Hashimi v Yong
[2019] VSC 496
•24 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01430
| ALI HASHIMI | Plaintiff |
| v | |
| DR DOMINIC YONG | First Defendant |
| MR KEITH ELSNER | Second Defendant |
| DR EDMOND VAN AMMERS | Third Defendant |
| and | |
| OZDEMIR HOLDING PTY LTD | Fourth Defendant |
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JUDGE: | QUIGLEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2019 |
DATE OF JUDGMENT: | 24 July 2019 |
CASE MAY BE CITED AS: | Hashimi v Yong & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 496 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Order 56 – Certiorari to quash the determination of the Medical Panel – Procedural fairness – Causation – Whether conclusions of the Medical Panel were able to be reasonably anticipated – Whether the Plaintiff had a reasonable opportunity to be heard on a determinative issue – Error established – Accident Compensation Act 1985 ss 82(1), 98C – Workplace Injury Rehabilitation Act 2013 ss 5(1), 284.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A G Uren QC and Mr C E Hangay | Zaparas Lawyers |
| For the First to Third Defendants | No appearance | Victorian Government Solicitor’s Office |
| For the Fourth Defendant | Mr M F Fleming QC and Ms S Gold | Injury Disputes Practice Lawyers |
HER HONOUR:
The Plaintiff, Mr Hashimi, commenced employment with the Fourth Defendant, Ozdemir Holdings Pty Ltd, as a slaughterman and process worker in March 2005.
Mr Hashimi had previously suffered injury to his head and lower back when working for a different employer as a labourer in 2003. He was compensated by weekly payments and a lump-sum permanent impairment benefit pursuant to s 98C of the Accident Compensation Act 1985 (‘the AC Act’) in relation to that back injury.
On 22 June 2012, he alleged he suffered a workplace injury to his lower back when he slipped on a piece of skin and/or fat that had fallen to the floor, causing him to fall. He says that he reached out with his left arm and grabbed a nearby bar, jarring his back. He had a short time off work the following week but as his back pain eased, he returned to work on 2 July 2012.
Mr Hashimi ultimately ceased work with the Fourth Defendant on 2 August 2012 due to the alleged back injury. He submitted a claim for weekly payments of compensation on 10 August 2012 for the injury said to have occurred on 22 June 2012. The claim was rejected but resolved at conciliation, with a denial of liability by the Fourth Defendant.
A claim for compensation for a permanent impairment benefit was lodged by Mr Hashimi on 18 June 2015. The Fourth Defendant’s authorised agent for the Victorian WorkCover Authority (‘VWA’) rejected this claim on the basis that Mr Hashimi had not sustained an injury within the meaning of the AC Act or arising out of the course of his employment with the employer.[1] The matter went to conciliation and a genuine dispute certificate was issued.
[1]By notice dated 21 July 2015.
A further claim was made on 5 July 2016, claiming compensation pursuant to the AC Act for the injury to his back said to have arisen over the course of his employment from 29 March 2005 to 22 June 2012 (inclusive) from heavy and repetitive work on the kill floor. This work included frequent bending, lifting heavy carcasses, hooking up carcasses, cutting and skinning animals and physically necking animals. This claim was also rejected.[2]
[2]By notice dated 11 August 2016.
The dispute was referred to the Accident Compensation Conciliation Service. The matter did not resolve, and proceedings were issued in the Melbourne Magistrates’ Court. In the Magistrates’ Court proceeding Mr Hashimi sought workers’ compensation payments in respect of the alleged injury sustained over a period of time between 29 March 2005 and 22 June 2012, or alternatively, on 22 June 2012 when the slipping incident occurred.
The injuries alleged were:
(a)injury to lumbar spine including disc damage at the L4/5 level with referred pain and symptoms;
(b)precipitation, acceleration, exacerbation, and/or aggravation of pre-existing degenerative change and pre-existing injury in the lumbar spine; and
(c)emotional/psychological secondary reaction to the physical injuries.
The medical evidence relied upon by the respective parties was in dispute, and by referral dated 10 April 2018, the Magistrate referred four medical questions to a medical panel pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’). The medical panel, comprising Dr Dominic Yong (the First Defendant), Mr Keith Elsner (the Second Defendant), and Dr Edmond van Ammers (the Third Defendant) (collectively ‘the Panel’) duly convened to determine the referred medical questions.
