Gamble v Emerald Hill Electrical Pty Ltd
[2010] VSC 611
•22 December 2010
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
judicial review and appeals list
No. 8566 of 2009
| ANTHONY GAMBLE | Plaintiff |
| v | |
| EMERALD HILL ELECTRICAL PTY LTD | Firstnamed Defendant |
| DR PETER LOWTHIAN (Convenor of Medical Panels) | Secondnamed Defendant |
| MEDICAL PANEL (Constituted by Professor Graham Burrows, Dr Timothy Golumbeck, Dr David Barton, Mr Roy Carey and Dr Mark Faragher. | Thirdnamed Defendant |
| CGU WORKERS COMPENSATION (VIC) LIMITED | Fourthnamed Defendant |
JUDGE: | ROSS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2010; further written submissions filed 7 April, 22 April, 10 May, 20 May, 4 June, 8 November and 15 November 2010. | |
DATE OF JUDGMENT | 22 December 2010 | |
CASE MAY BE CITED AS: | Gamble v Emerald Hill Electrical Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 611 | |
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ADMINISTRATIVE LAW – Review of Medical Panel – jurisdictional error – failure to take into account relevant considerations – adequacy of reasons – constitution of panel – no jurisdictional error – application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.D.B. Ingram | Holding Redlich |
| For the First and Fourth Defendants | Mr M. Fleming | Hall and Wilcox |
| For the Second and Third Defendants | No appearance | Monahan and Rowell |
HIS HONOUR:
Background
The Plaintiff was injured in the course of his employment with the First Defendant on 17 April 2002 when he fell a distance of 1.5 metres to a concrete floor and sustained a number of fractures to his thoracic spine. The Plaintiff’s injuries required hospital admission and surgical intervention.
The Plaintiff sought compensation from the First Defendant in respect of the injuries sustained and also sought an assessment of his degree of whole person impairment for the purpose of claiming compensation pursuant to s 98C of the Accident Compensation Act 1985 (the Act). The Plaintiff subsequently disputed the assessment of his impairment and that issue was referred to a Medical Panel (the ‘Panel’) by the insurer (the Fourth Defendant), pursuant to s 104B(9) of the Act. The Panel was asked to determine the following questions:
(i) the Plaintiff’s degree of whole person impairment resulting from the accepted injuries (relevantly identified as blurred vision, loss of hearing, memory loss, spine, scarring, psychiatric and autonomic disc function resulting in syncope due to positional change) and whether that impairment was permanent; and
(ii) whether the accepted injuries resulted in a total loss of injury mentioned in the table in s 98E(1) of the Act.
The Panel published its certificate of opinion[1] (the Opinion) and the reasons for its opinion[2] on 22 June 2009. The Panel answered question (i) as follows:
[1]Plaintiff’s courtbook (12 February 2010) 190-191.
[2]Ibid 192-8.
“In the Panel’s opinion the worker has a 35% whole person impairment resulting from the accepted head injury including blurred vision, loss of hearing and memory loss, spine, scarring, autonomic dysfunction resulting in syncope due to postural change injuries 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 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) & (15) of the Act there is a combined whole person impairment of 35% resulting from the accepted physical and psychiatric injuries. The degree of impairment is permanent within the meaning of the Act.”
The Panel answered question (ii) in the negative.
The Plaintiff seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) of the Panel’s decision and an order of certiorari quashing the Opinion on the ground that the Panel erred in law in the assessment of the Plaintiff’s impairment in relation to scarring and hearing loss.[3]
[3]As to the principles applicable to such a review see generally: Clark v National Mutual Life Insurance Limited [2007] VSC 341 and HJ Heinz & Or v Kotzman & Ors [2009] VSC 311.
Paragraph 4 of the Originating Motion sets out the grounds in support of the Plaintiff’s claim that the Panel made an error of law as follows:
(a) the Medical Panel failed to assess properly and in accordance with the AMA Guides the impairment of the Plaintiff attributable to scarring;
(b) the Medical Panel erred in considering that there was no impairment to be assessed with respect to scarring pursuant to s. 13.5 of Chapter 13 and in particular Table 2 thereof there being ‘no limitations of daily living attributable to the scars’ when Class 1 of that table provides for assessment where ‘there is no limitation or limitation in the performance of few activities of daily living’;
(c) failing to have any or adequate regard to the report of Mr Felix Behan, Plastic Surgeon, dated 23 February, 2009 a copy of which was in the possession of the Medical Panel particularly in circumstances where the Medical Panel lacked a Plastic Surgeon amongst its members;
(d) failing to provide any or adequate reasons for rejecting the opinion of Mr Behan that the Plaintiff was entitled to an assessment of 2.5% in respect of scarring in accordance with the application of s. 13.5 of Chapter 13 Table 2 of the AMA Guides;
(e) failing to assess the Plaintiff’s hearing loss in accordance with the AMA guides in particular when it was accepted that he had suffered damage to the auditory nerve;
(f) failing to provide any or adequate reasons as to why the Plaintiff was not entitled to have assessed the damage to his auditory nerve.
At the hearing of this matter on 25 March 2010 the Plaintiff’s counsel advanced a number of new contentions which had not been argued in the Plaintiff’s written submissions of 16 December 2009 and nor had they been foreshadowed to the First and Fourth Defendants (collectively the ‘Contradictors’) prior to the morning of the hearing. The hearing proceeded but leave was given to file further written submissions to deal with any matters which could not be fairly answered by the Contradictors during the oral hearing. It is convenient to deal with the new contentions separately and I will turn to those issues after dealing with the matters canvassed in the Plaintiff’s written submissions of 16 December 2009 as supplemented in oral submissions at the hearing on 25 March 2010.
