Mattock v Handrinos
[2016] VSC 798
•21 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 01679
| KIM LEEANNE MATTOCK | Plaintiff |
| v | |
| DR DENNIS HANDRINOS | First Defendant |
| DR JENNY DOWNES-BRYDON | Second Defendant |
| DR MARIE FELETAR | Third Defendant |
| MR KEITH ELSNER | Fourth Defendant |
| BRIMBANK CITY COUNCIL | Fifth Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 November 2016 |
DATE OF JUDGMENT: | 21 December 2016 |
CASE MAY BE CITED AS: | Mattock v Handrinos & ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 798 |
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ADMINISTRATIVE LAW – Judicial review – Order 56 Supreme Court (General Civil Procedure) Rules 2015 – Accident Compensation Act 1985 - Workplace Injury Rehabilitation and Compensation Act 2013 – Review of Medical Panel Opinion – Whether or not Panel failed to take into account a relevant consideration – Whether or not reasons inadequate – Whether or not the plaintiff was afforded procedural fairness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Uren QC Ms S.C. Bailey | Shine Lawyers |
| For the Fifth Defendant | Mr M. Fleming QC Ms F. Spencer | Lander & Rogers |
| No appearance for the First – Fourth Defendants. | ||
HIS HONOUR:
On 9 November 2010 the plaintiff, Kim Leeanne Mattock, lodged a claim for weekly payments of compensation and medical and like expenses pursuant to the Accident Compensation Act 1985 (‘ACA’). She claimed to have been injured on 29 October 2010 whilst in the course of her employment with the fifth defendant, Brimbank City Council (‘employer’). The claim was accepted.
In a notice dated 6 May 2015, the employer’s claims agent purported to terminate the plaintiff’s entitlement to weekly payments and medical (and like) expenses, effective from 6 June 2015. The claims agent asserted, inter alia, that the plaintiff was not incapacitated for work; if she was incapacitated, that incapacity was not materially contributed to by an injury arising out of or in the course of her employment; that she no longer required any medical treatment for her injury; and, insofar as she did claim for medical treatment, it was not for a compensable injury under the ACA.
In the same notice, the claims agent purported to terminate the plaintiff’s entitlement to weekly payments on the basis that weekly payments had been paid to the plaintiff for 130 weeks, and that the plaintiff either had a current work capacity, or alternatively if she had no such capacity that situation was not likely to continue indefinitely.
Having received the notice, the plaintiff lodged a request for conciliation. The WorkCover Conciliation Officer referred four questions to a Medical Panel for Opinion pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’). Accompanying the referred medical questions was a statement providing information as required by s 304 of the WIRCA, together with a bundle of medical reports.
A Medical Panel comprising the first to fourth defendants (‘Panel’) was convened to provide its opinion on the four referred questions. The questions and their answers were:
Question 1:What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed lower back injury?
Answer:In the Panel’s opinion the worker has constitutional degenerative changes of the lumbosacral spine with referred symptoms but without radiculopathy and an adjustment disorder with mixed anxiety and depressed mood.
Question 2:What is the extent to which any medical condition of the worker results from or is materially contributed to by the claimed lower back injury?
Answer:In the Panel’s opinion the worker’s adjustment disorder with mixed anxiety and depressed mood results from and is materially contributed to by the claimed lower back injury.
Question 3:What is the extent to which the worker’s incapacity for work results from or is materially contributed to by the claimed lower back injury?
Answer:In the Panel’s opinion the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment or in suitable employment and any incapacity for work does not result from and is not materially contributed to by the claimed injury.
Question 4:Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?
Answer:In the Panel’s opinion the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment or in suitable employment and any incapacity for work does not result from and is not materially contributed to by the claimed injury.
On 6 March 2016, these answers were provided by the Panel in a Certificate of Opinion. Also provided were written Reasons for Opinion. The effect of the Opinion is that it must be adopted and applied by any court, body or person pursuant to s 313(4) of WIRCA. The plaintiff’s rights are affected by the Opinion.
