Poon v Vicinity Custodian Pty Ltd
[2018] VSC 631
•25 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03345
| ROBYN POON | Plaintiff |
| v | |
| VICINITY CUSTODIAN PTY LTD AND OTHERS (according to the Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 May 2018 |
DATE OF JUDGMENT: | 25 October 2018 |
CASE MAY BE CITED AS: | Poon v Vicinity Custodian Pty Ltd & ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 631 |
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JUDICIAL REVIEW AND APPEALS – Application by plaintiff for judicial review of a medical panel (‘Panel’)’s opinion in respect to finding that she had not suffered a physical injury which me the threshold under s 28LB of the Wrongs Act 1958 – Plaintiff alleged that she fell and injured her right arm while visiting the first defendant’s shopping centre – Plaintiff alleged that she has had a tremor in her right arm since the injury – Panel made finding that there was no physical cause of the tremor – Whether Panel made a critical finding of fact for which there was no evidence or no probative evidence – Whether Panel engaged in a fact finding process which was illogical, irrational and legally unreasonable – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, referred to – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, referred to – Whether Panel misconstrued or failed to correctly undertake the analysis required by s 28LL(3) of the Act – Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36, referred to – Chua v Lowthian [2011] VSC 468, referred to – No jurisdictional error or error of law – No impairment for the Panel to assess given Panel’s finding that there was no organic cause of the plaintiff’s tremor – Panel not obliged to identify an alternative explanation for the plaintiff’s tremor – Panel not bound to reach a conclusion as to the cause of any impairment outside the bounds of the medical question referred to it – Chua v Newman-Morris [2009] VSC 582, referred to – Whether any denial of procedural fairness – No finding that Panel failed to afford procedural fairness – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Schilling | Henry Carus + Associates |
| For the First Defendant | Mr M Fleming QC with Ms F Spencer | Wotton + Kearney |
| For the Second and Third Defendants | Russell Kennedy |
HER HONOUR:
Introduction and Background
The plaintiff, Ms Robyn Poon, a retired school teacher, has brought this proceeding to quash a decision of a medical panel (‘Panel’) which found that she had not suffered a physical injury which met the threshold under s 28LB of the Wrongs Act 1958 (‘Act’), such as to enable her to bring a claim for damages for non-pecuniary loss. The alleged injury was said to have arisen out of an incident on or around 16 February 2012, when Ms Poon visited the Oakleigh Shopping Centre, which is owned by the first defendant. While walking through the shopping centre the plaintiff fell and injured her right arm. Since that day she has had a tremor in her right arm, which has been treated with only limited success, and which has had a substantial impact upon her activities and daily life.
On 22 November 2016, the plaintiff was examined by Dr Kennedy, a sports and industrial physician. On 6 December 2016, Dr Kennedy provided a report and Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury (‘certificate’). The certificate stated that Ms Poon suffered from a post-traumatic right hand tremor, and that Dr Kennedy was satisfied that the degree of impairment resulting from the plaintiff’s injury was seven per cent, thus, over the threshold under s 28LB of the Act. In his report, Dr Kennedy referred to the plaintiff’s current complaints and capabilities as follows:[1]
[1]This summary was also adopted by the Panel in the reasons.
1.Pronounced constant tremor in the right hand with occasional brief breaks from the tremor that last one or two minutes but these are very infrequent.
2.Affects all her activities involving her dominant upper extremity, particularly her hand.
3. Has no specific problems with the right shoulder, elbow or upper arm.
4. No neck pain or stiffness.
5. No headaches or blurred vision or visual disturbances.
6.Cannot grip or grasp the right hand confidently and she has very poor handwriting but she still tries to use the right hand when she can.
Under the heading ‘Opinion’, Dr Kennedy stated as follows:
Ms Poon had a fall at the Oakleigh Shopping Centre on 16 February 2012 and since that fall she has had a post-traumatic tremor involving her right upper extremity but particularly her right forearm, wrist and hand.
Tremor is a rare manifestation after a neck injury and its physiological mechanism has not been elucidated. There is medical evidence to suggest that a tremor may occur as a consequence of trauma to the central peripheral nervous system without specific radiological signs of brain and nerve injuries and post-traumatic tremor has been reported to occur infrequently.
