Rashidi v Holsman
[2020] VSC 413
•8 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05827
| NATALIE RASHIDI | Plaintiff |
| v | |
| DRS MAX HOLSMAN and SUSANNE HOMOLKA constituting the Medical Panel pursuant to the Wrongs Act 1958 (Vic) | First Defendant |
| and | |
| DR PREETI KHILLAN | Second Defendant |
| and | |
| WESTERN HEALTH | Third Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 June 2020 |
DATE OF JUDGMENT: | 8 July 2020 |
CASE MAY BE CITED AS: | Rashidi v Holsman & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 413 |
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ADMINISTRATIVE LAW – Judicial review – Medical negligence – Assessment of impairment by Medical Panel – Threshold for recovery of damages for non-economic loss –Procedural fairness – Assessment of injury not reasonably anticipated on the referral materials – Panel’s opinion quashed – Medical question remitted to be determined in accordance with law – Wrongs Act 1958 (Vic), pt VBA.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R Harper | Slater & Gordon Ltd Lawyers |
| For the First Defendant | No appearance | |
| For the Second Defendant | B Petrie | Avant Law Pty Ltd |
| For the Third Defendant | A Clements QC and S Gold | Lander & Rogers Lawyers |
HIS HONOUR:
The plaintiff issued proceedings in the County Court of Victoria claiming that labiaplasty surgery she underwent at a hospital operated by the third defendant (‘the surgery’) was negligently performed and resulted in her suffering injury, namely loss of the labia minora.
The second and third defendants, who are the defendants in the County Court proceeding, referred to a Medical Panel for determination the medical question as to whether the degree of impairment resulting from the alleged injury to the plaintiff satisfied the threshold level for recovery of non-economic loss damages under the Wrongs Act 1958 (Vic) (‘Wrongs Act’). In October 2019 the first defendant, which was the Medical Panel convened pursuant to the Wrongs Act (‘the Panel’), determined that the degree of whole person impairment resulting from the alleged injury did not satisfy the threshold level.
The plaintiff seeks to review the Panel determination on two grounds:
(a) there was a denial of procedural fairness, because the Panel made findings as to injury which were unexpected and could not fairly have been anticipated, without giving the plaintiff notice or a fair opportunity to be heard; and
(b) the Panel failed to assess impairment in accordance with pt VBA of the Wrongs Act by failing to attempt to resolve materially inconsistent findings as required by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed) (‘Guides’).
Background
The surgery was performed in February 2013.
Within weeks of the surgery the plaintiff complained that too much tissue was removed. She was reviewed at the hospital and by the second defendant, who assured her that the labia minora was trimmed to the extent needed.
Despite that assurance, the plaintiff remained concerned. In October 2016, she attended with GP Dr Moran, who noted:
History:
long discussion re labia.
went for surgery 2 years ago to trim as was causing discomfort
all chopped off
very self consicous [sic] about [it].
Examination:
examined - looks fine and normal. would not notice if had not specifically looked.
Management:Reassurance given
The plaintiff attended with GP Dr Nassim in July 2017, who noted:
She presented with significant problems after labioplasty at Sunshine Hospital in 2013.
She tells me that she had significant problems with friction/pain in her labia minora after two vaginal deliveries. It seems that she had quite a dramatic labioplasty and now labia minora is almost absent.She gets significant dryness and pain during sex. She feels that her vagina is too open and unprotected which is causing dryness and recurrent infections.
She would like to discuss her options regarding possible surgical correction.
examined — yes, I believe surgical result is very poor in this lady
she is significantly affected psychologically
At a further consultation in August 2017 Dr Nassim recorded a history which included:
She consented to labial trimming, but unfortunately labia minora were removed completely and she feels that she has been disfigured by the surgery.
Dr Nassim referred the plaintiff to gynaecologist Dr Mirmilstein who, in August 2017, recorded the following history:
After the surgery she noticed that almost all her labia was removed. She complains about multiple problems after the surgery. According to Natali[e] her perineum looks completely open. She feels dry there, having multiple UTI’s which she believes is related to her open vulva, during having a shower she feels water is going inside her vagina easily as well. Overall sex is OK but she come to see me to see if anything can be fixed surgically.
On examination Dr Mirmilstein found:
[S]he has got a small para-clitoral labia minora remnannats [sic] and lower 2/3 of the labias are absent bilaterally. Her perineum looks deficient and open.
