Collins v Nave
[2008] VSC 85
•28 March 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7108 of 2007
| GREGORY COLLINS | Plaintiff |
| v | |
| DR ROBERT NAVE and DR FRANCIS GALLICHIO and DR CAROL NEWLANDS and MR ROBIN HOOPER and AIR LIQUIDE HEALTHCARE PTY LTD | First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2008 | |
DATE OF JUDGMENT: | 28 March 2008 | |
CASE MAY BE CITED AS: | Collins v Nave & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 85 | |
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Administrative law – Accident compensation – Judicial review of decision of Medical Panel – Whether jurisdictional error – Adequacy of Panel’s reasons – Exercise of discretion – Remitter to the Convenor of Medical Panels.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.G. Brookes SC and Mr N.D. Horner | Workforce Legal Lawyers |
| For the First to Fourth Defendants | No appearance | |
| For the Fifth Defendant | Mr M. O’Loghlen QC and Mr M. Fleming | Dibbs Abbot Stillman |
HIS HONOUR:
Introduction
This is yet another application to review the decision of a Medical Panel in an accident compensation setting.
The plaintiff, Gregory Collins, suffered an injury on 26 March 2001 in the course of his employment with Air Liquide Healthcare Pty Ltd (“the employer”), the fifth defendant. A claim for payments under the Accident Compensation Act 1985 (“the Act”) was accepted and, ultimately, the plaintiff was examined by three medical practitioners for the purpose of determining, inter alia, whether he was entitled to a lump sum pursuant to s.104B of the Act[1].
[1]Dr Henry Hammond (ENT specialist), Dr Stephen Stern (psychiatrist) and Dr David Gale (ophthalmologist).
QBE, the agent (“the agent”) of the Victorian WorkCover Authority (“the Authority”), after receipt of medical reports from the three examiners, determined that the Authority was liable in respect of, inter alia, an injury to the ears and that the plaintiff had a 15% whole person physical impairment[2]. This provided the plaintiff with an entitlement to $20,600 as calculated by reference to provisions of the Act[3].
[2]Exhibit PJM2 to the affidavit of Paul Mulvany sworn 5 July 2007 (“Mulvany’s affidavit”).
[3]s.98C and s.98E of the Act.
The plaintiff accepted the finding of liability but disputed the 15% physical impairment assessment.[4] Pursuant to the Act[5], it was then necessary for the question of the degree of impairment to be referred to a Medical Panel, as it was.
[4]Exhibit PJM3 to Mulvany’s affidavit.
[5]s.104B(9) of the Act.
A Medical Panel (“the Panel”), on 4 May 2007, concluded that the plaintiff had a 0% whole person impairment.
In other words, having received an impairment assessment of 15% made by the agent with a resultant offer of over $20,000, the plaintiff’s entitlement was reduced to nil by the Panel. Subject only to judicial review, the Panel’s decision is final, as the plaintiff was advised by the agent:
“Should you dispute the Assessment this office will refer all medical questions to the Medical Panel within 14 days of your advice. The Medical Panel’s decision will be final and binding”.[6]
[6]Exhibit PJM2 to Mulvany’s affidavit.
The plaintiff now seeks judicial review of the opinion of the Panel, relying upon what have become relatively standard grounds in applications such as this, namely, jurisdictional error constituted by a failure by the Panel to take into account relevant considerations and a failure by the Panel to provide adequate reasons for its decision.
Background facts
The plaintiff made a claim pursuant to the Act on 29 June 2004 for injury to his “ears, head and whole body” that occurred when a gas cylinder exploded at work on 26 March 2001. The claim was accepted by the employer.
The plaintiff subsequently made a claim for permanent impairment pursuant to s.98C of the Act in respect of injuries allegedly sustained as a result of the explosion. The asserted impairments were: damaged auditory nerve; cochlear hair cell damage; tinnitus (pulsatile); sleep disorder; nausea; vertigo/disequilibrium, flash burns to eyes, post-traumatic stress[7].
