Drazinic v Gallichio
[2013] VSC 409
•13 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 6641
| BISERKA DRAZINIC | Plaintiff |
| v | |
| DR FRANCIS GALLICHIO, MR MICHAEL JOHNSON AND GRACE McKELLAR CENTRE (BARWON HEALTH) | Defendants |
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JUDGE: | GINNANE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2013 | |
DATE OF JUDGMENT: | 13 August 2013 | |
CASE MAY BE CITED AS: | Drazinic v Gallichio and Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 409 | Revised 14 August 2013 |
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ADMINISTRATIVE LAW – Accident compensation – Compensation for medical and like expenses – Medical Panel – Medical questions as to worker’s medical condition and whether medical services appropriate or adequate – Panel failing to consider part of plaintiff’s medical condition – Failing to provide adequate reasons – Accident Compensation Act 1985 ss 5(ac), 67, 68, 69.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC with Mr G Wicks | Slater & Gordon Ltd |
| For the Third Defendant | Mr M F Fleming SC with Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
This proceeding concerns an opinion given by a Medical Panel in response to questions concerning the plaintiff’s medical condition and whether particular medical services were appropriate and adequate for her condition. The plaintiff alleges that the Medical Panel made jurisdictional errors in performing its function and seeks judicial review of its determination.
In February 1990, the plaintiff suffered a low back injury whilst mopping a floor in the course of her employment. She stopped work and on 5 March 1990 made a claim for compensation under the Accident Compensation Act 1985 (the ‘Act’). The claim was accepted. She began to receive weekly payments of compensation, together with payments of her medical expenses. She is aged 66 years.
On 6 December 2011, the Workcover Agent issued a notice that it would not pay for hydrotherapy treatment for the plaintiff’s injuries from 16 March 2012, or for physiotherapy treatment from 16 April 2012, based on the operation of s 99 of the Act. It stated that the plaintiff might have up to five physiotherapy sessions from 16 January 2012 to 16 April 2012. These sessions were aimed at progressing the plaintiff towards self‑management. In the case of hydrotherapy, the plaintiff was entitled to three hydrotherapy services from 16 January to 16 March 2012, which were to have a similar aim of progression towards self‑management.
The plaintiff referred the issue of her entitlement to compensation under s 99 of the Act for physiotherapy and hydrotherapy expenses to conciliation. The Conciliator referred questions to a Medical Panel.
The Conciliator’s Referral to the Medical Panel included a statement of agreed facts which are substantially set out in paragraph 2 hereof, as well as the following statement:
·The worker has had anti-inflammatory medications, anti-depressant medications, psychological treatment, psychiatric review, Panadeine Forte, physiotherapy and hydrotherapy in respect of her injury.
The certificate of opinion of the Medical Panel in respect of the questions was given on 30 September 2012 and stated:
Question 1) What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion the worker is suffering from an aggravation of lumbar spondylosis relevant to the claimed back injury.
Question 2)Do you consider the medical services or proposed medical services, namely physiotherapy and hydrotherapy, appropriate and adequate, for the worker’s injury and/or condition? Specify service and frequency if necessary.
Answer:In the Panel’s opinion the ongoing provision of physiotherapy and hydrotherapy are neither appropriate nor adequate for the worker’s current back condition.
Section 4 of the Referral stated:
4.INJURIES INCLUDING DATE OF INJURY
The worker suffered a back injury on 25 February 1990.
Legislation
Section 99 of the Act provides for the Authority/employer or a self‑insurer to pay the worker’s reasonable medical and like costs for the work related injury. Medical service is defined by s 5. The medical questions that can be referred by a Conciliator to a Medical Panel include:
a question as to the medical, personal and household or occupational rehabilitation service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service;[1]
[1]Accident Compensation Act 1985 s 5(ac).
Background
In May 1990, the plaintiff commenced physiotherapy treatment on a regular basis, usually twice a week. In about November 1992, she commenced hydrotherapy treatment on a regular basis, usually daily.
After about 10 months, the plaintiff returned to work on restricted duties. She ceased work in late 1993 because of her ongoing painful back and related pain. She has not returned to work since.
