Melbourne Health v Jinan Maran; Jinan Maran v Melbourne Health
[2024] VSC 514
•28 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 03736
| MELBOURNE HEALTH | Plaintiff |
| v | |
| JINAN MARAN and OTHERS (according to the attached Schedule) | Defendants |
S ECI 2023 04018
| JINAN MARAN | Plaintiff |
| v | |
| MELBOURNE HEALTH and OTHERS (according to the attached Schedule) | Defendants |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 July 2024 |
DATE OF JUDGMENT: | 28 August 2024 |
CASE MAY BE CITED AS: | Melbourne Health v Jinan Maran & Ors; Jinan Maran v Melbourne Health & Ors |
MEDIUM NEUTRAL CITATION: | [2024] VSC 514 |
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ADMINISTRATIVE LAW – Judicial Review – Certificate of Opinion of Medical Panel – Parties agreed the Certificate contained error - Whether Medical Panel fell into jurisdictional error – Inadequate reasons provided by Medical Panel – Medical Panel opinion quashed – Questions to be referred to a differently constituted medical panel – Santos v Waldron [2009] VSC 303 – Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 – Supreme Court (General Civil Procedure) Rules 2015 – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For Melbourne Health | Mr R Kumar and Ms S Gold | Hall & Wilcox |
| For Ms Maran | Mr P Czarnota and Mr A Macaskill | Arnold Thomas & Becker |
HER HONOUR:
Introduction
Ms Jinan Maran is a 45 year old woman who, between December 2017 and December 2019, was employed by Melbourne Health at the Royal Melbourne Hospital in Parkville, where she worked as a food services assistant. Ms Maran claims she suffered injuries during the course of her employment. This judgment is delivered in respect of two proceedings heard together: one issued by Ms Maran, and the other issued by Melbourne Health. In their originating motions, both parties seek judicial review[1] of a decision of a medical panel who examined Ms Maran for the purpose of answering medical questions relevant to her entitlement to compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
[1]Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules2015.
Ms Maran has lodged a number of claims for worker’s compensation with respect to her alleged injuries. A compensation claim by Ms Maran for injuries to her left and right shoulders, wrists and hands, and mind (the first claim)[2] was rejected, as was a further claim for injury to her neck. Ms Maran subsequently issued Magistrates’ Court proceedings seeking to have the decisions to reject her claims set aside.[3] Following an application by Ms Maran, the Magistrates’ Court referred certain medical questions concerning her claimed injuries to the Convenor of Medical Panels for determination.[4]
[2]I have adopted the defined terms as pleaded by Ms Maran in her Magistrates’ Court proceeding, and used by the parties in their respective originating motions.
[3]Save for an aspect of the first claim which related to a claimed psychiatric injury arising out of alleged workplace bullying.
[4]Pursuant to s 274(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’).
Ms Maran was examined by the Medical Panel on 8 and 10 May 2023. On 19 July 2023, the Panel delivered its Certificate of Opinion, in which it provided answers and accompanying reasons in response to the referred medical questions. With respect to Ms Maran’s claimed physical injuries, in answer to one question, the Panel stated its opinion that she had suffered temporary symptoms in her left wrist/hand which had resolved. In a separate answer, the Panel expressed the opinion that Ms Maran’s employment with Melbourne Health was a significant contributing factor to the development of temporary symptoms in both her wrists/hands, which had resolved.
With respect to Ms Maran’s claimed psychiatric injury,[5] the Panel expressed the opinion that she was suffering from a major depressive disorder. The Panel stated that Ms Maran had no capacity for work between 11 November 2019 and the date of the Certificate, and that this incapacity had been materially contributed to by her major depressive disorder. The Panel considered that this incapacity was likely to continue indefinitely. However in answering the medical questions, the Panel did not state that Ms Maran’s major depressive disorder had resulted from, or been materially contributed to by her claimed injuries. The parties agreed there was an error in the Certificate, as under the Act, an incapacity for work must relate an accepted injury.
[5]Being a secondary psychiatric injury arising by reason of her claimed physical injuries.
