Higgins v Weissman
[2010] VSC 294
•25 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 6410 of 2009
BETWEEN
| NEIL FREDERICK HIGGINS | Applicant |
| and | |
| DR DAVID WEISSMAN & ORS | Respondents |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2009 | |
DATE OF JUDGMENT: | 25 June 2010 | |
CASE MAY BE CITED AS: | Higgins v Weissman & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 294 | |
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ADMINISTRATIVE LAW – Accident compensation - Compensation for medical and like expenses – Long-term compensable injury – Medical panel - Medical question as to whether certain medical services “reasonable for treatment” of worker’s condition – Panel’s opinion that the services were not appropriate or adequate for treatment of the worker’s condition despite finding that the services reduced the worker’s pain and may have prevented deterioration of his condition – Panel must have misunderstood the question or the limited requirements of the relevant provisions of the Act or both – Relevant part of opinion quashed – Accident Compensation Act 1985 (as at 2 April 2009), ss 5(ac), 99, 99AAA; Administrative Law Act 1976 ss 3, 8.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M. O’Loghlen QC Ms M. Schilling | Pana Dokos |
| For the Respondents | Mr M. Fleming | Thomson Playford Cutlers |
HIS HONOUR:
Introduction and overview
This is an application under s 3 of the Administrative Law Act 1978 for judicial review of part of a certified opinion of a medical panel (comprised of the first to fourth respondents) given under the Accident Compensation Act 1985 (“the Act”) on 2 April 2009 in response to questions referred by the Magistrates’ Court. The panel has chosen to abide by the decision of this Court in the normal way.
One of the grounds of review stated in the order nisi was based on alleged inadequacy in the panel’s statement of reasons. Accordingly, as in Chubb Security Australia Pty Ltd v Kotzman & Ors,[1] I deferred giving judgment pending the decision of the Court of Appeal in Sherlock v Lloyd[2] (which is now to hand). As it transpires, the ground based on alleged inadequacy in the reasons does not need to be finally determined.
[1][2010] VSC 242 (4 June 2010). See esp at [4].
[2][2010] VSCA 122 (28 May 2010).
I am satisfied that the relevant part of the medical panel’s opinion involved jurisdictional error.[3] In short, the panel took too narrow a view of the circumstances in which a person in the position of the applicant, namely a worker with long-term injuries who had received a settlement of pecuniary loss damages in respect of his injuries, might be entitled to continuing compensation under s 99 of the Act[4] for medical and like expenses in respect of the injuries. In particular, the panel wrongly proceeded on the basis that medical services which did not produce any long-term improvement in the symptoms or functional capacity of the applicant could not be regarded as appropriate or adequate services for the treatment of the applicant’s condition for the purposes of s 99, notwithstanding that the services in question produced short-term relief from pain and may have prevented deterioration in his condition.
[3]Cf Chubb Security Australia Pty Ltd v Kotzman & Ors [2010] VSC 242 at [36].
[4]As in force at the relevant time.
The opposing contention was that the panel did not base its opinion solely on the absence of long-term improvement (in the stated circumstances), but had regard to other relevant factors and circumstances. However there is little or no evidence or indication of that. In any case it is difficult to see how, for the purposes of the Act, any such other factors or circumstances could legitimately have counteracted the panel’s acceptance that the services produced short-term pain relief. The relevant respondents did not concede that the panel’s reasoning involved legal or jurisdictional error on any particular view of it. However, in my view, the panel’s approach did involve misinterpretation or misapplication of the Act.
Recent legislative amendments
Various relevant provisions of the Act which are referred to below have been amended or affected by amendments made by the Accident Compensation Amendment Act 2010 (Act No 9 of 2010), which was assented to on 23 March 2010. The provisions of the amending statute have various commencement dates, including some retrospective dates and some dates yet to arrive. However it appears that none of the amendments needs to be taken into account for the purposes of determining whether the panel erred in law at the time of giving its opinion. Accordingly, references hereunder to provisions of the Act should be read as references to those provisions as they stood at the date of the opinion of the medical panel, namely 2 April 2009. Whether or not I should be concerned in this proceeding with any impact the amendments may have on the way in which the referral from the Magistrates’ Court should be dealt with hereafter is a matter (among other matters) in relation to which I am prepared to hear further submissions from the parties.
