Mailton Holdings Pty Ltd v Jussy
[2019] VSCA 281
•29 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0075
| MAILTON HOLDINGS PTY LTD (ACN 006 531 899) | Applicant |
| v | |
| BIMLA JUSSY and ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | BEACH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 November 2019 |
| DATE OF JUDGMENT: | 29 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 281 |
| JUDGMENT APPEALED FROM: | Mailton Holdings Pty Ltd v Jussy [2019] VSC 421 (Richards J) |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Medical panel found that worker’s physical injury had resolved, but that worker suffered from ongoing psychiatric injury – Whether panel failed to take into account relevant considerations – Whether panel’s decision illogical or irrational – Whether panel’s reasons adequate – Judicial review proceeding dismissed – No error by primary judge – Application for leave to appeal refused – Workplace Injury Rehabilitation and Compensation Act 2013, ss 274, 302 and 313.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Fleming QC with Mr R Kumar | IDP Lawyers |
| For the First Respondent | Mr J P Gorton QC with Mr D J O’Brien | Arnold Thomas & Becker |
| For the Second to Fifth Respondents | No appearance |
BEACH JA
ASHLEY JA:
On 14 March 2008, Ms Bimla Jussy was employed by Mailton Holdings Pty Ltd (‘Mailton’) as a process worker when she slipped and fell heavily in a dark stairwell.
Following her fall, Ms Jussy made claims for compensation in the form of weekly payments and medical and like expenses pursuant to the provisions of the Accident Compensation Act 1985 (‘the AC Act’). These claims were rejected, resulting in Ms Jussy commencing a proceeding in the County Court.
In the County Court proceeding, Ms Jussy alleges that she suffered injury as a result of her fall on 14 March 2008 and that this injury entitles her to compensation under the provisions of the AC Act. In her statement of claim in that proceeding, Ms Jussy pleads a number of injuries, including:
·injury to the back;
·chronic pain syndrome;
·psychiatric/psychological injury; and
·fibromyalgia.
By its defence in the County Court proceeding, Mailton accepts that Ms Jussy suffered a compensable injury involving her buttocks and legs — but alleges that any compensable injury suffered by her has resolved, and that she has not sustained a chronic pain syndrome or fibromyalgia.
On 3 May 2018, a County Court judge, pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’) referred eight medical questions to a medical panel. Subsequently, a medical panel was convened comprising Dr David Fish, a specialist occupational and environmental physician; Dr Jennifer Harmer, a specialist rheumatologist; and Drs Diane Neill and Sandra Hacker, specialist psychiatrists.
On 24 July 2018, the medical panel provided a certificate of its opinion and a written statement of its reasons. The panel found that, although Ms Jussy’s physical injuries from her fall had resolved, at the time of its examination of her, she had a work related psychiatric injury. It also found that she had no current work capacity and that her incapacity was likely to continue indefinitely.
Following receipt of the medical panel’s opinion and reasons, Mailton commenced a proceeding in the Trial Division pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 seeking relief in the nature of certiorari to quash the medical panel’s opinion. The trial of this proceeding was heard on 13 June 2019. On 25 June 2019, the judge dismissed Mailton’s proceeding.[1]
[1]Mailton Holdings Pty Ltd v Jussy [2019] VSC 421 (‘Reasons’).
Mailton now seeks leave to appeal. Its proposed grounds of appeal are as follows:
1.The primary judge erred by failing to conclude that the panel had fallen into jurisdictional error in conducting its psychiatric assessment of [Ms Jussy] by failing to engage in an active intellectual process in respect of [her] credit.
2.The primary judge erred by failing to conclude that the panel had fallen into jurisdictional error in conducting its psychiatric assessment of [Ms Jussy] by failing to engage in an active intellectual process in respect of findings and observations made by the panel in the context of its physical assessment.
3.The primary judge erred by failing to conclude that the panel had fallen into jurisdictional error in conducting its psychiatric assessment of [Ms Jussy] by making findings of fact which were grossly illogical or irrational, given findings and observations made by the panel in the context of its physical assessment.
4.The primary judge erred in concluding that the statement of reasons of the medical panel was sufficient to comply with its statutory obligation pursuant to s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013.
