Maio v Kotzman
[2007] VSC 502
•10 December 2007
Fcohen
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5667 of 2007
| GIUSEPPE MAIO | Plaintiff |
| v | |
| DR DAVID KOTZMAN and ORS | Defendants |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 28 November 2007 | |
DATE OF JUDGMENT: | 10 December 2007 | |
CASE MAY BE CITED AS: | Maio v Kotzman and Ors | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 502 | |
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ADMINISTRATIVE LAW - Accident Compensation –Workers’ compensation – Medical questions referred to medical panel – Judicial review – Application in nature of certiorari – Application in nature of mandamus - Whether medical panel failed to take a relevant consideration into account – Whether adequate reasons provided.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Pillay | Workforce Legal Lawyers |
| For the First, Second, Third, Fourth and Fifth Defendants | No appearance | Monahan and Rowell |
| For the Sixth Defendant | Mr M Fleming | Herbert, Geer & Rundle |
HER HONOUR:
The application
By an originating motion filed on 13 April 2007, the plaintiff seeks orders in the nature of certiorari quashing a 1 February 2007 decision of the first to fifth defendants (“the medical panel”) as to the answers to medical questions referred to them by the Magistrates’ Court at Melbourne. The plaintiff also seeks an order in the nature of mandamus remitting the medical questions to a differently constituted panel to be reconsidered in accordance with law.
The issues
The medical panel concluded that the plaintiff has a capacity for work in suitable employment in the building industry. Essentially, the plaintiff complains that the medical panel has failed to take into account expert opinions as to the effect of his psychiatric or mental state upon his capacity to work. He also complains that the medical panel’s reasons are inadequate.
The answers to the medical questions and the reasons must be studied in context in order to determine whether they show that the medical panel did ignore expert opinions which had been expressed from time to time as to the plaintiff’s capacity for work. For that reason, I will refer to them in the course of setting out the undisputed factual background to the medical panel’s decision.
The facts
On 28 July 1987, the plaintiff was working as a bricklayer employed by the sixth defendant (“Nick Baldi Constructions”). He injured his lower back when he stepped over the edge of a scaffold and fell a metre to the ground. He was treated by a general practitioner who prescribed medication. He had physiotherapy and chiropractic treatment. He was unable to continue bricklaying and left his job in mid-September 1987.
The plaintiff subsequently worked in the building industry, without doing bricklaying, between 1988 and 2004. In 1988, he first started work again as a self‑employed builder, using sub-contractors to do heavy work.
In 1990, he started seeing the general practitioner Dr Richard Weston. Dr Weston referred him to Dr Murray Ingpen, a rheumatologist whom he first saw in May of that year.
The plaintiff continued to consult Dr Ingpen and Dr Weston over the years for treatment for ongoing pain and, in the mid 1990s, he began taking reasonably high doses of Prednisolone.
The plaintiff gave up his building work in about mid 1995 because it was not financially viable. He also suffered an aggravation of his back condition that year. He made a claim for compensation under the Accident Compensation Act (“the Act”) on 10 May 1995.
He was examined by the psychiatrist, Dr Edward Cole, who provided a medico-legal report dated on 30 May 1996. Dr Cole noted that the plaintiff felt “down” and was tearful, as well as the fact that he was taking Prozac, Valium and Panadeine Forte for his pain. Dr Cole found him to be suffering from a chronic anxiety state and a moderate degree of reactive depression, stemming from his back injury and the limitations it imposed on him. He thought that the plaintiff had permanently lost mental powers “involving an inability to work in any position that might be open to him of in the order of thirty percent over and above his residual physical limitations.”
The plaintiff was also examined for medico-legal purposes by Professor Ivor Jones, another psychiatrist, on 26 August 1996. Professor Jones reported on 19 September 1996 that the plaintiff had displayed symptoms of anxiety of a mild to moderate degree, warranting a diagnosis of anxiety secondary to the complex of conditions arising from his back injury. Professor Jones thought that the plaintiff could return to work in a supervisory capacity, depending on his physical state.
Between about 1996 and 1999, the plaintiff was involved with a company, known as “Koala Cabins”, which had been set up to produce low cost housing in the Philippines. This venture was also a financial failure and caused him stress because he had invested time and money in it.
