates’ Court, which indicated to the Panel that the claim in dispute was a claim under ss 98 and 98A of the Act. The questions which were referred to the Panel were as follows:
1. What is the nature of the Plaintiff’s medical condition relevant to the injuries allegedly suffered by the Plaintiff on 11 May 1995 as set out in paragraph 4 of the Statement of Claim in the Complaint herein, namely:
(i) injury to the back with disc prolapse at the L4/5 level;
(ii) injury to the right ankle;
(iii) resultant injury and impairment to the right leg.
2. What is the degree of permanent impairment if any, when assessed in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment (2nd edition) in relation to the Plaintiff’s injury to the back allegedly suffered on 11 May 1995?
3. What is the permanent loss of industrial use, if any, in relation to the Plaintiff’s injury to the right leg allegedly suffered on 11 May 1995?
Written submissions from the worker’s solicitors and from the employer’s solicitors were also included with the referral. Some significance now attaches to the terms of those submissions.
The worker’s submissions (dated 3 October 2008) were relatively brief. They were as follows:
“1.The [worker] submits that the Medical Panel should rely upon the following medical analyses in relation to both causation and impairment:-
(a)Mr Russell Miller;
(b)Mr Brian Barrett;
(c)Mr M.A. Khan;
(d)Dr Daniel Lewis;
(e)Dr Jim Psycharis.
2.All of the abovementioned specialists have concluded that the [worker’s] disc pathology at L4/5 (which was described by Mr Barrett as ‘very large and mainly right sided L4-5 disc prolapse …’) is causally linked to the [worker’s] fall at work on 11 May 1995.
3.Further, there is contemporaneous evidence to support the causal link between the [worker’s] L4/5 condition and the 11 May 1995 incident, as set out (in particular) in the reports of Mr Khan dated 29 May 1995 and Dr Lewis dated 5 July 1995. The existence of pre-injury back symptoms was addressed at an early stage by Dr Lewis, who noted that ‘one month prior to his fall he had experienced some very minor low back pain …’.
4.In addition to the abovementioned specialists, in relation to causation the [worker] also relies upon the [employer’s] own specialists Mr McNicol Smith, Dr Poppenbeek and Dr Charles Castle. The [employer’s] specialist Mr Shannon is the only specialist who has come to a view that the [worker] did not injure his back in the incident on 11 May 2005 [scil, 11 May 1995]. The [worker] submits that this view is at odds with the eight other specialists who have examined the [worker] and is at odds with the contemporaneous evidence of Dr Psycharis, Dr Lewis and Mr Khan.
5.Since May 1995 the [worker] has suffered from ongoing recurrences of symptoms relating to his L4/5 disc level including aggravations in 1999 and 2005. These aggravations relate to the same pathology as the initial May 1995 injury and the linkage between the ongoing aggravations and the original injury have been addressed by Mr Barrett and Mr Miller.
6.The [worker] claims ongoing and substantial impairment of both his lumbar and right leg function.”
The employer’s submissions (dated 28 November 2008) were lengthier. Omitting certain parts as indicated below, they were as follows:
“1.The [worker] commenced employment as a security guard with the [employer] on 23 October 1990.
2.The [worker] ceased working for the [employer] in late 2000. In November 2000 the [worker] commenced working for Channel Nine as a fleet manager. He is still employed by that organisation.
3.The [worker] is alleging that he sustained an injury to his back and right leg in the course of employment with the [employer] which has resulted in permanent impairment and/or industrial loss of use. In particular, the [worker] is attributing that any such disability has arisen as a direct result of a fall on 11 May 1995.
4.The claim for permanent impairment to the back and/or industrial loss of use to the right leg has been denied by the [employer].
5.The Medical Panel is asked to note that the [worker’s] entitlement to compensation pursuant to s 98 is payable only in respect of an injury to his back and/or right leg that arose as a result of his employment before 12 November 1997 and which has caused permanent impairment and/or loss of use.
6.Any injury to the [worker’s] back and/or right leg on or after 12 November 1997 is not compensable pursuant to s 98 and cannot be included in any assessment.
7.The [worker] has made the following claims for compensation:
(a)a claim dated 19 May 1995 alleging a ‘severe ankle strain’ affecting his right ankle and upper leg as a result of stepping off a gutter and twisting his right ankle on 11 May 1995. The [worker] was paid compensation until 7 June 1995;
(b)a claim dated 7 July 1999 alleging a ‘disc prolapse’ to his back. The [worker] referred to the incident on 11 May 1995 and alleged that he had sustained an aggravation of that injury. The [worker] underwent back surgery on 29 July 1999 and returned to work on 6 September 1999. He was paid compensation for that period.
(c)a claim dated 19 August 2005 alleging ‘pain in left buttock and leg’ affecting his lower back. He again referred to the incident on 11 May 1995 and also stated that he first noticed the condition on 18 July 2005 after opening a filing cabinet in his office. The plaintiff had three days off at the time. This claim was initially rejected by the [employer] but subsequently paid.
8.The [employer] does not intend to refer the Medical Panel to the (sic) all of the medical material.
9.The [worker’s] claim is focussed on the fall on 11 May 1995. Medical evidence that has been provided on his behalf is based on the assumption that the [worker] sustained some disc derangement on that date.
10.The defendant does not accept that this assumption naturally follows and makes the following points:
[There followed a long recital of observations about the worker’s medical history. Most of the matters referred to are mentioned in the Panel’s reasons set out below.]
11.The opinion of Mr Barrett is based on the proposition that that (sic):
· the [worker] was not suffering from disc derangement as of 11 May 1995;
· the incident on 11 May 1995 was responsible for the development of a disc protrusion at L4/5.