The medical panel’s opinion
The medical panel’s opinion was formed following two examinations of Ms Jussy. Ms Jussy was examined by Dr Fish and Dr Harmer (the occupational physician and the rheumatologist) on 27 June 2018; and by Dr Neill and Dr Hacker (the psychiatrists) two days later on 29 June.
While eight medical questions were referred to the panel for its opinion, having regard to the issues raised in this Court, it is only the panel’s answers to the first four questions that are relevant. In its certificate of opinion, the medical panel set out those questions and answers as follows:
Question 1:What is the nature of [Ms Jussy’s] medical condition of [Ms Jussy’s]:
(a) back; or
(b) mind?
Answer: The panel is of the opinion that [Ms Jussy]:
(a)suffered a soft tissue injury to her back which has now resolved and is now suffering from mild degenerative spondylosis;
(b)is suffering from a somatic symptom disorder with predominant pain.
Question 2:Was [Ms Jussy’s] employment with [Mailton] (and in particular the fall on 14 March 2008) a significant contributing factor to any, and if so what, medical condition of [Ms Jussy’s] back as identified by the medical panel?
Answer:The panel is of the opinion that [Ms Jussy’s] employment with [Mailton] on 14 March 2008 was a significant contributing factor to a soft tissue injury of [Ms Jussy’s] back which has now resolved, and to the consequential development of a somatic symptom disorder with predominant pain.
The panel is also of the opinion that [Ms Jussy’s] employment with [Mailton] including the fall on 14 March 2008 was not a significant contributing factor to [Ms Jussy’s] mild degenerative spondylosis or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the back, in any way.
Question 3: Is any medical condition of:
(a)chronic pain syndrome (as may be identified by the medical panel);
(b)fibromyalgia (as may be identified by the Medical Panel); or
(c)[Ms Jussy’s] mind –
related to any medical condition identified by the medical panel in answer to Question 2?
Answer:
(a) No.
(b) No.
(c) Yes.
Question 4: Does any medical condition of [Ms Jussy’s]:
(a)back;
(b)chronic pain syndrome (as may be identified by the medical panel);
(c)fibromyalgia (as may be identified by the medical panel); or
(d)mind –
as identified by the medical panel continue to result from or be materially contributed to by injuries suffered in employment with the employer on 14 March 2008?
Answer:
(a) No.
(b) No.
(c) No.
(d)In the panel’s opinion [Ms Jussy’s] somatic symptom disorder with predominant pain results from and is materially contributed to by the now resolved soft tissue injury to her back.
The medical panel’s reasons
The panel commenced its reasons by referring to its two examinations of Ms Jussy, to which we have already referred. It stated that it formed its opinion with regard to the documents and information referred to in ‘Enclosure A’, the history provided by Ms Jussy and the findings elicited by the panel at its examinations. Enclosure A was a list of documents provided to the panel, which included medical imaging, clinical notes, medical reports, surveillance material and written submissions made on behalf of Ms Jussy and Mailton. The panel expressly noted the existence of the written submissions made by the parties.
The panel then set out matters of history, including various matters that Ms Jussy told the panel. It gave a brief description of its physical examination of Ms Jussy, before turning to the medical imaging and reports that were available to it. After referring to some of that material, the panel said:
The panel noted the pre-incident radiology. [Ms Jussy] told the panel that she could ‘not remember’ why this had been done. She stated that prior to the incident she was ‘a strong lady’. On specific questioning she said that following the birth of her third child in 1999 she had undergone a CT scan and been told that there was ‘tissue damage’. She stated that this was performed because ‘she felt weak and not strong’.
The panel then referred to some of the entries in a general practitioner’s clinical notes, covering the period 2002 to 2005, in which reference was made to back pain. The panel then said:
When questioned regarding these entries [Ms Jussy] said that: ‘I don’t remember’ and said that she was unable to recall any of these incidents or times prior to the incident of 14 March 2008.
Following this statement, the panel said:
The panel viewed the supplied surveillance DVDs in the presence of
[Ms Jussy]. The panel in particular noted that she was seen to be active, beating car mats against a brick wall and bending over and then squatting to pull out weeds from the ground. There was no restriction of lumbosacral motion on the DVDs. The panel also noted that she was seen to drive a silver car and walk an extended distance carrying a handbag in the right hand and to stand for considerable periods waiting. There was no abnormality of gait. The panel also noted that the DVD showing [Ms Jussy] pulling up at a service station and putting petrol in the car, she then got in the car and drove off (sic). [Ms Jussy] self-identified herself in all of the videos.