Ms Poon is suffering from a primary post-traumatic dysafferentation syndrome which has given rise to her symptoms of a post-traumatic tremor of the right forearm, wrist and hand.
Ms Poon had not worked since 1990 and for twelve-and-a-half years, after retiring as a primary school teacher, she cared for her mother who initially had an acute brain injury following a transport accident and she then suffered from bowel cancer.
Ms Poon is currently receiving specific treatment from Dr Kathleen Lawson, a functional neurorehabilitation chiropractor.
Ms Poon has a very poor prognosis on reviewing the literature in relation to posttraumatic tremors of unknown specific aetiology.
On 31 March 2017, the first defendant’s claims agent referred the claim made by Ms Poon against the first defendant to the Panel pursuant to Part VBA of the Act. The referral form identified the medical question as follows: ‘Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?’ Ms Poon’s solicitors provided the Panel with the information prescribed by s 28LT(2) of the Act, stating that the injuries sustained by Ms Poon are as follows:
1. right arm
2. right shoulder
3. post-traumatic neurophysiological tremor
4. mental disturbance.
Dr Kennedy’s report was provided to the Panel, and Ms Poon was examined by the Panel on 25 May 2017. The Panel was constituted by a physician and neurologist. The answer to the medical question was as follows:
The Panel determined that the degree of whole person impairment resulting from the physical injury to the Claimant alleged in the claim does not satisfy the threshold level.
The Panel’s Reasons
In its reasons dated 21 June 2017 (‘reasons’), the Panel referred to the following matters:
(a) the plaintiff’s description of the incident;
(b) the plaintiff’s immediate symptoms, including the fact that she noticed that her right hand was shaking;
(c) the Panel stated:
the soreness in the plaintiff’s right arm completely settled by about a week after the incident;
the claimant told the Panel that her right hand shaking involved all her right arm from the shoulder, and had not ceased since the incident. She said that if she was “stressed”, the tremor was worse, in the sense of a broader amplitude but of constant frequency. She said the tremor amplitude reduces with distraction.
(d) what the plaintiff told it about her personal circumstances and her treatment by a neurological physiotherapist and a chiropractor;
(e) the plaintiff’s activities on a day to day basis, and the constraints imposed by the tremor; and
(f) the Panel reported upon its physical examination of the plaintiff, stating that there is no evidence of Parkinsonism or other constitutional conditions. The Panel stated as follows:
The Panel noted the opinion of Dr David Kennedy, Sports and Industrial Physician, dated 6 December 2016, who considered on his assessment that the claimant had a 7% whole person impairment, and certified a more than 5% degree of impairment for post-traumatic right hand tremor. The Panel obtained a similar history, performed a detailed physical examination, and reached its own conclusion based on its examination of the claimant on 25 May 2017.
The Panel referred to the decision of this Court in Chua v Newman-Morris,[2] and went on to say as follows:
[2][2009] VSC 582.
The Panel, based on the Claimant’s history, the materials provided with the referral, its examination findings and collective, long-standing expertise and experience, considers that the Claimant suffered a fall onto her right side which resulted in a minor soft tissue bruising injury which is now resolved. In the Panel’s opinion, the Claimant now suffers a right upper limb action tremor for which no organic cause was identified by the Panel.
The Panel therefore considers that the Claimant is suffering from a right upper limb action tremor which the Panel does not consider is a physical injury ‘referrable to the fault of another person whose conduct the complainant complains of.’
Accordingly the Panel concluded that the claimant is suffering from a right upper limb action tremor, which the Panel does not identify as a potentially compensable physical injury.
The Panel noted the decision in Amendola v Coles Supermarkets Australia Pty Ltd & Ors [2008] VSC 36 wherein the Court stated that “...Axiomatically, an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment notwithstanding that the Panel could not elicit any evidence of injury.”
As the Panel is of the opinion that the Claimant is not suffering from any physical injury attributable to the incident, the Panel concluded that the Claimant has no impairment to assess in accordance the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) (“the Guides”).
The Panel therefore concluded that the degree of whole person impairment resulting from the physical injury to the Claimant alleged in the claim is not more than 5%.
