McVey v GJ & LJ Smith Pty Ltd
[2014] VSCA 293
•21 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0064
| WILLIAM JAMES MCVEY (a person under a disability who brings this Proceeding by his Litigation Guardian ANTHONY BULARD) | Appellant |
| v | |
| GJ & LJ SMITH PTY LTD & ORS | Respondents |
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| JUDGES: | SANTAMARIA, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 November 2014 |
| DATE OF JUDGMENT: | 21 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 293 |
| JUDGMENT APPEALED FROM: | McVey v GJ & LJ Smith Pty Ltd [2014] VSC 236 (Garde J) |
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ACCIDENT COMPENSATION – Appeal against decision of trial judge dismissing application for judicial review of medical panel opinion – Claim for psychiatric schizophrenia injury under s 98C of the Accident Compensation Act 1985 – Appellant suffering from schizophrenia condition prior to injury – Assessment of impairment under s 91 of the Act – Effect of acceptance of liability pursuant to s 104B(2)(a) of the Act – Respondent only accepted liability for any permanent impairment causally related to the injury, as assessed by medical panel.
ACCIDENT COMPENSATION – Medical panel not bound by opinion of a previous medical panel pursuant to s 68(4) of the Act – ‘Question or matter’ referred to medical panel different to ‘question or matter’ referred to previous medical panel – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A G Uren QC with Mr A D B Ingram | Melbourne Injury Lawyers |
| For the Respondents | Mr M F Fleming QC with Mr R Kumar | Thomson Geer |
SANTAMARIA JA
BEACH JA
KYROU JA:
Introduction and summary
This is an appeal brought by the appellant, Mr William McVey, by his litigation guardian from a decision of a judge in the Trial Division made on 21 May 2014.[1] That decision dismissed an application for judicial review of an opinion of a medical panel (‘2013 Medical Panel’) dated 15 July 2013 (‘2013 Opinion’).
[1]McVey v GJ & LJ Smith Pty Ltd [2014] VSC 236 (‘Reasons’).
The genesis of the litigation is an incident that occurred on 30 April 1999 (‘1999 incident’) while Mr McVey was employed as a truck driver by the first respondent, GJ & LJ Smith Pty Ltd (‘Employer’). On that day, Mr McVey lifted the fibreglass hood covering the engine of the truck he was driving and, while he was checking the engine, a gust of wind caused the hood to descend and strike him on the neck and left shoulder girdle. According to Mr McVey, the 1999 incident caused physical and psychiatric injuries.
The 2013 Opinion was provided for the purposes of an application by Mr McVey for a lump sum impairment benefit pursuant to s 98C of the Accident Compensation Act 1985 (‘Act’)[2] in relation to a schizophrenia injury which he claimed he sustained as a result of the 1999 incident. The 2013 Opinion answered the following medical questions that were referred to the 2013 Medical Panel by the Victorian WorkCover Authority (‘VWA’) claims agent, Allianz Australia Workers’ Compensation (Vic) Ltd (‘Allianz’), pursuant to s 104B(9) of the Act:[3]
[2]All references to the Act are to the Act as in force as at 11 February 2013. Section 98C is discussed at [7] below.
[3]Section 104B(9) of the Act is set out at [12] below.
Question i)
What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with [s 91 of the Act] and is the impairment permanent?
Answer:
The Panel is of the opinion that there is a 0% psychiatric impairment resulting from the accepted psychiatric, schizophrenia injury when assessed in accordance with [s 91] of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.
Question ii)
Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in [s 98E(1) of the Act]?
Answer:
No.
In 2007, Judge Coish of the County Court had referred five medical questions to a differently constituted medical panel (‘2007 Medical Panel’) in the context of a proceeding commenced by Mr McVey for weekly payments of compensation pursuant to s 93 of the Act in relation to injuries he said he sustained as a result of the 1999 incident (‘County Court proceeding’). The medical questions were referred to the 2007 Medical Panel pursuant to s 45(1)(b) of the Act and the panel published its opinion on 11 February 2007 (‘2007 Opinion’). The medical questions and the answers provided in the 2007 Opinion were as follows:
Question 1.
What is the nature of the Plaintiff’s medical condition relevant to any injury, or alleged injury, to his neck, back, left shoulder and head and/or psychiatric injury (‘the said injuries’)?
Answer:
The Panel is of the opinion the Plaintiff is not now suffering from any physical medical condition of the left shoulder relevant to the said injuries.
The Panel is also of the opinion that the Plaintiff is suffering from schizophrenia, relevant to the said injuries.
The Panel is also of the opinion that there is no medical condition of the neck, back or head relevant to the said injuries.
Question 2.
Was the Plaintiff’s employment in fact a significant contributing factor to any, and if so which, of the said injuries?
Answer:
The Panel is of the opinion the Plaintiff’s employment was in fact a significant contributing factor to a now resolved soft tissue injury of the left shoulder and the schizophrenia condition.
Question 3.
Does the Plaintiff have:
(a) a current work capacity; or
(b) no current work capacity;
as a result of any, and if so which, of the said injuries?
Answer:
(a) No.
(b) The Panel is of the opinion the Plaintiff has no current work capacity as a result of the schizophrenia condition.
Question 4.
If the Plaintiff has no work capacity, is he likely to continue indefinitely to have no current work capacity?
Answer:
Yes
Question 5.
If the Plaintiff has no work capacity which is likely to continue indefinitely, does the incapacity result from or is it still materially contributed to by any, and if so, which of the said injuries?
Answer:
The Panel is of the opinion the Plaintiff’s incapacity for work results from and is still materially contributed to by the psychiatric injury.
In the judicial review application, Mr McVey sought to impugn the 2013 Opinion on two grounds. The first was that the 2013 Medical Panel did not assess Mr McVey’s schizophrenia injury in accordance with s 91 of the Act.[4] The second was that the 2013 Medical Panel failed to give effect to the 2007 Opinion in accordance with s 68(4) of the Act.[5]
[4]Section 91 of the Act is discussed at [9]-[11] below.