[Ms Jussy] was provided with an opportunity to comment on the DVDs and declined. The panel concluded that the actions depicted in the surveillance DVDs were not consistent with [Ms Jussy’s] presentation.
The panel considered in that she had no recall of previous investigations or symptoms regarding her back which were clearly documented in the provided documents (sic). She was also unable to provide any commentary on the subsequent surveillance DVDs as to why the actions depicted therein were not consistent with her statement.
The panel accepted that she is suffering from chronic lower back pain but noted that this had preceded the incident and that the available information, in particular the general practitioner note of 14 March 2008, does not record back pain as a symptom and the reports of Dr Brazenor and Thomas, suggests that it was not severe following the incident and has over time become more significant.
The panel concluded that while she suffered a soft tissue injury of the buttocks and lower back at the time of the incident of 14 March 2008 that this had subsequently resolved.
The panel also concluded that her ongoing symptoms arising from lumbar spondylosis and disc degeneration had preceded and subsequently continued following the incident and were unrelated.
The panel therefore concluded that [Ms Jussy] is suffering from mild generative spondylosis with a now resolved soft tissue injury.
The panel concluded that [Ms Jussy’s] employment with [Mailton] on
14 March 2008 was a significant contributing factor to a soft tissue injury of [Ms Jussy’s] back which has now resolved.
The panel noted the clinical history preceding the incident and the medical imaging, which does not demonstrate any change greater than the natural progression of the pre-existing mild degenerative spondylosis.
The panel concluded that [Ms Jussy’s] employment with [Mailton] including the fall on 14 March 2008 was not a significant contributing factor to
[Ms Jussy’s] mild generative spondylosis or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the back, in any way.
The panel therefore concluded that [Ms Jussy’s] does not have any incapacity to work, either in her pre-injury employment as a packer or for suitable employment, which results from or is materially contributed to by her alleged back injury.
Based on the available clinical evidence, the available radiology and the panel’s own knowledge, experience and expertise the panel concluded that [Ms Jussy] is not suffering from a chronic pain syndrome or fibromyalgia.
The panel then turned to psychiatric matters, noting that it had ‘also performed a psychiatric assessment’ of Ms Jussy. The panel’s reasons then set out further aspects of Ms Jussy’s history, before saying:
[Ms Jussy] provided the panel with an unremarkable past history with respect to psychiatric illness or psychological conditions including substance use. She said that although she had suffered back pain in the past, it was a different quality of pain from the severe acute pain she sustained in the injury and also different because the incident was ‘frightening, it was dark, and the floor was hard’.
After recording more matters of history, the panel recorded that it undertook a mental status examination of Ms Jussy. The panel then described the results of that mental status examination. It is not necessary to set out that description here.
Having described the mental status examination, the panel then said that it concluded that Ms Jussy was suffering from ‘somatic symptom disorder with predominant pain’. The panel then said:
The panel noted that the criteria for the diagnosis of somatic symptom disorder permits this diagnosis concurrent with other medical conditions which have manifest pain symptoms. The panel considers that the diagnosis of somatic symptom disorder encapsulates [Ms Jussy’s] somatic symptoms (including pain) which are: very distressing; have been present for at least six months; result in significant disruption of functioning as well as excessive or disproportionate thoughts, feelings or behaviours regarding those symptoms; and are not better explained by any other diagnosis/condition from which the person is suffering, including the mild degenerative spondylosis with a now resolved soft tissue injury.
The panel noted that the diagnosis of chronic pain syndrome is subsumed under the panel’s diagnosis of somatic symptom disorder with predominant pain. The panel therefore makes no separate diagnosis of chronic pain syndrome or fibromyalgia.
The panel noted the opinion of medical examiner Dr David Weissman
(27 July 2017) that [Ms Jussy] is suffering from a chronic pain disorder associated with a general medical condition/somatic symptom disorder with predominant pain, severe; and from a chronic adjustment disorder with depressed and anxious mood of at least moderate, if not moderately severe, intensity or severity. The panel considered that [Ms Jussy’s] cognitive, affective and behavioural findings are adequately explained by the diagnosis of somatic symptom disorder with predominant pain, and therefore concluded that [Ms Jussy’s] psychiatric condition does not meet the criteria for adjustment disorder.
