Hallam Manufacturing Pty Ltd v Owczarek
[2014] VSC 402
•29 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 05024
| HALLAM MANUFACTURING PTY LTD | Plaintiff |
| v | |
| DR JACK OWCZAREK & ors (as per attached Schedule) | Defendants |
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JUDGE: | WILLIAMS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2014 |
DATE OF JUDGMENT: | 29 August 2014 |
CASE MAY BE CITED AS: | Hallam Manufacturing Pty Ltd v Owczarek & Ors |
MEDIUM NEUTRAL CITATION: | [2014] VSC 402 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel determination of medical questions under s 45(1)(b) Accident Compensation Act 1985 – Orders in nature of certiorari and mandamus – Alleged jurisdictional error or denial of procedural fairness by failure to address submissions – Relevant considerations – Whether conclusions open on evidence – Adequacy of reasons.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M F Fleming QC | Hall & Wilcox |
| For the Sixth Defendant | Mr D Masel SC with Mr M Waugh | Hounslow & Associates |
HER HONOUR:
This is an application for relief in the nature of certiorari quashing the opinion of a medical panel in answer to medical questions referred to it by the Magistrates’ Court of Victoria under s 45(1)(b) of the Accident Compensation Act 1985 (‘the Act’). The plaintiff employer is the former employer of the sixth defendant worker.
The panel was made up of Dr Jack Owczarek, a general practitioner, Dr Cas Schreuder, a psychiatrist, Dr John Lloyd, a neuropsychiatrist, Dr Mark Faragher, a neurologist, and Mr Steven Leitl, an orthopaedic surgeon. The panel provided a certificate as to its opinion on 29 July 2013. It gave a statement of its reasons for opinion (‘the reasons’) on the same day.
The worker contests the employer’s application. The panel members have adopted the customary course of not participating in the hearing and agreeing to abide by the outcome.[1]
[1]This approach was sanctioned by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
Agreed facts before the Medical Panel
The panel was supplied with a statement of agreed facts under s 65(6A) of the Act. The following facts were common ground.
(1)The worker was born on 27 February 1958 and was 55 years old on 10 May 2013.
(2)He had left school, whilst in year nine, before working in a supermarket, as a miner and then in sawmills in Tasmania for about 15 years. He had moved to Victoria, where he worked as a labourer in various factories.
(3)The worker had been engaged by the employer in about January 1998. His work duties included assembling computer racking and using fixing agents, air-powered and manual tools, as well as loading the assembled cabinets on to a truck, using a trolley.
(4)On 30 August 1999, when he was 41 years old, the worker suffered injuries to his lower back, neck and right leg as a result of being struck at work by an electrical cabinet which fell on him (‘the incident’).
(5)On about 1 September 1999, the worker completed a WorkCover Worker’s Claim Form, alleging that he had suffered injuries to his right leg (a broken right fibula) and back (bruising to the upper spine) as a result of the incident.
(6)Liability in respect of these injuries was accepted and the worker commenced receiving weekly payments of compensation and payment of reasonable medical and like expenses.
(7)The worker remained off work until about 8 November 1999, when he returned to full-time modified duties, with restrictions of no lifting over eight kilograms, no prolonged standing or sitting and limited walking.
(8)The worker continued full-time modified duties with the same restrictions until he resigned in about mid-May 2000.
(9)Subsequently, the worker worked as a press operator for Hilton Manufacturing for a period of about two and a half to three months in about August 2000.
(10)On 10 April 2003, a medical panel (‘the 2003 panel’) assessed the worker as having a 5 per cent whole person impairment for his neck, a 5 per cent whole person impairment for his back and a 3 per cent primary psychiatric impairment, as a result of the accepted injuries on 30 August 1999.
(11)By a letter dated 17 August 2011, the worker’s solicitors sought resumption of his weekly compensation payments from August 2000 onwards.
(12)On 9 February 2012, CGU, the employer’s authorised agent, wrote to the worker’s solicitors, advising that it had arranged for him to have an independent medical examination by Mr Michael Shannon, an orthopaedic surgeon, on 10 April 2012 and requesting information from his general practitioner before it determined liability.
(13)The worker referred his request for reinstatement of weekly compensation payments to conciliation. At his request, a ‘Genuine Dispute’ certificate was issued.
