Rachel Fisuns v Mercy Health & Aged Care Inc

[2017] VMC 6

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE  G10519318

BETWEEN:

FISUN RACHEL SMART  Plaintiff

-and-

MERCY HEALTH & AGED CARE INC  Defendant

MAGISTRATE:   GINNANE

WHERE HEARD:   MELBOURNE

DATES HEARD:  29 June 2016, 6 & 10 March 2017

DATE OF DECISION:  10 March 2017

CASE MAY BE CITED AS:  RACHEL FISUNS v MERCY HEALTH & AGED CARE INC

MEDIUM NEUTRAL CITATION:  [2017] VMC006

RULING

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Catchwords: Application to refer medical questions to Medical Panel – previous application on same grounds – whether an abuse of process – Workplace Injury rehabilitation and Compensation Act 2013 – application granted

APPPEARANCES  COUNSEL  SOLICITORS

For the Plaintiff               (on 29 June 2017)          Ms Zhu  Zaparas Lawyers

(On 6 March 2017)         Mr Horner  

For the Defendant         (On 29 June 2016)          Mr Churilov  Hall & Wilcox

Lawyers

(On 6 March 2017)         Mr Storey

HIS HONOUR:

1. The Act[1] recognises the primacy of a medical opinion found by a Medical Panel. The Act states that an opinion of a medical panel must be adopted and applied by the court and must be accepted as final and conclusive by the court[2].

[1] The Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA)

[2] See s 313(4) of the WIRCA

2. The defendant’s counsel handed up the opinion and reasons for the opinion of the Medical Panel of 2012. I have not looked at the reasons to explain the opinion. I do not believe that it is proper to do so. I told counsel this after the matter was stood down briefly during argument on 6 March 2017.
3. The plaintiff was examined by a Medical Panel that formed its opinion in response to a referral from a Magistrate pursuant to s 45 (1) (b) of the Accident Compensation Act 1985. The certificate of opinion issued by the panel provided the following answers to 4 questions expressed as follows:

Question 1

What is the nature of the Plaintiff’s medical condition relevant to:

(a)   the accepted low back injury

(b)   the alleged psychological and/ or psychiatric sequelae

Answer:

The Panel is of the opinion that the Plaintiff is suffering from:

(a)   a lower back dysfunction in setting of degenerative lumbosacral spondylosis, without radiculopathy relevant to the accepted low back injury; and

(b)   a chronic Pain Disorder with a medical condition and psychological factors relevant to the accepted low back injury, and a chronic Adjustment Disorder with anxious and depressed mood and panic attacks, relevant to the alleged psychological and/or psychiatric sequelae

Question 2

Does the plaintiff have a current work capacity?

Answer:

No

Question 3

If no to question 2 hereof, does the Plaintiff’s incapacity for work result from or is it materially contributed to by:

(a)   the low back injury or

(b)   the alleged psychological and/or psychiatric consequences

Answer:

The panel is of the opinion that the Plaintiff’s incapacity for work is materially contributed to by her accepted low back injury and the psychological and psychiatric consequences.

Question 4

Does the plaintiff have no current work capacity which will continue indefinitely?

Answer:

Yes

4. This matter was initially listed for mention in 2016 before Wright M. The plaintiff’s counsel[3] raised the matter of the defendant having foreshadowed an application for referral to a Medical Panel and the plaintiff voiced an objection on the ground that it would amount to an abuse of process. It wanted the “matter” determined as a “preliminary point”. At the time the mention was listed there was discussion about the progress of an appeal or appeals from a decision or decisions of the County Court on like matters and thus it seemed sensible to all concerned to await any guidance that might follow from the Supreme Court. As matters eventuated the only case that was mentioned in passing by the parties was from a decision of his Honour Judge Carmody, however, the appeal in that case turned on its own peculiar facts and is not instructive by way of guidance on the point of objection pursued by the plaintiff.

