Hayman v Buhagiar
[2012] VSC 448
•26 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 2122 of 2012
| MICHELLE HAYMAN | Plaintiff |
| v | |
| FATHER VICTOR BUHAGIAR | First Defendant |
| and | |
| DR JOHN MALIOS (Deputy Convenor of Medical Panels) | Second Defendant |
| and | |
| MEDICAL PANEL (Constituted by Mr Barry Elliott and Associate Professor Peter Gibbons) | Third Defendant |
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JUDGE: | WLLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2012 | |
DATE OF JUDGMENT: | 26 September 2012 | |
CASE MAY BE CITED AS: | Hayman v Buhagiar | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 448 | |
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ADMINISTRATIVE LAW – Order in the nature of certiorari – Decision of Medical Panel – Whether failure to take relevant considerations into account – Medical Panel statement that opinion formed by reference to medical reports – Failure to refer to conclusion that injury not stabilised – Failure to refer to requirement for fusion operation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Melbourne Injury Lawyers Pty Ltd |
| For the First Defendant | Mr P A Clarke | TressCox |
HER HONOUR:
The application
The plaintiff, Mrs Hayman, seeks an order in the nature of certiorari quashing a determination of the third defendant Medical Panel made on 6 March 2012. The Panel was constituted by Mr Barry Elliott, an orthopaedic surgeon, and Associate Professor Peter Gibbons, a musculoskeletal physician. The Panel made its determination in response to a medical question referred to it by the first defendant, Father Buhagiar.
The second defendant, the Deputy Convenor, and the Panel have advised the Court that they will adopt the usual practice of not appearing at the hearing and of submitting to any orders made.[1]
[1]See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13.
The proceeding between Mrs Hayman and the first defendant
Mrs Hayman claims to have suffered injury to her left foot and ankle and right knee on 21 and 24 June 2010 when she slipped and fell at a school controlled by Father Buhagiar.
Section 28LE of the Wrongs Act 1958 (‘the Act’) prevents her from recovering damages for non-economic loss caused by another person’s fault, unless she has suffered a ‘significant injury’. A ‘significant injury’ is defined in s 28LF of the Act as one involving an impairment of the whole person of more than five per cent, being a degree of impairment which satisfies the ‘threshold level’, as defined in s 28LB of the Act.
Mrs Hayman obtained a certificate from an orthopaedic surgeon, Mr M A Khan, under s 28LNA of the Act. Mr Khan certified that he was unable to determine the degree of permanent impairment she had suffered as a result of her injury because it had not stabilised, but that, once it had, her degree of impairment would be greater than five per cent. She served the certificate on Father Buhagiar. Under s 28LWE, Father Buhagiar then referred to the Panel the statutory ‘medical question’ as to whether the degree of impairment resulting from her alleged injury satisfied the threshold level.
On 6 March 2012, the Panel answered as follows:
The Panel determined that the degree of whole person impairment resulting from the injury alleged in the claim does not satisfy the threshold level.
Relief
Mrs Hayman seeks an order quashing the Panel’s determination, essentially on the ground that it failed to take into account relevant considerations.[2] She argues that the Court should infer that the Panel failed to take account:
(a)the opinions of her treating orthopaedic surgeon, Mr Gary Grossbard, and Mr Khan that her condition had not stabilised;
(b)Mr Grossbard’s opinion that she required a triple fusion operation on her left hind foot; and
(c)the opinion of Associate Professor Evange Romas, her treating rheumatologist, that her left ankle was not clinically involved in her rheumatoid arthritis disease process after about mid 2007.
[2]See Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The decision of a Medical Panel will bind a court in any proceeding on the claim.[3] It is amenable to judicial review.[4] Mrs Hayman has the burden of persuading the Court to infer that the Panel did fail to take into account relevant considerations. The circumstances determine what matters are relevant considerations which must be taken into account in a particular case.
[3]Section 28 LZH of the Act.
[4]Masters v McCubbery (1996) 1 VR 635.