(14)Subsequently, the worker issued the proceeding in the Magistrates’ Court against the employer.
The medical questions and answers
The issues in dispute in the Magistrates’ Court were referred to the panel in the form of the medical questions. The questions and answers refer to the worker as ‘the Plaintiff’ (which he was, in the Magistrates’ Court).
The panel answered the medical questions as follows:
Question 1. What is the nature of the medical condition/s of the Plaintiff relevant to the injuries (as alleged in paragraph 4 of the [Magistrates’ Court] Statement of Claim) to:
(a) Neck;
(b) Lower back;
(c) Right leg;
(d) Mental and behaviour system
Answer:
(a)Residual symptoms following a soft tissue injury to the neck without radiculopathy;
(b)Residual symptoms following a soft tissue injury to the back without radiculopathy;
(c) No medical condition of the right leg;
(d)Chronic pain disorder in association with a general medical condition, a chronic mild adjustment disorder and an alcohol abuse disorder.
Question 2.Did the Plaintiff have any, and if so what, incapacity for work in the period from August 2000 to 27 August 2001?
Answer:In the Panel’s opinion the Plaintiff had an incapacity for work in the period from August 2000 to 27 August 2001 as he was unable to return to his pre-injury employment.
Question 3.If yes to question 2, has the Plaintiff’s incapacity for work resulted from or was it materially contributed to by any, and if so which, of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s incapacity for work resulted from and was materially contributed to by his neck, lower back and mental and behavioural system injury.
Question 4. Did the Plaintiff have no current work capacity in the period from 27 August 2001 until the date of the Medical Panel examination?
Answer: Yes.
Question 5.If yes to question 4, was the Plaintiff likely to continue indefinitely to have no current work capacity?
Answer: Yes.
Question 6.If yes to question 5, has the Plaintiff’s incapacity for work resulted from or has it been materially contributed to by any, and if so which, of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s incapacity for work resulted from and it has been materially contributed to by his neck, lower back and mental and behavioural system injuries.
Question 7. Does the Plaintiff have no current work capacity?
Answer: Yes.
Question 8.If yes to question 7, is the Plaintiff likely to continue indefinitely to have no current work capacity?
Answer: Yes.
Question 9.If yes to question 8, does the Plaintiff’s incapacity for work result from or is it materially contributed to by any, and if so which, of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s incapacity for work results from and it is materially contributed to by his neck, lower back and mental and behavioural system injuries.
The reasons
The reasons state that the panel formed its opinion by reference to:
(a)52 listed documents in an attached ‘Enclosure A’ document which includes in the list the written submissions of the parties and medical reports;
(b)the history given by the worker;
(c)its own physical and psychiatric examinations;
(d)the history the worker had provided to the 2003 panel; and
(e)the 2003 panel’s opinion that the worker was suffering from residual symptoms following a soft tissue injury to the neck without radiculopathy, residual symptoms following a soft tissue injury to the back without radiculopathy, no medical condition or loss of function of the right leg and an adjustment disorder with depressed and anxious mood and a minimal degree of post-traumatic stress disorder.
The reasons specifically record that the panel noted the parties’ submissions.
The reasons state that the panel’s conclusions that:
(a)the worker continued to suffer from the conditions of the neck and back identified by the 2003 panel, but not a medical condition of the right leg;
(b)the worker’s neck and lumbar spine conditions were ‘relevant to respectively neck and lower back injuries’ and the injury mechanism was likely to cause such soft tissue injuries;
(c)the worker was suffering a chronic pain disorder in association with a general medical condition, a chronic mild adjustment disorder and an alcohol abuse disorder as a consequence of the physical injuries sustained in the incident;
(d)the worker’s post-traumatic stress and substance (other than alcohol) abuse disorders resulting from the incident had resolved;
(e)the worker was incapable of his pre-injury type assembly work involving heavy lifting because of his neck and back conditions and he had had no capacity for such work since August 2000 to 27 August 2001;
(f)having regard to the Act’s definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’, the worker had had no current work capacity from 27 August 2001 to the date of the medical examinations;
(g)the nature and severity of the worker’s psychiatric conditions rendered him unsuitable for the light assembly work under conditions of which he would otherwise have been capable; and
(h)the worker’s lack of work capacity was likely to continue indefinitely; and resulted from and had been and was materially contributed to by his neck, lower back and mental and behaviour system injuries.
