Lillis v Barton
[2015] VSC 205
•15 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 00512
| CHERYL LILLIS | Plaintiff |
| v | |
| DR DAVID BARTON and DR JENNIFER HARMER and DR STEPHEN ADLARD and DR JOHN BOURKE and GIPPSLAND SOUTHERN HEALTH SERVICE LTD | First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant |
---
JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 September 2014 |
DATE OF JUDGMENT: | 15 May 2015 |
CASE MAY BE CITED AS: | Lillis v Barton & Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 205 |
---
ADMINISTRATIVE LAW – Judicial review of a certified opinion of a medical panel – Determination of whether the plaintiff had no current work capacity and whether this was likely to continue – Nature of the plaintiff’s medical condition – Whether the medical panel failed to take into account a relevant consideration in respect of the plaintiff’s medical condition – Whether the medical panel failed to provide adequate reasons or failed to disclose an adequate path of reasoning – Order that the medical panel’s opinion be quashed and that the medical questions be remitted to a differently constituted medical panel – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.G. Uren QC with Mr J.F. Goldberg | Slater & Gordon |
| For the Fifth Defendant For the First to Fourth Defendants | Ms K. Judd QC with No appearance | Minter Ellison |
HIS HONOUR:
Introduction
On or about 23 December 2010, Ms Cheryl Lillis, the plaintiff, worked as a domestic assistant with the fifth defendant, Gippsland Southern Health Service Ltd (‘Gippsland Health’) at its aged care facility in Leongatha. In the course of her employment, she attempted to lift and manoeuvre a floatation chair to allow a resident to eat breakfast (the ‘Incident’). As a result of the Incident, the plaintiff suffered injury.
The plaintiff, on 10 January 2011, submitted a claim for weekly payments of compensation and medical expenses pursuant to the Accident Compensation Act 1985 (Vic) (the ‘Act’) as it then applied alleging she had sustained injury to her ‘lower back’ and ‘left leg’.[1] Liability for the claim was accepted by Allianz, an authorised agent of the Victorian WorkCover Authority. In March 2013, notice was provided by the agent to the plaintiff that weekly payments of compensation would terminate on 17 June 2013.[2]
[1]See Worker’s Injury Claim Form dated 10 January 2011.
[2]See the letter addressed to the plaintiff from Allianz dated 13 March 2013.
Upon receipt of the notice, the plaintiff lodged a request for conciliation and subsequently the appointed WorkCover Conciliation Officer referred certain medical questions to a medical panel for opinion.[3] A medical panel comprising the first defendant, an occupational physician, the second defendant, an orthopaedic surgeon, the third defendant, a rheumatologist, and the fourth defendant, a psychiatrist, was convened to provide an opinion in respect of the referred medical questions (the ‘Medical Panel’).
[3]Pursuant to s 45(1) of the Accident Compensation Act 1985 (Vic) (the ‘Act’).
The Medical Panel delivered a certificate of opinion dated 6 December 2013 (the ‘Opinion’), which was accompanied by a statement of reasons for the Opinion (the ‘Reasons’). The Opinion answered the following medical questions:
Question 1: What is the nature of the [plaintiff’s] medical condition (including any sequelae) relevant to the claimed lower back and left leg injury?
Answer: In the [Medical Panel’s] opinion the [plaintiff] is suffering from a mild chronic Adjustment Disorder with depressed mood and a mild Chronic Pain Disorder associated with psychological factors, relevant to the claimed lower back and left leg injury.
In the [Medical Panel’s] opinion, there is now no physical medical condition of the back or legs, relevant to the claimed lower back and left leg injuries.
Question 2: Does the [plaintiff] have no current work capacity? If so, is this situation likely to continue?
Answer: In the [Medical Panel’s] opinion the [plaintiff] does not have a present inability arising from an injury such that the [plaintiff] is not able to return to her pre-injury employment.
The plaintiff in this proceeding makes application for a review of the Opinion of the Medical Panel.[4] The plaintiff seeks an order quashing the Opinion of the Medical Panel and a remittal of the medical questions to a differently constituted medical panel[5] on the grounds that the Medical Panel failed to take into account a relevant consideration and failed to provide adequate reasons or an adequate path of reasoning.[6]
[4]Pursuant to r 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
[5]Together with any other relief as the Court shall think fit.
[6]Amended Originating Motion at paragraphs 1 – 3 (‘Jurisdictional Error’) and paragraphs 1 – 4 and 6 – 7 (‘Adequacy of Reasons’).
