Jerak v Dr Lazarus & Ors
[2020] VSC 729
•6 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03424
| MARIN JERAK | Plaintiff |
| v | |
| DR MARK LAZARUS & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 July 2020 |
DATE OF JUDGMENT: | 6 November 2020 |
CASE MAY BE CITED AS: | Jerak v Dr Lazarus & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 729 |
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JUDICIAL REVIEW – Workers compensation – Medical Panel – 0% whole person impairment assessed by the panel – Dr Lazarus member of panel and previously engaged to examine the plaintiff – Breach of s 537(8) of Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) due to failure to preserve impartiality and independence – Breach of s 537(8) is not cured by s 540 – Jurisdictional Error – Opinion set aside – Remitted to differently constituted panel – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Masters v McCubbery & Others [1996] 1 VR 635 – Ryan v The Grange at Wadonga Pty Ltd & Ors [2015] VSCA 17 – WIRC Act s 56, 311, 312, 537, 540 – Accident Compensation (General Amendment) Act (No 64 ) 1989 – Accident Compensation (Workcover) Act (No 67) 1992 s 63(5)
PROCEDURAL FAIRNESS - Application of AMA Guides – Chapter 2 & 8 – No failure to resolve disparity as to underlying cause of eye injury – Medical Panel acted in accordance with the Guides and its obligation of procedural fairness – HJ Heinz & Anor v Kotzman & Ors [2009] VSC 311– American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Hayes QC Mr P. Czarnota | Carbone Lawyers |
| For the First and Second Defendant | DLA Piper Australia | |
| For the Third Defendant | Mr M. Fleming QC Ms S. Gold | Hall & Wilcox |
HER HONOUR:
The plaintiff seeks orders quashing the opinion of a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the WIRC Act’) to assess impairment.
Mr Marin Jerak sustained eye injuries while working as a truck driver for Victoria Police. On 30 May 2015, while he was under a car fitting a chain so the car could be towed by a tilt tray truck, debris fell into his eyes and his right eye was struck by the chain. He has an accepted claim for compensation.
Subsequently he lodged a claim for an impairment benefit and the claims agent managing the claim arranged for the plaintiff to be examined by Dr Mark Lazarus on 13 February 2017. The letter to Dr Lazarus made clear that liability for injury was to be accepted and only an assessment of impairment in accordance with the American Medical Association Fourth Edition Guidelines (‘the AMA Guides’) was required. The plaintiff missed the appointment and the examination did not occur. He was assessed instead by Dr Nave on 22 February 2017 and 3 August 2017.
By notice dated 29 August 2017, the claims agent accepted liability for injuries to both eyes and assessed the plaintiff with a 25% whole person permanent impairment in accordance with the assessment of Dr Nave. The plaintiff accepted the liability decision but disputed the physical impairment assessment. In accordance with s 207 of the WIRC Act, the dispute regarding the level of assessment was referred to a Medical Panel.
The Medical Panel (‘the first Panel’) determined the plaintiff to have a whole person impairment of 55%. This opinion was subject to judicial review by the employer and quashed for error by Justice Garde.[1] The medical questions were remitted back to a differently constituted medical panel (‘the second Panel’).
[1]State of Victoria v Jerak [2018] VSC 680 (‘Jerak’).
The second Panel comprised Dr David Fish, Specialist Occupational and Environmental Physician as the presiding member and ophthalmologist Dr Mark Lazarus. They separately examined the plaintiff on 6 February 2019. The second Panel’s opinion, dated 3 June 2019 was that Mr Jerak has a whole person impairment of 0%. The plaintiff seeks judicial review and orders for certiorari to quash the second Panel’s opinion asking the Court to remit the medical questions again to a differently constituted panel.
The plaintiff’s grounds for judicial review as amended raised three issues:
(a) Firstly, did the second Panel fall into jurisdictional error or alternatively breach the rules of natural justice, because it failed to comply with section 537(8) of the WIRC Act as Dr Lazarus was a member of the second Panel in circumstances where s 537(8) expressly prohibited his membership;[2]
(b) Secondly, did the second Panel commit error by failing to comply with the AMA Guides, and in particular Chapters 1 and 2 which required it to communicate with treating or examining doctors, or undertake further clinical evaluation/testing, prior to making its determination;[3]
(c) Thirdly, alternatively to the second issue, did the second Panel fail to exercise its powers under s 311 of the WIRC Act to adopt a procedure for requesting further information from medical practitioners in seeking to resolve the issue of whether symptoms were due to an organic condition to either eye or were functionally based.[4]
[2]Plaintiff’s Further Amended Originating Motion for Judicial Review, 13 April 2020 [Grounds 1(e), 2(c), (d), (e) & (f)].
[3]Ibid [Grounds 1(a), (b), 2(b)].
[4]Ibid [Ground 2(a)].
Dr Lazarus’ participation in the second Panel
At the time he was notified of the second Panel examination and on the day of the examination, the plaintiff did not appreciate that Dr Lazarus was the doctor who had originally been engaged by the claims agent back in 2017 to examine him to assess impairment. On 11 November 2019, when this proceeding was on foot, Hall & Wilcox, acting on behalf of the third defendant forwarded to the Plaintiff the letter of instruction to Dr Lazarus and a contemporaneous claims agent file note as to non-attendance at the appointment by Mr Jerak.
