Gilmour v Department of Education and Training
[2022] VSC 127
•16 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04093
| JENNIFER GILMOUR | Plaintiff |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING and ORS (according to the attached Schedule of Parties) | Defendants |
---
JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2021 |
DATE OF JUDGMENT: | 16 March 2022 |
CASE MAY BE CITED AS: | Gilmour v Department of Education and Training & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 127 |
---
ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Workplace incident – Injury to left ankle – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Physiotherapy and other specified expenses – Section 232(5) medical expenses where person has returned to work and could not remain at work if service not provided – Medical services essential to ensure health and activities of daily living do not significantly deteriorate – Certiorari sought to quash medical penal opinion – Utility of relief – Discretionary considerations.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram QC with Ms S. Gold | Arnold Thomas & Becker |
| For the First Defendant | Mr R. Kumar | Thomson Geer |
| For the Second to Fourth Defendants | No appearances | DLA Piper Australia |
HER HONOUR:
Jennifer Gilmour (the worker) sustained a left ankle injury in a fall at work on 6 October 2016 (the incident). She received weekly payments for a short period and on returning to work continued to receive medical treatment pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). The medical and like expenses were largely terminated by notice on 20 February 2018, save for specified limited physiotherapy for a further period of six months. Then by notice dated 7 January 2019, the authorised WorkCover agent terminated the worker’s entitlement to all medical and like expenses.
Ms Gilmour commenced proceedings in the Magistrates’ Court to challenge the decisions of the insurer to terminate medical and like expenses. On 5 May 2020, the Magistrate referred questions to a medical panel (the Panel) in accordance with s 274(b) of the WIRC Act. The Panel provided a Certificate of Opinion accompanied by its reasons on 1 September 2020 (the Opinion, and the Reasons). The Opinion effectively denied further medical expenses. The Panel found that whilst the worker continues to suffer a chronic compensable injury as a result of the incident, none of the medical and like services identified were needed to ensure that she could remain at work, nor were they essential to ensuring that her ability to undertake the necessary activities of daily living will not significantly deteriorate.
The Panel, was constituted by Dr David Kotzman, Mr Roderick Cunningham and Dr Jennifer Harmer, who are the second to fourth defendants, and has taken no part in the proceeding in accordance with a Hardiman letter dated 3 September 2021.[1] The first defendant, who was Ms Gilmour’s employer, is the contradictor, and whom I will simply refer to as the defendant.
[1]In accordance with R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
Ms Gilmour brings this proceeding for judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) seeking certiorari to quash the opinion of the Panel and an order remitting the questions to a differently constituted panel for redetermination.
The WorkCover dispute
Weekly payments were paid to Ms Gilmore until 17 January 2017 when they were ceased on the basis that she had resumed her pre-injury employment. The notice dated 20 February 2018 (the first notice) relied on s 232 of the WIRC Act, which provides that where weekly payments are made, compensation by way of medical and like expenses (payable under s 224 of the WIRC Act) ceases 52 weeks after the entitlement to weekly payments ceased unless, relevantly, subsection (5) applies. Subsection (5) provides:
(5) Compensation under this Division does not cease if -
(a) the worker has returned to work, but -
(i)could not remain at work if a service under s 224(1) was not provided, or
(ii) surgery is required for the worker, or
…
(c)a service under s 224(1) is essential to ensuring that the worker’s health or ability to undertake the necessary activities of daily living does not significantly deteriorate.
The first notice ceased all treatment other than physiotherapy and approval of a gym/swim program if requested. It took effect from 27 March 2018. It provided for 20 physiotherapy sessions over 20 weeks until 28 August 2018, and set out that the further approved treatment was ‘aimed at self-management’. This was based upon a treatment plan provided by a physiotherapist, Mr Justin Balbir. The decision observed that Ms Gilmour had been at work with no treatment other than physiotherapy since July 2017.
In a belt and braces approach by the insurer, two further decisions were put in issue. The first of them, dated 7 January 2019, terminated liability for all medical expenses and weekly payments on the ground that the incapacity, and any need for medical treatment, was no longer materially contributed to by the injury (the termination notice). The latter, dated 9 January 2019, rejected liability for a functional restoration program (the rejection notice). In September 2018, a general practitioner, Dr Michael O’Gorman had requested this further treatment as deterioration had occurred on cessation of Pilates and physiotherapy services. In February 2019, the worker attended an independent medical examination with Dr Timothy Wood for an assessment of ongoing medical and other health services. His report dated 5 February 2019 recommended referral to a specialist at Rehabilitation Medicine Group in Moorabbin. His report was, self-evidently, not available to the insurer at the time it issued the termination notice and the rejection notice.
The plaintiff had commenced work at Melbourne High School on 21 March 2016 as a casual relief teacher. She generally worked as an arts/photography teacher. On her first day of work she suffered a right ankle injury in a separate slip and fall which had been the subject of a WorkCover claim. That claim was not in issue in the proceeding although there was reference to it in the material. It was said by some medical practitioners to have complicated recovery from the later, left ankle injury. There was also an allegation of a hip injury at the time of the incident or consequent to the left ankle injury. Her resumption of pre-injury duties at the end of 2016 was to full-time duties. On commencement of the 2017 school year, the Panel recorded that she worked in an ongoing position of three days per week. In 2018, she commenced a position as a casual relief teacher at Lauriston Girls’ School performing the same hours and similar duties. In March 2020, by virtue of the shutdown associated with the Covid-19 pandemic, her work ceased.