The plaintiff received weekly payments of compensation and payment of medical and like expenses until they were terminated by notice dated 12 September 2003. She disputed this termination and, following a referral to a Medical Panel, her entitlements were reinstated.
The opinion of that Medical Panel given on 11 May 2004 was that the plaintiff continued to suffer from a work‑related condition and related psychological sequelae injury. The Panel considered that she had an aggravation of lumbar spondylosis and an adjustment disorder with depressed and anxious mood. She was determined to be incapable of performing her pre‑injury duties.
The plaintiff has continued to be treated with analgesic and anti‑inflammatory medication and antidepressant medication. She continued with hydrotherapy and physiotherapy treatments. Even after the insurer ceased paying for them, she has continued with some hydrotherapy at her own expense.
The Medical Panel’s reasons
The Medical Panel’s reasons, which were dated 30 September 2012, stated:
The Panel noted from the referral that the worker sustained a low back injury in the course of her employment as a cleaner on 25 February 1990. The worker submitted a claim for compensation in respect of the back injury, which included payment for the reasonable costs of medical and like services for the work related back injury. The claim was accepted by the WorkSafe Agent and compensation was paid.
The Panel also noted from the referral documents under the heading Agreed Facts, that the worker has received medication, psychological therapies, psychiatric treatment, physiotherapy and hydrotherapy.
The Panel noted that the WorkSafe Agent issued a notice dated 6 December 2011 which stated that the worker’s physiotherapy and hydrotherapy treatment had been reviewed with the worker’s treatment physiotherapist in accordance with the Act, and in line with the Clinical Framework and that a treatment plan which envisaged a further five physiotherapy treatments until 16 April 2012 after which payment for physiotherapy services will cease and the worker “will be discharged to a self managed program”. The notice also included the WorkSafe Agent’s decision not to pay for Hydrotherapy services after 16 March 2012.
The Panel considered that the issuance of the notice by the WorkSafe Agent is the basis of the dispute and the reason for the referral.
The worker told the Panel that she did not suffer symptoms related to her back before the incident of injury, and had not suffered any back injury subsequently. She said that she did not suffer from any back condition unrelated to her employment.
She said that although she had received psychiatric treatment for a depressive illness she said that she had suspended consultations with her psychiatrist over three years ago, but continued to take anti depressive medication prescribed by her treating General Practitioner.
She said that she wrenched her back whilst mopping floors on the designated injury date. She said that she initially received injections into trigger points administered by her treating General Practitioner but she said that these injections provided little beneficial effect for her back pain.
The worker told the Panel that she received physiotherapy and hydrotherapy regularly since the injury date and since funding has been stopped for physical therapies her back pain has worsened and she takes Panadeine Forte, Endone 5mg and Panadol Osteo for her pain.
She said that her back pain is aggravated by bending, twisting or lifting but she has not experienced pain radiating down to the buttocks or legs and has not suffered any muscular weakness, or numbness in the legs. Direct questioning confirmed that she had not suffered from loss of control of her bladder or bowel, although the use of some of her analgesic medications caused digestive problems including severe constipation.
The worker told the Panel that she has attended physiotherapy once or twice weekly since the injury date, and similarly does gentle mobilising exercises in the hydrotherapy pool. She receives these treatments at the Geelong Pain Clinic. She said that her physical therapies are a source of modest comfort for her back symptoms and she notes improved mood when she attends hydrotherapy in particular. However she confirmed to the Panel that there has been no improvement in the severity of her back pain or of the mobility or function of her back over the years despite the ongoing physical therapies she has received.
She said that she is restricted by back pain and is unable to perform many of the domestic chores. Her husband helps with the mopping, vacuum cleaning and takes the washing to the Laundromat. He hangs the clothes out on the line and they do the shopping together.
She said that prolonged sitting aggravates her back pain and she has to get up and stretch every five to ten minutes to relieve her pain. She said that even lying in bed is painful. She takes analgesic tablets to control her pain before going to bed, but she is still restless.
The worker said that she is still capable of attending to her own care, and uses a bed pole to get herself out of bed. She said that she can drive her car for short distances such as attending the clinic or for her therapy sessions.