Once this was brought to his attention Mr Jerak says he recalled the appointment. In his affidavit sworn 5 December 2019 he says that the letter from Hall & Wilcox and its enclosures[5] refreshed his memory so that he now recalls:
…On or about 13 February 2017, I missed my appointment with Dr Lazarus as I had difficulty finding Dr Lazarus’ rooms. I recall eventually finding Dr Lazarus’ rooms and having a heated exchange with Dr Lazarus’ secretary and Dr Lazarus himself. I was told I would be unable to reschedule the assessment with Dr Lazarus for a matter of months.[6]
[5]Which included a letter dated 18 January 2017 from Gallagher Bassett to Dr Mark Lazarus scheduling the assessment of the Plaintiff on 13 February 2017 and a file note from the day of the appointment recording a telephone call from the plaintiff advising he had missed his appointment with Dr Lazarus.
[6]Affidavit of Marin Jerak 27 November 2019 [2], [3], [4].
The defendant contends that the worker’s account conflicts with that recorded in the agent’s contemporaneous file note to the effect that the worker could not find the rooms of Dr Lazarus at all, and was advised by the agent that the appointment would be rescheduled.[7] The note relevantly reads:
He called around 2.30pm…Worker advised he could not find the place and he tried calling the doctor numerous times and was put through to an answering service….. Worker was quite distressed and wanted to know when the next appointment would be and wanted to speak with his CM….Worker calmed down toward the end of the call, but expressed his frustration.
[7]Third Defendant’s submissions, ‘Third Defendant’s Outline of Submissions’, Submissions in Jerak v Dr Lazarus, S ECI 2019 03424, 29 May 2020 (‘Third Defendant’s submissions’) [47]; Exhibit MJ-1, Letter from Third Defendant 11 November 2019 and file note of 13 February 2017.
The note makes no reference to finding the rooms or speaking with anyone there. The plaintiff was not challenged on the content of his affidavit.
Failure to comply with s 537(8) – Jurisdictional error?
Section 537 of the WIRC Act deals with the establishment and constitution of Medical Panels. It describes the constitution of panels under the WIRC Act, its predecessor the Accident Compensation Act 1985 ( the ‘ACA’), and Part VBA of the Wrongs Act 1958 as are necessary.[8] Panels are constituted from a list of members appointed by the Governor in Council, with the appointment from that list by the Minister of a Convenor and Deputy Convenors.[9] A particular medical panel is constituted in accordance with s 537(7) which provides:
[8]Section 537(1) Workplace Rehabilitation and Compensation Act 2013 (‘WIRC Act’).
[9]Ibid (2), (3), (4) &(5).
537 Establishment and constitution
…
(7) The Convener may –
(a) convene a Medical Panel; and
(b) determine the number of members that are to constitute a Medical Panel based on what he or she considers to be appropriate in each particular case.
…
Membership of a Medical Panel that is convened is constrained by sub-section (8) which provides:
(8)If a medical practitioner on the list of members has treated or examined or been engaged to treat or examine a worker (otherwise than in his or her role as a member of a Medical Panel) he or she must not be a member of a Medical Panel examining the worker.
There is no dispute that prior to sitting on the Medical Panel to examine the plaintiff, Dr Lazarus was engaged by the claims agent to examine him as part of its decision making process in relation to the impairment claim. The parties disagree on whether this circumstance is caught by the prohibition of s 537(8).
The plaintiff contends that s 537(8) should be construed as preventing a medical practitioner becoming a member of a medical panel to examine a worker if any one of four events exist. They are that the practitioner:
(1) has treated, or
(2) has examined, or
(3) has been engaged to treat, or
(4) has been engaged to examine
a worker. The plaintiff contends that the fourth event had occurred, and the operation of s 537(8) meant that Dr Lazarus must not, after that time, be a member of a medical panel to examine Mr Jerak irrespective of whether that engagement was carried out or not.
The third defendant contends that s 537(8) should be construed more narrowly so that it prevents a medical practitioner becoming a member of a medical panel in only three circumstances. The first two deal with past events where the medical practitioner has treated, or has examined a worker. The third circumstance deals with future events, where a practitioner has been engaged for treatment or an examination of a worker which is yet to take place. As Dr Lazarus was engaged to examine in the past, but did not examine, he is therefore not caught by the terms of s 537(8).
The approach to the statutory construction of the provision is not controversial. The following principles can be distilled from Project Blue Sky:[10]
[10]Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’).
(a) The court is to give the words the meaning that the legislature is taken to have intended. The intended, or legal meaning is not necessarily the grammatical meaning.[11]
[11]Ibid 384 [78].
(b) The court’s primary object is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.[12]
[12]Ibid 381 [69] citing Taylor v Public Service Board (NSW) (1976) 137 CLR 208, 213 (Barwick CJ).
(c) The meaning is to be ascertained “by reference to the language of the statute viewed as a whole”.[13]
[13]Ibid 381 [69], quoting Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ).
