O'Brien v Brand
[2017] VSC 596
•20 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01453
| NICHOLAS JOSEF O’BRIEN | Plaintiff |
| v | |
| DR CAROLINE BRAND, DR JOHN BARTLETT, MR PETER FIELD and MR RUSSELL CORLETT Constituting the Medical Panel Pursuant to the Wrongs Act 1958 (Vic) | First Defendants |
| SCOTT GEOFFREY ROBBINS | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 September 2017 |
DATE OF JUDGMENT: | 20 October 2017 |
CASE MAY BE CITED AS: | O’Brien v Brand & ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 596 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Part VBA of the Wrongs Act 1958 (Vic) – Availability of ‘illogical or irrational’ ground of review – Alleged misapplication of the AMA Guides to the Evaluation of Permanent Impairment (‘Guides’) – Admissibility of expert evidence not before the Medical Panel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Harper | Vardalis & Associates |
| No appearance for the First Defendant | Moray & Agnew | |
| No appearance for the Second Defendant | DLA Piper Australia |
HER HONOUR:
This is an application for review of a determination of the first defendant (‘Medical Panel’) to the effect that the degree of impairment to the plaintiff, Mr O’Brien, failed to satisfy the threshold level of impairment resulting from a physical injury established under the Wrongs Act 1958 (Vic) (‘Act’), being more than five per cent[1] permanent impairment. As noted by Dixon J in Moore v Barton,[2] the statutory provisions and legal administrative law principles governing the functions, procedures and obligations of medical panels have been the subject of numerous decisions of this Court and the Court of Appeal, and do not need to be reproduced here, particularly given that there is a pending hearing in a proceeding in the County Court of Victoria (‘County Court proceeding’). A useful summary of the principles concerning a number of grounds of review is to be found in the recent decision of Keogh J in Stojilkovic v Romas & ors,[3] and the decision of Kyrou J (as he then was) at first instance in Ryan v Grange at Wodonga Pty Ltd & ors.[4]
[1]Section 28LB of the Act. The Medical Panel was constituted by Dr Caroline Brand (rheumatologist), Dr John Bartlett (orthopaedic surgeon), Mr Peter Field (vascular surgeon) and Mr Russell Corlett (plastic surgeon).
[2][2014] VSC 78 [21].
[3][2017] VSC 49. The decision was reversed on appeal (see [2015] VSCA 17), but the correctness of Kyrou J’s statement of the relevant legal principles was not disturbed.
[4][2014] VSC 135.
Mr O’Brien issued the County Court proceeding on 3 September 2015, seeking damages against the second defendant, a physiotherapist, alleging that the second defendant caused physical injury to him as a result of negligent physiotherapy management and advice.
The claim by the plaintiff against the second defendant in the County Court proceeding is summarised in an affidavit sworn in this proceeding by his solicitor, Mr David Elston, on 21 April 2017. At paragraphs 7 and 8 of this affidavit, Mr Elston deposed as follows:
In summary, in his Statement of Claim the plaintiff alleges:
a.On 8 October 2011 the plaintiff fell from a motorbike he was riding and injured his left knee;
b.The plaintiff attended the Casualty Department of Bendigo Base Hospital on 9 October 2011 and was examined by Robbins;
c.x-rays were conducted on the plaintiff’s left knee;
d.he was advised by Robbins that he had suffered a suspected ligament tear and provided with a full leg brace;
e.Robbins instructed the plaintiff to wear the brace at all times except while showering;
f.the plaintiff attended Robbins at Robbins’ private rooms for physiotherapy treatment on 11 October 2011 and on 25 October 2011;
g.during the appointment with Robbins on 25 October 2011 Robbins fitted a different knee brace;
h.on 26 October 2011 the plaintiff began to experience deep aching behind his left knee and his left knee and leg became swollen;
i.the plaintiff attempted to contact Robbins on numerous occasions between 27 October 2011 and 3 November 2011 but did not speak with Robbins;
j.on 3 November 2011 the plaintiff spoke with Robbins and advised him of his pain and symptoms. Robbins told the plaintiff that the symptoms sounded like a blood clot and told the plaintiff to attend the nearest hospital immediately;
k.on 3 November 2011 the plaintiff attended Botanical Health Care Centre in Castlemaine, Victoria where he was immediately referred to the Castlemaine Hospital for an ultrasound;
l.an ultrasound was performed on the plaintiff’s leg and he was advised that he had suffered a major deep vein thrombosis (‘the relevant injury’).