This proceeding
By originating motion, the plaintiff seeks an order in the nature of certiorari quashing the Opinion and an order in the nature of mandamus remitting the referred medical questions to a differently constituted panel. The fifth defendant appears as contradictor. The Medical Panel defendants do not appear and make no submissions. They have advised the Court that they will submit to ‘such orders as might be made’.
The plaintiff impugns the answers which constitute the Opinion and contends the Panel fell into jurisdictional error by:
(a) Failing to take into account a relevant consideration, ‘namely whether the plaintiff suffered from a functional overlay consequent upon her work-related injury’;
(b) Failing to provide adequate reasons; and
(c) Denying the plaintiff natural justice by concluding the plaintiff was suffering from ‘referred symptoms’ without affording the plaintiff an opportunity to address the panel on this issue.
Functional overlay
The concept of ‘functional overlay’, as it is said to have impacted the plaintiff, is central to the plaintiff’s contentions. It is not now a fashionable term, but for many years has been used by doctors to describe a psychogenic reaction to a physical injury. I propose to summarise very briefly the effect of the relevant medical evidence that was before the Panel. I note that all doctors proceeded on the basis that the plaintiff’s lower back had been symptomatic before the October 2010 incident, but that that incident had in fact caused a separate injury to her lower back.
Insurer/Employer’s doctors
A. Mr Battlay
Report: 13 January 2011
The plaintiff had symptoms of an unresolved back strain without evidence of neurological complication. ‘There is some evidence of functional overlay…I cannot state dogmatically that employment is still a cause.’
11 July 2011
She complained of continuous pain at L5 level and this spreads to each flank for 10 cm. An MRI scan report described degenerative changes at L4/5 and L5/S1. ‘I cannot account for her level of disability based on the clinical findings of her examination. I think that there is exaggeration of her level of disability whether unconscious or not’.
B. Professor Vernon Marshall
Report: 3 February 2012
The plaintiff suffers from a chronic persistent low back pain without evidence of radiculopathy clinically or on imaging. Her symptoms were greater than would be expected from the imaging. ‘I believe her current symptoms continue to be affected significantly by non-organic factors’.
C. Dr Gary Davison
Report: 10 August 2012
The incident likely caused an aggravation of pre-existing injury at L4-5. The pain radiates towards the left buttock with burning stabbing pain which extends down…to the (left) foot. The precise cause of the plaintiff’s symptoms could not be determined on clinical grounds but he suspected intervertebral disc bulges at L4-5 were likely to be clinically significant.
D. Mr Jonathan Hooper
Report: 26 November 2013
(The plaintiff) has chronic low back pain precipitated by a work-related incident… Her inability to work is due to her chronic pain problem and her emotional response to her pain problem… Her presentation and her symptoms are not in keeping with the pathology that is demonstrated. ‘I think her problems are due to an emotional response to her back ache problem.’ ‘I do think there is a significant emotional response in her presentation’.
16 December 2013
She has evidence of degenerative disc disease aggravated and accelerated by the 2010 incident. There is a significant emotional response to her back pain that is magnifying her symptoms.
E. Dr Michael Troy
Report: 4 February 2015
Her symptoms relate to degenerative discs and facet joints at the lower lumber spine.
6 March 2015
Her condition is not now work-related.
F. Worker’s doctors – Dr Kenneth Brearley
Report: 18 June 2015
She has constant pain in the lower back mainly to the left side with pain radiated down the left leg to the toes. She suffered from mechanical back pain secondary to disogenic disease at L4/5 and L5/S1 levels including annular fissures and disc bulging. She has pain in the left leg from nerve root irritation but there is no clinical evidence of radiculopathy. The injury to her back was caused by the incident at work on 29 October 2010. She does suffer from significant anxiety and depression resulting from her pain and inability to work.
G. Mr Patrick Lo, Neurosurgeon
Report: 24 September 2015
A repeat MRI scan on 7 September revealed ‘an increase in the large L4/5 disc prolapse resulting in nerve compression bilaterally. She was offered an L4/5 decompressive laminectomy, which she has declined so far. She had altered sensation in the L5 dermatome bilaterally but more prominently to the left. Her condition has worsened with increasing lower back and leg symptoms. Her prognosis is poor ‘both in terms of pain and neurological function’.
