Pezzaniti v Industrial Automation (Australia) Ltd
[2000] VSC 388
•28 September 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No.4987 of 2000
| GIUSEPPE PEZZANITI | Applicant |
| v | |
| INDUSTRIAL AUTOMATION (AUSTRALIA) PTY LTD & OTHERS | Respondents |
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JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2000 | |
DATE OF JUDGMENT: | 28 September 2000 | |
CASE MAY BE CITED AS: | Pezzaniti v Industrial Automation (Australia) Pty Ltd & Others. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 388 | |
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Accident Compensation – review of decision of medical panel – failure to answer question – application of s. 91 Accident Compensation Act 1985.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr. R. Gorton QC and | Arnold Dallas & McPherson |
| For the 1st & 4th Respondents | Mr. M. O'Loghlen QC and | Lander & Rogers |
| For the 2nd & 3rd Respondents | Mr. P. Coish | Ebsworth & Ebsworth |
HIS HONOUR:
Proceedings
Giuseppe Pezzaniti (Pezzaniti) is the applicant in proceedings to review a decision of a medical panel made on 10 March 2000, acting pursuant to the Accident Compensation Act 1985 (the Act). The grounds upon which Pezzaniti seeks to review the decision were recorded in the order to show cause as follows:
"(a)The Medical Panel has failed to provide answers to questions asked of it numbered 1, 2 and 3.
(b)The reasons for decision of the Medical Panel's opinion are ambiguous."
In arguing the first issue, the applicant developed arguments that the Panel had failed to consider all relevant matters. The respondents did not submit that this approach was not open.
Background facts
On about 7 July 1999, Pezzaniti submitted a claim for compensation pursuant to ss 98 and 98A of the Act, alleging permanent impairment of the back and loss of use of the right leg. He sought, inter alia, compensation under s 98 of the Act.
It appears that, in March 1995, he experienced an acute onset of right knee pain. He alleged that he later developed back pain and ceased employment in November 1996 as a result of symptoms of back and leg pain. His claim was rejected and he referred the dispute to a conciliation officer under s 104(3) of the Act.
The conciliation officer referred three medical questions to a medical panel (pursuant to s 56(6) of the Act) on 31 January 2000. The questions referred were the following:
"1.What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?
2.What is the degree of impairment of the worker's back, when assessed in accordance with s 91, and is that impairment permanent?
3.What is the level of impairment or loss of the right leg for industrial purposes, and is that impairment or loss permanent?"
In the reference to the panel, the conciliator referred to a number of sections in the Act by number and also elaborated on the definition of "injury" and "significant contributing factor". The Claim was described as one "for permanent impairment to the back and right leg."
The Medical Panel delivered a certificate of opinion (pursuant to s 68(2) of the Act) on 10 March 2000. The opinion expressed in respect of question 1 was as follows:
"In the Panel's opinion, the worker is suffering from a Chronic Pain Disorder associated with a General Medical Condition.
There is no physical medical condition of the back and right leg relevant to any claimed injury."
The opinion expressed on the second question was as follows:
"In the Panel's opinion, there is no whole person impairment attributable to the back when assessed in accordance with Section 91 of the Act."
As to question 3, the following opinion was expressed:
"In the Panel's opinion, there is no loss of use of the right leg for industrial purposes."
A psychiatrist, a general practitioner, orthopaedic surgeon and rheumatologist constituted the Panel. It published reasons for opinion which recorded examinations on 11 February 2000 and 28 February 2000 by members of the Panel either singly or jointly. In the reasons, the Panel set out the history given to it by Pezzaniti and the results of the examination of him. It recorded observations of severe restrictions of back and right knee movements. Reference was then made to the various X-rays, CT scans and MRI images. The Panel concluded as follows:
"The Panel considers it was likely that the worker initially suffered an internal derangement of the right knee and a subsequent reflex sympathetic reaction when at work in 1995. The Panel concluded that there is now no current evidence of any derangement of the right knee or any other physical abnormality relevant to any injury.