In about 1997, he suffered an apparently unrelated cardiac problem and was hospitalised.
The plaintiff’s 1995 compensation claim was accepted. He received weekly payments of compensation until the insurer terminated them from 13 June 1999. The grounds for termination were that he had received them for more than 104 weeks, he did not have a serious injury, he was not totally and permanently incapacitated and he had a current work capacity.
The written reasons for the insurer’s decision referred to the opinion of a general surgeon, Dr David Conroy, that the plaintiff was capable of “full time light work where bending, lifting, straining, strenuous exertion, or prolonged sitting or standing in the one position [was] not required” on 27 February 1997.
The insurer had also relied upon the opinion of a psychiatrist, Dr Cohen, who had examined the plaintiff on 3 March 1999. Dr Cohen had noted that, although the plaintiff had been suicidal two years earlier before becoming involved with Koala Cabins, he had not taken any anti-depressant medication since that time and was hopeful that the company would obtain large overseas orders. Dr Cohen diagnosed a partially incapacitating chronic anxiety state with depression, secondary to the plaintiff’s original physical injury. He assessed the plaintiff’s psychiatric impairment at 20% under the AMA Guides to the Evaluation of Permanent Impairment, 2nd edition.
In 1999, the plaintiff started work in the building industry on his own account again, supervising his son who did the physical work. Unfortunately, the prednisolone he had been taking lead to osteopenia, shown in 2000.
In December 2002, his general practitioner, Dr Weston, found him to be very depressed. Acupuncture failed to relieve that state.
In November 2003, the treating rheumatologist, Dr Ingpen, referred him to Mr Roy Carey, an orthopaedic surgeon with a special interest in low back pain, for an opinion in relation to his physical situation. Mr Carey was unable to assist and the plaintiff declined the offer of further investigations.
In June 2004 and again in about early December 2004, he experienced physical collapses which were described by counsel as further flarings of his back condition.
The plaintiff stopped worked in 2004.
On 10 December 2004, he made another claim for compensation, seeking an extension of the period during which he could receive weekly payments. This claim was rejected on the expressed basis of opinions from Dr Nathan Serry, a psychiatrist, and Mr Michael Troy, a general surgeon, who had each examined him on 22 December 2004.
Dr Serry had noted that the plaintiff was not on any antidepressants and had not formally undertaken pain management. He concluded that he was suffering from “a pain disorder secondary to a general medical condition and with psychological factors and a chronic adjustment disorder with anxiety and depression”. Dr Serry thought that he was fit for suitable duties from a psychiatric perspective and that any incapacity for work he had was physical, rather than psychiatric.
Mr Troy considered that the plaintiff could return to work, supervising his son in the building industry, when he had overcome his acute symptoms and was taking less medication. He also noted that the plaintiff’s concentration and ability to quote or measure up for jobs could be influenced by medication. Mr Troy recommended exercise to maintain fitness and his presenting weight.
On 7 March 2005, Dr Weston expressed the view to the insurer that a settlement of the plaintiff’s workers compensation issues could alleviate much of his psychological problem. He noted the plaintiff’s persistent attempts to work when, in Dr Weston’s view, he should have rested. Dr Weston reported that the plaintiff had reached the stage where he could no longer perform any work as a result of his physical condition.
On 31 May 2005, Mr John O’Brien, a surgeon, provided a medico-legal report to the plaintiff’s solicitor. He noted an exacerbation of the plaintiff’s symptoms in the 12 months before his examination on 11 May 2005. Mr O’Brien noted some “illness behaviour” but was certain that the plaintiff could not work as a bricklayer. He concluded that he would continue to suffer as a result of a chronic pain syndrome and that his presentation indicated that he was permanently incapacitated.
The plaintiff’s continuing and increasing depression led Dr Weston to refer him to Dr Geoffrey Hogan, a psychiatrist. In a 1 June 2005 letter of referral, Dr Weston stated that the plaintiff was quite severely depressed. Dr Hogan first saw him on 9 June 2005. He changed the plaintiff’s anti-depressant medication from Aropax to Dothep, with some resulting improvement in his sleep, but none in his depressive symptoms.