(d) Construction should presume that the statute gives effect to harmonious goals.[14]
[14]Ibid 381, 382 [70], citing Ross v The Queen (1979) 141 CLR 432 [440] (Gibbs J).
(e) Any conflict between provisions within the statute should be interpreted to best give effect to maintaining the unity of the provisions and may require determination of a hierarchy in order to give conflicting provisions each a meaning and purpose that gives effect to the overall unity of the statutory scheme.[15]
[15]Ibid 381, 382 [70], discussing Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 [161] (Cooper CJ) and Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 [574] (Gummow J).
(f) A court should strive to give meaning to every word of the provision.[16]
And finally:
(g) There are limited circumstances in which words may be read into the relevant provision, the task is primarily a construction of the actual words used, not one that ‘fills gaps’.[17]
[16]Ibid 382 [71], see also The Commonwealth v Baume (1905) 2 CLR 405 [414].
[17]Taylor v Owners –- Strata Plan No 11564 (2014) 253 CLR 531 [38].
The function of a Medical Panel in the WIRC Act, as in its predecessor the ACA, is to give its opinion on any medical question referred to it[18] for the purpose of dispute resolution. What amounts to a medical question is defined by s 5 of the WIRC Act. Medical questions involve mixed questions of fact and law.[19] As s 302 makes clear, referrals can be made, and in some circumstances must be made, by other bodies with power to resolve disputes already on foot under the legislation including the Accident Compensation Conciliation Service, the Magistrates’ or County Court, or Victorian Civil and Administrative Tribunal. Referrals may also be made by those administering the compensation scheme: the Victorian WorkCover Authority (‘VWA’) (including its claims agents) or a self-insurer, in prescribed circumstances where a worker disputes a determination of the degree of impairment or total loss.[20]
[18]Section 302 WIRC Act.
[19]Masters v McCubbery [1996] 1 VR 635 (‘Masters’).
[20]See s 207 WIRC Act. Relevantly a disputed assessment of a degree of impairment or total loss or disputed assessment of percentage hearing loss.
The way in which a Medical Panel provides an answer to medical questions is by forming and providing its own opinion on the referred medical questions. In Wingfoot Australia Partners Pty Ltd v Kocak,[21] the High Court said:
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.[22]
[21](2013) 252 CLR 480 (‘Kocak’).
[22]Ibid [47] (citations omitted).
In all cases the opinion of a Medical Panel on the question referred is binding on the body or person deciding the dispute.[23]
[23]Section 313(4) WIRC Act.
The parties were agreed that the statutory purpose of paragraph 537(8) was to ensure the independence and impartiality of a panel and to avoid conflicts of interest. The provision makes a clear separation between medical practitioners who have had a role either in treating the worker or providing an expert opinion, from those whose role is to give a statutory medical opinion. Practitioners might be relied on by a worker or an employer representative to provide an opinion to assist in decisions of claims management or in support of the competing contentions of parties to a dispute. These matters might ultimately lead to referral of a medical question to a panel.
In my view, the statutory provision is directed at preventing any overlap of roles of medical practitioners by quarantining those who are requested to provide opinions as evidentiary material to be given to a decision-maker from those who provide a medical opinion that is binding upon a decision-maker. It is less concerned with the risk that an independent mind might not be brought to the different roles. It is more directed at keeping separate those participating in the decision making processes, from those whose opinion will ultimately become binding on a decision maker.
The provision is wider than those who have actually examined or treated a worker. It captures a medical practitioner ‘engaged’ to do so. The third defendant’s submission, that it captures only the potential panel member who is engaged to treat or examine the worker on an upcoming date, requires a tortured grammatical approach. The interpretation uses the word ‘or’, appearing where it does after ‘examined’, as performing the task of breaking the provision into two parts; one part dealing with past circumstances and the other dealing with future circumstances.
I am unable to accept this interpretation. First, it does not sit with the purpose of the provision to preserve impartiality and independence, to take a narrow view excluding only those engaged for future examinations or treatment. There is nothing to differentiate engagement for events in the past, from engagement for events yet to occur, in preserving the appearance of impartiality and independence.
A broad interpretation will prohibit a number of medical practitioners from participation on a panel even though they have not in fact ever examined or treated a worker. To cast a wide net over the prohibition removes the risk of a factual contest between the parties as to whether the particular circumstances of engagement of the medical practitioner gives rise to any breach of the rules of natural justice.
Second, the legislation on a plain reading does not say that the prohibition addresses only engagement for future treatment or examinations. It would be a simple matter to make explicit such a limited class of engagement. It is not necessary to read in such a word or intention.
Third, the word ‘or’ is used on three occasions to list alternatives. Twice it is used to separate the alternative acts ‘treated or examined’. On the third occasion it is used to identify the act of ‘been engaged to’. All three acts are governed by the verb ‘has’. To imply the narrow construction by singling out one use of the word ‘or’ in a way different to its other repetitions is not necessary to make sense of the provision. There is no purpose in confining it to some engagements but not others by implying a time frame where one is not set.