The Panel also conducted a psychiatric examination and concluded that the worker's symptoms are consistent with a Chronic Pain Disorder Associated with a General Medical Condition that has arisen as a consequence of the initial physical injury.
The Panel conducted an impairment assessment of the back using the AMA Guides to the Evaluation of Permanent Impairment (Second Edition), as required by Section 91 of the Accident Compensation Act 1985. As the Panel considers there is no physical condition of the back the Panel concluded that there was no whole person impairment attributable to the back.
As the Panel also considers there is no physical condition of the right leg relevant to any claimed injury the worker does not have any loss of use of the right leg for industrial purposes."
Question 1
Counsel for the applicant submitted that the Panel failed to answer question 1 (Avon Downs Pty Ltd v Federal Commission of Taxation (1949) 78 CLR 353 at 360). It was submitted that to explain the nature of the worker's medical condition as one of suffering from "a Chronic Pain Disorder associated with a General Medical Condition" simply restates the question. The Panel was saying that the applicant had a general medical condition. Counsel submitted that it was the nature of that medical condition that the Panel was supposed to explain if it was of the opinion that the applicant had a medical condition. Counsel submitted that in accordance with the broad powers conferred by s 7 of the Administrative Law Act, the proper course to follow was to declare the decision in answer to question 1 invalid and to set it aside.
In response, counsel for the first and fourth respondents (the employer and insurer) submitted that the reference to "Chronic Pain and Disorder associated with a General Medical Condition" was plainly a reference to one of the diagnostic descriptions contained in the American Psychiatric Association Manual DSM-IV. He referred to p 458 of that Manual and in particular to the definition of "Pain Disorder Associated With a General Medical Condition". That is defined in the following terms:
"This sub-type of pain disorder is not considered a mental disorder and is coded on Axis III. It is listed in this section to facilitate differential diagnosis. The pain results from a general medical condition, and psychological factors are judged to play either no role or a minimal role in the onset or maintenance of the pain. The ICD – 9 – CM code for this sub-type is selected based on the location of the pain or the associated general medical condition if this has been established . . . "
It seems to me that this explanation should be accepted and, therefore, the initial argument raised by the applicant in relation to question 1 is met. It raises another problem, however.
Plainly, in light of their expression of opinion, the Panel was saying it could not find any physical condition of the back and right leg that would explain the pain and disabilities. At the same time the opinion and the reasons clearly indicate that the Panel took the view that the applicant was suffering from a genuine medical condition which they had described for diagnostic purposes as a "Chronic Pain Disorder associated with a General Medical Condition" – presumably a physical condition, because psychological factors play no role or only a minimal role. As was accepted by counsel for the first and fourth respondents, the Panel was not suggesting that he was malingering. As to that issue, I note that the definition of criteria for the diagnosis in DSM-IV (p 458) includes – "the pain is not intentionally produced or feigned . . .". The Panel was stating that he suffered from a "General Medical Condition" which was associated with the "Chronic Pain Disorder". It also stated in its reasons that that "condition" had "arisen as a consequence of the initial physical injury".
Accordingly it may be argued that the Panel erred in finding that there was no physical condition, it having found the existence of the particular pain disorder which had to have a physical cause, psychological factors playing no role or only a minimal role.
I suggest, however, that the Panel in stating that there was no physical condition was recording the fact that it had not been able to observe any physical explanations for the applicant's problems – i.e., there were no observable physical factors. Nonetheless, it had found the existence of a genuine medical condition.
Counsel for the applicant submitted that if I was satisfied that question 1 had been answered, and answered in the above way, then the answers to questions 2 and 3 were erroneous because in assessing the level of impairment in the back and the leg the Panel had failed to answer those questions. It had failed to address all relevant matters – in particular that the applicant was suffering from a Chronic Pain Disorder associated with a General Medical Condition.
I turn to question two and the opinion expressed in relation to it.
Question 2
As noted above that the Panel's answer to question 2 was that in its opinion there was no "whole person impairment" attributable to the back, having assessed that issue in accordance with s 91 of the Act. In its reasons, it explained that it reached this conclusion because it considered there was “no physical condition of the back”.