12.The [employer] submits that the facts are also open to the [scil, view] that:
· the [worker] may have sustained some temporary aggravation of spinal degeneration and/or disc derangement at L4/5 on 11 May 1995;
· the actual prolapse or protrusion occurred as a result of the incident at the golf course in January 1999;
· subsequent surgery was due to a recurrence of those symptoms in May 1999;
· similarly, symptoms in 2005 were related to the 1999 surgery.
13.The [employer] maintains that it is artificial to ignore the [worker’s] circumstances and employment after 12 November 1997. On the [worker’s] history there have been specific episodes after that date which have impacted on his back condition.
14.If the Medical Panel is of this opinion, it is contended that employment after 12 November 1997 has significantly contributed to the [worker’s] overall permanent disability. It is further contended that the [worker’s] entitlement to compensation, if any, in those circumstances is pursuant to section 98C and not section 98.
15.The [employer] maintains that if the Medical Panel determine that the [worker] does have a compensable injury to his back and/or right leg as a result of his employment with the [employer], the Medical Panel have to further determine:
· for the purpose of compensation pursuant to Section 98 of the Accident Compensation Act, whether employment prior to 12 November 1997 has been a significant contributing factor to a permanent impairment to the back and/or a permanent loss of use to the right leg; and, if so
· whether employment and/or other episodes after 12 November 1997 have also been a significant contributing factor to a permanent impairment to the back and/or a permanent loss of use to the right leg; and, if so;
· make an apportionment between periods pre and post 12 November 1997.
16.However, the [employer’s] primary contention is that employment prior to 12 November 1997 has not resulted in any permanent impairment to the back or permanent loss of use to the right leg.”
It seems that no advance request for a statement of reasons pursuant to s 8 of the Administrative Law Act 1978 was made by either party.
The Panel’s certificate of opinion was issued on 3 March 2009. It contained the referred questions and the Panel’s answers, as follows:
1.What is the nature of the Plaintiff’s medical condition relevant to the injuries allegedly suffered by the Plaintiff on 11 May 1995 as set out in paragraph 4 of the Statement of Claim in the Complaint herein, namely:
(i) injury to the back with disc prolapse at the L4/5 level;
(ii) injury to the right ankle;
(iii) resultant injury and impairment to the right leg.
In the Panel’s opinion the worker is suffering from an aggravation of lumbar spondylosis and mild persisting dysfunction of the right ankle, relevant to the alleged injuries.
2.What is the degree of permanent impairment if any, when assessed in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment (2nd edition) in relation to the Plaintiff’s injury to the back allegedly suffered on 11 May 1995?
The Panel is of the opinion that the worker has a whole person impairment of 15% attributable to the injury to the back suffered on 11.5.1995.
3.What is the permanent loss of industrial use, if any, in relation to the Plaintiff’s injury to the right leg allegedly suffered on 11 May 1995?
In the Panel’s opinion, the Plaintiff has a permanent partial loss of use of the right leg of 5% for industrial purposes, attributable to the injury to the right leg suffered on 11.5.1995.
On the same day (3 March 2009), without any prior request, the Panel gave reasons for its opinion as follows:
“1.The referral to the Medical Panel was received on 15 December 2008. The documents considered by the Panel are described in Enclosure A.
2. The worker was examined jointly on the following date:
Member
Speciality
Examination
Dr David Kotzman
Occupational Physician
23 February 2009
Mr John Bourke
Orthopaedic Surgeon
23 February 2009
Mr Michael Johnson
Orthopaedic Surgeon
23 February 2009
3. The Panel formed its opinion by reference to –
(a)the documents and information referred to in Enclosure A; and
(b)the history provided by the worker and the examination findings elicited by the Panel at the abovementioned examinations of the worker.
4. The reasons for the Panel’s opinion are as follows:
The worker described to the Panel his pre-injury duties as a security guard, which he commenced on 23.10.1990 and which involved performing gatehouse duties on dayshift and patrol duties on afternoon and nightshift, at a television station.
The Panel noted the worker’s past history of an episode of low back pain on 28.11.1994 for which he consulted a physiotherapist on 28.11.1994 and a general practitioner on 30.11.1994.
He said he recovered from this episode. The Panel noted that a CT-scan was undertaken in April 1995, which was reported to show a mild L4-5 disc bulge.
The worker told the Panel that he suffered an inversion injury to the right ankle and also injured his back on 11.5.1995, when he slipped on a concrete curb and fell.
He said he was transported by ambulance to a metropolitan private hospital. X-rays were undertaken, which did not demonstrate a fracture. He said that he consulted an orthopaedic surgeon, was treated by immobilisation in plaster for four to six weeks, during which time he was non-weight-bearing on crutches.
He said he developed lower back pain and plain X-rays of the lumbar spine were undertaken on 19.5.1995.
The Panel noted that it is agreed that the worker suffered a ‘severe ankle strain’ injury, with an injury date of 11.5.1995 for which a claim for compensation, dated 19.5.1995, was accepted.
He said that after the plaster was removed, he had difficulty standing on his right leg and had problems with walking, due to his low back pain and right leg pain. He was treated with an epidural injection.
He said he was referred for an opinion to a rheumatologist and subsequently commenced a spinal rehabilitation program at a private rehabilitation hospital in June/July 1995. He said that there was a marked improvement in his condition with this treatment, such that he was able to walk normally, but he said he was still complained [sic] of persisting lower back pain.
He said he returned to work in his normal duties in August 1995 and continued working in that capacity for the next four years. The Panel noted that during this period, he did not consult his general practitioner or any specialists, in relation to any back ongoing complaints [sic].
The Panel noted that the worker suffered an aggravation of his back condition in January 1999, whilst playing golf, with pain radiating to the whole right leg, with a further recurrence of these symptoms in May 1999, whilst attempting to get up from a couch.
He said he consulted his general practitioner regarding these symptoms on 28.6.1999. A CT-scan was undertaken on 29.6.1999, with a disc prolapse being diagnosed and he was certified unfit for work in July 1999.