In Melbourne Health’s originating motion, it alleges the Panel fell into jurisdictional error and/or erred in law by failing to link Ms Maran’s incapacity for employment with any compensable injury, erred in its conclusion as to the aetiology of the major depressive disorder, and failed to provide adequate reasons for its conclusions in the Certificate. It seeks an order in the nature of certiorari quashing the Panel’s Certificate, and an order in the nature of mandamus remitting the referred medical questions for reconsideration by a differently constituted medical panel.
In Ms Maran’s originating motion, she alleges that the Panel fell into jurisdictional error by failing to properly consider and correctly record its answers to the referred medical questions concerning conditions caused by her claimed injuries. She seeks an order in the nature of mandamus that only certain questions be remitted back to the Panel, for it to review and revise its answers, so they accord with its reasons.
For the reasons that follow, I will grant the relief sought by Melbourne Health.
Procedural background
In addition to the two claims the subject of the Magistrates’ Court proceeding, Ms Maran had previously submitted a separate claim for compensation on 11 November 2019, in relation to a right carpal tunnel injury which she allegedly suffered in a specific incident at work on 2 October 2019 (the initial claim). This claim was rejected. On 16 December 2019, Ms Maran lodged a dispute against the determination to the Accident Compensation Conciliation Service, which was thereafter referred to the Convenor.
A differently constituted medical panel (the previous medical panel) provided a certificate of opinion and accompanying reasons in relation to the initial claim on 3 September 2020. In that opinion, the previous medical panel stated that Ms Maran’s ‘symptomatic Right carpal tunnel syndrome (now fully resolved) (did not) and does not result from, and (was not) and is not materially contributed to by the claimed “right wrist” injury claimed to have occurred on 2 October 2019’.
Ms Maran did not seek judicial review of the previous medical panel’s opinion. The initial claim is only relevant to these proceedings insofar as the Panel was required to disregard the alleged incident on 2 October 2019 for the purpose of assessing Ms Maran’s claimed right hand/wrist injury in the first claim, and in that the date which the Panel opined Ms Maran has had no capacity for work from, 11 November 2019, is the date she lodged the initial claim.
On 4 November 2020, Ms Maran submitted the first claim. In her claim form, she claimed to suffer injury to her ‘shoulders, wrists, hands, mind’ which she said were caused by ‘repetitive injuries including picking, packing, lifting, pushing trolleys, cleaning including cleaning trays, preparing fluid trolley, secondary psychological injury, psychological injury due to bullying’.
On 19 November 2020, the authorised agent of Melbourne Health rejected Ms Maran’s claimed physical injuries and secondary psychological injuries in the first claim, on the grounds that she had not sustained an injury arising out of, or in the course of her employment (the first notice).
On 3 December 2020, the agent rejected Ms Maran’s claim in respect of primary psychological injury in the first claim, on the grounds that she had not sustained an injury arising out of, or in the course of her employment, and that her claimed injury was caused by stress of a type which did not create an entitlement to compensation under the Act (the second notice).
Ms Maran subsequently commenced proceedings in the Magistrates’ Court in respect of the first notice, but not the second notice. Ms Maran sought weekly payments of compensation, together with medical and like expenses.
On 25 February 2022, Ms Maran submitted the further claim. This was rejected by the agent on 28 March 2022 (the third notice). The Magistrates’ Court proceeding was then amended to include the third notice.
Following the Magistrates’ Court’s referral of certain questions to the Convenor, the Panel was subsequently convened. Ms Maran was examined by a five-member panel. On 8 May 2023, Ms Maran was examined by occupational and environmental physician, Dr David Kotzman; orthopaedic surgeon, Mr Keith McCullough; and rheumatologist, Dr Daniel Lewis. On 10 May 2023, she was examined by psychiatrists, Dr Brendan Hayman and Dr Laura Cooney. These panel members are the respective second to sixth defendants in each proceeding. As is the usual arrangement, these defendants adopted a Hardiman[6] position, in that they did not take an active role in the proceedings and indicated by way of correspondence that they would abide by the decision of the Court.
[6]R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman (1980) 144 CLR 13, 35.
In a joint statement provided to the Panel by the parties it was agreed that:
(a) Ms Maran did not rely on any right carpal tunnel syndrome insofar as it was sustained in a particular accident on 2 October 2019.[7]
(b) Ms Maran did not rely on any primary psychiatric injury.[8]
[7]This was in accordance with the opinion of the previous medical panel, for the initial claim.