The Panel’s opinion and reasons
The medical panel’s opinion comprised its answers to four purported “medical questions”[5] referred to it by the Magistrates’ Court pursuant to ss 43 and 45 and Division 3 of Part III of the Act.[6]
[5]“Medical question” was defined in s 5 of the Act.
[6]For descriptions of the effect of those provisions see CGU Compensation Vic (Ltd) v Magistrates’ Court of Victoria [2004] VSC 22 (Kaye J) at [22]-[24] and Moyston Court Fisheries Ltd v Malios [2007] VSC 518 (J Forrest J) at [21]-[24].
The questions all related to the applicant worker’s claim, which was being heard in the Magistrates’ Court under ss 39 and 43 of the Act, for a declaration that he continued to be entitled to compensation under s 99 of the Act for certain kinds of medical and like expenses. The expenses related to remedial massages from a registered physiotherapist and chiropractic services from a registered chiropractor, both being “medical services” as defined in s 5 of the Act.
The treatment was for the worker’s back and neck, both of which, it may be assumed, had been injured in a fall at work in 1994 when the worker was in the employ of the fifth respondent (“the employer”). The treatment had been given continuously, albeit with varying frequency, since that time. The sixth respondent, the authorised agent of the Victorian Workcover Authority (“the agent”), had ceased paying compensation for the expenses as from 31 July 2007, basing its decision on medical reports from a certain Dr Elsner. The employer and the agent have made common cause before this Court and are represented by Mr Fleming of counsel and his instructing solicitors.
Upon the referral from the Magistrates’ Court, the medical panel, in answer to question 1, identified the worker’s condition relevant to his alleged injuries as “an aggravation of pre-existing degenerative changes of the neck and lumbo-sacral spine with referred pain to the legs but without clinical evidence of radiculopathy in upper or lower limbs, or evidence of myelopathy”.
The critical part of the opinion, being the only part attacked in this proceeding, consists of question 3 and the answer to that question, as follows:
“Question 3: Are the proposed medical and like services reasonable for treatment of any medical conditions identified at Q1 namely:
a)Remedial Massage;
b)Chiropractic Treatment
Answer: In the Panel’s opinion Remedial Massage and Chiropractic Treatment are not appropriate or adequate medical services for the treatment of the Plaintiff’s aggravation of pre-existing degenerative changes of the neck and lumbo-sacral spine.”
Although there seems to be some disconformity between the terms of question 3 and the terms of the answer given to it by the Panel,[7] the answer, unless set aside, will almost certainly defeat the worker’s claim in the Magistrates’ Court. Mr Fleming has not suggested that the Court should hold its hand because the Magistrates’ Court itself would be required or entitled to ignore the relevant question and answer on the ground of ambiguity or want of power or otherwise.[8]
[7]See further below.
[8]Compare Hassan v Nisselle [2000] VSC 271 at [44]-[47].
The Panel gave reasons for its opinion. For present purposes the most relevant parts of the reasons are the following:
“… He [the worker] told the Panel that from the initial injury he attended for chiropractic and physiotherapy treatments once or twice a week and has continued to have massage and chiropractic on a fortnightly basis until the present time. He said that in about October 1995 he started working as a self employed tow truck driver and has continued this occupation. He now works part time, undertaking a few jobs each day totalling about four hours on average.
The plaintiff told the Panel that at present he suffers from numbness and tingling in both legs but particularly the left. His legs feel weak and he worries that he may fall when standing. His neck feels stiff and becomes very tight with no particular aggravating factors but he does not suffer any symptoms in either arm. He is able to manage activities of daily living but needs help to undertake heavier cleaning in the house and to mow the lawns. He is able to walk, stand and sit for about ten minutes before suffering worsening pain in the back of both legs. He said that while working for the defendant he weighed about one hundred and twenty kilograms but has now increased to about one hundred and forty kilograms.
He told the Panel that he currently attends his chiropractor for half to three quarters of an hour at a time when he feels his condition requires it; on average about once a fortnight. The treatments consist of heat and massage, followed by an alignment of his neck and back with further application of heat and massage to finish. He said the longest he had been without treatment was about four weeks. He said that he takes no medication in relation to his condition and has never done so.
…
The Panel concluded that the plaintiff is suffering from an aggravation of pre-existing degenerative changes of the neck and lumbo-sacral spine with referred pain to the legs but without clinical evidence of radiculopathy in upper or lower limbs, or clinical evidence of myelopathy.
