Lalor Bowling Club v Mazzei
[2018] VSC 727
•23 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04623
| LALOR BOWLING CLUB | Plaintiff |
| v | |
| MELISSA MAZZEI | First Defendant |
| DR SUSAN BRANN | Second Defendant |
| DR SANDRA HACKER | Third Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2018 |
DATE OF JUDGMENT: | 23 November 2018 |
CASE MAY BE CITED AS: | Lalor Bowling Club v Mazzei |
MEDIUM NEUTRAL CITATION: | [2018] VSC 727 |
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JUDICIAL REVIEW — Medical Panel — Determination of worker’s psychiatric impairment — Opinion that no impairment form an unrelated injury or cause — Whether Panel failed to consider relevant considerations — Whether Panel made fundamental mistake of fact — Whether Panel provided adequate reasons — No jurisdictional error — Accident Compensation Act 1985 ss 91(7)(c), 98C(1), (3), 104B(1), (9).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with | Hall & Wilcox |
| Ms S Gold | ||
| For the First Defendant | Ms J Forbes QC with | Maurice Blackburn Lawyers |
| Mr R Ajzensztat |
HIS HONOUR:
The plaintiff, Lalor Bowling Club (‘the Bowling Club’), seeks judicial review of a medical panel opinion dated 21 September 2017 (‘the Opinion’). The panel in question (‘the Panel’) was constituted by the second and third defendants, who adopted a Hardiman approach in this matter. The Opinion concerned the degree of impairment of Ms Mazzei, the first defendant, caused to her by injuries she sustained out of her employment.
Statutory Context
The claim in question is for a lump-sum benefit for permanent psychiatric impairment. The relevant injuries occurred prior to 1 July 2014, meaning that the payment of compensation is governed by the provisions of the Accident Compensation Act 1985 (‘the Act’) instead of the Workplace Injury Rehabilitation and Compensation Act 2013.[1] The relevant provisions are:
[1]Workplace Injury Rehabilitation and Compensation Act 2013, s 5(1).
91. Assessment of impairment
…
(6)For the purposes of assessing the degree of psychiatric impairment the A.M.A Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 14 there were substituted the guidelines entitled "The Guide to the Evaluation of Psychiatric Impairment for Clinicians".
(7) For the purposes of section 98C—
(a)impairments other than psychiatric impairments resulting from injuries which arose out of the same incident or occurred on the same date are to be assessed together using the combination tables in the A.M.A Guides;
(b)if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
98C. Compensation for non-economic loss
(1)A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
…
(3)The amount of the non-economic loss in respect of permanent psychiatric impairment is to be calculated as at the relevant date as follows—
(a)if the worker's degree of impairment is less than 30%—the amount of the non-economic loss is zero;
(b)if the worker's degree of impairment is 30%—the amount of the non-economic loss is to be determined, subject to subsection (3AA), in accordance with the formula— $18 810 + [(D – 10) × $2830];
104B Claims for compensation under section 98C
(1)In addition to the requirements under section 103, this section, and section 6(1) and Divisions 1 and 2 of Part 2 of the Workplace Injury Rehabilitation and Compensation Act 2013 apply to a claim for compensation under section 98C.
…
(9)The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to—
(a) the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and
(b) whether the worker has an injury or injuries claimed for which liability is accepted or established which is a total loss mentioned in the Table to section 98E(1)—
to a Medical Panel for its opinion under section 67.
The events leading to the WorkCover claim
Ms Mazzei is aged 42 and was employed by the Bowling Club as a supervisor for at least six years. She had commenced that work in 2006. Beforehand, after completing year 12, she attended the Victorian College of the Arts for four years and then worked in a café, fashion and hospitality.
In the second half of 2011 four armed robberies occurred at the Bowling Club. Ms Mazzei was present at the Bowling Club when two of those armed robberies occurred, on 13 July 2011 and on 3 November 2011, and was violently threatened during them – in both she had a gun pointed at her head, and in one a man said to her that ‘I’ll blow your f*******n brains out’. She reported being afraid for her life, the lives of co-workers and of patrons. Additionally, she reported being told over the phone of another such robbery and suffering flashbacks as a result.
Ms Mazzei has been diagnosed with Post Traumatic Stress Disorder (‘PTSD’). The Panel’s Reasons record that, since these incidents, Ms Mazzei has not slept for more than four hours per night, and frequently experiences nightmares that culminate with her screaming in her sleep. She says that she feels tired all the time, and that her memory and concentration are highly impaired. She feels very low, does not feel that life is worth living, and has occasionally run sharp objects down the length of her arm. She now experiences debilitating panic attacks on a random basis, and suffers flashbacks to the events of the robberies every couple of weeks. She is hyper vigilant and anxious, and avoids going outside or engaging in social interactions.
Ms Mazzei initially ceased work in April 2012 to go on a holiday, returning to work in May 2012. However, deteriorating symptoms meant that she ceased work in June 2012, and has not returned to paid employment since then.