[8]This had been the subject of the second notice, which did not form part of the dispute in the Magistrates’ Court.
On 31 May 2023, the Deputy Convenor wrote to the parties and advised that, although it had not yet formed an opinion, it was considering a possibility that Ms Maran may be suffering from a major depressive disorder relevant to the claimed injuries. The parties were invited to make submissions or provide further material on this point. The parties thereafter provided further submissions in response to this invitation, and Melbourne Health provided a supplementary medico-legal report.
The Panel’s Certificate and reasons were delivered on 19 June 2023. The medical questions and answers in the Certificate read as follows:
Question 1: What is the nature of any medical condition of the Plaintiff, relevant to the injuries claimed in paragraph 5 of the Amended Statement of Claim (the claimed injuries), namely:
(a) Injury to the Right Shoulder?
(b) Injury to the Right Wrist?
(c) Injury to the Right Hand?
(d) Injury to the Left Shoulder?
(e) Injury to the Left Wrist?
(f) Injury to the Left Hand?
(g) Injury to the Neck?
(h) Secondary Psychological Injury?
Answer: The Panel is of the opinion that Ms Maran suffered temporary symptoms in the left wrist/hand, which resolved, and she is not currently suffering from any physical medical condition, relevant to any of the alleged physical injuries.
The Panel is also of the opinion that Ms Maran is suffering from a major depressive disorder.
Question 2: Was the Plaintiff’s employment with the Defendant between 18 December 2017 and 6 December 2019 a significant contributing factor to any, and if so which, of the following claimed injuries:
(a) Injury to the Right Shoulder?
(b) Injury to the Right Wrist?
(c) Injury to the Right Hand?
(d) Injury to the Left Shoulder?
(e) Injury to the Left Wrist?
(f) Injury to the Left Hand?
(g) Injury to the Neck?
Answer: The Panel is of the opinion that Ms Maran’s employment with the Defendant between 18 December 2017 and 6 December 2019 was a significant contributing factor to the development of temporary symptoms in the wrists/hands, which have now resolved.
Question 3: If ‘yes’ to any part of Question 2:
(a) during any, and if so what, period(s) between September 2019 and the date of the Medical Panel’s Opinion, did any, and if so which, medical condition(s) identified in response to Question 1 result from, or was it materially contributed to by, any, and if so which, of the claimed injuries?
(b) as at the date of the Medical Panel’s Opinion, does any, and if so which, medical condition(s) identified in response to Question 1 result from, or is it materially contributed to by, any, and if so which, of the claimed injuries?
Answer:
(a) In the Panel’s opinion, the temporary symptoms in the wrists/hands were materially contributed to the alleged injuries to the wrists/hands from 3 October 2019 until 11 November 2019, after which they had resolved.
(b) Not applicable.
Question 4: During any, and if so what, period(s) between 11 November 2019 and the date of the Medical Panel’s Opinion, did the plaintiff have:
(a) an incapacity for her pre-injury employment as a Food Services Assistant?
(b) a current work capacity?
(c) no current work capacity?
Answer: The Panel is of the opinion that in the period between 11 November 2019 and the date of the Medical Panel Opinion, Ms Maran had no current work capacity.
Question 5: If ‘yes’ to any part(s) of Question 4, did the incapacity result from, or was it materially contributed to by, any, and if so which, of the claimed injuries?
Answer: In the Panel’s opinion, Ms Maran’s incapacity for all work was materially contributed to by the major depressive disorder.
Question 6: If ‘yes’ to Question 4(c), was the Plaintiff’s no current work capacity likely to continue indefinitely?
Answer: Yes.
Question 7: As at the date of the Medical Panel’s Opinion, does the plaintiff have:
(a) an incapacity for her pre-injury employment as a Food Services Assistant?
(b) a current work capacity?
(c) no current work capacity?
Answer: The Panel is of the opinion that as at the date of the Medical Panel Opinion, Ms Maran has no current work capacity.
Question 8: If ‘yes’ to any part(s) of Question 7, does the incapacity result from, or is it materially contributed to by, any, and if so which, of the claimed injuries?