…
The Panel noted that the plaintiff continues to work to the present time, that he attends for chiropractic treatment irregularly and that radiologically his condition has changed minimally between 1999 and 2007. While the Panel accepted the plaintiff’s description of the reported short-term benefit following chiropractic treatment, the Panel noted that Remedial Massage and Chiropractic Treatment has not produced any long-term improvement in his symptoms or functional capacity despite extensive treatment over a prolonged period of time.
The Panel concluded that the provision of continuing Remedial Massage and Chiropractic Treatment are no longer appropriate or adequate medical services for the treatment of the Plaintiff’s aggravation of pre-existing degenerative changes of the neck and lumbo-sacral spine.”
The Panel’s reasons also indicate that the Panel received certain medical reports, submissions and other information as listed in the schedules to the reasons.
Importantly, in the extract from its reasons quoted above the Panel recorded that it “accepted the plaintiff’s description of the reported short-term benefit following chiropractic treatment”. This is surely a reference back to the history taken by the Panel and recorded in the earlier parts of its reasons extracted above. That history included the statement that the worker was able to walk, stand and sit for about ten minutes before suffering “worsening pain in the back of both legs”; and the statement that he currently attended his chiropractor for half to three quarters of an hour “at a time when he feels his condition requires it; on average about once a fortnight”. The Panel concluded that the worker was suffering from a condition which involved “referred pain to the legs”.
The worker filed an affidavit in the proceeding before this Court. In it he said some things about his interviews with the Panel, and notably the following:
“16In response to their questions I recall telling the Panel about the chiropractic massage and physiotherapy treatment that I receive on a regular basis. I said to the Panel that I go to a combined chiropractor/physiotherapy clinic fortnightly, where I see either Grant Ziros or Drew Thompson for treatment. I told the Panel that I also see another lady who massages me and uses heat packs. I recall that one of the members of the Panel asked me what was the longest time that I hadn’t been to the chiropractor. I said the longest period had been four weeks, and that I had held out but was in a lot of pain during this period.
17In response to the Panel’s questions I told the Panel about the way in which the chiropractic massage and physiotherapy treatment improves my physical condition and helps to reduce my pain. I said to them that when I come out of the clinic, I feel good for a few days as it loosens me up and I feel less pain. I said that I feel a lot better in my body and it helps me move around a bit more freely.
18In response to the Panel’s questions I said that the treatment helps me to keep my mobility and keep me working. I said to them that if I don’t have this treatment regularly, I seize up and go very stiff and it affects my work as I can’t do anything.
…
25… I did tell the Panel that I see the chiropractor for half to three quarters of an hour on average about once a fortnight. I also told the Panel that I try to keep the sessions as regular as possible as I find that the treatment gives me a lot of pain relief. I recall saying that my back and neck improves for a few days afterwards and this makes me feel a lot better in myself and helps me to keep working.”
The worker was not cross-examined on his affidavit. Mr Fleming complained that he could hardly be expected to cross-examine the worker because his clients could have no knowledge of what the worker said to the Panel during the private interviews. I recognise that that is a structural difficulty with the medical panel system. Nevertheless I consider that I should accept the substance of the passages from the worker’s affidavit set out above. After all, they do not really conflict with anything in the medical panel’s statement of reasons. Rather, they merely add particulars to the worker’s “description of the reported short term benefit following chiropractic treatment” which the Panel stated that it accepted. Accordingly, the panel should be taken to have accepted the accuracy of the further details of the worker’s history given to the panel by the worker as recited in the passages from his affidavit set out above. In any event, even if I were to ignore everything in those passages, I would arrive at the same conclusion in this case.
The statutory provisions relating to compensation for medical and like expenses
Section 5 of the Act contained a definition of “medical question”. It ran to 16 paragraphs. It included paragraph (ac), which read:
“(ac) A question as to the medical service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service; … .”
Section 99 of the Act was in the following form (so far as presently relevant):
“99 Compensation for medical and like services
(1)If there is caused to a worker an injury which entitles a worker to compensation, the Authority or a self-insurer and the employer in respect of the employer’s liability under section 125(1)(a)(iii) or 125A(3)(c) shall be liable to pay as compensation —
(a)the reasonable costs of the road accident rescue services, medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services received because of the injury; and
(aa)[in certain circumstances] the reasonable costs incurred in Australia of family counselling services … ; and
(b)the reasonable costs of burial or cremation where death results from the injury —
which shall be in addition to any other compensation payable under this Act.