Although the decisions under question took effect from March 2018 or later, the questions that went to the Panel put in issue time since 27 March 2017. The Panel answered the questions by reference to that date.
The Panel’s answers
The questions asked, and the Panel’s answers were:
Question 1: What is the nature of the Plaintiff’s medical condition of the:
a. Left ankle?
b. Left hip?
Answer: In the Panel’s opinion, Ms Gilmour is suffering from chronic secondary musculo-skeletal pain, as a consequence of a ruptured left anterior talo-fibular ligament.
The Panel is also of the opinion that there is no intrinsic medical condition of the left hip.
Question 2: Does any medical condition identified in answer to question 1 result from, or is it materially contributed to by, the injury to the left ankle suffered on 6 October 2016?
Answer: The Panel is of the opinion that the chronic secondary musculoskeletal pain, as a consequence of a ruptured left anterior talo-fibular ligament, is materially contributed to by the injury to the left ankle suffered on 6 October 2016.
Question 3: If yes to question 2:
a. In the period between 27 March 2017 to the date of the Medical Panel’s examination; and
b. currently –
were/are any (and if so which) of the following medical and like services essential to ensuring that the Plaintiff could/can remain at work?
(i) physiotherapy;
(ii) a 12-week functional restoration program;
(iii) podiatry (including orthotics);
(iv) clinical Pilates;
(v) a foam roller;
(vi) medication including but not limited to Lyrica, Panadeine Forte or Panadol Osteo;
(vii) hydrotherapy;
(viii) MRI scan of left foot;
(ix) MRI scan of left hip (taken on 27 January 2019);
(x) general practitioner reviews?
Answer: In the Panel’s opinion, in the period between 27 March 2017 to the date of the Medical Panel’s examination, and currently, none of the medical and like services listed above (i-x) were/are essential to ensuring that Ms Gilmour could/can remain at work.
Question 4: If yes to question 3, with what frequency should such services be provided?
Answer: Not applicable.
Question 5: If yes to question 2:
a. In the period between 27 March 2017 to the date of the Medical Panel’s examination; and
b. currently –
were/are any (and if so which) of the following medical and like services essential to ensuring that the Plaintiff’s health or ability to undertake the necessary activities of daily living do not significantly deteriorate?
(i) physiotherapy;
(ii) a 12-week functional restoration program;
(iii) podiatry (including orthotics);
(iv) clinical pilates;
(v) a foam roller;
(vi) medication including but not limited to Lyrica, Panadeine Forte or Panadol Osteo;
(vii) hydrotherapy;
(viii) MRI scan of left foot;
(ix) MRI scan of left hip (taken on 27 January 2019);
(x) general practitioner reviews?
Answer: In the Panel’s opinion, in the period between 27 March 2017 to the date of the Medical Panel’s examination, and currently, none of the medical and like services listed above (i-x) were/are essential to ensuring that Ms Gilmour’s health or ability to undertake the necessary activities of daily living do not significantly deteriorate.
Question 6: If yes to any part of question 5, with what frequency should such services be provided?
Answer: Not applicable.
Grounds of Review
The worker sets out grounds of review in the Further Amended Originating Motion that deal with five issues. First, it is alleged that there is a failure to comply with a statutory condition and/or a failure to accord procedural fairness, or that other jurisdictional error arises because a bundle of further documents (the additional documents) provided to the Magistrates’ Court following the referral were not provided to the Panel and so not considered.[2] The additional documents were sent to the Court under cover of a minute of proposed consent order signed by the parties, ordering that the additional 28 listed documents be provided to the Medical Panel.
[2]Plaintiff, ‘Amended Originating Motion for Judicial Review’, Originating Motion in Gilmour v Department of Education and Training & Ors S ECI 2020 02093, 30 October 2020, [10A], [10B], [10C].
Second, it is said that procedural fairness was not accorded to the plaintiff to respond to the conclusions stated in the answers to questions 3 and 5, which found that she suffered a continuing compensable condition but that it did not require medical treatment to remain at work or conduct her daily activities.[3] The worker says that there was no medical opinion to this effect before the Panel and she could not have anticipated such a conclusion.
[3]Ibid [11].
Third, in answering questions 3(a) and 5(a), the Panel failed to consider or genuinely engage with relevant consideration as to:
(a) the detail and functional requirements of her work activities;[4] and
(b) the required treatment undertaken or required in the period from 27 March 2017 to the time of the Panel’s examination;[5] and
(c) a wrong history of the effect and benefit of physiotherapy treatment, the actual treatment received until ceasing work and a wrong history of wearing orthotics.[6]
[4]Ibid [12].
[5]Ibid [13].
[6]Ibid [14].
Fourth, the Panel made critical errors of fact amounting to jurisdictional error. They, like the considerations in the previous ground, were as to the nature of the plaintiff’s pre and post injury duties, the medical treatment and benefit gained from physiotherapy, and the impact of the left ankle on activities of daily living.[7]
[7]Ibid [15].
Finally, inadequate reasons is also raised as a ground.