Ms Mazzei’s WorkCover claim
Ms Mazzei lodged a WorkCover claim for weekly payments in April 2012. The claim was initially accepted by her WorkCover insurer, and she began receiving weekly payments. The WorkCover insurer then decided in 2014 to terminate those weekly payments. Ms Mazzei disputed this assessment and the dispute was referred by a conciliator to a medical panel. This panel, comprised of Dr James Carson and Dr Julian Freidin, gave its opinion on 1 September 2014, deciding that she was suffering from chronic PTSD resulting from, or materially contributed to by, her employment, which left her with a continuing incapacity for work. Accordingly, the WorkCover insurer reinstated her weekly payments.
On 8 February 2017, Ms Mazzei lodged a claim for a lump sum impairment benefit under s 98C of the Act. Her claim was that the relevant impairment was PTSD arising out of the armed robberies. Section 98C(3) of the Act requires that such impairment constitute a 30% whole-person permanent impairment before compensation is payable.
Ms Mazzei’s degree of whole person permanent impairment was initially assessed by Dr Stephen Stern, psychiatrist, on 21 April 2017, who made an Independent Impairment Assessment. He said that liability had been accepted and his examination was for the assessment of the worker’s permanent impairment only. He concluded that she suffered from PTSD as a result of the armed robberies, finding that:
This 40 year old woman was involved in holdups at the Lalor Bowling Club on 13 July 2011 and 3 November 2011. She continued work until June 2012 when she could no longer cope. She has not worked since. She is suffering from chronic post-traumatic stress disorder. There is also a past history of panic disorder at age 20.
She sees a psychiatrist and she takes anti-depressant and tranquilising medication. Her psychiatric state has stabilised at the present time.
Dr Stern assessed Ms Mazzei as suffering from a whole person psychiatric impairment of 20%. In Dr Stern’s opinion, 10% of that total figure was referrable to the armed robbery occurring on 3 November 2011, 8% was referrable to the armed robbery of 13 July 2011 and 2% was referrable to pre-existing conditions, most notable to an anxiety disorder. Under s 91(7)(c), that last 2% of impairment was disregarded for the purposes of assessing whether compensation was payable. Regarding the pre-existing condition, Dr Stern reported in two separate sections of his report that:
The previous holdup at work on 13 July 2018 is also relevant as is her past history of panic disorder at age 20.
…
She suffered panic at age 20 and saw a psychiatrist once or twice. She was prescribed medication (Aropax and Xanax) and was still on them when the robbery occurred however the panic had resolved at that stage.
In accordance with Dr Stern’s opinion the WorkCover insurer accepted liability for the psychiatric condition but refused to pay a lump-sum impairment benefit, as the degree of impairment fell below the statutory threshold of 30%.
The Panel
Ms Mazzei accepted Dr Stern’s conclusions on liability but disputed his assessment of the degree of impairment. In accordance with s 104B(9) of the Act this dispute was referred to the Panel whose Opinion is the subject of this proceeding. With that referral the Panel was provided psychiatric opinions written by her treating psychiatrist, Dr Smith, as well as the psychiatric opinions of Dr Doherty, Dr Entwisle, Dr Taykar, Dr Stern, the previous medical panel’s report and various other clinical records, including a 25-page ‘Patient Health Summary’ provided by Kinetic Health, a Thomastown super clinic, at which Ms Mazzei had consulted general practitioners. The Panel also examined Ms Mazzei in person conducting a mental state examination and a psychiatric impairment assessment.
The WorkCover insurer stated in submissions to the Panel that the clinical records and reports indicated that Ms Mazzei had a panic disorder in her early twenties for which she was prescribed Xanax and Paroxetine and continued to take the latter medication. It also noted that she suffered post-natal depression following a pregnancy in 2013. It stated that it considered that Dr Stern was correct in apportioning the whole person impairment due to pre-existing factors.
The Panel was required to consider the extent to which Ms Mazzei’s current psychiatric complaints resulted from impairments that might be attributable to unrelated pre-existing causes.
The Panel was constituted by Dr Susan Brann and Dr Sandra Hacker, who are psychiatrists.
The Panel stated and decided the questions put to it as follows:
Question i) What is the worker’s degree of permanent whole person impairment arising from the accepted injury/s as assessed in accordance with Section 91 and is the impairment permanent?
Answer: In the Panel’s opinion the worker has a 30% psychiatric impairment resulting from the chronic accepted post-traumatic stress disorder when assessed in accordance with section 91 of the Act. The degree of impairment is permanent.
Question ii) Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the table on Section 98E?
Answer: No.
Relevantly for this case, the Panel did not attribute any of this 30% impairment to her pre-existing anxiety condition. Instead, the Panel decided that:
Notwithstanding that the worker told the Panel that she was on psychotropic medication for years prior to the injury, she said she had only attended a Psychiatrist for one or two review appointments in those years and that she had been asymptomatic in the years leading to the events at Lalor Bowling Club. The Panel is therefore of the opinion that there is no impairment from an unrelated injury or cause which is playing a part in the worker’s current impairment and which ought be disregarded in accordance with Sections 91(7)(c) and 91(2) of the Act.
The Panel noted the report of Psychiatrist, Dr. Stern, dated 26 April 2017, wherein he apportioned 2% of impairment as being due to pre-existing factors.
The Panel formed a different opinion as the worker gave a very clear history of not being symptomatic with respect to any psychological symptoms for years prior to her employment at Lalor Bowling Club, even though she was taking psychotropic medications on an ongoing basis. The worker was also clear in her history of the panic attacks re-emerging in the context of the events that occurred in her workplace.