…
(2)In subsections (1), (5A), (5D) and (5E), reasonable costs, in relation to a service (including modification of a car or home), burial or cremation means an amount —
(a)that is determined by the Authority, employer or self-insurer as a reasonable amount in relation to that service, burial or cremation; and
(b)that does not exceed the amount (if any) specified in, or an amount determined in accordance with a method specified in, an Order of the Governor in Council made on the recommendation of the Authority and published in the Government Gazette, as the maximum amount of costs payable in respect of a service of that kind or a burial or cremation and which maximum amount in the case of a service must not be less than the amount of the fee specified in a Table within the meaning of the Health Insurance Act 1973 of the Commonwealth applicable in respect of a service of that kind provided in Victoria; and
(c)that is determined by the Authority, employer or self-insurer as a reasonable cost of the service, burial or cremation having regard to —
(i)the service or provision actually rendered; and
(ii)the necessity of the service or provision in the circumstances; and
(iii)any guidelines issued by the Authority in respect of services or provision of that kind.
…
(3)A worker shall be entitled to receive a service referred to in subsection (1) (other than an occupational rehabilitation service) from the provider of the worker's choice notwithstanding that an employer or the Authority or a self-insurer as the case may be offers or provides a service to the worker for the worker’s use.
…
(11)Subject to subsection (13), if weekly payments are payable, compensation under this section ceases after 52 weeks after the entitlement to weekly payments ceases, unless subsection (14) applies.
(12)Subject to subsection (13), if compensation is payable only under this section, compensation under this section ceases after 52 weeks after the entitlement arises, unless subsection (14) applies.
(13)If a worker receives a settlement or award of pecuniary loss damages within the meaning of section 134AB or 135A of this Act or section 93 of the Transport Accident Act 1986 or accepts a voluntary settlement of weekly payments under Division 3A of Part IV of this Act in respect of an injury, the worker is entitled, subject to this Act, to continue to receive compensation under this section.
(14)Compensation under this section does not cease if —
(a)the worker has returned to work but —
(i)could not remain at work if a service under subsection (1) was not provided; or
(ii)surgery is required for the worker; or
(iii)the worker has a serious injury within the meaning of section 91E; or
(b)the worker requires modification of a prosthesis; or
(c)the service provided under subsection (1) is essential to ensuring that the worker’s health or ability to undertake the necessary activities of daily living does not significantly deteriorate.”
I note that s 99AAA of the Act (a section which was completely repealed by the amending Act of 2010) provided that, subject to certain conditions, the Authority or a self-insurer could impose a “coordinated care program” on an injured worker. A worker’s entitlements under such a program would replace any entitlements under s 99. In the present case there is a passing reference in the agent’s notice of termination of entitlement dated 17 October 2006 to a “treatment plan” for the applicant worker, being a plan which was to cease on 30 March 2006 but which was “not adhered to”.[9] I am not sure whether that treatment plan constituted a “coordinated care program” under s 99AAA. Indeed s 99AAA was not mentioned by any counsel in the hearing before me. Nor am I aware whether any coordinated care programs under s 99AAA have ever been developed for anyone. The use of s 99AAA may have been dependent upon the issuing of guidelines by the Authority pursuant to s 99AAA(1); and there is no material before the Court to indicate whether any such guidelines were ever issued. On the other hand, the very existence of s 99AAA at the relevant time would seemingly tend to support the view that any ambiguity in s 99 (as in force at the relevant time) should be resolved in favour of the worker, or, at least, that particular interpretations of s 99 that might otherwise have been disfavoured due to concerns about costs might still be adopted because of the provision in s 99AAA for collateral means of cost control. In any event, my decision would be the same regardless of s 99AAA. So I will put it aside, and, so far as the Act is concerned, I will concentrate on the significance to this case of ss 5(ac) and 99.
[9]CB 60.
The stated grounds of review and the parties’ submissions
The order nisi for review in this case contained three stated grounds of review, with numerous sub-grounds. The grounds contained allegations that the panel had failed to take into account various allegedly relevant considerations (including certain medical reports), had taken into account various allegedly irrelevant considerations, had misidentified the issue raised by referred question 3, and had failed to provide an adequate statement of the panel’s reasons. The applicant’s written submissions basically followed the order and tenor of those grounds. The written submissions for the employer and the agent responded point by point. However, at the hearing, the applicant’s attack became more focused. Whereas previously (by ground 1 in particular and by his corresponding written submissions) the applicant had accused the panel of failing to take into account statements made by him at interview and other material to the effect that the medical services in question provided short-term pain relief and prevented deterioration in his condition, he submitted instead that, on the assumption that these matters had actually been taken into account, the panel’s adverse answer to question 3 could only be explained, or could best be explained, by attributing to the panel either a failure to appreciate the true import of that question or a failure to understand the true meaning and effect of the relevant provisions of s 99 or both. The applicant’s principal case was thus refashioned as a complaint of (jurisdictional) error of law, but it remained referable to grounds 2 and 3 of the order nisi.[10] Mr Fleming did not suggest the contrary, nor did he complain of being taken by surprise.