[7]Exhibit PJM1 to Mulvany’s affidavit.
On 15 February 2007 the plaintiff was informed by the agent that liability had been accepted for ears, eyes and psychiatric condition, and that the claimed auditory nerve damage, cochlear hair cell damage, tinnitus, vertigo[8] and nausea had been taken into account when assessing the injury to the ears. The plaintiff was also advised that the whole person impairment when assessed using the mandated 4th edition AMA Guides (“the Guides”) was 15%[9]. The plaintiff then disputed that assessment[10].
[8]Vertigo is also referred to in the Guides as equilibrium disturbance.
[9]Exhibit PJM2 to Mulvany’s affidavit.
[10]Exhibit PJM4 to Mulvany’s affidavit.
The Panel, comprising the first, second, third and fourth defendants, was convened to give its opinion in respect of the referred questions (set out below).
Under cover of letter dated 10 May 2007 the Medical Panel provided its Certificate of Opinion as well as Reasons for Opinion[11].
[11]The Opinion of the Medical Panel is Exhibit PJM6 to Mulvany’s affidavit and the Reasons are Exhibit PJM7 to Mulvany’s affidavit.
The questions and opinions in response were as follows:
“Question i): What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with section 91, and is the impairment permanent?
Answer:In the Panel’s opinion the worker has a 0% whole person impairment resulting from the accepted physical injuries to the ears and eyes when assessed in accordance with section 91 of the Act. The degree of impairment is permanent.
The Panel is also of the opinion that there is a 0% psychiatric impairment resulting from the accepted psychiatric condition injury, when assessed in accordance with Section 91(2) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act. For the purposes of Sections 134AB(3) and (15) of the Act there is a combined whole person impairment of 0% resulting from the accepted physical and psychiatric injuries. The degree of impairment is permanent within the meaning of the Act.
Question ii): Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in section 98E(1)?
Answer:No.”
(My emphasis).
On 4 July 2007, the plaintiff issued an Originating Motion seeking an order in the nature of certiorari quashing the opinion of the Panel and further seeking the remitter of the medical questions to a differently constituted Panel.
Although both the original assessment by the agent and the determination by the Panel involved a consideration of the three different conditions (namely, eyes, ears and psychological impairment), the plaintiff only agitated at the hearing before me the question of whether the Panel’s decision relating to the damage to the ear was attended by error. Accordingly, any issue relating to the assessment of the psychological condition of the plaintiff or his eyesight can be put to one side.
The plaintiff and the employer were represented by counsel at the hearing of this application. The first to fourth defendants, the members of the Panel, adopted a Hardiman stance and were not represented[12].
[12]The Court was advised by letter of the Panel’s approach.
The referral to the Medical Panel
Section 104B(9) of the Act requires the agent to refer the medical question as to degree of impairment to the Panel within 14 days of the worker advising the agent that he or she disputes the assessment. A proforma document is then completed by the agent which identifies the accepted injuries and poses the relevant medical questions. It also encloses a schedule of attached reports and other material.
That schedule referred to the following accompanying documentation (which was provided to the Panel):
(a) The Medical Panel referral document.
(b) The claim form completed by the worker.
(c) The offer and acceptance letter from the agent to the worker and the worker’s response.
(d) Twelve relatively short medical reports relating to the plaintiff of which the following related to his hearing complaints:
(i) a report of Dr Rohatgi, an ear, nose and throat surgeon;
(ii) a report of Mr Purser, an ear, nose, throat, head and neck surgeon;
(iii) a report of Dr Hammond, an ENT specialist engaged by the agent;
(iv) a report of Kathryn Pawlik, an audiologist;
(v) a report of Angela Hatfield, an audiologist;
(vi) a report of Melanie van de Schoot, an audiologist;
(vii) a report of Dani Tomlin, an audiologist.
In addition to the material provided by the agent, the worker filed submissions for consideration by the Panel. I shall return to the detail of those submissions in due course. No submissions were filed on behalf of the Authority or the employer.