Therefore, the Panel formed the opinion that there was no pre-existing impairment which ought to be disregarded.
Psychiatrist reports
As mentioned, in coming to its opinion, the Panel also had a large amount of psychiatric material before it. I have referred to Dr Stern’s report and will now discuss the other psychiatric evidence that the Panel received.
Dr Smith
Dr M Smith, as Ms Mazzei’s treating psychiatrist, has written numerous medical reports which support her claim. She has seen Ms Mazzei regularly since March 2012 to help manage her PTSD symptoms. Dr Smith has extensive experience in treating persons suffering from PTSD, including war veterans.
The first of Dr Smith’s reports is dated 17 July 2013, in which she described Ms Mazzei as suffering from PTSD and said that she was not capable of returning to work. The report did not mention pre-existing conditions.
Dr Smith’s second report is dated 20 August 2013, and was written in response to the WorkCover insurer’s decision to halt Ms Mazzei’s WorkCover payments. In it she questioned the inferences that the insurer’s psychiatrist had drawn from the effect of Ms Mazzei’s pregnancy, and queried both the accuracy and detail of the information relied on. She pointed out that no full psychiatric report had been obtained from her. She provided such a report on 23 August 2013, in which she detailed Ms Mazzei’s clinical history and continuing lack of work capacity due to her PTSD.
Dr Smith made another report on 27 April 2014, in which she outlined Ms Mazzei’s continuing PTSD symptoms and her slow recovery. She also outlined a ‘severe and debilitating relapse’ resulting from Ms Mazzei reducing her medication at the beginning of her pregnancy, which had occurred at the behest of her GP. She also disagreed with Dr Entwisle’s classification of Ms Mazzei’s symptoms as mainly relating to a combination of her pre-existing conditions and her pregnancy. Dr Smith instead described those symptoms as classical PTSD symptoms which were directly related to the traumatic incidents at the Bowling Club. She also said that Ms Mazzei’s themes of anxiety related to specific aspects of those incidents. She said that, because of her regular treatment of Ms Mazzei, her diagnosis was more reliable and accurate than those of the examining psychiatrists such as Dr Entwisle, who were limited to a few one hour examinations.
She reiterated this opinion in another report, dated 15 January 2015, in which she noted that Ms Mazzei’s symptoms were directly related to the workplace incidents. She recorded those as including disturbing dreams featuring men similar to those who had robbed the Bowling Club, a fear of enclosed spaces and crowds, and triggers relating to the incidents. Dr Smith also referred to a surveillance report of Ms Mazzei, undertaken for the insurer and contended that though Ms Mazzei was able to perform basic daily duties, she was still operating at a vastly impaired level of functioning. In a further report on 21 March 2016 Dr Smith again described Ms Mazzei’s continuing PTSD and unsuitability for work, and further emphasised toll taken on Ms Mazzei by the WorkCover insurer challenging her claim and conducting surveillance of her home and daily activities. She referred to her regular sessions with Ms Mazzei over the past three years and described her as ‘an honest and reliable patient who wants to become well’.
Dr Smith reiterated these concerns in reports dated 6 and 20 December 2016. She described a further deterioration of Ms Mazzei’s mental state due to the pressures of both surveillance and her being pushed to return to work by the WorkCover insurer. These reports also responded directly to Associate Professor Doherty’s statements in his supplementary report of 30 June 2016, which are referred to below. Dr Smith stated that Ms Mazzei’s pre-existing condition was ‘over stated and over-represented’ in that report. Before the robberies, Ms Mazzei had only seen her psychiatrist twice in the period when taking medication, all the while maintaining stressful full-time work with no symptoms, even managing well with her father’s death. Because of this, Dr Smith did not agree that the episodes of anxiety and panic attacks which Ms Mazzei experienced in her twenties had any bearing on her current symptoms. Further, she stated that Ms Mazzei’s PTSD was clearly evident in her symptoms, with nightmares and flashbacks to the incident, avoidance of cues similar to the incident, and intense hypervigilance when exposed to such trauma cues. She stated that Ms Mazzei reported that she had only continued working at the Bowling Club for two months after the incidents out of a stubborn work ethic, and now believed that ‘with the wisdom of hindsight’ this further work had worsened her condition.
In another report dated 31 May 2017, Dr Smith again raised similar concerns and responses and described Ms Mazzei’s further regression as a result of her current WorkCover difficulties. She again stated that Ms Mazzei was not capable of returning to work.
Associate Professor Doherty
Associate Professor Doherty, a consultant psychiatrist, examined Ms Mazzei on 6 February 2016 in an independent medical examination. He wrote a report of the same date in which he accepted that Ms Mazzei was suffering from PTSD, the cause of which, or a significant contributing factor to which, were the robberies. However, he also noted a pre-existing remitted psychiatric condition of anxiety and panic disorder, for which she had stayed on medication for several years. He considered that this pre-existing condition was worsened by the events at Ms Mazzei’s work, as well as several non-work related events including her pregnancy and deteriorating marriage. Associate Professor Doherty ultimately concluded that Ms Mazzei had a current work capacity.