[5]Section 68(4) of the Act is set out at [14] below.
The judge rejected both of the above grounds. For the reasons set out below, we have concluded that the judge was right to do so and that the appeal should be dismissed.
Relevant provisions of the Act
Section 98C(1) of the Act provides that a worker who suffers a compensable injury — that is, ‘an injury which entitled the worker to compensation’ — is, ‘in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with s 98C’. Section 98D provides that such compensation is payable as a lump sum.
Section 5(1) of the Act defines ‘injury’ as including ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease’.
Section 91(1) of the Act provides that a reference to the assessment of a degree of impairment in accordance with that section in pt IV of the Act (which includes ss 98C and 104B) is a reference to an assessment made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘AMA Guides’). Section 91(6) provides that, for the purposes of assessing the degree of psychiatric impairment, the AMA Guides apply as if the guidelines entitled ‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians’ were substituted for ch 14 of the AMA Guides.
Section 91(1A)(b) of the Act provides that an assessment under s 91(1) of the degree of impairment resulting from an injury must be made, subject to s 91(7), ‘based on the worker’s current impairment as at the date of the assessment’.
Section 91(7)(c) of the Act states that, for the purposes of s 98C, ‘impairments from unrelated injuries or causes are to be disregarded in making an assessment’.
Section 104B of the Act applies to a claim for compensation under s 98C. Section 104B relevantly provides:
104B Claims for compensation under section 98C
…
(2) [VWA] … must within 120 days of receiving a claim made by the worker … —
(a) … accept or reject liability for each injury included in the claim;
(b) obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;
(c) after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i) section 98C; …
…
(e) calculate any entitlement to compensation under section 98C or 98E;
(f) advise the worker as to—
(i) … the decision to accept or reject liability for each injury included in the claim;
(ii) each of the determinations as to the degree of permanent impairment (if any) of the worker … resulting from the injury or injuries in respect of which liability is accepted;
(iii) the calculation of any entitlement to compensation under section 98C or 98E;
(g)provide to the worker a copy of—
(i) any medical reports, correspondence and other documents provided to; and
(ii) any medical reports, correspondence and other documents obtained from—
any medical practitioner … conducting an independent examination.
…
(2A)[VWA] … is not bound by the assessment or assessments obtained under subsection (2)(b) in determining the degree of permanent impairment (if any) under subsection (2)(c).
…
(5) [VWA] … must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of—
(a) determining any entitlement of the worker to compensation under section 98C …
…
(5B) A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.
…
(9) [VWA] … must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment … in respect of the injury or injuries claimed, refer the medical questions as to—
(a) the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and
…
to a Medical Panel for its opinion under section 67.
…
(11) For the purposes of this section, liability in relation to a claim does not include a question as to the degree of permanent impairment of a worker …
Section 67(1) of the Act provides that the function of a medical panel is ‘to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment … referred by … [VWA]’. Section 67(1A) provides that a medical panel ‘must give its opinion on a medical question in accordance with [pt III div 3 of the Act]’.
Section 68 of the Act relevantly provides:
68Opinions
(1) A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made …
(2) The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.
…
(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
Factual background and the 2007 and 2013 Opinions
On 31 May 1999, Mr McVey submitted a claim for compensation in respect of injuries to the ‘left shoulder, left muscles inflammation [sic], left side of neck and head’ arising from the 1999 incident. Liability for that claim was accepted.
On 1 September 2000, Mr McVey submitted a claim pursuant to s 98C of the Act for compensation for permanent disability from physical injuries caused by the 1999 incident. Liability was accepted and an impairment of 17 per cent was assessed, resulting in a compensation payment to Mr McVey in the amount of $19,000.
In 2004, Mr McVey made a claim for weekly payments of compensation pursuant to s 93 of the Act on the basis that his physical injuries rendered him unable to work. As the claim was not resolved through the conciliation procedures in the Act, Mr McVey commenced the County Court proceeding. As stated at [4] above, in 2007, Judge Coish referred five medical questions to the 2007 Medical Panel which were answered in the 2007 Opinion.
In its reasons for the 2007 Opinion, the 2007 Medical Panel stated the following in relation to the causes of Mr McVey’s schizophrenia:
The Panel considers that the Plaintiff probably has had psychological problems for many years but the Panel considers that the incident in 1999 has contributed to his psychiatric deterioration and his psychiatric treatment has largely commenced since the incident in 1999. The Panel considers that the Plaintiff did suffer from some physical injuries that have impacted upon his psychological state and helped bring about the manifestation of much of his psychiatric symptomatology.
The Panel concluded that the Plaintiff is suffering from schizophrenia.
…
The Panel concluded that the Plaintiff’s employment was in fact a significant contributing factor to a now resolved soft tissue injury of the left shoulder and to the development of the Plaintiff’s schizophrenia condition.
The Panel concluded that the Plaintiff’s psychiatric condition is such that he is not capable of performing his pre-injury duties and this incapacity for work results from and is still materially contributed to by the psychiatric injury.
Judge Coish adopted the 2007 Opinion and made an order that Mr McVey be paid weekly payments of compensation from 10 April 2004. Mr McVey continues to receive such payments.
On 28 August 2008, Mr McVey, by his litigation guardian, submitted a ‘Worker’s Claim for Impairment Benefits Form’ (‘claim form’) seeking a lump sum impairment benefit pursuant to s 98C of the Act. The claim form described the ‘injury/condition’ for which the claim for impairment benefits was made as ‘Psychiatric injury including schizophrenia condition back, both arms, neck + both legs’. The form specified 30 April 1999 as the date that the injury was sustained and answered the question ‘How did your injury/condition occur?’ as follows: ‘The 30.4.99 incident (hood of truck hitting [left] shoulder) contributed to psychiatric deterioration + caused manifestation of symptomology [sic]’.