After having seen the plaintiff several times, Dr Hogan provided a report, dated 1 September 2005, to the Accident Compensation Conciliation Service. He expressed the opinion that the plaintiff had suffered from chronic depressive symptomatology since the 1987 injury. He diagnosed a chronic adjustment disorder with depressed mood which had been in exacerbation and assessed his psychiatric impairment at 20%.
Dr Hogan thought the plaintiff was partially incapacitated, but that his psychiatric impairment was secondary to his physical condition. He believed that his condition and its exacerbation were consequences of chronic pain syndrome and worsened physical incapacity, as well as of stresses related to financial and legal matters concerning his workers compensation claim.
Dr Hogan expressed the view that the plaintiff’s depressive symptoms as at the time of his first consultation would have then precluded him pursuing employment. He believed him still unfit for any employment on 1 September 2005, but he went on to say :
I would be hopeful of a diminution of depressive symptomatology with some relief of current stresses and with ongoing treatment. I do not anticipate that psychiatric symptomatology will be permanently disabling.
The notice of termination of weekly payments was subsequently referred to the Accident Compensation Conciliation Service which issued a Certificate of Genuine Dispute, dated 23 September 2005.
The Magistrates’ Court proceeding
On 6 April 2006, the plaintiff issued proceedings under the Act against Nick Baldi Constructions in the Magistrates’ Court at Melbourne.
In paragraph 4 of his statement of claim the plaintiff made these allegations as to the nature of his injury:
4The Plaintiff sustained injury out of and in the course of the employment in which he was engaged. In particular, the Plaintiff sustained injury on 28 July 1987. The Plaintiff’s continued employment with the defendant further aggravated and accelerated his injuries.
PARTICULARS OF THE INJURY
Spinal injury including lumbar disc lesions
Production, aggravation and acceleration of disc degeneration
Production, aggravation and acceleration of osteoporosis
Production, aggravation and acceleration of gastro intestinal injury including gastric ulcer
Production, aggravation and acceleration of hypertension and sleep disorder
Post traumatic stress disorder, anxiety and depression
In response to paragraph 4, Nick Baldi Constructions’ notice of defence filed on 25 May 2006 admitted that the plaintiff had sustained an injury to his lower back on 28 July 1987, but otherwise did not admit the allegations.
Dr Dush Shan examined the plaintiff on 29 June 2006 for the purposes of providing a medico-legal report to the solicitors acting for Nick Baldi Constructions in the Magistrates’ Court proceeding. He noted that the plaintiff was then taking Dothep, prescribed by Dr Hogan.
Dr Shan diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood, secondary to the aggravation, in about 2004, of the chronic pain related to his 1987 back injury. He concluded that the plaintiff was unfit for suitable employment when his “psychiatric injury [was] taken into conjunction with physical injury”. Dr Shan considered that the plaintiff’s then current incapacity was indefinite and gave a prognosis that the plaintiff might suffer from chronic depression on an indefinite basis.
In a letter dated 26 July 2006, to the plaintiff’s solicitors, the general practitioner, Dr Weston, reported that the plaintiff had become more depressed and angry between 2004 and 2006, believing that WorkCover had prevaricated and was not interested in his case. Dr Weston said that the plaintiff’s financial problems played on his mind. He reported an increase in the plaintiff’s dosage of the opiate, MS Contin.
Dr Weston told the solicitors that he had referred the plaintiff to another orthopaedic surgeon whom he had failed to see. He had also referred him to Dr Steven Hall, another rheumatologist, after Dr Ingpen’s retirement. Dr Weston said that he agreed with what he reported as Dr Hall’s view that the plaintiff was not and never would be employable.
The referral of the medical questions
The plaintiff requested that the medical questions be referred by the Magistrates’ Court to a medical panel for opinion under s 45(1)(b) of the Act.
He provided the medical panel with an undated Statement of Particulars Pursuant to Section 65(6A) of the Accident Compensation Act 1985. It set out the medical questions and stated that they related to “the injuries identified in paragraph 4 of the Plaintiff’s statement of claim”.
The Statement identified the factual issues between the plaintiff and Nick Baldi Constructions as follows :
C. Facts that are in dispute:
· Whether the Plaintiff has a current work capacity.
· Alternatively, whether the Plaintiff has no current work capacity.
