Poulpack Pty Ltd v Noumouski
[2019] VSC 395
•19 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01116
| POULPACK PTY LTD | Plaintiff |
| v | |
| NADA NAUMOVSKI & ORS (according to the attached schedule) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 June 2019 |
DATE OF JUDGMENT: | 19 June 2019 |
CASE MAY BE CITED AS: | Poulpack Pty Ltd v Noumouski |
MEDIUM NEUTRAL CITATION: | [2019] VSC 395 |
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ADMINISTRATIVE LAW – Application by an employer seeking to quash the determination of a medical panel in relation to a worker’s injury under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Where parties agreed that the medical panel’s opinion was affected by error on the face of the record, such that the relief of certiorari should be granted on the basis of inconsistencies between the opinion and the reasons – Whether the decision of the medical panel should be quashed in its entirety or only partially – Severance of answers to medical questions available – Calleja Nominees Pty Ltd & Anor v Dr Chris Grant & Ors [2008] VSC 597, referred to answers to questions concerning capacity bound up with inconsistent answers regarding injuries – Nothing in the medical panel’s findings indicate that the re-determination of medical questions should be remitted to a differently constituted panel – Vegco Pty Ltd v Gibbons [2008] VSC 363 applied – Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with Ms F Spencer | Russell Kennedy |
| For the First Defendant | Ms M Schilling with Mr G Pierorazio | LN Christie & Co Lawyers |
| For the Second to Fifth Defendants | No appearance |
HER HONOUR:
On 4 September 2018 the plaintiff (‘employer’) brought this proceeding seeking to quash the determination of a medical panel constituted following the referral of certain questions by a magistrate pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘medical panel’). The questions concerned the nature and consequences of an injury said to have been suffered by the first defendant (‘worker’) on or about 25 July 2016. The medical panel delivered its opinion on 6 July 2018. The questions and answers were as follows:
Question 1: What is the nature of Ms Naumovski’s medical condition relevant to the claimed injuries, namely:
·left shoulder;
·right shoulder;
·left knee;
·right knee;
·back
·consequential psychological injury?
Answer: Ms Naumovski’s medical conditions relevant to the claimed injuries are:
oLeft shoulder –
oAggravation of previously asymptomatic rotator cuff tendinopathy and acromioclavicular arthropathy with residual pain and reduced ranges of motion
oRight shoulder –
oAggravation of previously asymptomatic rotator cuff tendinopathy and acromioclavicular arthropathy with residual pain and reduced ranges of motion
oLeft knee –
oNo medical condition
oRight knee –
oLateral compartment articular cartilage injury with residual pain, mild limp and mild fixed flexion deformity
oBack –
oNo medical condition
oConsequential psychological injury –
oA mild adjustment disorder with mixed anxiety and depressed mood
Question 2: Was Ms Naumovksi’s employment with the Defendant on 6 May 2016 a significant contributing factor to the following injures:
·Right knee;
·Back?
Answer: Yes, to soft tissue injuries of the right knee and lower back that have since resolved.
Question 3: Between 6 May 2016 and the time of the Medical Panel examination did Ms Naumovski have a capacity for her pre-injury duties?
Answer: No.
Question 4: Does Ms Naumovski’s incapacity for work, if any, result from or is it materially contributed to by any if so which of the injuries referred to in paragraph 1?
Answer: Ms Naumovksi’s incapacity for work is materially contributed to by the left shoulder, right shoulder and left knee injuries.
Question 5: Are any, and, if so, which of the following medical services adequate and appropriate for any if so which of the injuries referred to in paragraph 1 and what frequency:
(a) attendances upon a general practitioner;
(b) pain killing medication;
(c) physiotherapy;
(d) hydrotherapy;
(e) psychological review;
(f) psychiatric review;
(g) pain management;
(h) assessment by orthopaedic surgeon;
Answer: The following medical services are adequate and appropriate as follows:
·Attendances upon a general practitioner –
oFor treatment of the left shoulder, right shoulder and left knee injuries approximately every 28 days
·Pain killing medication –
oFor treatment of the left shoulder, right shoulder and left knee injuries approximately daily
It is not necessary for present purposes to go into any detail regarding the worker’s claimed injuries, and their relationship with her claimed incapacity for work, save to say that, given the history taken by the medical panel, the examination of the worker by panel, and the surveillance material before the medical panel, the expectations of the parties would have been that any organic injury of the plaintiff would have been expected to have affected the left knee rather than the right knee (noting that the answer to questions 4 and 5 refer to the left knee). The question is whether the medical panel’s answers to questions 1 and 2 were affected by a mere clerical error, or some more fundamental problem.