The Panel also noted that it is agreed that the worker suffered a ‘disc prolapse’ injury, for which a claim for compensation, dated 9.7.1999 was accepted.
He said he was referred to [sic] an opinion to another orthopaedic surgeon, whom he consulted on 7.7.1999. He said that surgery was recommended and he underwent a decompressive laminectomy on 29.7.1999.
He said he made a good recovery following this procedure and he returned to work on 6.9.1999.
He said he ceased working for his employer in late 2000 and subsequently obtained employment as a fleet and security manager, working directly for the television station.
He said he suffered a further aggravation of his back condition in January 2005, whilst on holiday, when he was camping in a caravan on the Murray River. He said he returned to work, but his symptoms took several weeks to settle.
He said he suffered a further aggravation of his back condition on 18.7.05, after opening a filing cabinet in his office. He said he was initially taken by ambulance to a metropolitan public hospital on 19.7.2005. Plain X-rays were undertaken on that day.
He said he was reviewed by his treating general practitioner on 20.7.2005. A CT-scan was undertaken on 20.7.2005 and he was certified unfit for work for three days, but subsequently returned to work. He was referred back to his treating orthopaedic surgeon, whom he consulted on 1.9.2005 for review. An MRI was undertaken on 7.9.2005. Further surgery was not recommended.
A further claim for compensation for ‘pain in the left buttock and leg’ was initially rejected, but was subsequently accepted.
He said he is still working as a fleet and security manager.
He currently complains of intermittent mechanical low back pain, related to certain movements, such as extension and lateral flexion. He also complains of intermittent pain in the right leg and numbness in the right great toe and second toe. He reports pain in the right ankle and right lower leg, which is generally only present on cold days in winter and the right ankle sometimes swells up.
On physical examination, the Panel noted that the worker walked normally and was able to stand on his heels and toes. There was a 19cm lumbar laminectomy scar, with no tenderness to palpation over the lower lumbar spine. Range of motion of the lumbar spine was mildly restricted in all directions. Neurological examination of both lower limbs revealed normal reflexes and power, with decreased sensation in the right L5 and S1 dermatomes, consistent with a persistent right radiculopathy. Examination of the right ankle revealed mild tenderness over the medial aspect of the right ankle, with a normal range of motion of the right ankle and right sub-talar joint and no joint swelling.
Medical imaging included: plain X-rays of the lumbar spine dated 19.5.2005, which showed mild disc space narrowing at L3-4 and L4-5; plain X-rays of the right ankle dated 26.5.1995, which were normal; a nuclear bone scan dated 30.5.1995, which showed a mild increase in uptake in the right ankle in the early perfusion phase, consistent with a sprain, but not a fracture; and a CT-scan of the lumbar spine dated 29.6.1999, which showed a right-sided L4-5 disc prolapse and a mild disc bulge at L5-S1 and an MRI dated 7.9.2005, which showed a cystic disc bulge at L4-5, which [sic] some lateral recess stenosis.
The Panel concluded that the worker suffered from an aggravation of lumbar spondylosis and a sprain of the lateral ligament of the right ankle, as a consequence of the incident occurring on 11.5.1995.
The Panel concluded that the worker may have had persisting low back pain, but made a substantial recovery from his low back condition, such that he was able to return to his normal duties and did not seek any medical attention for four years.
The Panel concluded that the worker suffered a further injury to the back in 1999, resulting in an L4-5 disc prolapse, which was treated with an L4-5 laminectomy on 29.7.1999.
The Panel concluded that the worker currently suffers from persisting low back dysfunction, primarily as a consequence of the L4-5 disc prolapse in 1999 and also suffers mild persisting dysfunction of the right ankle, relevant to the alleged right ankle injury occurring on 11.5.1995.
The Panel assessed the level of impairment of the worker’s back in accordance with Section 91 of the Accident Compensation Act 1985, using the methods of the AMA Guides to the Evaluation of Permanent Impairment (second edition).
The Panel considered the appropriate method to assess impairment of the worker’s thoraco-lumbar spine was by reference to abnormal range of motion in accordance with Tables 50-52 of Chapter One in combination with the impairment assessed pursuant to Tables 53B of Chapter One.
The Panel assessed impairment due to normal range of motion as follows. The Panel used a goniometer to assess the range of motion.
Thoraco-lumbar Spine Movement Table Assessed Range of Motion Whole Person Impairment Flexion
50
60
3%
Extension
50
20
1%
Left Lat. Flexion
51
20
2%
Right Lat. Flexion
51
20
2%
Left rotation
52
20
2%
Right rotation: 52 20 2%
The Panel assessed an 11% whole person impairment due to abnormal range of motion of the thoraco-lumbar spine. The Panel also included an additional whole person impairment of 5% for disc derangement with residuals in accordance with Table 53B of Chapter One.
Using the Combined Values Chart results in a whole person impairment of 15% attributable to the worker’s current back condition.
The Panel noted the submissions provided with the referral as to the linkage between the injury which occurred on 11.5.1995 and the worker’s current condition.
The Panel noted that a CT-scan undertaken in April 1995 was reported to show no evidence of disc prolapse and that following the injury on 11.5.1995, there were no symptoms of sciatica and no investigations for sciatica were undertaken by the worker’s treating orthopaedic surgeon suggesting that a disc prolapse was not suspected at that time.
Following the 1999 incidents however, a CT-scan of the lumbar spine dated 29.6.1999, showed a right-sided L4-5 disc prolapse and mild disc bulge at L5-S1.
The history shows the worker’s back condition to have been quiescent during the intervening four-year period, during which time the worker undertook his normal duties and sought no medical treatment from his general practitioner.
The Panel concluded that while the worker’s current back condition includes some direct effects of the worker’s back injury, which occurred on 11.5.1995 most of the effects arise from the events occurring in 1999.
The Panel concluded that none of the other ‘specific episodes after that date [12 November 1997]’ referred to by the Defendant in its submission are significant to the current condition.