Failure to consider additional documents – the material before the Panel
The schedule of attachments disclosed the material before the Panel. It comprised the pleadings, the notice of referral and joint statement, submissions of the parties, and medical material. Relevantly, it enclosed reports of the general practitioner, Dr O’Gorman, dated 26 September 2018 and 21 March 2019; reports of physiotherapists Ms Takarangi from 2017, Andrew Brand from 2018 and Dr Phillips from 2019; some radiology, together with three medical-legal assessments obtained by the insurer from Dr Barton in 2016, Dr Lucas in 2018 and Dr Wood in 2019. Finally, a Workplace Assessment Report dated 25 November 2016 was also included.
The additional documents comprised a substantial amount of medical material dated throughout 2016 and 2017. It included the report of Mr Balbir relied on by the insurer in the first notice and additional reports from Mr Brand and Ms Takarangi from September and December 2017 respectively. It also included, inter alia, right and left ankle radiography and photographs of the ankle and hip bruising. It also included a medico-legal report obtained by the plaintiff’s solicitors from Mr W Edwards, orthopaedic surgeon dated 19 May 2020.
The Panel’s reasons state that it formed its opinion with regard to documents and information in Enclosures A and B. The additional documents described above are neither listed in those enclosures, nor referenced in the Panel’s reasons. In an affidavit affirmed by the solicitor for the plaintiff,[8] it is deposed that the additional documents were sent to the Magistrates’ Court by email on 9 July 2020, but no response or orders were received confirming that the further material had in fact been provided to the Panel. It is accepted by both parties that the additional documents were not forwarded to the Convenor of Medical Panels.[9] The Panel examined the worker on 21 July 2020.
Submissions of the parties
[8]Plaintiff, ‘Affidavit of Aleksandar Dukovski’, Affidavit in Gilmour v Department of Education and Training & Ors S ECI 2020 04093, 28 October 2020.
[9]Plaintiff, ‘Plaintiff’s Outline of Submissions’, Submission in Gilmour v Department of Education and Training & Ors S ECI 2020 04093, 25 June 2021, [45]; First Defendant, ‘Outline of Submissions, Submission in Gilmour v Department of Education and Training & Ors S ECI 2020 04093, 2 September 2021, [11].
The worker puts her complaint about the additional documents in three ways. She says it caused the panel to fall into jurisdictional error by failing to have regard to relevant considerations. It led to the Panel failing to accord her a fair hearing that considered all of the material she put forward in support of her case. In the alternative she says that the court’s failure to forward the additional documents was in breach of s 304(b) of the WIRC Act and this breach invalidated the Opinion. On any analysis the worker submits there has been an error going to jurisdiction.
The plaintiff relies on section 304(b) of the WIRC Act to underline the statutory requirement that the panel convened be given all documents relating to the medical questions before it. Section 304 provides:
Reference of medical question
A person or body referring a medical question to a Medical Panel must give the Convenor –
(a) a document specifying –
(i)the injury or alleged injury to, or in respect of, which the medical question relates; and
(ii)the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and
(b)copies of all documents relating to the medical question in the possession of that person or body.
The language of the section is in mandatory terms. The worker submits that in failing to give the Convenor or the Panel the additional documents, the referring body is in breach of this provision. The WIRC Act is silent as to the consequences of a failure to comply with s 304(b). Whether or not invalidity of the decision follows from a breach of this provision is a matter of statutory construction.[10] The worker submits that the provision does not simply deal with a procedural step but goes to the heart of the process of forming the opinion,[11] such that invalidity is the consequence. The plaintiff contends that the construction of s 304(b) proposed by the defendant is artificially narrow, and has no basis in the text or statutory purpose.
[10]Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355.
[11]Jerak v Dr Lazarus & Ors [2020] VSC 729 (‘Jerak’).
The defendant argues that the obligation on the referring body is limited to the time the referral is made, and s 304(b) does not give rise to any ongoing obligation beyond this time. Therefore there has been no breach of a statutory condition. The defendant submits that although the language in s 304(b) is mandatory in nature, if there has been a failure to comply with the section it does not necessarily lead to invalidity of the Opinion.[12]
[12]Jerak (n 11), [48]; Ko v Hall [2020] VSCA 224, [38]-[46].
The worker also submits that the likely administrative oversight that led the additional documents astray deprived her of the fair opportunity to rely on and be heard on that material. She states that there is significant unfairness in the worker proceeding with the examination of the Panel under the mistaken belief that the additional material had been provided to the Panel.
The defendant submitted that what is demanded by the requirement to accord procedural fairness is a matter of fact and degree in given circumstances. Those facts and circumstances are shaped by the statute which contains specific provisions for the provision of documents. It also points to correspondence from the Convenor of Medical Panels and the Convenor’s Directions regarding the provision of documents to a panel.[13] It further submits that the Panel was not provided with the material in circumstances beyond its control and knowledge and the worker’s complaint is not directed at acts of the Panel but to matters that it did not and could not know. As such, the Panel has not breached its obligation to act fairly. As a matter of discretion as to whether to grant a remedy if a breach is found, the defendant submitted that there has been an inadequate explanation for why the material (at least that which pre-dated the referral by the Magistrate) was not included at the time of the referral nor why the referral was made in advance of the later obtained material, such that discretionary relief should be refused.