The Panel considers that it is not required to make a finding in relation to the issue of whether or not the Claimant's current impairment, which the Claimant attributes to the injury alleged in the claim, was caused by the circumstances of the incident, as alleged, that gave rise to the claim, but the Panel has assessed impairment only arising from the injuries to the Claimant that are potentially compensable.
On 21 August 2017, the plaintiff issued this proceeding, seeking an order in the nature of certiorari quashing the opinion of the Panel, and an order in the nature of mandamus remitting the medical question upon which the opinion was given to a different medical panel, to be determined in accordance with law.
On 1 May 2018, the plaintiff filed and served an amended originating motion. In the amended originating motion, the plaintiff relied upon the following grounds of review:
1.In determining its opinion, the medical panel fell into jurisdictional error or alternatively made an error of law which is apparent on the face of the record by:
(a)making a critical finding of fact for which there was no, or no probative, evidence;
(b)engaging in a process of fact finding which is illogical, irrational and legally unreasonable; and
(c)misconstruing and/or failing to correctly undertake the analysis required by sub-s 28LL(3) of the Act.
2.In determining its opinion, the medical panel failed to afford the plaintiff procedural fairness by:
(a)failing to give the plaintiff a reasonable opportunity to obtain expert medical opinion and/or make written submissions to the Panel in relation to the issue of whether the plaintiff’s tremor is psychogenic in origin; and
(b)failing to comply with the convenor’s directions as to the procedures of the medical panel (under Part VBA of the Wrongs Act 1958) 2015, in particular paragraphs 20 and 42.
Relevant legal principles
The relevant legal principles concerning the review of medical panel decisions are well established and the subject of numerous decisions of this Court. A helpful summary of the relevant statutory framework is contained in the decision of Rush J in Wilson v Liquorland Australia Pty Ltd,[3] as follows:
[3][2014] VSC 545.
Section 28LE of the Act states that a person cannot recover non-economic loss damages for personal injury unless they have suffered a ‘significant injury’. Section 28LF of the Act defines significant injury by reference to the degree of whole person impairment resulting from the injury as assessed by an approved medical practitioner or, upon referral, by a medical panel.
To be deemed a significant injury under the Act, the permanent impairment caused by that injury must meet the required threshold level. Pursuant to s 28LB of the Act, in the case of injury (other than psychiatric injury), the relevant threshold level is impairment of more than 5%.
The method by which a medical panel is required to assess the impairment of injuries resulting from the same incident is set out in s 28LL of the Act, which states:
(1)If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.
(2)For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the AMA Guides or the methods prescribed for the purposes of this Part.
(3)For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
Section 28LB of the Act defines the ‘AMA Guides’ as the:
American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part [Part VBA of the Act].
Section 28LJ of the Act directs that a medical panel, in assessing the degree of impairment, must not pay regard to ‘any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury’.
Section 28LZI(2) of the Act preserves the jurisdiction of this Court to grant the relief sought by the plaintiff in this proceeding.[4]
[4]Ibid, [8]-[13].
By reason of s 28LZH of the Act, the opinion of a medical panel is final or binding unless it is established that a medical panel’s decision ought to be set aside for legal error. Established categories of legal error include jurisdictional error (such as failing to take into account a mandatory relevant consideration or a misconstruction of a relevant statutory provision), a failure to afford procedural fairness, or an error of law on the face of the record. It is not permissible for this Court to review the merits of a medical panel’s decision, save where there is no evidence in support of a factual finding, or, arguably, where the conclusion reached by a medical panel is irrational, illogical or unreasonable.
The Act imposes no obligation upon a medical panel to give reasons, such that inadequate reasons is not an error of law on the face of the record. However, a medical panel’s reasons may be relied upon to draw an inference from what was stated, and from what was not stated in the reasons, that a medical panel has erred in law in forming its opinion. However, the reasons of a medical panel (being a specialist tribunal, rather than a judicial body) are to be given a beneficial construction, and are not to be subject to overzealous scrutiny.
Submissions
As noted above, the plaintiff submitted that the Panel was in error by:
(a) making a critical finding of fact for which there was no evidence, or no probative evidence;
(b) engaging in a process of fact finding which was illogical, irrational and legally unreasonable; and/or
(c) misconstruing and/or failing to correctly undertake the analysis required by s 28LL(3) of the Act.
