Humphries v Allianz Australia Workers Compensation (Vic) Ltd
[2016] VSC 761
•9 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06641
| BARTHOLAMEW HUMPHRIES (By way of his Administrator State Trustees Limited) | Plaintiff |
| v | |
| ALLIANZ AUSTRALIA WORKERS COMPENSATION (VICTORIA) LIMITED & ORS | Defendants |
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JUDGE: | CAVANOUGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 August 2015 |
DATE OF JUDGMENT: | 9 December 2016 |
CASE MAY BE CITED AS: | Humphries v Allianz Australia Workers Compensation (Vic) Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 761 |
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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Relevant considerations – Workers’ Compensation – Medical panel – Application to quash opinion of medical panel – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell QC with Ms M Pilipasidis | Maurice Blackburn |
| For the Defendants | Mr M Fleming QC with Mr R Kumar | IDP Lawyers |
HIS HONOUR:
Overview
The plaintiff, Mr Bartholamew Humphries, challenges an opinion given by a Medical Panel established under the Accident Compensation Act 1985 (‘the Act’). The opinion is in the form of written answers to three medical questions which were referred to the Panel in connection with a decision made by the first defendant to terminate weekly payments and medical and like expenses previously paid to the plaintiff under the Act. The plaintiff proceeds by way of an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules.
The documentation in this case, especially the medical documentation that was before the Panel, is unusually voluminous. Much of it is handwritten and difficult to read. It covers a lengthy period. The Court Book alone exceeds 1,500 pages. The Panel’s statement of reasons for its opinion is very detailed. Together, the certified opinion and statement of reasons occupy 24 pages, of which 21 are closely typed. Originally, many grounds of review were pleaded. Subsequently, the grounds were amended several times. Then, at the hearing, all of the pleaded grounds (as amended) were abandoned except two, namely the grounds numbered 7(a) and 8. Ground 7(a) alleged a breach of the principles of procedural fairness. That ground was itself reformulated at the hearing and put in alternative ways. Ground 8 alleged a failure to take into account a relevant matter. By leave, that ground was supplemented at the hearing by adding to it a related procedural fairness ground. So, in the end, there were three grounds of review.[1]
[1]Transcript of hearing dated 20 August 2015, 102 (‘Transcript’).
Each of the extant grounds relates, in one way or another, to a single topic, namely the manner in which the panel dealt with information concerning the plaintiff’s use of cannabis.
In my opinion, none of the extant grounds of review has been made out. The proceeding will be dismissed accordingly.
Background[2]
[2]An account of the factual background to this matter was set out in the first defendant’s written outline of submissions. For present purposes, the plaintiff took no issue with it and the following summary is largely based on it.
On or about 15 December 2004, the worker lodged a claim for weekly payments of compensation and medical and like expenses pursuant to the Act, citing a ‘fractured skull’ which had been sustained in the course of his employment on 30 July 2004. The claim was accepted.
By notice dated 6 February 2014, the first defendant (being an authorised agent of the Victorian WorkCover Authority and the plaintiff’s former employer’s claims manager) (‘the insurer’) determined that the plaintiff would, from 22 March 2014, no longer be entitled to weekly payments and medical and like expenses, on the basis that his current condition was no longer materially contributed to by the injury sustained to his head on 30 July 2004. The plaintiff disputed the decision and, pursuant to s 55 of the Act, he referred the dispute for conciliation by a Conciliation Officer.
On or about 21 May 2014, pursuant to s 56(6) of the Act, the Conciliator referred certain medical questions to a Medical Panel for consideration and determination under s 67 of the Act.
A Panel was convened accordingly. In a certificate of opinion dated 16 October 2014, which was accompanied by a written statement of reasons, the Panel recorded its opinions in respect of the referred medical questions, as follows:
Question 1)What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion the worker is suffering from mild post concussional syndrome symptoms as a consequence of a closed head injury.
The Panel is also of the opinion the worker is suffering from schizophrenia and from cannabis abuse, which are not relevant to the claimed injury.