Following a substantial delay, the reasons for which are not presently relevant,[6] on 13 March 2013, Allianz engaged Dr Steven Adlard to perform an independent psychiatric impairment assessment of Mr McVey.[7] The letter of engagement referred to Mr McVey’s claim under s 98C of the Act ‘in respect of a mental disorder/illness, which occurred on 30.4.1999’ and stated that ‘[l]iability has been accepted and this examination is for assessment of this worker’s permanent impairment only’.
[6]See McVey v GJ & LJ Smith Pty Ltd [2012] VSCA 312, [14].
[7]As required by s 104B(2)(b) of the Act, which is set out at [12] above.
Dr Adlard prepared a report dated 20 March 2013 (‘Adlard report’) in which he concluded that Mr McVey had ‘long-standing chronic Schizophrenia which appears to have been unresponsive to treatment’ and that the condition ‘clearly predated the workplace incident in April 1999’. The Adlard report set out the following answers to four questions that are relevant for present purposes:
a)i) What is the nature of the mental disorder/illness?
Mr McVey has chronic Schizophrenia.
I note that you have accepted liability for this condition, presumably on the basis of the Medical Panel report from 2007 and possibly from other IMEs. Based on what Mr McVey told me he had psychotic symptoms and probable schizophrenia 16 years prior to the workplace injury (and longer according to his GP). Also from what he told me, he had a patchy work history prior to 1999 with one year off work in 1982, three years off work from 1985-1988, further time off work when he attended Bible school in 1990-1 and had further psychotic symptoms, and he left a number of companies in the 1990s for various reasons. He has worked less since the workplace injury in 1999 though I note that he has completed a number of courses and he said he stopped work not because of psychiatric symptoms but because of physical symptoms.
I’m not convinced (though as I said, I have limited information) from my interview with Mr McVey that the workplace injury in 1999 has had any significant impact on his psychiatric condition. If there was any temporary hiccup in his schizophrenic condition from the physical injury in 1999, which I am not sure of, it has long since gone. The trajectory of his condition is consistent with the natural history of chronic treatment resistant Schizophrenia. Keep in mind that he appears to have had significant psychotic symptoms as far back as 1983 and they were very severe by the sound of it between 1989 and 1992.
…
iv)Please confirm how the DSM-IV[8] diagnostic criterion has been satisfied.
[8]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994).
Mr McVey meets the criteria for chronic Schizophrenia in that he has had many years of auditory hallucinations, delusions, and he presents with disorganized speech and inappropriate affect. There has been an effect on social and occupational functioning and the condition has lasted for more than six months.
…
b) Has the impairment stabilised?
Yes. This condition appears to have been present for about 30 years and is unlikely to change.
…
d)Please provide an assessment of whole person psychiatric impairment, using the enclosed Evaluation of Psychiatric Impairment Record
… Mr McVey has a total whole person impairment of 35%; this is in my opinion unrelated to the incident in April 1999, and as such his whole person impairment under [s 91(2)] of the Act is 0%.
A letter from Allianz to Mr McVey’s solicitor dated 27 March 2013 (‘decision letter’) stated the following:
Injury date: 30 April 1999
…
Liability decision
In accordance with sections 91, 98C, 98E and 104B of the [Act], Allianz … has reviewed your claim and determined liability for the injuries you have listed as work-related on your Worker's Claim for Impairment Benefits Form.
Liability is accepted for the following injuries:
· PSYCHIATRIC INJURY – SCHIZOPHRENIA
…
Assessment of impairment
In order to assess the percentage of whole person impairment, you were examined by the following Independent Impairment Assessor:
· Dr Steven Adlard on 20 March 2013
…
Enclosed with this letter is a copy of the report.
Assessment of impairment determination
Allianz … has determined the degree of whole person impairment after taking into account the assessments provided by the Independent Impairment Assessors.
Your psychiatric whole person impairment has been determined at 0%.
Mr McVey disputed the whole person impairment assessment. As stated at [3] above, pursuant to s 104B(9) of the Act, two medical questions were referred to the 2013 Medical Panel, which were answered in the 2013 Opinion.
The referral document which set out the two medical questions was provided by Allianz to the 2013 Medical Panel on 1 May 2013 (‘referral document’). That document relevantly stated:
4. ACCEPTED INJURIES TO BE ASSESSED BY THE MEDICAL PANEL
(A) Psychiatric injury – Schizophrenia
…
5. DATE OF INJURY
30 April 1999
6. ISSUES AND REASON FOR REFERRAL
(a) William McVey lodged a s98C/E claim for psychiatric injury (schizophrenia)
(b) Liability was accepted for psychiatric injury – Schizophrenia
…
8. NATURE OF THE DISPUTE – IMPAIRMENT BENEFITS – 98C & 98E / S104B REFERRALS
The matter has been referred to the Medical Panel as the worker has disputed the independent medical assessment made under s 104B (4) & (5).
Allianz made a written submission dated 29 April 2013 to the 2013 Medical Panel (‘Allianz submission’). The Allianz submission relevantly stated:
Although liability has been accepted for a Psychiatric Injury (Schizophrenia), this reflects only an acceptance by Allianz … that the worker sustained an injury as alleged. It is contended that the work related accepted injury has resolved and therefore impairment should be assessed at nil. The acceptance of an initial injury does not imply any acceptance that the injury exists at the time the worker submits an impairment benefit claim nor any acceptance that the injury is permanent or has caused permanent impairment. These are issues that must be resolved by the Medical Panel.
Mr McVey’s solicitor made a written submission dated 24 June 2013 to the 2013 Medical Panel (‘Mr McVey’s submission’) which did not comment on the nature, scope or consequences of the Employer’s acceptance of liability for the schizophrenia injury.