Fourth, I do not accept the submission that there is no reason to extend the provision to apply to past engagements where a practitioner never in fact treated or examined. If the purpose of the provision is to ensure independence and impartiality, then the objective appearance of a clear separation is essential. The factual context of this case, where the very question of impairment assessment was sought out by the claims agent from Dr Lazarus, and is now the question to be independently and conclusively determined by a panel constituted in part by Dr Lazarus, demonstrates the difficulty in maintaining an independent process where the identity of the practitioner comprising a member of the Medical Panel overlaps with persons involved in the administrative decision making process.
Fifth, the Convenor’s Directions 2015 (‘the Directions’), given pursuant to s 303(3) of the WIRC Act, describe the steps to be taken ‘Managing Conflict of Interest’. The Medical Panel promulgates a Conflict of Interest Policy and ‘Procedures for Managing Conflict of Interest in the Appointment of Medical Panels’. The procedures require a proposed member to make a ‘Statement of Interest’ or a ‘Statement of no interest’ referencing the wording of s 537(8). Procedures are outlined for the replacement of a proposed member where indicated. In this case, Dr Lazarus completed a ‘Statement of no interest’. There was no indication that Dr Lazarus recalled his earlier engagement by the claims agent when he did so. The Directions are consistent with the position that, had he become aware of the engagement, he would not remain a member of the Panel.
Sixth, s 537(8) has appeared in substantially the same form since Medical Panels were introduced into the ACA in 1989.[24] As initially enacted s 72(6) read:
[24]By s 8 of the Accident Compensation (General Amendment) Act (No 64) 1989 which introduced Part III, Division 3 – Medical Panels.
If a medical practitioner on the list of members –
(a)has treated or examined or been engaged to treat or examine a worker; or
(b) has reported or been engaged to report on a worker’s injury; or
…
By further amendment,[25] the establishment and constitution of Medical Panels came to be dealt with by section 63 of the ACA. Relevantly s 63(5) then provided:
If a medical practitioner on the list of members has treated or examined or been engaged to treat or examine a worker he or she must not be a member of a Medical Panel examining the worker.
[25]Accident Compensation (Workcover) Act (No 67) 1992.
In considering whether a Medical Panel was required to give reasons as required by the Administrative Law Act1978(Vic), the Court of Appeal in Masters v McCubbery & Others made reference to s 63(5). In looking to the legislative intent for a Medical Panel to accord procedural fairness, President Winneke said:
Indeed it seems to me that, to the extent that the Act excludes from a medical panel any doctor who has ‘treated the worker’[26], it is requiring that one of the precepts of natural justice (namely a decision of an unbiased tribunal) be complied with. It is consistent with the duty to act impartially that the medical panel should also act fairly.[27]
[26]Ibid s 63(5).
[27]Masters (n 19) 645 [30] (Winneke P).
Parliament has prescribed within s 63(5) and its successor, s 537(8), circumstances which lead to exclusion from a panel. Each of those circumstances; treatment, examination and engagement to do so, should be inferred to be of equal importance for the legislative purpose of achieving independence and impartiality.
Given the conclusion I have reached on the construction of s 537(8), it is not necessary to resolve any factual contest between the plaintiff’s unchallenged recollection of events and the contemporaneous file note or to determine whether the events might give rise to a reasonable apprehension of bias. Were it necessary to do so I would accept that Mr Jerak, in December 2019, on prompting from the file note and letters, recalled the events set out in his affidavit. I would however, conclude that, as there was nothing to indicate that either Dr Lazarus or Mr Jerak appreciated at the time of the Medical Panel examination, the past engagement or any exchange at the rooms on the day of the scheduled appointment, I could not be satisfied that a reasonable bystander might apprehend that Dr Lazarus might not bring an impartial mind to the task of forming his opinion.
Does a breach of s 537(8) invalidate the Panel’s opinion?
My conclusion on the proper construction gives rise to a second question. What is the effect of a breach of s 537(8)? The legislation is silent as to the consequence. The argument as to the effect of a breach has two parts. The first is whether any breach is remedied by s 540. Second, if not so remedied, is the breach one that leads to invalidity?
Section 540
First, in its letter of 11 November 2019, Hall & Wilcox advised it was:
…of the view that in accordance with section 540 of the Workplace Injury Rehabilitation and Compensation Act 2013 the appointment of Dr Lazarus to the medical panel does not render the medical panel opinion dated 3 June 2019 invalid.[28]
[28]Plaintiff’s Exhibit JEC-1 to Affidavit of Joseph Emanuele Carbone dated 27 November 2019.
The third defendant’s submissions describe the purpose of s 540 as preserving the validity of acts or decisions where there is a ‘technical’ rather than ‘substantive’ irregularity in appointment. It argues that appointment includes appointment to a particular panel and that the purpose of s 537(8) is not promoted by invalidating panel opinions where there has been a ‘breach in the appointment of a panel member of an insubstantial, technical and tenuous nature’.[29]
[29]Third defendant’s submissions (n 7) [56].
The third defendant says that the membership of Dr Lazarus on the Medical Panel does not infringe principles of procedural fairness and no fair-minded person might reasonably apprehend that Dr Lazarus might be biased ‘in circumstances where there has been an appointment for the worker to attend him on a single occasion, years earlier, which did not go ahead.’[30]
[30]Ibid [57] and [59].