Finally, the panel concluded that the incident in the course of Ms Jussy’s employment in March 2008 was a significant contributing factor to the development of her somatic symptom disorder. Specifically, the panel said:
The panel noted the onset of [Ms Jussy’s] somatic symptom disorder with predominant pain shortly after the incident of 14 March 2008 and the persistence of the condition since that date notwithstanding the resolution of the soft tissue injury to [Ms Jussy’s] back. The panel concluded therefore that the incident in the course of her employment on 14 March 2008 was a significant contributing factor to the development of her somatic symptom disorder. The panel noted the persistence of the condition since onset and therefore concluded that the somatic symptom disorder results from and continues to be materially contributed to by the claimed back injury.
The issues in dispute
In this Court, and before the primary judge, Mailton made three complaints about the panel’s opinion and reasons: a complaint that the panel fell into jurisdictional error by failing to take into account relevant considerations to which it was bound to have regard (‘the relevant considerations complaint’); a complaint that the panel fell into jurisdictional error by making findings of fact which were illogical or irrational (‘the illogicality complaint’); and a complaint that the panel failed to give a statement of reasons sufficient to comply with s 313(2) of the WIRC Act (‘the reasons complaint’).
The relevant considerations complaint
Under the cover of this heading, Mailton contended that, in conducting its psychiatric examination of Ms Jussy and making a diagnosis of somatic symptom disorder with predominant pain, the panel failed to engage in an active intellectual process in respect of:
·the surveillance material provided to the panel;
·the written submissions advanced on behalf of Mailton in respect of Ms Jussy’s credit, the surveillance material and ‘the mooted diagnosis of chronic pain disorder or somatic symptom disorder’;
·the panel’s own findings concerning inconsistencies demonstrated by the surveillance material, in respect of which Ms Jussy had given no explanation;[2]
·Ms Jussy’s history to the panel that she could not recall any previous symptoms regarding her back;
·the panel’s own conclusion, following the physical examination conducted by it, that Ms Jussy was not suffering from a chronic pain syndrome.
[2]The panel recorded in its reasons simply that Ms Jussy had been ‘unable to provide any commentary on the … surveillance DVDs as to why the actions depicted therein were not consistent with her statement’.
The illogicality complaint
Under this heading, Mailton contended that the panel had found that there were inconsistencies demonstrated by the surveillance material which Ms Jussy was unable to explain, and that Ms Jussy was not suffering from a chronic pain syndrome. Mailton submitted that, having made these findings, it was ‘grossly illogical or irrational’ for the panel, after conducting its psychiatric examination of Ms Jussy, to:
(1) accept at face value Ms Jussy’s complaints of pain and restrictions; and
(2) diagnose Ms Jussy as suffering from a somatic symptom disorder (which diagnosis was said to subsume the diagnosis of chronic pain syndrome) which incapacitated her for employment.
The reasons complaint
Under this heading, Mailton contended that the panel’s statement of reasons was insufficient to explain its path of reasoning, and not adequate to enable a court to see whether the panel’s opinion involved any error of law.[3] In support of these contentions, Mailton submitted that the reasons did not enable a reader of them to know:
·whether, and if so how, the panel, in its psychiatric examination of Ms Jussy, had regard to the surveillance material;
·whether, and if so how, the panel, in its psychiatric examination of Ms Jussy, had regard to the written submissions advanced on behalf of Mailton in respect of Ms Jussy’s credit, the surveillance material, and the mooted diagnosis of chronic pain disorder or somatic symptom disorder;
·whether, and if so how, the panel, in its psychiatric examination of Ms Jussy, had regard to its findings concerning inconsistencies which Ms Jussy was unable to explain, the history it took that Ms Jussy could not recall any previous symptoms regarding her back, and its conclusion that Ms Jussy was not suffering from a chronic pain syndrome; and
·whether the panel, in its psychiatric examination of Ms Jussy, made any and if so what determinations as to her credibility or whether she was ‘putting on a performance’ for the purposes of the litigation in which she was involved.
[3]As to the standard required of written reasons given by a medical panel, see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501–2 [54]–[56] (‘Wingfoot’); Karabinis v Bendrups [2018] VSCA 124, [26].
