Moore v Barton
[2014] VSC 78
•17 MARCH 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2013 03126
| GAYLE MAREE MOORE | Plaintiff |
| v | |
| DAVID BARTON and OTHERS (according to the attached schedule) | Defendant |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 DECEMBER 2013 | |
DATE OF JUDGMENT: | 17 MARCH 2014 | |
CASE MAY BE CITED AS: | MOORE v BARTON | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 78 | |
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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Workers’ compensation – Medical panel – Surveillance video used by Panel – Worker not afforded an adequate opportunity to explain what the video apparently showed – Finding of strong tendency to somatisation based on no clinical evidence of relationship between allergic reactions and accepted back injury– No evidence supporting finding of that tendency – Further finding that Panel had made no finding about that relationship – Finding unreasonable or irrational - Panel’s opinions quashed – Medical questions remitted for reconsideration by fresh panel – Accident Compensation Act 1985 s 68.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr K Hanscombe SC with Mr CE Hangay | Shine Lawyers |
| For the Defendant | Mr M Fleming SC with Mr R Kumar | Thomsons Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background facts................................................................................................................................ 1
The Panel’s reasons............................................................................................................................ 1
Issues in the proceeding................................................................................................................... 1
Was the plaintiff accorded procedural fairness?......................................................................... 1
Legal principles: procedural fairness......................................................................................... 1
Legal principles: reasons.............................................................................................................. 1
The seventh defendant’s contentions......................................................................................... 1
Analysis.......................................................................................................................................... 1
Did the Panel draw conclusions that were not open on the evidence before it.................... 1
Legal principles: findings not open on the evidence............................................................... 1
Legal principles: findings unreasonable or illogical................................................................ 1
The Panel’s finding....................................................................................................................... 1
Conclusions......................................................................................................................................... 1
HIS HONOUR:
Introduction
In October 1985, the plaintiff claimed compensation under the Accident Compensation Act 1985 (‘the Act’) for weekly payments of compensation and medical and like expenses alleging a back strain injury said to affect her hip and back. Her claim of serious injury was accepted and she received weekly payments and medical expenses. On 4 April 2012, the employer’s claims agent rejected a request made, on behalf of the plaintiff, by Mr Andrew Morokoff, a neurosurgeon, for a 3 level ‘extreme lateral interbody fusion’ or XLIF procedure. The claims agent considered that the procedure was not a reasonable medical expense. Further, as the plaintiff’s whole person impairment was assessed at 20 percent, the employer’s claims agent determined that the plaintiff no longer had a serious injury and gave notice reducing her weekly payments.
Both the rejection of the request for medical expenses and the reduction in the weekly payment entitlement rate were referred to conciliation pursuant to s 55 of the Act. Following conciliation, on 18 September 2012, the conciliator pursuant to s 56(6) of the Act referred certain medical questions to a medical panel for its opinion under s 68 of the Act. The Panel’s opinion was unfavourable to the plaintiff.
The plaintiff seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 to quash the Panel’s opinion. The opinion was certified in writing on 20 April 2013 and accompanied by written reasons for opinion dated the same day. The plaintiff also seeks an order in the nature of mandamus remitting the referred medical questions to a differently constituted medical panel. The plaintiff (“the worker”) is the former employee of the seventh defendant, Melbourne Health (“the employer”). The first to sixth defendants comprised the medical panel.
Background facts
The referral by the conciliator included the information required by s 65(6A) of the Act and, pursuant to s 65(6B) of the Act, a bundle of documents and other material, including video surveillance, accompanied the referral. On 11 December 2012, the plaintiff was examined directly by three members of the Panel, Mr Keith Elsner and Mr Barry Elliott who are orthopaedic surgeons and Dr David Barton who is an occupational physician. On 29 January 2013, the plaintiff was examined by Dr Stephen Adlard, a psychiatrist and separately by Dr David Barton. On 28 March 2013, the plaintiff was examined by Mr James Cummins, a neurosurgeon and Mr Ross Snow, a urologist.
On 11 December 2012, the plaintiff was told about the video surveillance of her that had been provided to the Panel but she did not view it until examined separately by Dr Barton on 29 January 2013. That examination appeared to be for the express purpose of permitting the plaintiff to view the surveillance video.
On 11 December 2012, the surveillance video, although not watched, was referred to. On that occasion, the plaintiff made some observations to the Panel about the video, attempting to answer what she thought the Panel wanted to know. The plaintiff told the examining doctors that she was unable to be continuously medicated with anti-inflammatory drugs. Every few months, for up to a week, she took additional, or increased, medication for inflammation and pain relief. She said she specifically saved medication from the recommended dosage. On such occasions she had ‘good days’ when she could ambulate somewhat more easily. The surveillance footage, she believed, showed her on her ‘good days’, attending her knitting group.
At trial, the plaintiff told the cross-examiner that she told the Panel about leaving the house on her ‘good days’, although she had not seen the video, because she could only leave the house when she saved her medication and was having a good day. The plaintiff assumed that the surveillance had been taken on a Tuesday because she went to her knitting group on Tuesdays and would also visit the pharmacy, the post office or do a little shopping on that day.
On 29 January 2013, when she viewed the video with Dr Barton, he played most of it on fast forward and did not ask the plaintiff any questions when the film was running. On occasions, when the film was slowed down to normal speed for a ‘relevant bit’, the plaintiff observed that the film showed her attending the local community hall where she attended on Tuesdays for her knitting and spinning craft group. She also observed an occasion when she was waiting in the street for a taxi after consulting an examining doctor.
The plaintiff was unable to provide any explanations to Dr Barton during the playing of the video because he would not accept explanation from her. He told her that she was just there to view the video. When it concluded, he asked her whether she agreed with the surveillance. The plaintiff did not deny that it was her but could not see anything wrong with what she was doing. The plaintiff said that she was cut off by Dr Barton before she could explain that she would take anti-inflammatory medication to assist her mobility on Tuesdays when she went to her craft group and to some shops.