Question 2)What is the extent to which any medical condition of the worker:
a)resulted from or was materially contributed to by:
b)results from or is materially contributed to by:
any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion, the mild post concussional syndrome symptoms resulted from and still results from the claimed injury but the worker’s schizophrenia and cannabis abuse conditions did not and do not result from and were not and are not materially contributed to by any claimed injury.
Question 3)What is the extent to which the worker’s incapacity for work:
a)resulted from or was materially contributed to by; or
b)results from or is materially contributed to by:
any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion any incapacity for work, other than the ten days the worker was incapacitated due to the closed head injury in August 2004, did not and does not result from and was not and is not materially contributed to by any claimed injury in any way.
Statutory provisions
The Act was repealed on 1 July 2014 but, by virtue of certain transitional provisions,[3] the substantive provisions of the Act, so far as relevant, continued to apply to the giving by the Panel of its opinion and reasons of 16 October 2014 and, so far as relevant, they continue to apply to this case generally.
[3]Accident Compensation Act 1985, s 391 and Workplace Injury Rehabilitation and Compensation Act 2013, s 6 (esp s 6(8)(b)).
The effect of the relevant substantive provisions is as indicated in the following three paragraphs.[4]
[4]Again, this account is largely based on the corresponding part of the written submissions of the first defendant, from which the plaintiff did not dissent.
As to the referral of a medical question to a medical panel for an opinion —
(a) The Medical Panel is a non-legal but expert tribunal, whose members consist of medical practitioners: s 63(2).
(b) ‘Medical questions’ must take the various forms set out either in the definition section (s 5(1)), or where more specifically provided (eg s 104B(9)).
(c) Medical questions may be referred for a Panel opinion by various bodies including, as here, a Conciliation Officer (s 56(6)); the Magistrates’ Court and County Court (ss 43 and 45); or WorkSafe Victoria or a self-insurer (s 104B(9)).
(d) A worker may be required to submit to examination by the Panel (s 67(2)).
(e) The function of a Medical Panel is to give its opinion (s 67). Once given, the Panel’s opinion is important (s 48; s 68(4); and s 104B(12)) and essentially provides a final and binding answer to the referred questions.
(f) Section 65 regulates the panel’s procedures and powers. In particular, a Panel is not bound by the rules of evidence, may inform itself in any manner it sees fit (which includes reliance upon its own expertise), and must act informally without regard to technicalities.
(g) The Medical Panel must provide a written statement of reasons in respect of its opinion (s 68(2)) within seven days of forming an opinion (s 68(3)).
As to a Medical Panel referring an issue to a court, s 65(5A) provides (so far as relevant):
… if a Conciliation Officer refers a medical question to a Medical Panel under section 56(6) and it becomes apparent to the Convenor or the Medical Panel that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by a court than by a Medical Panel —
(a) the Convenor may decline to convene a Medical Panel; or
(b)the Medical Panel may decline to give an opinion on the medical question.
As to the general provisions of the Act relating to entitlement, s 82(1) provides, in substance, that there is entitlement to compensation in accordance with the Act if a worker has sustained an injury arising out of or in the course of his or her employment. Section 93 of the Act provides for compensation in the form of weekly payments if a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation. Section 114 of the Act provides for the termination of weekly payments, setting out, among other things, the permissible grounds for termination, and notice requirements.
The undisputed and disputed parts of the panel’s opinion
At the hearing, senior counsel for the plaintiff submitted that, having regard to what was sent to the Panel by way of medical material and submissions by the parties, the medical questions referred to the Panel had, in effect, raised two real issues for it to determine. The first was said to have been whether, as a result of the compensable head injury, the plaintiff was suffering from cognitive deficits that incapacitated him for work. Senior counsel acknowledged that the panel had determined that issue in the negative, ie against the plaintiff. He added that the plaintiff now accepted that determination and that the plaintiff no longer asserted that there had been any reviewable error in the process by which it was reached.[5] The second real issue that was referred to the Panel, he said, was whether the plaintiff’s schizophrenic condition (and thus any consequent impact on his capacity for work) resulted from the compensable head injury or, rather, arose constitutionally with aetiology unknown. He acknowledged that the Panel had determined that issue, also, against the plaintiff. However, in arriving at that second determination, he contended, the panel had committed one or more reviewable errors.