It is convenient to note at this point that, to assess the degree of impairment resulting from the alleged compensable injury, the Panel was required by s 28LL(3) of the Act to disregard impairment from unrelated injuries or causes.
Material before the Panel
After the referral by Father Buhagiar, Mrs Hayman’s solicitors wrote to the Deputy Convenor on 22 November 2011. They supplied him with materials including:
· Mr Khan’s 22 June 2011 report and his 16 May 2011 certificate;
· radiological reports; and
· Mr Grossbard’s reports by letters, dated 25 August 2010 and 18 November 2010, respectively, to Mrs Hayman’s treating general practitioner, Dr Ronald Suss.
Mrs Hayman’s solicitors wrote to the Convenor of Medical Panels on 9 February 2012. They referred to a further report to them from Mr Grossbard, dated 3 February 2012, and a 17 January 2012 report to the Deputy Convenor from Associate Professor Romas. The solicitors supplied Mr Grossbard’s report to the Convenor on 13 February 2012.
I will return to the solicitors’ submissions to the Panel, after referring to Mrs Hayman’s treatment and the conclusions stated in the various reports.
Associate Professor Romas
Associate Professor Romas reported that Mrs Hayman had first consulted him on 23 January 2007. He saw her on seven occasions in that year and once again in March 2009. Initially, he diagnosed mild osteoarthritis in her knees, a recent left ankle sprain injury, which had substantially resolved, and new onset rheumatoid arthritis. He recorded her treatment with medication, including prednisolone. She had responded satisfactorily initially and her steroid dosage had been reduced by June 2007.
Significantly, Associate Professor Romas concluded that:
The main persisting site of RA disease activity was in her wrists and hands. Detailed assessment of the hip, knee or ankle movements were therefore not recorded during her subsequent visits in 2007 as these joints were not clinically involved in the RA disease process.
Mrs Hayman fell on to her right knee in February 2008 and Dr Suss asked Dr Romas to arrange an MRI scan. Associate Professor Romas recommended an orthopaedic referral and she subsequently saw Mr Grossbard. He carried out an arthroscopy on 30 May 2008 and reported to Dr Romas about the condition of her knee in a letter dated 10 June 2008.
Associate Professor Romas last reviewed Mrs Hayman on 7 March 2009. In his 17 January 2012 report, he observed that her rheumatoid arthritis had then been ‘in a state of low disease activity’. She did not complain of knee symptoms and the consultation had focused on the future management of her rheumatoid arthritis. She had not wanted to take medication because she was undergoing IVF treatment.
Mr Grossbard
Mr Grossbard examined Mrs Hayman on 9 May 2008 and he carried out the arthroscopic examination of her right knee to which I have referred. He reported to her solicitors in his 3 February 2012 letter that she had done well after her knee surgery, although she had been seen intermittently over 2008 with exacerbations of knee pain. Mr Grossbard’s examination had revealed a chronic non-specific synovitis, which he considered consistent with the presence of a previously diagnosed rheumatoid arthritis.
Mr Grossbard saw Mrs Hayman again on 25 August 2010, after the alleged injuries at the school. He reported to Dr Suss his opinion that she was suffering from ‘largely subtalar pain’ which he suspected related to ‘her stirring up subtalar changes she has’. He suggested that, if it did not settle down over the following three months, her options might include a hind foot fusion.
Mr Grossbard reviewed Mrs Hayman on 17 November 2010. He told Dr Suss that her ankle was still troubling her and suggested an orthotic. He went on to say that a triple fusion was clearly the solution, but noted that, ‘for family reasons’, she was not in a position to consider that form of treatment at that time.
On 16 March 2011, Mr Grossbard and Mrs Hayman again discussed the surgical options. Mr Grossbard reported on 3 February 2012 that she had not been in a position to consider surgery and injection of local anaesthetic and steroid was tried. A CT scan of the hind foot confirmed arthritic change in the subtalar and mid-tarsal joint. On 18 May 2011, Mrs Hayman told him that she was still struggling with her foot.