· If the Plaintiff has no current work capacity, whether the Plaintiff’s incapacity for work is likely to continue indefinitely.
· Whether the injuries set out in paragraph 4 of the Plaintiff’s statement of claim materially contribute to his incapacity (if any).
· The Plaintiff’s degree of impairment when assessed in accordance with the AMA Guides (2nd edition).
The medical panel was provided with documents under s 65(6B) of the Act which included :
·the Magistrates’ Court complaint and statement of claim as well as the defence;
·the 12 May 1999 CGU notice in relation to the termination of weekly payments after 104 weeks;
·the 29 December 2004 CGU notice of rejection of the 10 December 2004 claim;
·written submissions from the plaintiff and Nick Baldi Constructions; and
·medical reports provided by each party.
Submissions to the medical panel
The plaintiff’s submissions accepted that the medical panel was an expert tribunal required to exercise clinical judgment. They noted and addressed an issue as to the significance of the plaintiff’s treatment with Prednisolone and its effects. (I note that that issue was not addressed in the application to the Court.)
The plaintiff’s submissions identified the issue for the medical panel in relation to the plaintiff’s residual physical and mental capacity for “suitable employment”. They argued that it was required to determine whether the plaintiff would be able to undertake “proper employment” or a “real job in the market place”. They submitted that there was no appropriate employment for the plaintiff in light of his age, lack of residual employment skills and his significant physical and psychiatric limitations.
Nick Baldi Constructions’ submissions argued that any incapacity for work attributable to the plaintiff’s osteopenia was caused by his Prednisolone treatment and should not be found to be causally connected to the 1987 incident.
The plaintiff was examined by the members of the medical panel in early December 2006.
The answers to the medical questions
The medical panel’s certificate of opinion dated 1 February 2007 answered the medical questions in the following way:
Q1:What is the nature of the Plaintiff’s medical condition relevant to the injuries alleged in paragraph 4 of the Plaintiff’s statement of claim?
A1:In the Panel’s opinion the Plaintiff is suffering from an aggravation of L5-S1 degenerative disc disease, an aggravation of osteopenia, without evidence of fracture, gastro‑oesophageal reflux disorder, haemorrhoids and from a chronic adjustment disorder with anxiety and depressive features and chronic pain syndrome, relevant to the alleged disc degeneration, osteoporosis, gastrointestinal and psychiatric injury. The Panel is also of the opinion that the Plaintiff is not suffering from any medical condition relevant to the alleged hypertension or sleep disorder.
Q2:Does the Plaintiff’s incapacity for work result from, or is it materially contributed to by the claimed injuries?
A2:The Panel is of the opinion that the Plaintiff’s incapacity for work is still materially contributed to by the alleged back injury.
Q3:If yes to Q3, what is the degree of impairment of the Plaintiff when assessed in accordance with the AMA Guides (2nd edition)?
A3:In the Panel’s opinion, the Plaintiff has a whole person impairment of 20% when assessed in accordance with the AMA Guides, pursuant to Section 91 of the Act.
Q4:Does the Plaintiff have no current work capacity? If so, is this situation likely to continue indefinitely?
A4:The Panel is of the opinion that the Plaintiff has a current work capacity.
The reasons
On 14 February 2007 the medical panel gave written reasons for its opinion (“the reasons”).
The reasons state that the medical panel formed its opinion by reference to documents and information referred to in “Enclosure A” which is an attachment to the reasons. Enclosure A lists medical reports, including all those which the plaintiff now contends the medical panel did not take into account. The medical panel states that it also relied upon the history provided by the plaintiff and its own examination findings.
The reasons record the plaintiff’s history. They also describe his psychiatric symptoms and the medical panel’s conclusions as follows :
Psychiatric symptoms include: feeling like he is unable to participate in activities with his children or undertake his former sporting interests of golf, hunting or shooting. He has lost a number of friendships and in effect lost his life. He has had to deal with a disability and sees nothing in the future, and there is no current quality of life. His mood is low and he cries most days depending on his level of pain and the activity he has undertaken. He reports some suicidal ideation, but no intent due to his concern for the children. There is irritability. He feels his life is a mess, there is financial stress and this has put strain on the family and elder children and his marriage. The worker indicated his weight is increasing and his libido has been negligible for the last ten years. …
The Panel concluded that the worker is suffering from an aggravation of L5-S1 degenerative disc disease, an aggravation of osteopenia, without evidence of compression fractures, gastro‑oesophageal reflux disorder and haemorrhoids, relevant to the alleged disc degeneration, osteoporosis and gastrointestinal injuries. Based on the onset of hypertension and symptoms of sleep disorder prior to the worker’s weight gain in 2004, the Panel concluded that the worker is not suffering from any medical condition relevant to any alleged hypertension or sleep disorder.