Answer: In the Panel’s opinion, Ms Maran’s incapacity for all work is still materially contributed to by the major depressive disorder.
Question 9: If ‘yes’ to Question 7(c), is the Plaintiff’s no current work capacity likely to continue indefinitely?
Answer: Yes.
On the same day, the Panel provided its reasons for opinion.
In its reasons, the Panel noted Ms Maran’s work history, her complaints as to the claimed injuries, when her symptoms developed, and the treatment which she had received. The Panel also noted that it was constrained by the matters referred to in paragraph [17] above.
In respect of Ms Maran’s current symptoms, the Panel recorded:
She currently complains of primarily right-sided symptoms, with the tingling in the left and right hands having resolved. She complains of constant pain in the right side of the neck, right shoulder, right elbow, and right wrist. She also complains of weakness in the right hand. She said that her symptoms do not cause problems at rest, but are aggravated by minimal activity of the right arm…
The Panel then noted Ms Maran’s psychiatric history. As part of this, the Panel recorded the following history, relevant to Ms Maran’s physical complaints:
Significantly she noted, following the initial right wrist pain, the pain soon progressed to the right shoulder, neck and side of head. She said that at the time of ceasing work, she had pain affecting all these areas.
She said she has continued to have ongoing pain at these sites. She said the shoulder pain is constant, but the other pains are episodic, particularly with movement or exertion. She noted she had various treatments which had been of little benefit. She said the only real assistance had come from hydrotherapy…
The Panel thereafter detailed Ms Maran’s psychiatric symptoms, developmental history, and its finding on physical examination.
The Panel then stated the following:
Physical Diagnosis
The Panel took account of the circumstances of the onset of symptoms in the hands from 3 October 2019, in the context of undertaking physically demanding repetitive work, but that she ceased work on 11 November 2019. The Panel concluded that Ms Maran suffered temporary symptoms in the left wrist/hand, but also noted the normal findings on nerve conduction studies and the normal findings on physical examination, and concluded that any symptoms in the hands/wrists suffered by Ms Maran have resolved, and that she is not currently suffering from any physical medical condition, relevant to any of the alleged physical injuries.
…
Later, in providing its psychiatric diagnosis, the Panel stated:
The Panel noted that she believes she sustained a physical injury during the course of her work, commencing in September 2019. By her account, this began with her right wrist injury, but then soon developed to involve her right shoulder, neck, and head. Significantly, she felt she had been treated poorly and unsupported by her supervisors, following declaration of her initial injury. She believes she was deliberately placed on more arduous dishwashing tasks on the day after reporting her injury, which further exacerbated the injury.
…
The Panel considered that Ms Maran has developed a significant depressive disorder beyond the scope of merely an adjustment disorder. The Panel concluded that it meets criteria for a major depressive disorder, particularly given the significant accompanying neurovegetative symptoms. This has occurred consequent to her experience of pain involving the shoulder, neck, head and wrist. It has also occurred in the setting of the perceived lack of support and “bullying” consequent to her declaring her injury to her supervisors. The Panel noted the ongoing protracted nature of her depressive symptoms being beyond that of merely an adjustment disorder. The Panel also noted the significant severity of the depressive symptoms, particularly with neurovegetative accompaniments. The Panel noted this is beyond the scope of a mere adjustment disorder and meets criteria for a major depressive disorder.
The Panel then stated:
Significant Contributing Factor
The Panel took account of Ms Maran’s history, noting the repetitive and physically demanding nature of her work duties, with the onset of symptoms in both hands/wrists, for which she consulted a general practitioner on 3 October 2019. The Panel noted that she ceased work on 11 November 2019. Based on this information, the Panel concluded that Ms Maran’s employment with the Defendant between 18 December 2017 and 6 December 2019 was a significant contributing factor to the development of temporary symptoms in the wrists/hands, which have now resolved.
Material Contribution
For the same reasons, the Panel concluded that the temporary symptoms in the wrists/hands were materially contributed to the alleged injuries to the wrists/hands from 3 October 2019 until 11 November 2019, after which they had resolved.