The aspects of the Panel’s determination which are central to this proceeding are those dealing with the Plaintiff’s scarring and hearing loss. Grounds 4(a) - (d) of the Originating Motion deal with the scarring issue and grounds 4(e) - (f) deal with the Plaintiff’s hearing loss. I turn first to the contentions in respect of the Panel’s determination of the Plaintiff’s impairment due to scarring before turning to the hearing loss issue.
Scarring
The surgery necessitated by the Plaintiff’s injuries resulted in scarring. The Medical Panel concluded that there was no impairment applicable for scarring. The Panel deals with the Plaintiff’s scarring at pages 4 and 5 of its reasons:
“The Panel conducted an impairment assessment of the accepted physical injuries in accordance with the AMA Guides to the Evaluation of Permanent Impairment (Fourth Edition, third reprinting) as required by Section 91 of the Act. The Panel considered that no further information was required from the workers’ treating practitioners to carry out the assessment …
The Panel also assessed impairment for scarring in accordance with Section 13.5 of Chapter Thirteen. The Panel considered that as there are no limitations of daily living attributable to the scars and no treatment required for them, there was no impairment applicable for scarring when assessed pursuant to Table 2.”
Grounds 4(a) – (d) deal with this aspect of the Medical Panel’s opinion. These grounds resolve into two points. The first is that the Medical Panel failed to assess the Plaintiff’s impairment in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (‘AMA Guides’). This point encompasses grounds 4(a) and (b).
As to ground 4(a), chapter 13 of the AMA Guides provides criteria for evaluating the effects of permanent impairments of the skin and its appendages. In particular the AMA Guides states:
“13.2 Methods of Evaluating Impairment
In evaluation of a permanent impairment related to a skin disorder, the actual functional loss should be the prime consideration, although the extent of the cosmetic involvement also may be important. Impairments of other body systems, for instance, behavioural problems, restriction of motion or ankylosis of joints, and respiratory, cardiovascular, endocrine, or gastrointestinal tract disorders, may be associated with skin impairments. When there is a permanent impairment of more than one body system, the extent of whole-person impairment related to each system should be evaluated, and the estimated impairment percentages should be combined using the Combined Values Chart (p.322) to determine the person’s total impairment.
In determining the appropriate impairment class (Table 2, p 280) for an affected individual, the physician should primarily consider the impact of the skin condition on the individual’s daily activities. Likewise, the frequency and complexity of needed medical treatment may vary considerably. Both the frequency and intensity of signs or symptoms, as well as the frequency and complexity of the needed medical treatment, may be used to determine the appropriate percentage and estimate within any impairment class. In general, the more frequent and intense the symptoms and the more frequent and complex the medical treatment, the higher the estimated impairment percentage should be.”
Chapter 13 of the AMA Guides also includes several examples of impairment in each class ‘to assist the physician in arriving at appropriate estimates of impairment percentages’.[4]
[4]American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1993) (‘AMA Guides’) 13/279.
The Table 2 referred to in the above extract is set out at p 280 of the AMA Guides:
| Class 1: 0%-9% impairment | Class 2: 10%-24% impairment | Class 3: 25%-54% impairment | Class 4: 55%-84% impairment | Class 5: 85%-95% impairment |
| Signs and symptoms of skin disorder are present or only intermittently present; and There is no limitation or limitation in the performance of few activities of daily living, although exposure to certain chemical or physical agents might increase limitation temporarily; and No treatment or intermittent treatment is required. | Signs and symptoms of skin disorder are present or intermittently present; and There is limitation in the performance of some of the activities of daily living; and Intermittent to constant treatment may be required. | Signs and symptoms of skin disorder are present or intermittently present; and There is limitation in the performance of many of the activities of daily living; and Intermittent to constant treatment may be required. | Signs and symptoms of skin disorder are constantly present; and There is limitation in the performance of many of the activities of daily living that may include intermittent confinement at home or other domicile; and Intermittent to constant treatment may be required. | Signs and symptoms of skin disorder are constantly present; and There is limitation in the performance of most of the activities of daily living, including occasional to constant confinement at home or other domicile; and Intermittent to constant treatment may be required. |
The Plaintiff submitted that the Panel’s assessment was flawed because the Panel failed to describe the scarring which was being assessed. In support of this contention the Plaintiff relied on section 13.5 of the AMA Guides which states:
“Scars should be described by giving their dimensions in centimetres and by describing their shape, color, anatomic location, and any evidence of ulceration; depression or elevation, which relates to whether they are ‘atrophic’ or ‘hypertrophic’; texture, which relates to whether they are soft and pliable or hard and indurated, thin or thick, and smooth or rough; and attachment, if any, to underlying bone, joints, muscles, or other tissue. Good colour photographs with multiple views of the defect enhance the description of scars.”[5]
[5]Ibid 13/279.
There is no substance to this point. The Act required the Panel to assess the Plaintiff’s degree of impairment “in accordance with … the AMA Guides”.[6] The methodology for evaluating impairment is set out at 13.2 of the AMA Guides (see para 11 above). A description of the scarring is not a necessary step in the application of that methodology.
[6]Accident Compensation Act 1985 (Vic) s 104B(9)(a) and s 91(1).