[3] Neither counsel who appeared before me on the adjourned date were counsel who previously appeared in the matter

5. On the return date before me the plaintiff’s counsel Mr Horner specifically eschewed an objection to the proposed referral to the Medical Panel based on the validity of the Notice of Termination dated 23 December 2015 by Xchanging Integrated Services Victoria Pty Ltd. Furthermore, a point of potential objection that was faintly foreshadowed in 2016 by the plaintiff’s previous counsel that the proceeding involved issues of credit about the plaintiff and therefore was a matter that should be adjudged by a court and not a Medical Panel was not pursued.
6. It was not part of the plaintiff’s complaint of abuse of process that the defendant was estopped from denying that the plaintiff did not have a current work capacity or did not have a current work capacity not likely to continue indefinitely because of a previous Medical Panel opinion. Such an objection had it been raised would have failed as it would not give rise to an issue estoppel as explained by Dixon J in Blair v Curran (1939) 62 CLR 464 or an estoppel as explained in Anshun Pty Ltd v Port of Melbourne Authority (1981) 147 CLR 589 at 602. Also it could not sensibly argued, and it was not, that the application of the prior Medical Panel opinion amounted to a basis for a plea of res judicata.  It is trite that there can be circumstances in which an estoppel or a plea of res judicata will be available to form the basis for the allegation of abuse of process but this case is not such an example. Instead the plaintiff contended that the particular abuse arose because the defendant could not seek a second referral in the absence of changed circumstances.
7. The defendant on the other hand maintains that it is entitled to have the matter referred to a Medical Panel if in the ordinary course an application meets the requisite circumstances to warrant the same and unless the party objecting makes good that such a course would constitute an abuse of process. The plaintiff’s counsel accepted this was the ambit of the dispute.
8. Mr Horner nonetheless submitted the requisite abuse is constituted by the attempt on the part of the defendant to send the plaintiff to a panel on medical questions where there was no evidence of a significant change in circumstance since the certificate of opinion of the panel dated 19 June 2012.
9. The Statement of Claim canvasses the history of the matter in brief terms. These are:

(i)That the plaintiff was employed as a personal carer which employment caused an injury and/or significantly contributed to the recurrence, an aggravation, acceleration, exacerbation and/or deterioration of pre-existing injuries with a particular reference to an incident that occurred on 11 January 2006 wherein the plaintiff was evacuating and lifting a resident from a fire causing her to sustain injury to her lower back including consequential psychiatric and psychological injuries and a chronic pain syndrome.

(ii)The plaintiff’s claim was made on 23 January 2007 in which weekly payments of compensation and medical and like expenses were sought

(iii)That the employer’s agent accepted the plaintiff’s claim and paid her compensation for weekly and medical and like expenses but by notice dated 23 December 2015 the plaintiff was advised of the decision to terminate her entitlement weekly payments on the basis that weekly payments had been paid or payable to her for a total of 130 weeks and that the plaintiff has a current work capacity or alternatively does not have a current work capacity is not likely to continue indefinitely.

(iv)The plaintiff contends that there is no current work capacity and that that is likely to continue indefinitely.

10. The VWA agent’s  Notice of Termination dated 23 December 2015 identified that its decision was based on the following information:

·the claim form,

·the medical panel opinion of June 2012 and subsequent medical reports from the following:

·Dr Janette Grey dated 30 October 2012 and her clinical notes dated 14 May 2013;  a further report of hers dated 14 October 2014;  an Independent Medical report by Dr Joseph Slesenger dated 22 May 2015;

·a certificate of capacity by Dr Grey dated 4 August 2015;

·An Independent Medical report by Associate Professor Peter Doherty dated 10 August 2015;

·An Independent Medical report by Dr Clive Kenna dated 14 October 2015;

·A 130 week vocational assessment report by “Workable Consulting” dated 12 November 2015;

·A supplementary report by Dr Kenna dated 17 November 2015;

·A supplementary report by Associate Professor Peter Doherty dated 18 November 2015; and

·A certificate of capacity of Dr Grey dated 4 August 2015.

11. Associate Professor Doherty in his report of 10 August 2015 expressed a number of opinions in relation to the plaintiff’s presentation and these included:

“In my opinion, the most evident diagnosis is that of an adjustment disorder with depressed and anxious mood. In my opinion, the previously diagnosed psychiatric condition of a chronic pain disorder has remitted.”