I accept the plaintiff’s account of what occurred during her assessment by the Panel and when under surveillance. I am satisfied that the plaintiff’s explanation was that she took extra inflammatory medication was to permit increased mobility on occasions, mostly Tuesdays, when she left her home for other activities and that, as a result the plaintiff could experience less restricted movement in her lower back.
The Panel’s reasons
The medical questions referred and the Panel’s certified opinion, dated 20 April 2013, were:
Question 1:
What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:
In the Panel’s opinion the worker is suffering from persisting back dysfunction following lumbar spondylolysis treated surgically and a chronic Back Disorder associated with both psychological factors and a General Medical Condition, relevant to the claimed back injury. In the Panel’s opinion there is no medical condition or loss of function of the right hip, relevant to any claimed injury.
Question 2:
What is the worker’s degree of impairment in relation to the condition/s, when assessed in accordance with s 91?
Answer:
In the Panel’s opinion the worker has a 27% whole person impairment attributable to her condition/s when assessed in accordance with s 91 of the Act.
Question 3:
Do you consider the medical services or proposed medical services namely, a 3 level ‘extreme lateral interbody fusion’ appropriate and adequate for the worker’s injury and/or condition?
Answer:
In the Panel’s opinion the proposed operation namely, a 3 level ‘extreme lateral interbody fusion’ is not an appropriate or adequate medical service for the worker’s injury and/or condition.
The Panel formed its opinion by reference to the documents and information provided to it that included the surveillance video, the history provided to the Panel by the worker and the examination findings elicited by the Panel during the several examinations on four separate occasions.
During the course of describing her medical history, the plaintiff told the Panel that she had four cardiac arrests during her seven spinal operations and had to be resuscitated on the table. She was not sure why she had the cardiac arrests but had been told that it was because of allergic reactions to anaesthesia. The plaintiff also told the Panel that she had allergies to a large number of medications, foodstuffs and environmental factors.
In its reasons, the Panel recorded its observations on physical examination of the plaintiff and it reviewed plain x-rays and an MRI scan.
The Panel made the following comment about the video:
The Panel viewed the surveillance DVD in the presence of the worker. The Panel noted the worker walking, bending, handling a bag in and out of a car, moving freely at all times. The Panel considered that the movements depicted were not consistent with the worker’s history of symptoms and presentation on clinical examination in that she showed a greater range of movement of her lumbar spine in the DVD. The worker did not provide an explanation for this discrepancy.
The Panel concluded that the plaintiff is suffering from persisting back dysfunction following lumbar spondylolysis, treated surgically, relevant to the accepted back injury. The Panel further commented:
The Panel also noted that the worker gave a history of ‘cardiac arrests’ related to allergic reactions, but there was no evidence provided with the referral with regard to the occasions of such events or of any ongoing medical problems related to these ‘arrests’ and the Panel therefore did not make any findings in respect to this matter.
And later:
The Panel also noted the large number of medications, foods and other chemicals that the worker claims to have allergies or adverse reactions to, and considered that these concerns were also part of her strong tendency to somatisation, (of which her back disorder is part) as the Panel could not establish any clinical evidence of a relationship between the claimed allergies and her lower back injury or the surgical anaesthetics.
The Panel concluded that the worker suffers from a Chronic Pain Disorder associated with both psychological factors and a General Medical Condition that had arisen as a consequence of her accepted back injury.
Using a goniometer to measure ranges of movement, the Panel conducted an impairment assessment of the plaintiff’s back using the Guides and commented on that assessment as follows:
The Panel considers part of the reduced range of motion does not correlate with the Panel’s findings on examination and is not, in the Panel’s opinion, entirely due to anatomical or physical factors. The Panel therefore assessed the range of motion resulting only from physical factors based on the Panel’s clinical experience for the purposes of calculating the degree of impairment and considers there is a 14 percent whole person impairment due to the abnormal range of motion of the thoraco-lumbar spine when assessed …
After taking into account other matters that are not directly relevant in this proceeding, the Panel’s combined assessment of impairment attributable to the worker’s accepted injury in accordance with the Guides was 27 percent.
The Panel noted that the independent medical examiner, Mr Brian Davey, an orthopaedic surgeon, assessed a 20 percent whole person impairment attributable to the back injury ‘essentially based on a reduction of values with a range of movement after viewing the DVD’. The Panel also noted the report of the examining surgeon, Mr Kenneth Brearley, who assessed a 46 percent whole person impairment attributable to the back injury. That assessment was dismissed with the following reasoning:
He assessed additional impairment for station and gait and also for urinary and anorectal dysfunction based on a diagnosis of cauda equina symptoms. The Panel could find no clinical evidence of cauda equine involvement from the worker’s back injury and therefore disagreed with any inclusion of impairment for station and gait and urinary and anorectal symptoms.
Turning to the recommendation of Mr Morokoff and Mr Malham, neurosurgeons, for a proposed XLIF procedure above the existing 3 level fusion in the plaintiff’s back, the Panel considered that the proposed surgical procedure would not improve the plaintiff’s condition and was unlikely to be beneficial for her, noting that each of the following matters were considered poor prognostic signs for the successful outcome of any surgery:
(a)The worker’s long history of the reported back and leg pain which has failed to respond to a comprehensive range of treatments and past surgery which was reported by the worker to have had no sustained beneficial effect.
(b)The presence of a chronic pain disorder and her strong tendency to somatisation, of which her pain disorder is a part.
(c) The worker’s opiate dependency.
(d)The diffuse nature of her pain and widespread symptoms which are unlikely to respond to the proposed surgery.
(e)The lower extremity symptoms that do not seem to have a definite organic basis.
Issues in the proceeding
The issues in this proceeding, as they were argued before me, were these:
(a)Did the Panel fail to give any proper, genuine or realistic consideration to the plaintiff’s attempted explanations of what the Panel regarded as inconsistency or discrepancy between its clinical observations, the received history, and the surveillance footage?
(b)Did the plaintiff have a reasonable opportunity to view and comment on surveillance video that was considered by the Panel?
(c)Was the Panel entitled without explicit reasoning to make findings of fact by relying on its own expertise?
(d)Did the Panel’s statement of reasons explain the actual path of reasoning by which it in fact arrived at its opinion on the medical question referred to it?