The worker told the Panel that she has been very distressed by the termination of her physiotherapy and hydrotherapy because she felt that the sessions lifted her spirits. She said that sometime[s] her mood is depressed, she locks herself up in the house and withdraws from all social contact. At times she does not get dressed but remains in bed or in her pyjamas. She said that she has been told by her treating medical practitioners including the Psychiatrist she attended prior to abandoning psychiatric care that she was suffering from depression. The Panel noted that a previous and differently constituted Medical Panel concluded, on 11 May 2004, that the worker was suffering from an Adjustment Disorder with depressed and anxious mood relevant to the worker’s claimed back and psychiatric sequelae injuries.
The worker told the Panel that she has regularly attended her treating General Practitioner, Dr K C L Threlfall, who refers in his report dated 16 February 2012 that he commenced treating the worker in 2001 and referred the worker to Dr Carol Newland, Psychiatrist, for the treatment of her anxiety and depression and also for psychological therapies. Dr Threlfall notes that with her physical therapies her level of pain was reduced and her level of function improved and with this an improvement in mood. She said that she has a disturbed sleep pattern, wakes two or three times at night and said that she thinks that the psychotropic medication she takes (Cipramil 20mg) helps to elevate her mood.
The worker told the Panel that she sometimes attended an ordinary pool at her own expense since hydrotherapy funding had ceased.
The worker described the self managed exercises she performed in the hydrotherapy pool and which consisted of gentle leg movements as she sits on the steps to the pool. She also described to the Panel the physiotherapy sessions, which lasted about fifteen minutes and consisted of soft tissue massages to the lower back. She said that [t]he pool exercises and physiotherapy “helps the back pain for a couple of days”. She said that her pain on a pain scale drops from 100 at maximum pain to 70 at a relieved level of pain.
She said that her “days of severe depression continue”.
The Panel performed a physical examination of the worker’s back.
Examination revealed a normal gait and mild scoliosis affecting longitudinal alignment of the lumbar spine with preservation of the anterior lumbar spinal curve. There was no asymmetrical sacrospinalis muscle spasm or atrophy. The glutei and lower limb muscles were normal and displayed no focal weakness or wasting. Toe/heel walking was accomplished in a well‑coordinated fashion. The worker located her pain at the lumbosacral junction and displayed restricted range of motion of the lumbar spine, particularly flexion and extension. There was minimal restriction of lateral flexion and rotation of the lumbar spine. Examination of the hips, knees and ankle joints was normal. There was restricted anterior flexion with the extended arms barely reaching knee level. Circumferential measurements of the things and calves displayed no disparity due to muscle wasting. Straight leg raising evoked reference to pain in the back at thirty degrees. Deep tendon reflexes were bilaterally active and equal and plantar reflexes were downgoing. Cutaneous sensory perception was normal throughout and vascular perfusion to the extremities was unimpaired. The worker was wearing orthotic inserts in her shoes, which she described as being helpful arch supports.
She said that her current medication includes Diabex 0.5 gm, Cipramil 20mg, Oxycontin 5mg twice daily, Panadeine Forte, Endone and Panadol Osteo, Atacanf 35/35, Symbicort, Ostelin (No Caltrate).
The Panel examined the available imaging studies and noted that plain x-ray of the lumbosacral spine performed on 17 August 2011, displayed radiological signs of multilevel degenerative disc disease, with facet joint changes and significant disc space reduction. The Panel noted similar findings reported by the previous Panel in the serial x-rays, performed since 5 April 1990.
The Panel considered that no additional medical imaging or investigations were required for it to answer the medical questions.
The Panel concluded that the worker is suffering from an aggravation of lumbar spondylosis relevant to the claimed back injury.
The Panel took particular note of the worker’s statement that despite many years of physiotherapy and hydrotherapy her back condition and the associated residual dysfunction attributable to her back injury, have remained unchanged, based on her own assessment of her back symptoms and the unchanged functional capacity of her lumbar spine which she described.
The Panel also noted the opinion expressed by the worker’s treating physiotherapist, Ms Anne Africa in a report dated 23 May 2012 that “it is my observation that over time I have been treating Mrs Drazinic there has been no overall sustainable improvement in her condition, as a direct result of treatment. The benefit from treatment is short‑lived.”