Dr Mirmilstein considered the possibility of corrective surgery, and stated:
Obviously we can’t build up the labia but potentially she can have perineoplasty done to make the perineum slightly higher and close the open looking vulva.
…
Overall I mentioned to Natali[e] her vulva looks relatively OK and there is no major disfigurement or defect and hopefully with minor correction she would be satisfied.
The plaintiff was assessed for medico-legal purposes by gynaecologist Dr Bernadette White in January 2018, who took the following history:
Ms Rashidi states that her current health is reasonable, although she suffers from recurrent urinary tract infections, in spite [of] being meticulous about her personal hygiene. However, she describes herself as “paranoid” about the appearance of her vulva and the exposure of the vaginal introitus. Urinary tract infections occur approximately every 3 months and require treatment with antibiotics. She has not been put on preventative therapy. She keeps antibiotics at home so she can start treatment quickly if she has symptoms of infection. She also gets some vulval irritation which she attributes to the use of soap when showering. She sometimes uses Canesten to treat symptoms of swelling and irritation. When the symptoms are present she is unable to have intercourse.
Her periods are normal and regular on the oral contraceptive pill. She has no other urinary or bowel symptoms. Intercourse is sometimes painful for her and she sometimes gets splitting of the vulval tissues. She generally tries to avoid intercourse and this has affected her relationship with her partner. She is not planning to have any more children.
On examination Dr White found:
With her consent, a gynaecological examination was performed. She has had laser hair removal from her genitalia. On examination of the vulva the labia minora are completely absent, apart from remnants adjacent to the clitoris. The vaginal epithelium is therefore exposed. She had a small perianal skin tag.
In summary, Ms Rashidi is a 40-year-old woman who, in 2013, requested labioplasty. Following this procedure, it was noted that the labia minora are entirely absent.
…
As a consequence of the labioplasty the vaginal introitus is unusually exposed.
In relation to the assessment of impairment from physical injury Dr White concluded:
Ms Rashidi was assessed under [ch] 11.6a of the [Guides]. I believe she has a Class 1 impairment, in that she has symptoms and signs of disease or deformity of the vulva or vagina that do not require continuous treatment, sexual intercourse is possible, and the vagina is adequate for childbirth. I believe this constitutes a 10% impairment.
As required under s 28LN of the Wrongs Act, Dr White completed a certificate of assessment of degree of impairment arising from stabilised injury, describing the injury assessed as loss of labia minora (‘the certificate of assessment’).
At a further attendance in June 2019, Dr Nassim noted:
I saw her in 2017 regarding problems with genital area after labioplasty at Sunshine Hospital in 2013. She had a very poor outcome of the surgery with all the labia minora excised leaving vagina quite open and exposed.
She is crying and looks very distressed talking about it. The outcome of surgery had a significant negative impact on her mental health and wellbeing.
She has a lot of vaginal dryness, takes Ural daily to prevent UTIsShe has problems in the shower when soap and shampoo burn genital area as it has become very sensitive to all detergents
she gets pain in the vulval area when exposed to soap and during sex
This has negatively impacted on her relationship as she is unable to enjoy sex and has pain during sexual intercourse
On examination Dr Nassim recorded:
very exposed vaginal area with excised labia minora
normal skin on labia majoracervix looks normal
Referral to the Panel
The injury particularised in the statement of claim filed in the County Court proceeding is:
Removal of the labia minora and exposure of the vaginal epithelium
The pleadings allege the plaintiff’s labia minora were excessively trimmed such that they were entirely removed with the exception of remnants adjacent to the clitoris.
The plaintiff served on the defendants in the County Court proceeding the writ and statement of claim, certificate of assessment as required under s 28LT of the Wrongs Act and information prescribed under reg 8 of the Wrongs (Part VBA Claims) Regulations 2015 (Vic), which included as a description of the injury:
Loss of Labia Minora
In response, the second defendant referred the following question to a Medical Panel for determination under s 28LWE of the Wrongs Act:
Does the degree of impairment resulting from the physical injury to the claimant, alleged in the claim, satisfy the threshold level?
Subsequently the third defendant wrote to the Convenor of Medical Panels referring the same question for determination, and making a submission which reads in part:
3.The claimant alleges the respondent was negligent in entirely removing her labia minora during a labiaplasty …
9.The respondent disputes that the claimant’s alleged injury satisfies the threshold as defined in section 28LB of the Act.