(e)Did the Panel draw conclusions that were not open on the evidence before it in respect of:
·the plaintiff’s ‘strong tendency to somatisation’;
·the plaintiff’s allergies; and,
·the plaintiff’s claimed link between her allergies and her back injury.
The provisions of the Act bearing on the procedures and obligations of medical panels have been set out and discussed in many previous decisions.[1] It is unnecessary to set them out again.
[1]Most recently, see the High Court’s discussion in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 [3]-[13].
I turn firstly to the question of whether the Panel afforded procedural fairness to the plaintiff in respect of its use of the video surveillance as. The resolution of that issue - that the plaintiff was not accorded procedural fairness - substantially determines the proceeding.
Was the plaintiff accorded procedural fairness?
Legal principles: procedural fairness
There was no dispute between the parties as to the content of the administrative law principles relating to procedural fairness or natural justice, either generally or in their application to medical panels.
A medical panel convened to form its opinion as to medical questions referred to under the Act is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of that function.[2] Failure to sufficiently accord an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review. Examples of a medical panel’s opinion being quashed upon judicial review for failure to observe “the hearing rule” of procedural fairness include Calleja v Franet Pty Ltd[3] and Weerappah v Nisselle.[4] The High Court in Kioa v West[5] considered the content of the hearing rule generally in administrative law.
[2]Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635.
[3][1999] VSC 202.
[4][1999] VSC 249.
[5][1985] HCA 81; (1985) 159 CLR 550.
In Calleja v Franet Pty Ltd,[6] the possible significance of the worker’s menopause had never been raised nor been intimated to be relevant to the presence of the appellant's condition or incapacity, and was only touched upon in the questions. No party to the proceedings ever addressed it. Vincent J (as he then was) accepted the contention that the Panel was not entitled to find, without first giving the worker the opportunity to be heard, that her psychological symptoms were related to the onset of menopause. The obligation on the Panel to accord procedural fairness to Mrs Calleja necessitated that she be made aware that this previously unsuggested diagnosis had been made, and that she be given an opportunity to respond to it.
[6][1999] VSC 202.
Vincent J, noting that s 68(4) of the Act states that the opinion of a medical panel "must be accepted as final and conclusive by any court, body or person", was satisfied that the finality of the decision and its consequent effect on the worker’s rights required the application of the hearing rule. His Honour said:
In circumstances, such as those present in the matter before the Court, where a decision can, as a practical proposition, finally determine a person's legal rights, it is of the utmost importance that the affected individual has been given a proper opportunity to be heard. As Mason J said in Kioa v West [1985] HCA 81; [1985] 159 CLR 550, 582:
"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."
And at p 585
"The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case."
In Weerappah v Nisselle,[7] Smith J considered the application of the hearing rule in the context of whether the worker was denied any opportunity to be heard and denied an opportunity to put forward material relating to the medical questions both as to their form and as to the merits of the matters referred to the Panel. Relevantly, the available material included video surveillance.
[7][1999] VSC 249.
Smith J applied,[8] in this context, the following observations of the Full Court of the Federal Court[9] in Commissioner for Australian Capital Territory Revenue v AlphaOne Pty Ltd.[10]
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect on the outcome, he or she should be given the opportunity of dealing with it. Within the bounds of rationality a decision maker is generally not obliged to invite comment on the evaluation of the subject's case. The general proposition set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi: The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it. The subject is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material ...
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (citations omitted)
[8]Ibid, [40], see also Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248 (15 May 2013) at [36]-[37].
[9]Northrop, Myles and French JJ.
[10][1994] FCA 1074; (1994) 49 FCR 576 [28]-[29].
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[11] the High Court referred with apparent approval to the second of the passages from the AlphaOne decision that I have set out. The High Court continued:[12]
In AlphaOne the Full Court rightly said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
[11][2006] HCA 63; (2006) 228 CLR 152, especially at [29]ff.
[12]At [32].
At the time of her medical examinations, the worker in Weerappah was not aware of the content of the video tape and, therefore, had no opportunity to address it. Smith J found that there was a denial of natural justice because the worker had no opportunity to speak to one of the members of the Panel about the video tape. However, the worker had not relied on that particular argument. Nonetheless, having an obligation to accord natural justice means that the Panel must consider what its obligations are in the circumstances of a particular case. The Panel carries that responsibility. Smith J noted that the video tape raised issues about the credibility of the plaintiff and that needed to be borne in mind in deciding what procedural fairness required in that case.
In a passage that I find helpful on the present application, Smith J said:[13]
In the classic case where a purely medical question is referred to a medical Panel, it may well be that no more is required for each of the parties concerned than knowledge of the questions referred and the material supplied and the opportunity for the worker to respond to questions from the Medical Panel members in the course of any examination by them. They will be expected to apply their expertise to all the material and that is the system envisaged by the Act. It may be said that the present procedures and directions assume such a scenario to be the likely scenario. Problems may arise, however, where, as appears often to be the case, the Medical Panel is asked to determine questions of fact and law which, while they fall within the statutory definition of “medical question”, are not confined to pure medical issues and which commonly involve the Panel deciding the entire dispute. In that situation what occurs is not a reference to an expert to deal with an issue relying solely on his or her expertise, but a reference to the Panel to determine the dispute by applying judicial skills.
[13][1999] VSC 249 at [42].
As to the Panel’s proposed reliance on the video, Smith J concluded[14] that irrespective of his view about the potentially misleading nature of the existing procedure and its relevance to what is required to give natural justice, the fact was that the video constituted a significant piece of evidence as to which neither the plaintiff or the insurer had commented or led any evidence. It was evidence of a kind that a Panel should not consider acting upon without first inviting the parties to attend and comment, or lead other evidence about it. In the absence of such an invitation, both parties were properly entitled to feel that they were denied natural justice, particularly the unsuccessful one.
[14]Ibid, [45].
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion. In Barrett Burston Malting Co Pty Ltd v Kotzman & Ors[15], Cavanough J gave the examples of a panel relying upon its own medical expertise to form an opinion, as to diagnosis or as to an aspect of disability previously unnoticed by other medical examiners where it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. An aggrieved party may be denied a fair opportunity to be ‘heard’, for instance, through submitting its own medical reports or written submissions on the issue. His Honour noted Calleja v Franet Pty Ltd[16] as an example of relief given in such an instance.