[10]Especially ground 3(a), which alleged that the panel committed a jurisdictional error in that it “took into account an irrelevant or insufficient consideration, namely that the Treatment has not produced any long term improvement in the Applicant’s symptoms or functional capacity despite extensive treatment over a long period of time”.
Discerning the panel’s path of reasoning
As mentioned above, the main issue in this case is whether the panel really did proceed on the basis that the medical services in question were not adequate or appropriate services for the treatment of the applicant’s condition for the purposes of s 99 merely because they did not produce any long-term improvement in the symptoms or functional capacity of the applicant, notwithstanding that they produced short-term relief from pain and may have prevented deterioration in his condition. The panel itself accepted that the services brought pain relief, and the Panel had reports from (among others) the worker’s treating chiropractor, Dr Ziros,[11] and from Dr Kevin King[12] to the effect that, although the services did not improve the worker’s underlying condition, they prevented deterioration in his condition. The Panel did not expressly refer to any of these reports.
[11]CB 120-121, 122.
[12]CB 127-132, esp at 129, 132.
The clearest indication that the panel did proceed on the basis just mentioned is to be found in the last two paragraphs of its reasons, which are set out above. The panel said in terms that it “accepted the [applicant’s] description of the reported short-term benefit following chiropractic treatment”. It then noted that the treatment had “not produced any long-term improvement of his symptoms or functional capacity despite extensive treatment over a prolonged period of time”. The panel then proceeded directly to its conclusion, albeit in a separate, final paragraph. The language and substance of the conclusion is very similar to that of the panel’s answer to question 3, save that in the conclusion the panel says that the provision of “continuing” remedial massage and chiropractic treatment are [sic] “no longer” appropriate or adequate medical services for the treatment of the applicant’s injuries, whereas in the answer the panel states that the specified services are “not” appropriate or adequate services.
Nowhere in its statement of reasons does the panel specify any other factors, circumstances or reasons as having contributed to its conclusion. Mr Fleming acknowledged that.[13] He did say: “there are perhaps other reasons as well”.[14] However, though pressed by the Court, he did not identify any other particular reason that the panel might have had.[15]
[13]Transcript, p 131-133.
[14]Transcript, p 132.
[15]Transcript, pp 131-133.
Whilst I accept everything said by J Forrest J in Clarke v National Mutual Life Insurance Ltd[16] about the way in which the reasons of medical panels should be read, it seems to me that if the panel truly had some other distinct reason for its conclusion, it behoved the panel to identify it in the statement of reasons. Although the statement of reasons was originally produced voluntarily and issued contemporaneously with the panel’s opinion, the applicant’s solicitor thereafter made a written request for a further copy of the statement. The request was made within time and expressly relied on s 8 of the Administrative Law Act[17]. Accordingly, the statement of reasons should be taken to have been intended to comply with the requirements of s 8 of the Administrative Law Act 1978 as interpreted, and as applied to medical panels, in Masters v McCubbery[18]. Hence the statement ought to be in such a form as would enable the Court to see whether the panel’s certified opinion does or does not involve any error of law. In my view, this is a case in which “from the absence of reasons the court may infer the absence of any good reason”.[19]
[16][2007] VSC 341 at [43] repeated in Moyston Court Fisheries Ltd v Malios [2007] VSC 518 at [60].
[17]Cf Chubb Security Australia Pty Ltd v Kotzman & Ors (No 2) [2010] VSC 281 at [19].
[18][1996] 1 VR 635.
[19]Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [34] per Gummow and Kiefel JJ, cited in Sherlock v Lloyd [2010] VSCA 122 at [72]. See also Harrison v Mansfield [1953] VLR 399 at 404.
I am satisfied that the panel arrived at its answer to question 3 on the sole basis that the medical services in question did not produce any long-term improvement in the symptoms or functional capacity of the applicant, notwithstanding that they produced short-term relief from pain and may have prevented deterioration in his condition.