12. Professor Doherty went on to note that it had been determined by a Medical Panel in June 2012 “that the worker at that time was incapacitated for all work, due to the nature and extent of the psychiatric conditions suffered by the worker”. Professor Doherty noted that the Medical Panel was convened three years ago and that the “adjustment now is to the degenerative orthopaedic condition that the worker suffers, and possibly asthma and is not to the fall, inter-staff difficulties or other issues that arise in  work over seven years ago. Along the way there has been the death of her father, bankruptcy and worsening hearing acuity”.  He went on to say:

“The worker claims in incapacity for work. It actually is less than she considers that it is”.

13. Furthermore, he said:

“I feel that the worker, at the present time may have a current work capacity. As noted in the mental state examination the worker is talkative, expressive and dramatic. There was an overstatement of pain intensity, anxiety and depressive symptoms.”

14. He went on to say:

“In my opinion, there has been some material change since the time of the medical panel assessment in June 2012. The panel wrote that the worker was distressed, depressed and anxious. The description of the worker suggests that she was more disturbed when seen by the Panel than when seen by me”.

15. Professor Doherty expressed the view that the plaintiff’s claimed incapacity for work is no longer related to the work related injuries, rather the claimed incapacity is related to non-work-related factors and that the plaintiff “…at the present time does have, from a psychiatric viewpoint a capacity to participate in retraining and new employment services”. He recorded that she has certain parental responsibilities, with regard to her granddaughter and wrote:

“The workers ceased work in 2008, as no suitable work was available to her then. She told me that she was working reduced hours and restricted duties and wished to continue working and could have. Since that time, she has suffered progressive worsening arthritic condition of her hands and possibly her back.

“She has developed a range of anxiety-laden symptoms, initially related problems in the workplace, and has been in psychiatric treatment since about 2008 or so.

“The worker has been assessed by a Medical Panel in 2012 as being psychiatrically incapacitated for work.

“She probably has now capacity for work, but should attend vocational assessment to identify other suitable employment options as a first step to return to work”.

16. The Notice of Termination in addition referred to and extracted the opinion expressed by Dr Kenna, a Consultant Musculoskeletal Pain Management specialist dated 14 October 2015 who wrote:

“Clinical examination indicates a reasonable gait and muscle tone was better than expected indicating her overall level of activity may be greater than the patient currently acknowledges. Nevertheless, ranges of movement were reduced although there is some difference on repetition. There was significant lowering of pain threshold, particularly on palpation of the lower lumbar spine.

“From a musculoskeletal perspective, I believe that the worker’s claimed incapacity for work is no longer related to any work-related injuries. I find no specific localising pathology pertaining to such and I consider that from a physical point of view, she has a capacity to participate in retraining and new employment services.”

“I consider she is capable of suitable employment compatible also with the stated age and job skill set. I do not believe there is any specific incapacity arising from her compensable injury.

…

“No restriction is required. She would be capable of performing her previous activities.

“The Medical Panel opinion of 19 June 2012 is now dated. I believe events have moved on and there has been a fundamental or material change in her presentation, as noted in the report.”

17. He later added:

“After having read the job duties pertaining to such, I believe she would be well capable of working as a personal care attendant, leisure and lifestyle coordinator, administrative assistant in aged care or receptionist in aged care. All of these jobs would be potentially well within her capacity.

“She has clearly a current capacity for suitable employment options as listed above, with immediate effect.”