Only the plaintiff and Gippsland Health took an active part in this proceeding. Consistent with the rule in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[7] the first to fourth defendants did not appear at the hearing and submit to the orders of the Court.
[7](1980) 144 CLR 13 at 45 – 46 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
Statutory framework
Section 82(1) of the Act provides, generally, for entitlement to compensation in accordance with the Act, if a worker has sustained an injury out of or in the course of his or her employment.
More specifically, s 93 of the Act provides for weekly payments of compensation if a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation.
Section 93C of the Act provides that an entitlement to compensation in the form of weekly payments ceases upon the expiry of the second entitled period (in this case, occurring on or before 17 June 2013) unless the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.
Section 5(1) of the Act defines ‘current work capacity’ and ‘no current work capacity’ as follows:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.
Section 65 of the Act regulates the procedure and powers of a medical panel. Pursuant to s 65(1) of the Act, a medical panel is not bound by the rules of evidence and may inform itself on any matter relating to a reference in any manner it thinks fit. Further, s 65(2) of the Act provides that a medical panel ‘must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows’.
Sections 65(7) and (9) of the Act permits the Convener of Medical Panels (‘Convenor’) to issue directions as to the business and procedures of medical panels. Pursuant to these sections, the Convener issued such directions in 2012 (‘Convener’s Directions’).[8]
[8]Convener’s Directions as to the Arrangement of Business and as to the Procedures of Medical Panels (Accident Compensation Act 1985) 2012.
Section 67(1) of the Act provides that the function of a medical panel is to give its opinion on any medical question referred to it in respect of injuries arising out of, or in the course of, or due to the nature of employment. Further, s 67(1A) of the Act stipulates that a medical panel ‘must give its opinion on a medical question in accordance with this Division’.
Plaintiff’s submissions
Mr A.G. Uren QC, senior counsel for the plaintiff, summarised the plaintiff’s contentions in this application during the course of oral submissions. He contended the Medical Panel ‘misunderstood the task it was given’; the Reasons ‘were not adequate and there was a failure to take into account relevant considerations’.[9] More particularly, the plaintiff submits the Medical Panel concentrated on the complaint of injury to the left leg, rather than the injury to the back, and that in the Medical Panel’s reasoning it is ‘not possible to see, where the Panel has dealt adequately or at all with the question of the back injury and the back pain’.[10] It was contended by Mr Uren that the Medical Panel had no regard to the radiological findings of right-sided nerve impingement and prolapse at level L5-S1 and the Medical Panel’s own finding that the plaintiff walked with a variable limp, favouring the right leg.[11] It was contended that these matters should have been considered as part of the ‘back injury’. In short, it was put on behalf of the plaintiff that ‘if there is a basis for saying that the back problem is not caused by the prolapse and the prolapse was not caused by the accident, then there is nothing in the Panel’s Reasons which indicate why that was its view, if it was the Panel’s view’.[12] Further on this aspect, the plaintiff contends the Medical Panel failed to consider medical reports of surgeons, Mr David E. de la Harpe and Mr Peter Kudelka, both of whom proffered opinions that the plaintiff’s low back pain and right sided sciatica were due to damage and prolapse of the lumbar sacral disc suffered in the Incident.[13]
[9]Supreme Court hearing transcript (‘Transcript’) at 3.3 – 3.7.
[10]Ibid at 9.22 – 9.24.
[11]Ibid at 11.19 – 11.23.
[12]Ibid at 14.24 – 14.29.
[13]De la Harpe Report dated 21 March 2013 and De la Harpe Report dated 20 November 2012; Kudelka Report dated 19 November 2012 at 2.
The plaintiff submits that the failure of the Medical Panel to refer to relevant material provided to it which raised issues it was required to take into account, and its failure to adequately explain in its Reasons why it did not take these matters into consideration, conceals its reasoning process and does not allow the Court to ascertain whether the Medical Panel has made an error of law.
Defendant’s submissions
Ms K. Judd QC, senior counsel for Gippsland Health, submits that it was appropriate for the Medical Panel to concentrate on the plaintiff’s claimed symptoms concerning the left leg – the claimed injury was to the back and to the left leg, and it was left leg symptoms that were complained of by the plaintiff when examined by the Medical Panel. Ms Judd contended that it is apparent upon consideration of the Reasons provided by the Medical Panel that the MRI scans had been specifically considered by the Panel, as had the right-sided disc bulge demonstrated in the scans.[14] Ms Judd submits it is not the function of the Medical Panel to make up its mind by reference to competing contentions or medical opinions, rather its function is 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’.[15] Ms Judd contends that the plaintiff, in this proceeding, is impermissibly seeking a review of the Medical Panel’s decision on the merits under the guise of a jurisdictional error argument.