6 October 2015
Kim Mattock has suffered a permanent back injury and owing to neurological findings as well as radiological evidence of a progression of the disc prolapse, is unlikely ever to return to the workforce’.
Dr David Middleton
Report: 1 October 2015
Ms Mattock has a significant neuropathic component to her pain….
Whilst the above are not summarised in any detail and are not, in fact, all the reports that were placed before the Panel, in my view the passages quoted provide a fair reflection of how the parties approached the medical panel hearing. The worker’s doctors concluded that the plaintiff’s symptoms were organically generated and either aggravated by or caused by the accident in October 2010. The employer’s/insurers’ doctors contended, by and large, that the plaintiff’s symptoms could not be fully explained by the underlying pathology, and that the discrepancy was due to ‘functional overlay’, ‘non-organic factors’, ‘emotional response’, or similar. By March 2015, through Mr Troy, the employer contended any work-related aspect of the plaintiff’s current symptoms had resolved and her condition was, by then, not work-related.
The referral
The Conciliation Officer made the referral to a the Panel on 30 December 2015. The referral set out the medical questions that I have reproduced at paragraph [5] of these reasons. The referral came in a five page document. I shall set out the relevant content:
4. INJURIES INCLUDING DATE OF INJURY:
Ms Mattock was employed by Brimbank City Council as a part time Home Care Employee. On 29 October 2010, Ms Mattock injured her lower back when ‘at rear of vehicle when door hit back of leg turned quickly and felt pain immediately in back’. She completed a WorkCover Worker’s Claim Form on 09 November 2010 and the claim was accepted.
5. ISSUES IN DISPUTE AND REASON FOR REFERRAL
By way of a notice dated 06 May 2015 the Authorised Agent – Gallagher Bassett Services notified Ms Mattock that her weekly payments and medical and like expenses would be terminated from 06 June 2015 as:
· You are not incapacitated for work
· Your incapacity for work is not materially contributed to by an injury arising out of or in the course of employment
· Your incapacity for work is not materially contributed to by an injury which entitles you to compensation
· You no longer require any medical treatment for your injury
· The medical and like expenses you are claiming are not reasonable and/or necessary
· The medical and like services you are claiming are not for an injury which entitles you to compensation under the Act.
In the same notice, the Authorised Agent – Gallagher Bassett Services also determined that from 08 August 2015 you were no longer entitled to weekly payments because:
· Weekly payments have been paid or payable to you for a total of 130 weeks (whether consecutive or not), and:
o You have a current work capacity
o Alternatively, you have no current work capacity but it is not likely to continue indefinitely.
Ms Mattock disputes the decision and assertions. The parties agree that after the Medical Panel has provided its opinion, the dispute will resolved.
6. AGREED FACTS RELEVANT TO THE MEDICAL QUESTIONS
I am satisfied that the following facts are agreed:
· Ms Mattock is a 50 year old part time Home Care Worker who at the time her injury was employed by the Brimbank City Council;
· On 29 October 2010 she suffered an injury to her lower back;
· On 09 November 2010 she lodged a claim for worker’s compensation;
· The claim was accepted;
· Subsequent to the physical injury Ms Mattock suffered from a secondary psychological condition which was accepted;
· Entitlements to weekly payments were terminated by the Authorised Agent – Gallagher Bassett Services on 07 June 2014; and
· The parties agree the current dispute is only in relation to the physical – lower back injury. (My emphasis)
FACTS IN DISPUTE RELEVANT TO THE MEDICAL QUESTIONS
I am satisfied that there are no facts in dispute.