The plaintiff alleges that Robbins failed to exercise all due and proper care and skill in the provision of physiotherapy, management, treatment and advice that he gave to the plaintiff and as a result, Robbins caused the relevant injury.
Mr Elston also deposed, in summary, that:
(a) prior to issuing the County Court proceeding, the plaintiff was examined by Professor Kenneth Myers. On 18 September 2014, Professor Myers prepared a report, and issued a Certificate of Assessment of Degree of Impairment pursuant to Part VBA, Division 3 of the Act, certifying that the plaintiff’s whole body degree of impairment suffered as a result of the relevant injury is more than five per cent, and was thus a ‘significant injury’;
(b) on 25 October 2016 the second defendant referred the question of whether the degree of impairment resulting from the relevant injury satisfied the threshold level under the Act to the Medical Panel;
(c) the Medical Panel conducted an interview with and assessment of the plaintiff on 20 December 2016, including, at approximately 12.30pm, measurements of the circumference of the plaintiff’s legs;
(d) his firm provided a number of documents to the Medical Panel, including two reports prepared by Professor Myers. In his report dated 2 March 2015, Professor Myers stated that:
marked oedema only partially controlled by elastic support is a class III impairment associated with 40-69% impairment of the lower extremity, say 55% in this case, which is equivalent to more than 20% of the whole person.
(e) after the conduct of the assessment, the plaintiff instructed him that he was concerned that he had missed out some details when being examined by the Medical Panel, and sent a letter to the Medical Panel, which, among other things, enclosed three photographs of the plaintiff’s legs taken late in the evening; and
(f) over the protests of the second defendant, the Medical Panel agreed to accept the further submissions and evidence.
The Medical Panel’s determination of 17 February 2017 was accompanied by written reasons (‘reasons’). The reasons, in summary:
(a) described the injuries said to have been suffered by the plaintiff;
(b) provided a detailed account of their interview with and physical assessment of the plaintiff, and their observations arising out of this assessment;
(c) on page 7 of the reasons, the reasons stated:
The Panel concluded that the Claimant is suffering from:
Mild varicose veins over the inner and outer aspect of the lower left leg, with associated left calf swelling but no pitting or dispersible oedema secondary to a DVT, in the setting of immobilisation following a left knee soft tissue injury incurred in a motorbike incident on 8 October 2011;
Mild dysfunction of the left knee secondary to a partial left medial ligament tear, in the setting of pre-existing left knee degenerative radiological changes;
(d) contain a reasonably detailed discussion of other injuries and/or conditions suffered by the plaintiff which were not related to the relevant injury, noting, quite properly, that these had not been taken into account when assessing the plaintiff’s degree of impairment;
(e) significantly, in relation to the relevant injury, the Medical Panel stated as follows:
The Panel assessed impairment of the lower extremity due to peripheral vascular disease pursuant to Table 14 of Chapter Six,[5] in accordance with Specific Procedures and Directions in Section 6.8 of Chapter 6 of the Guides and converted the lower extremity impairment to a whole person impairment in accordance with the method described at page 6/196; and
[5]Of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘AMA Guides’), as required by s 28LH of the Act.
(f) finally, the reasons stated:
The Panel disregarded an estimate for unrelated impairment attributable to the claimant’s prior left knee medial ligament injury, combined the whole person impairments according to the required procedure described at page 322 of the Guides, and concluded that the degree of whole person impairment resulting from the physical injury to the Claimant alleged in the claim is permanent but is not more than 5%.