[13]First Defendant, ‘Further Affidavit of Georgina Hedges’, Affidavit in Gilmour v Department of Education and Training & Ors S ECI 2020 04093, 18 October 2021, exhibit GH-1 26-28, 29-45.
In reply, the plaintiff submits that it is not fatal to its complaint that a denial of procedural fairness has occurred through no fault of the decision maker.[14] She asserts that the additional material was quite clearly pertinent to the questions before the Panel and so the Court can be satisfied that there is a ‘realistic possibility’ that the decision could have been different.[15]
[14]Minister for Immigration and Multicultural Affairs v SZFDE (2008) 154 FCR 365 French J (‘SZFDE’).
[15]MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, [39] (per Kiefel CJ, Gageler, Keane and Gleeson JJ).
Finally, it was not in dispute that a medical panel is obliged to fairly consider all material provided to it, albeit that the weight accorded to that material is a matter for it to decide. The defendant submitted however, that as the additional documents were not before the Panel, in circumstances it could not have known about, there was no error of a failure to consider something that it did not have.
Analysis
Section 304(b) is expressed in mandatory terms. Both parties by signing the consent orders accepted that the additional documents were documents that related to the medical questions that had been referred and should be considered by the Panel. By sending the consent orders the parties placed those additional documents in the possession of the Court for the purpose of them being provided to the Panel.
The statutory purpose of s 304(b) is directed at ensuring all documents relating to the medical questions are placed before a medical panel whose role it is to evaluate that material in reaching its own opinion. The first defendant’s construction of s 304(b), one that confines the mandatory nature of the obligation to forward copies of documents as existing only at the time of referral without any ongoing statutory obligation to provide documents that come into its possession subsequently, should be rejected. First, a plain reading of the section does not so confine the obligation. The body referring medical questions must give the Convenor copies of all documents relating to the medical question in its possession. If it comes into possession of documents of that nature, then it is obliged to refer them. There is no restriction or limitation on timing. Second, a construction that gives a court or other referring person some different but unspecified basis for deciding whether or not to refer documents it subsequently receives, and which are also said to relate to the medical questions referred, can serve no discernible statutory purpose. The fact that on occasions a party provides material directly to a Panel has no bearing on the obligation of the referring body to forward material when it comes into its possession, in accordance with s 304(b). Nor does the fact that the Directions issued by the Convenor of the Medical Panels permit other mechanisms for providing material detract from a plain reading of s 304(b).
Nor do I accept the argument that an ongoing obligation to refer would be unworkable because a referring court would have to form its own view about material in its possession such as that produced in answer to subpoena. For quite some time now material is produced to a court pursuant to a subpoena, most often medical records, inspected by the parties after any privilege claim or other objection is raised, and then on the identification by the parties as to what information contained in those records is relevant to the medical questions, the Court refers those documents. There is nothing inconsistent or unworkable in an ongoing obligation to refer material that is identified in this fashion. Indeed, in light of Macaulay J’s observations, set out below, it would be wrong for a court rather than the parties to undertake the task of identifying material that relates to the medical questions in an inquisitorial way instead of adjudicating any lack of agreement between the parties.
In Victorian Workcover Authority v Nedelkovska, Macaulay J considered whether to grant discretionary relief against a magistrate’s decision not to include particular documents in a referral pursuant to s 274. It was conceded that the decision of the magistrate involved jurisdictional error. Of the jurisdiction of the magistrate, his Honour said:
The statutory power the Magistrate was exercising was confined. It was limited to determining whether a document related to a medical question to be referred to the medical panel. If a document related to a medical question, absent any suggestion of abuse of process, the magistrate was bound to refer that document to the convenor of the medical panel. So much is clear from the word ‘must’ in the opening words of s 304 and the words ‘relating to the medical question’ in sub-s(b).
I conclude that the Magistrates’ Court was obliged to refer the additional documents. The mandatory language of the provision does not necessitate a conclusion that the failure of a referring body to comply with it leads to invalidity of the subsequent medical opinion that results. Procedural requirements even if expressed in mandatory language would often not invalidate decisions.[16] The question is whether a legislative purpose to invalidate any opinion where this condition has not been complied with, can be discerned.[17]
[16]Ryan v The Grange at Wodonga [2015] VSCA 17, acting outside the 60 day statutory period did not invalidate the opinion.
[17]Project Blue Sky (n 10).
It seems to me that, like other procedural requirements, a breach of s 304(b) would not of itself render a medical panel’s opinion invalid. If it were otherwise, a medical panel would lack jurisdiction whether what was overlooked was a single document or multiple documents, whether the breach was minor or substantial. If every omission of a document by a referring body leads to invalidity, it would be an outcome at odds with the statutory purpose of an alternative, cost effective and quick method of dispute resolution. It would lead to significant inconvenience. I do not accept that s 304 ‘goes to the heart of the matter’ in a way analogous to the section[18] precluding certain medical practitioners from comprising a Panel as discussed in Jerak.[19]
[18]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 537(8).
[19][2020] VSC 729.