In her written outline of submissions, the plaintiff referred to the following observations of the Panel regarding the history provided by the plaintiff in the reasons:
(a) she first noticed her right hand shaking immediately following the fall and while walking to her brother’s nearby office;
(b) she had no prior history of right hand tremor;
(c) the tremor had not ceased since the fall and was ‘worse’ in the sense of being of greater amplitude, when she was stressed; and
(d) the tremor interferes with her ability to undertake her activities of daily living, such as dressing, cooking, gardening and writing.
The plaintiff submitted that the Panel did not explicitly or implicitly reject the veracity of any of the above, and the Panel concluded that the plaintiff was suffering from an ‘action tremor of consistent frequency by description, which reduced with concentration’. However, the plaintiff submitted that, notwithstanding the Panel’s findings with respect to the existence of a physical tremor, a related impairment, and its acceptance that the tremor commenced at the time of the fall, the Panel concluded, without explanation, that the tremor was unrelated to the fall. There was no evidential basis to support that finding.
Alternatively, the Panel’s finding that the plaintiff’s upper limb tremor and resulting impairment were unrelated lacked an intelligible justification, in circumstances where the Panel:
(a) did not diagnose any other history of neurological problems or specific injuries to the plaintiff prior to the fall;
(b) accepted that there was a direct temporal connection between the onset of the tremor and the fall; and
(c) there was nothing in its findings from the Panel’s examination of the plaintiff that would provide any rational basis for the Panel’s conclusion that the plaintiff had suffered merely ‘ … a minor soft tissue bruising injury which is now resolved.’
The plaintiff submitted that the Panel’s finding that there was no organic cause of the plaintiff’s tremor was irrational or illogical. There was nothing in the reasons which suggested that the Panel considered that the plaintiff was fabricating her symptoms. The Panel also seemed to have accepted that the plaintiff’s tremor commenced contemporaneously with the fall.
The plaintiff submitted that the Panel failed to fulfil its obligations under s 28LL(3) of the Act, which requires that impairments from unrelated injuries or causes are to be disregarded in making an assessment of impairment of a claimant. The plaintiff’s submissions referred to the statement of Kaye J in Amendola v Coles Supermarkets Australia Pty Ltd[5] (‘Amendola’) to the effect that where an impairment is identified:
… a Panel is required to reach some conclusion as to the cause of a particular impairment elicited by the Panel.[6]
[5][2008] VSC 36.
[6]Ibid, [32].
In the current case, the Panel failed to express any conclusion as to the cause of the plaintiff’s impairment. The plaintiff submitted that there must be some evidentiary basis for the Panel to have concluded that the impairment identified by the Panel resulted from a cause other than the injury caused by the fall. The plaintiff relied upon the following statement of Osborn J in Chua v Lowthian:[7]
… any assessment of pre-existing impairment must be evidence based. It cannot simply be speculative. The Panel must have an evidentiary basis upon which it can be positively satisfied of a pre-existing impairment which it then disregards. The Panel is not bound by the rules or practices as to evidence, but it must act on the basis of evidence of some sort.[8]
[7][2011] VSC 468.
[8]Ibid, [135].
The plaintiff submitted that the above observations apply equally to the formation of an opinion that an impairment has a cause not arising in compensable circumstances, but that the reasons disclose no such evidentiary basis. There was nothing in the reasons to suggest any psychiatric cause of the plaintiff’s tremor.
The plaintiff also contended, in the alternative to the above submissions, that if the Panel did find that the plaintiff’s tremor was not a physical injury, that finding must have been based on a conclusion that her tremor was psychogenic in character and origin: that is, it was the manifestation of a primary or secondary psychiatric or psychological injury. By failing to inform the plaintiff of that conclusion, and failing to provide the plaintiff with an opportunity to be heard on that issue, the Panel denied the plaintiff procedural fairness.