On 25 July 2018, the Panel rendered a Certificate of Opinion (‘the Opinion’) in respect of the referred medical questions together with Reasons for the Opinion (‘the Reasons’).
The application for judicial review
This proceeding was commenced by originating motion for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Mr Hashimi seeks to quash the Opinion and remit the medical questions in respect of which the Opinion was given to a differently constituted medical panel.
The First to Third Defendants comprising the Panel did not participate in the proceedings before me, having advised through their solicitors that they would abide by the decision of the Court, save any order as to costs, in accordance with the principles in R v Australian Broadcasting Tribunal Ex parte Hardiman.[3]
[3](1980) 144 CLR 13.
There is a single ground of appeal, being that the Panel failed to accord procedural fairness in forming its Opinion and thereby committed jurisdictional error.
Entitlement to compensation
Mr Hashimi’s entitlement to compensation is governed by the AC Act, the injury having been sustained prior to the commencement of the WIRC Act.[4]
[4]Workplace Injury Rehabilitation Compensation Act 2013 (Vic) s 5(1) (‘WIRC Act’).
The AC Act was the predecessor to the current workers’ compensation legislation, the WIRC Act. Nothing turns on the change in what I have termed the ‘workers’ compensation legislation’ for this proceeding.
Section 82(1) of the AC Act provides for compensation to be paid if a worker sustains an injury arising out of or in the course of employment. This may include medical and like expenses as well as weekly payments of compensation where a worker has a relevant incapacity for work arising out of the compensable injury. A worker who suffers permanent impairment because of an injury for which liability is accepted may be entitled to lump sum compensation for non-economic loss.[5]
[5]Accident Compensation Act 1985 (Vic) s 98C (‘AC Act’).
The dispute resolution provisions of the workers’ compensation legislation provide for the referral of a medical question to a medical panel to give its opinion in respect of injuries arising out of or in the course of or due to the nature of employment.[6]
[6]WIRC Act Pt 6 Div 3.
The Panel’s Opinion
The Panel’s Opinion in respect of the referred medical questions was as follows:
Question 1 What is the nature of the Plaintiff’s medical condition relevant to:
a. the alleged injury to his lumbar spine?
b. the alleged psychiatric injury (“the alleged injuries”)
Answer: The Panel is of the opinion that the Plaintiff:
a.Suffered a soft tissue injury to the lumbar spine, now resolved and;
b.an Adjustment Disorder
Question 2 Was either of:
a. the Plaintiff’s employment as an abattoir worker with the Defendant from 29 March 2005 and (sic) 22 June 2012;
b. the alleged incident of 22 June 2012;
in fact, or could possibly have been, a significant contributing factor to any (and if so which) medical condition identified in answer to question 1?
Answer:The Panel is of the opinion that the Plaintiff’s employment as an abattoir worker with the Defendant from 29 March 2005 to 22 June 2012; was not in fact, or could not possibly have been, a significant contributing factor to the soft tissue injury to the lumbar spine, now resolved or the Adjustment Disorder.
The Panel is of the opinion that the incident of 22 June 2012 was in fact a significant contributing factor to the soft tissue injury to the lumbar spine, now resolved, however was not in fact, or could not possibly have been, a significant contributing factor to the Adjustment Disorder.
Question 3If yes to question 2, from 11 January 2013 to the date of the Medical Panel examination, did/does the Plaintiff have a current work capacity?
Answer: Yes
Question 4 If no to question 4:
a. was/is the Plaintiff’s incapacity for work materially contributed to by any, and if so which, of the alleged injuries?
b. is the Plaintiff’s current incapacity for work likely to continue indefinitely?
Answer: Not applicable.
The Panel’s Reasons
In the Reasons the Panel noted that the incident of 22 June 2012 caused soft tissue injury to the lumbar spine, but that it had resolved:
Concerning the soft tissue injury to the lumbar spine, now resolved, the Panel noted the Plaintiff’s history of incident on 22 June 2012 and considered that the Plaintiff suffered a soft tissue injury to the lumbar spine on that date, which has since resolved and that the Plaintiff’s employment on 22 June 2012 was a significant contributing factor to the soft tissue injury to the lumbar spine, now resolved, however that the Plaintiff’s employment from 29 March 2005 to 22 June 2012 was not in fact, or could not possibly have been, a significant contributing factor to the soft tissue injury to the lumbar spine, now resolved as the Plaintiff’s history and information contained in the referral refer to a specific incident and reports of pain from this date.