Table 14 of the Guides is titled ‘Impairment of the Lower Extremity due to Peripheral Vascular Disease’ and provides for three classes of impairment relevant to the current proceeding, being:
(a) Class 1: where ‘patient experiences only transient [o]edema’ (0-9% impairment of the lower extremity);
(b) Class 2: where ‘there is persistent [o]edema of a moderate degree, controlled by elastic supports’ (10-39% impairment of the lower extremity); and
(c) Class 3: where ‘there is marked [o]edema that is only partially controlled by elastic supports’ (40-69% impairment of the lower extremity).
In order to have reached a conclusion that the plaintiff does not have a whole person impairment of greater than five per cent, given the multiplicand of 0.4 to be applied to impairment of lower limbs, the Medical Panel can be presumed to have found that the plaintiff either fell into Class 1 above, or the lower range of Class 2. However, the reasons do not refer to any findings of such a nature, or indeed to the ‘classes’ set out in paragraph 6 above.
However, given the authorities provide that the Medical Panel is not obliged under the Act or at common law to give reasons,[6] or adequate reasons, it is not open to the plaintiff to contend that any failure of the Medical Panel to provide proper reasons is an error of law. However, I agree with the contention of the plaintiff that any failure on the part of the Medical Panel to provide reasons, or adequate reasons, may support an inference that the Medical Panel’s decision might be vulnerable to a finding that there had been jurisdictional error on other grounds, such as, for example, failure to take into account a mandatory relevant consideration.[7]
[6]Sherlock v Lloyd (2010) 27 VR 434; Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors (2013) 39 VR 296.
[7]See the discussion in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437.
The plaintiff commenced this proceeding on 21 April 2017. Standard directions were made on 9 May 2017 and again on 5 June 2017, apparently with the consent of the parties. The latter orders provided for, among other things, the active contradictor, being the second defendant, to file and serve any affidavits upon which he intended to rely by 26 July 2017, and any outline of submissions by 25 August 2017.
On 28 June 2017, the plaintiff filed and served an amended originating motion, accompanied by a supplementary affidavit of his solicitor, Mr David Elston. Mr Elston’s second affidavit exhibited, among other things, two reports prepared by Professor Myers on 27 April 2017 and 24 May 2017, which commented directly upon the determination and reasons of the Medical Panel.
On 13 July 2017, the solicitors for the second defendant sent a letter to the Court, stating, among other things:
The second defendant’s position is that it will acquiesce to the decision of the Court. On this basis, the second defendant seeks to be excused from appearing at the hearing.
On 19 July 2017, the solicitors for the Medical Panel wrote to the Court adopting the usual ‘Hardiman’ position with respect to the proceeding.[8] Notwithstanding the above, an affidavit sworn by Mr Eric Vardalis on 28 September 2017 (the day of the hearing) verified that all of the affidavits and submissions relied upon by the plaintiff had been served upon the defendants, and indeed the defendants consented to the filing and service of a further amended originating motion on or about 15 September 2017.
[8]R v The Australian Broadcasting Tribunal & ors: Ex Parte Hardiman & Ors (1980) 144 CLR 13, 35.
Thus, the proceeding is undefended. However, given the nature of the proceeding, and the relief sought by the plaintiff, the plaintiff was required to fully present his case at the hearing, and identify and address any arguments which could be made against him. This is particularly pertinent given that his primary ground of review is that the decision of the Medical Panel is illogical and/or irrational, or, alternatively, unreasonable in the Wednesbury[9] sense. Furthermore, the solicitors for the second defendant have informed the Court that they may wish to be heard on the question of costs. That said, the absence of an active contradictor at the hearing, given the expertise and experience of the legal practitioners acting on behalf of the second defendant, does lend weight to an inference that the plaintiff has powerful arguments in his favour.
[9]See Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR 635.
The Further Amended Originating Motion dated 18 September 2017 disclosed three grounds of review. The particulars to grounds 1 and 3 succinctly summarise the plaintiff’s position in relation to these grounds, and are therefore reproduced below:
Ground 1
The determination by the Medical Panel that the degree of impairment resulting from the physical injury alleged in the claim did not satisfy the threshold defined in section 28LB of the Wrongs Act 1958 was one which no rational or logical Medical Panel or alternatively Medical Panel acting reasonably could have determined.