A description of the scarring would be appropriate for inclusion in an ‘impairment evaluation report’. The features of such a report are set out at p13/278 of the AMA Guides. However a medical panel is not required by the Act to make an impairment evaluation report, it is required to make an assessment of impairment in accordance with the AMA Guides.
It is also relevant to note that members of the Panel examined the Plaintiff and observed the scarring for themselves. There is also a full description of the Plaintiff’s scarring in Mr Behan’s report, which was submitted to the Panel.
I am not persuaded that the omission of a description of the Plaintiff’s scarring in the Panel’s reasons amounts to a jurisdictional error.
Nor am I persuaded that the Panel failed to properly assess, in accordance with the AMA Guides, the Plaintiff’s impairment due to scarring.
The AMA Guides assessment methodology directs particular attention to actual functional loss. The primary consideration is the impact on the individual’s daily activities.
It is apparent from Table 2 that the impairment class into which a particular individual falls is dependent on the combination of three things:
(i) presence of signs and symptoms of skin disorders;
(ii) the extent of limitation on the performance of daily living; and
(iii) the frequency of treatment required.
In this case the Panel made two relevant findings of fact: ‘there are no limitations of
daily living attributable to the scars and no treatment required for them’.
These findings effectively required the Panel to assess impairment under Class 1 of Table 2. Class 1 permitted the Panel to determine an assessment in the range of 0% to 9%. The determination of where within that range the Plaintiff’s scarring fell was a matter which called for the exercise of professional judgment by the Panel.[7] The determination of a level of impairment is a question of fact.[8]
[7]H J Heinz Co Australia Ltd & Anor v Kotzman & Ors [2009] VSC 311, 12 [46] (Kyrou J).
[8]Gillat v Transport Accident Commission [2003] 38 MVR 463, 467 [27] (Nettle J).
Ground 4(b) was not the subject of much elaboration in the Plaintiff’s written or oral submissions. To the extent that the ground contends that the Panel misstated the requirements for a class 1 impairment it is misconceived. In terms of the impact on the performance of the activities of daily living, class 1 of Table 2 provides that if there is either no limitation or a limitation in respect of few activities then that would bring the worker within class 1. In this case, the Panel found that there were no limitations of daily living attributed to the Plaintiff’s scars. That finding, and the finding that no treatment was required, placed the Plaintiff into class 1 in Table 2.[9] I am not persuaded that this ground is made out.
[9]See generally Anthony Gamble v Emerald Hill Electrical Pty Ltd & Ors (Transcript, Supreme Court of Victoria, Ross J, 25 March 2010) (‘TN’), pages 35, 72-5.
For completeness I also note that the Panel’s assessment is supported by the examples given in the AMA Guides (see Examples 1 and 4 under Class 1 on p13/281).
The second point advanced by the Plaintiff is that the Panel fell into jurisdictional error by failing to have any regard or adequate regard to the report of Mr Felix Behan, plastic surgeon, dated 23 February 2009. It was submitted that the Panel also erred in failing to provide reasons for rejecting Mr Behan’s report.
The Plaintiff contended that Mr Behan’s opinion required express consideration by the Panel and that the Panel had an obligation to explain the basis upon which it reached a conclusion which differed from the opinion expressed by Mr Behan. It was submitted that in the circumstances of this matter the failure by the Panel to accept Mr Behan’s opinion should lead to an inference that the Panel failed to have regard to that opinion. It was submitted that such an inference ought to be drawn because no member of the Panel had specialist qualifications in Mr Behan’s area of expertise.
Mr Behan’s report is set out at pp119-130 of the Joint Court Book. The gravamen of that report is as follows:
“Description of scarring
The scar dimensions and locations have been documented above. There are minimal contour problems and the scars have healed well, with good signs of integumentary healing. There is no evidence of atrophy or hypertrophy throughout the limits of the scar. Any hardness and induration has settled after this length of time. Revisional surgery is unlikely to be of benefit here and the patient is not unduly embarrassed by this scarring. Functions of the integument is not affected and there is no evidence of any behavioural changes in relation to these scars. There is no sign of scar abnormality or sensory deficit in the vicinity.
IMPAIRMENT
Loss of structure/function measured by and expressed as a percentage.
Ref: AMA Guides, 4th Edition, Chapter 13, page 280, Table 2
| Description | Table | % impairment |
| Upper thoracic scar (10cm) Lower thoracic scar (2cm) TOTAL | 13/280/2 13/280/2 | 2% 0.5% 2.5% |
The figure of 2% in relation to the upper scar takes into consideration the size of the scar and the slight irregularity of the repair.”
It is apparent from its conclusion that the Panel rejected Mr Behan’s opinion.
As to the contention that the Panel erred in failing to provide reasons for its decision to reject Mr Behan’s opinion, an administrative tribunal has no obligation to provide reasons unless the statute under which the decision was made expressly or impliedly so requires.[10] In Sherlock v Lloyd & Ors the Court of Appeal held that medical panels constituted under the Act were under no such obligation and hence a failure to provide reasons or adequate reasons was not of itself an error of law.[11] Sherlock is also authority for the proposition that a ‘substantial failure’ to state reasons may, in the circumstances of a particular case, warrant the inference that the medical panel had failed to exercise its powers according to law.[12] But I am not persuaded that such an inference should be drawn in the circumstances of this case.