Period up to 27 August 2001
In concluding that the worker had had no capacity for his pre-injury work up to 27 August 2001, the reasons state that the panel took into account his unsuccessful attempt at press operator work in the second half of 2000. It also had regard to a 22 January 2001 report from an independent orthopaedic surgeon, Mr Gerry Moran, medical reports from his treating general practitioner, Dr Mike Mazzoni, and Centrelink medical certificates from that doctor certifying him fit for light duties from 8 August 2001 to 8 November 2001.
Period from 27 August 2001 to 29 July 2013
As to the period after 27 August 2001 up to its 2013 examination, the reasons record again that the panel noted subsequent medical certifications that the worker was unfit for all duties. It also took into account a report from Dr Mazzoni of a brief period of work capacity before July 2004. The panel observed that the worker had assisted his brother by driving a small utility and picking up small items in about 2005, but said that it did not characterise this activity as employment or consider it indicative of work capacity.
The panel discussed the 12 April 2012 report from Mr Shannon, the orthopaedic surgeon who had examined the worker at the insurer’s request on 10 April 2012. Mr Shannon had concluded that the original injury had continued to contribute to the worker’s lower back condition, but that he had little evidence of an ongoing neck condition. The panel disagreed with Mr Shannon about the worker’s neck condition, referring to his persistent neck symptoms and its own abnormal examination findings. Taking into account his psychiatric conditions, the panel also disagreed with Mr Shannon’s opinion that the worker was fit for suitable employment with bending and lifting restrictions.
The panel also considered the 17 May 2012 report of Dr Hillol Das, a psychiatrist who had examined and assessed the worker at the insurer’s request. Dr Das had concluded that the worker was suffering from chronic depression. He went on to respond to a question whether the worker’s employment remained a cause of his medical condition as follows:
The condition has developed in the context of multiple factors, including that of the work-related physical injury that had caused him work incapacity, following which he had lost his employment and he was devoid of any financial support. Subsequently the drug abuse and the psychosis resulting from such had had further impact on his life. Not having any family or relationship, not having a job and not having any financial support has had a perpetuating effect and he has been rather unhappy and depressed in such a context for probably the last 10 years. He attributes all of this to the condition of his back, which he holds responsible for not being employable since.
Dr Das concluded that the worker was still suffering from a work-related condition but also had a non-work-related condition.
Dr Das was asked whether there was anything other than the worker’s injury or medical condition affecting his recovery, including his return to work. He answered in this way:
As mentioned before, there are multiple factors affecting his recovery, including his drug use, recurrent psychosis, the ongoing pain issues, the lack of social and family support, a pre-existing unrelated condition of neurofibromatosis, and a long period of unemployment and dependence on a Disability Support Pension.
The panel said that it reached ‘a generally similar conclusion’ to that of Dr Das as to the worker’s psychiatric diagnosis and his condition’s relationship to his physical injuries.
The panel, however, disagreed with Dr Das’ opinion that the worker’s psychiatric condition ‘related to his employment-related injury is not in itself a reason for his work incapacity’. This had been the psychiatrist’s response to the question, ‘When do you expect the worker to be able to return to their pre-injury duties and hours?’. When indicating its disagreement with Dr Das’ view, the panel referred to the severity of the symptoms described during its own psychiatric examination and to its own collective experience and expertise.
Grounds for relief
The employer first claims that the panel made a jurisdictional error by failing to address or deal with its case, as set out in its submissions. This amounted to a denial of procedural fairness and or a failure to take into account a relevant consideration.
Specifically, the employer asserts that the panel failed to address (by intellectually engaging with them) the substance of its submissions that:
(a) the worker had had the capacity for suitable alternative employment from 27 August 2001 until the panel’s examination in mid-2013; and
(b) that, when considering the causal connection between the injury and any incapacity for work, the panel should consider any incapacity resulting from psychological or psychiatric impairment caused by something other than the workplace injury.
The employer argues, in addition, that the panel failed to have regard to the material before it which supported these submissions.
The employer then submits that it was not open to the panel to make those two findings as to the worker’s incapacity after 27 August 2011. Nor was it open to it to find that the incapacity was likely to continue indefinitely. The employer says that there was no evidence to support those conclusions.