Particulars
The Panel relevantly obtained a history from the Claimant that:
(a) he needs to wear a compression sock on a daily basis;
(b)he had left calf to ankle swelling which varies in severity, there being little or no swelling on rising after the night in bed but increasing swelling during the day and in warmer weather;
(c)he feels that the left thigh is slightly larger than the right thigh;
On examination of the Claimant at 12.30pm on 20 December 2016, the Panel relevantly found:
(d)he wore a left below knee enclosed toe sock, providing moderate calf compression;
(e)despite wearing the elastic support there was a general increase in size of the left calf circumference measured by the Panel as 2.5cm;
The Panel relevantly had available to it:
(f)an ultrasound examination of the veins performed on 3 November 2011 which showed above knee deep vein thrombosis;
(g)photographs that show the difference in the size of the two legs;
The Panel relevantly concluded that:
(h)the Claimant was suffering from ‘left calf swelling’ (ie oedema) secondary to deep vein thrombosis.
The Panel assessed impairment of the lower extremity due to peripheral vascular disease pursuant to Table 14 of Chapter 6 (‘Table 14’), in accordance with Specific Procedures and Directions in Section 6.8 of Chapter 6 of the Guides.
On the relevant history obtained by it, its examination findings and the information which was available to it, the only rational and logical conclusions which the Panel could have reached in applying the criterion in Table 14 was that:
(a)the oedema was only partially controlled by elastic supports;
(b)the oedema was marked, what with the oedema at the time of its examination being marked or at least moderate and certainly marked later in the day;
(c)of the various classes of lower impairment extremity prescribed by Table 14, the oedema was in Class 3;
And further:
(d)after conversion of the lower extremity impairment to a whole person impairment in accordance with the method described at page 6/196 of the Guides, the only rational and logical determination which the Panel could have made was that the whole person impairment was more than 5%.
The Panel illogically and irrationally concluded or must have concluded (the Panel not disclosing its path of reasoning in this respect) that the oedema was in Class 1 or 2 with the degree of impairment of the left lower extremity due to peripheral vascular disease 13% or less.
As a result, the Panel, after converting the lower extremity impairment to a whole person impairment in accordance with the Guides, illogically and irrationally determined that the whole person impairment was not more than 5%.
Ground 2 – misapplication of the prescribed conversion method
In the alternative to ground 1, in the event that the Panel did in fact classify the left lower extremity impairment as Class 3 (the Panel not disclosing its path of reasoning in this respect), it must have misapplied the conversion method prescribed at page 6/196 of the Guides for it to arrive at a whole person impairment of 5% or less.
Ground 3 – failure to apply or adhere to the requirements of the Guides and/or misconstruing and misapplying the Guides
In the alternative to grounds 2 and 3, it is submitted that on the relevant history obtained by the Panel, its examination findings and the information which was available to it, the application of Table 14 in accordance with the Guides mandated that the Panel conclude that the plaintiff had a class 3 impairment of the lower extremity and hence a whole person impairment in excess of 5%.
That the Panel determined that the whole person impairment was not more than 5% demonstrates that it failed to apply or adhere to the criterion and ranges prescribed in Table 14 and/or it misconstrued and misapplied Table 14.
In his oral submissions at the hearing, counsel for the plaintiff conceded that ground 2, which was to the effect that the Medical Panel must have simply miscalculated the degree of impairment, was somewhat speculative. However, the plaintiff’s submissions focussed upon grounds 1 and 3.
Prior to turning to the plaintiff’s submissions in further detail, one preliminary issue is the status of three reports prepared by Professor Myers, of 11 April 2017, 27 April 2017, and 25 May 2017. Each of these reports, along with Professor Myers’ curriculum vitae, had been exhibited to the affidavits relied upon by the plaintiff, and filed and served in the proceeding. Unsurprisingly, given the position of the defendants in this proceeding, no objection was taken to the plaintiff’s reliance upon these reports.