[10]Public Service Board of New South Wales v Osland (1986) 159 CLR 656, 662 (Gibbs CJ, with whom Wilson, Brennan and Dawson JJ agreed), 675-6 (Deanne J).
[11][2010] VSCA 122, [19], [23] (Maxwell P, Ashley JA and Byrne AJA).
[12]Ibid [71]-[72]; See also Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 623 [34] (Gummow ACJ and Kiefel J).
The Panel said it had regard to Mr Behan’s report. In paragraph 1 of its reasons the Panel says: “1. The documents considered by the Panel are described in Enclosures A and B”. Enclosure B makes reference to Mr Behan’s report of 23 February 2009. The weight to be given to that report was a matter for the Panel.
I am not persuaded that the Panel failed to have regard to a relevant consideration in the manner contented by the Plaintiff. The failure to advert to a material circumstance in written reasons is a “very unsure guide” in determining whether there was a failure to take that matter into account.[13] Moreover, the mere fact that a Panel may not have specifically dealt with part of a competing body of evidence in the course of its fact-finding task does not necessarily mean that the Panel has not had regard to a relevant consideration.[14] As Bongiorno J observed in Brambles Industries Ltd v Nisselle[15]:
“A Medical Panel’s decision is not a judgment of a Court. It may leave unexpressed its rejection of any particular evidence if such rejection is a reasonable inference from the acceptance of a contrary version.”[16]
[13]Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, 680 (Barwick CJ).
[14]Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, 423 [79] (Allsop J, with Heerey J agreeing), W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398, [32] (French J), Geroge v Nisselle & ors [2005] VSC 177, [44]-[45] (Gillard J), Brambles Industries Ltd v Nisselle & ors [2005] VSC 82, [22] (Bongiorno J), Clarke v National Mutual Life Insurance Ltd [2007] VSC 341, [43] (Forrest J).
[15][2005] VSC 82.
[16]Ibid [21]
It is also relevant to observe that Mr Behan’s assessment appears to have been based solely upon cosmetic irregularity and hence was not done in accordance with the AMA Guides. As I indicated earlier the AMA Guides say that ‘the actual functional loss should be the prime consideration, although the extent of cosmetic involvement also may be important’ (at p13/278).Mr Behan also assessed the two scars separately, with a separate impairment assessment for each. He then aggregated the individual assessments. Such an approach is inconsistent with the AMA Guides as a single overall impairment is to be assessed for multiple scars.[17] Under the AMA Guides ‘the skin’ is assessed as a single entity. In the circumstances the Panel’s decision not to adopt Mr Behan’s assessment is entirely explicable.
[17]See AMA Guides Example 2, 285 and Example 4, 288.
As to the Plaintiff’s contention that none of the members of the Panel were experts with Mr Behan’s qualifications, I note that although no member of the panel practices as a plastic surgeon, occupational physician Dr Barton had completed the AMA Guides training module relevant to the assessment of impairment of the skin (dermatology). In any event, once convened, a Panel is required to carry out the referral in accordance with the law and the AMA Guides relevant to the assessment.
For completeness I note that the Panel’s conclusion is supported by the report of Dr Fish, a consultant Occupational and Environmental Physician. Dr Fish describes the scar in the following terms:
“Examination of the chest revealed a scar over the left lateral chest wall consistent with previous surgery. It was 10cm in length, pale, fine, flat and not tethered. There was no surrounding dysaesthesia.” [18]
[18]Joint Court Book of the Plaintiff and First and Fourthnamed Defendants (16 February 2010) 79.
Dr Fish concluded that ‘the scarring attracts no impairment pursuant to Chapter 13, Table 2’.[19]
[19]Ibid 80.
Hearing Loss
In relation to the hearing loss assessment, the Plaintiff submitted that the Panel failed to assess the hearing loss in accordance with the AMA Guides. Further, it was submitted that the Panel failed to provide any or adequate reasons as to why the Plaintiff was not entitled to have assessed the damage to his auditory nerve (ground 4(f)).
The Medical Panel deals with the Plaintiff’s hearing loss at pp 5-6 of its reasons:
“As the worker has a binaural hearing loss, the Panel calculated the worker’s binaural hearing loss in accordance with the Improved Procedure for Determination of the Percentage Loss of Hearing (1988 Edition) published by the National Acoustic Laboratory as required by Section 91(3) of the Act.
The Panel concluded that Guidelines for the assessment of noise induced hearing loss referred to in the Manner for determining the percentage of diminution of hearing under Section 91(4) (“the Guidelines”) approved by the Minister are not applicable in this case, as the loss of hearing is due to the damage to the auditory nerve.
The Panel also concluded that as the Guidelines are not applicable in this case, there is no reduction in the hearing loss of presbyacusis.
The Panel considered that the audiogram results of 16 February 2009 was reliable and assessed hearing loss due to head trauma according to the frequencies 500 to 4000 Hertz. The Panel assessed a binaural hearing loss of 7.1% due to damage to the inner ear.
The Panel noted the medical report of the independent medical examiner Mr. Michael Silverstein, dated 4 September 2008, wherein he assessed an 11% whole person impairment resulting from the accepted hearing loss injury.
Although the Panel considered that the audiogram results obtained on 16 February 2009 were reliable, the Panel noted that its results and those of Mr. Silverstein, some 5 to 6 months earlier, quite differed. The Panel therefore concluded that it be reasonable for the worker to undergo Cortical Evoked Response Audiometry (CERA), and which was performed on 10 June 2009.