In addition, the employer claims that the panel misunderstood its own jurisdiction, failing to exercise its investigative function and assess the reliability of the worker’s answers to its examination insofar as they conflicted with other evidence before it.
Finally, the employer submits that the panel erred in law by failing to give a proper and adequate written statement of reasons for its opinion.
The worker rejects each of the employer’s claims.
Alleged failure to take account of submissions
Legal principles
The panel was obliged to comply with the Act’s requirements as to considerations it had to take into account.[2] There is no dispute that the panel was required to have regard to the employer’s submissions and the material it provided and that, had it not done so, it would have failed to provide procedural fairness and, or have failed to exercise its jurisdiction.[3]
[2]Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39-40 (Mason J).
[3]See Dranichikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 339, 394 [24] (Gummow and Callinan JJ), 1102 [95] (Hayne J); Moyston Court Fisheries Ltd v Malios [2007] VSC 518, [47] (J Forrest J).
Emmett, McKerracher and Foster JJ provided guidance when describing the nature of the relevant duty in Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts[4] as follows:
The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration. However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all … The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked.[5]
[4][2001] FCAFC 59.
[5]Ibid [44], citing Tickner v Chapman (1995) 57 FCR 451, 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [105]
The High Court’s subsequent analysis of the function of a medical panel under the Act in Wingfoot Australia Partners Pty Ltd v Kocak[6] is relevant to the determination as to whether the panel accorded procedural fairness to the employer in considering its submissions. The Court said this:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the medical panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the medical panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[7]
[6](2013) 303 ALR 64 (‘Wingfoot’).
[7]Ibid 77 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (citations omitted), comparing Masters v McCubbery [1996] 1 VR 635, 645 (Winneke P).
Submissions
The employer argues that the panel failed to take into account its submissions and the supporting material to which they referred.
The worker disputes that any such inference should be drawn from the material upon which the employer relies. He also relies upon the panel’s statement that it did take the parties’ submissions into account, rejecting the argument that any such assertion is merely formulaic and should not be determinative.
The employer first maintains that, when considering the worker’s capacity for suitable employment, the panel chose to rely upon his account of his condition after 27 August 2001, but said nothing about and failed to take into account what it contends are the inconsistent medical opinions of the occupational physician, Dr Phil Mutton, the orthopaedic surgeon, Mr Gerald Moran, and the worker’s own treating general practitioner, Dr Mike Mazzoni. Dr Mutton’s report was dated 6 March 2000 and Mr Moran examined the worker on 29 December of the same year. Dr Mazzoni reported on 15 August 2001 and 15 March 2012.
As far as Dr Mutton is concerned, the worker responds that, whilst the panel may not have mentioned him in the reasons, it effectively agreed with his endorsement of the recommendations resulting from a worksite assessment of the worker’s physical capacity for restricted duties by the human resources and occupational health consultant, Resolutions.
The worker points out, too, that the panel did refer specifically to the views of Mr Moran and to Dr Mazzoni’s certificates and reports.
The worker argues generally that the panel properly assessed his residual capacity, taking into account the Act’s definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’ and concluded that he was physically capable of working with restrictions but lacked capacity for that work as a result of his psychiatric conditions. It was on that basis that the panel was not satisfied that the worker had current work capacity between 27 August 2001 and 8 November 2001.
Discussion and conclusions
I will deal first with the employer’s argument that the Court should conclude that its submissions were not considered because the panel accepted the worker’s account of his condition after 27 August 2001 but failed to take into account the inconsistent opinions of Dr Mutton, Mr Moran and Dr Mazzoni.
Dr Mutton effectively agreed with Resolutions’ recommendations. The panel discussed the Resolutions report with the worker and the reasons state that it only ‘partly accepted’ his reasons for his claim that he would be unable to perform any of those alternative duties because of his limitations in lifting, standing and generally getting around. Although Dr Mutton thought that the worker had ongoing problems affecting his lower back, that there was a risk that the condition might progress into a permanent impairment and that it was too early to be certain about the likely outcome, the panel concluded that, from a purely physical perspective the worker would be able to perform light assembly work, given the opportunity to adjust his position and to have necessary rest breaks.