[5]Transcript 22.
The plaintiff’s contentions as related to the grounds
The plaintiff’s principal contention at the hearing was constituted by his reformulation of ground 7(a) of the Further Amended Originating Motion.[6] In that regard he contended, in effect,[7] that the Panel had denied him procedural fairness in that:
[6]Further Amended Originating Motion dated 1 July 2015.
[7]Plaintiff’s written supplementary submission dated 20 August 2015 [1]–[3]; Transcript, 22–30, 58–63.
(a) in its opinion and reasons, the Panel treated as a very important matter the plaintiff’s use of cannabis;
(b) the Panel found that the plaintiff had a cannabis abuse condition;
(c) the Panel found that the plaintiff’s schizophrenia (and any consequent incapacity for work) was caused solely (or overwhelmingly) by his use of cannabis;
(d) alternatively, the Panel found that cannabis abuse had caused the plaintiff to be incapacitated for work;
(e) the plaintiff could not reasonably have anticipated that the Panel would do any of the things listed in (a), (b), (c) and (d); and
(f) as a result, the plaintiff was denied a fair opportunity to be heard on the question whether the compensable head injury contributed to schizophrenia and thus to incapacity for work.
The plaintiff submitted that the matter of cannabis abuse preoccupied the Panel and deflected it from a proper consideration of the question whether the schizophrenia was connected with the head injury.[8] However, that proposition was only put forward as part of the plaintiff’s principal contention that he had been denied procedural fairness. It was not advanced as an independent ground of review, such as a ground that the Panel had omitted a relevant consideration or had asked itself a wrong question.
[8]Transcript 26, 30.
The plaintiff’s two remaining contentions are related to ground 8 of the Further Amended Originating Motion. As reformulated at the hearing, the plaintiff’s contentions in this regard, in effect, were:[9]
[9]Plaintiff’s written supplementary submission dated 20 August 2015 [4]; Transcript 55–60, 63–64, 102.
(a) that the Panel failed properly to consider whether, for the purposes of
s 65(5A) of the Act, the formation of an opinion on the medical questions would depend substantially on the resolution of factual issues which were more appropriately determined by a court, and whether, for that reason, the Panel should decline to give an opinion on the medical questions; and
(b) that, in any event, the Panel failed to give the plaintiff a proper opportunity to be heard on the question whether the Panel should exercise its power under
s 65(5A) of the Act to decline to answer the medical questions.
These two remaining contentions were linked to the matter of cannabis abuse in that, as the plaintiff would now have it, the putative factual issues which might have been more appropriately determined by a court included, relevantly, issues as to the extent and consequences of the plaintiff’s past and present use of cannabis.
Analysis of the plaintiff’s contentions
The legal principles relating to an allegation of procedural unfairness on the part of a Victorian Medical Panel are well established. I gratefully adopt the following recent statement of those principles by J Forrest J in Toyota v Bendrups:[10]
[10][2016] VSC 718 [26]–[32] (citations in original, emphasis in original).
[26]In Wingfoot Australia Partners Pty Ltd v Kocak[11] the High Court said of the role of a Medical Panel:
[11](2013) 252 CLR 480 (‘Wingfoot’).
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[12]
[12]Ibid 498–9 [47] (citations omitted).
[27]Whilst it is true, as counsel for Ms Landy pointed out, that this statement of principle highlights the specific function of the Panel in providing its own opinion as to the questions asked, there is nothing (at least to my mind) in the Decision that alters or adjusts earlier statements by judges of this Court of the application of principles of procedural fairness in the judicial review of medical panel decisions. I do not accept, as hinted at by senior counsel for Ms Landy, that the decision in Wingfoot in any material way alters the obligation on the Panel to accord the parties procedural fairness.