18. As well as referring to these two independent medical examinations and the reports resulting from the same, the notice referred to other opinions expressed in relation to the plaintiff’s condition that supported the incapacity and they of course tell a different story. The question of the plaintiff’s capacity and the extent to which such incapacity prevails or prevails indefinitely is an issue necessarily joined by the notice of termination. Mr Horner contended that Associate Professor Doherty and Mr Kenna did not identify a change of circumstance other than expressing an opinion different from that of the opinions relied upon by the plaintiff and this, he argued, was not sufficient to satisfy the requirement for a change in circumstances.
19. When the matter was called on I raised with counsel my concern that the argument was being advocated in a vacuum and there was no application on foot for a further medical panel referral and no questions formulated. I directed that be remedied and it has been by way of a draft proposed notice.
20. Mr Horner submitted that the issue to be determined either by a court or by a Medical Panel is whether there has been a change in circumstances or an event which has resulted in a “dramatic” alteration in the plaintiff’s medical condition since the opinion of the Medical Panel in 2012 such as would enable a court to make a finding that the plaintiff now has a work capacity. The decision of the Court of Appeal in Ajinvan Pty Ltd v Fry[4] was relied on by Mr Horner as sating as much. I do not agree. In my opinion, it would be a misreading of the decision in Fry to treat their Honours reasons and the use of the word “dramatic” as a necessary precondition for making good a change in circumstances. This was not what the passage in Fry says. The Court of Appeal pointed out that the extent to which a finding can be made which is different from the opinion of a Medical Panel will surely depend upon the nature and extent of the difference including a difference in the date at which the Medical Panel is speaking and the date at which the other finding is made. Fry was also a peculiar case in the sense that it involved a permanent partial incapacity and the lower court judge’s his decision that it was simply not open to him to not be bound by the earlier Medical Panel opinion about the plaintiff’s condition up until the date of the Opinion or the day thereafter. This case is very different.

[4] [2001] VSCA 148

21. I was also directed to the decision of Garnett M in Findlay v Franklins Ltd (delivered 19 October 2010) in which his Honour said [22]:

“The issue to determine is whether there has been circumstances or an event which has resulted in a dramatic alteration in her medical condition since the Medical Panel opinion which would enable the court to make a finding that she now has no work capacity.”

22. I respectfully do not agree that the change in circumstances is to be in every instance hobbled by the requirement there must be a “dramatic” alteration.
23. I think the dicta of Woodward J in McDonald v Director-General of Social Security (1984) 1 FCR 354  is apposite:

“The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner’s position should be reviewed from time to time. Unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end in incapacity which had been thought to be permanent”.

24. In AMP Workers Compensation Services v Chalkley (13 August 1998 unreported) McDonald J said [at 37] in the context of the phrase “totally and permanently incapacitated”:

“The issue of the worker’s incapacity and whether it is total at a particular time or whether it is total and permanent at a particular time may well vary as a fact from time to time. The finding by the court on 30 November 1994 that Chalkley was totally and permanently incapacitated did not give rise to an estoppel preventing the appellant from raising in subsequent proceedings between it and Chalkley the issue, that at a time subsequent to the finding of the court, Chalkley was then not totally incapacitated or not totally and permanently incapacitated. The finding that as at 30 November 1994 Chalkley was totally and permanently incapacitated was no more than a finding that it was more likely than not that such incapacity would persist in the future but it was not determinative of whether such incapacity did in fact persist in the future.”

25. Mr Horner argued that the decision of the defendant constituted an abuse of process because there was nothing to identify in the medical material changed circumstances of the plaintiff. Mr Horner argued that the so called distinguishing factors referred to by Associate Professor Doherty and Dr Kenna all had echoes in the matters known about when the Medical Panel issued its Opinion and there was nothing new.  Perhaps, but the concept of capacity in the context of weekly payments, tends to be a protean concept that can wax and wane as opposed to invariably being “static”, “fixed” or immutable in time.
26. Associate Professor Doherty is of the opinion that the plaintiff’s prior chronic pain disorder has “remitted” and that the aforementioned operative significant other factors have taken precedence since the opinion of the Medical Panel in 2012 including the death of the plaintiff’s father, a bankruptcy, a worsening of her hearing acuity and parenting responsibilities for a granddaughter. He concluded that the work event has no material relevance to her current capacity and that she does have a capacity to participate in retraining for further employment opportunities.  Mr Kenna concluded that there was now no localising pathology. That his opinion of the plaintiff’s “current capacity” is expressed starkly and determinatively in relation to the contestable issue of current and ongoing capacity, that lies at the heart of the defendant’s decision to terminate payments, I would be reluctant to  conclude that his opinion or that of Professor Doherty could not be regarded as expressing a change in the plaintiff’s condition, and that this is so, even if I was otherwise persuaded that that such a level of change as required need be “dramatic”.
27. Section 274 of the Act relevantly provides:

Medical questions

(1)In exercising jurisdiction under this Part, a court—

(a)may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or

(b)if—

(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and

(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—

the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.