The employer’s submissions to the panel ‘alerted’ it to Dr Mazzoni’s 15 August 2001 report confirming the worker’s account that he had tolerated his alternative duties quite well. Whilst the employer describes this opinion as consistent with the doctor’s certification of the worker’s fitness for light duties between 8 August and 8 November 2001, the panel concluded that the worker did lack capacity after 27 August 2001. It noted, in this regard, that Dr Mazzoni’s certification of capacity was based on an examination before 27 August 2001. Further, it noted that all subsequent medical certificates provided to it had described the worker as unfit for all duties. The panel also recorded Dr Mazzoni’s 15 March 2012 report that the worker had had a brief period of work capacity before July 2004.
In all the circumstances, the panel effectively rejected the worker’s submission that he was physically incapacitated for alternative suitable work between 27 August 2001, preferring the conclusion for which the employer contended. I am not satisfied that it overlooked any inconsistency between his account of his physical condition and the relevant opinions cited by the employer.
In any event, as the High Court made clear in Wingfoot, the panel’s function was to reach its own conclusions in response to the medical questions; in doing so it was not necessarily required to reconcile the findings or conclusions of other practitioners.[8]
[8](2013) 303 ALR 64, 77 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).
Materials as to psychiatric condition
The employer then argues that the panel failed to give any consideration, or any proper consideration, to evidence relevant to its submissions that there was not the necessary causal relationship between the worker’s compensable injuries and any incapacity to work after 27 August 2001. Those submissions related to what the employer argues were other causes of the worker’s psychiatric condition which may have affected his capacity for suitable alternative employment.
The employer first cites the early opinions of two psychiatrists: Dr Grainger-Smith and Dr Dharwadkar. In 15 December 2000 and 1 May 2001 reports, respectively, they are said to have opined that the worker then had capacity for suitable employment and did not suffer from any clinical psychiatric disorder.
Dr Grainger-Smith examined the worker for the insurer on 7 December 2000, for the purposes of determining the extent of any impairment under the AMA Guidelines. He diagnosed a chronic pain disorder associated with both psychological factors and a general medical condition (being a ligamentous injury). Dr Grainger-Smith stated that the worker had psychological symptoms of a mild anxiety disorder and was not sure why he had not recovered symptomatically. He concluded that the worker had a ten per cent whole person psychiatric impairment.
Dr Dharwadkar examined the worker for the insurer on 1 May 2001. He noted his complaints of his back and neck ‘playing up’ and of soreness and pain. He concluded that the worker did not suffer from a clinical psychiatric disorder and found no evidence of current psychiatric symptoms. Dr Dharwadkar found a five per cent whole person psychiatric impairment.
Dr Hillol Das examined the worker on 17 May 2012, again for the insurer. Dr Das’ report refers to Dr Grainger-Smith and Dr Dharwadkar’s reports, as well as the conclusions of the 2003 panel. The worker told Dr Das that, after his injury, ‘his back condition [had] never improved and he [had] since suffered from back pain restricting his movements and, as a result, he [had] not been able to find any employment.’
Dr Das concluded that he suffered from chronic depression which had developed ‘in the context of multiple factors, including that of the work related physical injury that had caused him work incapacity, following which he had lost his employment and he was devoid of financial support.’ Dr Das noted that the worker attributed his subsequent drug use and psychosis, his unhappiness and depression over a ten year period all to the condition of his back, which he held responsible for his inability to work.
Dr Das diagnosed chronic depression with a history of drug-induced psychosis, in the setting of stimulant abuse and a chronic pain condition relevant to the worker’s physical injuries. He included his ongoing pain issues amongst multiple factors affecting his recovery and considered that he suffered from both a work-related and a non-work-related condition.
Dr Das concluded that the worker’s psychiatric condition related to his employment-related injury was not itself a reason for his work incapacity. The panel disagreed with that conclusion. It conducted its own psychiatric assessment. The worker told it that his mental situation dated back 14 years, to the incident. The panel noted the 2003 panel’s opinion that he then was suffering from an adjustment disorder with depressed and anxious mood and a minimal degree of post-traumatic stress disorder. It concluded that, on 29 July 2013, the worker was suffering from a chronic pain disorder in association with a general medical condition, a chronic mild adjustment disorder and an alcohol abuse disorder, all of which had developed as a consequence of the physical injuries sustained in the incident. The panel found no sign of post-traumatic stress or substance (other than alcohol) abuse disorders, which, it concluded, had now also resolved.