However, although the breach does not lead to the Panel losing jurisdiction, it does have consequences for the way in which the Panel exercises its jurisdiction. The material that was not sent to the Panel was significant. It included documents detailing the relevant background of prior right ankle problems through 2016 even after the worker resumed work. It included x-ray reports which confirmed the left ankle injury included a Weber A fracture of the distal fibula, as well the talo-fibular ligament rupture. It included documents by way of contemporaneous reports and questionnaires as to the effect of treatment on Mr Gilmour’s ability to remain at work and undertake her activities of daily living through 2017 and 2018 while she was working. Those reports and records gave contemporaneous descriptions of pain levels and activity. Importantly, the later material, particularly from the general practitioner, document a deterioration since cessation of treatment in August 2018. Similarly, the report of Mr Edwards contained a description of the physical tasks required by her employment through 2017 and beyond.
The consent orders sent to the Magistrates Court demonstrate that both parties approached the Medical Panel examination and the formation of its reasons as being informed by that material. Had either side appreciated that the material had not formed part of the referral as they had intended, I have no doubt that it would have been drawn to the attention of the Magistrates’ Court so it could be remedied prior to the examination. Insofar as s 304 is relevant to inform or shape common law considerations of procedural fairness, it reinforces the importance of a process that ensures a medical panel, though forming their own expert opinion, does so on the basis that all relevant material both fact and opinion is available to it.
The defendant submitted that even if the statutory obligation required the Magistrates’ Court to refer the documents, its failure to do so is not one that raises any error on the part of the Panel. I do not accept this argument. A person may be denied procedural fairness absent any suggestion of fault on the part of the decision maker.[20] In Minister for Immigration and Multicultural Affairs v SZFDE, French J (while on the Federal Court) said the following in respect of a decision of the Refugee Review Tribunal:
…procedural unfairness, not attributable to a decisionmaker, may arise in connection with the making of a decision when a person’s exercise of a right to be heard before the decision is made, is compromised or lost through no fault of that person. That circumstance does not however establish sufficient condition for a finding of procedural unfairness. Whether the decision is vitiated will depend upon the legal framework within which it was made, including any relevant statutory scheme, the content and effect of the decision, the extent to which the right to be heard has been affected or lost and the circumstances in which it has come to be affected or lost.[21]
His Honour was considering procedural unfairness when an applicant failed to attend an invitation to appear before the Tribunal based upon fraudulent advice from the person purporting to advise her. He considered that reviewable procedural unfairness might arise where a third party fails to provide a tribunal and the person to be affected by its decision, documents in its possession favourable to the person. The hearing occurred without the Tribunal or applicant having knowledge of those documents.
[20]Hot Holdings Pty Ltd v Creasy (2002) 201 CLR 438.
[21]Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142, [101] (French J).
Here, I am concerned with different circumstances; the parties are both aware of the additional documents but believed them to be before the Panel at the time of the worker’s examination. Only the Panel was unaware of those documents and not in possession of them. Nor is there any suggestion of fraud underlying the absence of the documents as was influential in the decision in SZFDE.
The right to a fair hearing, as discussed by the Full Court of the Federal Court in Commissioner for ACT Revenue vAlphaphone Pty Ltd,[22] has three aspects. They are that the person:
…is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature…..[23]
[22](1994) 49 FCR 576.
[23]Ibid [30].
The breach of natural justice relied on by the worker under the present ground of review is addressed to the first of those entitlements. The defendant takes issue with the content of those documents being material to the Panel’s Opinion. Whether by not having the additional documents before the Panel, the worker was prevented from putting forward material that supports her interests, is a question that in my view must be affirmatively answered. Where the material was provided to the referring body prior to the attendance on the Panel, it could not be said that a compromise of the right to be heard was one brought about by fault by a party. The additional documents were significant in that they gave greater detail to the critical issues going both to questions of treatment and the impact of that treatment on various activities. They included both opinion contemporaneous with attending work and opinion of the effects since ceasing work. One concrete example is the x-ray reports from October 2016 not made available to the Panel, which confirm a Weber A fracture of the distal fibula. The Panel’s Opinion makes reference to a medical condition that is a consequence of a ruptured left anterior talo-fibular ligament only. To put the converse proposition, had the additional documents been before the Panel and disregarded by it, that might constitute an error going to jurisdiction as the defendant submitted. I am satisfied that, as a consequence of the failure of the Magistrates’ Court to comply with s 304(b) of the WIRC Act, the worker has been denied a fair hearing before the Panel.
The question then arises as to whether as a matter of discretion I should refuse certiorari. On this question the defendant submitted that the failure of the Panel to be appraised of the documents lies at the feet of the worker whose solicitors have not provided any explanation for the documents not being included at the time of referral. This together with the lack of materiality of the documents that were omitted were relied on to say relief should be refused. This was also subsumed within a broader submission that the relief would be futile given that the plaintiff had in fact remained at work without treatment until the impact of Covid-19 in March 2020 demonstrating that the medical services were not needed. I will return to the availability of a remedy at the conclusion of these reasons. I will deal first, briefly with the remaining grounds.
The worker also made the submission, in addition to the procedural fairness aspect, that the Panel also failed to have regard to relevant considerations by not having available to it the additional documents. There is some force perhaps in the submission that if the Panel had been provided with the additional material, then a failure to consider and engage with the content of those documents might amount to jurisdictional error, but the absence of those documents before it precludes a finding of error based upon a failure to consider them. It would be necessary to identify what were the relevant considerations said to have been missed or overlooked that were raised by the additional documents, as distinct from the documents containing additional evidence in support of the worker’s contentions.[24] This was not something dwelt on in the worker’s submissions.