The Panel concluded that the most significant event is that described as occurring in January 1999 where the worker was playing golf. There is nothing in the history, which suggests that this event (or for that matter the recurrence in May 1999 when the worker was getting out of bed) are related to ‘employment after 12 November 1997’ as submitted by the Defendant.
It is these events in 1999 which the Panel concluded are the most significant in the history and which resulted in the L4-5 disc prolapse (as demonstrated on CT-scan undertaken on 29.6.1999), and which was treated by lumbar laminectomy.
The Panel therefore concluded that in assessing the impairment attributable to the worker’s injury on 11.5.1995, it is not appropriate to apportion the worker’s current whole person impairment to take account of the effects of employment on or after 12 November 1997. Taking into account the reduction in the worker’s capacities and potential in the industrial environment and the effects on the worker’s activities of daily living as a result of the intermittent symptoms in the right ankle, the Panel concluded that the worker has a permanent partial loss of use of the right leg of 5%, for industrial purposes.”
By letter dated 28 April 2009 sent, apparently, by facsimile transmission on that day, the employer’s solicitors wrote to the Convenor of Medical Panels[10] as follows (omitting formal parts):
“We refer to the abovenamed matter and to the Medical Panel’s Certificate of Opinion dated 3 March 2009.
We request that the Medical Panel furnish a statement of reasons for the certified Opinion pursuant to section 8 of the Administrative Law Act 1978 (Cth) [sic].
Should you have any questions or points of concern please do not hesitate to contact [name and telephone number supplied].”
[10]Whose position and functions were established by ss 63 – 67 of the Act.
The Convenor replied by letter dated 5 May 2009 as follows (omitting formal parts):
“I acknowledge receipt of your letter sent by facsimile dated 28 April 2009. I am advised that the Medical Panel’s Certificate of Opinion in this matter dated 3 March 2009 was provided to you together with Reasons for Opinion – also dated 3 March 2009, under cover of my letter dated 16 March 2009.
In the absence of any specific and particularised request to the Medical Panel for further reasons for its Opinion, I advise that no other reasons will be provided.
If you have any questions in relation to this matter, please call [name supplied], Legal Manager, on [telephone number supplied].”
I note that the employer’s solicitors’ request for a statement of reasons appears to have been made outside the period of 30 days prescribed by s 8(2) of the Administrative Law Act 1978. Further, it appears that the employer’s solicitors did not take up the Convenor’s implied invitation to send a “specific and particularised request” for further reasons. Neither of those things was mentioned at the hearing before me, but I note that the Panel did not appear and was not represented, it having previously advised that, in accordance with R v Australian Broadcasting Tribunal; ex parte Hardiman,[11] it would submit to such order as the Court might make in the proceeding.
[11](1980) 144 CLR 13.
The Panel’s alleged errors as pleaded by the employer
In the originating motion, the employer pleads the Panel’s alleged errors as follows:
“Jurisdictional error
In determining its opinion to referred Question 2, the Medical Panel fell into jurisdictional error by taking into account considerations it was bound in law to ignore when determining its Opinion.
PARTICULARS
When determining its opinion upon referred question 2, the Panel’s Reasons show that the Panel refused to ‘apportion’ the worker’s current whole person impairment by excluding any current impairment attributable only to events after 12 November 1997, and in particular impairment attributable to an event in January 1999 when the worker was playing golf.
Further, in determining its opinion to referred Question 2, the Medical Panel fell into jurisdictional error by failing to answer the referred question, alternatively, by misunderstanding the jurisdiction it was required to exercise.
Adequacy of Reasons
The Panel fell into error of law on the face of the record in that the reasons given by the Medical Panel in its Reasons for Opinion are inadequate at law.
By failing to give reasons:-
(i)showing that the Panel had disregarded any impairment due only to events after 12 November 1997, and in particular due only to impairment attributable to an event in January 1999 when the worker was playing golf;
(ii)saying why and how the Panel rejected the employer’s Submissions dated 28 November 2008, in particular paragraph 15 thereof, as to the necessity at law to ‘apportion’ a current whole person impairment assessment to arrive at that impairment attributable only to compensable injury occurring on 11 May 1995;
(iii)explaining how, notwithstanding the Panel’s findings as to the significance for the worker’s current back condition of the event in January 1999 when the worker was playing golf, the entirety (as it seems) of the Panel’s current assessment of whole person impairment of the worker’s back was notwithstanding attributable to the injury suffered on 11 May 1995;
the Medical Panel failed to provide Reasons sufficient to show that the Panel had discharged its function lawfully, and failed to show how the Panel had arrived at its certified Opinion.”
The employer’s submissions summarised
The employer submits that the Panel was bound by the terms of referred question 2 to assess the degree of impairment “in relation to the [worker’s] injury to the back allegedly suffered on 11 May 1995”; that, here, “in relation to” must be read as “resulting from or materially contributed to by”; and that that is so because the Panel’s opinion was being sought, as the Panel had been made aware, for the purposes of calculating entitlement to compensation pursuant to s 98, and because it is only impairment resulting from or materially attributable to the alleged compensable injury that may be taken into account in the calculation of entitlement.
The employer accepts that the Panel was entitled to include in its assessment that degree of impairment of which, applying the common sense test of causation, the admitted injury of 11 May 1995 was a cause, whether or not that injury was the only cause of that degree of impairment. In this regard, the employer refers to the judgment of Ashley J (as Ashley JA then was) in Gennimatas v Transport Accident Commission[12]. Similarly, the employer accepts that any impairment contributed to by any consequences or sequalae of the injury of 11 May 1995 could properly be included.[13] However the employer contends that, in fact, the Panel did not find, or did not duly find, that the injury of 11 May 1995 was a cause of all of the permanent whole person impairment of 15% which it assessed in relation to the worker’s current back condition.