The plaintiff contends that s 540 is directed at the appointment by the Governor in Council to the list of members in accordance with s 537(2) and not with the decision by the convenor under s 537(7) as to the composition of a particular panel.
Section 540 of WRICA provides:
540 Validity of acts or decisions
An act or decision of a Medical Panel is not invalid by reason only of any defect or irregularity in or in connection with the appointment of a member.
In common usage, the selection of members to a particular panel may be described as being appointed by the Convenor. By way of illustration the Medical Panel’s documentation ‘Procedures for managing conflict of interest in the appointment of medical panels’[31] describes the steps taken by ‘eligible panellists’ in their ‘appointment’ to a Medical Panel. In common usage, appointment to a panel and the convening of a panel are interchangeable descriptions of a selection process.
[31]Exhibit MJ-2 to Affidavit of Marin Jerak dated 27 November 2019.
However, that is not the statutory language used. In the construction of s 537 as a whole, appointment and convening are separately and distinctly used. The legal meaning of appointment is the act of the Governor in Council,[32] or of the Minister where it applies to the appointment of a Convenor and Deputy Convenors.[33]
[32]WIRC Act s 537(2).
[33]Ibid s 537(3)(a), (b).
By contrast a Convenor must designate a Deputy Convenor to act in the temporary absence of the Convenor,[34] and may delegate the exercise of conferred functions or powers.[35] The appointment by the Governor in Council does not lead to the formation of standing Medical Panels. It is the role of the Convenor to form a particular panel in accordance with s 537(7), which the legislation describes as being convened, constituted by membership of the number of medical practitioners that the Convenor determines to be appropriate.[36] The entitlements and other terms and conditions of members of a panel are also provided for by s 537, generally by reference to that member’s ‘instrument of appointment’ and not by act of the Convenor.[37]
[34]Ibid s 537(4).
[35]Ibid s 537 (6).
[36]And similarly s 306 when the Convenor may decline to convene a panel.
[37]See WIRC Act s 537(10) , s 537(11).
There is within the structure of s 537 itself a clear demarcation in legal meaning between the appointment of a medical practitioner to the list, making them eligible for selection as a member of a panel and the act by the Convenor of selecting them as members to constitute a panel.
The legislation also deals with the term, resignation and termination of members at section 538. The Convenor has no power in relation to the composition of the list of members. The term of membership is fixed by reference to the instrument of appointment.[38] The members themselves may resign, the Governor in Council may remove or suspend, or automatic cessation occurs on defined occurrences.[39] There remains a consistent distinction between being on the list of members and selection for membership of a particular panel.
[38]Ibid s 538(1).
[39]Ibid s 538(2), (3), (4).
Does breach invalidate the Opinion?
Accordingly, in my view, a breach of s 537(8) is not cured by s 540. What then is the effect of a breach? The factors relevant to whether acting in breach of a statutory provision renders the opinion invalid were considered in Project Blue Sky. In their joint judgment, McHugh, Gummow, Kirby and Hayne JJ said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[40]
[40]Project Blue Sky (n 10) 388-9, [91].
On the question of validity, traditionally whether compliance with a statutory provision was mandatory or directory would be decisive. In Project Blue Sky, their Honours outlined:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.[41]
[41]Ibid 390 [93].
The plaintiff submits that the language ‘must not’ supports an intention that invalidity follows. He points to other circumstances within the WIRC Act where ‘must’ or ‘must not’ have been held to impose mandatory obligations in respect to Medical Panels. Illustrations include the obligation to refer medical questions,[42] and the provision of documentation to the panel,[43] the private attendance of a worker before the panel,[44] and the obligation to adopt and apply the medical opinions.[45]
[42]WIRC Act s 274.
[43]Ibid s 304.
[44]Ibid s 310.
[45]Ibid s 312.
While the language of s 537(8) is clearly mandatory, that is not determinative of invalidity. Many of the illustrations relied on show the mandatory nature of referral and adoption by others of an opinion. They do not assist in determining the effect of a breach by a medical panel of its own statutory power.
In Ryan v The Grange at Wodonga Pty Ltd & Ors,[46] the Court of Appeal considered the effect of the 60 day time limit imposed by s 68 of the ACA. Section 68 provided that:
(1)A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, the Authority or self-insurer.
The worker contended that the 60 day limit had expired and that an opinion outside the prescribed period was invalid.
[46][2015] VSCA 17.
The court held that the 60 day period had not expired. While it was not necessary then to deal with the question of validity, the Court expressed the view that the trial judge had been correct to hold that, even if outside the time limit, the opinion was valid. It referred to other mandatory language used to describe procedural requirements which did not invalidate opinions; the statutory ability of the referring body to extend time; and the consequence of invalidity for even small time infringements which would cause delay and additional cost that could undermine the statutory goal of speedy decision making.[47] The statutory scheme was contrasted to that under the Wrongs Act 1958 (Vic) where breach of a prescribed time limit did invalidate a medical opinion.[48]
[47]Ibid at [32]-–[34].