Concerning the Plaintiff’s work capacity, the Panel considered that the soft tissue injury to the lumbar spine suffered by the Plaintiff on 22 June 2012 would have resolved within 3 months of the date the Plaintiff ceased working in August 2012, therefore from 11 January 2013 to the date of the Medical Panel examination, the Plaintiff did not have any incapacity for pre-injury employment or suitable employment resulting from the claimed injury.[7]
[7]Court Book, Hashimi v Dr Dominic Yong & Ors (Supreme Court of Victoria, S ECI 2018 01430, Quigley J, 18 June 2019) 92 (‘CB’).
In relation to his psychiatric condition the Panel concluded that he was suffering an adjustment disorder, and said:
In assessing diagnosis and cause from a psychiatric perspective, the Panel took into account the material supplied, observation of mental status, findings from physical examination and information obtained at interview. The Panel found that the Plaintiff has an Adjustment Disorder in the mild range. Noting the clinical character and possible aetiologies to his back pain, the Panel did not find there was a Pain Disorder. The Panel was of the opinion that there were features of traumatisation related to his refugee experience.
The Panel concluded that the Plaintiff has an Adjustment Disorder.
From a psychiatric perspective, the Panel was of the opinion that the Plaintiff has longstanding health issues which have an impact on his psychological wellbeing. Underlying vulnerabilities were noted in the context of the Plaintiff’s trauma history and his prior history of steroid related medical problems. The Panel noted preoccupation with his subjective somatic symptoms and with worry about finances and the future. The nature of his psychological presentation is however not that unusual or abnormal that it would be considered a Pain Disorder, and is best described as an Adjustment Disorder, which in the Plaintiff’s case is of a mild nature.
The Panel concluded that the Plaintiff’s Adjustment Disorder was not the result of the soft tissue injury to the lumbar spine, now resolved, and therefore was not significantly contributed to by the Plaintiff’s employment as an abattoir worker with the Defendant… [8]
[8]Ibid 91.
The Plaintiff’s case
The only ground raised in the proceeding was one based on a denial of natural justice and procedural fairness, namely a failure to afford a reasonable opportunity to be heard on a determinative issue, thus breaching the fair hearing rule.
Before me, it was argued that the Panel’s conclusions in respect of Mr Hashimi’s medical and psychiatric condition and any employment cause were not consistent with the submissions made by either party to the Panel, nor with the opinions advanced in any of the medical reports.[9] It was contended that the Panel was in error by identifying a cause for the chronic lumbar spine injury and pain symptoms complained of which was different to any cause identified by either party and by the medical reports before it.
[9]Of the medical opinions available to the Medical Panel, only Dr Weissman in his report dated 29 November 2016 expressly considered the question of whether the condition was related to previous psychological trauma and rejected it: see CB 265.
It was said that Mr Hashimi was denied natural justice by the Panel finding that he had suffered only a soft tissue injury at work and that the cause of his pain was not a spinal injury but his psychological reaction to his long-standing physical health issues, underlying vulnerabilities, past trauma history, prior history of steroid related medical problems, preoccupation with his subjective somatic symptoms and with worry about finances in the future, without giving him the opportunity to be heard in respect of the non-employment related causation.
It was argued that the Panel’s findings were not ones which could have fairly been anticipated by Mr Hashimi on the material before the Panel. In essence, it was argued that the finding that Mr Hashimi had an adjustment disorder unrelated to his back injury associated with his employment was not one which had been identified by the parties’ material available to the Panel and if such a finding were to be made, Mr Hashimi ought to have had an opportunity to address such a conclusion. It was suggested that the conclusions and consequent opinions thus came ‘out of the blue’ without due notice to Mr Hashimi. It was his submission the Panel thereby breached the rules of natural justice and committed jurisdictional error.
It was acknowledged that the medical reports relied upon by Mr Hashimi identified his psychiatric condition as an adjustment disorder. However, this medical opinion also expressed the view that the psychiatric condition was related to his workplace injury.