[12](2002) 5 VR 547, esp at 557 [52]-[53].
[13]See Western Health v Dr Gallicio and Others [2009] VSC 124 at [13] and cases there cited.
The employer submits that the Panel’s opinion – expressed in the answer to question 2 – that the worker had a whole person impairment of 15% attributable to the injury to the back suffered on 11 May 1995 is inconsistent with its conclusion that “while the worker’s current back condition includes some direct effects of [the back injury of 11 May 1995] most of the effects arise from the events occurring in 1999”.
The employer contends that the Panel’s conclusion that “most of the effects arise from the events occurring in 1999” demanded an apportionment of the assessed level of impairment.
In support, the employer points to the Panel’s observations that the worker made a “substantial recovery” from his low back condition, such that he was able to return to his normal duties and did not seek any medical attention for four years, during which time the back condition was “quiescent”. The employer notes also the Panel’s observation that the worker suffered a “further injury” to the back in 1999, being an injury resulting in an L4-5 disc prolapse, which was treated with an L4-5 laminectomy on 27 July 1999.
In addition, the employer relies on the statements by the Panel that a CT-scan undertaken in April 1995 was reported to show no evidence of disc prolapse and that following the injury on 11 May 1995 “there were no symptoms of sciatica and no investigations for sciatica were undertaken by the worker’s treating orthopaedic surgeon suggesting that a disc prolapse was not suspected at that time”.[14]
[14]The Panel’s comments about sciatica were mistaken. There were symptoms of sciatica shortly after the injury of 11 May 1995 and investigations for sciatica were undertaken accordingly: see CB 67, 92.
The employer points out that the Panel assessed an 11% whole person impairment due to “abnormal range of motion of the thoraco-lumbar spine” and included an additional 5% for “disc derangement with residuals in accordance with Table 53B of Chapter One”.[15] The employer submits that this 5% component, at least, should have been regarded as being exclusively related to the 1999 injury which precipitated the disc prolapse and as being unrelated to the May 1995 injury.
[15]Using the Combined Values Chart this resulted in a whole person impairment of 15% attributable to the worker’s current back condition.
Then, in support or further support of the proposition that the Panel’s allegedly aberrant final conclusion sprang from an error of law as distinct from an error of fact, the employer points to the last five paragraphs of the Panel’s reasons. The employer submits, in effect, that those paragraphs indicate that the Panel construed s 98(6) as permitting the inclusion of all current impairment where a compensable injury suffered before 12 November 1997 was a cause of some of that impairment, as long as any impairment due to employment-related, post-12 November 1997 causes was excluded; and that this was a misconstruction of s 98(6).
Further or alternatively, the employer says, the Panel’s conclusion was insufficiently explained; and the Panel’s reasons were inadequate accordingly. As mentioned above, the employer submitted at the hearing that this amounted to an error of law on the face of the record which could justify the grant of an order in the nature of certiorari, but, subject to any further submissions that may be made, it now seems that Sherlock v Lloyd[16] would preclude acceptance of that submission.
[16][2010] VSCA 122.
Nevertheless, the employer’s alternative claim for an order pursuant to s 8(4) of the Administrative Law Act 1978 that the Panel furnish a further and better statement of its reasons would remain to be considered. The employer said very little about this claim at the hearing, although it did assert, contrary to a submission made in passing by the worker, that an application under s 8(4) of the Administrative Law Act 1978 was not required to be made by summons and could be included with an application for judicial review made by originating motion under Order 56 of the Supreme Court (General Civil Procedures) Rules 2005, as had been done here.
The worker’s submissions summarised
The worker’s submissions may be summarised as follows.
•The question of what degree of impairment is attributable to what injury is a question of fact, not law;[17]
[17]Citing Gennimatas v Transport Accident Commission (2002) 5 VR 547 at 559 [63]; S v Crimes Compensation Tribunal [1998] 1 VR 83 at 89-90.
•The Panel’s answers to questions 1 and 2 in its certificate of opinion and its detailed 7 pages of reasons show that the Panel was alive to its task;
•The Panel found that the worker suffered an injury on 11 May 1995 which resulted in a “back condition” that the Panel described in its reasons (namely, as “aggravation of lumbar spondylosis”). The Panel concluded that the worker “ … may have had persisting low back pain, but made a substantial recovery from his low back condition” and that the back condition was “quiescent” until “these events in 1999” resulted in a disc prolapse;
•Accordingly, it is clear that the Panel concluded that the worker did not make a complete recovery from the 11 May 1995 injury. A “substantial” recovery is not a complete recovery. The Panel paid attention to later events and circumstances, saying that the worker’s current back dysfunction was “primarily” as a consequence of the 1999 injury and that “most of the effects arise from the events occurring in 1999”. However, of great moment, the Panel also concluded that “… the worker’s current back condition includes some direct effects of the worker’s back injury, which occurred on 11.5.1995 … “.
•The Panel apparently had no difficulty with the description of the alleged injury of 11 May 1995 as set out in question 1, namely “injury to the back with disc prolapse at L 4/5 level”. In answering question 1, the Panel stated, in effect, that the nature of the worker’s (current) medical condition relevant to that injury was that the worker was suffering from an “aggravation of lumbar spondylosis”. The employer has not challenged that answer. It establishes that the Panel saw the 1999 golfing incident and the disc prolapse as having merely worsened the worker’s original medical condition (“aggravation of lumbar spondylosis”) referable to the 1995 injury.
•As the employer’s submissions to the Panel disclose, each of the worker’s claims for weekly payments in 1999 and 2005 referred to the May 1995 injury and each was ultimately accepted. It would have been open to the Panel to regard these as admissions by or on behalf of the employer in accordance with Ansett v Taylor[18].
[18][2006] VSCA 171.