The Panel took a history from the plaintiff, conducted its own physical examination, reviewed the available imaging[1] and the references to past imaging reports in the ‘reference material’[2], and concluded that Ms Mattock was suffering from ‘constitutional degenerative changes in the lumbosacral spine but without radiculopathy.’ The Panel concluded that the incident of 29 October 2010 resulted in a temporary exacerbation of symptoms from underlying degenerative change, which exacerbation has resolved. The Panel, which included a psychiatrist member, also concluded that Ms Mattock was suffering from an adjustment disorder with mixed anxiety and depressed mood, which disorder results from and remains materially contributed to by the lower back injury of October 2010.
[1]MRI Lumbar Spine 7 September 2015.
[2]CT scan November 2006, MRI Lumbar Spine 4 May 2011 and MRI Lumbar Spine 11 January 2012.
The parties’ contentions
It is against this background that the plaintiff makes the complaints I have set out in paragraph [8] of these reasons. In substance, the plaintiff maintains that the Panel fell into jurisdictional error by failing to consider whether the plaintiff suffered from a functional overlay consequent upon her organic injury of October 2010. The plaintiff contended in argument that the plaintiff’s case before the Panel was always about functional overlay and its impact on the 2010 organic injury. It was submitted that the Panel simply failed to consider the impact of psychogenic factors on the plaintiff’s symptoms in its answers to the questions asked of it, or in the reasons provided to those answers. The plaintiff submitted that the opinions of the defendant’s doctors squarely raised the functional overlay issue. As the Panel did not address this issue it thus failed to take into account a relevant consideration. The fifth defendant contended that the assertion that the plaintiff’s case was always about functional overlay is misconceived – the plaintiff’s case was at all times about the organic injury, and the Panel simply and unexceptionally resolved this issue adversely to the plaintiff.
The plaintiff’s inadequate reasons contention is related to this primary argument. It is contended that by failing to address the issue of whether the plaintiff was suffering from psychogenic pain or functional overlay consequent upon a work-related injury, the Panel has failed to address a relevant consideration or issue. It is impossible from the reasons to understand whether the Panel has dealt adequately or at all with the question of functional overlay. The fifth defendant contends that the reasons adequately dealt with the issues the Panel was asked to determine, and that a psychogenic component to the plaintiff’s injuries was not one of those issues.
The ‘denial of natural justice’ contention is a different argument. The plaintiff maintains that the finding that Ms Mattock’s pain is a referred pain from her constitutional degenerative condition was not a diagnosis made by any practitioner whose reports had been provided to the Panel, nor was it any part of the employer or employee’s case. The Panel’s determination that Ms Mattock was suffering from this kind of referred pain came ‘out of the blue’ and thus the plaintiff had no opportunity to address this finding.
Legal Principles
The Panel
A Medical Panel is an expert non-legal tribunal. Its members are medical practitioners, including in this instance a psychiatrist. The questions in this case were referred to the Panel by a conciliator[3] and the plaintiff was examined by the Panel.[4] The Panel is not bound by the rules of evidence and may inform itself in any manner it sees fit.[5] This includes acting upon its own expertise and examinations. The function of the Panel is to provide its Opinion and, when provided, the Opinion amounts to a conclusive answer to the referred questions.[6]
[3]Pursuant to WIRCA s 522 (see also WIRCA ss 521, 274).
[4]WIRCA, s 308.
[5]WIRCA, s 303.
[6]WIRCA, s 313.
Considerations
An administrative tribunal errs if it identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material. If the tribunal’s purported exercise of power is thereby affected, it will have exceeded its authority and the error of law will amount to a jurisdictional error.[7] The identified error must have affected the tribunal’s exercise or purported exercise of power that the decision may have been differed if the error did not occur.[8]
[7]Minister for Multicultural Affairs v Yussuf (2001) CLR 323; Craig v South Australian (1995) 185 CLR 163, 179.
[8]Australian Broadcasting Tribunal v Bond 170 CLR 321; Craig v South Australian, ibid 163, 179.