The plaintiff submitted that both the plaintiff and the first defendant considered that the alleged injury was a physical injury. That assumption appears to have been shared by the Convenor of Medical Panels (‘Convenor’), who convened a panel without any member with psychological or psychiatric expertise. The obligation of the Panel to inform the parties that it had formed the view that the plaintiff’s tremor was psychogenic in origin, and to provide the plaintiff with an opportunity to be heard on that issue, arises at common law, and under the ‘Convenor’s Directions as to the Procedures of Medical Panels (Under Part VBA of the Wrongs Act 1958)(‘Directions’). Paragraph 42 of the Directions states as follows:
If, during the course of its examination/s, the Medical Panel requires further information because it becomes aware of a matter which has not been canvassed in the referral information and the matter is integral to the Panel’s deliberations, the Panel will inform the claimant of this fact and request them to respond within a specified time limit. The Panel’s opinion should not be concluded until all responses have been received or the time limit has expired.
The plaintiff submitted further that the Panel also should have sought directions from the Convenor as to whether the Panel should have been reconstituted to include a member with psychiatric or psychological expertise.
The first defendant submitted that the plaintiff’s application for review of the Panel’s decision ought to be dismissed, on the basis that the Panel did not fall into jurisdictional error, and the plaintiff has not identified any error of law on the face of the record. The plaintiff’s grounds of review and submissions are founded on an inaccurate characterisation of the reasons, as the plaintiff says that the Panel’s implicit finding was that the plaintiff’s tremor was unrelated to the fall. The first defendant submitted that the Panel found no such thing, but rather, the Panel found that it could not identify an organic cause for the plaintiff’s tremor. As the Panel could not identify a physical injury, there was no impairment arising from a physical injury for the Panel to assess.
The first defendant relied upon the decision in Amendola[9] to support its contention that a medical panel is not required to assess impairment in the absence of any injury, as follows (omitting citations):
It is important to bear in mind that the role of the Panel, as identified in the Act, is to determine whether the degree of impairment of the whole person “resulting from the injury” is above the threshold level. A number of provisions make express reference to the assessment, first by the approved medical practitioner, and then by the Panel, of the degree of impairment “resulting from the injury”. Section 28LZG(4) requires that the determination of the Medical Panel must (where appropriate) “state whether the degree of impairment resulting from the injury satisfies the threshold level ... “. Axiomatically, an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment, notwithstanding that the Panel could not elicit any evidence of injury.[10]
[9][2008] VSC 36.
[10]Ibid, [31].
The first defendant submitted that the current case cannot be distinguished from Amendola.[11] Having found there was no organic cause of the plaintiff’s tremor, there was no impairment to assess.
[11]Ibid.
In relation to the plaintiff’s contention that the Panel’s finding had no evidentiary basis, the first defendant accepted that if a medical panel decides a question of fact where there was no evidentiary basis for that finding, that may give rise to an error of law if the unsubstantiated finding was critical to the medical panel’s opinion. However, the first defendant noted that it is more difficult to demonstrate that a tribunal’s finding is not open to it when the tribunal’s function is to utilise its own expertise to determine the question before it.
In relation to the plaintiff’s contention that the Panel’s finding was unreasonable or illogical, the first defendant made the following observations:
(a) there remains considerable uncertainty about the circumstances in which the irrationality/illogicality/unreasonableness grounds may apply, particularly whether such grounds may apply outside the context of a review of a discretionary determination;[12]
[12]See Ryan v The Grange at Wodonga Pty Ltd (‘Ryan’) [2015] VSCA 17, [82]-[92]. The first defendant noted that decisions of single judges which relied upon this ground of review in the medical panel context predated the decision of the Court of Appeal in Ryan.
(b) even if the Panel’s decision is so reviewable, it is a stringent test, equivalent to Wednesbury unreasonableness. The first defendant referred to the following statement of French CJ in Minister for Immigration and Citizenship v Li:[13]
[13](2013) 249 CLR 332.
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient weight or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.[14]
(c) once again, the premise underlying this ground of review (along with the ‘no evidence’ ground) is misconceived, as the Panel did not find that the tremor was unrelated to the fall. Rather, the Panel found that the plaintiff’s tremor was not a physical injury; and
(d) it could not be contended that the Panel’s finding that the plaintiff’s tremor was not caused by a physical injury related to the fall was a finding that was not open to the Panel to make. The Panel was entitled to reach the conclusion that the plaintiff’s tremor had no organic basis.
[14]Ibid, [30].