[48]Mikhman v Royal Victoria Aero Club [2012] VSC 42. Since reserving judgment in this matter Ko v Hall & Ors [2020] VSCA 224 has held that failure to comply with the time limits imposed by s 28LZG Wrongs Act 1958 did not invalidate an Opinion.
The membership of any particular panel is a matter for the Convenor circumscribed by s 537(8). The legislative purpose of separation of the role of panel members from other roles in which medical practitioners may encounter a worker is to promote the Medical Panels as an independent and impartial body.
Whilst it might be said that a medical practitioner previously engaged to treat or examine a worker, who did not in fact ever do so, could and would bring an impartial mind to the task of the panel, the legislation has included engagement as a circumstance of disqualification. The identity of the decision maker goes to the heart of the process of forming the opinion. It is not merely a prescribed procedural step taken by a person properly authorised to do so. The objection to Dr Lazarus’ participation in the Panel was not a question of whether he had been validly appointed to the list of eligible practitioners by the Governor, but whether the statute prohibited his participation in a Panel concerning Mr Jerak. If so, the opinion is formed by someone not empowered by statute to do so. Given the binding nature of Medical Panel opinions on other decision makers, it is clear in my view that the consequence that legislature intended in such circumstances is invalidity. Brennan J when President of the Administrative Appeals Tribunal said of an act performed by a person not authorised by statute to do so:
An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it is done by the person in whom the statute reposes the power… Validity is thus dependent upon the identity of the authority and the doer of the act.[49]
[49]Ombudsman Act 1976, Re Reference under section 11; Ex parte Director-General of Social Services (1979) 2 ALD 86 [93].
The fact that the Convenor has in place processes for identifying potential conflicts and interests prior to convening a panel means that the prospect of a panel constituted in breach of s 537 remains low. Accurate recordkeeping of those involved in management of compensation claims in registering the involvement of practitioners engaged to examine also makes it unlikely that such breaches might be frequent. There is no suggestion that the purpose of the legislation would be frustrated by the consequence of invalidity.
Finally, the consequence of a breach must be consistent. Either the purpose of the provision is such that a failure to observe it leads to invalidity or it does not. There is nothing in the language or purpose of the provision to treat the effect of a breach differently depending on whether it relates to treatment, examination or engagement. If the panel was constituted by treating practitioners, or by the claims examiners relied on by the claims agent, it could not be said that the opinion was impartial and independent and should be considered valid. I reject the submission that a breach brought about by an engagement is different and, on these facts, in some way technical rather than substantive so that invalidity should not follow.
For these reasons I have concluded that the effect of Dr Lazarus’ participation as a member of the Medical Panel is that the opinion was attended by jurisdictional error and should be set aside.
Application of the AMA Guides
The remaining issue relates to the application of the AMA Guides by the second Panel. A failure to assess impairment by properly applying the Guides is an error of law. The determination of a level of impairment is a question of fact.[50] Although it is not necessary to do so, it is desirable to make some observations on the arguments that were presented.
[50]H J Heinz & Anor v Kotzman & Ors [2009] VSC 311.
The plaintiff argues that the second Panel did not properly apply the Guides in two ways:
(a) They did not communicate with treating doctors or medico legal examiners, or conduct further clinical evaluation or testing as required by the Guides in order to resolve the issue of whether the findings on examination and diagnosed injury were organic in origin or functionally based, and so fell into jurisdictional error or error of law on the face of the record; and
(b) They did not adopt a procedure to exercise power under s 311 WIRC Act to request further opinion from treating doctors on the issue of whether there was a physically diagnosable condition before forming their opinion and thereby failing to accord procedural fairness to the plaintiff.
In quashing the opinion of the first Medical Panel, Garde J held that the Panel had not accorded the parties natural justice and did not act in accordance with the Guides in arriving at a left eye visual loss of 38%. The uncontested material before the first Panel (from Dr Sarossy and Dr Nave) was that the left eye had a normal left eye visual field. The Panel’s finding was contrary to the previous ophthalmic assessments and came as a surprise to the employer who had no reason to expect that an assessment based upon that level of left eye loss of visual field would be made. His Honour said:
It was to be expected that there would be substantial agreement between the tests and assessment of the treating ophthalmologist, the independent medical examiner and the panel as to the extent of loss of visual field of the left eye. However, there was a major discrepancy between the test results for loss of visual field of the left eye as between the treating ophthalmologist, the independent medical examiner, and the panel. There was no investigation or explanation as to how this had occurred.[51]
The Panel neither explained nor sought to resolve the discrepancy.
[51]Jerak (n 1) [61].
The plaintiff submits that here the second Panel, which assessed impairment pursuant to Chapter 8 of the AMA Guides at 24%, but reduced it to 0% likewise created a discrepancy that required explanation or investigation. The reduction was because the claimed visual deficits were not due to any organic injury to either eye. It was said that the second Panel arrived at an opinion that was a major divergence from the earlier assessment of Dr Nave and the proper application of the AMA Guides obliged the Panel to seek further opinion to resolve this divergence.
I do not accept that the second Panel failed to properly apply the AMA Guides for the reasons set out below.