Procedural fairness
The Medical Panel is obliged to observe procedural fairness in relation to referred questions. A failure to sufficiently accord an affected party procedural fairness or natural justice contaminates the Medical Panel Opinion with illegality such that it is liable to be quashed upon judicial review. A Medical Panel is obliged to accord the protection of the ‘hearing rule’ of procedural fairness. The hearing rule requires a decision maker to advise an affected party in advance of an adverse conclusion that ‘would not obviously be open on the known material’[9] or which could not ‘reasonably be expected’[10]. The affected party must be given an opportunity to make submissions about the facts which lead to that conclusion.[11]
[9]Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576, 590-591.
[10]Pancharatnam v Minister for Immigration, Local Government and Ethnic Affairs (1991) 26 ALD 217, 222-223.
[11]Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248; Venture Campbellfield v Kemal Isitman & Ors [2016] VSC 665.
The Panel’s reasons
The Panel is under a statutory obligation to provide reasons for its Opinion.[12] The statement of reasons must explain the actual path of reasoning by which the Panel arrived at its Opinion on the medical question referred to it. This path must be explained in sufficient detail to enable a court to see whether the Opinion does or does not involve any error of law.[13]
[12]WIRCA s 313(2).
[13]Wingfoot Australia Partners Ltd v Kocak (2013) 225 CLR 480; (2013) 303 ALR 64, 79 [55].
The Panel is under no obligation to explain why it did not reach an opinion, even if the opinion it did reach is different to that offered by others.[14] This is because in forming an Opinion on a medical question referred to it the function of the Panel is neither arbitral nor adjudicative. Although a medical panel may choose to place weight on a medical opinion provided to it, ultimately its function is ‘to form its own […] by applying its own medical experience and its own medical expertise’.[15] The adequacy of the Panel’s reasons should be considered in the light of the ‘beneficial construction’ that this and other courts have traditionally afforded administrative tribunals whose members are not legally trained. Care should be taken to avoid an overly zealous scrutiny of reasons aimed at faulty expression, ‘unhappy phrasing’, or ‘looseness of language’.[16]
Analysis
[14]Ibid, 80 [56].
[15]Ibid, 80 [56].
[16]Gamble v Emerald Hill Electrical Pty Ltd (2012) VSCA 322.
Ground a) Failing to take into account a relevant consideration
I have observed that it is central to the plaintiff’s case that the ‘functional overlay’ issue was a relevant consideration that the Panel was bound to consider. In written submissions, the plaintiff put it this way:
It is important to note that the only real case which the Plaintiff had for continuing compensable injury was, on the material before the Medical Board, that her pain was a psychogenic reaction to her injury or to the accident. In that context it should not be accepted…that the Medical Panel did consider psychogenic reaction as a cause and rejected it, but expressed no reason for doing so, despite it being the plaintiff’s case.[17]
In oral submissions, Senior Counsel for the plaintiff confirmed this:
…she’s had consistent pain since 2010. Her pain experience is still the same…(it) had always been the case that the pain was inconsistent with her anatomical presentation. It preceded the present state of prolapse…and it was attributed by responsible medical opinion to psychological causes. Now, bearing in mind that this was the plaintiff’s case it should have been considered by the Panel…[18]
[17]Plaintiff’s written submissions in reply, [12].
[18]Transcript of hearing, 13.
I am afraid I do not accept this characterisation of the ‘plaintiff’s case’ as it went to the Panel. I have briefly reviewed the relevant medical evidence at paragraphs [9] and [10] of these reasons. In my view, it is clear enough that the preponderance of the plaintiff’s medical opinions ascribed her 2015 symptoms to a physical injury caused, or at least aggravated, by the 2010 incident. In broad terms, the insurer’s doctors contended that while the plaintiff may have suffered a modest injury in the 2010 incident it had resolved (or persisted at a low level), and any discrepancy between the underlying pathology and the asserted level of symptoms could be explained by ‘functional overlay’, ‘non-organic factors’, an ‘emotional response’, or similar.
To appropriate this ‘functional overlay’ aspect of the defendant’s case, import it into the plaintiff’s case, and then argue that it has been overlooked by the Panel is, in my view, an exercise in revisionist history. I have set out in paragraph [11] the relevant portions of the Referral made by the Conciliation Officer. A specific fact agreed between the parties is:
... the current dispute is only in relation to the physical lower back injury.