In the meantime, Mrs Hayman’s solicitors sent her to Mr Khan for medical assessment and to obtain the report and certificate which he subsequently supplied.
Mr Khan’s report and certificate
Mr Khan examined Mrs Hayman on 16 May 2011, two days before she last saw Mr Grossbard. In his 22 June 2011 report, he answered questions raised by her solicitors, as follows:
2. Whether our client’s injuries have stabilised and what you consider to be suitable future treatment and/or pain management, if any.
Your client is waiting to have surgery for the left hind foot and mid tarsal joint area by her specialist, following the above injury and as she has not had this done, the condition has not completely stabilised.
Provided her rheumatoid arthritis continues to remain under control with medication, she will require in the future the surgical treatment, as advised by Mr Grossbard and this will be followed by a period of rehabilitation.
…
7. Do you believe our client’s injury and level of impairment is permanent? That is, the impairment will last and not mend or repair to any significant extent for the foreseeable future.
She is likely to be left with permanent partial impairment of function of whole person as an after effect of the above injury. …
Mr Khan went on to say:
I am not able to assess your client in accordance with the AMA Guidelines to Evaluation of Permanent Impairment 4th Edition at the time of my assessment, as I consider that the long term prognosis will depend on the outcome of her surgery, which she is due to have some time in the future, depending on her physical condition and domestic situation.
Due to the combined effect of the injury to her left foot and ankle and aggravation of her pre-existing right knee condition, in relation to her above injuries on 21 June 2010 and 24 June 2010, as she is likely to be left with partial permanent impairment of function of more than 5%, I am prepared to enclose a Certificate of Assessment in accordance with Regulation 3 of The Wrongs Act (Part VBA Claims) Regulations 2005 and enclose the completed form accompanying this medical report.
I recommend that she requires a review and re-assessment when her condition has stabilised, after she has undergone the proposed surgery as advised by her treating specialist.
Mr Khan provided the certificate under s 28LNA of the Act. Section 28LNA provides for certification of the degree of a person’s impairment where an injury has not stabilised. The certificate refers to Mr Khan’s 16 May 2011 examination in relation to the injuries Mrs Hayman allegedly incurred when she twisted her left ankle and foot, injured her left ankle and developed pain in her right knee, having put extra stress on it. Mr Khan certified that she had developed flare up of left subtaloid joint arthritis, degenerative changes in the ankle and mid tarsal joints and irritability of patello-femoral joint, with crepitus in her right knee. In those circumstances, he stated that he was unable to determine the degree of impairment, but was satisfied that it would be more than five per cent ‘once the injury has stabilised’.
Mr Grossbard’s conclusions
Mr Grossbard states his own conclusions in his 3 February 2012 report:
Conclusion
This lady is suffering from rheumatoid arthritis which classically affected the subtalar area. I would suggest this lady had subtalar arthritis at the time of her injury in 2010. The injury may have made her symptomatic but I doubt it was in fact the cause of the underlying condition. Irrespectively, following this injury Ms Hayman has had persistent increased pain, to the extent she is now requiring surgery. Mrs Hayman also complained of rheumatoid arthritis when I saw her in 2008 and at that stage indicated her ankles were involved.
Whilst this lady’s right knee was not aggravated directly by the fall which occurred in 2010, her altered gait may certainly have been associated with the recurrence of symptoms in the knee which has an underlying significant arthritis, both of an inflammatory and degenerative nature. I note Mr Khan’s report of the 22nd of June 2011, and essentially I agree with his report. I note Mr Khan has taken a detailed history of the circumstances of Mrs Hayman’s injuries. I have not been aware of any legal process in association with the ankle injury and therefore the detail obtain [sic] by Mr Khan regarding the circumstances of the fall will be accepted.
Clearly the situation is not stable as I believe this lady requires surgery to her hind foot.