First, the claimed and accepted injury was to the eyes. The injury therefore required assessment in accordance with Chapter 8 and specifically with 8.4. No error in application of Chapter 8 arises. Indeed the assessment of the second Panel in accordance with Chapter 8 was impairment of 24%. Dr Nave assessed whole person impairment at 25%, although each assessment was arrived at by different clinical pathways.
By reason of s 56 of the WIRC Act, not the application of the Guides, a panel is obliged to proceed as follows:
In assessing a degree of impairment in accordance with this Division, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
Having assessed in accordance with Chapter 8, the second Panel acted in accordance with s 56 to arrive at its assessment of 0%. This is a factual question. The divergence of opinion was not as to matters of assessment produced by following the AMA Guides which say nothing specific as to the resolution of disparate conclusions or opinions on the question of whether symptoms are organic or psychologically generated.
Chapters 1 and 2 of the AMA Guides, specifically matters identified in 1.2 and 2.1, generally set out the objective of the Guides in promoting consistency in evaluation. They identify that, where there are disparate conclusions reached by various physicians, further clinical evaluation or investigation should occur to resolve disparities.
There may well be situations where further information or testing is required to clarify whether a symptom has an organic or functional basis. For example, a specific investigation not undertaken could determine an underlying physical cause, or evidence of a contemporaneous attendance, not presently before a panel, might bear on the history of onset of symptoms. However, the plaintiff doesn’t point to further information that would assist in the resolution of an organic basis for symptoms. The explanation for the disparity in conclusion is the presence of symptoms not explained organically arising from the physical injury.
It is difficult to see what value the second Panel might gain from other opinions, as distinct from information that might inform those opinions. Even if it could be said that a particular practitioner’s opinion was in the circumstances relevant information, it is to be borne in mind that the task of a medical panel under the legislation is to form its own opinion on the questions referred to it. It is not to adjudicate on competing opinions.[52] Nor is the resolution of such a question one that is informed by any process within the Guides. Instead the issue arises because of the statutory modification of the way the Guides would otherwise operate.
[52]Kocak (n 21).
The second way that the plaintiff submits further information should have been gathered by the second Panel was by using s 311 of the WIRC Act. The provision empowers a medical panel to request providers of medical services who have examined a worker to meet and answer questions of the panel[53] and supply documents[54]. The body referring a medical question to a panel for opinion is required to provide the panel with all material in its possession relevant to the medical question referred.[55] In this case the Panel did see the need to request further information in addition to that provided by the parties and used s 312(1) of the WIRC Act to obtain it. The chronology of events once the Convenor notified the parties of the second Panel examination is relevant.
[53]WIRC Act s 311 (1)(a).
[54]Section 311 (1)(b).
[55]Section 304(b) WIRC Act.
The claims agent made submissions to the second Panel dated 15 January 2019. That document included a submission that the ‘Medical Panel give consideration to the extent to which any visual field loss found by it is causally related to organic compensable injury as opposed to secondary psychological factors which should be disregarded’. This submission was most likely based upon reports of Dr West from June and July 2018, which were not available at the time of the first Panel’s opinion, but which made reference to ‘no clear evidence of physical damage which would explain his current symptoms’.[56] It also drew upon the comment of Dr Nave in his February 2017 report that it was difficult to explain the significant deterioration in his right eye when treatment appears to have been appropriate. The second Panel invited response from the plaintiff solicitors. The plaintiff solicitors provided further documents to the Panel but no submissions in response. The Panel then examined the worker on 6 February 2019.
[56]Exhibit JEC-8 to Affidavit of Joseph Carbone, 26 July 2019 contained in Enclosure A documents to the second Panel, Report dated 30 July 2018.
Following the examination the second Panel informed the parties that it needed additional information and requested medical records from the Epworth Hospital and the Royal Victorian Eye and Ear Hospital (‘RVEEH’). The history given to the second Panel was of attending Epworth Hospital for treatment on the day following injury and in the weeks thereafter undergoing treatment and investigations at RVEEH. In addition, the plaintiff forwarded a further report of his general practitioner Dr Fernando dated 21 March 2019.
Subsequently, having received the additional material the Convenor, on behalf of second Panel invited submissions on a number of issues. The letter[57] set out the nature of the injury and detail of what Mr Jerak had told the Panel at examination. It explained the steps taken to obtain RVEEH records with the result that there was no record of any attendance on or after 30 May 2015 contrary to the history the second Panel had obtained. In relation to the Impairment Assessment the Convenor wrote:
[57]Third Defendant’s Exhibit JAM-1 to affidavit of Jason Alan McMahon dated 29 May 2020, Letter from the Convenor of Medical Panels dated 2 April 2019.
The Medical Panel noted the nature of the injury and the subsequent development of the reported visual loss occurring several months after the incident in May 2015.
The Medical Panel also noted the reports provided with the referral which included the opinions of Drs Weymouth, Nave and West, in which they raised the possibility there was no organic pathology in either eye to account for Mr Jerak’s complaints of reduced visual functioning.
The Medical Panel acknowledges that a direct injury to an eye can cause loss of vision in the eye but traumatic visual loss is immediate and ptosis after an injury is also immediate and does not vary every few minutes. Mr Jerak’s history to the Medical Panel is of symptoms commencing some five months after the May 2015 injury and of a variable ptosis.