In this case, the focus of Mr Hashimi’s legal challenge was in respect of the psychiatric injury as the explanation for the chronic lumbar spine pain complained of by Mr Hashimi.
The Fourth Defendant’s response
The originating motion described the finding complained of as the cause of the pain not being the spinal injury but Mr Hashimi’s psychological reaction to his history and personal circumstances. The Fourth Defendant argued that this characterisation of the impugned finding of the Panel was not correct.
The Fourth Defendant said that the Panel found that Mr Hashimi suffered a soft tissue injury to his spine from the work incident which had resolved. It was argued that the Panel did not, and was not required to go on to state, an opinion regarding the source (if any) of the persisting pain symptoms described by the worker. In the context of assessing the claimed psychological condition, the Panel identified a preoccupation with subjective somatic symptoms in the context of a variety of unrelated life stressors.[10] The Panel expressly considered, and decided against a differential diagnosis of pain disorder, whether or not related to the alleged work injuries. It was submitted by the Fourth Defendant that nowhere does the Panel indicate that the worker’s current reports of pain arose from a psychological reaction to the identified matters.
[10]CB 91-92.
It was argued that the Panel had before it psychiatric and medical reports which contained information about the worker’s adverse personal circumstances, such that the findings of the Panel did not stem from new material. These matters were apparent from the material as well as from the history provided by Mr Hashimi to the Panel on its examination of him. The Panel’s finding that the spinal injury was short term and now resolved was a finding ‘obviously open on the known material’ within the meaning of North v Homolka[11] and consistent with the medical evidence such as that of Dr Barton,[12] Dr Morand[13] the treating rheumatologist and Mr McArthur, orthopaedic surgeon.[14]
[11][2014] VSC 478, [103]–[104] (‘Homolka’).
[12]Report of Dr David Barton obtained by the Fourth Defendant dated 4 September 2017: see CB 293-298.
[13]However, Dr Eric Morand’s assessment in his report dated 20 August 2012 was tentative and recommended a follow up review: see CB 270-271.
[14]Report of Mr Richard McArthur obtained by the Fourth Defendant dated 11 September 2012: see CB 283–289.
The Fourth Defendant also took issue with the argument by Mr Hashimi that the cases advanced by the parties before the Panel were determinative. This is said to be inconsistent with the authority of Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’).[15] It was contended that the Panel’s obligation to accord procedural fairness did not require the Panel to limit itself to the parties’ submissions.
[15](2013) 252 CLR 480 (‘Wingfoot’).
Principles to be applied
The role of a medical panel is neither arbitral nor adjudicative.[16] Its role is not to choose between competing arguments but to form its own opinion by applying its own expertise and experience. It is not its role to opine on the correctness of other opinions.[17]
[16]Ibid.
[17]Ibid.
A medical panel is required to observe the rules of natural justice.[18] The parties are entitled to know the case they are to meet and be given a reasonable opportunity to be heard. If a medical panel was to form a view so unexpected on a determinative matter that it could fairly be described as ‘out of the blue’, a failure to give the parties an opportunity to address such a matter can amount to a breach of the rules of procedural fairness.[19] To fail to accord procedural fairness where required may constitute reviewable error.[20]
[18]Midfield Meat Processing Pty Ltd v Fish [2015] VSC 195; Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248; H&G Macdonald Carriers Pty Ltd v Carson [2014] VSC 586.
[19]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [48].
[20]Kioa v West (1985) 159 CLR 550, 584–586 (Mason J), 628–629 (Brennan J).
What constitutes a breach of the requirements of procedural fairness will be a matter of fact and degree in every case but generally speaking, want of procedural fairness is likely to be disclosed were a finding is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material.[21]
[21]Homolka (n 11) [103]-[104] (Ashley JA); Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
Procedural fairness complaints have been upheld in circumstances where, without notice to the parties, a medical panel has come to a novel diagnosis,[22] found new and different psychiatric symptoms,[23] come to an entirely new assessment of injury or of work capacity[24] or relied on a previously unnoticed aspect of a physical condition.[25]
[22]Calleja v Franet Pty Ltd [2000] VSC 339.
[23]YG-1 Australia Pty Ltd v Dr Brann [2016] VSC 713; Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248.