10.The claimant relies on the medical report and certificate of assessment by Dr Bernadette White. Dr White took the following history from the claimant, including:
(a)she has two teenage children and does not want any more children;
(b)as a result of the labiaplasty, she suffers from recurrent urinary tract infections at only 3-month intervals, which require antibiotics;
(c)she gets some vulva irritation, which she attributes to the use of soap when showering. She said she sometimes uses Canesten to treat symptoms of swelling and irritation;
(d)when symptoms are present, the claimant is unable to have intercourse;
(e)intercourse is sometimes painful for her and she sometimes gets splitting of the vulva tissues;
(f)she has no issues with her menstrual cycles and has no urinary or bowel symptoms.
11.There is no indication in the history provided to Dr White that the claimant’s alleged physical injuries impact on her ability to perform activities of daily living, or that it restricts her from performing any physical activities or movements.
12.Dr White does not consider there is an appropriate surgical treatment available to manage the claimant’s condition. She did not consider the claimed injury incapacitated the claimant from employment.
13.Accordingly, the respondent submits that the claimant fails to satisfy the threshold.
Panel determination
The GP clinical notes, reports of Dr Mirmilstein and Dr White, certificate of assessment and the County Court statement of claim were provided to the Panel (‘the referral materials’).
The Panel completed a Certificate of Determination pursuant to s 28LZG(2)(a) of the Wrongs Act recording the question referred and the Panel’s answer:
Question:Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
Answer: 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.
In an introduction to its reasons the Panel stated:
The Panel noted from the Referral that the claimant alleges that she sustained injury described as “Loss of Labia Minora” (‘the physical injury’) as a result of inappropriate surgical treatment by the respondent (‘the incident’) on 13 February 2013.
The reasons record that the plaintiff told the Panel that a day or two after the surgical procedure she was shocked and greatly distressed by the appearance of her genitalia because she felt that her ‘labia had basically been amputated’. The reasons further record:
The claimant told the Panel that at present her greatest problem is that “I don’t look normal anymore — I’m really open and just a bit of skin is left at the bottom”. She told the Panel that this tissue remnant frequently becomes swollen, and she said that contact with soap when she is showering causes a severe, burning pain, which she described to feel “like sandpaper on skin”.
She told the Panel that as a result she has developed alternative techniques of showering and washing her hair to avoid contact of her vulva with shampoo and soap
The claimant told the Panel that since the incident she has also suffered superficial dyspareunia, and she said that she has noticed “obvious abrasions and cuts” on her vulva after intercourse. She told the Panel that there is no associated bleeding, but she said that because intercourse is now painful for her, the frequency of her intimate relations with her partner has reduced from daily to once every two weeks.
She told the Panel that she does not experience any discomfort when sitting or when wearing tight jeans and underwear, but she said that she avoids wearing jeans “if I am sore”.
The Panel noted, and asked the claimant about, the reference to her suffering from superficial dyspareunia prior to the incident, as contained in the clinical records of the first respondent. The claimant told the Panel that apart from the discomfort caused by the mucosal skin tags rubbing against her underwear, she does not recall any other difficulties prior to the incident. She also told the Panel, however, that at the time of her initial consultation with the first respondent in July 2012 she had not been sexually active, and she explained that when she subsequently became so in November 2012 (prior to the incident) she had only just entered into a relationship with her current partner and was very much in love.
Under ‘CLINICAL EXAMINATION’ the Panel recorded:
The Panel conducted a physical examination of the claimant’s genitalia and noted the absence of pubic hair. The vulva was of normal appearance, with normal contours of the perineum, labia majora, introitus and vaginal opening, but closer inspection revealed some alteration of the labia minora anatomy distal to the clitoris, although without any resultant exposure of the urethral and vaginal orifices. A small perianal skin tag was noted to be present as an incidental finding. A digital vaginal examination was not considered to be required and was not performed.
Under ‘DIAGNOSIS’ the Panel recorded:
The Panel concluded that the claimant is suffering from altered contours of the labia minora, with persistent symptoms but without any dysfunction of the vulva, following a labiaplasty.
The Panel considered that the claimant’s physical medical condition is stable for purposes of impairment assessment.
Under ‘IMPAIRMENT ASSESSMENT’ the Panel’s reasons include:
The Panel carried out a genitourinary impairment assessment in accordance with Chapter Eleven of the Guides and assessed the appropriate whole person impairment resulting from altered contours of the labia minora, with persistent symptoms but without dysfunction of the vulva and without the need for continuous treatment in accordance with Section 11.6a of Chapter Eleven.