The employer contends that the panel failed to take into account or to give proper consideration to its submissions as to other material relating to the worker’s mental health at various times after 27 August 2001, for the purposes of determining his work-related psychiatric or psychological incapacity, as required.[9] It points to:
[9]See Minter Ellison Services Pty Ltd v Kotzman [2012] VSC 375, [26]-[31] (Judd J).
(a)a Dandenong Hospital Emergency Department report of a diagnosis on 14 October 2001 of a situational crisis and substance abuse issues in the context of relationship breakdown, financial problems and the theft of the worker’s car;
(b)a Clayton Emergency report of a differential diagnosis on 13 July 2004 of antisocial personality disorder, after the worker presented due to fear of his brother’s threats of harm and financial difficulties relating to car repayments and inability to afford accommodation;
(c) a Monash Medical Centre report of a diagnosis of adjustment disorder, psychological stressors, alcohol dependence, amphetamine abuse and cluster B personality traits disorder on about 11 August 2004;
(d) a CATS report of an overdose on 20 September 2005;
(e) a general psychological assessment on 21 May 2007 by psychologist, Dr Vladas Petrulis, which revealed the worker’s anger, depression, stress and anxiety;
(f) a diagnosis by the worker’s general practitioner, Dr Poobalan Naidoo, in July 2007, of severe depression, and the noting of multiple social issues;
(g) treatment for depression and repressed anger and anxiety by the worker’s general practitioner, Dr Kilner Brasier, at different times between August 2008 and April 2012 and that doctor’s diagnosis on 16 March 2011 of an adjustment disorder resulting from the worker’s background, severe neurofibromatosis and family and relationship issues; and
(h) the worker’s own account in April or May 2012 to Peninsula Health Psychiatric Service of symptoms of poor sleep, low mood, decreased appetite and chronic suicidal thoughts after his brother had amassed speeding fines in his name.
Some of the material said to have been ignored by the panel, however, also refers to the worker’s back and leg pain from a work injury.[10] Indeed, the worker’s treating general practitioner, Dr Brasier, expressed the opinion in a 9 April 2012 report to the worker’s solicitors that his psychological and musculoskeletal conditions were ‘entirely related’ to the incident. He considered the worker totally incapacitated for his pre-injury employment and likely to remain on social service benefits in the foreseeable future.
[10]See, eg, Southern Health ‘Clinical Notes’ (28 April 2002); Southern Health ‘Psychiatric Assessment Record’ (SHF04180, 13 September 2004); Southern Health ‘Emergency Progress Notes’ (SHF07840, 30 March 2006); Southern Health ‘Inpatient Progress Notes’ (SHF06600, 24 June 2004, 1 July 2004); Southern Health ‘Community Corro’ (SHF00235, 20 September 2005).
The worker submits that the employer’s submissions to the panel consisted of ‘cherry-picking’ items of history from reports of doctors, therapists, counsellors and hospital records. The submissions did not analyse the material, but merely asked the panel to exclude any incapacity not solely due to compensable injury.
The reasons state that, when determining whether the worker had no current work capacity, the panel did not consider any incapacity arising from any other medical condition apart from the workplace injury creating entitlement under the Act. It nevertheless affectively concluded that he was incapacitated for work as a result of his mental state in combination with his physical disabilities
The panel referred to the complex background issues when stating that it had reached a ‘generally similar conclusion’ to that of Dr Das. It also referred to Dr Brasier and Dr Das, whose reports noted various factors, including his lifelong complaint of neurofibromatosis, his gastric pain, anger management issues, suicidal ideation, relationship breakdowns and drug and alcohol abuse.
Ultimately, the employer has not persuaded me that the panel failed to consider its submissions or the material to which it refers in relation to the causal nexus between the compensable injury and the worker’s condition between 27 August 2001 and its determination. This is not a situation where the reasons suggest that the Court should disregard the panel’s assertion that it took account of the parties’ submissions on the ground that it appears to be no more than a formulaic statement to that effect.[11]
[11]Cf Milwain v Sim [2009] VSC 75, [35] (Kyrou J).