In its reasons for the 2013 Opinion, the 2013 Medical Panel stated that it had formed its opinions by reference to a number of documents, which included the claim form, the decision letter, the referral document, the Allianz submission, Mr McVey’s submission, the Adlard report, the 2007 Medical Opinion and the reasons for that opinion. In its reasons for the 2013 Opinion, the 2013 Medical Panel stated the following in relation to the causes of Mr McVey’s schizophrenia:
The Panel noted that the worker first experienced psychotic symptoms in 1983 when playing golf, and the worker said that at this time he heard a voice telling him that he should ‘be sincere’ and that he would have ‘a ministry of compassion.’ The worker said that ever since then he had remained in various forms of direct communication with God, including hearing God’s voice directly and in various forms starting in the late 1980’s until the present. He said that he had also experienced ‘visions’ over the years and that in 1992 he started speaking in tongues …
The Panel was satisfied that these long term and implausible experiences were all of a psychotic nature and had preceded the relevant workplace incident.
… [T]he Panel was satisfied that in the initial period after the relevant incident, the worker had suffered from an exacerbation of the pre-existing psychotic illness due to the additional stress that the worker endured as a result of the incident and subsequent physical assessments and treatment.
The Panel noted that the worker came under a psychiatrist’s care for the first time in 2000 (after the relevant workplace incident), and considered that this was indirectly indicative of a deterioration in the worker’s condition around the time of the relevant workplace incident. The worker said that he had continued to attend a psychiatrist until 2007. The worker said that the psychiatrist no longer felt that the worker needed to attend and that since 2007 the worker had been attending his General Practitioner and had continued receiving antipsychotic medication prescriptions.
…
The Panel was satisfied that since the previous Panel assessment the worker had continued to suffer from a range of religious psychotic experiences …
The Panel concluded that the worker suffered from an exacerbation of a
pre-existing Chronic Schizophrenia, and that the exacerbation of this condition has since resolved, relevant to the accepted
psychiatric-schizophrenia injuries.
The Panel is therefore of the opinion that the entirety of the current psychiatric condition results from the worker’s pre-existing Chronic Schizophrenia.
…
The Panel … concluded that … the worker’s psychiatric condition is … permanent.
The reasons for the 2013 Opinion stated the following in relation to the 2013 Medical Panel’s impairment assessment and the Adlard report:
In the Panel’s opinion … the degree of psychiatric impairment is 35%, and all of this psychiatric impairment is due to the worker’s pre-existing chronic schizophrenia and is therefore excluded from the psychiatric impairment assessment in accordance with [s 91(7)(c)] of the Act. The Panel considers the degree of impairment is permanent.
The Panel therefore concluded that there is a 0% psychiatric impairment resulting from the accepted psychiatric, schizophrenia injury when assessed in accordance with [s 91] of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.
The Panel noted the report of independent medical examiner Dr. S Adlard dated 20 March 2013, in which he concluded that the worker was suffering from ‘chronic Schizophrenia’ and had a total psychiatric impairment of 35%, all of which was preceding and unrelated to the relevant workplace incident. The Panel noted that Dr. Adlard documented clear psychotic phenomena dating from 1983 and on this basis concluded that the Schizophrenic illness predated the relevant workplace incidents by many years.
The Panel came to a similar conclusion with respect to the diagnosis and to a similar conclusion regarding the level of impairment, based upon its own history taking, mental status examination and clinical judgment. The Panel came to a different conclusion regarding an exacerbation and subsequent resolution of the exacerbation of the Schizophrenic illness …
Decision subject to appeal
As stated at [5] above, at trial, Mr McVey sought to impugn the 2013 Opinion on the bases that the 2013 Medical Panel misapplied s 91 of the Act and failed to comply with s 68(4). The judge rejected both contentions.
In relation to the contention that the 2013 Medical Panel had misapplied s 91 of the Act, the judge held that an assessment under s 104B(2) of the Act involves three steps. The first step under s 104B(2)(a) is for VWA to accept or reject liability for each injury included in a worker’s claim. In relation to the first step, his Honour stated:
Here the claim was necessarily a claim for exacerbation or aggravation of chronic schizophrenia, as that condition and psychotic symptoms long preceded the date of the incident on 30 April 1999. This is evident from the impairment benefits claim form completed by the litigation guardian which stated that the incident on 30 April 1999 ‘contributed to psychiatric deterioration and caused manifestation of symptomology’ as well as from the undisputed expert opinions of Dr Adlard and the medical panel.[9]
[9]Reasons [40].
The judge said that the second step under s 104B(2)(b) of the Act is to obtain an assessment ‘in accordance with s 91’ as to the degree of permanent impairment (if any) of the worker resulting from the injury in respect of which liability is accepted. In relation to the second step, his Honour stated:
Two points may immediately be made. First, the second or assessment step must be made in accordance with s 91. This requires adherence to all of s 91 including s 91(7) in assessing the degree of permanent impairment resulting from the injury or injuries in respect of which liability is accepted. Secondly, the use of the words ‘if any’ expressed in parentheses in s 104B(2)(b) make it clear that the legislature considered that there could be a situation where liability in respect of an injury might be accepted by an insurer in respect of a worker, but that the degree of permanent impairment might be assessed as zero per cent. This is unsurprising as there will inevitably be many situations where an injury is sustained but no permanent impairment results.[10]
[10]Reasons [42].
The judge stated that the final step under s 104B(2)(c) of the Act is for VWA, after taking into account the assessment made under the second step, to determine the degree of permanent impairment (if any) of the worker for the purposes of s 98C. His Honour relied on Millane v M J Millane Pty Ltd,[11] Vegco Pty Ltd v Gibbons[12] and Alcoa Holdings Ltd v Lowthian,[13] for the following propositions:
[I]n making an impairment assessment, any impairment from an unrelated injury or cause is disregarded so as to ensure that the impairment assessment relates solely to the impairment resulting from the compensable injury. If the evidence establishes that there is a pre-existing impairment from an unrelated injury or cause, a medical panel is obliged to consider that impairment and to ensure its estimate of the current impairment disregards the pre-existing impairment flowing from the unrelated injury or cause. This form of evaluation is mandated by s 91(7)(c) of the Act. A medical panel is not at liberty to disregard this requirement.[14]
[11][2003] VSC 72, [11], [14] (‘Millane’).