The panel’s approach involved jurisdictional error of law
As was pointed out by Mr O’Loghlen QC (who appeared with Ms Schilling for the applicant), the only paragraph of the definition of “medical question” in s 5 of the Act specifically directed to issues that may arise under s 99 of the Act is paragraph 5(ac), which is set out above.
On its face s 5(ac) appears broad in scope. It authorises a “question as to” the medical services provided, or to be provided. It has been observed in the Court of Appeal, in connection with the repeated use of the phrase “question as to” in s 5, that the phrase is “surely more indicative than definitive”.[20]
[20]Greeves v HIH Winterthur Worker’' Compensation (Vic) Ltd (2000) 1 VR 344 at 354 per J D Phillips JA.
On the other hand, s 5(ac) is not an operative provision in itself but rather is part of a definition of the statutory term “medical question”. As Francis Bennion has said:[21]
“Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. It is impossible to cancel the ingrained emotion of a word merely by an announcement.”
Further, the medical panel scheme “is designed to have medical people answer medical questions in place of the courts”.[22] In addition, it is noteworthy that the examples in s 5(ac) (“including a question as to the adequacy, appropriateness or frequency of the service”) seem to be limited to questions about the medical or therapeutic aspects of the service.
[21]Bennion, Statutory Interpretation, 3rd edition, p 434, citing Richard Robinson, Definition (1952), p 77.
[22]Lianos v Inner and Eastern Health Care Network (2001) 3 VR 136 at 143 per Chernov JA, citing an observation of J.D. Phillips JA to this effect in Isuzu General Motors Australia Ltd v Jordon (2000) 2 VR 212 at [13].
Hence it seems to me that there is a real question whether s 5(ac) authorises any question about the costs, or the reasonableness of the costs, of any medical service, notwithstanding the references to “reasonable costs” in s 99 of the Act.
In any event, I need not and do not decide that question, because, as Mr O’Loghlen submitted, in the present case the third, critical “medical question” asked whether the services were reasonable “for treatment” of the applicant’s medical conditions. The question did not in terms ask whether the costs of the treatment were reasonable in any sense or for any particular purposes. It is at least doubtful whether any such question would have been valid. In any event, if the panel considered that the question permitted it to consider issues of reasonable costs, it committed jurisdictional error.
These considerations alone make untenable, in my view, Mr Fleming’s tentative suggestion that the reasoning of the panel, even as I have discerned it, can be justified by reference to the judgment of Harper J in Russell v Transport Accident Commission[23]. In Russell Harper J dismissed an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (“VCAT”). VCAT in turn had upheld a decision of the Transport Accident Commission to discontinue the funding of osteopathic and psychological treatment for Mr Russell. After a lengthy and detailed consideration of the evidence, VCAT expressed the view that the “long term, osteopathic and psychological treatment (two periods of four years and two months, and two years and eight months respectively) have been of no demonstrable, long-term, objectively measurable benefit to the applicant”. Harper J found no error in VCAT’s decision. His Honour considered the then definition of “reasonable” (in respect of costs, expenses or fees of a service or provision) in s 3 of the Transport Accident Act 1986 (“TAA”), together with the provisions of s 60 of that Act which imposed liability on the Commission to pay as compensation “the reasonable costs of … medical services … [and] rehabilitation services … received because of the transport accident”. It is true that those provisions were quite similar to the provisions of ss 99(1) and (2) of the (Accident Compensation) Act, which are set out above, although there were some differences too. Harper J went on to say:
[23][2004] VSC 442.
“9 …
These provisions, it seems to me, require a body in the position of the Tribunal to ask, when questions whether services would continue to be funded are raised, whether the continued funding of those services is reasonable, having regard to their necessity in the appropriate treatment of the victim of the accident.
10In assessing what expenditure is reasonable, one must therefore consider the necessity of the service upon which the expenditure is proposed to be effected. In this context the word ‘necessity’ is, I think, of some importance. That word is somewhat flexible in its scope. It does not, as I apprehend it, include only services which are vital for the continued reasonable existence of the victim as a functioning member of the community. What is necessary would include treatment that is of a much lower urgency than that. On the other hand, when one reaches the other point of the scale, one must presumably exclude as not being necessary treatment which is of merely temporary palliative effect, especially where that effect is not measurable.