On 30 June 2016, Associate Professor Doherty provided a supplementary report in response to Dr Smith’s criticism of his initial report. He in turn criticized Dr Smith’s reports for focusing exclusively on Ms Mazzei’s PTSD and ignoring her pre-existing conditions. He noted that her medication had not changed significantly, and that Ms Mazzei’s continuing use of anti-depressant and anxiolytic medication likely indicated a continuing psychological vulnerability, which a comprehensive assessment would have included as a consideration relevant to the assessment of Ms Mazzei’s response to the workplace incidents. He stated that other workplace factors, such as conflict with her employer and an altercation regarding a drunk driver, also played a part in her decision to quit her employment. He expressed the opinion that some aspects of Ms Mazzei’s history and presentation did not fit the mould of ‘classical’ PTSD, including her ‘calm’ demeanour upon examination. He said that Dr Smith had ignored the worker’s many years of taking anti-depressant medication and that she had continued to work after the robberies. He also criticized Dr Smith’s treatment of Ms Mazzei, in particular the failure to alter her medication in the face of her deteriorating condition, and the importance she had placed on allowing Ms Mazzei ‘time and space’ for recovery.
Dr Entwisle
Dr T Entwisle, a consultant psychiatrist, first examined Ms Mazzei on 5 November 2012 at the request of the WorkCover insurer. In his subsequent report, he wrote a medical report dated 13 November 2012, in which he agreed that ‘Ms Mazzei has PTSD’ as a result of the robbery, but also stated that ‘other factors relate to her pre-existing treatment in respect of symptoms of anxiety dating back some seven years’.
Dr Entwisle examined Ms Mazzei again, on 17 June 2013, for a further report, in which he stated that Ms Mazzei had had to come off her medication because of her pregnancy, which had led to her becoming anxious and her symptoms returning. He wrote that following the robberies Ms Mazzei became anxious but that ‘those anxieties have been replaced by her current pregnancy and the issues surrounding it’. He considered those new anxieties to be ‘an aggravation of her pre-existing psychiatric history and conditions’, namely her history of anxiety and depression.
In a supplementary report dated 5 July 2013, Dr Entwisle stated that:
1.I consider that Ms Mazzei’s incapacity is no longer related to the robberies that occurred in 2011.
2.I consider that the aggravation of Ms Mazzei’s pre-existing psychiatric symptoms has now returned to the level that it was pre-injury (that is the aggravation by the robbery has ceased).
Dr Ash Takyar
Dr Takyar, a psychiatrist, examined Ms Mazzei on 7 November 2014 at the request of the WorkCover insurer. He agreed that Ms Mazzei suffered from PTSD, noting the presence of DSM IV criteria including exposure to a traumatic event, persistent re-experience of that traumatic event, persistent avoidance of stimuli associated with that event, persistent symptoms of extreme arousal and clinically significant distress or impairment. While he acknowledged Ms Mazzei’s past diagnosis of a panic disorder and agoraphobia, and noted the reports of Dr Entwisle, he nevertheless concluded that the armed robberies that Ms Mazzei was involved in were ‘the sole cause of the injury’. He assessed Ms Mazzei as having no work capacity.
In a supplementary report dated 18 November 2014, Dr Takyar noted some improvement in Ms Mazzei‘s condition and recommended increasing her anti-depressant medication. He was not able to state whether her incapacity for work would be indefinite.
In a further supplementary report, dated 12 February 2015 and written without re-examination of Ms Mazzei, Dr Takyar said that without either significant motivation or a significant change in her mental state it would be unlikely for her to be able to sustain ongoing work.
General Practitioners’ Reports
All of the legal issues at hearing concerned how the Panel dealt with the question of pre-existing impairment. In particular, the Bowling Club took issue with the manner in which the Panel dealt with one particular note (‘the Note’) provided to it as part of the Patient Health Summary from Kinetic Health. The Note was recorded as part of a GP surgery consultation by Dr Seok Yeoh on 4 July 2011, as part of a transfer or ‘handover’ of Ms Mazzei from a previous GP, and mainly concerned the renewal and attempted reduction of her Xanax script. It occurred 9 days before the first of the robberies. The relevant part of the Note reads:
Surgery consultation recorded by Dr Seok Yeoh on 04/07/2011
Monday July 4 2011 13:53:44
Dr Seok Yeoh
History:
Has [history of] anxiety and panic attacks and depression. She is on Aropax 40mg and Xanax 0.5mg om and 1.5mg on.
She has been doing well with the above medications for the last 10 years.
She can’t be off the medications because she gets depressed and panicky if she reduced.
She is anxious most of the time. Advised to reduce[d] the intake of Xanax but she is apprehensive about reducing it because according to her, she get anxious even when she thinks about it.
Gets panic attacks frequently, symptoms are palpitations and [shortness of breath].
Ms Mazzei had previously seen Dr Yeoh on 17 May 2011, in relation to an allergic reaction, and on 10 June 2011, for a medical test.