The Panel noted that Ms Maran had developed the aforementioned temporary physical symptoms to the wrists and hands from 3 October 2019 until 11 November 2019. The Panel noted that from an organic perspective, no ongoing injury was then apparent, and the physical condition had resolved. However, Ms Maran herself had continued to perceive pains and a range of physical symptoms nonetheless. Ms Maran developed a significant depressive condition consequent to this and her perceived inability to work. This developed into a significant major depressive disorder which continues on currently. As such, the Panel concluded that the major depressive disorder was materially contributed to by the initial wrist/hands condition.
Work Capacity
The Panel considered whether Ms Maran had, or has, a current work capacity.
The Panel concluded that Ms Maran believes she has sustained a significant physical injury, with her experience of pain, and this has continued contributing to the development of an ongoing depressive condition…
Taking account of the nature and severity of Ms Maran’s psychiatric condition, the Panel was of the opinion that her incapacity for all work is likely to persist for the foreseeable future.
In conclusion, the Panel stated:
Notwithstanding that there has been no accepted physical work-related injury, the Panel concluded that her major depressive disorder has occurred consequent to her perceived injury and the subsequent pain associated with her work. It has also occurred consequent to the perceived ‘bullying’ by her supervisors.
Observations as to the Panel’s Certificate of Opinion and reasons
Before considering the parties’ submissions, the following can be observed from the above:
(a) The Panel’s answer to question 1 referred to Ms Maran having suffered temporary symptoms in her left wrist/hand, which in its opinion had resolved. Despite the question asking about the claimed injuries to Ms Maran’s right shoulder, right wrist, and right hand, the Panel did not identify any medical condition relevant to those injuries.
(b) The Panel’s answer to question 2 expressed the opinion that Ms Maran’s employment with Melbourne Health was a significant contributing factor to the development of temporary symptoms in her wrists/hands, which had resolved. There is an obvious inconsistency between the reference in this answer to symptoms in both wrists/hands, and in the Panel’s previous answer to question 1 which referred to symptoms in only her left wrist/hand.
(c) The Panel’s answer to question 3 referred to temporary symptoms in the wrists/hands, which it considered had resolved after 11 November 2019. This answer has the same problem as the Panel’s answer to question 2, in that it is inconsistent with the answer given to question 1.
(d) The Panel’s answers to questions 4 to 9 expressed the opinion that Ms Maran has no current work capacity, and that this incapacity was, and is materially contributed to, by her major depressive disorder. However, there was no reference to this psychiatric disorder in its answer to question 3.
(e) In reaching its psychiatric diagnosis, the Panel stated that this disorder occurred consequent to Ms Maran’s experience of pain involving the wrist, shoulder, neck and head. By implication, this was a reference to her right upper limb. In so finding, the Panel made no specific reference to Ms Maran’s left wrist/hand complaint, which was the only physical injury it referred to in its answer to question 1.
(f) Whilst the Panel noted that Ms Maran’s depressive condition had occurred in the setting of a ‘perceived lack of support and “bullying”’, the Panel was not permitted to take account of any primary psychiatric condition, as this was not the subject of the claim before it.
(g) The Panel expressed the opinion that Ms Maran’s employment was a significant contributing factor to the development of temporary symptoms in her wrists/hands, which had now resolved. As observed above, the reference to bilateral symptoms was inconsistent with the Panel’s answer to question 1, which identified temporary symptoms in only the left wrist/hand. The same observation can be made in respect of what the Panel said when offering its opinion on material contribution.
(h) In the concluding paragraph of its reasons, the Panel stated that there has been no accepted physical work-related injury. It is unclear how this statement fits with its acceptance of Ms Maran suffering temporary symptoms in Ms Maran’s left wrist/hand (and/or wrists/hands). The same paragraph also explicitly referred to the depressive disorder having occurred consequent to the bullying, a matter which was outside the scope of its referral. This paragraph highlights the uncertainty as to how Ms Maran’s major depressive disorder can be related to a compensable injury insofar as it concerns the first and further claims.
Grounds of review
Error apparent from the Certificate
As noted above, the parties agreed that the answers to questions 4-9 were inconsistent with the answer to question 3. This is because, under the Act, a worker’s entitlement to weekly payments only arises if the worker has an incapacity which results from, or is materially contributed to by, an accepted injury.[9] The Panel’s finding of Ms Maran having no current work capacity from 11 November 2019 until the date of the Certificate, was inconsistent with its answer to question 3(a) which stated that she had experienced temporary symptoms for a limited period of approximately six weeks until 11 November 2019.