[15][2013] VSC 248 (15 May 2013) at [34].
[16][1999] VSC 202.
In Vegco Pty Ltd v Gibbons[17] Kyrou J said:
A Medical Panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions. The Medical Panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the Medical Panel, a new medical report, evidence that has not been seen previously by the worker and a matter within the panel’s own expertise and does not prior to reaching the final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it. (citations omitted).
[17][2008] VSC 363 at [23].
Legal principles: reasons
The High Court has now authoritatively determined the proper standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act in Wingfoot Australia Partners Pty Ltd v Kocak:[18]
The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that 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. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
[18][2013] HCA 43 at [55].
The seventh defendant’s contentions
The seventh defendant contended that the Panel was entitled to exercise its expertise in reaching its opinions and emphasised a number of propositions of general application. It contended that the fact that the Panel said that it made its assessment based on clinical experience and the fact that the assessment was to adjust the range of movement measured by the goniometer in comparison with their other findings, particularly their findings on examination, demonstrates a clear path of reasoning. When the Panel finds a fact by applying its expertise and experience, an actual path of reasoning is evident that is sufficient to demonstrate that the opinions expressed are free of legal error.
In its reasons, the Panel noted about the surveillance video -
The Panel viewed the surveillance DVD in the presence of the worker. The Panel noted the worker walking, bending, handling a bag in and out of a car, moving freely at all times. The Panel considered that the movements depicted were not consistent with the worker’s history of symptoms and presentation on clinical examination in that she showed a greater range of movement of her lumbar spine in the DVD. The worker did not provide an explanation for this discrepancy. (Emphasis added)
The seventh defendant contended that the impugned findings are factual findings and there is no error of law simply in making a wrong finding of fact.[19] Accepting that it is an error of law to make a factual finding that is not open on the evidence,[20] the seventh defendant submitted that this rule requires that there be no evidence at all to support the finding.[21] In S v Crimes Compensation Tribunal, Phillips JA observed:
… in a case where the tribunal is authorised to obtain information otherwise or to act upon its own expertise, it may be more difficult to show that the finding was not open, in view of the possibly uncertain nature of the material upon which the finding could be based, but the principle is unchanged. Unless the ultimate conclusion of the tribunal (in relation to the application of the statute to the case of the claimant) depended upon the particular finding which was not open so that it may fairly be said in consequence that the conclusion itself was not open to the tribunal, what was otherwise no more than an error of fact will ordinarily not serve to demonstrate error of law.
Further, the seventh defendant contended that neither mere unreasonableness nor illogicality in a factual finding, without more, is an error of law.
[19]Waterford v Commonwealth (1987) 163 CLR 54, 77, Australian Heritage Commission v Mount Isa Mines Pty Ltd (1997) 187 CLR 297, 303.
[20]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89.
[21]SZNKV v Minister for Immigration and Citizenship [2010] FCA 56 at [37].
The plaintiff did not demonstrate that the Panel ignored her explanations of her range of movement apparent in the surveillance video. The seventh defendant contended that the Panel was entitled to find that the comments made on 11 December 2012 amounted to a reasonable opportunity to explain the range of movement observed in the video, which did not amount to an explanation for the identified discrepancy.
The seventh defendant contended that the Panel’s reasons show the discernible path of reasoning to its certified opinion. From the surveillance footage, the Panel identified a discrepancy between part of the reduced range of motion that was found not to be entirely due to anatomical or physical factors and the Panel’s findings on examination. Because of that discrepancy, the Panel explicitly stated that it assessed the range of motion resulting only from physical factors based on its own clinical experience. The matters said to demonstrate inadequacy in the reasons did not need to be explicitly set out in order for the Panel to comply with the requirement in s 68(2) of the Act.
Accordingly, the seventh defendant contended that there was no breach of the hearing rule in the procedure adopted by the Panel in respect of the surveillance video and that the Panel’s reasons satisfy the requirements of the Act.
Analysis
I have explained above that I accept the plaintiff’s evidence as to what occurred in respect of the surveillance video before the Panel. She was afforded an inadequate opportunity to put her explanation forward. Further, her explanation is relevant to understanding the apparent differences between the range of movement of which she was capable on clinical examination and that of which she was capable when under surveillance. The plaintiff submitted that her explanation of what is depicted in the video was central to the Panel’s assessment of her range of motion and therefore to the assessment of impairment. For the reasons that follow, I consider it clear that those apparent differences were significant for the assessment of her impairment.
The plaintiff’s evidence was that the physical examination was conducted by Mr Elsner, with Dr Barton and Mr Elliott watching on. The surveillance video was not watched on that occasion.
The Panel’s statement that ‘The Panel viewed the surveillance DVD in the presence of the worker’ is at best misleading. In fact, only one member of the Panel, Dr Barton, was present when the plaintiff viewed the surveillance video. There is no evidence or acknowledgment that the surveillance video was viewed by any other member of the Panel in the absence of the worker. That is not to say that it was not viewed by other members, but, if that be the case and there is no evidence that it is, the Panel did not identify to the plaintiff what she might have explained had she known what the issues were, and been allowed to do so. I am satisfied that Dr Barton did not do so.
On the second occasion on 29 January 2013, when she viewed the video with Dr Barton, the plaintiff was, as I have stated, not afforded an adequate opportunity to explain what she saw on the video.
The range of movement of which the plaintiff was capable when under surveillance was clearly influential in the Panel’s assessment and in the path of reasoning that led to its certified opinion. The surveillance video raised issues about the credibility of the plaintiff and there were other respects in which the plaintiff’s credibility was important in the Panel’s assessment. When the Panel stated ‘Part of the reduced range of motion does not correlate with our findings on examination, and is not in the Panel's opinion entirely due to anatomical or physical factors’, the Panel was not suggesting merely that the goniometer measurements did not entirely correlate with their findings on clinical examination at the time. Rather, the Panel considered the plaintiff, assessed on ‘its clinical evidence’, to show a better range of motion than the goniometer measurements. That clinical evidence not only included the history that the plaintiff gave but also included the surveillance video that the Panel accepted as suggesting a freer or greater range of movements than was recorded with the goniometer. So much is clear from the Panel’s reasons, which stated that ‘[t]he Panel considered that the movements depicted were not consistent with the worker's history of symptoms and presentation on clinical examination in that she showed a greater range of movement of her lumbar spine in the DVD’.