[12][2008] VSC 363, [17], [21] (‘Vegco’).
[13][2011] VSC 245, [60]–[66], [72], [73] (‘Alcoa’).
[14]Reasons [44].
The judge concluded that the 2013 Medical Panel had correctly applied s 91 of the Act for the following reasons:
In my opinion, the medical panel carried out its work in accordance with the requirements of the Act. It is evident that it carefully considered the extent of psychiatric impairment disagreeing in one respect from the opinion previously expressed by Dr Adlard. The medical panel accepted that Mr McVey had suffered from an exacerbation of his pre-existing chronic schizophrenia, but that the exacerbation of this condition had since been resolved. This conclusion inevitably led to the opinion that the entirety of the current psychiatric condition resulted from Mr McVey’s pre-existing chronic schizophrenia. This conclusion is not in any way inconsistent with the conduct of an impairment assessment for psychiatric impairment resulting in a degree of psychiatric impairment of 35% all of which was attributable to Mr McVey’s pre-existing chronic schizophrenia. The panel rightly decided that the pre-existing chronic schizophrenia was required to be disregarded under s 91(7)(c) of the Act.[15]
[15]Reasons [45].
The judge rejected Mr McVey’s contention that the 2013 Medical Panel was required by s 68(4) of the Act to give effect to the 2007 Opinion on the basis that the contention could not be sustained in the light of the High Court decision in Wingfoot Australia Partners Pty Ltd v Kocak.[16] His Honour gave the following reasons:
As the High Court held in [Wingfoot], the opinion of the previous medical panel must be adopted and applied for the purposes of determining the question or matter in which the medical question arose and in respect of which the medical question was referred to the medical panel. However, it does not require the opinion of the medical panel to be adopted for the purposes of determining some other question or matter. The two questions asked of the medical panel were substantially different from those asked of the previous medical panel, and were asked as to a much later date.
The medical panel undertook its examination in July 2013. The previous medical panel conducted its examination in 2007. It is not surprising that over six years later the medical panel reached the conclusion that it did that while there had been an exacerbation or aggravation of the pre-existing chronic schizophrenia caused by the incident in April 1999 that exacerbation or aggravation had since resolved. The conclusion reached by the medical panel is not inconsistent with the opinion of the previous medical panel given as it was in 2007.
It was open to the medical panel to take the view that the aggravation in 1999 was a transient or passing or past aggravation that had no current impairing consequences. It was also open to the medical panel to take the view that once the aggravation had passed the continuing chronic schizophrenia was due to Mr McVey’s pre-existing condition prior to the aggravation incident. These matters were properly before the panel. As an expert panel, it was open to it to be of the opinion that the current permanent psychiatric impairment was due only to Mr McVey’s pre-existing schizophrenic condition, and not as to the whole or any part due to the aggravation in 1999. The medical panel had the opinion of the previous medical panel as well as the opinion of Dr Adlard before it. It was open to it to come to the opinion which it did. It did not act contrary to the requirements of s 68(4) of the Act.[17]
[16](2013) 303 ALR 64 (‘Wingfoot’).
[17]Reasons [47]–[49] (citations omitted).
Grounds of appeal
Mr McVey’s amended notice of appeal relies on 10 grounds of appeal which raise two broad issues. The first issue is the significance of an acceptance of liability for an injury in respect of a claim under s 98C of the Act, particularly when assessing the degree of permanent impairment resulting from that injury in accordance with s 91. The second issue is the extent to which a medical panel is bound by an opinion of a previous medical panel.
Mr McVey’s 10 grounds of appeal are as follows:
1. The Judge was wrong in holding that the injury for which [Mr McVey] had made a claim for compensation in 2008 under the [Act] was a claim for exacerbation or aggravation of chronic schizophrenia, and should have held that the relevant injury for which [Mr McVey] had claimed compensation was ‘psychiatric injury including schizophrenia’.
2. The Judge was wrong in not holding that the injury for which the [Employer] had accepted liability under s 104B(2)(a) of the Act to [Mr McVey] in respect of his claim was ‘Psychiatric Injury-Schizophrenia’, and was wrong in holding that liability had been accepted only for an aggravation or exacerbation of a pre-existing schizophrenia.
3. The Judge was wrong in not holding that the injury of [Mr McVey] in respect of which the Medical Panel was required, in the questions put to it, to give its opinion was schizophrenia, and was wrong in holding that the injury for those purposes was an exacerbation or aggravation of chronic schizophrenia.
4.The Judge was wrong … in [not] holding that it was not open to the Medical Panel to decide that [Mr McVey’s] permanent whole person impairment resulting from the injury for which the Medical Panel was required to give its opinion was 0%, as the Medical Panel had found that the permanent whole person impairment of [Mr McVey] resulting from his schizophrenia was 35%.
5. The Judge was wrong in holding that [Mr McVey’s] schizophrenia was an impairment from an unrelated injury or cause within the meaning of s 91(7)(c) of the Act.
6. The Judge was wrong in holding that the Medical Panel was entitled to answer the questions put to it on the basis of its view of what was [Mr McVey’s] compensable injury.
7. The Judge was wrong in holding that the words ‘unrelated injury or cause’ in s [91(7)(c)] of the Act meant ‘unrelated to the incident’ and should have held that they meant ‘unrelated to the injury the results of which are being assessed; that is, the injury in respect of which the claim was made.’
8.The Judge was wrong in not holding that the reasons of the Medical Panel showed that it had not answered … the question put to it, or had done so on a mistaken view of the injury of [Mr McVey] for which it was required to give its opinion, or on an erroneous view of the meaning and application of s 91(7)(c) of the Act.
9. The Judge was wrong in holding that the conclusion reached by the Medical Panel was not inconsistent with the opinion of the previous Medical Panel given as it was in 2007, as the Medical Panel’s opinion that [Mr McVey] had suffered only a transient exacerbation of his schizophrenia in 1999 is inconsistent with the opinion of the previous Medical Panel, which was that in 2007 [Mr McVey] was suffering from schizophrenia and that his employment was a significant contributing factor to that schizophrenia. In not adopting applying and accepting the opinion of the previous Medical Panel as final and conclusive the Medical Panel has not complied with the requirements of s 68 (4) of the Act in forming its opinion.