Section 91 of the Act was amended in 1996. It provided, so far as relevant, as follows:
"91. Assessment of Impairment
1.In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment –
(a) made in accordance with –
(i)unless regulations referred to in sub-paragraph (ii) are in force, the American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition): or
(ii)methods prescribed for the purposes of this section –
and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and
(b)if the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who has successfully completed such a training course.
(2)In assessing a degree of impairment under sub-section (1), regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury."
The AMA Guide to the Evaluation of Permanent Impairment (2nd Edition) is the source of the concept of "whole person impairment" referred to by the Panel in answer to Question 2. The AMA Guide sets out scales to be used which translate, for example, degrees of flexion into degrees of loss of movement. They in turn are translated into a percentage impairment of the "whole person", an assessment of the impact of the particular impairment on the total functioning of the individual concerned. There is also a table provided for the purpose of determining the whole person impairment effect of more than one impairment. While the questions directed to the Panel did not expressly seek a "whole person impairment" figure, that is the impairment figure produced by applying the AMA Guides and the applicant did not argue that the answer was inappropriate insofar as it dealt with "whole person impairment".
Section 98 of the Act provides for compensation for "maims" in relation to back injury. It provides, inter alia, for a worker to be compensated as to "impairment of the back" by application of a percentage between 0 and 60 per cent of the amount set out in the section. Section 98 (1) (e) provides:
"The degree of impairment in the case of injuries to the back . . . is to be assessed in accordance with section 91."
Counsel for the applicant put submissions to me on the assumption that the Tribunal had purported to apply s 91(2) (see above) in making its decision. He submitted that assuming this occurred, the Panel had misconstrued s 91(2) which was intended to do no more than prevent a worker increasing the whole person impairment assessment by adding to the degree of impairment assessed under, say, chapter 1 of the AMA guide (the spine), the degree of impairment flowing from psychiatric or psychological injury, such as consequential reactive depression, under chapter 12 of the Guide. He argued that s 91(2) did not prevent the assessing of a degree of impairment under chapter 1 if there was a psychiatric or psychological element in the cause of the impairment. Counsel argued that what was required under s 91, and in applying the AMA guides was, to determine the degree of observable physical impairment - in the case of backs, under chapter 1.
It is true that in its answers and reasons the Panel referred to s 91 of the Act. But the Panel in its answer and in its reasons did not at any stage indicate that it relied on s 91(2). I think it likely it did not but proceeded erroneously on the basis of no observable physical factors. Assuming, however, that it did rely on s 91(2), the issue to be determined is whether that was erroneous.
Before turning to the arguments of the parties on this issue I note that, accepting that the Panel found the existence of the Pain Disorder, it may be said that it did not find "any psychiatric or psychological injury, impairment or symptoms". and, therefore, s 91(2) had no application in any event.
I turn to the arguments of the parties.
It was common ground between the parties that the purpose for inserting s 91(2) in the Act had been, at least in part, to address what was seen by the Government of the day to be a problem, namely, injured persons establishing that their injury was a "serious injury" by adding on to the degree of impairment found under, say Chapter 1, which might be minor, a more serious secondary or consequential psychiatric or psychological injury resulting from the physical injury as assessed under ch 12 of the Guide (see Second Reading Speech, Hansard, Legislative Assembly, 14/11/96, p 1224)..
Counsel for the first and fourth respondents, however, submitted that the terms of s 91(2) are wide and they should not be read down. Counsel argued that the result of s 91(2) is that in assessing a degree of impairment regard must not be had, for example, to any impairment which may result, wholly or in part, from psychiatric factors that might be having an impairing effect, for example, on the back.
On its face, and ignoring its context, the language of s 91(2) is broad. It concerns, however, the task of assessing "impairment", a task which under s 91(1) is to be conducted in accordance with the AMA Guide. Reading S 91(2) in that context, the interpretation of the applicant is to be preferred. Applying the Guide, (Preface (vii)) the examiner is expected to determine the individual's clinical status. Having done that, the examiner is then to rate any identified impairments by applying the Guide to the clinical and laboratory findings made about the loss of or derangement of various body parts, systems or functions. The next step involves the comparison of those results with the criteria specified for particular body parts or functions in the various chapters. So the examiner would go to Chapter One if loss of function in the back is involved and Chapter 12 if psychological injury, impairment or symptoms were to be assessed. This step is distinct from the prior clinical evaluation and involves applying the Guide criteria to the results of the clinical analysis. This need not be done by the original examiner. Another can use the clinical evaluation.