For the purposes of calculating the degree of impairment, the Panel assessed the restriction on the plaintiff’s range of motion resulting only from physical factors based on the Panel's clinical experience. The Panel had information for that assessment from three sources - goniometer measurements, physical examination of the plaintiff by the Panel and the surveillance video. I am satisfied that the Panel’s assessment was synthesised from this evidence.
The seventh defendant’s submission referred to the ‘corporate’ nature of panel deliberations and panel reasons and I accept that it is plainly not intended that all panel members collectively deal with all issues arising on the referred medical questions. As occurred in this case, it is common for medical panels to combine doctors of different specialisations to deal with the complexities of a worker’s presentation across different areas of specialisation. That said, this Panel clearly determined that an assessment of the reduction in the plaintiff’s range of motion for the purposes of assessment of her impairment was a matter for the specialists who examined her on 11 December 2012. They were two orthopaedic surgeons and an occupational physician. What cannot be determined when seeking to understand how the Panel used the information contained in the video is how the two orthopaedic surgeons reasoned in respect of it. What is clear is that they took the video surveillance information into account as not explained by the plaintiff in the assessment of the reduction in the range of movement caused to the plaintiff by her accepted injury. In doing so, the Panel has applied judicial skills. Its conclusion cannot be described, as the seventh defendant would have it, as the panel applying its expertise.
The Panel arrived at its conclusion in breach of natural justice because had they heard the plaintiff’s explanation when it was sought, it may be that they would not have come to the same conclusion in respect of the assessed whole person impairment. In particular, it must be the case that the unexplained evidence of an improved range of movement evident from the video was used by the Panel to reason that the proper degree of restricted movement for an impairment assessment was less than was observed on physical examination of the plaintiff by the Panel, including by goniometer measurements. The Panel did so on the expressed basis that the plaintiff did not explain the discrepancy that the Panel considered existed between range of movement depicted on the video and the plaintiff’s history of symptoms and presentation on clinical examination. The explanation the Panel apparently sought was why the plaintiff showed a greater range of movement of her lumbar spine in the surveillance video.
The denial of natural justice to the plaintiff occurred on 29 January 2013. The plaintiff broadly understood, I think, what the Panel apparently regarded as inconsistency or discrepancy between its clinical examination and what the Panel had, itself, observed from the video. She had an apparently valid explanation, which I have set out above. Whether that explanation was adequate was a matter for the Panel, which, in effect, means Mr Elsner, Mr Elliott and Dr Barton.
The seventh defendant contended that the Panel was entitled to find that the comments made on 11 December 2012 amounted to a reasonable opportunity to explain the range of movement observed in the video. Those comments did not amount to an explanation for the identified discrepancy that the Panel, exercising its clinical expertise, found acceptable. I am not persuaded by this submission as that is not what occurred. First, the ‘opportunity’, if I assume that is what it was, cannot be characterised as reasonable. The Panel had not then seen the video. It’s concerns were yet to be articulated. For the plaintiff, as the party liable to be directly affected by the decision, to be given the opportunity of being heard, the Panel had to inform her of the nature and content of the adverse material, articulating its concern about what the Panel considered to be significant when it viewed the video. From the Panel’s reasons, it is plain enough that that was not a difficult task, but it could not done on the first examination in December 2102 because the Panel was yet to view the video.
The plaintiff’s observations to the Panel about the video, attempting to answer what she thought the Panel wanted to know, at the examination in December 2012 could not, in these circumstances, be taken into account by the Panel in the exercise of clinical judgment or in the application by it of its expertise. The plaintiff’s observations were not taken into account at all. The Panel’s reasons state that the worker did not provide an explanation. The necessary factual basis for the seventh defendant’s contention required that some account was taken by the Panel of the plaintiff’s statements on 11 December 2012 before the explanation could be dismissed in the application of expertise or clinical judgment.
The seventh defendant contends there is no error of law simply in making a wrong finding of fact, but it is not to the point on this application whether an erroneous factual finding was not open on the evidence. Whatever evidence or submissions might have informed the correct finding was a matter that was tainted by the failure of the Panel to accord natural justice to the plaintiff by adherence to the hearing rule.
The Panel, at least in part, recognised the relevance of the hearing rule when it, through Dr Barton, further examined the plaintiff on 29 January 2013. The Panel acted appropriately when the video was played to the plaintiff by Dr Barton, but it fell short in what was required of it. What did not occur was that the Panel did not put to the plaintiff for explanation a discrepancy, which it had at some unknown time identified from the surveillance footage, in the observable reduced range of motion. Because of that discrepancy, the Panel proposed to assess the range of motion resulting only from physical factors by application of its own clinical experience in the light of the surveillance video. That identified proposed use for the surveillance video in the Panel’s assessment informed the matters that should have been put to the plaintiff once she had viewed the video. That did not occur.
Rather, the plaintiff’s explanation - firstly, that she took extra inflammatory medication to permit increased mobility on occasions, mostly on Tuesdays, when she left her home for other activities and that, as a result the plaintiff could experience less restricted movement in her lower back and secondly, that the occasions identified by Dr Barton, when he slowed the video to normal replay speed appeared to be explicable in this manner - was not received by Dr Barton and thus by the Panel. There was another occasion following an examination by Mr Davey, when the plaintiff was waiting in the street for a taxi, that could have been explained in a similar way. Secondly, the Panel could not without some further inquiry of the plaintiff assess, by applying its expertise or clinical experience, how the plaintiff’s explanation would affect its assessment of the restriction range of movement in the plaintiff’s lumbar spine.