…
The Panel concluded that the degree of impairment resulting from the physical injury to the claimant alleged in the claim is permanent, but it is not more than 5%.
Under ‘OTHER CONSIDERATIONS’ the reasons of the Panel include:
The Panel noted, and considered the report, dated 12 January 2018, and the Certificate of Assessment, dated 9 January 2018, of the impairment assessor Dr. Bernadette White, obstetrician and gyneacologist [sic], which were included with the Referral material. The Panel noted that Dr. White, in her report, stated that “the labia minora are completely absent, apart from remnants adjacent to the clitoris”, and considered that the impairment attributable to the physical injury to the claimant alleged in the claim is more than 5%. The Panel was unable to duplicate Dr white’s clinical findings in the course of its own examination of the claimant on 20 September 2019 and, based on its collective expertise and experience, the Panel formed the view that the impairment attributable to the physical injury to the claimant alleged in the claim is not more than 5%.
The statutory provisions
The plaintiff is not entitled to recover damages for non-economic loss unless she has suffered a significant injury.[1] The significant injury threshold for physical injury is permanent whole person impairment greater than 5%.[2]
[1]Wrongs Act 1958 (Vic) s 28LE.
[2]Ibid ss 28LB (definition of ‘threshold level’ para (a)), 28LF.
A respondent served with a certificate of assessment under s 28LN of the Wrongs Act may respond in writing within 60 days advising that the respondent has, or intends to, refer a medical question in relation to the assessment to a Medical Panel for determination.[3]
[3]Ibid s 28LW(2)(b).
‘Medical question’ is defined in s 28LB:
in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level …[4]
[4]Ibid s 28LB (definition of ‘medical question’).
Under s 28LZC(1) a Medical Panel can ask a claimant:
(a)to meet with the Panel and answer questions;
(b)to supply to the Panel copies of all documents in the possession of the claimant that relate to the medical question;
(c)to submit to a medical examination by the Panel or by a member of the Panel.
Under s 28LZE a Medical Panel can ask a registered health practitioner to attend:
(1)If a Medical Panel so requests and the claimant consents, a registered health practitioner who has examined the claimant must—
(a)meet with the Panel and answer questions; and
(b)supply relevant documents to the Panel.
A Medical Panel must make an assessment of the degree of impairment in accordance with the Guides to determine the degree of impairment of a person.[5]
[5]Ibid ss 28LZG(1), 28LH, 28LB (definition of ‘A.M.A. Guides’).
The effect of determination as to threshold level by a Medical Panel is set out in s 28LZH:
(1)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.
(2)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.
A Medical Panel’s assessment of impairment is not subject to appeal on the merits.[6]
[6]Ibid s 28LZI.
Ground 1 — Procedural fairness
The Panel and Dr White assessed impairment under the Guides, ch 11:
11.6a Vulva and Vagina
The vulva has cutaneous, sexual, and urinary functions. The urinary function has been discussed in the part of this chapter on the urethra. The vagina has a sexual function and serves as a birth passageway. The clitoris is an erectile organ that has an important role in sexual functioning.
Symptoms and signs of impairment of function of the vulva and vagina include loss or altered sensation; loss of lubrication; complete or partial absence; presence of vulvovaginitis; vulvitis; vaginitis; cicatrization; ulceration; stenosis; atrophy or hypertrophy; neoplasia or dysplasia; difficulty with sexual intercourse, urination, or vaginal delivery; and secondary effects on underlying perineal structures.
Both assessed impairment in Class 1 — Impairment of the Whole Person, 0% to 15%:
A patient belongs in Class 1 when (1) symptoms and signs of disease or deformity of the vulva or vagina are present that do not require continuous treatment; and (2) sexual intercourse is possible; and (3) the vagina is adequate for childbirth if the patient is pre-menopausal.
Submissions
Plaintiff
The plaintiff submitted that the potentially compensable injury, which was the subject of her claim and the referral to the Panel, was loss of the labia minora with exposure of the vaginal epithelium. The scope of the referral to the Panel and ambit of the dispute set out in written submissions by the parties to the Panel did not identify the injury itself as being in issue. Rather the dispute was whether any impairment arising from that injury met the significant injury threshold.