The primary judge’s reasons
In dismissing Mailton’s proceeding for judicial review, the primary judge rejected each of Mailton’s complaints.
In rejecting the relevant considerations complaint, the judge observed that the panel had expressly noted Mailton’s submissions as to credit. The judge saw no reason not to take the panel’s statement, that it had noted Mailton’s submissions, at face value.[4] The judge concluded that it was clear from the panel’s reasons that the panel actively engaged with the question of whether Ms Jussy’s account of her symptoms should be accepted.[5] The judge noted that the panel had watched the surveillance material with Ms Jussy, and had noted differences between her actions in the footage and her presentation on physical examination.[6]
[4]Reasons [30].
[5]Ibid [31].
[6]Ibid.
The judge observed (correctly in our view) that a medical panel is unlikely to deal with questions of genuineness and credit in the same way that a court would, and that the panel’s function was ‘to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’. She also observed that, in performing that function, the panel was entitled to take a nuanced view of Ms Jussy’s credit, accepting what she said on some matters while not accepting her on others.[7]
[7]Ibid [32]–[33].
Next, the judge observed that Mailton’s argument was premised on a reading of the panel’s reasons in relation to Ms Jussy’s claimed physical injury as if they were separate from that part of the reasons dealing with her claimed psychiatric condition. While the judge said that there was some basis for doing so, given the separate examinations and the way the reasons were structured, ultimately she did not consider that the reasons could be read that way. The opinion was the collective opinion of all members of the panel as the provisions of the WIRC Act required.[8]
[8]Ibid [34]–[35].
The judge concluded that the reasons for the panel’s opinion were given by the panel as a whole, and integrated the reasoning of the individual members of the panel. Based on those reasons, the judge was satisfied that the panel as a whole gave genuine consideration to all of the relevant material and the panel’s various observations and findings, and specifically with respect to Ms Jussy’s credit.[9]
[9]Ibid [35].
In relation to the illogicality complaint, the judge accepted that a medical panel’s opinion can be reviewed on the ground of illogicality or irrationality.[10] She concluded, however, that the panel’s opinion was neither illogical nor irrational.[11]
[10]Ibid [42].
[11]Ibid.
The judge accepted that, ‘on [a] first reading’, there was some tension between the sections of the panel’s reasoning concerning physical injury and psychiatric injury. She then said:
On closer reading, however, that tension resolves. I have already found that it was open to the panel to take a nuanced view of Ms Jussy’s credit, and that is clearly what it did. Questions of credit are rarely black and white. The panel could find that Ms Jussy genuinely suffered psychogenic pain while also observing that her presentation was not explained by any organic cause.[12]
[12]Ibid [43].
As to Mailton’s claim that there was an inconsistency in the panel’s reasons concerning its rejection of the diagnosis of chronic pain syndrome and fibromyalgia, while also noting that the diagnosis of chronic pain syndrome was subsumed under the diagnosis of somatic symptom disorder, the judge said that any contradiction disappeared once it was understood that the terms ‘chronic pain syndrome’ and ‘fibromyalgia’ were imprecise terms that, depending upon context, can refer to a condition that is physical, or psychiatric, or both.[13]
[13]Ibid [23], [46].
With respect to the reasons complaint, the judge noted that the reasons must explain the panel’s path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law. She said that a statement of reasons is not adequate if there is a ‘real doubt’ whether the panel correctly performed its statutory functions, and that a real doubt may exist where a panel’s conclusions are open to more than one interpretation.[14]
[14]Ibid [48].
The judge went on to say:
At the same time, a medical panel’s reasons need only be sufficient to enable a reviewing court to understand that it has performed its function — to form and give its opinion on medical questions referred to it — lawfully. At least since the High Court’s decision in Wingfoot, it has been clear that a medical panel is not an arbitral or adjudicative body, does not have a function of deciding disputes, and is not required to choose between competing arguments or contentions put to it. The adequacy of a medical panel’s reasons must be assessed against its statutory function, and not against some other standard.[15]
[15]Ibid [49].
Next, the judge said (as has been said many times before in other cases involving medical panels) that the panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.[16]
[16]Ibid [50].