Were the panel’s conclusions open to it on the evidence?
Legal principles
In S v Crimes Compensation Tribunal,[12] Phillips JA stated:
…if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.[13]
[12][1998] 1 VR 83.
[13]Ibid 89.
His Honour went on to explain the basis for the no evidence rule as follows:
To perceive an error of law in the ultimate conclusion by reason of a totally unsubstantiated finding which is critical to it can rest, I think, on the recognition of an unstated premise in the legislation that the tribunal will proceed only according to the evidence and not arbitrarily, according to some frolic of its own.[14]
[14]Ibid 90.
Submissions and discussion
As the worker submits, the material before the panel provided ample evidence for the panel’s conclusions. It included material relating to his age and limited schooling, his previous work record and ability, the circumstances of the incident, the certification of incapacity, the opinions of both treating and independent practitioners as to his physical and mental health at various relevant points, his attempts to remain in employment and the opinion of the 2003 panel, as well as the history he gave that panel. The material also included the history the worker provided in the course of his examination by the panel, as well as the panel’s own assessment of his current condition.
Although the employer cites a nine and a half year gap in the certificates of capacity between 15 January 2002 and 9 August 2011, there was evidence before the panel upon which it was well open to it to conclude that the worker’s incapacity was a result of the effects of the incident, both up to 27 August 2001 and thereafter.
The evidence included Centrelink Medical Certificates to 29 November 2002. There was the 15 March 2012 report by Dr Mazzoni, the treating general practitioner, of the worker’s attendances for back and neck pain associated with depression. There were physiotherapist’s and other reports from Southern Health dated 24 June and 1 July 2004 recording a history of the worker’s neck and lower back pain for three years since an accident. There were Southern Health notes recording an ‘impression’ of the worker having ‘back pain from work injury’ in relation to a psychiatric assessment after his presentation for hospital admission ‘due to homelessness’ on 13 July 2004.
The materials also included 20 December 2004 notes of Dr Dimuthu Hetriarachchi, a psychiatric registrar at NorthWestern Mental Health, recording the worker’s account of having over recent years experienced workplace injury, job loss and breakdown of relationships. He had not coped well with these and other recent stressors and had responded to the circumstances with increased drinking, drug use, overdoses of prescribed medications and threatening behaviour. Southern Health notes of 26 March 2006 again record a history from the worker of the incident at work.
There was also the 9 April 2012 report from Dr Kilner Brasier, the worker’s treating general practitioner, of the worker first attending his clinic on 15 July 2008, in relation to his workplace injuries. Dr Brasier’s report stated his opinion that the worker’s psychological and musculo-skeletal were ‘entirely related’ to the incident.
The reasons indicate the panel’s reasoning to its conclusions on the basis of the evidence. The worker was a mature man with a good employment record who suffered an injury which resulted in him being incapacitated for his pre-injury work and for suitable employment thereafter.
There is no substance to the employer’s argument that it was necessary for the panel to consider the worker’s capacity for both pre-injury and suitable employment at every point over the period from 27 August 2001 to mid-2013. I reject its contention that the panel’s conclusion depended on speculative reasoning because it did not make such findings, or, indeed, others in relation to the period during which the worker suffered from a substance (other than alcohol) abuse disorder or began suffering from other psychiatric injuries which the panel found him to be suffering from at the time of its examination. The absence of such specific findings does not satisfy me that the panel has failed to find the requisite ‘relevant relationship between a finding and the information upon which [it] relies to make that finding’.[15] In my view, the panel’s reasoning path to its conclusions is evident. Those conclusions it reached in answer to the medical questions were available, notwithstanding that it did not make the particular findings to which the employer refers. The available material did adequately support the panel’s conclusions.
[15]Hatswell v State of Victoria [2013] VSC 262, [82] (Kyrou J).
I am not dissuaded from this view by the fact that the materials before the panel included records of the worker being subjected to multiple stressors including marital relationship breakdown, financial difficulties and resulting homelessness.[16] The worker’s situation was complex, but there was ample evidence upon which the panel could logically causally link the incident and his condition vis a vis his capacity for work at relevant times.
[16]See, eg, Southern Health ‘ED Record’ (SHF02420, 8 December 2001).