The injury identified and assessed by the Panel was starkly different to the injury which was referred for assessment and described in the referral materials, and which the plaintiff told the Panel she had suffered. Rather than assessing the plaintiff for the loss of her labia minora, the Panel assessed a different injury, finding that the labia minora had been ‘contoured’ without any resultant exposure of the urethral or vaginal orifices.
The Panel’s injury finding was so unexpected on a determinative matter that it could fairly be described as ‘out of the blue’, and represented an entirely new assessment of the injury, or alternatively a new assessment of the extent of the injury which was contrary and majorly discordant to previous assessments. The Panel did not notify the plaintiff and give her an opportunity to make submissions on this new assessment, and thus denied her a fair opportunity to be heard on a matter central to its determination of the medical question.
Defendants
The defendants submitted that the function of the Panel was to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise, not to express an opinion on the correctness of other opinions on the medical question.
There is nothing in the criteria in ch 11.6a of the Guides which required the Panel to make an observation or measurement or estimate of the proportion of the plaintiff’s labia minora that had been surgically resected or the proportion which remained after surgery, or to consider whether there had been resultant exposure of the urethral and vaginal orifices. Rather the Panel was required by the Guides to assess whether there were ‘signs of … deformity of the vulva’, including the labia minora. It is clear that the Panel performed this task, evidenced by its finding that the plaintiff had ‘some alteration of the labia minora anatomy’, and diagnosis that the plaintiff had ‘altered contours of the labia minora’.
Both Dr White and the Panel found that the plaintiff’s degree of impairment fell within Class 1 in ch 11.6a of the Guides. Their only disagreement was where in Class 1 the plaintiff’s impairment fell. The area of disagreement between the Panel and Dr White was not substantial, or critical to the Panel’s function of assessing the plaintiff’s degree of impairment in accordance with the Guides. Considered in this way the Panel’s assessment of the plaintiff’s impairment was not, as she submitted, irreconcilably different to or majorly discordant with Dr White’s finding and assessment.
It had never been the plaintiff’s case that her labia minora were completely removed during surgery. That was confirmed by the medical materials and the pleading in the plaintiff’s statement of claim. The Panel finding that there had been surgical removal of parts of the labia minora is thus consistent with the plaintiff’s pleading in the County Court proceeding and the examination findings and opinions in medical materials which were before the Panel.
It is apparent that on examination there was a difference between the Panel and Dr White in respect of the degree to which the labia minora had been removed, and the extent to which the vaginal opening was exposed. However, that difference was not of sufficient importance in the Panel’s performance of its statutory function to require it, as a matter of procedural fairness, to notify the plaintiff of the area of disagreement and give her the opportunity to respond.
The Panel’s reasons should not be over-scrutinised or construed minutely, and the court should not be concerned with any looseness in language or unhappy phrasing. The Panel’s reference in its reasons to altered contours of the labia minora is an acceptance that the labia minora had been partly excised during surgery. The issue of exposure of the epithelium is secondary to and logically affected by any finding as to the extent of trimming and, in any event, the Panel’s findings accord with those of Dr Moran, and with Dr Mirmilstein’s notation that ‘her vulva looks relatively OK and there is no major disfigurement or defect’. The plaintiff was aware that these materials were before the Panel, and that the second and third defendants had referred the question of her alleged injury to the Panel for determination. The Panel did not introduce any new issue, but determined the very issue that had been referred to it, being an issue which the plaintiff was on notice of and had been given an opportunity to be heard on.
Authorities
It is not in dispute that a failure by the Panel to accord procedural fairness gives rise to reviewable error.[7]
[7]Kioa v West (1985) 159 CLR 550, 628–9; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 589–90 (‘Alphaone’); Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [31]–[37] (‘Barrett Burston’); Victoria v Jerak [2018] VSC 680, [32]–[36] (‘Jerak’).
In Alphaone,[8] the Full Court of the Federal Court said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
[8]Alphaone (n 7) 590–1.
The judgment of the High Court in SZBEL, which approved the above statement in Alphaone,[9] demonstrates that the content of an administrative decision-maker’s procedural fairness obligation is to be determined by reference to the issues arising in relation to the question being determined. In SZBEL, the High Court found a failure to accord procedural fairness where the Tribunal made findings that statements made by the applicant for a protection visa lacked credibility, in circumstances where the credibility of the statements was not called into question by the original decision-maker, or by the Tribunal when it questioned the applicant. The Court reasoned:
The Tribunal is not confined to whatever may have been the issues that the [original decision-maker] considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the [original decision-maker] considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the [original decision-maker] considered dispositive are “the issues arising in relation to the decision under review”.[10]
[9]SZBEL (n 7) 162.