In its originating motion, the employer identified the following grounds of review with respect to the medical panel’s opinion
In its certified opinion in answer to the referred medical questions, the Medical Panel’s exercise of its jurisdiction fundamentally miscarried by the giving of contradictory and internally inconsistent answers, namely;
(a)in answer to referred question 1, that the worker had no medical condition of the left knees relevant to the claimed injuries, when in answer to referred questions 4 and 5 the panel opined that the worker’s incapacity for work was materially contributed to by a left knee injury and that certain medical services were adequate and appropriate for a left knee injury;
(b)in answer to referred question 2, that the worker had sustained a soft-tissue injury to her right knee in the fall that had since resolved, when in answer to question 1 the Panel opined that the worker was suffering from a medical condition of the right knee relevant to the claimed injuries described as “lateral compartment articular cartilage injury with residual pain, mild limp and mild fixed flexion deformity”.
The Medical Panel erred in law by failing to give a proper adequate written statement of reasons for its opinions in respect of the referred medical questions in accordance with s 313(2) of the WIRCA. In particular, the Panel’s reason for opinion state the same internally inconsistent conclusions as to:
(a)the nature of the worker’s medical conditions relevant to the claimed injuries to the right and left knees; and
(b)the worker’s incapacity for work being materially contributed to by a left knee injury and certain medical services being adequate and appropriate for a left knee injury,
as the Panel’s certified opinion.
On or about 14 May 2019, the solicitors for the employer and the worker submitted a joint memorandum for the consideration of the Court, pursuant to paragraph 8.1 of the Judicial Review and Appeals List Practice Note.[1] The parties agreed that the medical panel’s opinion was affected by error on the face of the record, such that relief in the nature of certiorari should be granted. The relevant paragraphs of the joint memorandum follow:
[1]Practice Note SC CL 9
In its certified opinion in answer to the referred questions, the panel gave contradictory answers. The panel found:
(a)in answer to referred question 1, that the worker had no medical condition of the left knees relevant to the claimed injuries, when in answer to referred questions 4 and 5 the Panel opined that the worker’s incapacity for work was materially contributed to by a left knee injury and that certain medical services were adequate and appropriate for a left knee injury;
(b)in answer to referred question 2, that the worker had sustained a soft-tissue injury to her right knee in the fall that had since resolved, when in answer to question 1 the Panel opined that the worker was suffering from a medical condition of the right knee relevant to the claimed injuries described as “lateral compartment articular cartilage injury with residual pain, mild limp and mild fixed flexion deformity”.
The contradictory answers mean that it is not possible to discern from the opinion:
(a)what the panel determined with respect to the question of what, if any, injury to the worker’s right and left knees was sustained by the worker and whether any, and if so what, compensable knee injury/ies were extant as at the date of the panel’s examinations
(b)the basis upon which the panel resolved the questions of capacity and entitlement to medical and like services in favour of the worker at least[2] in respect of the left and right knee injury/ies.
[2]The employer contended that the panel’s contradictory answers in respect of the knee injuries also means that it is not possible to adopt and apply the panel’s answers to questions 3 to 5. The worker disagreed with that submission.
The contradictory answers also mean that it is not possible to adopt and apply the opinion at least insofar as it concerns the left and right knee injury/ies in the determination of the underlying dispute concerning the worker’s entitlement to statutory compensation.
The medical panel’s reasons for opinion contain the same internally inconsistent findings in that:
(a)the Panel’s diagnoses of the worker’s medical conditions relevant to the right and left knee injury/ies are substantively identical to the answers given to questions 1 and 2 of the (see page 14 of the reasons); and
(b)the Panel’s findings in respect of the right and left knee injury/ies relevant to the worker’s work capacity and entitlement to medical and like expenses are also substantively identical to the Panel’s findings on referred questions 4 and 5 (see pages 15 to 16 of the reasons).
The existence of the internally contradictory findings means that the panel’s reasons fail to explain the actual path of reasoning by which the Medical Panel arrived at its opinion in respect of the right and left knee injury/ies. Accordingly, the reasons fail to meet the Wingfoot standard.
Having reviewed the joint memorandum and the medical panel’s reasons for its opinion, I agree that it is appropriate to quash the decision of the medical panel. However, the parties are at odds as to what should follow. The worker submitted that the Court should not quash the opinion in its entirety, but only that part of the opinion only insofar as it relates to the knee injuries, that is, the answers to questions 1 and 2. Further, the worker contends that the medical questions (insofar as they relate to the knee injuries) should be referred to the same medical panel, for determination in accordance with law. Alternatively, questions 1 and 2 should be remitted to the Convenor of Medical Panels to convene a medical panel, without any direction that it be a differently constituted medical panel.
The employer submitted that the opinion of the medical panel should be quashed in its entirety, and the medical questions be remitted to a differently constituted medical panel.