The Panel conducted a psychiatric examination and noted that the worker was distressed and tearful on occasions and communicated a depressed affect and there was little reactivity. Intelligence appeared normal. No disorder in the form or content of thought was identified but there was a nihilistic quality identified throughout, with an established patient role.
The Panel concluded that the worker is suffering from a chronic adjustment disorder with anxiety and depressive features and chronic pain syndrome, which has arisen as a consequence of his physical injuries.
The Panel concluded that the nature of the worker’s condition is such that he is not capable of performing his pre‑injury duties as a bricklayer and that this incapacity for work is still materially contributed to by the alleged back injury.
Taking into account all aspects of the definition of “suitable employment” in the Accident Compensation Act 1985 and in particular, the mild extent his back condition (sic), his other medical conditions, his skills and previous work experience as a bricklayer, supervisor and employer of up to 25 sub‑contractors, the Panel concluded that there is work for which the worker is currently suited and which he could perform on a consistent basis. The Panel therefore concluded that the worker has a current work capacity.
The Panel concluded, (based on its knowledge of the existence of suitable employment options and its examination of the worker) that employment as a supervisor in the building industry, would constitute suitable employment for the worker.
The Panel assessed the level of impairment of the worker using the methods of the AMA Guides to the Evaluation of Permanent Impairment (second edition) as requested by the Court.
The reasons state that the medical panel calculated the whole person impairment attributable to the plaintiff’s physical injury at 20%. It also concluded that he had a psychiatric impairment of 20%, secondary to his physical injuries and therefore excluded from the impairment assessment in accordance with s 91(2) of the Act.
Grounds for application for review
The originating motion states that the medical panel fell into jurisdictional error by failing to take into account the following considerations which it was bound in law to consider:
· the physical limitations that the plaintiff has as a result of his injury;
· the psychological limitations the plaintiff has as a result of his injury;
· the report of Dr Dush Shan dated 29 June 2006, the reports of Dr Weston dated 7 March 2005, 29 May 2005 and 26 July 2006, the report of Dr Geoffrey Hogan dated 1 September 2005, the report of Dr Phillip Cohen dated 15 March 1999, the report of Mr John O’Brien dated 31 May 2005, forwarded with the referral in accordance with s 65(6B);
· what employment would constitute suitable employment given the plaintiff’s physical and psychological limitations;
· what employment would constitute suitable employment for the plaintiff taking into account all the other factors listed in the definition in section 5 of the Act;
· whether given the plaintiff’s physical and psychological limitations he has a real as opposed to the theoretical capacity for employment;
· whether the plaintiff could engage in suitable employment on a consistent basis given the physical and psychological consequences of his injuries.
The originating motion goes on to state that the medical panel committed an error of law on the face of the record by providing inadequate reasons for its opinions. The particulars of that allegation are as follows:
PARTICULARS
By failing to refer at all to:
·why the plaintiff was not presently capable of performing his pre‑injury duties;
·whether the Panel accepted any of the plaintiff’s reported symptoms and limitations;
·whether the Panel accepted any of the plaintiff’s reported symptoms and limitations were due to the injuries found in response to Question 1;
·what physical limitations the Panel found the plaintiff has as a result of his injuries;
·what psychological limitations the Panel found the plaintiff has as a result of his injuries;
·what the employment identified as suitable employment for the plaintiff, namely as a supervisor in the building industry, actually entailed;
·how a 20% psychiatric impairment would affect the plaintiff’s capacity to work as a supervisor in the building industry;
·whether given the plaintiff’s physical and psychological limitations and what work as a supervisor in the building industry actually entailed he could perform such work on a consistent basis;
the Medical Panel failed to provide Reasons sufficient to show that the Panel had discharged its function lawfully, and failed to show how the Panel arrived at its certified Opinion.