[10]Ibid 163.
In HJ Heinz Company Australia Ltd v Kotzman,[11] a Medical Panel assessing impairment relating to a left ankle injury concluded that sections of the Guides dealing with ankle impairments were not adequate, and assessed impairment by reference to criteria applicable to knee or hip conditions, resulting in a significantly different level of impairment. Kyrou J said:
Consistent with what the High Court said in Szbel, I have focused on whether the plaintiffs were given the opportunity of ascertaining the relevant issues, rather than the dichotomy between conclusions not obviously open on the known material and the mental processes of decision-making. The fact that the ultimate issue for determination by the panel, namely the degree of Ms King’s whole person impairment assessed in accordance with the Guides, was known to the plaintiffs, is not determinative.
Had the panel confined itself to the provisions of the Guides expressly dealing with the ankle, the plaintiffs could not have complained because those provisions are an obvious issue for consideration by the panel. However, by going beyond those provisions and relying on provisions dealing with body parts which were unaffected by Ms King’s injury, the panel introduced a new issue – namely the appropriateness of relying on those provisions – without giving the plaintiffs prior notice of that issue. The panel’s reliance on those provisions, which were critical to its opinion, was not simply the application of one of the options that was available in the Guides. That reliance was so radically different from the range of options in the Guides that the panel might have been reasonably expected to apply, that the panel’s failure to inform the plaintiffs that it was considering relying on those provisions was a breach of the hearing rule.[12]
The plaintiff in Heinz was denied procedural fairness by not being given the opportunity of being heard in relation to a determinative issue, namely the novel application of the Guides to assessment of impairment.
[11][2009] VSC 311 (‘Heinz’).
[12]Ibid [62]–[63].
In Barrett Burston,[13] a Medical Panel relied on its own expertise to determine a diagnosis not previously identified or suggested in the materials. Cavanough J said:
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be “heard” (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.[14]
The plaintiff in Barrett Burston was denied procedural fairness because it had no opportunity to be heard in relation to a new and determinative issue, namely a diagnosis arrived at by the Medical Panel without notice.
[13]Barrett Burston (n 7).
[14]Ibid [34].
In North v Homolka,[15] Ashley JA, discussing circumstances which might amount to a failure to accord procedural fairness said:
[15][2014] VSC 478 (‘North’).
But what are those circumstances? A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel’s expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation.[16]
[16]Ibid [104].
In North, the panel was asked to answer questions as to the nature of an injured worker’s medical condition relevant to accepted injuries, and as to consequent work capacity. The panel accepted as suitable a number of the job options nominated in various reports submitted to it, to which it added three other jobs based on its own expertise and knowledge. Ashley JA observed:
At first glance, none of the additional jobs seems likely to have had significantly different physical content to that of the nominated jobs which the Panel concluded constituted suitable employment for the plaintiff. This was not a case, by contrast with Calleja and Barrett Burston, where the Panel went on a frolic of its own.[17]
There was no denial of procedural fairness to the plaintiff because he was on notice and had the opportunity to be heard in relation to the issue of suitability of job options with similar physical content.
[17]Ibid [106].
Finally, in Jerak, the treating ophthalmologist and an independent expert concluded that a worker who had suffered injury to both eyes had normal visual field in his left eye. A Medical Panel found that the worker had a left eye visual field loss of 38%.[18] Garde J said:
The plaintiff [employer] was not given notice of the panel’s actual or possible assessment of a 38% loss of left eye visual field, and had no reason to expect that such an assessment would be made. It was an assessment contrary to the previous ophthalmic assessments of the worker’s left eye visual field.
Given the previous assessments of essentially no loss of left eye visual field, the findings of the panel and the extent of left eye impairment came as a surprise to the plaintiff.
For these reasons I find that there was a clear denial of procedural fairness. The panel failed to put the parties on notice of its new assessment, or likely assessment of the worker’s loss of left eye visual field, or to give them the opportunity of putting further evidence or submissions before it.[19]
[18]Jerak (n 7).
[19]Ibid [49]–[51].
Analysis
To her observation, the plaintiff’s labia minora were almost completely removed at surgery. That is what she complained of to her treating doctors, and what she told the Panel.