The medical material provided to the Panel
The plaintiff had little, if any, treatment for his asserted hearing injury for nearly three years after the date of the explosion. On 18 March 2004, the plaintiff saw Dr Rohatgi complaining of tinnitus in his right ear off and on for two years with dizzy turns. The doctor thought the dizzy turns were atypical and concluded:
“So far no definite diagnosis is made, and he was bulk billed as a Medicare patient.”
In April 2005 the plaintiff saw Mr Purser at his clinic. Mr Purser took a history of the plaintiff being aware of ringing in both ears the day after the explosion at work which had persisted, although the plaintiff’s actual hearing had returned to normal. Mr Purser arranged for audiometric tests to be carried out. He concluded as follows:
“I considered that the damage sustained was consistent with his exposure to instantaneous extreme noise from the explosion such as occurred at his workplace in May 2001. … Reiterating Mr Collins’ condition, I believe that he has suffered cochlear hair cell damage of a permanent nature which is consistent with noise damage suffered as a result of his workplace exposure to exploding gas cylinders in May 2001. The cochlear damage is permanent and no treatment is possible for this.”
On 5 December 2006, after an examination of the Plaintiff requested by the agent, Dr Hammond reported as follows:
“1.This patient has sustained an injury at work on 26 March 2001 – which is an acute acoustic sensori-neural hearing loss – i.e. industrial deafness.
2.The hearing loss is due to the accident at work as described above – and noise from the above incident at work is a significant contributing factor.
…
5.The injury would not have occurred if this employment had not taken place.
6.It is now an impediment to employment – due to persistent post-accident symptoms of tinnitus, hearing loss and vertigo.
7.The hearing loss though minimal – is permanent i.e. stable; - but not a total loss.
8.And there is no hereditary factor present – nor any lifestyle factor and no outside of workplace factor.
9.All of the loss extant has occurred post 1-9-85; likewise post 12-11-97.
10.The tinnitus is virtually certain to be permanent.”
Dr Hammond solely utilised Chapter 9 of the Guides – “Ear, nose, throat and related structures” to calculate the permanent impairment. He advised that liability should be accepted and then assessed the impairment for three different aspects of the plaintiff’s asserted ear disability – namely tinnitus (5%) and vertigo (10%) at a total of 15%; the low level of hearing loss (2.3%) required it to be disregarded as provided by the Act.[13]
[13]S. 91 (3) (a) of the Act
This summarises the expert ENT evidence. It is not necessary to address a number of the other medical reports related to the plaintiff’s hearing, save to note that testing did not disclose evidence of any significant hearing loss.
It is to be observed, at this time, that there was nothing in the opinions of the three ENT specialists which pointed to a conclusion that the assessable impairments of tinnitus and vertigo were anything other than the consequences of physiological damage caused by the explosion. True it is that Dr Rohatgi made no definite diagnosis; nor did Mr Purser’s report specifically identify the tinnitus as being related to the explosion; it is, however, in my view, implicit in Mr Purser’s report that there was such a relationship and that it had a physical basis.
In summary, whilst hearing loss per se was disregarded, there was no suggestion in any of the ENT reports, and particularly that of Dr Hammond, that the plaintiff’s vertigo and/or tinnitus had a psychological basis.
The submissions made by the worker to the Panel
As part of the material provided to the Panel, the worker submitted to the Panel that it ought to consider a number of matters in determining the worker’s impairment assessment. Some can be ignored, as they related to the worker’s psychiatric condition. However, the following was also adverted to:
“4. The worker also suffers with extended bouts of dizziness and vertigo. These episodes can last up to a month, and again have a profoundly disabling effect, which also impact the worker’s ability to return to his former employment.
5. A feature of the worker’s ‘pulsatile tinnitus’ condition is that any form of physical exertion which raises the worker’s heartbeat or pulse, including sexual activity, intensifies the sensation of ‘rhythmic beating’ within the ears. This in turn precipitates episodes of dizziness and nausea. Accordingly, the worker is limited to engaging in light to moderate physical activity.