[28]The hearing rule is a fundamental part of the obligation to afford parties procedural fairness. Mason J in the seminal decision of Kioa v West[13] said as to procedural fairness and the ‘hearing rule’:
[13](1985) 159 CLR 550.
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to made against him and to be given an opportunity of replying to it.[14]
[14]Ibid 582.
[29]More particularly in the context of judicial review of medical panel decisions, Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman[15] said:
[15][2013] VSC 248 (‘Barrett Burston’).
A medical panel convened to form its opinion as to medical questions referred to under the Act is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of that function. Failure to sufficiently accord an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review. Examples of a medical panel’s opinion being quashed upon judicial review for failure to observe “the hearing rule” of procedural fairness may be found in Calleja v Franet Pty Ltd and Weerappah v Nisselle. The leading Australian case concerning the content of the hearing rule generally is Kioa v West.
A medical panel is obliged to accord the protection of the “hearing rule” of procedural fairness to the employer/insurer party, not merely to the worker party: see, eg, Weerappah where Smith J said:
While much of the foregoing discussion is centred on the position of the worker, it must be borne in mind that there is always another party to these disputes and it too can be disadvantaged if the panel does not accord natural justice. For example, in the course of a medical examination, the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation it [sic] had been denied. It would be a denial of natural justice for the insurer not to have an opportunity to address that information before the Panel reached its decision.
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be “heard” (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.[16]
[16]Ibid [32]–[34].
[30]Having considered these propositions in the context of that case – in which the Panel made an unanticipated finding that the worker was suffering from a factitious disorder — Cavanough J found that the Panel had breached the rules of natural justice:
I agree with the employer’s submission that the medical panel’s psychiatric diagnosis – that the worker was suffering from a “factitious disorder” – was unexpected and could not reasonably have been anticipated; and that the employer was denied a fair opportunity to address the matter. In my view, the panel’s psychiatric diagnosis of a “factitious disorder” in its opinion and reasons came “out of the blue”.[17]
[17]Ibid [48].
[31]Barrett Burston was decided a couple of months prior to the decision of the High Court in Wingfoot. The principles set out by Cavanough J have been adopted and applied by other judges of this court since Wingfoot was decided. As Bell J said in H & G MacDonald Carriers Pty Ltd v Carson,[18] a case not dissimilar to the present:
[18][2014] VSC 586.
Of course the Panel was an expert body and its members can rely upon their own medical expertise, as they undoubtedly did in the present case when [expressing the opinions that are under challenge]. However, relying upon their own expertise, Panel members must still give parties and interested persons a fair opportunity to be heard in relation to the matters in issue.[19]
[32]To like effect in North v Homolka,[20] Ashley JA (sitting in the Trial Division) adopted the statements of principle set out by Cavanough J noting:
In some circumstances, a panel might be obliged to fragment its consideration of a matter in order to accord a party procedural fairness. Barrett Burston was such a case. So was Calleja v Franet Pty Ltd.
But what are those circumstances? A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel’s expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation.[21]
[19]Ibid [17].
[20][2014] VSC 478.
[21]Ibid [103]–[104].
It is true that, in the present case, the Panel paid close attention to the plaintiff’s history of cannabis abuse. The Panel mentioned the matter numerous times in its reasons, and it referred to ‘cannabis abuse’ twice in its answers to the referred questions. It may be accepted that, in the Panel’s view, the plaintiff’s use of cannabis over the years was a matter requiring consideration. It may even be accepted that the Panel regarded the plaintiff’s use of cannabis as being of considerable importance.
Further, it is plainly true that the Panel found that, at the time of its assessment, the plaintiff had a ‘cannabis abuse condition’. The Panel said so, in terms, in its certified opinion[22] and in its statement of reasons.[23]
[22]See esp the answer to questions 1 and 2.
[23]See Panel’s statement of reasons, 23. See also at 13.