The judge noted that the panel’s reasons did not deal directly with the attack made by Mailton on Ms Jussy’s credit; nor did it explain how it had resolved various inconsistencies that had been drawn to its attention between the histories recorded in medical reports, Ms Jussy’s presentation on examination, the surveillance material and the clinical notes.[17] The judge observed that, ‘Perhaps it would have been better if the panel had said more’.[18] The judge concluded, however, that the matters referred to by Mailton did not have to be expressly addressed in the reasons provided that the reasons disclosed a path of reasoning in sufficient detail so that the court could see whether the panel’s opinion involved an error of law.[19]
[17]Ibid [51].
[18]Ibid.
[19]Ibid.
Ultimately, the judge concluded that she was able to follow the panel’s path of reasoning to the opinions it gave. Moreover the judge said that she could see from the panel’s reasons that it had given genuine consideration to the submissions made by Mailton about Ms Jussy’s credit, and in particular that it had given genuine consideration to the differences between the surveillance footage and Ms Jussy’s presentation on examination.[20]
[20]Ibid [52].
The judge said that having given genuine consideration to the submissions made by Mailton about Ms Jussy’s credit, and having found that the soft tissue injury from the fall had resolved, the panel nevertheless accepted that Ms Jussy still suffered pain. The judge said that it was sufficient that the panel made it clear that it accepted this aspect of Ms Jussy’s history: it was not necessary for it also to explain how it had reasoned step by step to that conclusion.[21]
[21]Ibid.
Parties’ contentions
Having been unsuccessful at first instance, Mailton largely sought to put again (to this Court) the submissions that had been rejected by the primary judge, asserting that the primary judge was wrong to have rejected them. Mailton maintained its submission that the panel did not give genuine consideration to the question of Ms Jussy’s credit in the context of its psychiatric examination and assessment.
It was submitted that even if the panel had sufficiently taken matters of credit into account when conducting its physical examination, the panel had fallen into jurisdictional error by failing to take into account those matters when conducting (or in the context of) its psychiatric examination and assessment of Ms Jussy. With respect to Ms Jussy’s psychiatric conditions, it was asserted that the panel’s reasons ‘were wholly silent as to the issues concerning her credit’.
In argument, Mailton identified a number of what it said were inconsistencies in the panel’s reasons as follows:
(1) There was inconsistency in Ms Jussy’s history during the physical examination that she did not remember or recall incidents of back pain prior to the fall, and the subsequent history given on psychiatric examination where the panel recorded that Ms Jussy said that ‘although she had suffered back pain in the past, it was a different quality of pain from the severe acute pain she sustained [in the fall]’.
(2) The panel’s reference to the onset of Ms Jussy’s somatic symptom disorder with predominant pain shortly after the fall, and the persistence of that condition to date in the panel’s ultimate conclusion, was said to be inconsistent with the panel’s recording of the fact that the general practitioner’s note of 14 March 2008 did not record back pain as a symptom, and the reports of two other doctors[22] suggested that back pain ‘was not severe following the incident and has over time become more significant’.
(3) The panel’s conclusion that ongoing symptoms arising from lumbar spondylosis and disc degeneration (which preceded and then continued after the fall) were unrelated to the fall was inconsistent with the conclusion that there was an onset of Ms Jussy’s somatic symptom disorder with predominant pain shortly after the incident and a persistence of that condition from that time.
(4) The conclusion, immediately prior to the reference by the panel to it performing a psychiatric assessment, that Ms Jussy was not suffering from a chronic pain syndrome or fibromyalgia was inconsistent with the later expressed diagnosis of somatic symptom disorder, under which a diagnosis of chronic pain syndrome is subsumed.
[22]Dr Brazenor and Dr Thomas.
Finally, Mailton submitted that in the circumstances of this case, the panel was obliged to state — not merely in the context of its physical examination and assessment, but in the context of its psychiatric examination and assessment — sufficient reasons to show whether, and how, it gave genuine consideration to the issue of Ms Jussy’s credit and the various findings and observations which it had made specifically in the context of the panel’s physical examination and assessment.
In the absence of a statement of how it had given genuine consideration to the issue of Ms Jussy’s credit in the context of its psychiatric assessment, it was submitted that the primary judge could not reasonably have been satisfied that the panel gave the consideration it was required to give to mandatory considerations; alternatively, that any such consideration it gave (if capable of being inferred) was not itself attended by legal error.
