Frusher v The Medical Panel & Ors
[2007] VSC 78
•27 March 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6631 of 2006
| JOANNE FRUSHER | Applicant |
| V | |
| THE MEDICAL PANEL AND ORS | Respondents |
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JUDGE: | King J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2006 | |
DATE OF JUDGMENT: | 27 March 2007 | |
CASE MAY BE CITED AS: | Frusher v The Medical Panel | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 78 | |
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Administrative Law Act 1978 – Accident Compensation Act 1958 s. 98E (1) – Interpretation of Legislation Act 1984 s. 37 (c) and (d) – Medical Panel – total loss of female sexual organs
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M O’Loghlen QC with Ms F Ellis | Petersons Lawyers |
| For the Respondents | Dr K Hanscombe SC with Mr P Solomon | Wisewoulds Lawyers |
HER HONOUR:
Introduction
This proceeding concerns the judicial review of a decision of a Medical Panel convened pursuant to s 104B(9) of the Accident Compensation Act 1985 delivered on 16 May 2006. The decision concerned Ms Joanne Frusher, the applicant, who claimed a disability arising out of her employment.
The proceeding was commenced by the obtaining of an order for review from Master Evans on 6 and 8 June 2006 pursuant to the Administrative Law Act 1978. That order contained four grounds upon which it was ordered that the respondents to the application show cause why the decision of the Medical Panel should not be reviewed.
Those grounds were:
a) whether the Medical Panel having found that the Applicant’s procreative capacity has been lost following hysterectomy, whether the Medical Panel was required in law to find that the worker had suffered a “total loss of female sexual organs” within the meaning of section 98E(1) of the Act;
b) whether in concluding “that the worker is not suffering a total loss of use of the female sexual organs when assessed pursuant to section 98E(1) of the Act”, the Medical Panel took into account irrelevant considerations, namely, the matters referred to in the penultimate paragraph of its written reasons of opinion dated 5 May 2006 (exhibit PJM-13) and fell into error;
c) whether the Medical Panel applied an incorrect test as to what loss the Applicant had to suffer to her female sexual organs to establish that she suffered a “total loss of female sexual organs” when assessed pursuant to section 98E(1) of the Act;
d) whether in the circumstances the Medical Panel erred in law in failing to find that the Applicant had a total loss injury mentioned in the Table in section 98E(1) of the Act being a “total loss of female sexual organs”.
The Medical Panel comprising its duly constituted members, together with Greyhound Racing Victoria and Victorian WorkCover Authority were all respondents to the action. The Medical Panel in accordance with the usual practice took no part in the hearing. The second and third respondents were represented by Senior and Junior Counsel.
The Facts
The Applicant, Joanne Frusher, who was born on 8 September 1960 and is now aged 46, commenced employment with the second named respondent, Greyhound Racing Victoria on 7 May 2003, initially on a casual basis, but proceeding to full time employment from 1 August 2003. The position she occupied was that of Manager of a boarding kennel for greyhounds, the Seymour Boarding Kennels.
On 3 January 2004, the Applicant was involved in the lifting of a dead rottweiler at the premises. At the time of the lifting the applicant noted a “pull in the tummy” and some low back pain extending to her buttocks, she also experienced difficulty in voiding. Those symptoms worsened over the next few days and she experienced difficulties inserting tampons due to the presence of a lump in her vagina. She was diagnosed subsequently with a prolapse of the bladder and the uterus. The Applicant was aged 43 at the time of the injury.
Greyhound Racing Victoria received a claim for medical and like expenses under the Accident Compensation Act 1985. In June 2004, the Applicant was informed by the agent for the Third Respondent; the Victorian WorkCover Authority (“VWA”) that liability was accepted with respect to the reasonable costs of medical and like expenses.
In September 2004, the Applicant was diagnosed as having genuine stress incontinence, and on 14 February 2005 the Applicant underwent a vaginal hysterectomy and repair.
On 14 April, the Applicant lodged a written claim, claiming compensation under sections 98C and 98E of the Accident Compensation Act 1985.