However, in my view, there was nothing procedurally unfair in the Panel regarding the plaintiff’s cannabis use as a matter of importance, nor in the Panel finding that the plaintiff had a cannabis abuse condition. Scattered throughout the voluminous papers sent to the Panel were numerous references to the plaintiff’s use of cannabis as a matter of possible significance to identifying the nature of the plaintiff’s medical condition and identifying the causes of, or contributors to, his medical condition. Indeed, in the insurer’s written submissions to the Panel,[24] the plaintiff’s cannabis use was specifically raised as a matter of significance to the issues required to be determined by the Panel. Moreover, one of the plaintiff’s own treating doctors — the psychiatrist, Dr Bannerjee — had diagnosed the plaintiff with, among other things, ‘cannabis abuse’ in his report dated 20 January 2014 addressed to the plaintiff’s solicitors, which was sent to the Panel.[25]
[24]The insurer’s submission to the Panel dated 13 June 2014, esp at [10], [12], [13] and [16]: CB 1448–1449. See also at [5]–[7], [11], where some references to cannabis use contained in the medical documentation are quoted.
[25]CB 114–117, at 115.
Cannabis use was plainly relevant to whether the plaintiff was suffering from cognitive deficits, and whether any such deficits resulted from the compensable head injury, being issues that were squarely ‘in play’ before the Panel. Several medical reports that were before the Panel, some of which were said to be based on neuropsychological testing, purported to indicate that the plaintiff was suffering from cognitive deficits or other impairments to his intellectual functioning, such as with respect to working memory, processing speed and organisational ability and that the plaintiff was experiencing confusion, distractibility and difficulties with concentration.[26] Several of those same medical reports attributed the identified problems to the compensable head injury.
[26]See, for eg, the report of Professor Crowe dated 4 September 2012 dealt with by the Panel at p 17 of its reasons for opinion: CB 1499.
By contrast, the Panel determined, following its own neurological examination of the plaintiff, that the plaintiff was not suffering from any cognitive dysfunction at all.[27] Relevantly, the Panel discounted contrary findings made by other examiners on the basis, among others, that those examiners had not paid sufficient regard to the extent, timing and consequences of the plaintiff’s use of cannabis and other illicit drugs.[28]
[27]Panel’s statement of reasons, 22: CB 1504.
[28]See, for eg, the Panel’s comments on the report dated 7 February 2010 by Dr Karen Bird, clinical neuropsychologist, at p 11 of the Panel’s reasons: CB 1493.
As mentioned above, the plaintiff does not suggest that there was any reviewable error in the process by which the Panel concluded that the plaintiff was not, as a result of the compensable head injury, suffering from cognitive deficits that incapacitated him for work.
I turn now to the remaining parts of the plaintiff’s principal contention, namely that the Panel found that the plaintiff’s cannabis use was the sole (or overwhelming) cause of his schizophrenia or of his alleged incapacity for work; that the plaintiff could not reasonably have anticipated such a finding; and that, as a result, the plaintiff was denied a fair opportunity to be heard on the question whether the compensable head injury contributed to schizophrenia and thus to incapacity for work.
I note that senior counsel for the plaintiff expressly declined to submit, whether in the alternative or otherwise, that the Panel had found cannabis abuse to be merely a partial contributor to the plaintiff’s schizophrenia or to his alleged incapacity.[29] Senior counsel took this approach advisedly. As he in terms acknowledged,[30] there was, among the material sent to the Panel, ‘evidence to the effect that [cannabis use] was a part contributory’. Hence, there would have been no scope for an allegation of procedural fairness in relation to any finding that the Panel might have made of partial contribution.
[29]Transcript 3–6, 26, 31–34, 63.
[30]Transcript 32.
As it happens, in my opinion, the Panel did not treat cannabis abuse as being even a partial contributor to the existence of the plaintiff’s condition of schizophrenia, although the Panel may perhaps have considered that cannabis use contributed towards the precipitation of some symptoms that may have been associated with the plaintiff’s schizophrenia. However that may be, the plaintiff’s present case is not advanced, because, as just mentioned, the plaintiff concedes that a determination by this Court that the Panel made a finding of (only) partial contribution would be insufficient for his purposes.