In relation to the question of whether the Panel had misconstrued or failed to undertake the analysis required by s 28LL(3) of the Act, the first defendant rejected the plaintiff’s contention that the Panel erred in law by failing to express any conclusion about the cause of the plaintiff’s impairment, and that the Panel erred in concluding that the plaintiff’s impairment resulted from a cause other than the fall.
The first defendant noted that the Panel was convened in circumstances where the plaintiff served upon the first defendant a certificate prepared by a sports and industrial physician, who described a physical injury, being a ‘post traumatic (r) hand tremor’, which resulted in a degree of impairment of more than five per cent. The first defendant referred the question of whether the plaintiff had a degree of impairment from the physical injury alleged in the claim that satisfied the threshold level. (emphasis added).
The first defendant submitted that the Panel merely answered the question referred to it adversely to the plaintiff, reasoning to its conclusion as follows:
(a) the Panel concluded that the plaintiff’s tremor was ‘an action tremor of consistent frequency by description, which reduced with concentration’;
(b) the Panel considered whether the tremor was a potentially compensable physical injury, and concluded that it was not, based upon its inability to identify any organic cause for the tremor;
(c) the Panel referred to the decision of Kaye J in Amendola,[15] as extracted at paragraph 25 above.
[15][2008] VSC 36.
(d) before the Panel could determine the degree of any impairment resulting from a physical injury, it had to determine that there was a physical injury. It concluded there was no physical injury;
(e) having found the tremor was not caused by a physical injury, there was no need for the Panel to determine whether the plaintiff’s tremor was productive of impairment, or to assess the extent of any impairment;
(f) even if the Panel did find the plaintiff’s tremor was productive of impairment, the Panel did not err in law by failing to express any conclusion as to the cause of that impairment. It was not necessary for the Panel to make a finding that any impairment resulted from a cause other than the fall;
(g) once the Panel had made a finding that the tremor did not have a physical cause, the assessment was at an end. The Panel should not have gone on, as contended for by the plaintiff, to speculate about other potential causes of the plaintiff’s tremor. Further, it was not incumbent upon the Panel to determine:
(i) whether the tremor had a psychogenic cause or was ‘wholly or partly deliberately produced or exaggerated’; or
(ii) whether, if it was psychogenic, any injury was referrable to the fall; and
(h) in relation to the above, there is a doubt whether the Panel, as constituted, was appropriately qualified to opine upon the question of whether the tremor was psychogenic in origin, and, if so, whether it was triggered by the fall.
In relation to the plaintiff’s alternative contention that she had been denied procedural fairness, again, the first defendant rejected the proposition that the Panel must be taken to have concluded that the plaintiff’s tremor was caused by a psychogenic injury. The only question before the Panel was whether the plaintiff had suffered a physical injury, and if so, whether any impairment arising out of that physical injury satisfied the threshold. If it had reached a conclusion that the tremor was a psychogenic injury, or had sought further submissions on the matter, the Panel would have strayed from the task before it, and overstepped the bounds of its expertise. The Directions are just guidelines, and do not of themselves impose any obligations upon medical panels.[16]
[16]Colquhoun v Capital Radiology Pty Ltd & Ors (2013) 39 VR 296, [6].
Finally, the first defendant noted that the Panel’s opinion does not shut the plaintiff out entirely: it is open to her to obtain a psychiatric assessment and start the process again.
In her written submissions in reply, the plaintiff submitted that the first defendant’s submissions invite the Court to engage in speculative ‘gap filling’. It was submitted that the first defendant’s submission that the Panel left open the question of whether the plaintiff’s tremor was psychogenic in origin, or was fabricated, was not consistent with the reasons. The plaintiff submitted as follows:
The Panel found that the plaintiff suffered a fall and her action tremor – which was both observable and measurable – commenced contemporaneously with the fall. Regardless whether the Panel, some five years after the date of the injury, could identify an organic cause of the tremor, the tremor itself was incontestable evidence of physical injury.
The Panel found that the plaintiff’s action tremor was not a physical injury ‘referrable’, or ‘attributable to’, the fall. In other words, the Panel did not rule out a physical injury per se, but a physical injury that was referrable or attributable to the fall. The plaintiff contends that finding to be irrational and unreasonable for the reasons set out in her submissions dated 20 December 2017.