The Panel had regard for the long history of physiotherapy and hydrotherapy since 1990 which the worker attended for long periods on a weekly basis. However the Panel noted that there has been no change in the worker’s physical condition despite prolonged physiotherapy and hydrotherapy over many years.
Notwithstanding the worker’s perception of increased pain and an increased need for medication to control her pain if she does not have access to hydrotherapy and physiotherapy, and the social benefit the worker received by interacting with others and interrupting the isolation of her home life, the Panel is of the opinion that there was no physical improvement of the worker’s back condition.
The Panel considers that any improvement obtained from hydrotherapy and physiotherapy should have been clinically evident after a few weeks by way of improved physical function, particularly lumbar spinal function. The Panel was unable to identify any sign of improvement resulting from prolonged hydrotherapy performed over a number of years by passive immersion in a hydrotherapy pool without any program of active self managed muscle strengthening exercises.
The Panel therefore concluded that ongoing hydrotherapy and physiotherapy is neither an appropriate or adequate medical service for the treatment of the worker’s current back condition.
The grounds of the application
The grounds of the plaintiff’s application were amended by leave on two occasions during the hearing. In there final form they state:
Having:
(a)Found that the Plaintiff suffered from a work related aggravation of lumbar spondylosis;
(b)Accepted a history that the physical therapies were a source of modest comfort to the Plaintiff’s back condition and that without the therapies the Plaintiff had increased pain and consequently increased need for medication to control her pain;
(c)Accepted a history from the Plaintiff that the physical therapies were associated with improved mood; and
(d)Noted the treating general practitioner’s report wherein it was stated that the physical therapies reduced the level of the Plaintiff’s pain and improved her function and mood;
1.The Medical Panel fell into error by failing to exercise its jurisdiction properly or alternatively it misunderstood its jurisdiction:
(a)By concluding that because there had been no physical improvement of the Plaintiff’s back condition the physical therapies were neither appropriate nor adequate services for the treatment of the Plaintiff’s back condition;
(b)When it took into account an irrelevant consideration that for a medical service to be appropriate or adequate that it had to be productive of physical improvement of the Plaintiff’s back condition; and/or
(c)When it failed to take into account that the physical therapies had an ameliorating effect on the Plaintiff’s experience of pain resulting in reduced consumption of painkilling medication and associated with improved mood;
(d)In concluding, as it must have done, that the medical services were neither adequate nor appropriate, on the sole basis that they did not produce any long‑term improvement in the symptoms or functional capacity of the Plaintiff, by asking itself the wrong question;
(e)The Panel failed to consider and/or make findings as to whether the Plaintiff suffered from a psychological condition as a sequelae of her back injury; and
(f)By failing to take to take into account that the physical therapies had an ameliorating effect on the Plaintiff’s psychological condition or symptoms.
2.The Medical Panel fell into error by failing to give sufficient or adequate reasons for its opinion.
The first and second defendants took no part in the proceeding in accordance with the principles stated in R v Australian Broadcasting Tribunal; Ex Parte Hardiman.[2]
[2](1980) 144 CLR 13.
Medical evidence before the Panel
The medical evidence before the Panel was a report by the plaintiff’s treating general practitioner, Dr K Threlfall. That report referred to the notes of Dr M Gray Thompson, who was a general practitioner who had previously treated the plaintiff at the same clinic. The report stated that the plaintiff had never been free from back pain since the injury at work in 1990 and had been continually prescribed analgesics. On 16 September 1992, an MRI report showed that the plaintiff had disc degeneration at L4/5, L5/S1 with generalised posterior bulging. Mr Carey, an orthopaedic surgeon to whom the plaintiff had been referred, agreed that she suffered from mutli‑level disc degeneration. An x‑ray of the lumbar spine in August 2011 revealed advanced disc degeneration present at L4/5 S/1 as well as L5, S1 being ‘most marked in the latter’. The x-ray also showed lower lumbar spine facet joint degeneration changes present ‘most marked at L4/5, L5/S1’.