[9]The Act (n 4), s 160.
In Ms Maran’s originating motion, she alleges the Panel failed to properly record its answers. It was submitted that when the answers contained in the Certificate are read with the Panel’s reasons, the errors in the answers are obvious. These errors were said to be:
(i) failure to refer to major depressive disorder in answer to question 3(a), in circumstances where the Panel had stated in its reasons, that this disorder was materially contributed to by the initial wrists/hands condition; and
(ii) failure to refer to major depressive disorder in answer to question 3(b), in circumstances where the Panel had stated in its reasons, that as at the time of its examination, Ms Maran continued to suffer from this disorder, which was materially contributed to by the initial wrists/hands condition.
Ms Maran characterised these errors as being administrative in nature, and not substantive. It was suggested that they were akin to clerical mistakes, or accidental slips or omissions, made in Court orders, which are capable of correction pursuant to Order 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules).
It was submitted that, in this premise, the Court should remit the matter to the same Panel, with a recommendation that the Panel give consideration to amending its answers to questions 3(a)-(b) so as to include reference to major depressive disorder, in accordance with its reasons. In support of this submission, Ms Maran referred to the decision of Santos v Waldron,[10] where it was said that Smith J proceeded on the basis that a medical panel could correct a slip once an opinion had been rendered.
[10][2009] VSC 303, [15]-[16] (‘Santos’).
In response, Melbourne Health submitted that altering the certified opinion of an independent expert medical panel to cure what would otherwise be legal error was not akin to the type of error the Court can correct pursuant to rule 36.07. It was submitted there was no basis for the Court to recommend a medical panel alter a certificate of opinion. Further, in respect of Ms Maran’s reliance on Santos, it was said that Smith J’s remarks were obiter and in relation to the ability for a medical panel to provide amended reasons, not an amended certificate of opinion. In addition, Melbourne Health submitted that Ms Maran’s submissions were impracticable, as they assume the five members of the Panel are still on the list of members able to be convened,[11] and that it would be reasonably practicable to reconvene the five of them.
[11]The Act (n 4) s 537(2).
Instead, Melbourne Health submitted that the Court should be satisfied from the Certificate itself that Panel must have fallen into error – either in misdirecting itself as to the meaning of the term current work capacity, and/or by failing to perform its statutory function. Following from such error, Melbourne Health submitted that is necessary to at least quash the answers to questions 1(h) and 3-9, but that it was preferrable for the Certificate of Opinion to be quashed and the questions remitted to a different panel for answering in accordance with law.
Analysis
Unless this Court gives one of the remedies sought by the parties, the Magistrates’ Court is bound to adopt and apply the Panel’s Certificate of Opinion.[12]
[12]Ibid, s 313(4).
The answers to questions 4-9 cannot be reconciled with the answers to question 3. The Panel stated that Ms Maran’s incapacity for work was materially contributed to by her major depressive disorder, but it did not state that this disorder resulted from, or was materially contributed to by, any of her claimed injuries. As it is, the Certificate cannot be allowed to stand, as it contains jurisdictional error.
The question for the Court is what is to be done with this error. Should the Court accept Ms Maran’s proposal, and recommend to the Panel it amend its answers to question 3? Or should the Certificate of Opinion be quashed, either in whole or part?
I am not presently persuaded that the Court has the power to recommend to a medical panel that it amend or correct its certificate of opinion. The Rules are of no application. The decision of Santos related to errors in a medical panel’s reasons. Further, Smith J did not permit the reasons be amended. Instead, his Honour quashed the medical panel’s opinion, and ordered the matter be referred to a new panel.
Contrary to what Ms Maran asserts, it is not clear from the reasons that the errors in the Certificate of Opinion are merely typographical. In this regard, it is worth comparing the present case, with the circumstances giving rise to the judgment in Santos. There, the plaintiff had injured his left knee in a fall at a shopping centre, and sought damages from the occupier pursuant to the Wrongs Act1958 (Vic). The plaintiff was examined by a medical panel for the purpose of determining if he suffered more than 5% whole person under the American Medical Association Guides to Evaluation of Permanent Impairment. In its certificate of opinion, the medical panel stated that the plaintiff did not satisfy the threshold level. In its reasons, it referred on multiple occasions to the plaintiff’s left knee injury. However, the medical panel then referred to the plaintiff’s right knee on two occasions in detailing its impairment assessment. Smith J accepted that, whilst this may have been a typographical or dictation error, other explanations were also possible, including that the medical panel accidentally expressed its conclusion as to the right knee assessment from an unrelated patient.[13]
[13]Santos (n 10), [18].