The Bowling Club also referred to a ‘Health Summary Sheet’ contained in the same Patient Health Summary, which included the following table:
Current active problems: Date Condition 7 January 2008 Tonsillitis 24 January 2008 Infected wound 7 May 2008 Anxiety May 2008 Allergic disorder 26 May 2008 Gastroenteritis 3 September 2008 Anxiety - Generalised 17 November 2009 Anxiety 17 November 2008 Depression 17 November 2008 Panic attacks 2 December 2008 Tonsillitis 18 November 2008 Anxiety – Generalised 12 March 2010 Allergic disorder 28 November 2010 Panic attacks
The Bowling Club submitted that Dr Yeoh’s Note contradicted Ms Mazzei’s account of being asymptomatic before the robberies. It was an independent, cogent and contemporaneous record that revealed an ongoing acute symptomology of a psychiatric condition prior to the first robbery. The use of the present tense in the phrases ‘She is anxious most of the time’ and ‘Gets panic attacks frequently’ indicated that the symptoms of her pre-existing condition were manifest before the robberies. The Bowling Club submitted that this was highly relevant information that should have been, but was not addressed by the Panel, especially when its assessment of Ms Mazzei’s lack of pre-existing impairment was largely based on her ‘very clear history of not being symptomatic with respect to any psychological symptoms for years prior to her employment at Lalor Bowling Club’.
Legal Issues
The Bowling Club alleged that this omission gave rise to, or was connected with, its three grounds of judicial review:
(a) failure to take mandatory considerations into account;
(b) fundamental mistake of fact; and
(c) inadequate reasons.
Ground one – Failure to take mandatory considerations into account
The Bowling Club’s first ground alleges that the failure to deal with the Note gave rise to a jurisdictional error, being a failure to take a mandatory consideration into account. The argument relied on Neave JA’s statement in Ryan v The Grange at Wodonga Pty Ltd[2] that:
Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[3]
[2][2015] VSCA 17 (‘Ryan’s Case’).
[3]Ibid [60].
The Bowling Club argued that the Panel was required to have regard to the relevant information provided to it as part of the referral, of which the GP’s note was a part. It was the only ‘before’ and ‘after’ medical history. Other medical records, including the Patient History document, indicated that Ms Mazzei had a panic disorder in her early twenties, for which she was prescribed Xanax and Paroxetine. The Panel was required to actively intellectually engage with this material, but failed to do so. It did not refer to the Note at all in its Reasons. The failure to refer to the Note provided a basis for assuming that it was not taken into account at all. The Bowling Club relied on the statement in Combined Enterprises Pty Ltd v Brister[4]:
The failure to expressly refer to a relevant consideration or to give it any weight can provide the basis for an inference that it was not taken into account.[5]
[4][2016] VCS 807.
[5]Ibid [27].
The Note addressed matters fundamental to the Panel’s formation of a valid Opinion, but the Panel failed to explain whether or how it considered it. The Note recorded Ms Mazzei’s medical history and had to be reconciled with the history that Ms Mazzei gave to the Panel. It should be inferred that the Panel did not consider it.
The Bowling Club submitted that the Panel should have at least made inquiries of Ms Mazzei about the contents of the Note, asking her to clarify the alleged inconsistency between the history it recorded and the history that she had provided to the Panel and to the various psychiatrists whose reports the Panel had received. The Panel was not entitled to simply accept Ms Mazzei’s history without asking about matters that were inconsistent with it.[6] Her medication remained substantially the same after the robberies as before.
[6]Weerappah v Nisselle [1999] VSC 249 [51].
Ms Mazzei submitted that the Note was at best ambiguous. The statement that ‘She has been doing well with the above medications’ could not, she contended, be reconciled with the statements that ‘She is anxious most of the time’ and ‘Gets panic attacks frequently’. Instead, she submitted that the whole of the note should be viewed in the context of a discussion about the effects of reducing her Xanax intake. In that context, it was just as likely that the Note’s references to anxiety and panic attacks were describing what had occurred when Ms Mazzei did not take the prescribed Xanax.
Further, Ms Mazzei argued that the relevant mandatory consideration was not the Note itself, but rather the question of her pre-existing impairment.[7] In Ms Mazzei’s submission, the Panel was entitled to treat the Note as having little bearing on that question. If it made that assessment, the Panel was then entitled to not deal expressly with the Note in its Reasons, and instead decide the issue of pre-existing impairment based on Ms Mazzei’s history and the psychiatrist reports about her. Ms Mazzei submitted that this had been the approach of the psychiatrists who had examined her, none of whom mentioned the Note in their reports.
[7]Transcript of Proceedings, Lalor Bowling Club v Melissa Mazzei & Ors (Supreme Court of Victoria, S CI 2017 04623, Ginnane J, 20 September 2018), 58 (‘T’).
The issue which the Panel decided was whether the pre-existing condition gave rise to any impairment. Whatever symptoms Ms Mazzei had experienced were under control. The Patient History document, which was included in the general practitioner’s records, was a medication history and did not reveal whether any symptoms existed or persisted.
The Bowling Club’s real complaint was that the Panel had not formed a different conclusion about the impact of the pre-existing condition. That complaint did not give rise to a ground of judicial review.
Analysis
Justice Neave in Ryan’s Case stated that ‘If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.’[8] While the Panel did not refer to the Note, it is the failure to address issues raised by the material before the Panel that gives rise to jurisdictional error, not the failure to address each and every part of that material. Keogh J made this point in Stojilkovic v Romas[9] when, in commenting on the statements in Ryan’s Case, he stated that:
A mere failure to refer to a mandatory relevant consideration will not necessarily mean that a medical panel failed to have regard to it. A panel is free to accord a matter little or no weight, as long as it can reasonably be inferred that the panel has, before doing so, engaged in an ‘active intellectual process’ of consideration. As is made clear by Cavanough J in Vellios Electrical Contractors v Barton, this does not mean that every submission, much less every part of every submission provided to the Panel must be ‘dealt with in the … statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part’. Rather, the requirement applies only to mandatorily relevant matters, factors or considerations, which are to be determined by reference to the terms of the relevant statute, rather than by reference to the submissions made to the decision-maker.[10]
[8]Ryan’s Case [2015] VSCA 17, [60].