6. It is submitted that an assessment for bi-naural tinnitus, and vertigo/disequilibrium under Chapter 9 of the AMA Guides (which Dr Hammond considered in his assessment for the Insurer) is appropriate.
7. We make no criticism of Dr Hammond’s assessment. However, it is submitted that the worker’s tinnitus conditions also require an assessment under Chapter 4 of the AMA Guides, specifically the section relating to ‘Episodic Neurological Disorders’ (p.142). It is apparent the worker suffers with a ‘Sleep Arousal Disorder’, which seriously impacts his ability to undertake the tasks of daily living. The worker experiences reduced daytime attention, as well as irritability and depressed mood. Dr Hammond did not consider ‘Sleep Arousal Disorder’ in his assessment.” (My emphasis.)
The Panel therefore had a specific submission requesting that it accept Dr Hammond’s assessment of the Guides’ Chapter 9 impairment and asking it to consider assessment of the plaintiff’s impairment under the Guides’ Chapter 4.
The Certificate of Opinion and the Reasons provided by the Panel
The Panel reached a conclusion of 0% whole person impairment.
The Panel’s reasons, limited to consideration of the ear injury, were as follows:
“The worker told the Panel that he was loading his vehicle with oxygen cylinders and after opening a pallet gate and lifting a cylinder out, he caught the cylinder tap and valve on a protuberance and it exploded.
He said that the following day he resumed his work and felt normal, but next day he noticed that his hearing was disturbed and he noticed increasing ringing in the ears. He said that he consulted a medical practitioner who assessed his burns and reassured him about the ringing in his ears.
He said that in mid June 2003 he felt exhausted, was jumpy and irritable, was frustrated and short tempered with his wife and his children. He became tremulous and anxious, became vigilant, and ‘got shaky’ when he was driving or winching his four wheel drive vehicle. His sleep was disturbed and the ringing in his ears became intrusive and louder. He said that his hearing was disturbed by the ringing and hearing the television became more difficult. He said that he changed his diet and exercised, but after a few minutes exertion his ringing ears pounded in his head. He was not thinking about his accident and he consulted his treating medical practitioner, exercise was not helping and he was referred for specialised ear nose and throat assessment to an otolaryngologist. He was suffering anxiety and panic attacks, he was ‘trembly and shaking’ and although he took sedatives his sleep remained disturbed and he was having ‘panic attacks all night’. He said that he went on for a further three months and then sought out a further medical opinion because his ringing hears had become ‘pulsatile’.
He also said that he sought out a further ear nose and throat surgeon’s opinion because his ringing ears began to be associated with dizzy spells and balance problems. He said that it was suggested that he could be developing Meniere’s disease. He said that after imaging studies of the brain and audiometry he was reassured that his tinnitus and the description of its pulsatile character, was happening because his auditory nerves were sensitised.
He said that the ringing in his ears, his nervous condition and his nausea continued and is now constant. He worked for a further two years, he took four weeks off to rest and then he resumed his work again for about six months and then he felt exhausted. He reduced his hours, he still feels irritable and yells at family over nothing. He lies around, cooks, but does little else. He does not know what his future holds.
Ear nose and throat examination by the Panel revealed that both tympanic membranes were normal in appearance. Pure tone audiometry showed bilateral moderate hearing loss which was seen only in the high frequency range. The Panel noted the history of two clusters of episodes of benign postural positional vertigo in the past, but there was no evidence of inability to perform complex activities. There was no family history of hearing disorders.
The Panel considers the worker is not suffering from any hearing loss, tinnitus or disturbance of equilibrium, relevant to the accepted physical injury to the ears. The Panel considers the high frequency range hearing loss is consistent with exposure to noise over a long period and is not consistent with traumatic damage to the auditory nerve on 26 March 2001.
There was no evidence of a Post Traumatic Stress Disorder. The Panel considers his complaints of sleep disturbance and balance disturbance, as well as the complaints about the intensity of his tinnitus are a manifestation of his psychiatric condition.