In response to Mailton’s contentions, Ms Jussy contended that leave to appeal should be refused because the appeal does not have a real prospect of success.[23] In advancing that contention, Ms Jussy essentially supported the reasons of the primary judge for rejecting the various complaints made by Mailton. It was submitted that the present application was no more than a (second) disguised attempt to conduct a merits review of the panel’s answers and statement of reasons.
[23]See s 14C of the Supreme Court Act 1986.
Consideration
There is little substance in any of Mailton’s arguments. To the contrary, we consider that there was substance in the submission for Ms Jussy that this application, and the proceeding in the Trial Division, were in substance attempted merits reviews. In our view the judge was correct, broadly for the reasons she gave, to dismiss Mailton’s application for judicial review. We would only wish to add the following observations.
There was no inconsistency in the panel, following its physical examination, concluding that Ms Jussy was not suffering from a chronic pain syndrome; but later concluding that the diagnosis of chronic pain syndrome is subsumed under the panel’s diagnosis of somatic symptom disorder with predominant pain.
The evidence was that the expression ‘chronic pain syndrome’ lacks precision and is used by different doctors to mean different things — the expression being capable of being a reference to a condition that is physical, or psychiatric, or both.
The medical questions referred to the panel differentiated between chronic pain syndrome and a condition of the mind. In answering, in the negative, medical questions relating to chronic pain syndrome, the panel was plainly not dealing with any psychiatric issue. In that part of its reasons, the panel was dealing with chronic pain syndrome as a physical condition (being the condition enquired of in the medical questions). The later references in the panel’s reasons to somatic symptom disorder (in which the diagnosis of chronic pain syndrome was subsumed) were equally plainly not dealing with the condition as a physical injury. They were dealing with Ms Jussy’s claimed psychiatric injury.
In our view, there is no basis for contending that the panel correctly took into account Ms Jussy’s credit, the surveillance material, credit related issues and Mailton’s submissions on the issue of credit when considering Ms Jussy’s claimed physical injury, but failed to take this material into account when considering her claimed psychiatric injury. Mailton’s submissions to the contrary place too much emphasis on the structure of the panel’s reasons wherein (broadly speaking) physical matters were addressed by the panel, before it turned to the relevant psychiatric issues. The ultimate conclusion that Ms Jussy suffers from a somatic symptom disorder, ‘notwithstanding the resolution of [her] soft tissue injury’ shows the more integrated nature of the panel’s reasoning process. To the extent that the judge accepted that there was ‘some basis’ for treating the panel’s reasons in relation to physical injury ‘as if they were entirely separate from the section concerning [Ms Jussy’s] psychiatric condition’,[24] with respect, we disagree.
[24]Reasons [34].
The judge accepted, without deciding, that a medical panel’s opinion can be reviewed on the ground of illogicality or irrationality.[25] For the purposes of this application, we too are prepared to assume in Mailton’s favour that illogicality or irrationality is an available ground of review.[26]
[25]Ibid [42].
[26]See generally, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [82]–[99]; Chang v Neill [2019] VSCA 151, [146]–[149].
That said, we see no illogicality or irrationality in the panel determining that the surveillance material was not consistent with a physical injury but going on to believe Ms Jussy, that she genuinely experiences pain as an incident of a somatic symptom disorder from which she suffers. While inconsistent histories and surveillance material often form a basis for the rejection of an injured person’s claim to have suffered a physical injury (as in this case), experience has shown that the same material is often of little or no moment when analysing whether a psychiatric injury has been suffered. To the extent that the judge accepted that, on a first reading of the panel’s reasons, there was ‘some tension’ between sections dealing with physical injury on the one hand and psychiatric injury on the other hand,[27] again, we disagree.
[27]Reasons [43].
Mailton’s submission that there was a material inconsistency (at least requiring addressing by the panel in its reasons) between Ms Jussy’s failure to recall prior complaints of back pain during the course of her physical examination and her history given some two days later that, although she had suffered back pain in the past, this was of a different quality from that suffered after the fall, must be rejected.
First, attention needs to be paid to the words actually used by the panel in its reasons when summarising (and not purporting to record verbatim) what Ms Jussy said to the panel.