The Applicant was assessed by an obstetrician and gynecologist, Dr Bernadette White, on behalf of the VWA on 29 June 2005. Dr White noted that the Applicant, despite the hysterectomy, had significant urinary and bowel symptoms, significant ongoing psychiatric problems and that the Applicant’s social life was very restricted, the latter being in part attributable to her urinary and bowel problems. Dr White noted that it would be possible for the Applicant to have further medical or surgical treatment to improve her urinary symptoms that the Applicant was not emotionally prepared to undergo further surgery. The Applicant was also assessed by a consultant occupational physician, Dr David Fish, on behalf of the VWA on 21 September 2005. Dr Fish found that the symptoms that the Applicant suffered included urinary stress incontinence, rectal urgency and occasional incontinence, with a rectocoele secondary to her vaginal prolapse. The Medical Panel accepted the findings of these practitioners for the purpose of determining the matter.
The Applicant resigned from her employment with the second Respondent, it is said, partly because of her feelings of embarrassment arising from the nature and extent of her medical condition.
On 27 September 2005 the VWA wrote to the Applicant and informed her, inter alia, of the following matters;
2.1 Liability Determination
The Victorian WorkCover Authority has determined liability for your claim pursuant to section 104B (2) of the Accident Compensation Act 1985 (the Act) in relation to the above listed injury/ies which you claim to have sustained as a result of your employment.
2.1 Injury/ies for which liability is accepted
Liability is accepted for the following injuries claimed:
Bladder and Bowel dysfunction (hysterectomy), psychiatric and back.
3.2 Determination of Impairment
The degree of impairment you suffer, if any, as a result of the accepted injuries has been determined by the Victorian WorkCover Authority as follows:
Physical Impairment
You have been determined as suffering a combined whole person physical impairment of 28% after taking into account assessment(s) undertaken in accordance with the American Medical Association Guides to the evaluation of Permanent Impairment, 4th Edition.
Psychiatric Impairment
You have been determined as suffering a whole person impairment of 0% after taking into account assessment(s) undertaken in accordance with the clinical guidelines to the Rating of Psychiatric Impairment prepared by the Medical Panel (psychiatry) Melbourne, Victoria, October 1997 and published in the Government Gazette.
3.3 Determination of Total Loss Injuries
The Victorian WorkCover Authority has determined that you have not suffered an injury which entitles you to compensation for total loss pursuant to section 98E.
Pursuant to section 104B (9) of the Accident Compensation Act 1985, the dispute was referred to a Medical Panel. On 16 May the Applicant was informed of the opinion, and provided with the Opinion and Reasons for Opinion of the Medical Panel on 19 May 2005.
The Medical Panel concluded:
The Panel assessed the accepted back, bladder and bowel dysfunction injuries in accordance with Section 98E of the Act. The Panel acknowledged that the worker has some impairment of the spine but the Panel considers the impairment is not severe enough to be regarded as effectively a total impairment of the spine.
The Panel also acknowledged that the worker has some loss of use of the female sexual organs following hysterectomy. The Panel considered the three aspects of sexual function, namely, procreative, self gratification and social functioning and concluded that whilst the worker’s procreative capacity has been lost the Panel considers that the other aspects of sexual function remain, albeit diminished, and therefore concluded that the worker is not suffering a total loss or a total loss of use of the female sexual organs when assessed pursuant to Section 98E of the Act.
Section 98E (1) of the Accident Compensation Act1985 provides compensation for non pecuniary loss in certain circumstances as prescribed by the Act. The relevant parts for these purposes are the provision:
(1)If a worker suffers an injury which entitled the worker to compensation, and the injury is a total loss mentioned in the Table to this sub-section, and the amount of compensation calculated under s. 98C is less than the amount payable for total loss specified in the Table, then the worker is entitled to compensation equal to the amount specified in the Table instead of compensation calculated under s.98C.