In establishing the person's clinical status, the examiner would presumably determine the genuiness of the applicant's condition. Having established the precise clinical status the task would become one of assessing the degree of impairment of the particular genuine impairments found. Applying s 91(2) in deciding, for example, the degree of impairment of the back under s 98, only identifiable secondary or consequential Chapter 12 psychological injury, impairment or symptoms are to be ignored. In any event, Chapter 12 would measure only the psychiatric impact of such injury (see AMA Guide p 220), for example, on intelligence, thinking, perception and behaviour.
Counsel for the first and fourth respondents also submitted that, on any view, it was open to the Tribunal to answer question 2 as it did in view of its finding that there was no physical medical condition of the back or leg relevant to the claimed injury. Counsel submitted that that being so no reviewable error could be demonstrated (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259).
In light of their reasons and their answer to question 1 it seems to me that the Panel was obliged to answer question 2 with a percentage figure reflecting the degree of impairment which was observed on examination. Concluding that there was no (observable) physical medical condition of the back relevant to the injury claimed did not, in my view, entitle the Panel to conclude that there was no whole person impairment attributable to the back where it had found a genuine clinical condition connected with that impairment. Alternatively, the finding of no physical medical condition was inconsistent with its finding of the "Chronic Pain Disorder".
As noted above, the Panel, in its reasons concluded that the symptoms were consistent with "a Chronic Pain Disorder Associated with a General Medical Condition that has arisen as a consequence of the initial physical injury". As I have noted, it was common ground that the Panel reported a finding of a genuine clinical condition encompassing pain and limitation of movement in the back and leg. It found there was a link between that clinical condition and the original physical injury. Its task in answering the remaining questions, was to go to the relevant chapters of the AMA Guide apply the criteria and report on the relevant loss of function and whole person impairment resulting from that clinical condition. It failed to do so.
Question 3
It was common ground that s 91 of the Act did not apply to the Panel's consideration of the level of impairment of the right leg for industrial purposes and the question whether that impairment or loss was permanent. The applicant submitted that the Panel was obliged to assess the level of impairment and its permanence. The first and fourth respondents submitted that it was open to the Panel not to do so in light of the finding of no physical condition of the right leg.
I infer from the Panel's response to the third question that, having found no physical condition relevant to the claimed injury, it considered it was entitled to answer the question in the negative by saying there was no loss of use of the right leg for industrial purposes. Having found a genuine medical condition, which was the result of the original leg injury, however, the Panel was, in my view, obliged to answer this question by assessing the resultant level of impairment and its permanence. Alternatively, it failed to consider whether the medical condition it identified played a role in limiting movement in the right leg. Accordingly, this further alleged error is made out.
Other issues
In light of the above it is not necessary to consider the further matters advanced and the second issue raised in the order to review (the alleged ambiguity of the reasons). In any event that issue was not pressed.
Conclusion
Accordingly, the applicant's case has been made out in part. While I am satisfied that question 1 was answered, the other questions were not, in my view, or the Panel failed to consider relevant matters and, therefore, the decisions recorded in those answers should be set aside. The question then arises as to the appropriate disposal of the matter.
I am inclined to the view that it should be referred back to the same Panel. If my analysis is correct, then the answering of question 2 appears to require no more than the application of the AMA Guide to their findings and question 3 no more than an assessment of the industrial loss of use of the leg. On the other hand there may be aspects of the application of the AMA Guide which I have overlooked and which require further explanation in answering those questions. I will, however, invite further submissions on that issue before making any final decisions.
Finally, one must sympathise with medical panels which are called upon to answer what, in truth, are difficult mixed questions of law and fact and to apply this impenetrable Act.
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