[24]State of Victoria v Jerak [2018] VSC 680; H&G Macdonald Carriers Pty Ltd v Carson [2014] VSC 586; Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718.
[25]Sargent v Disler [2016] VSC 292.
A medical panel can breach the hearing rule of procedural fairness in relying on its own medical expertise to form an opinion as to diagnosis, or as to an aspect of disability previously unnoticed by other medical examiners. It could be said that a party has not had a fair opportunity to have the conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be heard through potentially submitting its own medical reports or written submissions on the issue.[26]
[26]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [34]; Vegco Pty Ltd v Gibbons (2008) 30 VAR 1, 8 [23]; Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718, [39]-[43].
The question is not whether the evidence permitted the decision to be made but whether the party concerned had a fair opportunity to address the determinative issues.[27]
[27]H&G MacDonald Carriers Pty Ltd v Carson [2014] VSC 586, [22].
It is not necessary to say what a party would have done if notice had been given. All that a successful appellant needs to show is that a denial of natural justice deprived them of the possibility of a successful outcome. In order to negate that possibility, it is necessary to show that a properly conducted trial could not possibly have produced a different result.[28]
[28]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145-146.
To constitute jurisdictional error, the impugned error must have affected the Panel’s exercise or purported exercise of power, such that the decision may have been different if the error did not occur.[29]
[29]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 384.
The evidence before the Panel
The Panel set out in its Reasons that it formed its Opinion with regard to the documents and information referred to in Enclosure A of its Reasons, the history provided by Mr Hashimi and the examination findings, including a psychiatric examination conducted by the Panel.[30]
[30]CB 85-93.
The case before the Panel on behalf of Mr Hashimi relied on medical reports which expressed opinions on the basis that he had suffered a work caused or aggravated spinal injury which caused him disabling pain, and the pain had in turn caused psychological injury. The case for the Fourth Defendant was that Mr Hashimi had extensive pre-existing spinal injuries which were not caused by his work, and any consequent pain was also not work caused. The Fourth Defendant argued that Mr Hashimi’s incapacity for work at the abattoir, if any, was related to long-standing osteoporosis and other chronic issues; not any back injury.
The documents referred to by the Panel included:
(a)court documents, claims and notices;
(b)various radiological reports dating between March 2003 and September 2016;
(c)medical evidence provided on behalf of Mr Hashimi from his treating doctors, (including Dr Young,[31] Prof Bittar,[32] Dr Barnes,[33] Dr Morand[34] and Dr Holt[35]);
(d)medico-legal opinions obtained on his behalf from Mr Miller,[36] Dr Slesenger,[37] Dr Mehr,[38] Dr Kennedy,[39] Dr Schutz[40] and Dr Weissman;[41]
(e)previously obtained medico-legal opinions relating to the earlier injury from Mr Troy, Mr Conroy and Mr Postlethwaite;[42]
(f)medico-legal reports from Mr McArthur,[43] Dr Barton[44] and Dr Krapivensky[45] obtained on the behalf of the Fourth Defendant; and
[31]General practitioner: ibid 161-176.
[32]Neurosurgeon: ibid 179-184.
[33]Gastroenterologist: ibid 185-193.
[34]Rheumatologist: ibid 270-271.
[35]Gastroenterologist: ibid 194-195.
[36]Orthopaedic surgeon: ibid 196-214.
[37]Occupational physician: ibid 215-234.
[38]Occupational physician: ibid 235-239.
[39]Medico-legal consultant: ibid 240-245.
[40]Psychiatrist: ibid 246-254.
[41]Psychiatrist: ibid 255-267.
[42]Ibid 272-278 (Mr Troy), 279-281 (Mr Conroy), 282 (Mr Postlethwaite).
[43]Orthopaedic surgeon: ibid 283-292.
[44]Occupational physician: ibid 293-298.
[45]Psychiatrist: ibid 299-309.
(g) other miscellaneous associated documents.[46]
[46]Ibid 94-95.
Analysis
The task for the Panel was to form its Opinion in response to the referral from the Magistrate pursuant to the workers’ compensation legislation. Four questions were referred to the Panel. Question 1 asked about the nature of the alleged medical condition. It was in two parts: firstly, in relation to the alleged injury to Mr Hashimi’s lumbar spine and secondly, in relation to the alleged psychiatric injury (‘the injuries’). In order to make out a claim for compensation, it is necessary that there is a finding of a medical condition and then a finding that the medical condition has the requisite connection to employment. The opinion of the Panel was that Mr Hashimi suffered a soft tissue injury to the lumbar spine, now resolved and an adjustment disorder.