10. On 21 March 2007, in proceedings for weekly compensation brought by [Mr McVey] in the County Court of Victoria … His Honour Judge Coish applied and adopted the Opinion of the 2007 Medical Panel, pursuant to s 68(4) of the Act, and ordered that the [Employer] pay to [Mr McVey] weekly payments of compensation at the rate applicable for no current work capacity from April 2004 and continuing in accordance with law. The Medical Panel, and the [Employer], were bound by that decision and order, and were obliged to, but did not, apply and adopt that Opinion and act consistently with it. The Judge was wrong in not deciding that s 68(4) of the Act required that the Medical Panel and the [Employer] perform their functions by applying the previous Medical Panel’s Opinion, which was that:
a) on 11 February 2007 [Mr McVey] was suffering from schizophrenia, relevant to the said injuries,
b) his employment was then a significant contributing factor to the schizophrenia condition,
c) he then had no current work capacity as a result of the schizophrenia condition,
d) his incapacity for work results from and is still materially contributed to by the psychiatric injury.
in not deciding that the Medical Panel did not do so, and in not deciding that its Opinion was thereby vitiated.
Grounds 1–8: Did the 2013 Medical Panel misapply s 91 of the Act?
Mr McVey’s submissions in relation to grounds of appeal 1 to 8 may be summarised as follows:
(a) The claim form described the injury in respect of which an impairment benefit was sought as ‘Psychiatric injury including schizophrenia condition back, arms, neck + both legs’.[18]
[18]See [20] above.
(b)
As is evidenced by the decision letter[19] and the referral document,[20] Allianz accepted liability on behalf of the Employer for the injury for which Mr McVey claimed an impairment benefit, namely ‘Psychiatric
[19]See [23] above.
[20]See [25] above.
injury – Schizophrenia’.
(c) The acceptance of liability by Allianz on behalf of the Employer was made under s 104B(2)(a) of the Act which necessarily means that the Employer accepted that the injury was compensable and extant and that any permanent impairment resulting from it had to be assessed in accordance with s 91.
(d) The first medical question in the referral document required the 2013 Medical Panel to determine Mr McVey’s ‘degree of permanent whole person impairment resulting from the accepted [injury] as assessed in accordance with [s 91 of the Act]’ and whether ‘the impairment [is] permanent’. The ‘accepted injury’ was ‘Psychiatric injury – Schizophrenia’.
(e) The 2013 Medical Panel assessed Mr McVey’s whole person impairment resulting from his schizophrenia at 35 per cent. Having done so, it was not open to the panel to reduce the assessment to nil based on s 91(7)(c) of the Act. This is because the injury being assessed was the very injury for which liability had been accepted and it was not possible to attribute any part of the impairment to a different injury. As the medical condition ‘schizophrenia’ is not divisible, Allianz’s acceptance of liability on behalf of the Employer for the schizophrenia injury necessarily entailed acceptance that the schizophrenia injury was caused by Mr McVey’s employment with the Employer and could not be attributed to any other cause.
(f)
Although the definition of ‘injury’ in s 5(1) of the Act includes an exacerbation of a pre‑existing injury, it was not open to the 2013 Medical Panel or to the judge to treat the injury for which an impairment benefit was sought as an exacerbation of a pre‑existing schizophrenia condition. This is because the injury for which Allianz accepted liability on behalf of the Employer was not an exacerbation of pre‑existing schizophrenia, but ‘Psychiatric
injury — Schizophrenia’.
(g) Even if it had been open to the 2013 Medical Panel to treat the injury for which an impairment benefit was sought as an exacerbation of a pre‑existing schizophrenia condition, the legal position would be the same. This is because the Employer accepted liability for that injury and that was the injury being assessed by the 2013 Medical Panel. Acceptance of liability for that injury necessarily entails acceptance that the injury is extant rather than resolved. It follows that the reasoning in (e) above is equally applicable to that injury.
Mr McVey did not challenge the correctness of the authorities upon which the judge relied in relation to the meaning and scope of s 91(7)(c) of the Act, namely, Millane, Vegco and Alcoa. Rather, he submitted that that section and those authorities have no application to the circumstances of his case for the reasons set out at [38(e)] above.
The Employer submitted that its acceptance of liability for the schizophrenia injury meant no more than that it accepted that Mr McVey suffered a schizophrenia injury as a result of the 1999 incident. According to the Employer, neither the decision letter nor the referral document could be interpreted as an admission that the schizophrenia injury arising from the 1999 incident caused any ongoing permanent impairment or that any such impairment was wholly attributable to that incident. The correct position was said to be that although the Employer accepted liability for the compensable schizophrenia injury, it was for the 2013 Medical Panel to assess the whole person impairment that was caused by that compensable injury in accordance with s 91(7)(c), which required the panel to disregard impairment from unrelated injuries or causes.
The Employer contended that Mr McVey’s submissions over‑emphasised the terminology used by the parties in the claim form and the decision letter. According to the Employer, these documents should not be treated as if they were pleadings because they often contained imprecise language. This was said to be particularly so with descriptions of injuries in claim forms. It was not unusual, so it was said, for descriptions such as ‘back injury’ and ‘neck injury’ to be used. The Employer submitted that, where such imprecise descriptions were used and an employer accepted liability, the employer could not sensibly be taken to accept liability for each and every affliction to the worker’s back or neck irrespective of whether it had any causal relationship to the work performed by the worker. Rather, the acceptance of liability should be taken to be confined to those aspects of the back or neck injury that are compensable in accordance with the Act.