Did the panel misunderstand its jurisdiction?
The panel clearly understood its function of stating its opinion in answer to the medical questions in light of the material with which it had been provided in accordance with the requirements of the Act. There is no substance to the argument that the panel misunderstood its function by failing to assess the reliability of the worker’s answers or to recognise or resolve conflicts between those answers and the evidence before it. In an example to which I have already referred, the panel made it clear that it only partly accepted the worker’s evidence as to his physical limitations.
Were the panel’s reasons adequate?
Legal principles
The High Court explained the requirements for adequacy of a medical panel’s reasons in Wingfoot as follows:
The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[17]
[17]2013) 303 ALR 64, 79 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
If the statement of reasons does not meet that standard, the medical panel’s failure constitutes an error on the face of the record justifying an order in the nature of certiorari.[18]
[18]Ibid 73 [28], 79 [55].
A medical panel’s reasons should be viewed from the perspective that they are those of a tribunal and not of a judicial body.[19] They are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[20]
[19]Bregu v Bryndon [2010] VSC 417, [17] (Beach J),
[20]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
In Calleja v Franet,[21] Ashley J held that a medical panel’s reasons met the requisite standard when they had set out ‘adequately though pithily’ its reasoning:
The panel disclosed the material upon which it formed its opinion. It disclosed the findings on examination by its members. It set out the incidental findings, and revealed that, in assessing incapacity for work, it put them to one side. It said that it had considered all aspects of the definition of suitable employment; and the material which it possessed permitted consideration of all those aspects. It did not set out its analysis of the impact of the different aspects, but its conclusion that the plaintiff was permanently incapacitated, and the inhibitions which it placed upon her employability were rational and understandable in light of the material in its possession.[22]
[21][2000] VSC 339 (‘Calleja’).
[22]Ibid [56], citing Masters v McCubbery [1996] 1 VR 635, 650-651 (Winneke P), 653 (Ormiston JA), 661 (Callaway JA).
Submissions and discussion
The employer claims that the panel failed to give adequate reasons for its opinion. The path of reasoning by which it reached its conclusion is not laid out in the reasons, and the reasons are not adequate to satisfy the Court as to whether or not any error of law has been made.
The worker again rejects this criticism. He refers to the panel’s disclosure of the material upon which it relied and its reference to its findings on examination. The worker argues that the panel showed that it was engaged with the factual material by its consideration of the weight to be given to incidental findings such as that with regard to the worker’s assistance to his brother as a part-time driver. He cites the panel’s engagement with the statutory definitions of ‘suitable employment’, ‘current work capacity’ and ‘no current work capacity’. Unlike the medical panel in Calleja, he submits, the panel set out its analysis, including the key aspects of its considerations and matters for and against each contention.
Conclusion
In my view, the reasons, like those in Calleja, sufficiently identify the facts from which the panel has drawn the inferences constituting the path of reasoning to its conclusions and indicate that path. I am not persuaded that the reasons were insufficient to demonstrate whether or not the asserted errors of law had been made by the panel. The panel’s conclusions were ‘rational and understandable in light of the material in its possession’.[23]
[23]See Calleja [2000] VSC 339.
They record the panel’s conclusions, showing that they were reached on the basis of relevant facts including:
(a) the worker’s age, background, education, good work history;
(b) the incident, the injuries sustained, the likely causal nexus between the injuries and the incident;
(c) the worker’s subsequent attempts to work;
(d) the 2003 panel findings;
(e) relevant statutory definitions and mandatory considerations under the Act’s s 5 definition of ‘suitable employment’;
(f) the ongoing certification of the worker’s unfitness for work;
(g) the worker’s history to the panel of pain, depression, mood swings, stress and suicide attempts, financial difficulties and homelessness, alcohol and other substance abuse, all attributed to continuing unemployment;
(h) the panel’s own conclusions on examination; and
(i) the opinions expressed in reports before the panel.
The application should be dismissed.
SCHEDULE OF PARTIES
| HALLAM MANUFACTURING PTY LTD | Plaintiff |
| - and – | |
| DR JACK OWCZAREK DR CAS SCHREUDER DR JOHN LLOYD DR MARK FARAGHER MR STEVEN LEITL TERRENCE HALL | First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant |
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