Nor, in my opinion, did the Panel treat cannabis abuse as being, otherwise, even a partial contributor to any incapacity.[31]
[31]The Panel did not expressly determine, one way or the other, whether the plaintiff had suffered any incapacity for work at all, other than during the first nine or ten days after his compensable head injury on 30 July 2004.
In any event, the Panel certainly did not treat cannabis abuse as being the sole (or overwhelming) cause of the plaintiff’s schizophrenia or of any incapacity on his part.
There is no express statement in the Panel’s reasons to the effect that the plaintiff’s cannabis use was the sole (or overwhelming) cause of his schizophrenia or of any incapacity for work. Senior counsel for the plaintiff did not suggest that there was. Rather, senior counsel submitted that a finding to the effect alleged should be inferred from the whole of the Panel’s statement of reasons, read together with its certified opinion.
In my opinion, such a reading of the Panel’s reasons and opinion is simply not open.
Senior counsel for the plaintiff placed particular emphasis on three passages in the Panel’s lengthy statement of reasons. The first such passage is as follows:
The Panel concluded that the first episode of the worker’s psychiatric illness was December 2008–January 2009 following a prodromal phase of several months, and in the setting of cannabis abuse.[32]
[32]Panel’s statement of reasons, 15: CB 1497.
The next passage occurs six pages later, to wit:
The Panel also noted that notwithstanding the worker’s contrary history to the Panel and to other sources about marijuana use, the worker has a definite, significant but unreliably defined history of substance abuse, including associated with the onset of his first episode of psychosis in December 2008–January 2009, and his relapses in 2011 and 2012.[33]
[33]Ibid 21: CB 1503.
The third passage commences about one and one third pages (nine paragraphs) later. It reads:
The Panel considered the worker’s history of cannabis abuse. Notwithstanding his statement to the Panel that he has no history of cannabis abuse, the Panel concluded that the presence of a positive albeit contradicted and variable history within treatment records, evidences a long cannabis abuse history. The Panel considered that based on collateral history the worker’s use of cannabis predated his closed head injury and has become more severe in times of acute personal stress but is now being controlled by treatment. The Panel concluded that the worker’s pre-existing cannabis abuse condition has not been affected in any way by the worker’s closed head injury or resulting mild post-concussional syndrome. The Panel concluded therefore that the worker’s long standing cannabis abuse condition does not result from nor is it materially contributed to by any claimed injury, in any way.
The Panel considered the worker developed an acute onset of schizophrenia in 2008/2009 with associated severe financial and emotional strain and cannabis abuse. The Panel recognises that a traumatic brain injury may in some circumstances be a risk factor for schizophrenia however having regard to:
• Acute onset in December 08–January 09
• Relatively brief prodrome of 4–8 months beginning 2008
•Maintenance of employment, relationships, and financial capacity until late 2008; continuance of participation in elite sports (lacrosse at state level to 2008)[34] and go-karting till 2012
[34]The reference to 2008 here appears to be a mistake. Elsewhere in the Panel’s reasons it is stated that the plaintiff ceased playing lacrosse in 2003. On the other hand, the Panel referred, in another part of its reasons, to the plaintiff having ridden motor bikes until 2006.
•Long interval between mild head injury in July 2004 and any prodrome (> 2 years)
•Co-morbid cannabis abuse and possible cognitive or behavioural dysfunction
•Constitutional vulnerability
•Mild severity of head injury (< 15 min LOC, GCS 13–15 within 2 hours)
•Serial EEGs; serial CT scans, MRI scans all normal; PET scan non-specific
•Early RTW (9 days)[35]
•psychometric test results post 2009 explicable by psychosis, by medication effects, and cannabis use.
The Panel concluded that the worker’s schizophrenia has not developed as a consequence of the closed head injury or any post-concussional syndrome nor has it been affected by the injury and its sequelae in any way. The Panel concluded therefore that the worker’s schizophrenia condition does not result from and is not materially contributed to by the claimed injury in any way.[36]
[35]RTW stands for Return to Work.