Dr Threlfall’s report recorded:
As a result of her constant pain and related functional disability this lady developed a level of anxiety and depression. It is noted that she was prescribed anti‑inflammatory therapy and commenced antidepressants and specific therapy in 1995, and has continued to receive this therapy.
In 2003, Dr Threlfall referred the plaintiff for psychological counselling and in 2006 he referred her to a psychiatrist, who until she retired from practice, treated her for anxiety and depression. Dr Threlfall stated that the plaintiff explained that she still suffers pain of varying intensity in her lower back constantly and stated:
She is required to take up to 8 Panadeine Forte tablets a day to relieve the pain and has done so over the past years. She is frustrated by this pain which prevents her from carrying out her normal home duties. She is reliant on her husband for all the more heavy home duties such as vacuuming.
This level of painful disability aggravates her level of depression. Her depressed mood leads to her lack of interest and enthusiasm in performing activities. She remains on antidepressant therapy.
With the benefit of periodic physiotherapy and massage her level of pain was reduced and her level of function improved and with this came an improvement in her mood.
Examination revealed tenderness over the lower lumbar region. There is a global pain restricted range of movement of the lumbar spine. Forward flexion hands to maximum of to above knee.
This lady has a significant problem with sleeping and she relates that to her 25 year old mattress. It would seem appropriate that an assessment be made and an appropriate supportive mattress should be considered as an essential item in the management of her low back pain resulting from her injury.
In response to your specific questions
Diagnosis is multilevel intervertebral disc injury/degeneration of the lumbar spine with related development of anxiety and major depression. The original injury to her lower back occurred during her work duties.
There is no evidence to dispute her claim that she had suffered constant pain since that occasion.
Biserka Drazinic’s medical condition and her incapacity is clearly a result of her injury. I consider Biserka Drazinic currently incapable of returning to any work duties and I believe that situation will continue indefinitely.
The treatment that she requires is important with enabling her to continue with her level of capacity she has towards self care and that in turn is important in management of her anxiety and depression. This does not apply to essential activities such as feeding, bathing, toileting and dressing.
I have mentioned the need for review of her mattress to relieve pain at night in her back.
Ms A Africa, who was the physiotherapist who commenced treating the plaintiff in June 2009, said in a written statement that from her observations there had been no overall sustainable improvement in her condition as a direct result of the treatment and that its benefits were short‑lived. The soft tissue therapy had enabled the plaintiff to carry out her activities of daily living for two to three days in less pain than she would otherwise have done without the treatment. This short‑term relief benefited the plaintiff’s overall mood. The physiotherapist stated that constant pain, with no relief not even for two days, would be a major contributing factor to the plaintiff’s depressed state. She said that the treatment that the plaintiff currently received enabled her to carry out necessary activities of daily living for one to two days after the treatment, but that that effect had not been maintained between sessions for a longer period of time.
Submissions of the parties
The plaintiff submitted that the Panel had failed to consider the whole of her injuries, including the sequelae. It had failed to have any proper regard to the short‑term consequences and benefits of physiotherapy and hydrotherapy on her back injury and its sequelae. Alternatively, it failed to give adequate reasons to show that it had paid proper regard to such matters. It had limited its consideration to the issue of whether physiotherapy or hydrotherapy had produced, or would produce, improved physical function in the plaintiff, particularly in her lumbar spine.
The plaintiff also argued that the Panel was required to consider whether she suffered from a psychological condition caused by, or connected to, her back injury and, if so, how that condition might benefit from physiotherapy or hydrotherapy. It either did not turn its mind to these issues, or it gave no adequate reason for its conclusions.
The Panel wrongly proceeded on the basis that a medical service, which did not produce any long‑term improvement in the plaintiff’s symptoms or functional capacity, could not be regarded as an appropriate or adequate service for their treatment. This was notwithstanding that the therapies had produced short‑term relief from pain, elevated her mood and may have prevented deterioration in her psychological state and physical condition. The Panel made a similar jurisdictional error to that made by the Panel whose decision was considered in Higgins v Weissman.[3]
[3][2010] VSC 294 [3].
