Midfield Meat Processing Pty Ltd v Fish

[2015] VSC 195

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 04519

MIDFIELD MEAT PROCESSING PTY LTD	Plaintiff
v
DR DAVID FISH AND OTHERS (according to the attached schedule)	Defendants

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JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 MAY 2015
DATE OF JUDGMENT:	8 MAY 2015
CASE MAY BE CITED AS:	MIDFIELD MEAT PROCESSING v FISH & ORS
MEDIUM NEUTRAL CITATION:	[2015] VSC 195

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ADMINISTRATIVE LAW – judicial review – procedural fairness – workers’ compensation – opinion of medical panel as to injury of worker – ‘undifferentiated somatoform disorder’ – diagnosis could not have been reasonably anticipated – whether breach of rules of natural justice – Accident Compensation Act 1985 (Vic) s 68.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fleming QC with Ms M Lang	Minter Ellison
For the Defendants	Mr A Keogh SC with Mr J Harris	Daniel Lawyers & Associates

HIS HONOUR:

1. Midfield Meat Processing Pty Ltd (‘the employer’) seeks judicial review of the questions answered by the first to fifth defendants (‘the panel’) in respect of Mohamed Karsani (‘the worker’) as explained in reasons dated 17 July 2014 (‘the reasons for decision’).  The questions were referred to the panel by the Magistrates’ Court of Victoria under the provisions of the Accident Compensation Act 1985 (Vic) in a proceeding brought by the worker against the employer for an order that weekly payments of compensation be paid to the worker.

1. The panel is a specialist medical panel under the Act.  In essence, its statutory function in the present case was to express its opinion as to the nature of the plaintiff’s injuries (if any), whether any injuries were work-related, whether he had any capacity for work and whether any incapacity for work was injury-related.  In summary, the panel opined that the plaintiff was suffering from a work-related injury, being ‘undifferentiated somatoform disorder’, which wholly incapacitated him for work.

1. In the proceeding in this court, the employer contends that the decision of the panel should be quashed, and the matter remitted to a differently constituted panel, because the panel committed jurisdictional errors and errors of law on the face of the record.  In particular, it was contended that the panel breached the rules of natural justice, failed to take into account relevant considerations, made a decision that, on the evidence, no reasonable panel could have made and failed to provide adequate reasons for its decision.  Although I have concluded that each of these grounds has substance, it is necessary only to determine the first.

1. It is well established, and was not disputed in this case, that the panel is bound to observe the rules of natural justice when deciding what medical opinions to express in relation to questions referred by the court and that a breach of these rules constitutes a jurisdictional error.[1]  The worker and the employer have legitimate and different interests in the questions in issue.  The statutory procedure allows both to participate in the process by placing relevant information and documents before, and making submissions to, the panel.

   [1]Kioa v West (1985) 159 CLR 550, 582 (Mason J); Barrett Burston Malting Pty Ltd v Kotzman and Ors [2013] VSC 248 (15 May 2013) 13, [32]-[37] (Cavanough J) (‘Barrett Burston’);  Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52, [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); H&G MacDonald Carriers Pty Ltd v Carson [2014] VSC 586 (19 November 2014) 6 [16] ff (Bell J) (‘H&G MacDonald Carriers’).

1. The panel is not a court and operates informally.  It does not conduct a hearing but allows the parties to make submissions and furnish documents and information to it.  In the usual case, the parties ascertain what the issues are from the pleadings in the court and through the exchange of medical reports and like material.  The issues, so ascertained, enable the parties to determine what documents and information, and submissions, should be supplied.

1. In the present case, the pleadings in the court constituted a statement of claim and defence.  These documents joined issue on the worker’s central allegation that he was wholly incapacitated for work by reason of these work-related injuries:

(a)       Injury to his right shoulder.

(b)       Injury to his neck.

(c)       Injury to his right arm.

(d)      Complex regional pain syndrome.

There was no mention in the pleadings of an ‘undifferentiated somatoform disorder’.

1. The parties submitted a great deal of medical reports and like material to the panel.  As relevant to the grounds of relief sought in this court, it revealed that the worker was suffering from a degree of right shoulder and related pain which could not be physically explained.  Some medical practitioners opined that the pain was psychiatric or psychological in origin.  The employer did not accept this diagnosis of the cause of the worker’s pain.  There is no question that this was an issue before the tribunal.  In this court the employer rightly so concedes.  But, before the panel, it was never suggested by any doctor, or in any information presented by either side, that the worker was suffering from an ‘undifferentiated somatoform disorder’.  There were no submissions on the subject.