As noted above, there appears to be multiple errors in the Panel’s Certificate of Opinion. Given the answer in question 1 refers only to Ms Maran’s left wrist/hand, it is possible the subsequent reference to hands/wrists in answers 2 and 3 are typographical errors. Alternatively, a typographical error may be contained in answer 1. The failure of the Panel to refer to major depressive disorder in its answer to question 3 may, or may not, be an accidental omission. If it was accidental, it is a material omission given the Panel’s answers to questions 4 to 9 depend upon that major depressive disorder being materially contributed to by the claimed injuries.
For those reasons, I am satisfied that the Panel erred in its answers to the medical questions asked of it. Given the extent of the errors, I am satisfied the whole of its Certificate of Opinion should be quashed.
Error in the aetiology of the major depressive disorder
In addition to the above, Melbourne Health alleges that the Panel fell into jurisdictional error in concluding that Ms Maran’s major depressive disorder was materially contributed to by the only injury to which her employment had been identified as a significant contributing factor, namely the initial wrist/hands condition.
The Panel recorded that after the resolution of Ms Maran’s organic condition in November 2019, she continued to perceive pain and a resultant perceived inability to work. Melbourne Health submitted that the ‘perception’ of pain or ‘perception’ of disability, without disturbance of the normal physiological or psychological state, is not capable of constituting a relevant primary compensable injury.[14] Further, a condition arising subsequent to a ‘perception’ not itself constituting an injury, is not (and cannot be) a compensable secondary injury. For those reasons, Melbourne Health submitted that I should be satisfied that the Panel’s answers to question 3 were correct, and that the conclusion as to material contribution within the reasons was in error.
[14]Citing Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 483 [57].
Ms Maran submitted I should find to the contrary. She submitted that the Panel was correct to state in its reasons that her major depressive disorder was materially contributed to by the initial wrist/hands condition. It was put that the reference in the Panel’s reasons under material contribution to ‘initial wrist/hands condition’ ought to be fairly read in its plain, plural form as referring to both left and right wrists and hands. It was said that this was consistent with the Panel’s answer to question 2, and the reasons more generally, which refer variously to complaints in relation to Ms Maran’s right upper limb, hands, wrist, and shoulder.
It was emphasised by Ms Maran that, for her employment to have materially contributed to her major depressive disorder, and the disorder to be compensable, the initial compensable physical injury need only be a cause, not the sole or dominant cause.[15] She submitted that the Panel’s reference to other factors which may have also contributed to the disorder, including her perception of how she was treated at work, and her perception of pain since ceasing work, did not detract from its finding that it was materially contributed to by the initial wrists/hands condition.
[15]Citing Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, [58] (Ashley JA).
As to the final paragraph of the reasons which referred to there being ‘no accepted physical work-related injury’, Ms Maran submitted that this statement needed to be read in the context of the Panel having acknowledged the previous medical panel opinion, which had reached a different conclusion in finding no physical injury. It was conceded that this final paragraph ‘could have been better worded’, but that when the opinion and reasons are read as a whole, the Panel did accept initial compensable physical injuries, which materially contributed to the major depressive disorder.
Analysis
In respect of the aetiology of Ms Maran’s major depressive disorder, the Panel’s reasons on this can fairly be described as confusing.
In referring to Ms Maran’s psychiatric history, the Panel noted that Ms Maran had ultimately ceased all work in December 2019 as she remained in too much pain, and that at that time she had pain affecting her right shoulder, neck and side of head. Given the Panel’s determination that the temporary symptoms in the left hand/wrist (or even accepting this to be bilateral hands/wrists) had ceased by 11 November 2019, the Panel does not explain how Ms Maran’s perception of pain at that time, and the development of a major depressive disorder, was causally related to that resolved physical injury.