The Panel considered the CERA results of 10 June 2009 demonstrated a slight high tone sensorineural loss, worse on the left side.
The Panel calculated hearing loss due to head trauma according to the CERA results of 10 June 2009 in the frequencies 500 to 4000 Hertz, and assessed 9.1% binaural loss due to damage to the inner ear, which is equivalent to a 0% whole person impairment.”
Mr Silverstein’s report is set out at pp 112-118 of the Joint Court Book. He examined the Plaintiff on 4 September 2008 and audiology was performed on that day in an accredited laboratory. The audiology results showed asymmetric hearing losses worse in the left than the right ear. The decibel loss calculated by the NAL Method (1988) without deduction for presbycusis was:
| FREQUENCY | RIGHT EAR | LEFT EAR | PLH (Percentage Hearing) |
| 500 1000 1500 2000 3000 4000 | 15 15 15 15 35 45 | 30 30 35 40 45 50 | 1.0 1.2 1.3 1.3 2.7 3.6 |
| Total percentage of Binaural loss: | 12.1 | ||
Section 91(4)(b) of the Act provides that the percentage diminution of hearing shall be determined in accordance with the ‘Improved Procedure for Determination of Percentage Loss of Hearing’ 1988 Edition published by the National Acoustic Laboratory. In its reasons the Panel said that it calculated the Plaintiff’s binaural hearing loss in accordance with the prescribed method and there is no reason to doubt that it did.
The Panel constituted to assess the Plaintiff’s impairment did not contain a member who was a specialist qualified to assess hearing loss. The Panel engaged a consultant to assist it, Mr Henry Rundle. Mr Rundle is a specialist otolaryngologist and an ‘approved’ person for the purposes of s 91(4)(a) of the Act. At the relevant time the Act limited a convened Panel to five members (s 63(4))[20] and in circumstances where multiple impairments are claimed, as was the case here, it was common for consultants to be engaged. Section 63(6A) of the Act clearly envisages that consultants may be engaged for the purpose of providing expert advice to a medical panel.
[20]The number of members is no longer capped at five, s 63(4) was amended by s 88 of the Accident Compensation Amendment Act 2010 and in respect of Medical Panels convened on and from 5 April 2010 the Convenor may determine the number of members to constitute a Medical Panel based on what he or she considers to be appropriate in each particular case.
Subsections 65(7) and (9) are also relevant. They provide that the Convenor may make directions as to the arrangement of the business of medical panels and as to the procedures of such panels. The Convenor has issued directions pursuant to these powers. Clause 32 of those directions expressly provides that a medical panel may consult an expert or allied health professional:
“The Medical Panel may, where necessary, obtain advice from a suitably qualified and experienced person who is engaged as a consultant – (for example: from a further medical practitioner, where the Panel already consists of the statutory maximum number of members; or, in an appropriate case, from an allied health professional, vocational or industrial psychologist or a provider of occupational rehabilitation services).”
I reject the Plaintiff’s submission that the Act does not permit consultants to conduct an examination which is itself determinative of the impairment.[21] As a medical panel can clearly engage an expert to advise it I fail to see how it can be said that the panel cannot act on that advice. The Panel was acting within its jurisdiction in engaging Mr Rundle and was entitled to rely upon his expertise in assessing the Plaintiff’s hearing loss.
[21]TN page 85.
Based on an audiogram performed on 16 February 2009 Mr Rundle assessed the Plaintiff’s binaural hearing loss at 7.1 per cent.
In its reasons the Panel noted the inconsistency between Mr Rundle’s assessment and the assessment of Mr Silverstein which had been based on testing carried out some five to six months earlier. In the circumstances the Panel concluded that it was reasonable for the Plaintiff to undergo Cortical Evoked Response Audiometry (CERA). The CERA was performed on 10 June 2009 and assessed 9.1 per cent binaural loss due to damage to the inner ear. The Panel accepted this assessment and, because of the provisions in s 91(3)(a), the Plaintiff’s whole person impairment due to hearing loss was assessed at zero.
In my view the Panel’s assessment was done in accordance with the Act and the reasons for the Panel’s opinion do not disclose jurisdictional error. The Panel noted the inconsistency between the assessments of Mr Silverstein and Mr Rundle and given the difference in those assessments had the Plaintiff undergo CERA. The Panel then adopted the CERA results and it was entitled to do so.
Contrary to the Plaintiff’s submissions I am not persuaded that the Panel was obliged to obtain any advice from Mr Silverstein as to his assessment of the CERA results. It follows that the Panel did not fail to afford the Plaintiff procedural fairness by not referring the CERA results to Mr Silverstein for an opinion. In any event I note that there is no suggestion advanced about what, if anything, Mr Silverstein may have said about the CERA results.
I now propose to deal with the Plaintiff’s new contentions.
The New Contentions
At the hearing of the application, the Plaintiff’s counsel advanced five new contentions:
(i) The Panel had been convened with seven members in breach of s 63(4) of the Act and this breach tainted the Panel’s opinion with illegality such that it should be quashed (hereafter ‘the seven member panel contention’).
(ii) In the alternative to contention (i), the use by the five member Panel of the expertise of Mr Rundle, an otolaryngologist, demonstrated that the Panel had impermissibly delegated its obligation to determine the fraction of whole person impairment in respect of the Plaintiff’s loss of hearing (hereafter ‘the impermissible delegation contention’).