1. The reasons for decision are carefully considered and reveal that the panel examined the worker and took into account the reports and other information provided by the parties, as it did their submissions.  After noting the differing psychiatric opinions, the panel expressed this conclusion:

The Panel considered that it is likely that the plaintiff had some symptoms of a psychiatric condition, probably an Adjustment Disorder or mild depression, prior to the onset of his right shoulder pain in October 2007, in relation to difficulties involving his future wife coming to Australia.  The Panel considered that this would likely have made the plaintiff vulnerable to the development of a psychological or ongoing pain condition once he had developed right shoulder pain at work.  The Panel also considered that the circumstances of his imprisonment in Sudan would possibly have contributed to his vulnerability.

The Panel noted the reported symptoms of depressed and anxious mood described by the plaintiff, but noted no evidence for these at the interview, and concluded that the plaintiff does not suffer from an ongoing significant mood disorder such as Major Depression or the lesser condition of an Adjustment Disorder.

The Panel noted that the range and type of symptoms described by the plaintiff do not fit any known pathological process.

The Panel concluded on the basis of the plaintiff’s psychological and psychiatric symptoms that the plaintiff is suffering from an undifferentiated somatoform disorder and that this has arisen in the context of a soft tissue injury of the right shoulder which has since resolved.  The Panel therefore concluded that the plaintiff’s undifferentiated somatoform disorder resulted from and was materially contributed to by and results from and is materially contributed to by the injury to the plaintiff’s right shoulder.

1. The reasons for decision do not explain what an ‘undifferentiated somatoform disorder’ is or identify the basis for making this diagnosis.  The material identified in the schedule to the reasons for decision does not assist in this regard.

1. Both parties led expert medical evidence in the proceeding in this court.  I admit that evidence for the sole purpose of understanding the nature of the panel’s diagnosis and the symptoms that it embraces.  This evidence reveals that an ‘undifferentiated somatoform disorder’ is referred to in DSM-IV, which was not in force when the panel expressed its opinion, but was not referred to in DSM-V, which was then in force.  Neither DSM-IV nor DSM-V were referred to in the material before the panel.

1. I accept the submissions made for the employer that it could not have reasonably anticipated that the panel might adopt this diagnosis.  The diagnosis of an ‘undifferentiated somatoform disorder’ came ‘out of the blue’[2] without due notice to the employer party.  The panel thereby breached the rules of natural justice and committed a jurisdictional error.  

   [2]Barrett Burston [2013] VSC 248 (15 May 2013) 19 [49] (Cavanough J); see also H&G MacDonald Carriers [2014] VSC 586 (19 November 2014) 8 [19] (Bell J).

1. I do not accept the thoughtful submissions made for the worker that, although the material before the panel did not refer to an ‘undifferentiated somatoform disorder’, it did establish a factual foundation, in terms of the worker’s presentation and physical symptoms, upon which such a diagnosis could legitimately be based.  Even accepting the panel’s view of that presentation and those physical symptoms, this diagnosis could not have been adopted without bringing the possibility to the attention of the parties.  It is very clear that the employer would have strongly disputed, as it now disputes, that such a diagnosis was appropriate.  I accept its submission that, with notice, it would have made submissions and presented further material as to why it was not appropriate.  Moreover, assuming that, without actually saying so, the panel based its diagnosis upon DSM-IV or DSM-V, there appears to be a question, which may matter in the present case, as to which version applies and how it is to be applied.  The employer should have been given the opportunity to be heard in relation to these questions.  Of course, that would probably have led to a response on behalf of the worker that would also require consideration.

1. I am not by this judgment suggesting that the diagnosis of an ‘undifferentiated somatoform disorder’ is not legally available, that such a diagnosis must be based upon the DSM or any particular version of it or that the panel is confined in its medical function to adopting diagnoses specified therein.  These are all matters for the panel to determine after a fair opportunity to be heard has been afforded to the parties.

1. There will be orders quashing the decision of the panel and remitting the matter for reconsideration according to law by a differently constituted panel.[3]

   [3]As in Barrett Burston [2013] VSC 248 (15 May 2013) 24 [88] (Cavanough J) and H&G MacDonald Carriers [2014] VSC 586 (19 November 2014) 9 [23] (Bell J).

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