•It was open to the Panel to find, as it did, that the injury on 11 May 1995 was a cause of the worker’s current back condition. That being so, there was no need for the Panel to “apportion” between the various other competing events which had also made a material contribution to (or were ‘a cause of’) the worker’s condition;
•Having made its findings concerning the 11 May 1995 injury, the Panel was correct to then further consider whether “employment on or after 12 November 1997” was any cause of the worker’s current back condition. In so doing, the Panel was clearly alive to the separate issue as to whether there was any potential overlap with s 98C of the Act which provides for separate lump sum compensation for injuries referable to employment on or after 12 November 1997.
•If the worker’s back condition was attributable to the 1995 back injury, it remained so notwithstanding other causal influences or factors, which, strictly, became irrelevant. The Panel’s findings, however show that the Panel –
(i)was conscious of the factors raised by the employer and the Act itself;
(ii)did not fail to take into account the written submissions made by the employer culminating in paragraphs 15 and 16 of the employer’s written submissions to the Panel (see further below);
(iii)was alive to its statutory task.
•The medical reports support the Panel’s findings. The medical opinions of treating orthopaedic surgeon Mr Barrett and medico-legal surgeon Mr Russell Miller are of particular relevance. Mr Barrett concluded that the work incident of 11 May 1995 materially contributed to the worker’s current impairment. Mr Miller concluded that the worker’s current clinical status reflected the events of May 1995 and that the subsequent succession of events were related to the initial injury.
•It was plainly open on the evidence for the Panel ultimately to find that the injury of 11 May 1995 gave rise to a whole person impairment of 15%.
•Judicial review cannot be used as a vehicle for an appeal on the merits.[19]
•The reasons of the Panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.[20]
•The reasons are not to be read with a fine tooth comb.[21]
•The employer’s alternative application for an order under s 8(4) of the Administrative Law Act 1978 should not be entertained because it was not made by a separate summons under that Act.[22]
·Any relief to which the employer might otherwise be entitled should be refused in the exercise of the Court’s discretion on the basis that any difficulty or ambiguity in the statement of reasons can be traced to inappropriately expressed written submissions made to the Panel on behalf of the employer.[23]
[19]Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272.
[20]Clarke v National Mutual Life Insurance Ltd [2007] VSC 341 (J Forrest J) at [43].
[21]See the two previous footnotes.
[22]Citing Sherlock v Lloyd [2008] VSC 450 (Kyrou J) at [36], [37], [47]. This submission was not otherwise elaborated upon.
[23]Transcript, 2nd day, p.10, 20.
Consideration
In relation to the employer’s principal contention, namely that the Panel made an error of law (amounting to jurisdictional error) whereby it omitted to “apportion” the worker’s impairment or to exclude some part of it from the assessment, it would not be enough for the employer to show that the Panel’s reasons are so expressed as to suggest the possibility that the Panel proceeded on a wrong view of the law. This Court is not entitled to interfere with the Panel’s opinion unless the Court is satisfied that there was, in fact, a vitiating error.[24]
[24]Cf Portland Properties Pty Ltd v Melbourne and Metropolitan Board of Works (1971) 38 LGRA 6 at 18 (per Smith J) and at 22 (per Adams J); Rumpf v Mornington Peninsula Shire Council (2002) 2 VR 69 at 76-78 [7]-[15]; XYZ v State Trustees Ltd (2006) 25 VAR 402 at 415 [31]; Cosic v Director of Housing [2007] VSC 486 at [20]-[21]; Moyston Court Fisheries [2007] VSC 518 at [54]-[55]; Nicholls v Corlett [2010] VSC 115 at [24].
On the material before the Court, the employer has failed to satisfy me that the Panel did, in fact, make the error postulated by the employer. It is merely possible that the Panel made that error. As indicated below, it is also just possible that the Panel made a different error, being an error that could potentially have disadvantaged the worker but not the employer. However that may be, the employer is not entitled to relief on the pleaded ground of jurisdictional error.
Putting aside for the moment what the parties had put to the Panel, there was no significant disagreement before me as to the proper interpretation of the Act. Both parties were represented before me by senior and junior counsel and solicitors all with extensive experience in accident compensation matters. Neither side was aware of any authority decided directly on the question of the nature of the link that needs to be shown between “injury” and “impairment of the back” for the purposes of a claim under ss 98 and 98A of the Act. Nor have my own researches revealed any such authority. However the parties proceeded on the basis that the corresponding provisions of the Transport Accident Act 1986 considered in Gennimatas v Transport Accident Commission[25] are sufficiently analogous to warrant the transposition to the present context of the conclusion of Ashley J in that case that, under that Act, it is sufficient if the injury in question was, on the common sense test of causation, a cause of the assessed degree of impairment. In Gennimatas,[26] Ashley J said that workers compensation legislation provides a “very imperfect analogy” with the Transport Accident Act 1986, but nevertheless his Honour went on to apply by analogy certain principles of workers compensation law. Further, as senior counsel for the worker points out, in Grech v Orica Australia Pty Ltd[27] the Court of Appeal took a comparable approach to the relationship between compensable injury and its consequences for the purposes of determining whether the consequences amounted to “serious injury” within the meaning of s 134AB(16)(b) of the Accident Compensation Act 1985. Indeed, in Grech[28] Ashley JA observed that the Accident Compensation Act 1985 generally, as with its predecessors, “contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries”. Accordingly, I propose to accept the common position of the parties in relation to causation and to proceed on the basis that it is sufficient if the injury in question is a cause of the relevant degree of impairment.[29]
[25](2002) 5 VR 547 at 557 [52]-[53].
[26]At [64].
[27](2006) 14 VR 602 esp at 616-617 [55]-[58] per Ashley JA with whom Buchanan and Chernov JJ agreed. See also State of Victoria v Collins [1999] 1 VR 215 at 221-222, [14] per Winneke P with whom Brooking JA and Chernov JA agreed; Alcoa of Australia Ltd v McKenna (2003) 8 VR 452 at 472 [62] per Ashley AJA.