(iii) The Convenor’s reference in his 6 January 2009 letter to the medical examinations by the consultants being compulsory was unsupported by the Act. It was contended that the false assertion by the Convenor of the compulsory character of the consultants’ examinations, perhaps even the mere arrangement of the medical examinations themselves by the Convenor, contaminated these medical examinations with illegality. Further, any advice given to the Panel, or use by the Panel, based upon the medical examinations, in particular the testing of hearing loss by Mr Rundle, was also rendered unlawful (hereafter ‘the compulsory consultants’ examination contention’).
(iv) Mr Rundle’s reliance upon a hearing test apparently conducted on 10 June 2009 by an ‘Audiologist’ identified as ‘KG’ in the ‘Alfred Hospital Oto-Neurology Diagnostic Service Audiology’ test record (see AB p.200, this test is referred to in the Panel’s Reasons as a Cortical Evoked Response Audiometry test arranged by the Panel and undergone by the worker on 10 June 2009) constituted unlawfulness by the Panel. It was submitted that the testing of the Plaintiff’s loss of hearing by the audiologist KG further supported the contention that the assessment of the worker’s whole person impairment in accordance with the Guides, in relation to that part of impairment due to hearing loss, had not been done by the Panel itself, but by another person. It was also submitted that the qualifications of the audiologist KG were not in evidence: (hereafter, ‘the audiologist KG test contention’).
(v) Plaintiff’s counsel tendered a copy of an electronic July 2009 newsletter titled ‘Impairment Assessment Training’ and drew attention to references in the material to comments concerning ‘Scar impairment Assessment’ in particular to text drawing attention to those parts of the AMA Guides on p13/279 saying how scars should be described and photographed. This material was tendered to support the contention, already made in the Plaintiff’s written submissions, that the Panel’s Reasons did not contain sufficient description or photographing so as to show that the Panel had assessed impairment due to scarring in accordance with the requirements or directions in the Guides in that respect: (hereafter, ‘the July 2009 newsletter contention’).
The preliminary issue which falls for determination is whether it is necessary for the Plaintiff to seek leave to amend the grounds of review set out in the Originating Motion in order to embrace the new contentions advanced at the oral hearing.
The Plaintiff’s principal submission is that no amendment is necessary. In the alternative the Plaintiff seeks leave to amend ground 4(e) as follows:
“Failing to assess the Plaintiff’s hearing loss in accordance with the AMA Guides for the purposes of s. 98C of the Act and pursuant to ss. 91(1) and 104B(9) of the Act in that –
(i) the Medical Panel did not include any person qualified to undertake an assessment of the Plaintiff’s hearing loss;
(ii) the Medical Panel which examined and assessed the Plaintiff’s degree of permanent impairment under the AMA Guides exceeded the five members permitted by s. 63(4) of the Act;
(iii) alternatively, if the Medical Panel which assessed the Plaintiff’s permanent impairment was a five member Panel, then the assessment of the Plaintiff’s level of hearing loss in accordance with the AMA Guides was impermissibly delegated to Mr Henry Rundle, otolaryngologist, who was not a member of the Panel;
(iv) the Medical Panel impermissibly required and/or permitted the Plaintiff to be examined by –
A. Mr Henry Rundle, otolaryngologist;
B. an audiologist identified as ‘KG’ –
for the purposes of assessing his hearing loss in accordance with the AMA Guides;
(v) the Medical Panel impermissibly adopted as its finding:
A. results of an audiology test performed on 10 June 2009 by an audiologist identified as ‘KG’ in the absence of evidence or information to establish that ‘KG’ was a person or a member of a class of persons approved by the Minister for the purposes of s. 91(4) of the Act;
B. results of an audiology test performed on 10 June 2009 in circumstances where the Panel did not engage ‘KG’ as a consultant for the purposes of providing it with expert advice (assuming that such a course was one permitted by the Act);
C. the assessment which Mr Henry Rundle, otolaryngologist made of the Plaintiff’s hearing loss impairment in accordance with the AMA Guides.
(vi) the Medical Panel did not determine the assessment of the Plaintiff’s hearing loss in accordance with s. 91 of the Act.”
Contrary to the Plaintiff’s submission I am not persuaded that each of the new contentions is embraced within the existing ground 4(e). The new contentions cannot be reasonably construed as particulars of the proposition that the Panel failed to assess the Plaintiff’s hearing loss is accordance with AMA Guides.
The question which then arises for determination is whether leave should be given to amend the grounds in the manner proposed by the Plaintiff.
In my view there is considerable force in the Contradictor’s submission that it is not appropriate for the Court to now permit a challenge to be mounted to the Panel’s constitution for the purpose of a collateral attack on the validity of the Panel’s certificate of opinion. However given that the matter has been fully argued the appropriate course is to give leave to amend ground 4(e) in the manner proposed.
The new grounds in substance reflect the new contentions which are set out at paragraph 49 herein. I propose to deal with each of these matters in turn.
The seven member panel contention (ground 4(e)(ii))
The Plaintiff contended that the Panel was impermissibly convened as a seven member panel, in contravention of s 63(4), as in force at the relevant time. In support of this contention the Plaintiff relied on correspondence from the Convenor of Medical Panels to the Plaintiff’s solicitors dated January 2009 and various parts of the Panel’s reasons. The letter to the Plaintiff’s solicitors is in the following terms:
“Re: Referral to Medical Panels
Worker:Mr Anthony Gamble
Address:3 Strawbent Rise
Narre WarrenVIC3805
Date of Birth:15/04/1953
Employer:Emerald Hill Electrical P/L Ceased: 18/03/04
For your information, please find a copy of correspondence detailing Medical Panel appointments addressed to your client.