In my view, to condemn the Panel for overlooking a psychogenic component to the plaintiff’s pain is to condemn it for overlooking the irrelevant. The fact that the panel members included a psychiatrist, and that the Panel provided (unrequested) a psychiatric opinion, do not serve to make the ‘functional overlay’ issue a component of the plaintiff’s case.
Ground b) Inadequate reasons
If I am correct in concluding that the ‘functional overlay’ issue was not a relevant consideration overlooked by the Panel, then the plaintiff’s ‘inadequate reasons’ argument falls away. The argument is that because the Reasons fail to address the ‘functional overlay’ issue it is impossible to understand whether the Panel has dealt with this issue adequately or at all. This argument is, of course, predicated on the basis that the ‘functional overlay’ issue was a relevant consideration before the Panel. If it were not, then reasons that fail to address it can hardly be characterised as inadequate. I have determined that the ‘functional overlay’ issue was not a relevant consideration before the Panel, and in my view no criticism can be made of the Reasons stemming from their failure to deal with this irrelevant consideration. In all other respects, I consider the reasons to be entirely adequate.
Ground c) Denial of procedural fairness
The plaintiff contends that, in finding that Ms Mattock’s pain is a referred pain from her constitutional degenerative condition, the Panel made an adverse finding ‘out of the blue’ and denied the plaintiff an opportunity to address this issue.[19] I disagree with this characterisation.
[19]See for example Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248, [48].
The Panel’s conclusion was relevantly expressed in the following terms:
…the worker has constitutional degenerative changes of the lumbosacral spine with referred symptoms but without radiculopathy …’.[20]
[20]Referred Medical Questions. Answer to question 1 (see para [5] of these reasons).
In my view, this finding cannot be said to have come ‘out of the blue’. The medical reports that went to the Panel from both the practitioner for the plaintiff and the fifth defendant were, in many instances, quite explicit about referred pain from the lower back. In particular, I refer to —
(a)Mr Brearly, 18 June 2015, page 2:
“… she has constant pain in the lower back mainly on the left side … She has frequent pain in the left leg radiating to the toes where she has numbness and tingling at times”.
Page 4:
“She does have pain in the left leg as a result of nerve root irritation but there is no clinical evidence of radiculopathy”.
(b)Mr Patrick Lo, 24 September 2015:
“Since her previous appointment, Kim Mattock has worsened with increasing lower back and leg symptoms … (she) has deteriorated and has developed worsening of her lumbar disc prolapse and nerve compression”.
Defendant’s doctors:
(a)Dr Davison, 10 August 2012:
“… the claimant presents with chronic lower back pain radiating into the left lower limb”.
(b)Mr Hooper, 26 November 2013, spoke of “back pain and left sided leg pain radiating to her big toe”.[21]
[21]See also the reports of Mr Battlay, 13 January 2011; Mr Troy, 4 February 2015.
I consider that the conclusion that the plaintiff suffered from ‘referred symptoms’ was not a surprise, nor adverse to the plaintiff. It was, in fact, consistent with the material before the Panel and with the plaintiff’s own account.[22] The component of the finding which attributed the referred pain to a constitutional degenerative condition (while being an adverse finding) was, in my view, ‘open on the known material’[23]:
On 4 February 2015, Mr Troy said:
“(h)er current incapacity relates to the degenerative changes in her back”.
On 6 March 2015, Mr Troy was asked whether the employment continued to be a materially contributing factor (to her condition). He replied, “Her condition is not work related now”.
[22]See the Panel’s Reasons, page 5.
[23]Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576, 590-591.
I consider that the plaintiff has failed to establish a denial of natural justice. I have concluded that the impugned Opinion of the Panel was not such as ‘could not reasonably be expected’, nor could it be said to be ‘not obviously open on the known material’.
Conclusion
The plaintiff has failed to establish jurisdictional error on the part of the Panel on any of any of the grounds alleged. I decline to make the orders sought. I will hear from the parties as to costs.
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