The third defendant submitted that the Panel properly took into account relevant factors before reaching its conclusion that ongoing hydrotherapy and physiotherapy were neither appropriate nor adequate medical services for the plaintiff. These factors included the nature of her condition and the fact that her symptoms had remained unchanged for many years. There was also the report of her physiotherapist that there was no overall sustainable improvement from the treatment and that the benefit was short‑lived. The Panel properly considered the long history of the plaintiff’s treatment, the lack of change in her physical condition, her perception of increased pain and her increased need for medication to control her pain. The Panel took into account the social benefit to the plaintiff from her hydrotherapy treatment by interacting with others and interrupting her isolated home life.
It was open to the Panel to find that the ongoing provision of hydrotherapy and physiotherapy services was not medically appropriate or adequate in the plaintiff’s circumstances.
The third defendant submitted that the Panel’s answer to question 1 was unambiguous as indicating that it had decided that the plaintiff had not suffered any psychological sequelae.
The Panel’s reasons demonstrated that it had taken into account relevant considerations in concluding that physiotherapy and hydrotherapy were neither appropriate nor adequate for the plaintiff’s back condition.
The Panel’s reasons were sufficient to show that it had performed its functions properly. The Victorian Court of Appeal decision in Kocak v Wingfoot Australia Partners Pty Ltd[4] was wrongly decided because it required that the Medical Panel provide more detailed reasons than was necessary.
[4][2012] VSCA 259.
Consideration of submissions
The function of the Medical Panel was to give its opinion on the medical question in accordance with the provisions of Division 3 of Part 3 of the Act: s 67(1) and (1A) of the Act.
I express no view about the merits of the plaintiff being provided with hydrotherapy and physiotherapy. They have been provided for a long time, but the Court does not on a judicial review application consider or determine whether they should be continued.
The High Court in Craig v South Australia[5] described the concept of jurisdictional error as follows:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or a decision of the tribunal which reflects it.[6]
[5](1995) 184 CLR 163.
[6](1995) 184 CLR 163 at 179; see also Minister for Immigration and Citizenship v Yusuf (2001) 206 CLR 323.
The plaintiff carries the onus of establishing that the Panel made a jurisdictional error in performing its function.
The Court does not over‑scrutinise reasons or construe them minutely in search of error.[7] Nor does the Court apply eyes to the reasons:
… so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.[8]
[7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1985) 185 CLR 259 at 272.
[8] Soliman v University of Technology, Sydney (2012) 207 FCR 277 at 295–6 [57] Marshall, North and Flick JJ.
Grounds 1(a) to (d)
These grounds concern the Panel’s consideration of the lack of physical improvement in the plaintiff’s back condition and the ameliorating effect of the therapies on the plaintiff’s experience of pain.
The Panel concluded that the plaintiff was suffering from an aggravation of lumbar spondylosis caused by her back injury. There was no overall sustainable improvement in her back condition. It had remained the same. The benefit of the physiotherapy and hydrotherapy to the plaintiff was short‑lived.
The Panel referred to the plaintiff’s perception of increased pain and an increased need for medication if there was no physiotherapy or hydrotherapy. The Panel also referred to the social benefit to the plaintiff of interacting with others during the therapy and thereby interrupting the isolation of her home life.
The Panel’s opinion was that ongoing hydrotherapy and physiotherapy were neither appropriate nor adequate medical services for the treatment of the plaintiff’s back condition.
The plaintiff’s case is that the Panel’s answer to question 2 was based on the premise that the therapies could not be appropriate and adequate medical services unless they produced an improvement in the back condition.
An alternative analysis of the Panel’s reasons is that it weighed the lack of improvement in the back condition against matters such as the benefit of social interaction that the therapies provided and the temporary reduction in pain that they produced.
I consider that the Panel’s reasons demonstrate that the second of the two analyses described in the previous paragraphs is correct. The Panel had to give weight to relevant matters. The lack of improvement in the plaintiff’s back condition was a matter that the Panel was entitled to consider relevant. It was of course not the only factor for the Panel to take into account, but it was for the Panel to determine what weight to give to it.[9]
[9]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 40–41.
The Panel weighed the benefits that the plaintiff received from the therapies, including the benefits of social interaction and temporary pain reduction. It took into account that the physical therapies had an ameliorating effect on the plaintiff’s experience of pain and resulted in reduced consumption of painkilling medication.