[14]Transcript at 33.11 – 33.20.
[15]Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’) (2013) 303 ALR 64 at 77 (French CJ, Crennan, Bell, Gageler and Keane JJ).
Discussion
The ‘Referral to Medical Panels’ (the ‘Referral’) document of the WorkCover Conciliation Officer provided to the Medical Panel outlined the injuries for which the Medical Panel’s opinion was sought as ‘lower back and left leg’.[16] The document also set out as an agreed fact relevant to the medical question that the plaintiff ‘suffered a lower back injury in compensable circumstances’ and that ‘she is not fit for pre-injury duties’.[17]
[16]See the document ‘Referral to Medical Panels’ provided by the WorkCover Conciliation Officer (the ‘Referral’) dated 8 October 2013.
[17]Referral at [6].
The ambit of the Referral to the Medical Panel concerned ‘the nature of the worker’s medical condition (including any sequelae) relevant to the claimed lower back and left leg injury’[18] and whether the worker has ‘no current work capacity’.[19] The Referral did not extend to seeking an opinion from the Medical Panel as to whether the plaintiff had a capacity for her pre-injury employment.[20] As stated above, it was an agreed fact that the plaintiff did not have such capacity.
[18]See Question 1.
[19]See Question 2.
[20]Ibid.
I now turn to an examination of the Reasons of the Medical Panel concerning this particular issue.
The Medical Panel noted the Referral concerned a claim for a lower back and left leg injury.[21] The history obtained by the Medical Panel from the plaintiff on 26 November 2013 included ‘on some days her leg pain is more severe than her back pain but on other occasions the situation is reversed’, that she has ‘midline lower back pain that is present most of the time with pain extending down the back of the left leg’, ‘her back symptoms are generally worsened after physical activity’, ‘she has some back stiffness and soreness in the morning’, she has ‘some numbness involving the posterolateral aspect of the lower left thigh…[and] the top of the calf in the left leg’, and that she ‘limps all the time’.[22]
[21]See the document ‘Reasons for Opinion’ provided by the Medical Panel (the ‘Reasons’) dated 10 December 2013 at 4.
[22]Reasons at 5.
The Reasons made no specific reference to any history obtained from the plaintiff concerning pain or restriction or symptoms to the right leg.
Findings of the Medical Panel on examination relevant to this issue included that the plaintiff walked with a ‘variable limp at times favouring the right leg’, had difficulty walking on her heels and toes reporting an increase in back pain, and there was ‘marked tenderness to light palpation extending from the upper lumbar spine to the mid sacrum and laterally to the left side’.[23]
[23]Reasons at 7.
The Medical Panel commented that the plaintiff demonstrated a number of inconsistencies during the physical examination. These inconsistencies included differences ‘between her limited leg movements and postures noted at other times during the examination’, numbness to pinprick ‘throughout large parts of the left leg below the knee in a non-dermatomal distribution’, ‘light work staining of both hands’ and that there were inconsistencies during the physical examination of the plaintiff whereby complaints of symptoms did not correlate with the Medical Panel’s findings.[24]
[24]Ibid.
The Medical Panel reviewed the MRI scan of 18 March 2011 stating it ‘showed some disc space narrowing at L5-S1 and a small central disc bulge at this level’.[25] The Medical Panel reviewed the MRI of 6 February 2012 and said it ‘showed a central to right sided disc bulge with an extruded fragment’.[26] The Medical Panel reviewed the MRI of 20 August 2012 and stated it ‘showed some reduction in the size of the extruded fragment with no evidence of any neurological compromise on the left’.[27]
[25]Ibid.
[26]Ibid.
[27]Ibid.
The Medical Panel then concluded by noting:
(a)the plaintiff’s history of symptoms;
(b)the inconsistencies between the plaintiff’s complaints and the Panel’s findings;
(c)the results of MRI investigations, which ‘showed no evidence of any problems that correlated with the left leg symptoms’, ‘that the worker may have developed a soft tissue injury in the setting of some mild disc disease, but that this condition has since resolved, despite the complaint of symptoms and ongoing medication use’;[28] and
(d)‘that there is now no physical medical condition of the back or legs, relevant to the claimed lower back and left leg injuries’.[29]
[28]Reasons at 7.