From the panel’s reasons, it appears that, in the course of the physical examination, Ms Jussy was asked about pre-incident medical imaging and reports (which included a CT scan of her lumbar spine taken in March 2003) and clinical notes recording complaints of back pain in 2002 and 2005. Ms Jussy is recorded as having told the panel in response that following the birth of her third child in 1999 she had undergone a CT scan and been told that there was ‘tissue damage’.
She is also recorded as having said that she did not remember why particular medical imaging had been performed, and that she did not remember and was unable to recall any of the incidents or times put to her by the panel. From this, the panel said that it ‘considered in that (sic) she had no recall of previous investigations or symptoms regarding her back which were clearly documented in the provided documents’.
In the psychiatric examination, the panel recorded Ms Jussy as saying that ‘although she had suffered back pain in the past, it was a different quality of pain from the severe acute pain she sustained in the injury …’.
In our view, there is no necessary inconsistency between a person not remembering specific incidents, recorded as having occurred more than ten years ago, and a later acceptance by that person of having suffered back pain in the past which was of a different quality of pain from the severe acute pain said to have been sustained in a specified incident (in this case, the fall at work).
Similarly, having been taken to specific medical imaging and clinical notes in the physical examination conducted two days prior to the psychiatric examination, there is no necessary inconsistency in Ms Jussy accepting that some of the material to which she was taken disclosed that she had suffered back pain in the past and her saying that such pain was, however, of a very different quality from the pain caused by the fall. Experience in cases of this kind shows that histories of the type given by Ms Jussy (and now contended to be inconsistent) are not uncommon. Usually, they are simply a reflection of further consideration of, and discussion occurring about, a topic relating to events said to have occurred in the distant past.
Mailton’s submissions that the panel’s reasons are inconsistent as to the onset and development of back pain (the GP not recording back pain and the reports of Dr Brazenor and Dr Thomas suggesting that back pain was not severe following the incident, as compared with the panel’s acceptance that the somatic symptom disorder with predominant pain commenced shortly after the fall) must also be rejected because, again, there is no necessary inconsistency.
Frequently in cases of the present kind one can identify symptoms that are recorded by one doctor at one time, but not by another at another time. The lack of a record of back pain as a symptom in a general practitioner’s note made on the day of the fall says little about whether there was an onset of a somatic symptom disorder with predominant pain shortly following the fall. Similarly observations in medical reports made months later[28] do not in any way tell against the panel’s ultimate conclusion concerning Ms Jussy’s somatic symptom disorder.
[28]Dr Brazenor’s first report was dated 6 August 2008, and Dr Thomas’s first report was dated 8 November 2010.
As the judge observed, the panel’s reasons must be read fairly, as a whole and in context, and should not be subject to overzealous judicial review.[29] With respect, Mailton’s submissions invited both the primary judge and this Court to engage in overzealous judicial review. It is equally to be remembered that the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.[30]
[29]Reasons [50].
[30]Wingfoot (2013) 252 CLR 480, 499 [47].
Finally, when one takes account of the function of the panel, the fact that overzealous judicial review is to be eschewed, and having concluded that there is no basis for finding that the panel failed to have regard to relevant considerations, it is plain that Mailton’s complaints about the panel’s reasons must be rejected. The reasons disclosed the panel’s path of reasoning: the panel rejected Ms Jussy’s claim of having suffered physical injury with continuing symptomatic disability because Ms Jussy’s actions depicted on the surveillance DVDs were not consistent with her presentation; and the panel accepted that she had suffered a somatic symptom disorder with predominant pain (a psychiatric injury) because, having taken into account all of the relevant matters (necessarily including Mailton’s attack on Ms Jussy’s credit, highlighted in its submissions to the panel) and conducted its own examinations, it believed Ms Jussy in relation to her complaints of ongoing pain commencing shortly after her fall at work and continuing thereafter.
While, as the judge observed, the panel could have said more in its reasons, as she also observed, those reasons disclosed the panel’s actual path of reasoning.
Conclusion
The application for leave to appeal must be refused.
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SCHEDULE OF PARTIES
| MAILTON HOLDINGS PTY LTD | Applicant |
| and | |
| BIMLA JUSSY | First respondent |
| DR DAVID FISH | Second respondent |
| DR JENNIFER HARMER | Third respondent |
| DR DIANE NEILL | Fourth respondent |
| DR SANDRA HACKER | Fifth Respondent |
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