The table referred to in s 98C includes a variety of losses and includes losses to sight, limbs, hearing, speech, smell, hands, paraplegia, quadriplegia, spinal impairment and loss of sexual organs. The loss of sexual organs is listed in the following manner:
Total loss of male sexual organs 100,770
Total loss of penis 100,770
Total loss of one testicle 21,420
Total loss of two testicles or an only testicle 100,770
Total loss of female sexual organs 100,770
Total loss of both breasts 100,770
Total loss of one breast 64,300
Whilst the total loss of both breasts, or a breast, may not be a sexual organ as such, it appears not to fall into any other category and is included in this section for completeness.
One of the roles of the Medical Panel in respect of this matter was to determine whether the applicant had an injury or injuries, for which liability was accepted, which was a total loss in respect of a matter listed in the table to s 98E(1). It is that decision that is under review in the Court.
The decision of the Medical Panel pursuant to s. 68(4) of the Act provides that for the purposes of determining any question or matter the opinion of a Medical Panel on a medical question referred to a Medical Panel is to be adopted and applied by any court, body or person and must be accepted and conclusive by any court, body or person, irrespective of who referred the medical question to the Medical Panel or when the question was referred. Despite that provision, the Medical Panel is amenable to judicial review pursuant to the Administrative Law Act.[1]
[1]George v Nisselle and ors [2005] VSC 177 para 28 and 29
Submissions for the Applicant
On behalf of the Applicant it was submitted that the accepted injury of the Applicant in relation to the hysterectomy that she underwent was one which resulted in the total loss of female sexual organs, as that expression appears in s. 98E (1) and that the Panel erred, as a matter of law, in determining otherwise, for the following reasons:
The meaning of total loss of female sexual organs is first a question of law as to the meaning of that expression and requires an interpretation of the proper construction of the statute. In determining the question, the Medical Panel has taken no account of the Interpretation of Legislation Act 1984, in particular sections 37(c) and (d) which provide that, unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular.
Accordingly, it was submitted that as a result of the hysterectomy the Applicant has lost the whole of her uterus and that is a total loss of a female sexual organ. It was argued that the surgical removal of a complete organ, such as in this case, the uterus, is the equivalent of the amputation of a leg or a finger or the loss of an eye. The surgical removal means it was submitted that the Panel should not have determined the issue by an examination of the loss of use or function of the uterus.
It was further submitted that the Panel misdirected itself when considering the application of total loss of sexual organs as equating to the total loss of function of sexual organs. The Panel determined that the loss of function should be determined by three factors, being a reproductive function, a self gratification function and a social functioning. Whilst conceding that it is difficult to equate total loss of use of a limb, an eye or hearing to sexual organs, it was submitted that the legislation did not at any stage refer to the loss of use or function of the sexual organs as compared to, for example, the loss of sight in one or both eyes, which is clearly a function or use, and compensable under the Table in the Act. Equally compensable under the Table is the physical loss of an eye, and it is specifically noted as being additionally compensable to the loss of sight from that same eye. The legislation referred to the “total loss of female sexual organs”, not the “total loss of use or function of female sexual organs”.
In respect of the interpretation of the Table s. 98E(2) states:
For the purposes of this Table –
(a)the total loss of a limb, hand, foot, finger, thumb, toe or joint or any part thereof shall be deemed to include the permanent total loss of the use of such limb, hand, foot, finger, thumb, toe, joint or part;
It was submitted that the Parliament has distinguished between those matters listed in s. 98E(2) and the other items listed in the Table in s. 98E(1).
Further the Applicant relied upon the decision of Ashley J in Hegedis v Carlton United Breweries Ltd[2] relating to the preferential construction of statutes to favour the worker.
[2](2000) 4 VR 296
Submissions for the Respondents
It was submitted by the Respondents that the Applicant had to persuade the Court of at least one of three propositions, being:
a) that the Panel asked itself the wrong question; or
b) that the Panel formulated, then applied, the wrong test; or
c) that the Panel formulated and took into account irrelevant considerations.