[29]Ibid.
The Medical Panel made no reference in its Reasons to the radiological findings of right sided nerve impingement at L5-S1. The radiological reports provided to the Medical Panel included the following:
(a)MRI of 6 February 2012 – ‘L5-S1 right paracentral disc extrusional prolapse displaces the right S1 nerve root posteriorly’;[30] and
(b) MRI of 20 August 2012 – ‘[s]ubstantial bone and disc degenerative change at L5-S1 with a central and right sided disc protrusion compressing the proximal right S1 nerve root sheath. No specific cause for the patient’s left-sided symptoms’.[31]
[30]See Medical Imagining Report of Peter Smith dated 8 February 2012.
[31]See MRI Lumbar Spine Report of Dr Chris O’Donnell dated 20 August 2012.
In my opinion, the conclusion of the Medical Panel after its consideration of the MRI investigations that there is ‘no evidence of any neurological compromise on the left’ and ‘the results of the investigations which showed no evidence of any problems that correlated with left leg symptoms’[32] is indicative of the restrictive manner in which it approached its task. Whilst the MRI investigations and the Medical Panel’s findings did not demonstrate a cause of the plaintiff’s left leg symptoms, the investigations did demonstrate an L5-S1 disc prolapse and neurological impairment of the S1 nerve root on the right. This was part of the ‘lower back’ injury and the Medical Panel was bound to consider it, particularly in the context of the plaintiff’s complaints of back pain and restriction. The Reasons of the Medical Panel concerning the MRI investigations demonstrate a concentration by the Medical Panel on the left leg symptoms to the exclusion of the whole back injury and ‘any sequelae’, which would include S1 nerve root compression and its consequences.
[32]Reasons at 7.
The Medical Panel was provided, as stated above, with medical reports of treating surgeon Mr de la Harpe or Mr Kudelka, who examined the plaintiff on behalf of the appointed claims agent (Allianz). Whilst the Medical Panel stated at the commencement of its Reasons that it had formed its Opinion by reference to documents contained in a schedule that was an enclosure to its Reasons and the schedule included the reports of Mr de la Harpe and Mr Kudelka, no specific reference to the findings or opinions of those specialist medical practitioners was contained in the Reasons.
Mr de la Harpe noted on 21 March 2013 that low back pain was the predominant feature of her presentation, with some mild right sciatica.[33] He believed the Incident caused ‘significant damage to the lumbar sacral disc which included a disc prolapse and internal disruption of the lumbar sacral disc’.[34]
[33]De la Harpe Report dated 21 March 2013 at 1.
[34]Ibid at 2.
Mr Kudelka’s report of 19 November 2012 recorded the plaintiff’s complaint of restriction of movement caused by back pain and back stiffness.[35] He noted improvement in the left leg pain, but the complaint of tingling in the right foot and ankle.[36] Mr Kudelka considered the back pain and right sciatic symptoms were due to the abnormality in the lumbosacral disc and pressure on the right S1 nerve. He provided the opinion the symptoms were the result of the Incident.[37] He concluded by stating that the plaintiff was not fit for her pre-injury employment[38] and ‘there was nothing but her back symptoms preventing her from working’.[39]
[35]Kudelka Report dated 19 November 2012 at 1.
[36]Ibid.
[37]Ibid at 2.
[38]Ibid.
[39]Ibid at 3.
These reports, together with the MRI investigations, raised an issue of fundamental importance to the question posed to the Medical Panel. In determining the nature of the plaintiff’s medical condition (including any sequelae) relevant to the claimed lower back and left leg injury, the Medical Panel was bound to consider the nature of and sequelae resulting from the L5-S1 lumbar disc prolapse. In considering the ‘nature of’ the disc prolapse, the Medical Panel should have determined whether the Incident was a cause of the prolapse and, if so, the sequelae resulting from it. This is particularly so in circumstances where the Medical Panel disagreed with an agreed fact in the Referral that the plaintiff was not fit for her pre-injury duties.