During the course of the hearing, I gave leave to the plaintiff to tender Professor Myers’ reports into evidence, notwithstanding that in cases such as the current kind (being an application for judicial review), evidence which post-dates the determination of the Medical Panel, and which at first glance appears to be directed squarely at the merits of the determination of the Medical Panel, would not ordinarily be admissible.[10] However, the authorities indicate that such evidence may be admissible for limited purposes, such as to enable the Court to interpret (or, in the language used by counsel for the plaintiff, to ‘deconstruct’) the reasons of the Medical Panel.[11] Further, the plaintiff is challenging the Medical Panel’s determination by relying upon the ‘irrational or illogical’ ground. While the availability of such a ground of review is not quite settled (although in my view the preponderance of recent authority leads one to a conclusion that it is so available), the question of whether extrinsic evidence is admissible for the purposes of determining whether a tribunal had committed a jurisdictional error on such a ground is far from settled. While the traditional position at common law is that generally such evidence is not admissible, there is authority to the contrary in cases where a decision or determination is challenged on the basis of Wednesbury unreasonableness. In Australian Retailers,[12] a proceeding where a decision of a regulator was being challenged upon the grounds of ‘illogicality’, Weinberg J (as he then was) admitted into evidence expert reports prepared for both parties which went to the reasonableness of the regulator’s decision.
[10]See Australian Retailers Association v Reserve Bank of Australia (‘Australian Retailers’) (2005) 148 FCR 446, [454]-[455], referring also to Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 539-40.
[11]See Midfield Meat Processing v Fish & ors [2015] VSC 195 (per Bell J); and YG-1 Australia Pty Ltd v Dr Susan Brann & Ors [2016] VSC 713 (per Zammit J).
[12](2005) 148 FCR 446, [457] where his Honour stated: ‘In principle, albeit with some reluctance (having regard to the additional time and costs taken up with such evidence), I can see no reason why, in an appropriate case, such evidence should not be admitted’.
Of course, in the current case, I have not had the benefit of full argument upon the matter, and I note the caution expressed by Weinberg J in Australian Retailers[13] as to the time and cost associated with dealing with extrinsic evidence in judicial review proceedings. I am also conscious that such evidence in proceedings involving the review of a medical panel decisions in this jurisdiction has only been admitted for limited purposes: in Midfield Meat Processing v Fish & ors,[14] Bell J stated:
I admit that evidence for the sole purpose of understanding the nature of the panel’s diagnosis and the symptoms that it embraces. [15]
[13]Ibid [459].
[14][2015] VSC 195 (‘Midfield Meat’)
[15]Ibid [10].
In YG-1 Australia Pty Ltd v Dr Susan Brann & ors,[16] Zammit J stated:
I will allow Dr Mendelson’s Report insofar as it provides an opinion as to whether the diagnosis of the Panel is materially distinguishable from previous diagnoses. However, I will limit the admissibility of the report for this purpose only, and I will not allow the report as evidence of materiality or otherwise. [17]
[16][2016] VSC 713 (‘Brann’)
[17]Ibid [32].
Neither Midfield Meat or Brann involved challenges to a medical panel’s determination on the grounds that it was illogical, irrational or unreasonable. I do not discount the possibility that expert evidence concerning the merits of a medical panel’s decision might well be admissible in such circumstances. However, in the absence of direct authority on the point, and without the benefit of full argument on the matter, I have utilised Professor Myers’ reports for the purpose of explaining the matters which were, or should have been relevant to the Medical Panel’s decision, an explanation of how the Guides apply to the plaintiff’s condition, and the evidence before the Medical Panel. The practical consequences of this determination is that I accept, and have found helpful, Professor Myers’ evidence that swelling of the nature observed by the Medical Panel is synonymous with, and could only have been caused by, oedema for the purposes of the Panel assessing the plaintiff’s impairment in accordance with Table 14 of the Guides. That evidence is relevant to both Ground 1 and Ground 3 of the plaintiff’s originating motion. However, I have not, for the purpose of Ground 1 of the originating motion, taken into account Professor Myers’ statements, particularly in his report of 25 May 2017, to the effect that the Medical Panel’s determination was illogical and irrational, as the authorities make it clear that such a finding is a legal conclusion. Here, the distinction has no effect upon the outcome, but it is not a semantic or otherwise immaterial distinction.