Accordingly, the issues are as follows:
(a) whether the answers to the medical questions can be ‘severed’, such as to leave the medical panel’s findings as to the worker’s shoulder and back injuries (along with the medical panel’s findings as to causation and incapacity) intact; and
(b) whether the circumstances justify the remittal of the medical questions to a differently constituted medical panel?
In relation to the latter issue, there may be a procedural impediment to remitting the medical questions to the same medical panel. On 30 May 2019, the solicitors for the worker wrote to the solicitors for the medical panel, as follows:
We refer to the matter of Poulpack Pty Ltd v Naumovski & Ors – S ECI 2018 01116, which is listed for hearing before the Honourable Associate Justice Daly next Thursday the 6th of June 2019 at 10:30am.
The matter concerns an application for judicial review of an opinion given by a medical panel comprising Dr Steven Adlard, Dr David Easton, Associate Professor Miron Goldwasser and Mr Geoffrey Klug.
The parties have agreed that the opinion should be set aside by the Court, but a dispute has arisen as to whether the questions in respect of which the opinion was given should be remitted to the same, or a different, medical panel.
For the purpose of advising the Court next week, can you please advise at your earlier convenience whether the above members remain on the list of medical practitioners nominated pursuant to section 537(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
Later that day, Ms Pyburn of the Victorian Government Solicitor’s Office responded as follows:
I confirm that our office acts on behalf of the Medical Panel members.
I am instructed that:
·Medical Panel members’ terms expire on 30 June 2019.
·The application process is underway now and there is no guarantee of particular members after 30 June 2019.
·There is no possibility of a new panel being convened between 6 and 30 June 2019.
Accordingly, there is no guarantee that the medical questions could in fact be referred to the same medical panel, even setting aside some of the usual practical difficulties which might arise out of the need to co-ordinate the schedules of busy medical specialists. This issue has an impact upon the determination of the question of whether it is possible to ‘sever’ the answers to the medical questions.
The employer accepts that it is possible in an appropriate case to sever the answers to the medical questions, such that the answers to some questions remain intact, notwithstanding the thrust of its written submissions to the effect that the medical panel’s opinion should be treated as an ‘organic whole’. However, it submitted that, in the current case, the medical panel’s answers to the medical questions are interdependent, and the medical panel’s answers to Questions 1 and 2 feed into its answers to the remaining questions regarding the worker’s capacity for work. The employer referred to the decision of Cavanough J in Tait v Rehabilitation Care Solutions Pty Ltd,[3] where His Honour said:
The opinion of the Panel as to the plaintiff’s claimed neck injury is vitiated for the reasons stated above. All of the nine medical questions that were referred to the Panel are interrelated. Therefore, the whole of the Panel’s opinion must be quashed.[4]
[3][2018] VSC 657.
[4]Ibid [90].
Further, the employer submitted that the Court cannot be certain, as contended for by the worker, that the reference to the right knee in the answers to the medical questions was merely a clerical error, or whether the problem was more fundamental.
My attention was drawn to an MRI report by a radiologist from the Epping Diagnostic Imaging, MRI and PET Centre (‘imaging clinic’) dated 24 January 2017, which included findings regarding an MRI said to have been conducted on the worker’s right knee. However, the medical panel’s examination of and history taking from the worker, and other medical material before the medical panel and this Court all points to the injury to the worker’s left knee being more serious. Indeed, it is possible that the inconsistency in the medical panel’s answers to the medical questions, and the inconsistencies in its reasons, may have been as a result of an error by the imaging clinic in its report. But that is only speculation.
The employer submitted that the usual course of conduct in this jurisdiction is to remit the medical panel to a newly constituted medical panel. The employer, referring to the decisions in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal,[5] and Barro Group Pty Ltd v Brimbank City Council (No 2),[6] submitted as follows:
The panel in this case has made extensive findings, and it is not possible to discern the cause of the defect that is apparent on the face of the panel’s opinion and reasons. On remittal, should further consideration result in an outcome adverse to the plaintiff, there may well be a perception that the reconstructed reasoning and opinion has been designed to meet the defect as opposed to being a fresh individual consideration of each question: see Body Corporate Strata Plan (No 4166) & Ors v Stirling Properties Limited [1984] VR 903, 912; Treacy v Newlands [2008] VSC 395, [31] (Beach J).
[5](1990) 26 FCR 39.
[6](2012) 36 VR 281.
The worker submitted that it was apparent from the answers to the medical questions, read together with the medical panel’s reasons, that the reference to the right knee was a drafting error, and there was no reason to disturb the medical panel’s findings regarding the worker’s shoulder injuries, or her back injury or her consequential psychological injury. Further, given the nature of the worker’s employment, the finding of the medical panel that the worker’s incapacity is materially contributed to by the worker’s left and right shoulder injuries, and the findings of the medical panel that the proposed medical treatment was appropriate for each of the identified injuries, means that it is appropriate that the medical panel’s answers to the medical questions other than questions 1 and 2 should remain undisturbed.