The second step in determining a claim for compensation is that of causation. That is, the question as to whether the worker’s employment was a significant contributing factor to that medical condition. This was the subject of question 2. The opinion of the Panel was that the Plaintiff’s employment as an abattoir worker between 29 March 2005 to 22 June 2012 was not in fact, or could not possibly have been, a significant contributing factor to the soft tissue injury to the lumbar spine, now resolved or the adjustment disorder. The Panel was of the opinion that the incident of 22 June 2012 was in fact a significant contributing factor to the soft tissue injury to the lumbar spine, now resolved, however that it was not in fact, or could not possibly have been a significant contributing factor to the adjustment disorder.
The answer to questions 3 and 4 as to current work capacity, and working capacity indefinitely were answered consistent with the answers to questions 1 and 2.
The Reasons provided by the Panel did not identify a cause or physical connection between the otherwise unexplained chronic pain. In its Reasons, the Panel discards the diagnosis of a pain disorder and goes on to conclude that the psychiatric injury is one of an adjustment disorder un-associated with Mr Hashimi’s lumbar spine workplace related injury. By necessary implication the words used, if implication is needed, draw a link between the chronic lumbar pain complained of and the diagnosis of an adjustment disorder.[47]
[47]Ibid 91.
Persistent pain is not a diagnosis of itself, but a symptom. The enquiry before the Panel as to Mr Hashimi’s medical condition required the Panel to form a view about his condition relevant to the alleged lumbar spine injury. The Panel formed the view that his medical condition relative to that injury was a soft tissue injury, now resolved. It is clear that the Panel was concerned to deal with the issue of persistent pain. They did not say that they did not believe Mr Hashimi, and they considered other diagnoses. Having rejected a pain disorder they expressed the opinion that he was suffering from an adjustment disorder. This was the diagnosis they made as to his psychiatric condition.
In my view, the process and analysis followed was to this point without error. It was open to the Panel to find soft tissue injury to the lumbar spine, now resolved. The ambit of the dispute between the parties on the medical evidence, the submissions put and the physical examination by the Panel supports such a finding.
However, the Panel went on to find that the adjustment disorder was not causally connected to the lumbar spine injury of 22 June 2012 or otherwise but was a consequence of Mr Hashimi’s traumatic personal and medical history. This is a finding which, on all the material before the Panel (including the submissions of the parties, the medical reports and other material before it) is one which in my assessment is tangential and unexpected. It is a finding which consequently ought to be set aside.
In making this decision, the key question is whether Mr Hashimi should have reasonably anticipated that the Panel would rely to a material extent on his history of traumatisation related to his refugee experience, his long-standing physical health issues and prior history of steroid related medical problems in reaching its finding that he did not have a work-related medical condition.[48] Put otherwise, on the facts and circumstances of this case, did Mr Hashimi have a fair opportunity to address the determinative issue of causation?
[48]Ibid 91.
The task for the Panel is to form its own opinion.[49] That said, if the Panel forms an opinion which was unexpected and not reasonably anticipated or not obviously open on the known material, then there is a question of whether they have fallen into error. It will be a matter of fact and degree in every case if want of procedural fairness is disclosed.
[49]Wingfoot (n 15) 498 [47].
This is not a case where a medical panel, on the material available to all the parties, made a finding of an unexpected or different diagnosis such as in Barrett Burston Malting Co Pty Ltd v Kotzman[50] (factitious disorder), Sargent v Disler[51] (mal-tracking knee) or Calleja v Franet Pty Ltd[52] (menopause). Nor is it a case where there was information available to a medical panel which is kept from one or other of the parties such as in Weerappah v Nisselle[53] (video evidence) and Vegco Pty Ltd v Gibbons[54] (CT scan and a medical report). However, in each of these cases the Court found that a party was not availed of an opportunity to address a determinative issue thereby breaching the rules of natural justice.
[50][2013] VSC 248.
[51][2016] VSC 292.
[52][1999] VSC 202.