The seventh defendant also contended that the Panel’s reasons show the discernible path of reasoning to its certified opinion. In the manner of its use of the surveillance video, I consider that this submission should be accepted. The Panel identified a discrepancy between part of the reduced range of motion that was found not to be entirely due to anatomical or physical factors and the Panel’s findings on examination. Because of that discrepancy, the Panel explicitly stated that it assessed the range of motion resulting only from physical factors on the evidence before it based on its own clinical experience. For the reasons that I have just given, the path of reasoning discloses that the error which infected the Panel’s opinion has flowed from its failure to observe the hearing rule.
I reject the seventh defendant’s contention that when a Panel finds a fact by applying its expertise and experience, an actual path of reasoning is evident that is sufficient to demonstrate that the opinions expressed are free of legal error. The error in this case is not found in the application of the sufficiency of reasoning rule. The principle being applied is that identified by Cavanough J in Barrett Burston Malting Co and by Kyrou J in Vegco. In my view, the Panel’s path of reasoning on the relationship between the unexplained discrepancy between clinical measurement/examination and inferences drawn from the surveillance video is clear. The Panel took into account the want of explanation from the plaintiff of that discrepancy as assisting it to infer that the plaintiff was capable of a greater range of movement in her lumbar spine than was observed by the Panel on clinical examination. As a result, the Panel concluded:
The Panel considers that part of the reduced range of motion does not correlate with the Panel’s findings on examination and is not, in the Panel’s opinion entirely due to anatomical or physical factors.
The Panel’s assessment of 14 percent whole person impairment due to an abnormal range of motion in the thoraco-lumbar spine was said to be based on ‘the Panel’s clinical experience’. It is a fair inference from the Reasons, when read as a whole, that the clinical experience used in re-assessing the impairment included the plaintiff’s failure to explain the discrepancy in motion observed between the surveillance video and clinical examination.
That inference is more readily drawn when regard is had to the Panel’s assessment of the opinions of others of the plaintiff’s whole person impairment. The Panel noted that the medical report of the independent medical examiner, Mr Davey, who assessed that there was a 20 percent whole person impairment attributable to back injury, was based on a reduction in values for range of movement made after viewing the surveillance video. There was another reason that explained the main difference between Mr Davey’s assessment and that of the Panel, which is not presently relevant.
The Panel noted that the examining surgeon, Mr Kenneth Brearley, who assessed that there was a whole person impairment attributable to the back injury at 46 percent, assessed two additional sorts of impairment. One concerned urinary and anorectic dysfunction based on the diagnosis of cauda equine symptoms and the other was based on assessed impairment for station and gait. The Panel could find no clinical evidence of cauda equine and discounted Mr Brearley's assessment on these additional bases. No issue was taken with an absence of cauda equine symptoms and discounting urinary and anorectic dysfunction but the absence of those symptoms does not appear to justify discounting any component of the assessment included for station and gait impairment. The Panel fails to reason why impairment assessment for station and gait is swept away. Although this path of reasoning is puzzling, there is no consequence warranting further consideration of that issue in view of the conclusion I have reached.
Although neither Dr Brearley nor Mr Davey is a Panel member, the Panel’s reasoning rejects Dr Brearley’s recommendation of an operation by adopting Mr Davey’s reasoning. That Mr Davey reasons to his conclusion from his observations of the video surveillance reinforces the inference that the Panel has concluded from the surveillance video that in fact the plaintiff can move more freely than was disclosed on clinical examination. The whole of the Panel’s reasoning about the range of movement is infected and affected by the Panel's failure to properly accord natural justice to the plaintiff in its assessment of the surveillance video.
I should say that the procedure adopted by the Panel in playing the video to the plaintiff in the presence of a member of the panel was an appropriate start in according the plaintiff a fair hearing. It demonstrated the importance accorded by the Panel to obtaining the plaintiff’s explanation of the discrepancy. Where the Panel fell short was that its finding that, because the plaintiff did not provide an explanation for that discrepancy, the Panel could infer that part of the reduced range of motion did not correlate with the Panel’s findings on examination and is not, in the Panel’s opinion entirely due to anatomical or physical factors. Irrespective of whether that finding was based on the Panel’s expertise, and I am not satisfied that it was, the finding depended on the inference drawn by the Panel from the conduct of the examination on 29 January 2013 when the plaintiff was not, as I have explained, afforded a fair opportunity to understand the Panel’s concerns and give her explanation.
It follows that I am satisfied that the opinion of the Panel in answer to questions 1 and 2, set out above at [11], must be quashed.
Did the Panel draw conclusions that were not open on the evidence before it
The plaintiff contended that in its opinion rejecting the proposed XLIF procedure as unreasonable, the Panel drew conclusions that were not open on the evidence before it in respect of:
(a) the plaintiff’s ‘strong tendency to somatisation’;
(b) the plaintiff’s allergies; and,
(c) the plaintiff’s claimed link between her allergies and her back injury.
Legal principles: findings not open on the evidence
The impugned findings are factual findings. Assuming they are erroneous, the High Court has stated that there is no error of law simply in making a wrong finding of fact.[22] Accepting that it is an error of law to make a factual finding that is not open on the evidence,[23] the seventh defendant submitted, and I agree, that this rule requires that there be no evidence at all to support the finding. In SZNKV v Minister for Immigration and Citizenship,[24] Kenny J reviewed relevant authorities in relation to ‘no evidence’ grounds. Her Honour stated:
A no evidence ground for jurisdictional error cannot succeed unless there is no evidentiary basis at all for the challenged finding. A no evidence challenge will fail where there is even a slight evidentiary basis to support the Tribunal’s finding. Jurisdictional error may lie where the Tribunal “makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding”. Another approach to this question is ‘jurisdictional fact’ analysis. For present purposes, it is unnecessary to determine whether these two approaches co-exist and, if a choice is to be made, to identify the preferred approach. Under either approach, it is necessary to identify with precision the factual finding said to be unsupported by the evidence. (citations omitted)
[22]Australian Heritage Commission v Mount Isa Mines Pty Ltd (1997) 187 CLR 297, 303, following Waterford v Commonwealth (1987) 163 CLR 54, 77, and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.
[23]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89.
[24][2010] FCA 56 at [37].