The Employer submitted that, in the present case, the claim form acknowledged that the schizophrenia injury for which an impairment benefit was claimed involved a deterioration to an existing schizophrenia condition.[21] It follows, so it was said, that Allianz’s acceptance of liability on behalf of the Employer was in respect of that part of the definition of ‘injury’ in s 5(1) of the Act that refers to ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease’. It was also said to follow that the 2013 Medical Panel correctly applied s 91(7)(c) of the Act in making its impairment assessment by considering only the extent to which any exacerbation of Mr McVey’s schizophrenia that was caused by the 1999 incident was ongoing as at the date of the assessment.
[21]See [20] above.
In our opinion, Mr McVey’s submissions cannot be accepted as they seek to give a meaning to the expression ‘Psychiatric injury – Schizophrenia’ in the decision letter and the referral document which the context indicates was not intended and which would be contrary to the scheme of the Act.
The expression ‘Psychiatric injury – Schizophrenia’ in the decision letter and the referral document cannot be read in isolation. Rather, it must be understood in the context of those documents, read as a whole. The expression must also be understood having regard to the claim form that initiated the application for an impairment benefit and the parties’ communications with each other and with the 2013 Medical Panel in relation to that application.
As set out at [20] above, the claim form stated that the injury in respect of which the impairment benefit was sought was a ‘Psychiatric injury including schizophrenia condition’ to which the 1999 incident contributed. That contribution was described in the following terms: ‘contributed to psychiatric deterioration + caused manifestation of symptomology [sic]’. This language reflects the statement in the reasons for the 2007 Opinion, set out at [18] above, that the 1999 incident ‘has contributed to [Mr McVey’s] psychiatric deterioration’ and ‘helped bring about the manifestation of much of his psychiatric symptomatology’. Properly understood, the claim form identified an injury falling within the extended definition in s 5(1) of the Act, namely ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.
The description of the injury for which Allianz accepted liability on behalf of the Employer – namely, ‘Psychiatric injury – Schizophrenia’ – in the decision letter and the referral document must be read as referring to the type of injury set out in the claim form. This must logically be the case, as s 104B(2)(a) of the Act requires an employer to decide whether to accept or reject liability for the injury in respect of which a worker makes a claim for an impairment benefit and not for some other injury.
Furthermore, the decision letter accepted liability for the schizophrenia injury only insofar as it was causally related to the 1999 incident and thus constituted a compensable injury. This is evident from the references in the letter to ss 91, 98C and 104B of the Act and to the description of the injuries listed in the claim form as ‘work‑related’. It is also evident from Allianz’s adoption of Dr Adlard’s assessment of nil whole person impairment arising from the 1999 incident. The decision letter cannot sensibly be read in any other way having regard to the fact that, under the Act, an employer is only liable to pay compensation to a worker for the consequences of compensable injuries, that is, injuries which are causally related to the worker’s employment with the employer.[22] Moreover, s 104B expressly allows for the possibility that an injury for which liability is accepted may not result in any permanent impairment.[23] The Act draws a distinction between a compensable injury and the permanent impairment (if any) arising from that injury.
[22]See ss 67(1), 82(1), 93 and 98C(1) of the Act.
[23]See s 104B(11) of the Act and the reference to ‘if any’ in s 104B(2)(b), (c) and (f)(ii).
The referral document is a brief document that does not contain the same level of detail as the decision letter. However, it refers to Dr Adlard’s assessment which was adopted by the Employer and which Mr McVey disputed. In order for the referral document to make sense, it must be read together with the decision letter and the Adlard report. When the referral document is so read, it becomes clear that the Employer’s position was as set out at [47] above. That this is so is supported by the Allianz submission.[24]
[24]See [26] above.
It follows from the above that the premises that underpin Mr McVey’s submissions — as summarised at [38] above — are fundamentally flawed. In particular, an employer’s acceptance of liability for an injury under s 104B(2)(a) of the Act does not necessarily entail acceptance that the worker currently has any permanent impairment or that any extant permanent impairment resulted from that injury.
In the present case, the Employer accepted liability only for any permanent impairment that the 2013 Medical Panel assessed as being attributable to the compensable schizophrenia injury, that is, the exacerbation of the schizophrenia condition to which the 1999 incident was causally related. In arriving at its assessment, the 2013 Medical Panel was obliged by s 91(7)(c) of the Act to disregard any impairment that was unrelated to the compensable schizophrenia injury. As the 2013 Medical Panel found that the compensable schizophrenia injury was a temporary exacerbation of a pre‑existing schizophrenia condition, which had resolved and no longer contributed to any ongoing impairment, the panel correctly assessed the whole person impairment as nil.
It follows that the 2013 Medical Panel did not make any error of law and that the judge correctly dismissed the judicial review application insofar as it alleged that the panel did not assess Mr McVey’s schizophrenia injury in accordance with s 91 of the Act.
For the above reasons, grounds of appeal 1 to 8 are not made out.
Grounds 9–10: Was the 2013 Medical Panel bound by the 2007 Opinion?
Mr McVey submitted that s 68(4) of the Act, which is set out at [14] above, had the effect that the 2013 Medical Panel was bound to adopt and apply the 2007 Opinion and accept that opinion as final and conclusive. According to Mr McVey, the 2013 Medical Panel was a ‘body’ for the purposes of that section.
Mr McVey contended that, if the 2013 Medical Panel had complied with s 68(4) of the Act, it would have treated the 2007 Opinion as conclusively determining: that, as at the time of the 2007 Opinion, he was suffering from a schizophrenia condition causally related to the 1999 incident; that his employment was a significant contributing factor to that condition; that he had ‘no current work capacity’; and that the ‘no current work capacity’ was likely to be indefinite. On this basis, so it was said, the 2013 Medical Panel inevitably would have concluded that the schizophrenia injury for which the Employer had accepted liability was causally related to the 1999 incident and the panel would have made its impairment assessment under s 91 accordingly.
Mr McVey submitted that his contention regarding the scope of s 68(4) of the Act is not precluded by Wingfoot. One of the issues in that case was whether an opinion given by a medical panel for the purposes of a claim for medical expenses under s 99 of the Act was final and conclusive for the purposes of a claim for common law damages for a serious injury under s 134AB of the Act. The High Court held that the two claims involved different questions or matters and therefore that the opinion was not applicable.