Submissions to the Panel by Mrs Hayman’s solicitors
In their 22 November 2011 letter, Mrs Hayman’s solicitors referred to Mr Khan’s report and certificate. They stated:
This certificate is provided despite [Mrs Hayman’s] injury not being stable. Mr Grossbard has recommended a triple fusion of the ankle, however this has not yet been performed. Our client instructs that as she has a young son to care for, and such surgery will incapacitate her for a considerable period of time, she intends to delay this surgery as long as possible.
…
Please include in your reasons if you believe our client’s condition has stabilised. Further, please comment on surgical intervention that our client may require in the future or if it is possible that our client may develop any further secondary injuries as a result of the current injuries.
In their subsequent 9 February 2012 letter to the Panel, Mrs Hayman’s solicitors referred to both Associate Professor Romas’ 17 January 2012 report and to Mr Grossbard’s reports. Having mentioned Associate Professor Romas’ conclusion that the left ankle was not involved in the rheumatoid arthritis disease process, they submitted that:
(a)Mr Grossbard’s letters of 25 August and 18 November 2010 had clearly stated that the alleged injury had ‘clearly aggravated her left ankle to the point that triple fusion is now required’; and
(b)her falls on 21 and 24 June 2010 ‘were causative of impairment of the left ankle and hindfoot in the order of 9% whole person, as assessed by Mr Khan’.
The reasons
In its written Reasons for Determination (‘the reasons’), the Panel states that it formed its opinion by reference to the materials listed in enclosures to the reasons. Those materials include the reports from Mr Khan, Mr Grossbard and Associate Professor Romas, as well as the solicitors’ submissions. The Panel also states that it has taken into account the history provided by Mrs Hayman and its own clinical examination of her.
The only reference to ankle fusion surgery by the Panel is this:
The worker told the Panel that an orthopaedic surgeon has suggested the possibility of a fusion procedure for her foot but this is not an active consideration at this time and there is no current proposal for surgery.
The Panel mentions the medical reports several times before it refers to its conclusions about the radiological material and its clinical examination. As far as the condition of Mrs Hayman’s left foot and ankle is concerned, the Panel notes that she informed it of her rheumatoid arthritis condition, its diagnosis in 2007, her prescribed methotrexate and prednisolone and that Dr Romas was her treating rheumatologist. The Panel refers to the reports about the condition of her right knee, as well as Dr Romas’ 17 January report of his 2007 consultations with Mrs Hayman.
The Panel notes Mrs Hayman’s history of a left ankle injury in about August 2006, which was treated conservatively and was followed by polyarthritis developing shortly after the trauma. It refers to Dr Romas’ findings of ankle joint and subtalar movement restriction. It reports Mrs Hayman’s 2007 diagnosis of rheumatoid arthritis and her drug treatment. The Panel states its conclusion, from its own physical examination, that the bilateral clinical findings in relation to her left and right ankles and feet were ‘entirely consistent’ with her rheumatoid disease history.
The Panel reviewed the available diagnostic imaging and concludes that x-rays of Mrs Hayman’s left foot and ankle taken on 28 July 2010 show no evidence of bony injury or fracture. The Panel notes joint irregularity and erosions in joints including those comprising the left tarsus and hindfoot. It considers these consistent with a history of rheumatoid arthritis and not related to a specific injury. It also thinks that the extensive erosive joint disease shown by 18 March 2011 CT scans of her left foot and ankle is consistent with rheumatoid disease.
The reasons state the Panel’s further conclusions in these terms:
The Panel concluded that the claimant is suffering from a complaint of pain with restricted range of motion in the right knee and complaint of pain in the left foot and ankle with restricted range of motion in the left hindfoot.
The Panel considers the claimant’s condition has stabilised.
The Panel then returns to Dr Romas’ report. It notes its own clinical examination findings of restriction of movement in both feet and ankles and Mr Grossbard’s operation report of 30 May 2008 confirming synovitis consistent with the 2007 diagnosis of rheumatoid arthritis. It then states that Mrs Hayman is suffering from impairment of her left foot and ankle, as a result of pre-existing rheumatoid arthritis, which it must disregard under s 28 LL(3) of the Act.