Submissions
The plaintiff contends that the medical panel failed to take into account the effects upon his capacity for work of both his physical condition and what counsel describes as his mental condition, each arising from the 1987 injury. He argues that the materials before the medical panel made it clear that there was an issue as to the effect of his psychiatric impairment upon his capacity to work. He points to the relevant conclusions of experts at various points in time, citing in particular what he maintains are the contrasting opinions of Dr Serry, on the one hand, and the treating practitioners and Dr Shan, on the other.
Counsel for the plaintiff submits that the medical panel’s failure to mention the conflicting views and to state its reasons for accepting or rejecting them, as well as what he contends is its only partial answer to medical question 2, indicate that the medical panel has failed to give the requisite “real, proper and genuine consideration”[1] to the issue of the effect of the plaintiff’s psychiatric impairment upon his capacity to work. He also argues that the Court should reach a similar conclusion by reason of the medical panel’s failure to address the issue of the effects of the plaintiff’s medication in terms of his work capacity.
[1]Referring to Deloitte Touche v ASC 136 ALR 453 at 468 per Lindgren J.
Counsel for the plaintiff contends that, because the medical panel’s answer to medical question 2 only referred to the “alleged back injury”, it was only describing the effect of the physical injury, as opposed to the conditions particularised under paragraph 4 of the Magistrates’ Court statement of claim which included the plaintiff’s secondary psychiatric impairment. Counsel maintains that the medical panel had failed to mention the plaintiff’s psychiatric injury in that answer, notwithstanding its acceptance of the fact that the plaintiff was suffering from it as a consequence of his physical condition. It has failed to answer the question asked, as required by authority.[2]
[2]See: VWA v Del Borgo (2004) 9 VR 470.
Counsel for Nick Baldi Constructions noted at the outset that, in the context of the plaintiff’s claim, the issue for the medical panel under s 93CC of the Act was that addressed in medical question 4: as to whether he lacked any current work capacity and, if so, whether his incapacity for work was likely to continue indefinitely. Counsel contends that the medical panel clearly answered that question, having taken into account the psychiatric impairment which it had concluded was a consequence of physical impairment caused by the 1987 back injury.
Counsel for Nick Baldi Constructions disputes the contention that medical question 2 was not answered. He argues that both the medical panel’s answers and the reasons should be considered in the context of the claim made in relation to the effects of the initial back injury and the litigation between the parties.[3] The members of the medical panel should therefore be regarded by the Court as having indeed answered the question as to the effect of the “claimed injuries” by their reference to the “alleged back injury” which, in all the circumstances (including the conclusions as to the plaintiff’s psychiatric state), should be regarded as a reference to any resulting physical and psychiatric or psychological conditions.
[3]Citing George v Nisselle and Ors [2005] VSC 177 [56] per Gillard J; Clarke v National Mutual Life Insurance and ors [2007] VSC 341 at [43] per Forrest J.
Counsel for the plaintiff maintains that the medical panel failed to give the requisite consideration to the issue of the plaintiff’s mental condition. He cites its failure to mention specifically those reports of Dr Cohen, Dr Weston, Dr Shan and Dr Hogan which he contends expressed the view that the plaintiff was incapacitated for work by reason of his psychological or psychiatric impairment and what he submits was the conflicting view of Dr Serry.
The plaintiff cites Pyle v Nisselle and Ors[4] in which Smith J held that a medical panel had erred by failing to specifically address in its reasons a conflict between the views of medical practitioners as to the possibility of a thrombosis being caused by a sudden increase in blood pressure.
[4][2000] VSC 398.
Counsel for Nick Baldi Constructions responds that the Court should not be satisfied that the medical panel did ignore those medical reports, as it stated that it reached its conclusions on the bases of its examination findings, the history provided to it by the plaintiff and the materials listed in Enclosure A which included the reports it was said to have ignored.
Counsel for Nick Baldi Constructions notes that the medical panel of experts (which included a psychiatrist) was entitled to accept or reject the expert evidence provided to it. He points out that it had been appointed in the context of a conflict of views as to the relevant issue of the plaintiff’s capacity for work. Further, he argues, the authorities support the contention that it could leave unexpressed its rejection of expert views if that rejection could be reasonably inferred from its acceptance of a contrary view.[5]
[5]Citing Brambles Industries Limited v Nisselle [2005] VSC 82 at [22] per Bongiorno J.