[9][2017] VSC 49 (‘Romas’).
[10]Ibid [19].
To similar effect is the decision in Omarasevic v Kotzman,[11] to which the Bowling Club referred, in which Riordan J stated that:
The proposition that a medical panel is bound to take into account all matters in the referral material and, if it fails to do so, it commits jurisdictional error, is untenable. It could not be said, in the present case, that if the Medical Panel had not found the reference to the plaintiff’s complaint to his general practitioner on 22 September 2009, which was buried deep within the hundreds of pages of the referral material (and to which the Medical Panel was not otherwise referred), its decision would have been tainted with jurisdictional error.
Indeed, a similar proposition was rejected by Kyrou J in Milwain v Sim. In that case, the worker had also submitted that the medical panel’s conclusion that ‘the worker’s intermittent pains prior to ceasing work were minor muscular discomfort for which she did not require medical management’ was the result of the medical panel confusing the medical history given by the worker. His Honour said that even assuming that the medical panel had made an error with respect to the worker’s medical history ‘it would not be an error of law let alone jurisdictional error’.[12]
[11][2016] VSC 383 (‘Omarasevic’)
[12]Ibid [105]-[106].
The Bowling Club’s written submissions, drawing upon the reasons of Riordan J in Omarasevic, contended that the Panel had made a jurisdictional error because the Court should infer that it did not take fundamental issues into account, including Ms Mazzei’s clinical history, because the Panel did not expressly refer to it in its Reasons.
But this analysis does not reflect the steps that led to the Panel’s decision. There is no need to infer whether or not the Panel dealt with the fundamental issue of ‘whether the worker experienced active physiological symptoms prior to the work events’. The Panel expressly dealt with that fundamental issue in its Reasons, and concluded that there was no such active symptomology. Given that it had dealt with that fundamental issue, there was no need to address each element of the referral material, such as the Note.
The absence of express reference to the Note is not decisive in determining whether the Panel made the first jurisdictional error alleged by the Bowling Club. There is real risk in overstating the significance of the Note which after all was only one part of the considerable material before the Panel. It was capable of bearing different meanings. The Panel’s task was to address, not the Note itself, but the issues raised by the Note, which relevantly was whether Ms Mazzei had a pre-existing impairment which ought to have been disregarded in assessing whole-person impairment. The issue of pre-existing impairment was squarely addressed by the Panel in the portion of its Reasons quoted above. It concluded that:
there was no pre-existing impairment which ought to be disregarded
The Panel reached its conclusion after considering the circumstances of Ms Mazzei’s anxiety condition in some depth. Thus it accepted the existence of that pre-existing anxiety and panic disorder, and acknowledged that Ms Mazzei had been taking psychotropic medication for years prior to the robberies. It then noted that she had reported being asymptomatic during those years, with the aid of medication, and that in those years she had only attended a psychiatrist for one or two review appointments. Her condition was under control and she was able to keep working in demanding jobs. There was no material before the Panel to contradict that history. The Panel then referred to Ms Mazzei’s evidence that her panic attacks had re-emerged only in the context of the armed robberies. The fact that the Panel recorded these matters demonstrates that it was alive to the question of any pre-existing impairment, that it considered a variety of factors that bore on that question and then, after a process of intellectual engagement, came to the conclusion that Ms Mazzei’s pre-existing condition was not responsible for any of her current impairment.
Accordingly, this is not a case like Ryan’s Case. There, the plaintiff and her practitioners had provided material to the medical panel that squarely raised the issue of whether her return to work would lead to an aggravation of her pre-existing injury. Neave JA stated:
Although the Panel referred to its own examination of the appellant and the views of her treating doctors and Mr White, its Reasons do not indicate that the Panel undertook any meaningful consideration of the effect which a return to work could have on aggravating the pre-existing injury.[13]
[13]Ryan’s Case [2015] VSCA 17, [71]
In Ryan’s Case the Panel expressly considered evidence, but not the consequences, issues and questions raised by that evidence. In contrast, in this case, although the Note was not expressly mentioned, the issues raised by it were analysed by reference to a number of significant matters. These included Ms Mazzei’s history of continued medication which controlled her condition, Dr Stern’s report and the Panel’s assessment and testing of Ms Mazzei. As previously mentioned the Panel members were both psychiatrists.
Accordingly, no failure to take mandatory considerations into account is evident in the Panel’s Opinion.
The Bowling Club’s first ground is not established.
Ground two — Fundamental mistake of fact
The Bowling Club’s second ground was that the Panel’s failure to deal with the contents of the Note was a jurisdictional error. The particulars of the ground stated:
Failing to deal with independent, cogent and contemporaneous evidence, being the medical records and in particular the clinical history, regarding the nature and extent of the worker’s pre-existing symptoms and instead preferring the worker’s inconsistent self-report given to the panel.