Should you have any inquiries regarding this matter, please contact the Medical Panels on 8256 1555.
Yours sincerely,
DR PETER LOWTHIAN
CONVENOR” [emphasis added]
Attached to this letter is correspondence from the Convenor to the Plaintiff:
“Dear Mr Gamble,
I have received a referral of medical questions in relation to your WorkCover claim from CGU (Melb) Workers Compensation. I have nominated a Panel of doctors to give an opinion in answer to the medical questions. At the request of the Panel I have arranged the following examinations:
DOCTORS ADDRESS DATE & TIME Dr James Galbraith
Ophthalmologist Consultant
Cabrini Medical Centre
Suite 2, Isabella Street,
Malvern 3144
Tuesday, 27 January 2009
11:00AM
Prof. Graham Burrows
Psychiatrist
Dr Timothy Golumbeck
Psychiatrist
Medical Panels
Level 18, 460 Lonsdale Street Melbourne
Wednesday, 11 February 2009
09:00AM
Dr David Barton
Occupational Physician
Mr Roy Carey
Orthopaedic Surgeon
Dr Mark Faragher
Neurologist
Medical Panels
Level 18, 460 Lonsdale Street Melbourne
Friday, 13 February 2009
10:15AM
Mr Henry Rundle
Otolaryngology Consultant
Cabrini Medical Centre
Suite 18; Isabella Street, Malvern 3144
Monday, 16 February 2009
0:245PM
Please see the next page for information regarding your appointment with Medical Panels.
Yours sincerely,
DR PETER LOWTHIAN
CONVENOR
MBBS (Hons), FRACP, FAFRM” [emphasis added]
General information
Enclosed are a copy of the medical questions and a Schedule of Attachments, which lists all of the material in the possession of the Medical Panels.
Except when you have been referred by a Court, you should send copies of any further material that you wish to place before the Medical Panel to my office prior to the date of examination. If you have been referred by a Court, the Medical Panel can only consider material that has been forwarded by a Judge or Magistrate.
You should bring to the physical examination any X-Rays, CT Scans or other investigation results in your possession.
Please also bring your current medications or a list of the medications, whichever is more convenient.
Examinations are to be held in private but the Medical Panel will allow a family member or friend to attend during a physical examination for support or to assist you to undress/dress, if required. Any person accompanying you to an examination will not be allowed to speak on your behalf or interpret.
Because of the personal and private nature of the questions asked, a psychiatrist is unlikely to allow a friend or family member to attend a psychiatric appointment.
Please contact my office if you have been seen by any of these doctors previously, as the law does not allow a doctor to be on a Panel if he/she has already treated or examined you, except in the case of a previous Medical Panel referral.
For more information on Medical Panel examinations, please read the enclosed brochure.
lf for any reason, you cannot attend the above appointments, you must contact my office on 8256 1555 or 1800 061 715 immediately. Section 67(4) of the Accident Compensation Act, 1985, provides that your entitlements to compensation may be suspended if you unreasonably refuse to attend or you hinder the examinations in anyway.
The Plaintiff also relied on various comments made in the Panel’s reasons. For convenience I have attached the Panel’s reasons and have highlighted those parts upon which the Plaintiff relied. In essence the highlighted comments refer to certain examinations (and other matters) being carried out by the Panel in circumstances where they were in fact carried out by either Dr Galbraith or Mr Rundle.
Contrary to the Plaintiff’s contention I am not persuaded that the Convenor convened a seven member panel contrary to the terms of s 63(4), as it then was.
I accept that there are indications to the contrary in the letter of 6 January 2009 and in the Panel’s reasons but in my view these matters are not determinative, for three reasons.
First, in its Certificate of Opinion (as distinct from its reasons) the Panel is described as comprising five names persons (Professor Graham Burrows; Dr Timothy Golumbeck; Dr David Barton; Mr Roy Carey and Dr Mark Faragher) and those persons are described as ‘members’. The Opinion also states:
“The Panel consulted with Mr Henry Rundle (Otolaryngology) and Dr James Galbraith (Opthalmologist), prior to reaching its opinion.”
Hence the Opinion clearly describes the five members of the Panel and draws a distinction between the five Panel members and the two experts who had been consulted prior to the Panel reaching its opinion.
This is particularly significant because it is the certificate of opinion which formally identifies or establishes the opinion and it is the opinion which determines the answers to the relevant medical questions (ss 67 and 68). A court must treat the opinion as determining the answers to the referred medical questions (s 68(4)) and the certificate of opinion is admissible for that purpose (s 48(1)). But the reasons for the opinion of a medical panel are not admissible in evidence.[22]
[22]Lianos v Inner & Eastern Health Care Network (2001) 3 VR 136, 144-5 [28]-[31] (Chernov JA, with whom Tadgell and Batt JJA agreed).
Second, the Convenor’s letter of 6 January 2009 needs to be read as a whole. It indicates that a Panel had been convened to give an opinion and arrange medical examinations ‘at the request of the Panel’. Only two of the seven medical examiners were described as a ‘consultant’, namely Mr Rundle and Dr Galbraith.