In S v Crimes Compensation Tribunal,[25] Phillips JA observed:
… in a case where the tribunal is authorised to obtain information otherwise or to act upon its own expertise, it may be more difficult to show that the finding was not open, in view of the possibly uncertain nature of the material upon which the finding could be based, but the principle is unchanged. Unless the ultimate conclusion of the tribunal (in relation to the application of the statute to the case of the claimant) depended upon the particular finding which was not open so that it may fairly be said in consequence that the conclusion itself was not open to the tribunal, what was otherwise no more than an error of fact will ordinarily not serve to demonstrate error of law.
[25][1998] 1 VR 83, 90.
Legal principles: findings unreasonable or illogical
Further, the seventh defendant contended that neither mere unreasonableness nor illogicality in a factual finding, without more, is an error of law. The proper formulation of this principle is unsettled. Recently, in Barro Group Pty Ltd v Brimbank City Council & Ors,[26] Emerton J observed:
In my view, the availability of the illogical or irrational ground remains somewhat uncertain where the provision conferring the decision-making power does not require the decision-maker reach a state of satisfaction about a specified matter. Justice Cavanough has very helpfully reviewed the current status of the illogical or irrational ground in Rees v County Court. His Honour referred to the recent decision of the High Court of Australia in Minister for Immigration and Citizenship v SZDMS, in which Gummow and Kiefel JJ appeared to hold that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, whereas according to Crennan and Bell JJ, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker. (Citations omitted)
[26][2012] VSC 154 (24 April 2012) at [108].
In Rees v County Court,[27] Cavanough J opined that the distinction suggested by Crennan and Bell JJ may reflect the well-known statement of Mason CJ in Australian Broadcasting Tribunal v Bond[28] that:
... at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
[27][2011] VSC 67 (11 March 2011), [22]-[23].
[28][1990] HCA 33; (1990) 170 CLR 321, 356.
The plaintiff directed me to the more recent discussion by the High Court of the principle of unreasonableness in fact finding in Minister for Immigration and Citizenship v Li,[29] but the principle has been further considered since I reserved my judgment.
[29][2013] HCA 18, (2013) 297 ALR 225.
In Minister for Immigration and Border Protection v Singh,[30] the Full Court of the Federal Court considered the question of whether a tribunal’s refusal to exercise a power to adjourn the review it was conducting in respect of Singh’s visa application, was an exercise of power that was legally unreasonable. In their review of the authorities to identify the principles underlying unreasonableness, particularly the High Court’s reasons in Li, Allsop CJ, Robertson and Mortimer JJ stated:[31]
There is, as the High Court said in Li, a presumption of law that Parliament intends an exercise of power to be reasonable. There is an analogy with the implication that Parliament intends an exercise of power to be conditioned by an obligation to afford procedural fairness. Subject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention may be capable of modifying or excluding either implication. In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality … referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power…
In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law... Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
There is then the question whether in assessing a contention of legal reasonableness, the court on review is confined to the reasons given by the decision-maker, where there are reasons… This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
…
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.
In the case of discretionary powers vested in either the Refugee Review Tribunal or the Migration Review Tribunal under the Act, the location of those powers in the statutory scheme as aids to the performance of a review function is important. As French CJ observed in Li, in these tribunals there is no contradictor, the review is not adversarial and therefore a balancing exercise by the tribunal in terms of prejudice to other parties is unlikely to be necessary. As the plurality observed in Li, the position of the tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It might be said there is a different kind of balancing required as between the statute’s exhortation to the tribunals to discharge their functions in ways which are “fair, just, economical, informal and quick”, and “according to substantial justice and the merits of the case”, and the interests of individual applicants. However, the entire function of a review under Pt 5 or Pt 7 of the Act (and, indeed, any similar statutory administrative merits review process) is to make the correct or preferable decision in respect of an individual applicant or application.
A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case.
[30][2014] FCAFC 1 (4 February 2014).
[31]Ibid, [43]-[50]
The Panel’s finding
In its reasons, the Panel stated:
The Panel also noted the large number of medications, foods and other chemicals that the worker claims to have allergies or adverse reactions to, and considered that these concerns were also part of her strong tendency to somatisation, (of which her pain disorder is a party) as the Panel could not establish any clinical evidence of a relationship between the claimed allergies and her lower back injury or the surgical anaesthetics.
Properly understood, the Panel has concluded that the plaintiff’s allergies or adverse reactions were part of her strong tendency to somatisation. The Panel reasoned to that conclusion firstly, by noting the plaintiff’s claims to have allergies or adverse reactions as described, and, secondly, by being unable to establish any clinical evidence of a relationship between the claimed allergies and her lower back injury or the surgical anaesthetics.
The Panel had evidence from the plaintiff that she had allergies to a large number of medications, foodstuffs and other environmental factors. She had described physical symptoms that she suffered consequent upon her allergies. The Panel recorded those physical symptoms in its reasons. Further, the plaintiff told the Panel that she had been told by her allergist and her gastroenterologist that all of her allergies are because of general anaesthetics that she has had. The plaintiff also described suffering from symptoms associated with environmental factors such as perfumes, cigarette smoke, and diesel fumes. The Panel’s reasons record that the plaintiff told the Panel that allergies to environmental factors had been present for the last five years or so and that her allergist told her that her adverse reaction to anaesthetic in 2004 caused this particular problem.
The Panel’s reasons record the plaintiff’s history that she had four cardiac arrests during seven spinal operations, most recently during an unrelated operation to her cervical spine in 2004 when she had to be resuscitated on the table. She had been told she had suffered cardiac arrests because of allergic reaction to anaesthetic. The plaintiff has not taken any specific issue with the accuracy of the history concerning allergies that is recorded in the Panel’s reasons.
I am satisfied that it was open on the history that the Panel received from the plaintiff for the Panel to conclude that the plaintiff complained of allergies. Further, in that history, the plaintiff asserted the link between her back injury and her allergies. That link was provided by the suggestion that others attributed her allergic reaction to anaesthetics required in respect of back surgery that she underwent in connection with her back injury. It is no answer that on one occasion in 2004 the surgery being undertaken was not required by the relevant injury.