This ground relied on what the Bowling Club argued was an emerging ground of jurisdictional error, which J Forrest J described in Karabinis v Bendrups & Ors[14] in the following passage:
The end result of all this, I think, is that a Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a Panel has fallen into jurisdictional error. It is, therefore, a question of fact and degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in light of the ultimate decision and the basis for it, as articulated by the reasons.[15]
[14][2017] VSC 648 (‘Karabinis’).
[15]Ibid [62].
The Bowling Club submitted that as in Karabinis, there was ‘no reason for doubting the clinical notes’.[16] It followed, so it was argued, that the Panel made a fundamental mistake of fact in coming to the factual conclusion that Ms Mazzei had no active symptomology prior to the first armed robbery. The Bowling Club argued that:
So they make their conclusory opinion about how much, if any, of 91(7)(c) irrelevant impairment has to be excluded by virtue of only attending a psychiatrist for one or two review appointments in those years – all right – but that she'd been asymptomatic in the years leading to the events at the Lalor Bowling Club. Now, that's what they hang their hat on.
And we say, first of all, it isn't true. So there's a fundamental error of fact there. It's impossible to accept that the panel would have – if they'd known about the clinical results – would have preferred an oral history about this, in these circumstances, when you've got clinical records of this type.
So we would say that, first of all, there's a fundamental error of fact in their fact finding process, but we would say also that they were bound to have regard to clinical records ….[17]
[16]T 35.
[17]T 27.
In opposition to this second ground, Ms Mazzei again submitted that the Note was ambiguous, and that at best its contents gave rise to a conflict with the evidence given by her to the Panel and to her psychiatrists. The Panel performed its statutory task by making findings of fact after considering the relevant evidence.
Analysis
There is nothing to indicate that Panel made any fundamental mistake of fact in its finding of a pre-existing impairment of 0%. On the one hand there was the history of asymptomology that Ms Mazzei gave to the Panel and to various psychiatrists. On the other hand there was a clinical note taken by a GP from Ms Mazzei which, at its highest, might be taken as describing an active symptomology nine days before the first robbery. In the face of this conflicting evidence the Panel made a finding of fact in discharge of its task under s 91(7)(c). Kyrou J’s warning in Milwain v Sim[18] is of present relevance:
In deciding whether a medical panel has failed to take into account relevant considerations, this Court must be careful not to cross the line between judicial review and merits review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.[19]
[18][2009] VSC 75.
[19]Ibid [22].
The ‘fundamental mistake of fact’ ground is another way of stating the essential feature of all jurisdictional error grounds – an allegation that the tribunal, in this case the Panel, did not perform or discharge its statutory duty.
But not every error of fact will show jurisdictional error. As J Forrest J stated in Karabinis:
… the evidence that the Panel ‘got it wrong’ must be cogent. The reviewing court is entitled to assume that the contents of the reasons (or, in this case the reasons supplemented by the contemporaneous notes) are correct unless persuaded otherwise.[20]
[20]Karabinis [2017] VSC 648, [69].
That is not this case. At most the Note presented evidence that contradicted other evidence concerning Ms Mazzei’s symptomology, a contradiction that the Panel was required to resolve and did resolve.
This case is not similar to Karabinis. There, the plaintiff worker disputed findings of fact made by the medical panel, namely the findings that her duties had become lighter at the time her workplace injury developed. She claimed that those duties had instead become heavier. However, all three members of the medical panel examining her had taken handwritten notes during their examination which all recorded that she had told them that her duties had become lighter. Faced with this evidence, J Forrest J refused to find that there was a fundamental mistake of fact in the medical panel’s reasons. Importantly however, that refusal was not based on any special status given to contemporaneous medical notes over the history given by the worker to a medical panel or to medical practitioners. Rather, the rejection of the ground in Karabinis was because there was no cogent evidence, as there is no cogent evidence in this case, compelling the conclusion that the Panel had made a fundamental mistake of fact.
The Bowling Club’s second ground is not established.
Ground 3 — Inadequacy of reasons
The Bowling Club’s third ground alleges that the Panel, in any event, produced inadequate reasons for its Opinion. The Bowling Club drew on the statement of the High Court in Wingfoot Australia Partners v Kocak[21] that:
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[22]
[21](2013) 252 CLR 480 (‘Wingfoot’).
[22]Ibid [55].
The Bowling Club submitted that as the Panel’s Reasons did not mention the Note it was unclear whether the Panel:
(a) had regard to the contents of the medical records and in particular the clinical history;
(b)failed to notice the apparent disparity between the clinical history and the fundamentally differing account regarding pre existing symptoms it recorded from the worker;
(c)noticed the apparent disparity but decided to accept the account given by the worker in preference to that recorded in the clinical notes;
(d)somehow considered that the matters recorded in the clinical history were consistent with the history recorded from the worker, and/or did not give rise to an unrelated impairment which must be disregarded;
(e)employed some other method of reasoning (be it lawful or otherwise) to reconcile the matters raised above.