The jurisdiction of this Court to review the opinion of a medical panel does not extend to a review of the decision on the merits.[40] Further, it is not appropriate to scrutinise the reasons of the medical panel over-zealously to find error.[41] However, the medical panel is required to take into account relevant considerations, it cannot ignore relevant material:
[T]he Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and 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.[42]
On the other hand:
Whether an administrative tribunal has taken into account a relevant consideration requires the tribunal’s reasons to be read as a whole. Upon such a reading, an inference may arise that the tribunal has considered a particular matter even though it has not expressly referred to it. It follows that a failure to admit to a relevant consideration in the tribunal’s reasons does not necessarily mean that the tribunal failed to take the matter into account.[43]
[40]Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45 at 48, [8] (Maxwell P and Cavanough AJA).
[41]Ibid at 48, [9].
[42]Ryan v Grange at Wodonga Pty Ltd (‘Ryan’) [2015] VSCA 17 at [60] (Neave JA with Santamaria JJA and Ginnane AJA in agreement).
[43]Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 at [106] (Kyrou J) referring to Kentucky Fried Chicken Pty Ltd v Gentidis (1979) 140 CLR 675 at 679 – 680 and 682 (Barwick CJ). See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 (McHugh, Gummow and Hayne JJ).
In this matter, the plaintiff provided documents and provided a history to the Medical Panel raising what, in my opinion, is a highly significant issue which the Reasons of the Medical Panel do not address. Nowhere do the Reasons of the Medical Panel refer to the right-sided impingement of the S1 nerve root which is part of the disc disruption at L5-S1. This issue and its sequelae was squarely raised by the MRI investigation, the medical specialists Messers de la Harpe, Kudelka, the plaintiff’s General Practitioner Dr Lesley J. Chisholm, the plaintiff’s complaint of back pain and the Medical Panel’s finding of limp favouring the right leg. The Medical Panel did not address this issue and failed to express any opinion concerning it.
The Medical Panel should have considered these materials, and referred to the right sided SI nerve impingement when providing reasons in respect of the conditions of the lower back injury and its sequelae as requested by questions one and two. Insofar as the Medical Panel has addressed the issue of back pain and expressed an opinion, its reasoning and opinion is inadequate because of the failure to refer to the findings of S1 nerve impingement and the two medical reports.
The Medical Panel, in answering the medical questions, was under no obligation to explain why it did not reach an opinion similar to or different from Mr De la Harpe or Mr Kudelka.[44] However, consideration of those medical opinions and the MRI investigations ‘might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a medical panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons’.[45]
[44]Wingfoot (2013) 303 ALR 64 at 80 (French CJ, Crennan, Bell, Gageler and Keane JJ).
[45]Ibid. The Medical Panel did refer to the report of General Practitioner Dr Lesley J. Chisholm of 15 July 2015. This report was not included in materials provided to the Court and was at the request of the Court subsequently provided. The Medical Panel stated it ‘noted’ the opinion of Dr Chisholm ‘regarding the worker’s condition and capacity for work. The Panel came to a different conclusion for the Reasons detailed above’. As indicated the ‘Reasons’ of the Medical Panel relied upon are deficient.
It is the obligation of the Medical Panel to set out its actual path of reasoning leading to its opinion, an opinion which the Medical Panel formed for itself ‘by applying its own medical experience and its own medical expertise’.[46] As stated, the Medical Panel concluded, after review of the MRI investigations, ‘there was no evidence of any neurological complication on the left’, there was ‘no evidence of any problems that correlated with the plaintiff’s left leg symptoms’, that the plaintiff may have ‘developed a soft tissue injury in the setting of some mild disc disease, but this condition has since resolved’.[47] The Medical Panel failed to address the issue clearly raised by the materials before it – what was the cause of the disc prolapse? What was the sequelae of the disc prolapse not only as the prolapse impacted on the left side, but as it related to back pain and the right side? What was the nature and extent of the injury relating to the right S1 nerve compression? Does the disc prolapse and the right-sided S1 nerve compression impact on the ability of the plaintiff to perform her pre-injury employment? These matters were fundamental to a proper consideration of the medical questions.
[46]Ryan [2015] VSCA 17 at [108] (Neave JA with Santamaria JJA and Ginnane AJA in agreement) quoting Wingfoot (2013) 303 ALR 64 at 77 (French CJ, Crennan, Bell, Gageler and Keane JJ).
[47]Reasons at 7.
This is not a situation where the Medical Panel has been called upon to ‘decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions…nor to opine on the correctness of other opinions on that medical question’.[48]
[48]Wingfoot (2013) 303 ALR 64 at 77 (French CJ, Crennan, Bell, Gageler and Keane JJ).