[24]Chang v Neill [2019] 62 VR 174 (‘Chang’); Ryan v The Grange at Wodonga [2015] VSCA 17.
Procedural fairness – an unexpected and unanticipated conclusion
The worker also relied on a ground of review that the Panel’s Opinion was not and could not be anticipated. As such she was deprived an opportunity to address it and in this way also deprived of procedural fairness.[25] I would reject this ground. The worker’s case was that she had a persisting physical injury that required ongoing treatment in order to remain at work and undertake activities of daily living.
[25]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248.
The idea that the worker might have a persisting physical condition related to the injury but which did not require any treatment is was what said to be unexpected. The first decision in its terms squarely raised this. It permitted only physiotherapy to continue with the prospect that that would cease in six months because any ongoing condition could be then ‘self-managed’. It is tolerably clear, at least from the perspective of the agent, that physiotherapy was the only active treatment that it was paying for. The request for a functional restoration program and the recommendation of this treatment came after the cessation of benefits.
The first notice was not based upon any resolution of injury but upon reasons expressed to be based upon information obtained as a result of questionnaires sent.
A questionnaire was completed by the worker on 12 December 2017, and by a treating physiotherapist, Miss Takarangi on 13 December 2017. Both documents were in the additional documents. They described physiotherapy and Pilates to improve function and the objective goals of continuing treatment for six months plus a management program would be needed to transition to self-management. A treatment plan was then requested reflecting this, and was provided by a physiotherapist, Justin Balbir. The first notice confirmed that physiotherapy was the only treatment since 13 July 2017 and this was said to confirm that the worker is able to remain at work and that health or the ability to undertake the necessary activities of daily living has not significantly deteriorated. Presumably the agent accepted that between February and August 2018 the worker could not remain at work if the additional physiotherapy was not provided.
It was not until the termination notice that reliance was placed on Dr Lucas’ opinion that ‘injury related concerns’ had resolved, and therefore incapacity for work and medical and like expenses are no longer materially contributed to by the compensable injury. The use of the term ‘resolved’ by Dr Lucas is curious. He obtains details of current symptoms of ‘left ankle discomfort, estimated in the order of 8/10 which she considers unchanged from the time of her incident event….Ms Gilmour is more aware of her discomfort in association with prolonged standing, sitting, walking and squatting activities’. In terms of Activities of Daily Living ‘she indicated she restricts or modifies previously undertaken’ activities, listing examples. Work status is dealt with in a single line noting she undertakes normal activities during work days. Dr Lucas notes orthopaedic review reassured her as to a ‘role for ongoing conservative management’. Ultimately, he thought that attributing the employment related fall as materially contributing to the ongoing symptoms was ‘challenging’. His opinion was that self-management was sufficient by way of treatment. The effect of the Opinion would overturn the termination notice.
Dr Wood, whose report was also before the Panel did provide an explanation for the continuation of the worker’s symptoms attributing them to a ‘maladaptive neurobiological pain response’ to the incident. Mr Edwards, an orthopaedic surgeon specialising in feet and ankles, whose report was not before the Panel, attributes her persisting symptoms to the left Weber A fracture and injury to the lateral collateral ligaments, which he thought as at May 2020 were deteriorating. The Panel accepted the first premise of the worker’s claim – that the symptoms, notwithstanding ceasing work as a result of the covid-19 pandemic is early 2020, persisted albeit with some improvement, and were still materially contributed to by her injury. What they concluded was that the worker was able to remain at work after physiotherapy was stopped in August 2018 and continued to do so until ceasing in March 2020 for unrelated reasons. This was squarely an argument addressed by the first notice.
Failure to genuinely engage with mandatory considerations
The worker also sought relief in respect of the Panel’s failure to properly assess the nature of the worker’s work duties, and the demand those duties placed on the ankle, both before injury and on resumption of work such that it amounted to a failure to take into account a mandatory consideration.
In the hearing before me, the plaintiff’s counsel formally abandoned this ground in reply submissions. In circumstances where this ground is abandoned, I will not address it any further.
Critical errors of fact amounting to jurisdictional error
The worker submits that the Panel has made findings of critical facts that are materially incorrect and go to jurisdiction. They are:
(a) the nature of the worker’s before injury and after injury duties; [26]
(b) the benefit gained from medical treatment, particularly physiotherapy; [27]
(c) the impact of the ankle injury on activities of daily living, particularly mobility and daily household tasks. [28]
[26]Plaintiff, ‘Affidavit of Jennifer Gilmour’, Affidavit in Gilmour v Department of Education and Training & Ors S ECI 2020 04093, 25 June 2021, [3]-[10] (‘Plaintiff’s Affidavit affirmed 25 June 2021’).
[27]Plaintiff’s Affidavit affirmed 25 June 2021 (n 26), [12]-[15], [16]-[18].
[28]Plaintiff’s Affidavit affirmed 25 June 2021 (n 26), [19].