In Wingfoot, the High Court said the following about the scope and effect of s 68(4) of the Act:
The correct construction of s 68(4) of the Act … is to read the word ‘any’ in the introductory expression ‘[f]or the purposes of determining any question or matter’ as referring to ‘a question or matter’ not ‘all questions and matters’. In respect of a particular opinion of a medical panel on a medical question referred to it, formed under s 68(1) and certified under s 68(2), the question or matter to which s 68(4) refers is the question or matter in which the medical question arose and in respect of which the medical question was referred to the medical panel.
What s 68(4) of the Act on that construction requires is that an opinion of a medical panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the medical panel. What s 68(4) does not require is that the opinion must thereafter be adopted and applied for the purposes of determining some other question or matter.
…
The adoption and application of a medical opinion as required by s 68(4) cannot create an estoppel giving a greater measure of finality to a medical opinion than that provided by s 68(4) itself. …
The only legal effect of the opinion was that given to it by s 68(4) of the Act. That legal effect was spent when the question or matter, in respect of which the medical question was referred to the medical panel, was brought to a conclusion by the order dismissing the statutory compensation application.[25]
[25]Wingfoot (2013) 303 ALR 64, 75–6 [36]–[37], [39]–[40] (emphasis in original) (citations omitted).
According to Mr McVey, the ‘question or matter’ in respect of which the 2007 Opinion must be ‘adopted and applied … and … be accepted as final and conclusive’ included any question or matter regarding any entitlement to any form of compensation under the Act. He contended that, as the medical questions that were referred to the 2007 Medical Panel and those that were referred to the 2013 Medical Panel concerned entitlements to benefits under the Act, the 2013 Medical Panel was required to give effect to the 2007 Opinion. Mr McVey also contended that Judge Coish’s order, which adopted the 2007 Opinion, gave rise to an estoppel which prevents the Employer from acting contrary to that opinion and that order
The Employer submitted that Mr McVey’s characterisation of the ‘question or matter’ for the purposes of s 68(4) of the Act was inconsistent with the analysis of the section in Wingfoot. According to the Employer, the question or matter that was determined by the 2007 Opinion was Mr McVey’s entitlement to weekly payments of compensation under s 93 of the Act whereas the question or matter that was the subject of the medical questions referred to the 2013 Medical Panel was Mr McVey’s entitlement to an impairment benefit under s 98C. It followed, so it was said, that Wingfoot had the effect that the 2013 Medical Panel was not bound by the 2007 Opinion.
The Employer also submitted that, in any event, the 2013 Opinion was not inconsistent with the 2007 Opinion. This was said to be because, consistent with the 2007 Opinion, the 2013 Medical Panel accepted that the 1999 incident had given rise to a compensable schizophrenia injury by way of exacerbation of a pre-existing schizophrenia condition. However, the 2013 Medical Panel went on to conclude that that compensable injury had fully resolved by the date of the 2013 impairment assessment, namely 15 July 2013.
The Employer did not specifically address the question of whether a medical panel can be a ‘body’ that is required by s 68(4) of the Act to give effect to an opinion of a previous medical panel. In our opinion, there are difficulties in treating a medical panel as such a body. First, s 67(1) and (1A) and s 68(1) and (2) make it clear that a medical panel must give ‘its opinion’ on the medical questions that are referred to it. A medical panel that automatically adopts and applies an opinion of a previous medical panel and treats that opinion as final and conclusive, will not reach its own opinion and, accordingly, will not comply with those sections. Secondly, a medical panel’s opinion must be based on the information available to the panel at the time of its assessment rather than on a state of affairs that existed at a previous time.[26] Thirdly, if an opinion of a medical panel determined a particular question or matter, there would be no need to refer any medical questions dealing with that question or matter to another medical panel. As the parties did not make considered submissions on these issues, it is not necessary for us to form a final view on whether a medical panel can be a ‘body’ for the purposes of s 68(4).
[26]See, eg, s 91(1A)(b) of the Act.
In our opinion, Mr McVey’s contention that the 2013 Medical Panel was required by s 68(4) of the Act to give effect to the 2007 Opinion cannot be accepted as it is contrary to the decision in Wingfoot. We agree with the submission of the Employer that the ‘question or matter’ in respect of which the medical questions were referred to the 2013 Medical Panel is not the same as the ‘question or matter’ in respect of which the medical questions were referred to the 2007 Medical Panel. Weekly payments of compensation under s 93 of the Act are periodical payments calculated in accordance with the Act. Eligibility for such payments depends on whether a worker’s work capacity is affected by a compensable injury. On the other hand, an impairment benefit under s 98C is a lump sum payment for an impairment arising from a compensable injury.[27] Eligibility for such a payment is determined by the provisions of ss 91, 98C, 98D and 104B.
[27]See s 98D of the Act.
As s 68(4) of the Act did not apply to the 2013 Medical Panel in relation to the 2007 Opinion, neither that opinion nor the order of Judge Coish which gave effect to it created an estoppel in favour of Mr McVey.
Even if s 68(4) of the Act applied in the present case, it would have required the 2013 Medical Panel to adopt and apply — and accept as final and
conclusive — the 2007 Opinion rather than the reasons for that opinion. The 2007 and 2013 Opinions are not necessarily inconsistent. This is because the 2007 Opinion reflected Mr McVey’s circumstances as at 11 February 2007 and, consistent with
ss 67(1) and (1A), 68(1) and (2) and 91(1A), the 2013 Medical Panel was obliged to make an assessment as at 15 July 2013 and thus to take into account any changes in those circumstances since 11 February 2007.
It follows that the judge correctly held that the 2013 Medical Panel was not bound to give effect to the 2007 Opinion and that grounds of appeal 9 and 10 must be rejected.
Conclusion
For the above reasons, the appeal must be dismissed.
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