(2)…

(3)If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

(4)A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.

(5)A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.

28. In the course of the hearing the only argument put to me was that there had not been any “substantial” or “significant” or “dramatic” change in the plaintiff’s medical condition or circumstances since the matter was determined and the subject of the opinion of the first Medical Panel.
29. It is significant factor in the defendant’s favour on the application for a referral of medical questions that the legislation provides that a court must refer a matter to a Medical Panel unless one of the exemptions is met. Although there has been no medical miracle of recovery nonetheless the earlier application was determined some five years ago and against a backdrop in which there is now a contention in relation to the current condition of the plaintiff.
30. In the course of argument Mr Horner referred to the decision in Kipp v GM Holden Limited (Wright M delivered 20 December 2013). Arguments that had some similarity to the matters advance before me were ventilated in Kipp. For example, counsel for Mr Kipp submitted that there were no adequate grounds for the decision to terminate her client’s compensation benefits and that the decision to do so was capricious and it relied on the opinions of Professor Doherty and Mr Kenna to that of the other doctors who had examined Mr Kipp on behalf of the Authority. It was submitted in Kipp that the Authority went “doctor shopping” for a supporting medical opinion to terminate compensation payments. It was also submitted that the Authority should have obtained evidence “that showed a clear change of circumstances to justify its decision as to the change of diagnosis” see Hall v HIH (unreported, County Court, Judge Rendit, 5 October 1998). In Hall v HIH, his Honour determined a case that involved a consent order to reinstate weekly payments and thus the issues of res judicata or issue estoppel arose. It also gave rise to such type of arguments given that there was a difference in time of some five weeks between the date of the order and the insurer having obtained two new medical opinions to terminate on the same grounds as those existing prior to the consent order being made those short number of weeks earlier. It was relatively straightforward in that proceeding to identify a clear lack of change in circumstances as opposed to a changed opinion that might justify the subsequent decision to terminate benefits.
31. In my opinion the submissions made by Mr Horner on behalf the plaintiff really go to the merits of Professor Doherty’s opinion and that of Mr Kenna and not the validity of the notice to terminate. If prima facie the reasons set out in the notice are valid they provide a basis for the decision to terminate compensation benefits. It is by reason of the two opinions referred to by the defendant that there exists a change both in diagnosis and the ongoing effect of work-related factors coupled with the effluxion of time, compared to the initial acceptance of the claim some years ago. The diagnosis is different to the extent there is an alleged remittance and a retreat of the work relatedness. The views expressed are necessarily opinion based but the method of reasoning that leads to the medical opinions are disclosed in the reports. The fact that they are, Mr Horner put it, merely “opinions”, does not exclude them as capable of identifying changed circumstances or, more aptly, in light of the basis of the objection, an abuse of process. The various medical opinions set out in the notice refer to features of varying degree prevailing on the plaintiff currently. Whether or not Associate Professor Doherty and Dr Kenna’s views are correct in identifying the plaintiff’s current medical condition including diagnosis different from 2012 and that the plaintiff’s incapacity does not continue and that the work-related factors no longer continue to cause incapacity because they have bated or remitted is not to the point at this stage. Those are the opinions they have expressed and they constitute a bona fide basis for the decision to terminate compensation benefits.
32. The questions identified by the defendant in its draft notice of request of referral are for all relevant purposes the same as the questions form 2012. That is not a reason of itself to trigger and give rise to an abuse of process.
33. I am not persuaded by the plaintiff’s objections to the referral but I have indicated that the questions warrant some refinement and I will adjourn the matter for further mention for a period of one month. I will also reserve the defendant’s costs of the hearing in relation to the referral both as to scale and amount.