As the Panel considered the worker’s hearing loss, tinnitus and complaints of balance problems do not result from any traumatic damage to the auditory nerve on 26 March 2001, the Panel concluded there is no impairment resulting from the accepted physical injury to the ears, when assessed in accordance with the instructions regarding tinnitus on page 224 of Section 9.1 of Chapter Nine or the criteria for vestibular impairment in Section 9.1c of Chapter Nine.” (My emphasis).
The following matters are to be noted in relation to the Panel’s reasons:
· First, it is clear that the Panel regarded the cause of the plaintiff’s symptoms of vertigo and tinnitus as being psychological and therefore not covered by Chapter 9 of the Guides.
· Second, there is no reference in the reasons to the submissions made on behalf of the plaintiff in relation to assessment under Chapter 4 of the Guides.
· Third, there is no reference to the opinions of either Mr Purser or Dr Hammond and their respective conclusions.
· Fourth, whilst it seems clear that the Panel discounted traumatic damage to the auditory nerve as the cause of any auditory disturbance, vertigo or tinnitus, there is no explanation as to the basis upon which the Panel rejected the contention that the conditions of vertigo and tinnitus were physical in origin. Moreover, the Panel did not deign to explain why Dr Hammond’s assessment at 15% physical impairment, in particular, was wrong (as it had to be given the Panel’s conclusion); nor did it address Mr Purser’s conclusion that there was cochlear hair cell damage to the ear.
· Fifth, although not strictly relevant for the purpose of the impairment assessment[14] (or for the determination of this application), the explanation that any hearing loss was due to long-term exposure to noise seems to be (but may not be) related to the audiometric results; it is not however consistent with any history from the plaintiff. Nor does it ever appear to have been countenanced by any of the other ENT specialists who reported on the plaintiff’s condition.
· Sixth, although taking an uncontradicted history from the plaintiff that his symptoms of ringing in the ears (tinnitus) came on directly after the explosion the Panel did not explain why such a condition was psychological rather than physical.
[14]The measured impairment loss was too low to qualify for an impairment assessment: s. 91(3)(a) of the Act.
Principles: Adequacy of Reasons
The principles to be applied in determining an application such as this (where there is a dispute as to the adequacy of reasons) have been discussed on many occasions by members of this Court. Last year on two separate occasions, in Clarke v National Mutual Life Insurance Ltd & Ors[15] and Moyston Court Fisheries Ltd v Malios & Ors,[16] I dealt with the principles which I considered were relevant to judicial review of a decision of a Medical Panel involving questions of jurisdictional error[17] and the adequacy of reasons[18]. I adopt those propositions in the determination of this application.
[15][2007] VSC 341.
[16][2007] VSC 518.
[17]See Moyston Court Fisheries at paras 42-47.
[18]At paras 59-77.
This year Pagone J in Davidson v Fish & Ors[19], Kaye J in Amendola v Coles Supermarkets & Ors[20] and Osborn J in Bluescope Steel Limited v Niselle & Ors[21] have considered decisions by Medical Panels under the Act and the Wrongs Act (Amendola) and their amenability to judicial review.
[19][2008] VSC 32.
[20][2008] VSC 36.
[21][2008] VSC 72.
In Moyston I said as follows:
“I therefore accept the principle that the reasons of a medical panel must disclose a discernable path of reasoning leading to the opinion ultimately reached by a panel and provided to the Court. Moreover, in some, not necessarily all, cases it will be necessary for the panel to state why it did not accept a contrary opinion either as to diagnosis or as to the relationship between the injury and the particular work activities. As Ashley J pointed out in Kamener, the reasons will be shaped by the issues. It is appropriate, now, to return to the reasons provided by this panel. I do so bearing in mind the admonitions of the High Court as to the examination of opinions given by a non-lawyer decision-maker.” (My emphasis)[22].