[28]At [58]. See also Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219 at [90] per Kellam JA (with whom Neave JA and I agreed); National and General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327 at 332 (per Deane J); Accident Compensation Commission v C E Heath Underwriting and Insurance (Australia) Pty Ltd (1994) 121 ALR 417 (HCA) at 421.
[29]See also and compare Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; Bradshaw v Richardsons, Westgarth & Co Ltd (1931) 24 BWCC 64.
It was also common ground before me that, for the purposes of ss 98 and 98A of the Act as they stood at the relevant time, “[i]mpairment of the back” might be divisible or apportionable as between different injuries or causes or parts of the back and that “the degree of impairment” might likewise be divisible or apportionable.[30] Again, it seems that the parties took Gennimatas[31] to be supportive of that proposition. I see no reason to disagree. I note that in Gennimatas[32] Ashley J treated “degree of impairment” as corresponding to “symptoms”.
[30]Cf Isuzu General Motors Australia Ltd v Jordon (2000) 2 VR 212 at 225 per Phillips JA, citing Howe v Simmons Bedding Co Pty Ltd [1980] VR 177.
[31](2002) 5 VR 547, esp at 562 [77] and [78].
[32]Loc. cit.
It follows, I think, that the parties are agreed (now, at least) that it was open to the Panel to attribute the entirety of the current impairment of the worker’s back to the 1995 injury if, but only if, that injury was a cause of the entirety of that impairment (or, in other words, if that injury was a cause of the entirety of the back symptoms currently suffered by the worker). Conversely, it seems to be common ground that the Panel was required to exclude from the assessment of the worker’s current impairment any part of that impairment of which, in the panel’s view, the injury of 11 May 1995 was not (in any manner) a cause. Again, I would not disagree.
The employer put particular emphasis on s 98(6) of the Act, which provides that compensation under s 98 is payable only in respect of an injury that arose before 12 November 1997, but it seems to me that the propositions stated above do not conflict with s 98(6).
The employer submitted vigorously that the Panel’s reasons disclose or involve a finding that most, or at least some, of the worker’s current impairment was due entirely to the golfing incident in 1999 (and not at all to the 1995 injury). But no such finding is set out expressly in the Panel’s reasons. Nor is any such finding implied with any clarity. Such a finding would, of course, conflict sharply with the Panel’s statement, made in answer to question two, to the effect that the worker has a whole person impairment of 15% “attributable” to the injury to the back suffered on 11 May 1995.
It is all the more difficult to read the suggested finding into the Panel’s reasons because it is by no means clear whether the Panel appreciated or applied any of the abovementioned propositions of law that are now common ground between the parties. It appears that the Panel may have needed greater assistance from the parties (or from elsewhere). Neither in the worker’s written submissions to the Panel nor in the employer’s written submissions to the Panel was any of the abovementioned legal propositions spelt out. Neither party analysed the legislation in the way that appears now to be common ground. Neither party cited any case law to the Panel. The Panel did turn its mind to the matter of causation: it used the word “attributable” in its answer to question 2 and it referred several times in its reasons to the question of “linkage”[33] to the events of 11 May 1995. However, it is just not possible to say with any confidence whether or not the Panel failed to appreciate that it was not at liberty to include any impairment of which the injury of 11 May 1995 was not a cause; or even whether it appreciated that it was at liberty to include all impairment of which that injury was a cause.
[33]A word used in the worker’s submissions to the Panel.
With respect, this situation may well have been brought about by the language of the parties’ written submissions to the Panel, and especially by that of the employer’s submission. The employer submitted to the Panel, in paragraph 3, that the worker was “attributing that any such disability has arisen as a direct result of a fall on 11 May 1995”.[34] The use of the word “direct” was unfortunate. The worker had not used that word in his submissions. Nor had it been necessary for the worker to establish that his impairment had arisen as a “direct result” of his fall on 11 May 1995. An indirect link would have been sufficient, provided that the fall at work could be described as a cause of the relevant impairment. Paragraph 5, which followed shortly after the reference to “direct result”, also had a tendency to mislead the Panel in the same way. Paragraph 6 may have been literally true, in that an “injury”[35] to the worker’s back after 12 November 1997 could not be included in any assessment, but this paragraph would have been more helpful to the Panel had the employer distinguished between “injury” and “impairment”. In paragraph 15, the employer maintained that, if the Panel determined that the worker had a compensable injury to his back as a result of employment with the employer, the Panel was “required” to further determine whether employment prior to 12 November 1997 had been a “significant contributing factor” to “a” permanent impairment to the back; and, if so, to further determine whether employment and/or other episodes after 12 November 1997 had also been a “significant contributing factor” to “a” permanent impairment to the back; and, if so, to make an apportionment between periods pre and post 12 November 1997. Paragraph 15 was inaccurate in several respects. It will suffice to mention some of them. Given compensable injury suffered before 12 November 1997, there was no occasion to consider whether employment before 12 November 1997 (or the compensable injury itself) was a “significant contributing factor” to permanent impairment. No such test was posited by the relevant provisions of the Act in relation to the link between “injury” and “impairment”. Nor was there any occasion to consider whether events after 12 November 1997 had also been a “significant contributing factor”. Much less was the Panel “required” to do those things. Nor was the Panel “required” to make an apportionment between the two periods. If the Panel were to find that an employment-related, post-12 November 1997 injury had contributed to the impairment, it might have had a discretion to apportion the impairment between the two periods in order to take account of the operation of s 98C as from 12 November 1997.[36] But if the Panel were not to so find (and it did not) no question of apportionment would arise. No question of apportionment (as distinct from possible exclusion as to part) could have arisen in relation to any injury caused by the golfing incident.
[34]CB 40.
[35]In the statutory sense.
[36]See and compare Gennimatas v Transport Accident Commission (2002) 5 VR 547 at 558-559 [63], 562 [77]-[78].