The Medical Panel examined Mr Jerak’s eyes and tested his visual system. The Medical Panel considers it is unlikely that the results of visual system testing correlate with the history of the nature of the injury to both eyes. The Medical Panel is of the opinion that it is not clinically possible to have a visual loss of 6/60 in the right eye with a normal brisk direct and consensual pupil reaction; or to have binocular vision with a vision of less than 6/12 in the worse eye; or to have a gross field loss in both eyes; or to have a variable ptosis.
4. The Medical Panel’s Proposed action
The Medical Panel proposes to assess the eye impairment for the visual loss in the right eye and for the field loss in both eyes, in accordance with the prescribed methods in Chapter Eight of the AMA Fourth Edition Guides; and in conjunction with Chapter Two of the AMA Fourth Edition Guides, which states that a physician must utilise a gamut of clinical skill and judgment in assessing whether or not the results of testing are plausible and relate to the impairment being evaluated.
…
The Convenor then invited submissions from the parties.
Following this letter the plaintiff himself forwarded an additional report from Dr Sarossy dated 30 January 2019 and findings on examination by Dr Weymouth from testing on 28 November 2018. The claims agent made additional submissions on the approach to assessing impairment where functional factors are present. The submissions invited communication with Dr Sarossy and/or Dr Nave as a course of action open to the Panel. No additional submissions were made on behalf of the plaintiff.
The AMA Guides describe their objective as promoting consistency and objectivity in the measurement of impairment. In Chapter 2 the major objective is to use a single set of standards:
Two physicians, following the methods of the Guides to evaluate the same patient, should report similar results and reach similar conclusions….
If the patient’s medical condition is stable, then different physicians should reach the same general conclusion. If widely disparate evaluations occur, then the stability of the medical condition and the matter of permanent impairment would be in question.
To the extent there is disparity identified in relation to Mr Jerak, it is not as to the impairment produced by application of the Guides but of the underlying cause of that impairment. The Panel’s request for further medical records was directed at information to assist it in resolving that question.
The presence of psychological symptoms might be an explanation for variable outcomes when the same general conclusion might be expected and this possibility and its effect on the assessment of impairment was raised by the material. The second Panel was required to form its own opinion about the presence and magnitude of psychologically based symptoms and to disregard them.
In accordance with its obligations of procedural fairness, it identified these issues that required consideration and invited further submissions or information from the parties. The parties responded.
The Convenor alerted the parties to the factors that, in the second Panel’s view, impacted upon the question of whether the impairment or symptoms had a physical basis. They included the nature of the injury, the history of development of visual loss occurring several months after the incident, the presence of ptosis that was described as variable, as well as the issue being raised in the opinions of Dr Weymouth, Dr Nave and Dr West that had been provided to it.
The plaintiff contends that as a matter of natural justice it was incumbent upon the second Panel to seek further information from Dr Sarossy, treating specialist. Further information was provided by the plaintiff directly from Dr Sarossy. The submission does not identify what information not presently available ought be elicited but rather suggests that Dr Sarossy’s opinion ought to have been sought. As a matter of natural justice, the opportunity for the plaintiff to provide further information or opinion on the question was provided by the detailed letter of the convenor dated 2 April 2019. Having invited the parties to provide further material, there was no obligation upon the Panel to seek out further unidentified information or documents in order to reach its own opinion. In all the circumstances I am not persuaded that in failing to utilise s 311 to ask questions itself or seek further documents, that the second Panel failed to accord the plaintiff procedural fairness.
The Panel in undertaking its physical assessment in accordance with the Guides was required to modify the application of the Guides by operation of s 56 of the WIRC Act. Even if it could be said that the opinion of other practitioners on this question could have assisted the Panel in forming its own view, the plaintiff has not demonstrated that the second Panel is obliged to do so. Any failure to seek such opinion does not amount to a failure to properly apply the Guides or a breach of procedural fairness.
Finally, the plaintiff sought to tender a subsequent report of Dr Sarossy dated 4 November 2019 for the purpose of demonstrating that had the second Panel sought the further information the decision may have been different. Admission of the report was objected to by the third defendant. Dr Sarossy’s report opined that the right eye ptosis, photophobia and blepharospasm ‘are organic and causally related to his injury’[58]. It was not said how this statement of opinion, without elaboration might have led to a different outcome. It is not necessary to decide whether, had the second Panel been obliged to seek further information from Dr Sarossy, that their Opinion would have been materially different.
[58]Exhibit JEC-2 to Affidavit of Joseph Carbone 26 July 2019, Report of Dr Sarossy, 4 November 2019 [34].
The parties were agreed that if error was demonstrated by the participation of Dr Lazarus, the appropriate relief was remittal to a differently constituted panel. I will so order. I will receive submissions from the parties, or a minute of consent as to any further orders, including costs orders as might be appropriate.
SCHEDULE OF PARTIES
| MARIN JERAK | Plaintiff |
| - and - | |
| DR MARK LAZARUS | First Defendant |
| - and - | |
| DR DAVID FISH | Second Defendant |
| - and - | |
| STATE OF VICTORIA | Third Defendant |
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