[22]At para 78
Subsequently, in Davidson,[23] Pagone J, in dealing with a question of adequacy of reasons in the context of a Medical Panel opinion, said as follows:
“The importance of giving reasons may flow in part from the need of a court and the parties to see that the Panel arrived at its decision in accordance with its statutory functions but also from the very significant consequences which flow from an opinion given by a medical panel by force of the provisions of the Act.” (My emphasis).
[23]At para 6
Application of these principles to this case:
Although judicial review of the reasons of a tribunal is to be undertaken cautiously and not over critically, the facts of this case highlight the need for a Medical Panel in an appropriate case to provide a proper explanation as to why it has reached a certain decision and, of equal importance, to explain to the parties why, in a case such as this, it has rejected contrary contentions in coming to its conclusion.
The plaintiff suffered an accepted injury from an event at work. As a result of impairment assessments carried out by the agent, he had received an impairment assessment of 15% and a not insignificant sum was then allocated as a result of that assessment.
There was nothing in the submissions of the plaintiff to the Panel which indicated that Dr Hammond’s opinion was incorrect in fixing the figure of 15%. Rather, what was contended by the plaintiff was whether an additional element should have been allowed which may have been overlooked by Dr Hammond.
The plaintiff was not given any indication by the Panel that it proposed to reduce, indeed abolish, the original impairment assessment. Accepting for the moment (and there may be argument about this) that the Panel was entitled to do so without notice, it was, in my view, incumbent upon the Panel to provide an adequate explanation as to why it rejected Dr Hammond’s opinion, particularly in the light of Mr Purser’s opinion, which in general terms was supportive. No other doctor had previously suggested (either in terms or implicitly) that the plaintiff’s tinnitus and vertigo were non-organic in origin. To the contrary, the basis of Dr Hammond’s opinion was that such conditions were patently physical, with the explosion causing physical damage (physical damage also being identified by Mr Purser). In those circumstances, simply concluding that the ear condition was psychiatrically-based and not providing an explanation for the rejection, at the least, of Dr Hammond’s opinion (given that this was the genesis of the plaintiff’s entitlement) was inadequate.
This case, in my view, falls within the “new” diagnosis type of case noted by Osborn J in Bluescope Steel Limited v Niselle & Ors.[24]. As I have said the Panel should have explained why it rejected the opinion of Dr Hammond particularly in the light of the plaintiff’s submissions which relied upon his opinion but sought consideration of the Plaintiff’s impairment under another chapter of the Guides.
[24]Supra at para 85.
This consideration demonstrates another failing on the part of the Panel in its provision of reasons. At no point did it deal with the submissions made by the plaintiff in relation to an assessment under Chapter Four of the Guides. Although the answer may be, as submitted by Mr O’Loghlen QC, who appeared with Mr Fleming for the employer, that the finding of a psychiatric injury as being the cause of the worker’s tinnitus condition negated the need to consider Chapter Four of the Guides, it was highly undesirable (and, indeed, wrong, in my view) for the Panel simply to ignore in its reasons a submission specifically asking it to consider another aspect of the Guides. Indeed, as I describe later, I am unable to conclude confidently that the Panel ever took this matter into account, although I accept that its rejection of the plaintiff’s condition as having a physical basis might explain its failure to do so.
I return to what was said by Pagone J in Davidson:
“The reason for the omission of some fact, issue or submission may be clear from the circumstances of the case without the need for all facts, issues and submissions to be dealt with specifically and expressly. The obligation to give reasons is not a requirement merely to have them. The requirement to give them focuses upon their expression and communication to those who receive them: what must occur is an exposition of the reasoning process for the reader so that the reader can understand how and why the writer’s conclusion was reached.”[25]
[25]At para 12.