Counsel also submits that the mere fact that the medical panel may not have specifically referred to part of a competing body of evidence in the course of its fact finding task does not result in the conclusion that it had no regard to the relevant consideration. He cites a number of authorities in this regard including Paul v Minister for Immigration and Multicultural Affairs.[6] He goes on to cite Barwick CJ’s caution in Kentucky Fried Chicken Pty Ltd v Gantidis[7] that, although it may be indicative, a tribunal’s failure in the expression of reasons is a “very unsure guide” as to whether or not a tribunal has failed to take into account relevant matters when making an order within its competence. He contends that the Court must consider the significance of an absence of a reference in the reasons in the context in which the decision was made.[8] That context is the background of the case, the documentation provided to the medical panel and the issues to be determined by it.[9]
[6]2001 FCA 1196 [78]-[79] per Allsop J (Heerey J agreeing).
[7](1979) 140 CLR 675.
[8](1979) 140 CLR 675 at 680.
[9]See footnote 3.
Counsel for Nick Baldi Constructions submits that, in any case, the reasons indicate that the medical panel has indeed taken into account the plaintiff’s psychiatric disorder. The reasons state the medical panel’s conclusions that the plaintiff suffered from a chronic adjustment disorder with anxiety and depressive features and chronic pain syndrome, secondary to his physical injuries, and record its assessment of his degree of impairment in accordance with the AMA Guides at 20%. They then proceed to discuss his capacity for “suitable work” as a supervisor in the building industry. Counsel argues that the Court should consider it highly improbable that the medical panel would have ignored the content of the immediately preceding paragraph of the reasons when reaching its conclusion as to capacity for work.
Counsel submits that the plaintiff is attempting to challenge the merits of the decision in the guise of an application for judicial review.
Counsel for the plaintiff also makes a complaint as to the adequacy of the reasons. He argues that they do not sufficiently enlighten the plaintiff as to how the medical panel has dealt with the issue of the effect of his mental capacity for employment, given what counsel contends is a clear difference in the opinions of the reporting medical practitioners in this regard. He argues that the reasons do not allow the plaintiff to see whether the medical panel has made an error of law by ignoring the issue. Counsel refers to the guidance offered by the Court of Appeal in Masters v McCubbery[10] and by Ashley J in Kamener v Griffin[11], as well as the decision of Smith J in Pyle v Nisselle.[12]
[10][1996] 1 VR 635 at 651 per Winneke P, 653 per Ormiston JA and 661 per Callaway JA.
[11](2005) 12 VR 192 at 201-2.
[12]See: [59] above.
Ashley J in Kamener referred to the statement of binding principle in Master v McCubbery which, his Honour noted, accorded with Western Australian authorities to which he had been referred.[13] Because Ashley J had been referred to the West Australian Full Court decision in Re Croser; Ex parte Rutherford[14], counsel for the plaintiff argues that the Court should follow the West Australian decision by concluding that the medical panel should have analysed the differences between the medical opinions expressed. [15]
[13](2005) 12 VR 192 at 201.
[14][2003] WASCA 8.
[15][2004] WASCA 8 at [38] per Rolfe AJ.
Counsel for the plaintiff ultimately submits that the plaintiff does not know from the reasons whether the medical panel has ascribed to him a psychiatric incapacity and he argues that, as the losing party, the plaintiff is entitled to know how it came to its decision. The reasons fail to explain why the opinion of the treating psychiatrist is dismissed.
Counsel for the plaintiff also argues that the reasons are also deficient because they fail to describe what is meant by “suitable employment”, giving no details as to what the role of a supervisor in the building industry might entail. He points to the medical opinions to the effect he argues that the plaintiff could not do the work he had been doing at the time he stopped work in 2004.