Unfortunately these particular submissions of the employer may well have misled the Panel. They may account for the fact that in the fifth last paragraph of the Panel’s reasons the Panel confined itself to “direct” effects of the worker’s back injury. They may also account for the Panel’s puzzling use, three times, of the word “significant” in the fourth last, third last and second last paragraphs. The employer’s submissions may well have drawn the Panel into a comparison of the relative strengths of competing causes and away from the real question, namely whether any part of the current impairment of the worker’s back was or was not wholly attributable to a cause other than the injury of 11 May 1995. It seems to me that this is a more likely explanation for the language of the last five paragraphs of the reasons than the employer’s competing theory, namely that the Panel somehow came to believe[37] that it could retain or include in its assessment parts of the impairment that it thought had no connection at all with the injury in question, provided only that those parts were not caused by employment-related injuries occurring on or after 12 November 1997.
[37]Despite the absence of any suggestion to this effect by the worker.
In any event, the Panel simply did not express any finding that any part of the worker’s impairment was wholly due to a cause other than the injury of 11 May 1995 (or to events occurring on or after 12 November 1997); and it would be quite unsafe to infer any such finding simply from the language used by the Panel in its reasons.
Nor should such an inference be otherwise drawn.
It is true that the Panel did not spell out, in medical terms or otherwise, exactly how the 1995 injury operated as a cause of the entirety of the current impairment. The Panel did not, for example, say specifically that the aggravation of lumbar spondylosis which occurred in 1995 predisposed the worker to the disc prolapse which occurred in 1999. The Panel’s approach would have been much clearer had it addressed this aspect. On the other hand, the Panel might have thought that this matter went without saying. There were reports from eight doctors, including treating doctors, before the Panel. Included was a medico-legal report from Dr Shannon obtained by the employer. It expressed the view that the worker did not injure his back at all in the 1995 incident. Given the Panel’s answer to the first question, it must have rejected Dr Shannon’s report (without saying so expressly). Several other reports, including medico-legal reports obtained by the employer, expressly supported the view that the entirety of the worker’s current back symptoms were referable to the 1995 injury. The remaining reports were at least consistent with that view. The Panel’s silence on this point is not inconsistent with the proposition that it accepted this view.
Contrary to the employer’s submission, I do not think that the Panel was obliged to distinguish between the assessment of 11% for restriction of movement pursuant to Tables 50-52 of Chapter One of the Guides and the assessment of 5% for disc derangement with residuals pursuant to Table 53B of Chapter One. If, as seems entirely possible, the Panel considered that the 1995 injury led on to the disc prolapse, then both items were appropriately included.
Conclusions
For these reasons, I am not satisfied to the requisite extent that the Panel made the error of law postulated by the employer. That is to say, I am not satisfied that the Panel found that some part of the worker’s impairment was entirely due to a cause other than the injury suffered on 11 May 1995. I am not satisfied that the Panel nevertheless included such a part of the impairment in the assessment due to some misunderstanding or misapplication of the law. The complaint of jurisdictional error therefore fails.
On the other hand, the Panel’s reasons for its opinion are ambiguous and unclear in the respects to which I have referred. The main deficiencies are the omission to state the Panel’s understanding of the effect of the relevant provisions of ss 98 and 98A as in force at the relevant time and the omission to spell out the nature of any perceived causal connection between the 1995 injury and the entirety of the current impairment to the worker’s back. Had the Panel’s statement of reasons been produced in response to a request under s 8 of the Administrative Law Act 1978 then, strictly speaking, it would not have satisfied the requirements of that section. It would not have been enabled the parties and the Court to see whether the certified opinion did or did not involve an error of law. However, as already mentioned, subject to any submissions the parties may wish to make about the effect of Sherlock v Lloyd[38], the only possible consequence of this kind of deficiency would seem to be that the employer might have a claim for a further and better statement of reasons pursuant to s 8(4) of the Administrative Law Act 1978.
[38][2010] VSCA 122 (28 May 2010).
Further issues
On the other hand, as indicated above, and subject to any further submissions that may be made, it appears that the statement of reasons was produced voluntarily and without any request under s 8 having been made within time; and, further, that the employer did not take up the Panel’s implied invitation to submit a “specific and particularised” request for further reasons. The parties who appeared at the hearing did not advert to these matters. However it may not be appropriate for me simply to proceed on the basis that these points have not been taken by the worker. After all, any order under s 8 would necessarily be directed not to the worker but to the members of the Medical Panel (or, perhaps, to the Convenor). I may have no power to make an order under s 8(4) in the absence of a timely request under ss 8(1) and (2).
Likewise, as mentioned above, there may be a question whether an order under s 8(4) can or should be made in the absence of a separate application made by summons under the Administrative Law Act 1978[39]. Once again, this question received very little attention at the hearing, the parties having directed themselves principally to the allegations of jurisdictional error and error of law on the face of the record.
[39]See Sherlock v Lloyd [2008] VSC 450 (Kyrou J) at [36], [37], [47]. However, I should not be taken as indicating any view on that question.
Subject to any further submissions by the parties who appeared, I am presently minded to direct that all of the parties, including the first three defendants (the members of the Panel), should be given a further opportunity to be heard on these additional points. Of course, it may transpire that the employer does not wish to press for the delivery of a further and better statement of reasons, in all the circumstances. That would of course obviate the need for any direction of the kind just mentioned.
If the application is pressed, the discretionary issues to which I have also referred above would need further consideration. There appears to be merit in the worker’s contention that the problems with the present statement of reasons may be traceable principally to the employer’s written submissions to the Panel. Further, questions may arise now as to the utility of any further and better statement of reasons or as to the availability of the members of the Panel or their capacity to produce a further and better statement at this stage. I would be prepared to hear further submissions on each of those matters, as well.
I will also hear the parties on the form of order that may be appropriate to give effect to these reasons and on the question of costs.
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