Again, the Panel had to determine the weight that it would give to those considerations.
The Panel’s reasons do not state that a physical improvement to the plaintiff’s back condition was necessary in order that it might reach the opinion that the therapies were appropriate and adequate. Nor do they support the conclusion that the Panel in fact adopted that approach. The absence of such an improvement was one of the considerations that the Panel took into account. It placed considerable weight on that matter in reaching its decision. It was entitled to decide to do so.
The present case therefore differs from Higgins v Weissman,[10] which was relied on by the plaintiff. In that case, the Panel proceeded on the basis that the medical services were not appropriate and adequate for the treatment of the worker’s condition for the purposes of s 99 of the Act merely because they did not produce any long‑term improvement in the symptoms or functional capacity of the worker, notwithstanding that they produced short-term relief from pain and may have prevented deterioration in his condition. I am not persuaded that the Panel proceeded on a similar basis in this case.
[10](Supra).
The plaintiff has not established grounds 1(a) to (d).
Grounds 1 (e) and (f)
These grounds in essence contend that the Medical Panel did not consider the plaintiff’s psychological condition or symptoms.
The Panel had before it considerable material concerning the plaintiff’s anxiety and ongoing depression. There was the plaintiff’s own account of the effect of the depression on her and of how the physiotherapy and hydrotherapy lifted her spirits.
The Panel in 2004 found that the plaintiff suffered from a psychological condition. She was treated by a psychiatrist. Dr Threlfall stated that she continued to suffer from anxiety and major depression. He continued to prescribe antidepressant medication for her.
The Panel’s reasons do not include any express opinion on whether the plaintiff suffered from anxiety and depression as sequelae to her back condition.
The third defendant submitted that the Panel did conclude that the plaintiff did not suffer from a medical condition of depression. The Panel referred to the evidence concerning the plaintiff’s depression. Its answer to the first question could only mean that, in its opinion, the plaintiff did not suffer from a medical condition of depression or related psychological conditions.
The plaintiff submitted that the Panel had not considered or made findings about the plaintiff’s psychological condition or symptoms.
I consider that the Panel’s reasons and its answers to the questions indicate that it did not form an opinion about whether the plaintiff had a medical condition of anxiety and depression relevant to the claimed injury. It was not suggested that a psychological condition was not a medical condition.
The Panel’s reasons suggest that it considered that it only had to express an opinion about the plaintiff’s back condition. The plaintiff’s case included as a prominent theme that she suffered from a depressive condition. The Panel was required to express an opinion on the nature of the plaintiff’s medical condition, including any sequelae, that was relevant to the claimed injury. The Panel members were required to assess all the medical material and the plaintiff’s own evidence. The Panel referred to the material concerning the plaintiff’s condition of depression. However, the Panel’s reasons suggest that it did not form an opinion about whether she did suffer from a medical condition (including any sequelae) of anxiety and depression relevant to the claimed injury. The reasons do not contain any analysis of that issue or express any opinion about it.
The plaintiff has established that the Panel did not express an opinion about whether she did suffer from a medical condition (or a sequelae) of anxiety and depression relevant to the claimed injury in answering question 1. The Panel thereby ignored relevant matters and failed to express an opinion in respect of them.
The Panel did not perform its function of answering the medical questions submitted to it by reference to the issues and materials presented to it. It failed to express an opinion which had regard to relevant considerations and relevant material, being the material that suggested that the plaintiff suffered from anxiety and depression relevant to her back condition. The Panel therefore made a jurisdictional error in performing its function. The Panel failed to perform the task given to it under the statute of providing answers in response to the questions that were referred to it that were based on its opinion of the material presented to it.
The Panel failed to answer question 1 by considering whether the plaintiff’s anxiety and depression was a medical condition of the kind described. It therefore could not have answered question 2 by considering the material concerning the plaintiff’s anxiety and depression. The answer to question 2 refers only to the plaintiff’s back condition. The Panel thereby made a jurisdictional error in answering questions 1 and 2.
The plaintiff has established grounds 1(e) and (f).
Requirement of statement for reasons – Ground 2
This ground alleges that the Medical Panel fell into error by failing to give sufficient or adequate reasons for its opinion.