In this case, the problem is, to an extent, hidden. I think that it is clear to any reader of the Panel’s reasons that the Panel, as a result of its examination of the plaintiff and its consideration of the relevant tests, concluded that there was no physical basis for the plaintiff’s tinnitus and vertigo. However, in a case where the Panel was not merely tinkering with the impairment assessment or adjusting it but effectively destroying any entitlement to compensation that the plaintiff may have under s.98C and s.98E of the Act, it was necessary for it to explain to the reader and the parties why it rejected the opinion of Dr Hammond, implicitly supported by Mr Purser. Rather, it acted upon its own view of the evidence without explaining in any shape or form why a competing view was rejected, particularly when that competing view was the basis for the plaintiff’s entitlement to compensation under the Act.
In doing so it failed to provide adequate reasons for its opinion.
I repeat what I said in Moyston Court Fisheries. Standard form medical reports dressed up as reasons in certain cases will not satisfy the legal requirement to provide adequate reasons when deciding issues which are of real significance to the parties, particularly given the finality of the decision by the Panel.
In my view, the failure by the Panel to provide adequate reasons constitutes an error of law.
Jurisdictional error: Failure by the Panel to take account of relevant considerations
Given the conclusion I have reached in relation to the adequacy of the reasons, it is not strictly necessary for me to deal with the issue of jurisdictional error.
However, it may be of assistance to the parties if I indicate my view on this point.
I do not accept the contention of the plaintiff that the Panel did not have regard to the medical material provided to it, including the reports of Dr Hammond and Mr Purser. Whilst it may be that the Panel’s statement that it had read the material provided to it is, as Mr Brookes contended “mantra”, there is, nevertheless, no proper basis to conclude that the Panel did not, as it stated it had, taken into account the array of medical material provided to it. The lack of reference to this material does not and cannot lead to the inference that the Panel did not consider it.[26]
[26]See the analysis by Osborn J in Bluescope Steel Limited v Niselle & Ors [2008] VSC 72 at paras 60-69.
However, I am not as confident that the Panel considered the submissions filed on behalf of the worker – despite this being listed in the documents considered by the Panel. This falls into a different category to that of the medical material, and the failure to advert to those submissions at all in the reasons is, in my view, a singular omission. One would have thought that a Panel confronted with a detailed submission requesting that it consider a separate chapter of the Guides not considered by the original assessor would have adverted to this matter in its decision. To simply leave it unaccounted for is indicative (but not necessarily conclusive) of the fact that it probably did not consider the submission. I do not regard the employer’s submission that the Panel’s ultimate conclusion that there was no physiological basis for the condition as necessarily resolving the issue, although it may, as counsel contended, have been a valid reason for a court not to exercise its discretion to grant prerogative relief in the event that this was the only discernible error.
I need say no more about this issue given my decision in respect of the adequacy of the Panel’s reasons.
Resolution of the application
I am not persuaded that there is any good discretionary reason to refuse the plaintiff relief in the form of certiorari that he seeks.
The question, then, is the appropriate course to be taken once the Panel’s decision is quashed. In Clarke, I briefly explained some of the considerations governing the appropriate course to be taken once the decision was quashed. In Davidson, Pagone J dealt extensively[27] with the authorities relevant to the question of remitter. I adopt, with respect, what was said by Davies and Foster JJ in Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal[28] in which their Honours explained the reasons for remitting a decision to a different Panel or member:
“This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as reasonably constituted could be worthless, for the members’ views had been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for hearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal”.[29]
[27]Supra paras 14-18.
[28](1990) 26 FCR 39.
[29]At 42-43 and referred to by Pagone J at para 16 in Davidson.
The need to remit this matter to a fresh Panel is reinforced by what I was told from the Bar table: at least one of the members of the Panel has retired.
In the circumstances and given, in particular, the matters I have adverted to, I think it appropriate that the matter be determined by a different Panel. Accordingly, the matter should be referred back to the Convenor and be determined by a differently constituted Panel.
Orders
Subject to hearing any submissions counsel wish to make I propose to make the following orders:
(a) That the decision of the Medical Panel made on 10 May 2007 be quashed.
(b) That the questions be referred back to the Convenor of Medical Panels for determination by a differently constituted Panel.
I will determine the question of costs upon application by the parties.
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