Both Dr Mirmilstein and Dr White found on examination complete removal of the labia minor save for remnants adjacent to the clitoris, causing a deficient and open perineum (Dr Mirmilstein) or exposure of the vaginal epithelium (Dr White). Dr Nassim recorded findings which were consistent with those of Dr Mirmilstein and Dr White. There is no useful particularisation of examination findings by Dr Moran.
The second and third defendants examined the plaintiff in the weeks after surgery was performed when she complained that too much tissue was removed. In that context, neither defendant took issue with the injury claimed by the plaintiff when the medical question was referred to the Panel.
The issues for consideration by a Medical Panel will usually be identified in the referral materials. The applicant and respondent will have access to those materials, and the opportunity to be heard by putting evidence or submissions to the Medical Panel.
In many, perhaps most cases, the nature or extent of injury will be controversial, uncertain, imprecisely defined or otherwise in issue on the referral materials, and it will be necessary for a panel to resolve the issue of injury by making findings in order to determine impairment.
However in this case, the referral materials did not identify any issue as to the injury which the plaintiff claimed to have suffered. The issues identified in the referral materials and submissions related to assessment of impairment in respect of the injury. The issue as to injury only arose when the Panel examined the plaintiff.
The Panel examination findings are demonstrably different to those of Dr Mirmilstein and Dr White in the following respects. First, at least by inference, the Panel found no alteration to the labia minora adjacent to the clitoris, whereas Dr Mirmilstein and Dr White found only remnants remaining. Second, the Panel found only some alteration of the labia minora distal to the clitoris, which it described as altered contours, whereas Dr Mirmilstein and Dr White found that part of the labia minora to be completely absent. Third, the Panel found no exposure of the vaginal orifice and no dysfunction of the vulva, whereas Dr Mirmilstein found the perineum deficient and open, and Dr White found that the vaginal epithelium was exposed. I note that in each of these respects the history provided by the plaintiff of her own observations of her altered anatomy and the consequences she described to the Panel and to other examiners were at odds with the Panel findings.
Examination of the Guides, and the reasons of the Panel, demonstrate the difference in identification of injury was likely to have been determinative. The Guides describe the vulva, of which the labia minora are part, as having cutaneous and sexual functions. Symptoms and signs of impairment of the vulva include complete or partial absence, difficulty with sexual intercourse and secondary effects on perineal structures. The Class 1 descriptor leaves significant scope and discretion to an assessor. However, it is clear that the symptoms and signs of deformity are relevant criteria for evaluating impairment. In its reasons, the Panel directly linked its determination that impairment did not satisfy the threshold level to the inability to duplicate the clinical findings of Dr White that ‘the labia minora are completely absent, apart from remnants adjacent to the clitoris’.
The plaintiff was not given notice by the Panel that it found a different injury to that presented to it. There was no reason to expect such a finding. It was a finding contrary to the previous gynaecological assessments, and to the way in which the injury was presented to the Panel in the referral materials.
I reject the defendants’ submission that because the Panel finding simply relied on observations, giving the plaintiff notice and the opportunity to respond with further evidence and submissions would make no difference to the outcome.
Different methods of examination may explain the difference in the injury identified. Further, Drs Mirmilstein and White may be able to demonstrate their findings, perhaps with the assistance of diagrams, photographs or other aids. The plaintiff should have the opportunity to put further evidence and submissions to a panel undertaking the impairment assessment.
In relation to this issue, I will admit para 13 of the plaintiff’s affidavit affirmed on 12 March 2020 in which she describes differences between the examinations conducted by Dr Mirmilstein and Dr White to that conducted by the Panel which may well be material.
It was the function of the Panel to form its own opinion on the medical question referred to it. However, having made observations on examination which were substantially and materially at odds with the referral materials, in circumstances where findings based on its observations were likely to be determinative, the Panel was required to give the parties notice and an opportunity to be heard before making its determination. Failure to do so amounted to a denial of procedural fairness and jurisdictional error.[20]
[20]Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476, 490, 496, 516.
Ground 2 – Application of the Guides
Submissions
Plaintiff
The plaintiff submitted that the Guides obliged the Panel to take steps to resolve the marked inconsistency or disparity between its findings as to injury and those of Dr Mirmilstein and Dr White.
Defendants
The defendants submitted there was no marked or significant inconsistency between the Panel findings and those of previous medical examiners. It was not incumbent on the Panel to embark on a process of consultation in relation to every divergence of findings. In this case, neither the extent of inconsistency, nor the significance of the area of inconsistency to the assessment of impairment, was sufficient to require that the Panel consult with Dr Mirmilstein or Dr White in order to properly assess the plaintiff’s impairment.