The requirement imposed on Medical Panels to provide reasons for its opinion has been considered on a number of occasions.
Section 68(2) and (3) of the Act states:
(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.
(3)Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer or the County Court or the Authority or self-insurer its written opinion and a written statement of reasons for that opinion.
In Masters v McCubbery,[11] the Victorian Court of Appeal decided that a Medical Panel must provide a succinct statement of why they came to their conclusions sufficient to enable the parties and the Court to see that they have addressed their mind to relevant considerations.
[11]Masters v McCubbery [1996] 1 VR 635 at 651 Winneke P; at 653 Ormiston JA; at 661 Callaway JA.
Recently, in Kocak v Wingfoot Australia Partners,[12] the Victorian Court of Appeal stated that:
In such cases, a Medical Panel’s reasons thus should include a statement of findings on material questions of fact; some sort of identification of the evidence or other material upon which those finding are based; and an intelligible explanation of the process of reasoning that has led the Panel from the evidence to the findings and from the findings to the Panel’s ultimate conclusion.
[12][2012] VSCA 259 [48].
In the subsequent decision of Gamble v Emerald Hill Electrical Pty Ltd,[13] a differently constituted Victorian Court of Appeal stated in respect of the decision in Kocak:[14]
It is unnecessary for present purposes to consider whether, and if so to what extent, those observations (including the Court’s description of the function of a medical panel) diverge from the view expressed in Sherlock that, in providing an opinion on a medical question referred to it, a medical panel is performing an expert medical function, not a judicial function. It is sufficient to say that the principles enunciated in Liang continue to apply, such that a court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel’s reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.
[13][2012] VSCA 322 [20].
[14](Supra).
The Panel did provide adequate reasons for finding that the plaintiff suffered from a back condition and that the therapies were not appropriate and adequate for that condition and the pain associated with it. I have discussed those reasons previously in this judgment. They provide a path of reasoning that explains the Panel’s answers to questions 1 and 2 insofar as they concern the plaintiff’s back condition.
I have also concluded that the Panel did not consider the material concerning the plaintiff’s claimed psychological conditions of anxiety and depression in answering questions 1 and 2. It follows that the Panel could not have provided, and did not provide, any reasons in respect of those conditions in answering questions 1 and 2. If it had performed its function and considered the material concerning the plaintiff’s claimed anxiety and depression, it would have been required to give reasons in respect of those claimed conditions in answering questions 1 and 2.
However, because of the failure of the Medical Panel to consider the material concerning the plaintiff’s claimed psychological conditions of anxiety and depression, the plaintiff’s ground concerning lack of, or inadequacy of, reasons does not arise and has not been established.
If, contrary to my conclusion, the Medical Panel did decide that the conditions of anxiety and depression were not part of ‘the worker’s medical condition (including any sequelae) relevant to the claimed injury’ (question 1), I would have considered that the Panel did not provide reasons for that answer and opinion as required by the Act. The Panel did not provide a path of reasoning that met the requirement of s 68(2) of the Act, or as described in Masters v McCubbery,[15] let alone a path of reasoning that would satisfy the requirements stipulated in Kocak v Wingfoot Australia Partners Pty Ltd.[16] The Panel’s reasons disclosed no path of reasoning about whether the plaintiff’s anxiety and depression were a medical condition or a sequelae relevant to the back condition as was required in order to answer question 1. The Panel provided no reasons in respect of its answer to question 2 that concerned the plaintiff’s claimed psychological condition.
[15](Supra).
[16](Supra).
Conclusion
I have reached the conclusion that the Medical Panel made a jurisdictional error by failing to consider and form an opinion concerning whether the plaintiff suffered from psychological conditions of anxiety and depression which were a medical condition or the sequelae of a medical condition relevant to the claimed injury.
That jurisdictional error is apparent on the face of the record. I consider that an order in the nature of certiorari should issue quashing the Medical Panel’s certificate of opinion. An order in the nature of mandamus should be made referring the Conciliator’s questions for re-determination according to law.
I will hear the parties on whether the re-determination should be by a differently constituted Medical Panel. I will also hear the parties on the question of costs.
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