Third, it needs to be borne in mind that the reasons provided are those of a tribunal and not that of a judicial body. Such reasons are entitled to a beneficial construction.[23] As a Full Court of the Federal Court observed in Collector of Customs v Pozzolanic[24] a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision maker.[25] The court went on to observe that: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.[26] These observations were endorsed by their Honours Brennan CJ and Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[27]:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reason are expressed.” [28]
[23]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271 (Brennan CJ, Toohey, McHugh and Gummow JJ) citing with approval what was said by the court below.
[24]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[25]Ibid 287 (Neaves, French and Cooper JJ).
[26]Ibid (Neaves, French and Cooper JJ).
[27](1996) 185 CLR 259.
[28]Ibid 272; Affirmed in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, 1197 [25] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
In the same case Kirby J said:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”[29]
[29]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 291.
Applying such an approach to the Panel’s reasons, the extracts relied upon by the Plaintiff should be regarded as verbal slips and do not substantiate the contention that the Panel was impermissibly convened as a seven member panel. Hence where it is said that the Panel conducted an examination or test that should be read as saying that the Panel was informed by its consultant as to that matter.
A fair construction of the Opinion and the Reasons, construed as a whole, is that a five member panel was convened, consistently with s 63(4) as it then was, and that the Panel was provided with expert advice by two consultants engaged for that purpose.
I also note that amended ground 4(e)(i) does not disclose jurisdictional error. There is nothing in the Act which requires that a medical panel must include experts able to assess all of the workers’ impairments.
The impermissible delegation contention (ground 4(e)(iii))
The Plaintiff’s submission is encapsulated in the following extract from the transcript of counsel’s oral submissions:
“Implicitly if you accept that the panel can seek expert advice from a consultant engaged for that purpose. The extent of the implication is that the panel can receive advice. The submission is that the panel cannot use the receipt of advice to substitute the testing and examination function of the panel. In other words, that’s not advice. That is delegating to a person who’s not a member of the panel the entire examination and reporting power of the panel. That’s emphasised by the passages that I’ve already referred the court to. There was no member of the panel who could have made the calculations and made the determinations that are referred to in the reasons of this panel other than – with particular reference to this hearing loss, other than Mr Rundle.
No one had the qualifications to do it. So Mr Rundle hasn’t provided expert advice to the medical panel. He has performed the function of the medical panel. If I can put it that simply. It is as simple as that.”[30]
[30]TN page 23 lines 7-26.
I do not find this submission persuasive.
It is important to note at the outset that the Act impliedly authorises a medical panel to be assisted by consultant medical experts and specifically empowers a panel to inform itself in any manner it thinks fit (s 65(1)).
That is what occurred in this case. The Panel was provided with the expert advice of two consultants, in particular the expert advice of Mr Rundle as to the degree of the Plaintiff’s hearing loss assessed in accordance with s 91(4) of the Act. In its Opinion the Panel said that it ‘… consulted with [the two consultants] prior to reaching its opinion’. In its Reasons the Panel said that it ‘… formed its opinion by reference to … the guidance of the Consultants’.
The language of the Opinion and the Reasons belies the proposition that the Panel handed over to the Consultants its power and obligation to form an opinion as required by the Act. There was no delegation of the Panel’s statutory function. The fact that the Panel accepted Mr Rundle’s opinion and advice is not decisive. The Panel exercised its judgment in accepting that opinion and preferring it to the opinion of Mr Silverstein, as it was entitled to do. Had the Panel delegated its authority to Mr Rundle it would have been bound to accept Mr Rundle’s opinion. That was not the case, the Panel chose to accept Mr Rundle’s opinion and it was entitled so to do.
The compulsory consultant’s examination contention (ground 4(e)(iv))
It was contended that the Plaintiff was under no legal obligation to attend any examination by a consultant (contrary to what the Convenor told the Plaintiff) and accordingly the Panel was not able to rely on the results of any such examination.
I am not persuaded that the Panel’s reliance on Mr Rundle’s examination and the CERA test results constitute jurisdictional error. Even if the Plaintiff was under no statutory obligation to attend a consultant’s examination or to submit to a CERA test I am not persuaded that the Panel erred in relying on these matters. The fact is that the Plaintiff did attend Mr Rundle and was examined; he also underwent the CERA test. The Plaintiff’s solicitors were informed of the Panel’s requirement that the Plaintiff attend an examination by Mr Rundle (see Exhibit A1) and took no exception to the course proposed.
In the circumstances I need not express a view about the Contradictor’s contention that s 65(5) of the Act should be read as encompassing examinations by consultant medical experts.
The audiologist KG test contention (ground 4(e)(v)(A) and (B))
I am not persuaded that these contentions are made out.
A medical panel is permitted to inform itself as it thinks fit and for that purpose may engage another professional to conduct a medical test. Hence radiographers take xrays, CT scans etc. The Panel was not confined to the hearing tests already performed and supplied to the Panel as part of its referral. It was entitled to consult an otalaryngologist and to have hearing tests performed.
Mr Rundle accepted that the tests conducted were reliable and the Panel was entitled to rely upon his opinion.
The July 2009 newsletter contention
I am not persuaded that the newsletter, Exhibit A3, advances the Plaintiff’s case to any significant extent. The reference to the desirability of describing the scars to be assessed is directed at those preparing conventional medical reports in connection with making an assessment of impairment due to scarring in accordance with the AMA Guides. As I have already mentioned (see [16] to [18] herein), the task of a medical panel under the Act is quite different.
Conclusion
I am not persuaded that any of the grounds advanced have been made out and accordingly I dismiss the application.
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