The confusion surrounding Ms Maran’s major depressive disorder is highlighted in the final paragraph of the Panel’s reasons, where it states that this had occurred consequent to her perceived injury and perceived bullying. The Panel’s reliance upon a causal connection between the major depressive disorder and a perceived injury demonstrates error. A subjective belief of an injury is insufficient to constitute a compensable injury.[16] Further, the Panel’s reference to bullying in its concluding paragraph also suggests error, given it was not permitted to have regard to any primary psychiatric injury.
[16]Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 483-4 [57]-[62].
Inadequate reasons
A medical panel constituted under the Act has a statutory obligation to provide reasons for its opinion.[17] In doing so, it must explain its ‘actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law’.[18]
[17]The Act (n 4) s 313(2).
[18]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55].
Melbourne Health alleged the Panel’s reasons were inadequate, as it had not explained how a six week temporary period of symptoms associated with Ms Maran’s now resolved physical injury would, or could, cause her ongoing widespread complaints of pain and disability (in the absence of any physical or psychological diagnosis to explain such symptoms).
In considering the adequacy of the reasons of an administrative decision-maker, the Court should not be overly zealous.[19] Further, such reasons should be given a beneficial construction.[20] However even with those provisos, as is apparent from what I have identified above, the reasons of the Panel are inadequate.
[19]Minister for Immigration andEthnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Dunbar v Bas [2019] VSCA 315, [51].
[20]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271; Ryan v The Grange at Wodonga [2015] VSCA 17, [109].
The reasons do not adequately explain how a temporary physical condition in Ms Maran’s left hand/wrist (or even accepting it as a bilateral condition) which resolved within six weeks, is a cause of her major depressive disorder, which the Panel noted had developed consequent to perceived pain, as well as a perceived inability to work.
The reasons contain contradictory statements, in that they refer first to Ms Maran suffering temporary symptoms in the left wrist/hand, and then conclude later that her employment was a significant contributing factor to the development of temporary symptoms in both wrists/hands. The reasons do not adequately explain this internal contradiction.
Given the above, I am not satisfied that the Panel correctly performed its statutory function, as it failed to adequately explain its actual path of reasoning in sufficient detail to enable me to see whether the opinion did or did not involve any further error of law in addition to those already identified above.
Grounds not required to be determined
Melbourne Health also alleged that the Panel failed to accord procedural fairness in respect of its findings as to the aetiology of Ms Maran’s psychiatric condition. For the reasons given, it is not necessary for me to separately determine this ground of review.
Ms Maran alleges in her originating motion that the Panel had failed to provide adequate reasons in its answer to question 3(b). However, this ground of review was not advanced in her written submissions nor at hearing.
Conclusion
For those reasons, the Panel’s Certificate of Opinion should be quashed in its entirety. Given the errors of law identified, even presuming that it was practically possible it is not appropriate that the medical questions be referred back to the same Panel. The medical questions are to be answered by a differently constituted medical panel.
I will hear from the parties as to the terms of final orders to be made in both proceedings, so as to give effect to this judgment.
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SCHEDULE OF PARTIES
S ECI 2023 03736
BETWEEN:
| MELBOURNE HEALTH | Plaintiff |
| -v- | |
| JINAN MARAN | First Defendant |
| -and- | |
| DR DAVID KOTZMAN | Second Defendant |
| -and- | |
| DR KEITH MCCULLOUGH | Third Defendant |
| -and- | |
| DR DANIEL LEWIS | Fourth Defendant |
| -and- | |
| DR BRENDAN HAYMAN | Fifth Defendant |
| -and- | |
| DR LAURA COONEY | Sixth Defendant |
S ECI 2023 04018
BETWEEN:
| JINAN MARAN | Plaintiff |
| -v- | |
| MELBOURNE HEALTH | First Defendant |
| -and- | |
| DR DAVID KOTZMAN | Second Defendant |
| -and- | |
| DR KEITH MCCULLOUGH | Third Defendant |
| -and- | |
| DR DANIEL LEWIS | Fourth Defendant |
| -and- | |
| DR BRENDAN HAYMAN | Fifth Defendant |
| -and- | |
| DR LAURA COONEY | Sixth Defendant |
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10
0