Conclusion
In my view, the first defendant is correct in its submissions that the plaintiff has mischaracterised the Panel’s reasons as disclosing a finding on the part of the Panel that the plaintiff’s tremor was unrelated to the fall. Rather, I agree that the Panel found that, in the absence of an organic cause for the tremor, there was no impairment for the Panel to assess. Once this characterisation of the Panel’s finding is accepted, the plaintiff’s primary grounds of review largely fall away. In particular, the submission that the Panel’s finding was unreasonable or irrational must be rejected. Further, the proposition implicit in the plaintiff’s submissions, that, having found there was no organic cause of the plaintiff’s tremor, the Panel was obliged to identify an alternative explanation for the plaintiff’s tremor, is misconceived. This submission is inconsistent with the statements by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[17] (‘Wingfoot’). While the relevant statements in Wingfoot[18] are concerned with the adequacy of reasons, the reasoning of the Court in Wingfoot[19] is also instructive in evaluating whether a medical panel has fulfilled its statutory task, as discussed further below.
[17](2013) 252 CLR 480.
[18]Ibid.
[19]Ibid.
Taking the ‘no evidence’ ground and the ‘illogical, irrational and unreasonable’ grounds together, I am prepared to accept, for present purposes, that the latter ground is an available ground of review, although I accept that the question of whether it can apply to the determinations of a fact finding tribunal remains unsettled,[20] and requires further consideration at the appellate level.
[20]Ryan [2015] VSCA 17.
First, I agree that it is particularly difficult to make a finding that a specialist tribunal’s finding is based upon no evidence in circumstances where the fact finder is able (and required) to draw upon its own specialist knowledge and expertise. This difficulty is compounded when, as in the current case, the Panel took a detailed history from the plaintiff and undertook a comprehensive physical examination of the plaintiff before reaching its conclusion that there was no organic cause of the plaintiff’s tremor.
Secondly, it could not be said, once it is accepted that the relevant finding was that there was no physical injury, rather, that the plaintiff’s impairment was unrelated to the fall, that the Panel’s finding was not one which was not open to the Panel to make. In particular, I reject the submissions of the plaintiff that ‘…the tremor itself was uncontestable evidence of physical injury.’ Accepting that submission would amount to an impermissible interference with the clinical judgment of the Panel.
As noted above, the Panel conducted a comprehensive physical examination of the plaintiff. It reviewed imaging of the plaintiff’s upper extremities and brain carried out in 2012, after the fall. The reasons summarising the outcomes of the physical examination disclosed no apparent physical abnormality on the part of the plaintiff. Further, while Dr Kennedy’s report did conclude that the plaintiff was suffering from a physical injury, his report also referred to the plaintiff receiving no diagnosis of the cause of her tremor despite seeing a number of medical practitioners over a period of nearly four years. Dr Kennedy stated as follows:
Tremor is a rare manifestation after a neck injury and its physiological mechanism has not been elucidated.
Dr Kennedy also referred to the plaintiff’s tremor as being a ‘post-traumatic tremor of unknown specific aetiology’. Given the apparent uncertainty regarding the clinical causes of the plaintiff’s tremor, a finding of the Panel that it could not identify an organic cause of the plaintiff’s tremor is perhaps better described as unremarkable, rather than as irrational and unreasonable.
In relation to the question of whether the Panel failed to perform the task required of it by s 28LL(3) of the Act, I agree that the Panel was limited to determining whether the plaintiff had the physical injury alleged in the certificate, and if so, to assess the impairment arising out of that injury. In the absence of any finding of physical injury, the Panel was not required to go further and speculate as to alternative explanations for the plaintiff’s symptoms. Indeed, I agree that it was probably not qualified to do any more than, say, speculate that the tremor might be psychogenic in origin. It may well have been beyond the limits of the Panel’s expertise to conclude that it was psychogenic in origin.
In Wingfoot,[21] the High Court described the function of a medical panel as follows:
The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[22]
[21](2013) 252 CLR 480.
[22]Ibid, [47].
The High Court rejected the contention that it was incumbent upon a medical panel to provide a comprehensible explanation for rejecting any expert medical opinion before it, or preferring one expert opinion over another, stating:
A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.…[23]
[23]Ibid, [57].