[53][1999] VSC 249.
[54](2008) 30 VAR 1 (Kyrou J).
This case is more akin to H&G MacDonald Carriers Pty Ltd v Carson[55] (‘H&G MacDonald Carriers’) and Toyota Motor Corporation Australia Ltd v Bendrups[56] (‘Toyota Motor Corporation’). In both cases a medical panel materially considered a fact or evidence known but not relied upon by the parties in addressing a determinative issue. In each case, opioid use was relied upon to a material extent by the medical panel in reaching its conclusion as to work capacity. In each, evidence was contained within the material before the medical panel but not relied upon in any of the medical opinions or in the submissions of the parties.
[55][2014] VSC 586.
[56][2016] VSC 718.
In H&G MacDonald Carriers, the panel breached the rules of natural justice by expressing opinions about the worker’s medical condition which were not fairly in contest and which could not been have predicted might be formed. In that case it was common ground that there was a great amount of highly addictive medication being taken by the worker. However, it had never been suggested that the worker’s dependence on this medication was a reason for the worker having no capacity for work. Bell J found that if the parties had been given notice of the formation of this opinion, it would have been likely that medical evidence in relation to the issue of medication dependence would have been sought and submissions made on the issue. His Honour found that in these circumstances there was a breach of the rules of natural justice and thereby jurisdictional error.[57]
[57]H&G MacDonald Carriers Pty Ltd v Carson [2014] VSC 586, [19]-[23].
Similarly, in Toyota Motor Corporation, it was common ground that many of the medical reports provided to the panel contained references to the use of opioid medication by the worker. However, none of the thirty or more medical reports provided to the panel identified a causal connection between the use of opioid medication and the worker’s inability to work either in the past or in the future. Further, there was no reference in submissions filed by any of the parties that identified the use of opioid medication as playing a part in the worker’s incapacity, and no notice was given by the panel to the parties that it proposed rely on the use of opioid medication in reaching its conclusion as to incapacity.
It was argued that Toyota could not have reasonably anticipated that the panel would place significance on the use of opioid medication in the context of the worker’s work capacity in the circumstances. In light of this, the finding by the panel was ‘out of the blue’ in the sense that opioid use had never been raised previously as a contributing factor to the worker’s incapacity for work. In reply, it was argued that the medication used was well known to Toyota, noted in many medical reports over a significant period and the symptoms complained of referred to in a number of the medical reports were associated with the use of opiates or opioid like medication. In the circumstances it was contended that Toyota should have been alerted to the issue. Moreover, it was said that Toyota was in a position to address the adverse effects of opioid use in the context of the symptoms being described. Simply put, it was not an ‘out of the blue’ type case.
In these circumstances, Forrest J found that it was unrealistic to expect Toyota to have identified a connection between the worker’s incapacity for work and opioid use. Given the importance that the panel seem to have attached to this factor, his Honour considered procedural fairness necessitated that Toyota be given an opportunity to address this issue.[58]
[58]Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718, [33]–[43].
In this case, the factual and evidentiary matrix is as follows:
(a)the injuries as pleaded in the Magistrates’ Court proceeding included injury to the lumbar spine including disc damage at the L4/5 level with referred pain and symptoms, precipitation, acceleration, exacerbation and/or aggravation of pre-existing degenerative change and pre-existing injury in the lumbar spine and emotional/psychological secondary reaction to the physical injuries;
(b)the questions posed to the Panel were framed in terms of the ‘alleged’ lumbar spine injury and the ‘alleged’ psychiatric injury (unspecified);
(c)in the medical reports relied upon by Mr Hashimi, a diagnosis of an adjustment disorder was made, and an opinion expressed that it had a work-related causal connection;[59]
(d)the only psychiatric report provided to the Panel on behalf of the Fourth Defendant rejected any psychiatric diagnosis or condition;[60]
(e)the submissions made on behalf of the parties to the Panel did not address the issue of adjustment disorder. The Fourth Defendant did not address the issue of any psychiatric injury at all;
(f)many of the medical reports before the Medical Panel and the history obtained by the Medical Panel itself referred to Mr Hashimi’s personal traumatic refugee experience as well as other aspects of his medical history. While the fact of Mr Hashimi’s experiences was patent in this regard, in the material before the Panel the matters are commented on peripherally and provided as part of an overall contextual history typical of a patient assessment; and
(g)submissions before me on behalf of Mr Hashimi emphasised that the cases as they were put by the parties to the Panel concentrated on the physical back injury, being an aggravation of a pre-existing back injury and that there were no submissions in relation to the psychiatric injury. In fact, it was noted that the case put on behalf of the Fourth Defendant before the Panel was that there was no injury to Mr Hashimi’s back at all as it questioned whether the incident of 22 June 2012 ever occurred. Alternatively, the position put was that the injury was entirely a pre-existing one.