The issue, it was submitted, was the proper construction of the expression “total loss female sexual organs” contained within the table in s. 98E(1).
Counsel for the Respondents argued that the phrase “unless a contrary intention appears”, which prefaces the references to the plural including the singular, in the Interpretation of Legislation Act1984, has relevance to this matter as she submitted there are a number of indicia of a contrary intention in the Table. Counsel relied upon the fact that in respect of a male, if one read the description “total loss of male sexual organs”, as including one singular male organ, then, as an example, the loss of one testicle would be included in that expression, whilst there is in the Act a very specific provision for the loss of one testicle. The comparison being that if a person lost one testicle the compensation would be in excess of $100,000 if a person was compensated for the total loss of sexual organs, or in excess of $121,000 if a person was compensated for the total loss of sexual organs and the loss of one testicle, rather than the $21,420 that Parliament clearly intended for the loss of one testicle. Despite stating that there were other indicia upon which she relied, counsel did not point to any other indications of Parliament’s intention to limit this phrase to the plural only.
Counsel for the Respondents accepted that the phrase “total loss of female sexual organs” was not intended to comprise the loss of the whole of every sexual organ. In her oral submissions, there being no written submissions on behalf of the Respondents, Dr Hanscombe stated:[3]
I don’t, however, contend that the phrase, “total loss of female sexual organs” is intended to comprise the loss of the whole of every sexual organ. My learned friend contends that would be a very bizarre construction because it would result in a very, very significant injury, probably life threatening, and certainly one would be very rare. The Authority does not contend for that construction.
On the contrary, what the Authority contends is because that is not the preferred construction, that is the complete anatomical removal of all female sexual organs, that the only rational interpretation – I’ll withdraw that – that a rational interpretation, and one which was within the Medical Panel’s provenance to apply, was a functional test.
There are a number of reasons why one would find that legislative intention. First, under s. 104B, in the first instance the application for compensation is assessed under 104B(2) by the Authority, that is to say, by a non medical assessor.
Now a non medical assessor would be much more apt to apply a functional test precisely because the non medical assessor would not necessarily know the details of the internal anatomical changes which had occurred.
If the assessment made by the non medical assessor, the authority, is not accepted by the worker, as happened in this case, then the process sends the question to the Medical Panel and the Medical Panel is in a different position. The Medical Panel is entitled and indeed, obliged we would say, to bring their expertise to bear on the question – the medical question which is asked of them. And that is exactly what they have done here.
There is ample authority for the proposition and I will cite some cases to your Honour in due course that this court on a judicial review has a narrow function and that this court in particular ought not lightly to interfere with findings by a specialist tribunal where they are entrusted to use their expertise.
[3]Page 34 of transcript
Counsel for the Respondent also argued that the applicant’s submission that the wrong test was applied by the Panel was misconceived, and that what is contained in s. 98E(2) is a statutory recognition that the loss of the use of the part may have the same effect on the worker and consequent entitlement as the actual physical loss of the part.
It was submitted that the issue raised in Hegedis v Carlton United Breweries Ltd[4] is of no relevance as there is no issue of law for this Court to determine.
[4]supra
Determination
This is a review of the decision of the Medical Panel and not an appeal and the principles in respect of a review, which are well established, are clearly expressed in the judgment of Phillips JA in S v Crimes Compensation Tribunal.[5] In that very helpful decision his Honour at pages 86-89 discusses the process of a review and states clearly that the role of the Court on review is to first determine what is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant’s success or failure, which determination is a matter of law and reviewable. Once that determination is complete, the question whether the claimant’s particular circumstances fall within the relevant statutory description is essentially a question of fact. Nevertheless if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it, is a question of law.
[5][1998] 1 VR 83
In a more recent decision Gillard J[6] cited the oft quoted decision of Craig v South Australia,[7] and succinctly stated “Hence if it is established that the Panel failed to consider relevant material or asked itself the wrong question, jurisdictional error results and its decision is quashed”.