Of course, Wingfoot[24] concerned the standard of reasons to be given by a medical panel under a statutory obligation to give reasons. The plaintiff’s grounds of review do not seek to challenge the adequacy of the Panel’s reasons, because the Act does not require the Panel to provide reasons. However, the plaintiff’s submission that the Panel ‘failed to express any conclusion whatsoever as to the cause of [the plaintiff’s] impairment’ could be seen to be a collateral attack on the reasons.
[24][2008] VSC 36.
However, Wingfoot[25] also makes it clear that the Panel is not an adjudicative body. It was not required to accept the opinion of Dr Kennedy, or explain why it rejected Dr Kennedy’s diagnosis of the plaintiff’s condition. By extension, it was not required to, in effect, identify or construct alternative explanations for the plaintiff’s tremor and reach its own opinion as to the cause of the plaintiff’s impairment, and explain why it did so. It could have said that the plaintiff’s tremor might be psychogenic in origin (it could have done no more than that), but no error arises out of its failure to do so.
[25][2008] VSC 36.
The plaintiff relied upon two decisions of the Trial Division of this Court in support of her contention that the Panel was in error in failing to express any conclusions as to the cause of the plaintiff’s impairment, being Amendola,[26] and Chua v Lowthian.[27] Some observations can be made about these authorities. First, both decisions pre‑dated Wingfoot,[28] which, as noted above, articulates what a medical panel is required to do in forming its opinion, and, perhaps more significantly for present purposes, what a medical panel is not required to do. In my view, the Panel was not required to identify and consider alternative explanations for observations made by it concerning the plaintiff’s tremor during the course of its examination.
[26][2008] VSC 36.
[27][2011] VSC 468.
[28](2013) 252 CLR 480.
Further, in Chua v Lowthian,[29] the question of whether the claimant suffered an impairment by reason of a pre‑existing condition was a key issue before the relevant medical panel, and in the proceeding before this Court. As noted above, the terms of s 28LL(3) require a medical panel to disregard, for the purpose of making an assessment of an impairment resulting from a compensable injury, impairments from unrelated injuries or causes. Accordingly, the statement that ‘any assessment of pre‑existing impairment must be evidence based’ concerns how a medical panel should perform a task imposed upon it by the Act, being to assess pre-existing or unrelated impairment. The statement by Kaye J in Amendola[30] that ‘a Panel is required to reach some conclusion as to the cause of a particular impairment elicited by the Panel’[31] also addressed the task required under s 28LL(3) of the Act. Neither decision, particularly post‑Wingfoot,[32] is authority for the proposition that a medical panel must reach a conclusion as to the cause of any impairment outside the bounds of the medical question referred to it in the absence of any statutory or common law obligation to do so.
[29][2011] VSC 468.
[30][2008] VSC 36.
[31]Ibid, [32].
[32](2013) 252 CLR 480.
That the Panel is required to address the medical question before it, and not go beyond that, is confirmed by the following statement in Chua v Newman-Morris:[33]
This does not support an argument that the medical panel can only consider injuries ‘at large’. To the contrary, it makes plain that the panel is concerned with the injury or injuries alleged in the claim.
[33][2009] VSC 582.
The confined nature of the medical question referred to the Panel also addresses the question of whether the Panel failed to afford the plaintiff procedural fairness. The only question before the Panel was whether the plaintiff had suffered the physical injury claimed by her. The Panel determined that issue adversely to the plaintiff. The question of whether the plaintiff’s impairment was of psychogenic origin was not before the Panel, and, even had the Panel sought further submissions on the issue, it may well not have been qualified to deal with those submissions. Further, having regard to the decision in Mitchell v Malios & ors,[34] I doubt that the alternative course suggested by the plaintiff, that the Panel request the Convenor to reconstitute the Panel to include a member with psychiatric qualifications, would be permissible given the confined nature of the medical question referred to the Panel.
[34][2013] VSC 480.
As the plaintiff has not made out any of her grounds of review, the proceeding will be dismissed.
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SCHEDULE OF PARTIES
| ROBYN POON | Plaintiff |
| - and - | |
| VICINITY CUSTODIAN PTY LTD | First Defendant |
| DR RODERICK MCRAE | Second Defendant |
| PROFESSOR ROBERT HELME | Third Defendant |
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