In this matter, what is required of the Medical Panel is that in forming its own opinion, it address an issue raised by the materials provided, the disc prolapse and S1 nerve compression; in failing to address this issue, the Medical Panel has failed to take account of a relevant consideration. The Medical Panel’s Reasons demonstrate that it did not form an opinion about whether the plaintiff suffered from back pain and right leg sequelae as a consequence of the S1 right-sided nerve compression. The Reasons of the Medical Panel contain no analysis of this issue appropriately raised on the materials. It can be said the Medical Panel, in answering the questions, has ignored the right-sided S1 nerve compression findings concerning back injury and the sequelae associated with this finding. Thus, the Medical Panel, by failing to take account of a relevant matter, has not performed its function of answering the medical questions submitted to it by reference to the issues and materials provided. This amounts to a jurisdictional error.[49]
[49]See Drazinic v Gallichio and Ors [2013] VSC 409 at [51] – [55] (Ginnane J).
As stated above, in my opinion, the Reasons of the Medical Panel demonstrate it was focused on left-sided symptoms to the exclusion of any proper consideration of the entirety of the plaintiff’s claimed lower back injury and its sequelae. The Medical Panel has failed to consider relevant matters. After consideration of the MRI scans and the reports of Mr de la Harpe and Mr Kudelka, I am also satisfied the Medical Panel has failed to provide adequate reasons in arriving at its own different opinion. The Medical Panel, in its consideration of the nature and sequelae of the disc prolapse at L5-S1, has failed in its Reasons to sufficiently detail its reasoning so that the Court can ascertain whether there was an error of law in the steps that have led the Medical Panel to its opinion concerning the nature of and the sequelae relating to this back injury. The reasoning of the Medical Panel is not adequately reflected in its written Reasons and thus, the Medical Panel has made an error of law.[50]
[50]Wingfoot (2013) 303 ALR 64 at [57], 80 (French CJ, Crennan, Bell, Gageler and Keane JJ).
Mr Uren submitted there was a further deficiency in the reasoning of the Medical Panel in that the Panel failed to properly consider the capacity of the plaintiff to perform her pre-accident employment.[51] This submission was based upon the Medical Panel’s consideration of the plaintiff’s alleged psychiatric injury.
[51]I have referred in my reasons a number of times to the Referral which stated that it was an agreed fact that the plaintiff could not perform her pre-injury employment.
The Medical Panel did refer to the report of ‘independent medical examiner Dr John Douglas (psychiatrist)’ and his diagnosis of mixed anxiety and depressed mood, and quoted from the report of Dr Douglas, ‘this is an adjustment to the persistent pain and disability due to the low back injury’ and ‘from a psychiatric perspective she could return to her pre-injury duties and hours’.[52] The Medical Panel then stated it ‘agreed’ with Dr Douglas that the plaintiff’s psychiatric injury would not affect her capacity to perform her pre-injury employment. This reasoning, Mr Uren submitted, amounted to the Medical Panel leaping from mild chronic pain disorder, a psychiatric condition, to the plaintiff being capable of her pre-injury employment. This chain of reasoning, it was submitted, had no proper basis; it was unacceptable to use a psychiatric capacity to work as a basis for a decision that the plaintiff had a physical capacity for work. Nowhere, said Mr Uren, has the Medical Panel, in its Reasons, assessed the plaintiff’s capacity for her pre-injury employment by assessing the nature of the work required against her whole back injury.
[52]Reasons at 8.
In fact the Medical Panel did say it ‘noted the worker’s pre-injury employment duties’.[53] I am not convinced of the merits of this particular argument. The Medical Panel concluded:
There is now no physical medical condition of the lower back or left leg, and the psychiatric condition is mild. The Panel concluded that the worker has no present inability arising from an injury such that the worker is not capable of performing her pre-injury duties.[54]
[53]Reasons at 8.
[54]Ibid.
The Medical Panel’s conclusion that the plaintiff has ‘no physical medical condition of the lower back or left leg’ has been the subject of successful challenge as outlined in my reasons. The Medical Panel has failed to consider the whole back injury and its sequelae. However, I do not agree that the Medical Panel has used the plaintiff’s mild psychiatric injury to ‘leap’ to a finding that the plaintiff can perform her pre-injury employment.
Orders
For the above reasons, I order that the Medical Panel’s Opinion be quashed and that the medical questions be remitted to a differently constituted medical panel. I will hear the parties concerning any other necessary additional orders.
4
0