The Panel refers to the 9 February 2012 submissions from Mrs Hayman’s solicitors and states its opinion that it was assessing an impairment relating to the alleged incident which was complicated by pre-existing and ongoing rheumatoid arthritis affecting both lower extremities equally. It considers that it has fully considered the issues of apportionment and had disregarded impairment from unrelated causes or injuries, as required by s 28LL(3).
The Panel finally concludes:
… after disregarding impairment from unrelated causes or injuries in accordance with Section 28 LL(3) of the Wrongs Act 1958, the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim is not more than 5% and is permanent.
The Panel issued a Certificate of Determination under s 28LZG(2)(a) of the Act, using a form which relates to a stabilised injury.
Submissions
Mrs Hayman
Mrs Hayman refers to cases where the Court has inferred that a medical panel failed to take into account relevant considerations referred to in the written material submitted to it.
She cites Abbott v Eptec Victoria Pty Ltd,[5] where Beach J considered that a panel’s conclusion ‘flew in the face of’ written material it had received.[6] His Honour concluded that the failure to specifically refer to conclusions stated in that written material justified an inference, in all the circumstances, that the panel had failed to consider it. Although the panel had made the ‘somewhat formulaic’ statement that it had formed its opinion by reference to those materials and had considered the solicitors’ written submissions as well, Beach J held that it could not leave unexpressed its rejection of the written material supporting causation when it had concluded that causation was not possible itself.
[5][2011] VSC 267.
[6]Ibid [37].
In Milwain v Sim,[7] Kyrou J also concluded that the absence of any reference to the medical evidence in a medical panel’s reasons was, in the circumstances, due to the panel’s failure to take that evidence into account, notwithstanding the statement that it had taken all items in the enclosure to the reasons into consideration.
[7][2009] VSC 75.
In Clarke v National Mutual Life Insurance Ltd,[8] the challenge was different, as it related to the sufficiency of a medical panel’s reasons. J Forrest J concluded that there was a failure to provide proper reasons when the panel, which had failed to explain its rejection of the contrary opinions of treating practitioners, had itself reached a completely different diagnosis. His Honour did relevantly observe with regard to reasons for a decision that:
More often than not the reasons provided by a Medical Panel will be sufficient to imply that contrary opinions to that reached by the Panel have been considered and rejected. There is no necessity for a Medical Panel to deal with each of the medical opinions provided, nor with a particular theme that might underlie some of the medical opinions in the usual case.[9]
[8][2007] VSC 341.
[9]Ibid [59].
Collins v Nave[10] provided Mrs Hayman with another example of a panel decision being successfully impugned for failure to explain its rejection of the opinion of an expert engaged by the respondent which was generally supported by a treating practitioner.
[10][2008] VSC 85.
Father Buhagiar
Father Buhagiar submits that Mrs Hayman’s criticism invites over-zealous scrutiny of the reasons. There is no obligation to mention every detail of material put before a decision-maker. He argues that Mrs Hayman is attempting to obtain a review of the merits of the Panel’s decision.
Father Buhagiar cites J Forrest J’s decision in Moyston Court Fisheries Ltd v Dr John Malios[11] where his Honour repeated the principles relevant to an application for judicial review and, in particular, that:
·judicial review should not be used to conduct a merits review;[12] and
·that the reasons of the Panel do not need to advert in detail to those matters it has taken into account.[13]
[11][2007] VSC 518.
[12]Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2.
[13]Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, 679-680.
Whilst Father Buhagiar concedes that the reasons should have disclosed a ‘discernible path of reasoning leading to the opinion ultimately reached and provided to the court’,[14] he maintains that they do show that the Panel gave due consideration to the following matters:
[14]Moyston [78] (J Forrest J).