[36]Panel’s statement of reasons, 22–23: CB 1504–5.
At best for the plaintiff, in my view, these passages do no more than indicate that, as mentioned above, the Panel may possibly have seen cannabis abuse as a partial contributor to the precipitation of schizophrenic symptoms in the plaintiff. However, the general thrust of the Panel’s approach is to regard the plaintiff’s cannabis abuse as being separate from and parallel to his schizophrenia. Thus, in another part of its statement of reasons, the Panel said:[37]
[37]Ibid 14: CB 1496.
The Panel concluded that the worker is suffering from:
• schizophrenia
• cannabis abuse
• mild post-concussional syndrome symptoms
Likewise, in the Panel’s answers to the referred questions, schizophrenia and cannabis abuse are referred to as separate ‘conditions’.[38]
[38]Note the plural.
Further, it seems to me that the last of the three passages emphasised by senior counsel for the plaintiff, in itself, tends strongly against the suggestion that the Panel treated cannabis abuse as the sole (or overwhelming) cause of schizophrenia or incapacity. The first part of that passage is principally directed to the possibility (which might have favoured the plaintiff’s claim of entitlement) that the compensable head injury led to the cannabis abuse condition (which, in turn, might have contributed to schizophrenia and/or incapacity). It is true that the plaintiff’s representatives, themselves, did not make any such suggestion to the Panel, but the plaintiff cannot be heard to complain that the Panel did in any event ask itself whether the plaintiff should succeed on such a basis. The fact that the Panel engaged in that exercise does not indicate to me that the Panel distracted itself from considering the plaintiff’s claim as it was actually put to the Panel on his behalf. In any event, the Panel’s duty was to consider for itself how the medical questions, as framed by the Conciliator, should be answered.[39] That is what the Panel did. No procedural unfairness to the plaintiff was involved.
[39]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
The remainder of the long passage confirms, in my view, that the Panel did not, by any means, treat the plaintiff’s cannabis use as the sole (or overwhelming) cause of his schizophrenia or of incapacity. Rather, the Panel asked itself whether the plaintiff’s compensable head injury might have involved injury to his brain, and the Panel took into account a range of factors in determining whether the head injury might thus have contributed to the development of the plaintiff’s schizophrenia. Of the lengthy list of factors to which the Panel had regard in that respect, only two mentioned cannabis abuse. Even then, the cannabis abuse was described as co-morbid. In other words, the Panel was treating the cannabis abuse as a collateral circumstance, not as a causative circumstance.
For these reasons, the plaintiff’s complaints of procedural unfairness covered by his principal contention cannot be sustained.
I turn now to the plaintiff’s remaining contentions. Each of them relates to the fact that the Panel did not decline, under s 65(5A) of the Act, to give an opinion on the referred medical questions.
I note that the plaintiff does not suggest that the circumstances of this case were such that the only course open to the Panel was to decline to answer the medical questions. Rather, the plaintiff’s present allegations are, only, that the Panel did not consider whether to decline to answer the questions and that it did not give the plaintiff a reasonable opportunity to be heard on that point.
It is true that the Panel did not expressly refer to the possibility of declining to deal with the medical questions by reference to the considerations referred to in s 65(5A) of the Act. It did not expressly mention that provision at all.
It is not necessary for me to form a view as to whether or not the possibility of declining to answer the medical questions was a mandatory relevant consideration for the Panel, in the sense of a matter that the Panel was bound to take into account.[40] Even if it was, there would be a real question as to whether it lies in the mouth of the plaintiff to complain about any omission on the part of the Panel to consider whether or not to decline to answer the medical questions. The plaintiff’s complaint in this regard does not sit well with the fact that the only party that submitted to the Panel that it should decline to answer the medical questions was the insurer; whereas the plaintiff actually opposed the insurer’s suggestion.[41]
[40]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–46. In this regard, I would venture repeat what I said in Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 [77]–[79]. See also, Haq v Dodghun [2015] VSC 450 (J Dixon J) [43]; Alcoa of Australia v Edwards [2016] VSC 630 (McDonald J) [21]–[23].