11In Mr Russell’s case it is, I think, clear on the evidence that the benefits obtained by him from both the osteopathic and the psychological treatment were not measurable. The evidence was that there was no measurable clinical evidence of improved mobility as a result of the osteopathic treatment. The evidence also was that there was no measurable benefit from the psychological treatment. Indeed, whereas in 1999 and 2000 the psychologists reported Mr Russell as expressing the view that there was light at the end of the tunnel, treatment since then has at best prevented deterioration in Mr Russell’s condition rather than improving it. It may well be in appropriate circumstances that the prevention of deterioration is entirely appropriate. Here, however, the treatment seems to be directed to no more than a temporary holding pattern.
12In any event, it is not within the jurisdiction of the court to deal with the merits of the Tribunal's finding or findings. The only question is whether those findings were made in accordance with law. Mr Martin submitted that the Tribunal was overly concerned with the lack of long-term benefit to Mr Russell. It failed, Mr Martin submitted, to consider the effect of the treatment on the short-term health of Mr Russell, and in that neglect the Tribunal misconstrued ss 3 and 60 of the Act. As I read the reasons for the Tribunal, there was no such misconstruction.
13The Tribunal appropriately took into account, it seems to me, the definition of the word ‘reasonable’ as set out in the Act, and the proper extent in law of the liability of the Commission in meeting the reasonable costs of medical services and rehabilitation services. It was open to the Tribunal, in my opinion, to find that the continued expenditure by the Commission on the treatment rendered to Mr Russell by the osteopath and the psychologist was not reasonable within the meaning of s 60. In my opinion that is the conclusion to which the Tribunal came, albeit that it was not expressed in those terms. That being a conclusion which was open as a matter of law, there is no basis upon which this court can interfere. Accordingly, the application for leave to appeal must be dismissed.”
Russell is distinguishable not only because there were some differences in relation to the statutory provisions concerning costs but also, and more significantly, because Russell did not involve a referral to a medical panel. VCAT’s jurisdiction was not confined in the way that the jurisdiction of the medical panel was confined in the present case, namely by the limited terms of referred question number 3. The panel had no occasion to consider costs in this case.
Accordingly, it is not necessary, and would not be appropriate, for me to consider the correctness of the observations of Harper J in Russell or their applicability under the (Accident Compensation) Act.
As Mr O’Loghlen submitted, given that referred question 3 asked about reasonableness “for treatment”, the statutory provision of central importance for the panel’s task in this case was s 99(1)(a), which imposed liability on the Authority in respect of (the reasonable costs of) medical services “received because of the injury”. Since, on the panel’s own findings, remedial massages and chiropractic treatment did and would continue to reduce the applicant’s pain, and since issues as to reasonable costs were not relevant to the question referred, it seems to me that the panel’s adverse answer to question 3, if not due to a misunderstanding of the question, must have been due to a misapprehension of the limited requirements of s 99(1)(a) in the relevant respect.
In fairness to the panel, it may have been misled by paragraph 10 of the worker’s submissions to the panel in which it was implied that s 99(14) of the Act was applicable in this case such that a service was to be provided if the “service is essential to ensuring that the worker’s health or ability to undertake the necessary activity of daily living does not significantly deteriorate”. At the hearing before me it was clarified for the first time that the worker had obtained a settlement of common law pecuniary loss damages some years ago and that, accordingly, s 99(14) was not applicable in his case.
Conclusion and orders
For these reasons I am satisfied that the applicant is entitled to relief under the Administrative Law Act 1978 in respect of the panel’s answer to question 3 on the ground of jurisdictional error. In stating that the services in question were not appropriate or adequate for treatment of the applicant’s condition, the panel either misapprehended the medical question it was asked or misunderstood the relevant effect of ss 99(1)(a) of the Act, or both. It would also seem to follow that the panel’s answer to question 4 should be quashed in consequence. Question 4 asked:
“If yes to Q3, what is the appropriate frequency and duration of such treatments?”
The answer given was:
“Not applicable.”
Subject to any further submissions that counsel may make, I consider that it would be appropriate to order that the certified opinion of the panel be quashed insofar as it consists of the answers to questions 3 and 4 referred by the Magistrates’ Court. I will hear counsel as to whether any further or other orders are appropriate, such as any orders as to the constitution of the medical panel in relation to any future consideration of questions 3 and 4, or any orders that might be called for as a result of the recent amendments to the Act referred to above. I will also hear counsel on the question of costs.
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