(a)Mrs Hayman’s previous injury to her left ankle in about August 2006, shortly after which she developed polyarthritis;
(b)her rheumatoid arthritis, first diagnosed in 2007;
(c)her telling the Panel of the orthopaedic surgeon’s suggestion of the possibility of a fusion procedure for her left foot;
(d)her telling the Panel that the possible fusion procedure was not under active consideration at the time and that there was no current proposal for surgery;
(e)her previous February 2008 right knee injury;
(f)her right knee surgery in May 2008;
(g)her previous May 2010 left ankle injury, which she told the Panel had resolved by the time of the incidents in June 2010;
(h)the 22 June 2011 report of Mr Khan;
(i)the 17 January 2012 report of Dr Romas;
(j)all available diagnostic imaging; and
(j)that medication was the only treatment Mrs Hayman was receiving.
Father Buhagiar argues that the Panel answered the solicitors’ question as to whether Mrs Hayman’s condition had stabilised, in light of those matters, as well as its own physical examination of her. It was sufficient for it to rely upon her comment about the possibility of the fusion operation, as this was not inconsistent with what she had told Mr Grossbard about having a young child. The matter was not under active consideration. This was not a case of the Panel being unable to determine the medical question because Mrs Hayman’s injury had not stabilised. The Panel considered that it had. There was ample evidence to enable the Panel to reach its ultimate finding in response to the question.
Father Buhagiar submits that it is evident that the Panel took into account the medical reports. It had no obligation to refer to each and every matter they raised. The Panel had conducted its own examination and had come to different conclusions. In such circumstances, the authorities do not require it to explain its disagreement with the conclusion reached by a particular practitioner.
Discussion and conclusions
The nature of the Panel’s function and its constitution must be borne in mind. As the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:[15]
… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
[15](1996) 185 CLR 259, 272.
The Court may not conduct a merits review of the Panel’s decision. Here, the Panel concluded that Mrs Hayman’s ankle condition had stabilised. Disregarding what it concluded was the permanent impairment brought about by her rheumatoid arthritis, it determined that the impairment resulting from the alleged injury did not meet the threshold level under the Act.
The Panel did not mention the treating orthopaedic surgeon’s opinion that Mrs Hayman’s condition had not stabilised because she required a left hindfoot fusion operation as a consequence of her increased pain after the alleged injury in June 2010. Nor did it refer to the expert opinion of Mr Khan to the same effect.
These considerations are relevant to the Panel’s determination, given that a fusion procedure would probably have effects in terms of the extent of permanent impairment as a consequence of pre-existing rheumatoid arthritis. They are also clearly relevant to the issue of the extent of any possible permanent resulting from such a significant operation.
Given the significance of a fusion operation to any assessment of Mrs Hayman’s permanent impairment as a result of the injury in June 2010, I infer from the Panel’s failure to mention medical opinions to the effect that her condition had not stabilised, because she required such a procedure, that the Panel did not take them into account. Those opinions were relevant considerations to which the Panel was obliged to have regard in all the circumstances. Its failure to do so entitles Mrs Hayman to the relief in the nature of certiorari she seeks. The Panel’s decision should be quashed.
I note, however, that I am not persuaded that the Panel failed to take account of the relevant consideration of Dr Romas’ apparent opinion that Mrs Hayman’s left ankle and foot were not affected by rheumatoid arthritis after mid 2007. It mentions Associate Professor Romas’ 12 January 2012 report in the context of its own clinical findings with regard to the motion restriction in Mrs Hayman’s ankles and feet. It refers to the imaging of the left foot and ankle on 28 July 2010. It considers those findings consistent with Mrs Hayman’s history of rheumatoid arthritis and not related to a specific injury. It refers to CT scans of 18 March 2011 which show evidence of joint disease consistent with rheumatoid disease in the left foot. I consider it implicit in the Panel’s findings that it disagreed with Professor Romas to the extent that he did reach that conclusion.
Nevertheless, as I have said, the application should be granted.
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