[41]Written submissions of the plaintiff’s solicitors, Maurice Blackburn, dated 30 June 2014: CB 1450. See Alcoa of Australia Ltd v Edwards [2016] VSC 630 (McDonald J) [31]–[32] and see further below.
In any event, I am not satisfied that the Panel omitted to consider whether or not to decline to answer the medical questions. At the end of its statement of reasons, the Panel says:
The Panel considered the other submissions on behalf of the worker, dated 23 April 2014, and on behalf of the insurer, dated 13 June 2014. The Panel considers that these reasons have addressed the issues raised in the submissions.[42]
The written submission dated 13 June 2014 to which the Panel refers contained the insurer’s proposal that the Medical Panel should decline to answer the medical questions. The plaintiff’s abovementioned submission to the contrary was contained in a response submission prepared by his solicitors dated 30 June 2014. That response is not referred to in the passage just quoted from the body of the statement of reasons. However, the solicitors’ response is listed in the schedule of attachments (Enclosure B) to the statement of reasons;[43] and the presiding member of the Panel states in that schedule that the material so listed was received and taken into account by the Panel in forming its opinion. In my view, it should not be concluded, in this case, that the Panel omitted to consider whether or not to decline to answer the medical questions. To the contrary, I would infer that the Panel did consider that point but decided that the medical questions should be answered.[44]
[42]Panel statement of reasons, 24: CB 1506.
[43]The solicitor’s response submission is item 2 in the schedule (Enclosure B). It is there given the date 1 July 2014 (as distinct from 30 June 2014) and it is described as consisting of two pages, whereas the response submission itself (at CB 1450) consists of a single page. No doubt the explanation is that the submission was forwarded to the Convenor of Medical Panels under cover of a single page letter dated 1 July 2014.
[44]See and compare Maribyrnong City Council v Malios [2014] VSC 452 (Macaulay J) [48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 [83]; Haq v Dodgshun [2015] VSC 450 (J Dixon J) [45]; Alcoa of Australia Ltd v Edwards [2016] VSC 630 (McDonald J) [23].
Finally, there is no basis for the plaintiff’s contention that the Panel failed to give him a proper opportunity to be heard on the question whether or not the Panel should decline to answer the medical questions. As mentioned above, such a course had been advocated in the insurer’s submissions dated 13 June 2014. The plaintiff, by his solicitors, had the opportunity to respond to the insurer’s submissions in this respect. He had ample notice of, at least, the prospect that the medical panel would treat his cannabis abuse history as a matter of importance in the manner, and to the extent, that it ultimately did.[45] Nevertheless, he actively opposed the course suggested. He may now regret having made that particular response. However, while the principles of procedural fairness (or natural justice) generally require a decision-maker to ensure that a party is given a reasonable opportunity to present the party’s case, they do not impose ‘the impossible task of ensuring that a party takes the best advantage of the opportunity to which [the party] is entitled’.[46] This final contention of the plaintiff lacks any substance.
[45]As indicated above, I do not consider that the Panel treated the plaintiff’s use of cannabis in the way contended for by the plaintiff. That is, the Panel did not treat his use of cannabis as causative of his schizophrenia or any incapacity for work.
[46]Sullivan v Department of Transport (1978) 20 ALR 323, 343 (Deane J, with whom Fisher J agreed); SZTXE v Minister for Immigration and Border Protection (2015) 232 FCR 433, 437 [18] (Flick J) and cases there cited; Alcoa of Australia Ltd v Edwards [2016] VSC 630 (McDonald J) [31]–[32].
Conclusion
For the reasons stated above, none of the extant grounds of review can be upheld.
I would add that the Panel’s detailed statement of reasons shows that it dealt with this medically complex case in an admirably conscientious manner.
The proceeding will be dismissed.
I will hear the parties on the question of costs.
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