The Panel noted that it was unable to make any findings in respect of the relationship between the history of cardiac arrests related to allergic reactions and any ongoing medical problems,[32] because no evidence had been provided with the referral in this respect. This finding reveals that the Panel did not accept the plaintiff’s history as a sound basis on which to act, and could not, in the absence of medical evidence with the referral, make any finding. Following that statement, the Panel’s reasons set out the findings made on psychiatric examination. Those findings were, in part, expressed as follows:
The content was dominated by concerns about her ongoing lower back pain with radiating symptoms into her legs and the effect of this on her life. She outlined a number of allergies to medications and foods, as well as environmental items that she considered she had allergies or strong reactions to. Following the report of psychiatric examination, the reasons state the Panel’s conclusion that the plaintiff suffers from a chronic pain disorder associated with both psychological factors and a general medical condition.
[32]Which must be a reference to the plaintiff’s history of medical problems said to be related to her allergies and the consequent symptoms.
Somatisation is the process of converting psychological distress into physical disorders, commonly to gain attention or illicit sympathy.[33] In psychology, somatisation is described as a multi-factorial tendency to experience and record somatic symptoms with no pathophysiologic cause.[34]
[33]Macquarie Dictionary, see also Mosby’s Medical Dictionary, 8th ed.
[34]McGraw-Hill, Concise Dictionary of Modern Medicine.
Up to the point of expressing its conclusion that the plaintiff suffers from a chronic pain disorder, the Panel neither expressed any clinical finding that the plaintiff had a strong tendency to somatisation, nor noted any evidence of that process in either the materials that had been provided with the referral or the history that the Panel had taken from the plaintiff. However, the Panel then, in its reasons, concluded that the plaintiff had a strong tendency to somatisation of which both her pain disorder and her concerns about allergies or adverse reactions were part. The Panel’s reasoning for this conclusion was expressed to be that ‘the Panel could not establish any clinical evidence of a relationship between the claimed allergies and her lower back injury or the surgical anaesthetics’. In so doing, the Panel made a finding that the history of cardiac arrests related to allergic reactions and ongoing related medical problems demonstrated that strong tendency to somatisation. The Panel in doing so made a positive finding in respect of a matter on which it had earlier stated no finding could be made for want of evidence.
I am satisfied that this reasoning is illogical. In this case, the want of logic is synonymous with error of law because, as the Panel itself identified, there was no evidence upon which it could make any finding in respect of ongoing medical problems arising from allergies or adverse reactions to anaesthetics administered during procedures necessitated by the back injury. There was no basis to infer that the plaintiff’s allergies were part of her strong tendency to somatisation, because there was no evidence before the Panel, whether provided with the referral or observed, that permitted findings, either way, to be made about such a connection. There was no room for a logical or rational person to reach the same decision on the material that was before the Panel. That is the underlying jurisdictional error in the decision making process that supports the plaintiff’s contention that the Panel’s finding in this respect was, legally, unreasonable, or illogical.
Although the seventh defendant in its submission contended that it was open to the Panel, exercising its own expertise in the context of the history it obtained and its examination of the plaintiff, to find that she had a strong tendency to somatisation, the legal unreasonableness in this case does not fall within the outcome focussed category identified in Singh. The seventh defendant’s submission follows on the statement, which I have set out, that it was relevant that the Panel could not establish any clinical evidence of the relationship. That is hardly surprising, given the Panel’s earlier finding that there was no evidence of any relationship provided with the referral. It was, however, both illogical and unreasonable for the Panel to move beyond its initial conclusion that it could not make any findings in respect of this matter to a conclusion that, because it could not establish any clinical evidence of a relationship, allergies or adverse reactions were part of a strong tendency to somatisation.
I am satisfied that this finding is unreasonable or irrational and does not meet the standard of legal reasonableness to be expected of a medical panel exercising jurisdiction under s 68 of the Act. Although the plaintiff took exception to other aspects of the Panel’s reasons on question 3, this finding is sufficient to demonstrate error in the opinion given in answer to that question and it will be quashed.
Conclusions
For these reasons, the plaintiff’s application for review succeeds on the ground of procedural fairness (paragraph 10 of the amended originating motion) in relation to the Panel’s opinion as certified in answer to questions 1 and 2. The plaintiff’s application for review succeeds on the no evidence ground (paragraphs 12-14 of the amended originating motion) and the irrationality ground (paragraph 15 of the amended originating motion) in relation to the Panel’s opinion as certified in answer to question 3. It is unnecessary and it would be inappropriate to make rulings on the other grounds of review relied upon in respect of those questions.
I will order, subject to any further submission in respect of costs and the proposed indemnity certificate, that:
(a)There be an order in the nature of certiorari to quash the opinion of the Medical Panel comprised by the first to sixth defendants certified in writing dated 20 April 2013.
(b)There be an order in the nature of mandamus remitting the medical questions in respect of which the certified opinion was given to a differently constituted panel to be reconsidered in accordance with law.
(c)The seventh defendant pay the costs of the plaintiff.
I am satisfied that the Court has power to grant an indemnity certificate under s 4(1) of the Appeals Costs Act 1998 in respect of the costs payable by the seventh defendant in relation to this proceeding notwithstanding that it is not an ‘appeal’ strictly so called but rather a proceeding within the Court’s original jurisdiction governed by Order 56 of the Supreme Court (General Civil Procedure) Rules.[35] I am further satisfied that this is an appropriate case in which to grant such a certificate.
[35]Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248 at [54], following Gatto v Felstead [2012] VSCA 14 at [32] (footnote 10 and cases there cited).
SCHEDULE OF PARTIES
No. S CI 2013 03126
| GAYLE MOORE | Plaintiff |
| DR DAVID BARTON | First Defendant |
| MR BARRY ELLIOTT | Second Defendant |
| MR KEITH ELSNER | Third Defendant |
| DR STEVE ADLARD | Fourth Defendant |
| MR JAMES CUMMINS | Fifth Defendant |
| MR ROSS SNOW | Sixth Defendant |
| MELBOURNE HEALTH | Seventh Defendant |
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7
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