[59]Report of Dr Gregor Schutz dated 14 April 2016: CB 252; Report of Dr David Weissman dated 29 November 2016: CB 266–227.
[60]CB 307-308.
The facts, matters and circumstances as set out are such that, in my view, Mr Hashimi ought to have been given the opportunity to address the non-work-related causal factors in the determinative issue of causation. I am satisfied that this error has affected the Panel’s determination such that the Opinion may have been different if this error did not occur.
Whilst it is correct to say that a Panel must form its own opinion and it is not an adjudicator or arbitrator between competing medical opinions or submissions, in my view, the positions of the parties before the Panel provide a good indication of what was in the contemplation of the parties as to the issues of the medical condition and its work relationship or otherwise. When each of these above noted factors are taken into account, I am of the view that the apparent material reliance by the Panel on Mr Hashimi’s refugee history and other medical conditions in forming a view as to the causation of the adjustment disorder, without giving Mr Hashimi an opportunity to address these issues, was done in breach of the requirement to accord procedural fairness.
The Fourth Defendant took issue with the submissions made by Mr Hashimi which emphasised the ‘cases as advanced by the parties’ proposition. On one view, the reference to the ‘cases as advanced by the parties’ can be taken as an indication of the surprise or unexpected nature of the findings and no more. If neither of the parties identified this particular diagnostic cause, to my mind this raises the question of its novelty and unexpectedness and raises a doubt in my mind as to the process the Plaintiff was afforded. This is a different point to one which is seeking to limit a medical panel to adjudicating between competing positions. That is not the position put here. The Defendant did not argue that the worker had an adjustment disorder, it just argued there was no relevant injury. I do not see that this is the same proposition as would conflict with the authority of Wingfoot.
In Aged Care Services Pty Ltd v Kontopoulos Digby J recognised that where a panel raises a diagnosis or an aspect of disability previously unnoticed by the parties’ medical advisers that went beyond the boundaries of the dispute between the parties, without inviting the parties to explore this potential diagnosis, this could arguably result in a party being deprived of a fair opportunity to address the potentially adverse outcome.[61] In my view, this is such a case.
[61][2017] VSC 684, [72]-[76].
In this case, the boundaries of the dispute were identified by the pleadings in the Magistrates’ Court claim, the referred medical questions, the submissions of the parties and the medical evidence before the Panel. There were two key questions to be answered. The first requiring the Panel to determine the medical condition of Mr Hashimi. The second determinative question was causation. As noted, the Reasons provided by the Panel did not identify a causal connection between the physical injury and the otherwise unexplained chronic pain. In relation to the psychiatric injury, the Panel finds an adjustment disorder but un-associated with Mr Hashimi’s lumbar spine workplace related injury. In my view, by necessary implication one must draw a link between the chronic lumbar pain complained of and the diagnosis of an adjustment disorder. The causal connection between the adjustment disorder as drawn by the Panel, in this context, is not one which was obvious. Taking into account the pleadings, the medical reports, the parties’ submissions and the referred questions which collectively set the expected ambit of the dispute, the findings of the Panel are unexpected, tangential and unforeseen.
Not having an opportunity to address the alternative cause of the adjustment disorder demonstrates reviewable error.
Disposition
The issue of the physical and psychiatric injuries is interrelated. Consequently, I am of the view that both questions 1 and 2 should be referred back for reconsideration. As the answers to questions 3 and 4 flow from the identified error, it follows that these questions should also be referred.
Given the views expressed as to the cause of the adjustment disorder I do not think it is appropriate to remit the referred questions to the same panel. I will remit the questions for reconsideration by a differently constituted panel.
I will hear the parties further as to the precise terms of the order and in relation to costs.
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