Counsel for Nick Baldi Constructions argues that the reasons are not defective. Fairly read in their proper context, they show that the medical panel did conclude that the plaintiff was not incapacitated for work as a result of his physical or secondary psychiatric or mental condition. Counsel also submits that the decision in Re Croser represented a “high water mark” in the West Australian authorities to which Ashley J had been referred in Kamener. Counsel states that the thrust of all the authorities is that a losing party must be able to understand how it is that he or she lost and that the reasons must be sufficient to enable a reviewing court to perform its task. He argues that the Court should, like Ashley J, consider itself bound by the decision in Masters v McCubbery and, applying the principles stated there, should conclude that sufficient reasons have been supplied.
Conclusions
Each of the medical reports said to have been ignored is listed in Enclosure A, the document to which the medical panel refers in the reasons. The medical panel specifically states that it formed its opinion by reference to those documents and other matters. I am not persuaded by any of the plaintiff’s arguments to doubt that it did so.
The plaintiff has failed to persuade me that the medical panel failed to take into account the relevant considerations of his psychiatric or mental condition.
In so far as counsel for the plaintiff relies upon the medical panel’s answer to medical question 2 and its reference to the “alleged back injury”, I am not persuaded that the alleged failure is demonstrated by the choice of words. I agree with counsel for Nick Baldi Constructions’ submission to the effect that it would have been apparent from all the material before the medical panel that the subject of the plaintiff’s claim was the injury to his back and the effect of those conditions which were sequelae of that injury, including psychiatric impairment. The issue for the medical panel was as to the effect of those conditions upon the plaintiff’s capacity for work. In my opinion, the answer to medical question 2 may reasonably be interpreted as referring to the injury to the plaintiff’s back and its consequences to his physical condition and his mental condition.
Nor am I persuaded that the reasons indicate that the medical panel failed to take into account the matter of the plaintiff’s mental state and the relevant expert opinions. Indeed, in my view, it is clear from the content and structure of the reasons that the medical panel considered the issue and the different conclusions expressed in the material provided to it. It may reasonably be inferred that, to the extent that there is any conflict between the opinions of the medical practitioners who examined the plaintiff and assessed his work capacity at different times, the medical panel has rejected any opinion which differs from its own as to the effect of his psychiatric condition upon the plaintiff’s capacity for work as at the date of the answers to the medical questions.
The medical panel’s failure to specifically address inconsistencies in the evidence does not warrant the quashing of its decision.[16] The medical panel was appointed to answer the medical questions which required it to consider the factual issue of the plaintiff’s capacity for work as at the time of its answers. The context was one in which, at different times, other experts had examined the plaintiff and had reached different conclusions about the effect of his psychiatric and psychological condition and its likely duration. Those reporting experts had taken into account the plaintiff’s then current situation, including such matters as the effects of stressors which included his financial situation and the pressures associated with his compensation claim. The reasons indicate to me that the medical panel generally accepted the views of reporting experts as to the nature of the secondary psychiatric or psychological conditions afflicting the plaintiff as consequences of his back injury. I am also persuaded that it then went on to address the ultimate factual issue as to the effect of those conditions and his physical condition upon the plaintiff’s capacity for work as at the date of the medical panel’s examination.
[16]See: Paul v Minister for Immigration and Multicultural Affairs 2001 FCA 1196 [78]-[79] per Allsop J (Heerey J agreeing).
Bearing in mind that each decision and set of reasons must be analysed in its own context, I note my opinion that this was not a case such as that which confronted the Court in Pyle v Nisselle, in which a medical panel had to choose between competing expert opinions about an underlying issue.
The medical panel concluded that the plaintiff had the capacity for “suitable employment” within the meaning of s 5 of the Act. I am not persuaded that the reasons are deficient in their description of what is meant by “supervisory work in the building industry” or at all. It is evident from the numerous histories provided by the plaintiff, described in the medical reports, that he had been doing supervisory work in the building industry, as opposed to the heavy work of bricklaying, between 1988 and 2004. In my view, it is clear that the reasons refer to the plaintiff’s capacity to do work of the type which he had done during that time.
More generally, I consider that the reasons meet the criteria described by the members of the Court of Appeal in the cited passages from Masters v McCubbery. They are “in sufficient detail to show the court and the worker that the question[s] referred to the panel [have] been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience”[17]. I am not persuaded by the argument that this is a situation in which the losing party could not tell whether the medical panel had erred because of some inadequacy of the reasons.
[17][1996] 1 VR 636 at 661 per Callaway JA.
The application should be refused.
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