The Bowling Club therefore submitted that the Reasons, by virtue of their failure to discuss the Note, left it and the Court in real doubt as to how it came to its finding of 0% pre-existing impairment and whether that finding was made in accordance with law. It argued that that this constituted jurisdictional error, citing this Court’s judgment in Gruma Oceania v Bakar[23] that:
It is important to bear in mind that the question for the Court when considering whether a medical panel’s reasons are adequate is not whether the reasons positively disclose that the panel erred in law, but whether the reasons are sufficient to enable the Court to determine whether the panel’s opinion does or does not involve any error of law. If the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply with s 68(2) of the Act. Such a doubt exists in the present case.[24]
[23][2014] VSCA 252 (‘Gruma’).
[24]Ibid, [47].
Accordingly, then, the Bowling Club submitted that:
In the absence of any reference to the clinical history at all, there is nothing implicit or able to be inferred from the reasons capable of supporting a tolerably clear path of reasoning in this regard.
… in the context of the clinical history, the panel’s reasons fail to show its actual path of reasoning regarding the application of 91(7)(c), sufficient to enable this court to determine whether the opinion involves any error of law.
Further, the Bowling Club submitted that the Court was unable to assume that the Panel considered the contents of the Note, but preferred Ms Mazzei’s evidence as given to the Panel and recorded in the psychiatrists’ reports. According to the Bowling Club, such an approach would engage in ‘speculative gap filling’ of the kind prohibited by Richter v Driscoll,[25] and warned against by T Forrest J in the following passage from Denham v Consolidated Herd Improvement[26]:
A reviewing court should be hesitant to conclude that a Medical Panel has (or has not) made particular intermediary findings or formed intermediary opinions, just because those findings or opinions are consistent with the reasons as they were expressed, and because they can be reconciled with the Opinion. If it does so, the court risks attributing a path of reasoning to a Panel that is not the actual path of reasoning adopted by that Panel.
[25][2016] VSCA 142, [129]–[132].
[26][2014] VSC 520, [37].
In opposing this ground, Ms Mazzei also referred to Wingfoot, in particular, the passage stating that:
A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion that it did not form, even if that opinion is shown by material before it to have been formed by someone else.[27]
[27]Wingfoot (2013) 252 CLR 480, [56].
For Ms Mazzei, the alleged deficiency in the Panel’s Reasons fell squarely into the above category and therefore was not a jurisdictional error. The Panel explained its actual path of reasoning as to why there was no pre-existing impairment, and was not required to engage with opposing opinions or to explain why it did not conclude that there was pre-existing impairment. The Panel was, accordingly, not obliged to explain what use it had made of the Note in coming to its assessment about pre-existing injury.
Ms Mazzei also relied on the following passage in Gruma’s Case to invoke the appropriate limits for the Court to observe when scrutinising Panel reasons that:
As a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a ‘beneficial construction’ in the sense that they should ‘not … be scrutinised … over-zealous[ly] … by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’ In Gamble v Emerald Hill Electrical Pty Ltd, this Court reaffirmed the following principles that apply to judicial review of a medical panel’s reasons:
The court on judicial review should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker, and should not construe the reasons for decision ‘minutely and finely with an eye keenly attuned to the perception of error’.
[A] court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel’s reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.[28]
[28]Gruma [2014] VSCA 252, [29] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259.
Analysis
The task of the Panel, as described in Wingfoot, is to:
explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion that the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[29]
[29]Wingfoot (2013) 252 CLR 480, 501.
The Panel plainly outlined its actual path of reasoning in the four paragraphs of its Reasons set out previously. In those paragraphs, the Panel identified Ms Mazzei’s pre-existing condition, noted her use of medication to manage that condition, outlined her clear history of being asymptomatic and effectively managing her condition, so that she only had one or two follow up psychiatrist appointments and then explained her clear history of panic attacks re-emerging in the wake of the robberies. Though it had not been required to, the Panel then outlined why it disagreed with the assessment of Dr Stern on the question of pre-existing injury, emphasising the clarity of Ms Mazzei’s history of being asymptomatic, and in the end concluded with an assessment of pre-existing injury at 0%.
The Panel’s path of reasoning is clear. It considered Ms Mazzei’s pre-existing condition, and the medication that she took to manage it, but placed those facts within the context provided by her reports that she was doing fine before the armed robberies. Further, the Panel placed great emphasis on the clarity of Ms Mazzei’s history, which led it to trust her account of being asymptomatic and also on its own psychiatric testing of her.
A central part of the Bowling Club’s submissions was that the Panel was bound to consider the Note and made a jurisdictional error by not doing so.
The Panel was not required to deal separately in its Reasons with each document referred to it. That requirement would be at odds with the task of the Panel as described in Wingfoot, namely to ‘explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion that the Medical Panel in fact formed on the medical question referred to it.’ The Panel was not required to explain why it rejected or did not act on particular evidence or documents.
The Bowling Club’s submission assumes that the mandatory considerations were the separate items of documents and material provided to the Panel and that each item must have been so considered as to make clear to the Court whether any errors in law were present in the Panel’s Opinion. However, as was explained earlier, the mandatory considerations in issue were not each individual item or document provided to the Panel, but rather the questions or issues to which such material gave rise when the Panel was carrying out its statutory task. The Panel dealt with those questions and issues in its Reasons. The fact that the Panel did not mention the Note does not indicate or establish that the Panel made a jurisdictional error by failing to provide adequate reasons.
The Bowling Club’s third ground is not established.
Conclusion
The proceeding is dismissed.
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