Further, the Panel’s reasons make clear that it was perfectly aware that it formed its own view, as it was obliged to do, on the basis of physical examination of the plaintiff. Obtaining further evidence from Dr White could not logically have affected what the Panel determined with their own eyes.
Authorities
In Wingfoot Australia Partners Pty Ltd v Kocak,[21] the High Court described the function of a Medical Panel:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. 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 498–9 (citations omitted).
Failure to assess impairment in accordance with the Guides amounts to jurisdictional error. In Heinz, Kyrou J said:
24.The interpretation of the Guides is a question of law. The determination of a level of impairment is a question of fact.
…
27.The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.
…
44.The meaning of the phrase ‘in accordance with’ depends on the context. It is generally taken to mean ‘in conformity with’, although in some contexts, strict compliance is not required.
45.In order for a medical panel to assess impairment ‘in accordance with the [Guides]’ as required by s 91 of the [Accident Compensation Act 1985 (Vic)], it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.[23]
[23]Heinz (n 11) [24], [27], [44]–[45] (citations omitted).
Chapter 1.2 of the Guides states the following requirement:
In evaluating an impairment, it is important to obtain enough clinical information to characterise it in accordance with the Guides requirements. Once this task is accomplished, the evaluator’s findings may be compared with the clinical information already available about the individual. If the evaluator’s findings are consistent with the results of previous clinical studies, the findings may be compared with the Guides criteria to estimate the impairment. If the findings are not consistent with those of earlier studies, there should be communication between the involved physicians and clinical studies as needed to resolve any disparities.
Chapter 2 of the Guides states that two physicians applying the Guides to the same patient should report similar results and reach similar conclusions. The Guides continue:
If two physicians who examine a patient and use the methods of the Guides do not obtain similar results and reach similar conclusions, then the book can be used to resolve the discrepancies. Analysis of the records and reports in question will disclose the disparities, which should be in matters of fact rather than opinion. If the patient’s medical condition is stable, then different physicians should reach the same general conclusion. If widely disparate evaluations occur, then the stability of the medical condition and the matter of permanent impairment would be in question.
…
By consulting the standardized medical evaluation protocols and reference tables and reviewing the recommendations of the Guides, the recipient may verify whether or not all necessary information was collected. If it was, the correctness of the evaluation may be ascertained by comparing it with the Guides tables. If there is disagreement about the clinical findings, further medical evaluation may be necessary. The recipient should not give one inadequately supported medical evaluation greater weight than another.
Each subsequent chapter of the Guides, including ch 11, directs the reader to peruse chs 1 and 2, which discuss the purpose of the Guides, before using the information in the subsequent chapter.
Analysis
Whether application of the Guides requires that a divergence between a Medical Panel and previous medical assessors be resolved by further process of consultation is a matter of fact and degree.[24]
[24]Jerak (n 7) [64].
For many injuries the Guides provide standardised evaluation protocols which involve detailed tables and prescriptive directions. For other injuries, such as that under consideration here, the Guides dictate a less prescriptive approach, allowing more significant discretion to the assessor, and giving rise to the possibility of reduced consistency between assessors.
As has already been stated, the injury identified by the Panel was materially inconsistent with that identified by previous examiners. However, the broad scope afforded to the examiner by ch 11.6(a) of the Guides does not in this case provide a mechanism for resolution of the inconsistency.
Had the plaintiff been on notice that the injury which she identified was in issue, she would have had the opportunity to put evidence and submissions to the Panel in respect of that issue. It would then be for the Panel to choose whether to place weight on material supplied to it when reaching its own conclusion on the issue. In these circumstances, the Guides would not require the Panel to consult with previous examiners in an attempt to resolve any remaining inconsistency before proceeding to determine the medical question.
Given that I have found for the plaintiff on the procedural fairness ground, it is not necessary to determine this ground. Had it been necessary, I would have concluded that the Panel did not fall into jurisdictional error by failing to consult with the previous examiners in an attempt to resolve inconsistent findings before determining the medical question referred to it.
Conclusion
I conclude that the Panel made a jurisdictional error by not affording procedural fairness to the plaintiff. An order will be made quashing the decision of the Panel, and remitting the medical question to be determined in accordance with law. I will hear from the parties as to any further consequential orders.
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