Further, the worker submitted that it was appropriate to refer questions 1 and 2 back to the same medical panel, if it is feasible to do so. The worker referred to the decision of Kyrou J in Vegco Pty Ltd v Gibbons,[7] where His Honour stated:
The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same primary decision-maker to redetermine the matter.[8]
[7][2008] VSC 363.
[8]Ibid [33]. See also Omerasevic v Kotzman [2016] VSC 383 at [113].
The worker submitted that, in circumstances where it appears that the medical panel has made a simple error, none of the factors justifying remittal to a differently constituted medical panel are present in the current case.
In my view, the medical panel’s opinion as a whole should be quashed, and the medical panel should be referred to the same medical panel, or substantially the same medical panel for determination, if the Convenor of Medical Panels considers it feasible to do so.
I agree with the employer that while it is open to the Court to sever answers to different medical questions in an opinion,[9] it is not appropriate to sever the answers to questions 1 and 2 from the answers to the remaining questions in the circumstances of the current case. First, while the reference to the injury to the right knee may well have been caused by an error by the imaging clinic, it is not appropriate to conclude, without further inquiries, that this was in fact the source of the error. Further, while it may well be that the medical panel would have found the worker to have had an incapacity for work based upon her shoulder injuries alone, again, it is not possible to determine that conclusively. I agree with the employer that the medical panel’s finding of incapacity is holistic in character.
[9]Calleja Nominees Pty Ltd & Anor v Dr Chris Grant & Ors [2008] VSC 597.
Further, there are practical difficulties associated with severance. The incident which was said to have caused the injuries occurred in May 2016. The worker was examined by the physical doctors on the medical panel on 4 June 2018, and by a psychiatrist on 12 June 2018, that is, just over a year ago. The critical question, being the questions as to whether the worker had capacity for pre-injury duties, expressly refers to the period between 6 May 2016 (the date of the injury) and the ‘time of the medical panel examination’. It would be open to any reconstituted medical panel to conduct a further examination of the worker. It seems to be artificial and incongruous for the medical panel, when determining the question of incapacity for work as at the date of any fresh examination, to be bound by the findings made after an examination held over twelve months ago.
However, I agree with the worker’s submissions that, if reasonably practicable to do so, the medical questions should be referred to a medical panel with the same or substantially the same membership as the original medical panel. If the inconsistent answers to the medical panel are indeed simply as a result of a clerical error on the part of the medical panel, or the radiology clinic, the matter can presumably be dealt with quite promptly and without consuming too much of the medical panel’s time, if its membership remains the same or substantially the same. Further, I agree that the current case does not have the features which tend to prompt a remittal to a differently constituted medical panel. There is no fundamental flaw in the medical panels’ reasoning process: indeed, apart from the inconsistency which is the subject of the employer’s complaint, the medical panel’s reasons are excellent.
If, as is quite likely to be the case, the inconsistency in the answers to the medical questions arises out of a clerical error on the part of the medical panel or the imaging clinic, then, subject to the worker’s condition having remained stable, the error will be corrected. No question of fairness arises. If it is not a clerical error, there is nothing in the medical panel’s reasons which suggest that there is a risk of unfairness to the employer. There is no suggestion from the reasons that the medical panel was predisposed one way or another, or, as suggested by Cavanough J in Lang v Spendless Shoes Pty Ltd & Ors[10] in a decision delivered while the ruling in this matter was reserved:
The nature of the error made by the Panel and the tenor of its statement of reasons are such as to indicate that the re-determination of medical questions 3, 4 and 5, at least, should be remitted to a differently constituted Panel.[11]
[10][2019] VSC 376.
[11]Ibid [79].
Here there is nothing in the medical panels’ findings or reasons which would give the appearance of prejudgment and unfairness to either the worker or the employer.[12]
[12]See Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [56].
Accordingly, I will make orders remitting the whole of the opinion to the Convenor of Medical Panels, with an appropriate direction regarding the constitution of the medical panel. I shall hear further from counsel on the appropriate form of order and the question of costs.
SCHEDULE OF PARTIES
| S ECI 2018 01116 | |
| BETWEEN: | |
| POULPACK PTY LTD | Plaintiff |
| - v - | |
| NADA NAUMOVSKI | First Defendant |
| DR STEVEN ADLARD | Second Defendant |
| DR DAVID EATON | Third Defendant |
| ASSOCIATE PROFESSOR MIRON GOLDWASSER | Fourth Defendant |
| GEOFFREY KLUG | Fifth Defendant |
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