However, there is one procedural hurdle for the plaintiff to overcome in his attempt to rely upon Professor Myers’ evidence, being the plaintiff’s failure to strictly comply with O 44 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) with respect to the adducing of expert evidence. However, r 2.04 of the Rules enables the Court to dispense with the requirements of the Rules in an appropriate case. Given that the defendants have been on notice of the plaintiff’s intention to rely upon Professor Myers’ reports for some months, and have chosen not to actively participate in the proceeding, I am content to dispense with strict compliance with the requirements of O 44 in the current case in that only one of Professor Myers’ reports refers to having read, and him agreeing to be bound by, the Experts’ Code of Conduct.
Professor Myers prepared three reports, dated 11 April 2017, 27 April 2017, and 25 May 2017. In his first report, Professor Myers:
(a) commented upon what the Medical Panel observed;
(b) noted that the Medical Panel utilised Table 14 of the Guides instead of Table 69, which he had used in his assessment of the degree of impairment of the plaintiff, but the two tables were identical; and
(c) Professor Myers stated as follows:
… The Panel appear to make their assessment of impairment according to the presence of a complaint of cramps rather than of swelling of the leg which would be a more usual criterion for judging development of the post-thrombotic syndrome as a result of a past deep vein thrombosis; either Table can be used for this assessment. I continue to be of the opinion that I have correctly identified that there is a Class III impairment according to either table due to marked oedema only partially controlled by elastic support, which is indicated to be associated with 40 – 69% impairment of the lower extremity, which is equivalent to more than 20% impairment of whole person.
Accordingly, if the Medical Panel are not of this opinion, then we are in total disagreement.
In his report of 27 April 2017, Professor Myers responded to a series of questions from the plaintiff’s solicitors. Given the limited purpose for which I have admitted Professor Myers’ evidence, the following extract of this report is most pertinent:
Question 1
What do you consider are the most relevant aspects of the history taken by the Panel and its findings on examination in regards to answering the medical question?
(a) The claimant needs to wear a compression sock on a daily basis.
(b)He had left calf to ankle swelling which varies in severity, there being little or no swelling on rising after the night in bed but increasing swelling during the day and in warmer weather.
(c)He feels that the left thigh is slightly larger than the right thigh.
(d)He wore a left below knee enclosed toe sock providing moderate calf compression.
(e)There is a general increase in the calf circumference measured by the Panel as 2.5cm.
Question 2
Whether the Panel’s finding of mild varicose veins over the inner and outer aspect of the left lower leg with associated left calf swelling but no pitting or dispersible oedema secondary to a DVT could be logically and rationally arrived at by the Panel on the evidence.
(a)It is correct that a DVT causing venous obstruction to produce the oedema noted would also produce mild to marked varicose veins.
(b)Whether oedema is pitting or dispersible or not is irrelevant. Swelling of the leg can only be due to generalised oedema through all of the tissues due to the venous obstruction.
(c)The AMA Guides only refer to oedema as being relevant to the class of vascular impairment; varicose veins, ankle pigmentation or cramps are not taken into account in the relevant Table of the AMA Guides.
(d)It is correct that the only question that is relevant to the Guides in Table 14 of Chapter 6 is whether there is oedema.
(e)It is incorrect to conclude that there is calf swelling but no oedema, as the calf swelling can only be due to collection of fluid due to back pressure from venous obstruction causing oedema.
(f)It is illogical for the Panel to conclude that any swelling of the leg does not equate to the presence of oedema in this clinical setting.
(g)Indeed, the swelling in the left calf can only be due to accumulation of fluids in all tissues in the lower limb due to back pressure from venous obstruction.
(h)It is correct that an ultrasound examination that I performed on 3 November 2011 showed the presence of extensive deep vein thrombosis in the thigh, clearly presumed to be of long-standing. This inevitably causes what is referred to as the post-thrombotic syndrome of which a major feature is oedema of the lower limb.