[6]George v Nisselle [2005] VSC 177
[7](1995) 184 CLR 163
On the basis of those cases it is my view that the issues before me are:
(a) whether the total physical loss of one female sexual organ can be the “total loss of female sexual organs; and
(b) whether the Panel asked itself the correct question when it asked whether the total loss of female sexual organs can be determined by assessing the functional loss of any particular organ.
The legislation, in my opinion, is of some assistance, however, it is poorly drafted and far from clear and it could be described as quite ambiguous in this area of sexual organs. Normally, if the Parliament intended that it was to be all of the female or male sexual organs that were to be totally lost before compensation would be payable one would expect that they would clearly state that in the Table, as they have for other areas within the Table. There are many examples contained within the Table of such specificity, including matters such as, “total loss of the right hand or of five fingers of the right hand, or of the lower part of the arm”, or “total loss of two joints of the middle finger of either hand”. Even the issue of total loss of hearing is covered in the Table with the manner of determination being set out in s 98E(3).
Here the matter is vague and totally unsatisfactory with the only statement being “total loss of female sexual organs”. The legislation is unclear and uncertain as drafted. It does not include the statement that there must be a total loss of all female sexual organs, but neither does it say it need only be one organ, it fails to define in any way how many sexual organs must be totally lost before the matter is compensable under the Table. It is my view that Parliament could not have failed to be aware of the relevant sections of the Interpretation of LegislationAct1984, in particular sections 37(c) and (d), which make the singular and the plural interchangeable unless the contrary intention appears.
Here there is nothing, in my opinion, to indicate that the Parliament has expressed any contrary intention within the Act in relation to the expression “Total loss of female sexual organs”. The Table does not specify in any way what are female sexual organs and the legislation contains no definition of the term. It was ultimately not disputed by either party that the term would include a number of areas, both internal and external to the female body. Organs may have a very specific medical definition and this may be where the medical ability of the Panel might be invaluable.
I have had regard to what was stated by Ashley J in Hegedis v Carlton and United Breweries Ltd[8] where he stated:
In construction of worker compensation legislation, which has been regarded as being remedial in character, there is a long-established principle that in the event of ambiguity a construction favourable to the worker should be adopted. That approach has continued until modern times. It has continued notwithstanding a tendency across jurisdictions to reduce the ambit of compensability of injury.
[8]supra para 32
Taking into account those matters, including the Interpretation of Legislation Act, the determination of an ambiguous section and the lack of specificity as to what could or would constitute “total loss of female sexual organs” it is my view that it means the “total loss of any one of a number of female sexual organs” (my inclusion and emphasis).
In relation to the determination that the Panel made which was based on the function of the female sexual organ, in this case the uterus, it is equally my view that as a matter of law, it is not the appropriate method of determining the question of total loss. The Panel has in my view asked itself the wrong question. Within the Table the Parliament has been quite specific in relation to the area of loss of function or use, as is obvious from matters such as the “total loss of the sight of one eye”, “total loss of sense of taste or smell” and “total loss of power of speech”. Equally within s. 98E(2) the Parliament has deemed that the loss of use of various parts of the body shall be deemed to be the equivalent of the total loss of use of that part of the body for the purposes of compensation. Here the matter could have been dealt with as it has in those areas, by deeming or by inclusion of the phrase, “total loss of the use or function of sexual organs” or a phrase such as loss of procreative ability, or loss of sexual functioning.
In the case of those matters relating to sexual areas (including the breast), Parliament has not deemed that loss of use will be the equivalent of the total loss of that organ, and the failure to include the area of “total loss of female sexual organs”, together with all other sexual references, within that sub-section, is in my view a clear indication that it is the physical loss of the organ that is compensable, not the loss of its use or function.
Accordingly I would answer the questions posed in the following manner:
(a) Whether the total physical loss of one female sexual organ can be the “total loss of female sexual organs? – Yes.
(b) Whether the Panel asked itself the correct question when it asked whether the total loss of female sexual organs can be determined by assessing the functional loss of any particular organ? – No.
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