She wants to rely on an affidavit setting out the events at the Panel’s examination in support of this ground. The defendant contested the admissibility of the affidavit but did not seek to cross examine the deponent if the affidavit were admissible. At hearing, the parties made oral submissions on the admissibility of the affidavit and I indicated I would rule on the question in the course of my reasons.
Is the worker’s affidavit admissible relevant to this ground?
The worker affirmed her affidavit on 25 June 2021. In it she corrects inaccuracies contained in the Reasons. First it was not accurate to say, as the Panel did, that at the beginning of 2017 she resumed pre injury work working three days per week. She worked fulltime throughout 2017 as an art and photography teacher, and then worked reduced hours of three to four days per week in 2018 and 2019. The affidavit also provides detail of the requirements of the work and difficulties she had performing those duties. She says she cannot recall whether she was asked about the nature of her duties. It then set out treatment and dealt with a decision to cease self-funded treatment in September 2018, as she was unable to afford it and details subsequent treatment (prescription medication provided to her in 2019). The affidavit does not say whether such matters were raised before the Panel. Finally, the affidavit took issue with the following paragraphs:
The worker told the Panel that ‘everything has got worse’ since her treatment had ceased in August 2018, but also told the Panel that the benefit for her physiotherapy treatment had plateaued, and that her symptoms were less severe since she had ceased work, although she emphasised that ‘I don’t think it has recovered’ and that ‘I wouldn’t want to be misunderstood’.
When questioned about her contradictory comments about whether her condition was better or worse since her treatment ceased in August 2018, and since she ceased work in March 2020, the Panel understood her to be saying that her symptoms were no longer being helped by physiotherapy at the time the treatment ceased, and had improved since she ceased work, but that she had not fully recovered.[29]
The worker deposed at [16]-[18] that the Panel’s understanding in the phrase underlined above was wrong and that physiotherapy did assist her in controlling symptoms which deteriorated when it ceased.
[29]The Panel’s Certificate of Opinion and their Reasons pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) dated 1 September 2020, 7 (‘Panel’s Reasons’).
Counsel for the plaintiff, stated that the affidavit is admissible as it clearly goes to the issues in dispute before the Court, namely errors made by the Panel in taking and recording the worker’s history. The plaintiff does not dispute telling the Panel some of the items that were in fact in error,[30] and also admits that some of the purported errors in the Reasons, including as to her hours of work, were aligned with the set of agreed facts prepared by the parties.[31] There were some errors however that the plaintiff argues were a result of the Panel incorrectly recording her answers.[32]
[30]For example, Plaintiff’s Affidavit affirmed 25 June 2021 (n 26), [6], [7], [19], [20] and [22].
[31]Transcript of Proceedings, Gilmour v Department of Education and Training & Ors (Supreme Court of Victoria S ECI 2020 04093, Justice Forbes, 16 November 2021), 13-14 (‘T’).
[32]For example, Plaintiff’s Affidavit affirmed 25 June 2021 (n 26), [9], [10], [16], [17] and [21].
The defendant argued that the admission of the worker’s affidavit is wholly inadmissible and in any event does not provide a foundational basis to find an error of jurisdictional fact. It was put, with reference to Chang v Neill,[33] that in order to make out this ground the worker needed to provide clear evidence as to what she said to the Panel, and how that was contrary to what the Panel recorded her as saying. The defendant submits that the worker’s affidavit does no such thing; instead, it takes issue with particular statements or issues and attempts to tell a different story.[34] It seeks an opportunity for the worker to put further matters before the Court, which should in proper course been included in the agreed and disputed statement of facts or told to the Panel.
[33]Chang (n 24).
[34]T 37.
Other than in respect of hours of work, in my view the affidavit is not directed at contradicting the fact finding of the Panel. Rather, it is substantially directed at elaborating descriptions of activities and difficulty associated with those activities that were clearly matters told to the Panel. Even in relation to the challenge to the Panel’s understanding of her answers set out above at [49], the affidavit does not squarely identify any factual error. The Panel was concerned with what it saw as a contradiction in various answers given. It recorded three things: first, that by mid-2018 physiotherapy was not providing any improvement in her symptoms; second, that her symptoms deteriorated when physiotherapy ceased; and third, that symptoms improved when work ceased. There was nothing to suggest whether the Panel drew any conclusion that having physiotherapy was or was not beneficial in maintaining an existing level of symptoms prior to August 2018 and thereby relevant to her remaining at work through that time. The critical question was whether or not it was needed to remain at work.
I would exclude the affidavit save for paragraphs 6 and 7 which record the error in hours of work in 2017. I would do so inferring that this is contrary to what she told the Panel, although that is not explicitly said in the affidavit. The information is contradicted by the joint statement of agreed facts, which stated that the conversion from full time to lesser hours occurred after the holidays in the summer of 2016/2017. It is possible that this error impacted upon the Panel’s conclusion about remaining at work.
Has an error of fact going to jurisdiction been made?
Even if the affidavit, or some limited part of it were admissible, I do not consider that what is described in it as factual errors are ones that go to the Panel’s jurisdiction.
It was not explained how a factual error as to the hours of work through 2017, was an error of a jurisdictional nature in a consideration of the entitlement to medical services in accordance with s 232(5).
Neither the hours of work nor the identification otherwise of what are said to be the critical facts, are described by reference to any particular erroneous fact. Rather, they are more appropriately described as critical issues for consideration. This ground conceals what is more properly characterised as a complaint as to the merits.