(i)Dispersible oedema is an irrelevant term as it represents a surface component of the oedema that may or may not be moved with the fingers.
(j)The Guides do not distinguish the site of oedema in the leg.
(k)It is correct that varicose veins are a secondary phenomenon to the obstruction from the outflow in the deep veins transmitted to the surface veins to become twisted and dilated, that is varicose veins.
(l)Varicose veins and oedema are two quite separate effects of the back pressure exerted by deep venous obstruction.
(m)Varicose veins can occur spontaneously but are more likely to occur in a limb that is affected by deep venous obstruction.
(n)Any associated telangiectasia, that is tiny blood vessels on the surface, is irrelevant to the discussion as to impairment due to deep vein occlusion.
(o)Mild pigmentation of the ankle is a late manifestation of the effects of back pressure causing rupture of small vessels with leakage of blood, the breakdown products of which are taken up by cells in a pigmented form to be deposited in the skin.
While Professor Myers, under the heading ‘Question 2’, does refer to the Panel being ‘incorrect’, or ‘illogical’, the commentary under this heading is also relevant to whether the Medical Panel properly applied the Guides.
Professor Myers’ report of 25 May 2017 largely concerned and expanded upon his opinion that the Medical Panel’s decision was illogical and/or irrational.
Discussion
Counsel’s written and oral submissions contended that, given the evidence before the Medical Panel, including their own assessment of the plaintiff, the Medical Panel’s determination that the plaintiff’s impairment does not satisfy the threshold level was irrational and/or illogical. While noting that the availability of this ground of review is not yet settled, counsel submitted that there is strong support in the authorities for this view, and, in any event, the availability of this ground seems to be accepted by the Court of Appeal.[18]
[18]See Minister for Immigration v SZMDS (2010) 240 CLR 611; Moore v Barton [2014] VSC 78; Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17 (‘Ryan’); Stojilkovic v Romas & Ors [2017] VSC 49.
I do not take the decision of the Court of Appeal in Ryan as assuming, without doubt, that the irrationality/illogicality ground is available. In this decision, Neave JA expressed some doubt as to whether the decision itself must be tainted by irrationality, illogicality, or unreasonableness, or whether it was sufficient to show whether the reasoning by which it was reached demonstrated those flaws. This distinction is of less significance in the current case, given that the reasons do not disclose the Medical Panel’s path of reasoning on the critical point, being their assessment of into which class within Table 14 the plaintiff fell. However, I agree with the submissions of counsel for the plaintiff that the preponderance of authority supports the availability of such a ground, and that, while a Court should avoid trespassing into merits review, save in exceptional cases, there are some limitations upon the ambit of a decision maker’s power and functions. Further, the authorities suggest the line between permissible and impermissible merits review is somewhat blurred, as illustrated from the following passage in Minister for Immigration & Border Protection v Stretton.[19]
The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.[20]
[19](2016) FCR 1.
[20]Ibid [11] (per Allsop CJ).
In Moore v Barton,[21] Dixon J referred to the decision of the Full Federal Court in Minister for Immigration and Border Protection v Singh,[22] which in turn reviewed the state of the authorities concerning legal unreasonableness in the light of the decision in Minister for Immigration and Citizenship v Li,[23] where, relevantly, for present purposes, the plurality found that where a court cannot identify how a decision was arrived at, the decision may be found to be lacking an ‘evident and intelligible justification’.[24] In the matter before him, Dixon J found that the reasoning of a medical panel was illogical, because the medical panel made a finding in respect of a matter which it had earlier stated was a matter upon which no finding could be made owing to a lack of evidence.
[21][2014] VSC 78.
[22](2014) 231 FCR 437.
[23](2013) 249 CLR 332.
[24]Ibid [76] (per Hayne, Kiefel and Bell JJ).
In the current case, the position was different, in that the Medical Panel had ample evidence before it concerning the relevant aspects of the plaintiff’s condition, being various medical reports, and their own examination of the plaintiff. However, given their apparent acceptance of the plaintiff’s history (there is nothing in the reasons to indicate the members of the Medical Panel disbelieved him), their own observations of left calf swelling, and Professor Myers’ evidence that swelling can only be caused by oedema means that the Medical Panel’s finding that there was ‘associated left calf swelling but no pitting or dispersible oedema secondary to a DVT’ lacks, in all the circumstances, an intelligible justification. As such, the Medical Panel’s determination that the plaintiff did not satisfy the threshold level ought to be quashed.
I agree with the submissions of counsel for the plaintiff that, given the evidence before the Medical Panel, and the explanation of Professor Myers as to what are relevant matters to be taken into account when assessing the plaintiff’s level of impairment under the Guides, it is difficult to discern the logic or rationality of the Medical Panel’s determination that the plaintiff’s impairment was not greater than five per cent. If the calculation was mathematically accurate, the Medical Panel must have found that the plaintiff fell within class 2 (referred to in paragraph 6 above), and at the lower end of this range.
The only relevant factual finding of the Medical Panel is the statement that the plaintiff is suffering from:
Mild varicose veins over the inner and outer aspect of the lower left leg, with associated left calf swelling but no pitting or dispersible oedema secondary to a DVT.
However, Professor Myers’ evidence makes it clear that swelling can only be caused by oedema, and whether there is ‘pitting or dispersible’ oedema is irrelevant to the Medical Panel’s assessment of the level of the plaintiff’s impairment. Once there is oedema (which is the only possible finding as a result of swelling), the only task remaining before the Medical Panel is to assess whether the severity of the oedema falls within class 1, 2, or 3 of Table 14 of the Guides.
Alternatively, I agree with the submissions of counsel for the plaintiff to the effect that given:
(a) the history taken by the Medical Panel from the plaintiff (the accuracy of which was not impugned by the Medical Panel);
(b) the evidence of Professor Myers concerning the relationship between lower limb swelling and oedema; and
(c) the Medical Panel’s failure to state in its reasons whether the plaintiff’s oedema was transient or persistent, moderate or marked, controlled or partially controlled, and under which, if any of the classes prescribed by Table 14 of the Guides:
demonstrated that the Panel relinquished or departed from adhering to what Table 14 required it to do in assessing impairment in accordance with the Guides or it misconstrued the requirements of Table 14 and as a consequence misapplied the Guides.[25]
[25]Plaintiff’s written submissions, paragraph 46.
It is well established that a misapplication of the Guides is a reviewable error of law. In HJ Heinz Company Australia Ltd v Kotzman,[26] Kyrou J (as he then was) stated, as follows:
In order for a medical panel to assess impairment “in accordance with the [Guides]” as required by s 91 of the [Accident Compensation Act 1958 (Vic)], it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.[27]
[26][2009] VSC 311.
[27]Ibid [45].
His Honour stressed the importance of adherence to the methodology of the Guides, regardless of whether such adherence might lead to a ‘sub-optimal’ outcome. In the current case, what appears to have occurred (and this is where Professor Myers’ evidence is again of assistance), is that the Medical Panel correctly identified Table 14 as the appropriate table by which to assess the plaintiff’s impairment, and stated in the reasons that it did so assess the plaintiff’s impairment, but did so notwithstanding its own conclusion that, in effect, there was no oedema. That finding, as noted above, was illogical and/or irrational, but nevertheless, the decision of the Medical Panel to utilise Table 14 was largely inconsistent with its own factual findings. Thus, it could not be said that the Medical Panel assessed the plaintiff’s impairment ‘in accordance with the Guides’, even though, if it had made a finding not tainted by illogicality, it would have done so. In any event, the Medical Panels’ failure to advert to which of the classes in Table 14 it considered the best described the plaintiff’s condition, does, as suggested by counsel for the plaintiff:
warrant the inference that the Panel did not carry out its required function in accordance with the Guides.[28]
[28]Plaintiff’s submissions, paragraph 45.
Accordingly, I will make the orders sought by the plaintiff. I agree that it is appropriate to remit the matter to a differently constituted medical panel in the circumstances. I will hear the plaintiff and the second defendant on the question of costs on a later occasion.
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