Inadequate reasons
The worker’s primary submission was that the Reasons were sufficient to disclose error or absence of error. In the alternative it was submitted that the Reasons do not permit the Court to discern whether or what account was taken of the physical nature of the work duties, the effect of treatment on her ability to continue at work or in daily activities. Ultimately the Reasons disclose that the Panel concluded that remaining at work between August 2018 and March 2020 was itself demonstrative of the treatment not being essential to remaining at work and that improvement in symptoms since ceasing work meant treatment was not essential to avoid deterioration in activities of daily living. The Reasons do not deal with any comparison between the quality of the worker’s ability to remain at work with treatment, and her ability to do so without treatment – something that might be relevant to whether s232(5) is properly engaged. This is perhaps because the question asked and answered was whether the treatment was essential to her remaining at work.
Remedy
Certiorari being a discretionary remedy, both the conduct of the person seeking the relief and the utility of granting the remedy are relevant. The defendant raises both aspects.
The defendant submits that as a matter of discretion, even if the worker makes out one or more of her grounds, that I should refuse relief because the worker’s own conduct led to the Panel not having before it the additional documents, and because to remit the matter would be futile.
I will deal first with worker’s conduct, relevant to the natural justice ground that has been upheld. In effect, the defendant submits that the documents were those within the possession or power of the worker, and no explanation was provided as to why they were not included as documents at the time of the referral, or the referral delayed until pending reports were obtained.
I do not accept that such an explanation is required. This is because the manner in which the documents were sought to be later put before the Panel was a matter of consent between the parties. There is no need in those circumstances for the worker to explain why that has come about, whether it be by inadvertent oversight or by coming into possession of some or all of the additional documents only after the referral had been made, or some other explanation. Nor would I draw any adverse conclusion against either party for failing to follow up with the Magistrates’ Court whether the requested order had been made. The time that elapsed between the consent order and the worker’s examination before the Panel was approximately two weeks. Any failure to follow up receipt of a formal order having been made prior to the examination, if it be a failing at all in the circumstances, is one attributed to all parties and not something that would in my view disentitle this worker to the relief she seeks.
As to relief lacking utility, the defendant submits that the demonstrated continuation of work for two years, from the time of the first decision until March 2020, demonstrates that s 232(5)(a) could not be met and so no injustice has been suffered. The fact that a worker remains at work in the face of an absence of treatment or on a challenged termination of treatment, might be, but is not invariably, fatal to her claim. Nor does the submission take into account the other aspect of s 232(5) – the impact on activities of daily living – which is something that the additional documents specifically address and do so in light of changes to those activities after cessation of work. Later reports not available to the Panel record that any initial improvement at that time has not been sustained. While not binding on the Panel, that information nevertheless is specifically relevant to any entitlement under s 232(5). The defendant’s submission would require me to be satisfied that the merit of the worker’s claim to further medical and like services was completely lacking.
Relevantly, in looking at the utility of the relief sought, a spotlight is shone on the questions asked of the Panel and the answers it has given:
The Panel’s Reasons conclude:
The Panel noted that the worker remained at work in the absence of treatment until the Covid-19 shutdown when she ceased work and that her symptoms had improved since she ceased work. The Panel also noted that she is able to perform her activities of daily living, including dressing, cooking, cleaning and driving, although she does not have a car. The Panel also noted that she looks after her daughter who is on the autism spectrum and is in receipt of a disability support pension.
Based on this information the Panel concluded that, in the period between March 2017 to the date of the Medical Panel’s examination, and currently, none of the proposed medical and like services were or are, essential to ensuring that Ms Gilmour could/can remain at work, or were or are, essential to ensuring that Mr Gilmour’s health or ability to undertake the necessary activities of daily living do not significantly deteriorate.[35]
[35]The Panel’s Reasons (n 29), 8-9.
I would observe that the premise of s 232(5)(a) is that it deals with workers who have returned to work and is concerned with their ability to remain at work. As can be seen, the Panel approached the question of whether an entitlement to medical services continues as one of whether the service is ‘essential to ensure that Ms Gilmour could/can remain at work’. No doubt that was because of the way in which question 3 is phrased.
While I proceed on the basis that the question falls within the definition of a ‘medical question’, as it is phrased it does not reflect s 232(5)(a)(i) which does not require that the service is ‘essential’ to ensuring that a person remain at work. The requirement that a medical service be ‘essential’ is applied only to ensuring that health, or the ability to undertake the necessary activities of daily living, does not significantly deteriorate. As currently phrased, the question may pose too narrow a test of eligibility. I make the observation only because it is in my view relevant to my discretion whether to grant the remedy sought. For the above reasons, I consider it appropriate to grant relief. I am not persuaded that to do so would be futile. I will quash the Opinion. I will hear from the parties as to other consequential orders.
SCHEDULE OF PARTIES
| JENNIFER GILMOUR | Plaintiff |
| v | |
| DEPARTMENT OF EDUCATION AND TRAINING | First Defendant |
| and | |
| DR DAVID KOTZMAN | Second Defendant |
| and | |
| MR RODERICK CUNNINGHAM | Third Defendant |
| and | |
| DR JENNIFER HARMER | Fourth Defendant |
6
0