Schmael v Leach
[2020] VSC 562
•3 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03134
| ANNETTE SCHMAEL | Plaintiff |
| v | |
| DR MARY LOU LEACH, DR ANDREA BENDRUPS and MR IAN JONES | First to Third Defendants |
| and | |
| COLETTE ACCESSORIES PTY LTD | Fourth Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2020 |
DATE OF JUDGMENT: | 3 September 2020 |
CASE MAY BE CITED AS: | Schmael v Leach |
MEDIUM NEUTRAL CITATION: | [2020] VSC 562 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Panel’s opinion that there was no organic cause for worker’s upper body chronic pain – Where Panel formed opinion without obtaining results of MRI examinations ordered by worker’s treating surgeon – Admissibility of MRI results not before Panel – Whether Panel’s opinion legally unreasonable – Whether Panel failed to make obvious inquiry – Whether failure to inquire was material to Panel’s opinion – Whether Panel procedurally unfair – Jurisdictional error established – Whether questions should be reconsidered by differently constituted Medical Panel – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 312.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DJ Williams QC and Mr PA Czarnota | Slater & Gordon |
| For the Fourth Defendant | Mr MF Fleming QC and Ms FC Spencer | Hall & Wilcox |
HER HONOUR:
In September 2014, Annette Schmael was employed by Colette Accessories Pty Ltd as a store manager. Her duties included using a computer with a horizontal screen that was located under the glass surface of the counter. During 2015, she began to experience pain in her neck, shoulders, and upper back. While massage and analgesia provided temporary relief, the pain gradually increased and became more persistent.
On 3 June 2018, Ms Schmael made a claim for workers’ compensation in respect of chronic pain in her upper back, neck, and shoulders, and took some time off work. Her claim was accepted. While she was away, alterations were made to her workplace, including installation of an above-counter computer screen. She returned to work part-time and underwent some treatment.
In October 2018, Colette’s claims agent advised that Ms Schmael’s entitlement to weekly payments of compensation and payment of medical and like expenses would cease in November 2018. She returned to her full duties for about three weeks, during which she took eight days of sick leave due to ‘intolerable’ pain, centred in her shoulders and upper arms. She stopped work in November 2018 and has not returned.
The decision to terminate her entitlement to compensation was made on the basis that Ms Schmael was no longer incapacitated for work, and no longer required any medical treatment for her injury. Ms Schmael disputes this decision and has lodged a dispute with the Accident Compensation Conciliation Service (ACCS), under s 282 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).
On 6 March 2019, the ACCS referred medical questions to a Medical Panel for an opinion, pursuant to s 284 of the WIRC Act. A Medical Panel was convened to consider the referral, comprising Dr Mary Lou Leach, rehabilitation physician, Dr Andrea Bendrups, general physician and rheumatologist, and Mr Ian Jones, orthopaedic surgeon.
The Panel provided its certificate of opinion, together with a written statement of reasons, on 15 May 2019. Its opinion was that Ms Schmael was suffering from symptoms of chronic pain in her upper body, with no evidence of an organic medical condition. It did not consider her symptoms or any alleged incapacity for work to result from, or be materially contributed to by, her claimed injury. The Panel’s opinion must be accepted by the parties as final and conclusive for the purposes of the dispute concerning Ms Schmael’s entitlement to compensation.[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), s 313(4).
In this proceeding, Ms Schmael seeks judicial review of the Panel’s opinion. She contends that the Panel’s opinion was legally unreasonable because the Panel failed to make an obvious inquiry about a critical fact that could have been easily ascertained — specifically, it failed to obtain reports of MRI examinations of her shoulders that were performed shortly after the Panel’s examination. She also complains that the Panel denied her procedural fairness. Ms Schmael seeks an order in the nature of certiorari quashing the Panel’s opinion, and an order in the nature of mandamus remitting the medical questions to a differently constituted Panel.
For the reasons that follow, I have concluded that the Panel fell into jurisdictional error by failing to inquire about the results of the MRI examinations of Ms Schmael’s shoulders. The Panel’s opinion was therefore legally unreasonable, and will be quashed by an order in the nature of certiorari. I do not consider that there was a want of procedural fairness in the formation of the Panel’s opinion. The referred medical questions should be reconsidered by a differently constituted Panel.
The Panel’s opinion and reasons
The conciliator referred three medical questions to the Panel for its opinion. Those questions, and the Panel’s opinion in relation to each question, were set out in the Panel’s certificate of opinion dated 15 May 2019:
Question 1What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion, Ms Schmael is suffering from symptoms of chronic pain in her upper body, with no evidence of an organic medical condition.
Question 2What is the extent to which any medical condition of the worker:
a)resulted from or was materially contributed to by:
b)results from or is materially contributed to by:
any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion, Ms Schmael’s symptoms of chronic pain did not result from, nor was materially contributed to, and does not result from, nor is it materially contributed to by the claimed injury.
Question 3Did or does the worker have an incapacity for work? If so, what is the extent to which the worker’s incapacity for work:
a)resulted from or was materially contributed to by;
b)results from or is materially contributed to by:
any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion, any alleged incapacity for work did not result from, nor was it materially contributed to and does not result from nor is materially contributed to by the claimed injury.
The Panel’s reasons commenced by referring to its examination of Ms Schmael on 3 April 2019. The Panel stated that it had formed its opinion with regard to the documents and information referred to in Enclosure A, the history provided by Ms Schmael, and the examination findings elicited by the Panel. Enclosure A listed 11 documents provided to the Panel with the referral, including an ultrasound of her right and left shoulders performed on 30 November 2018.
After setting out the history given by Ms Schmael of her pre-injury employment, the circumstances of her injury, and her attempts to return to work, the Panel recorded her description of her current symptoms:
Ms Schmael described to the Panel that her pain is in both sides of her neck into both shoulders, the entire upper arms on both sides with occasional radiation into her forearms and the 4th and 5th fingers of both hands. She said that she continues to have some pain in the area medial to her scapulae, but this has eased somewhat.
She denied that she suffers from headaches. She described her pain as constant but aggravated by any activity, especially if she raises her arms or reaches for something suddenly. She said that her pain is worst first thing in the morning, but denied morning stiffness. She said that she finds it hard to get comfortable in bed and has only about three hours of sleep at night.
The Panel noted that the pain did not limit her in standing, walking, or sitting, although she needed to move around when seated. She was not limited in how long she could drive, was independent in her personal care, and did not undertake any structured exercise. As to her current treatment:
She has been referred to a rheumatologist in recent months, who repeated the steroid injections into both shoulders, again without any benefit. The rheumatologist apparently recommended bilateral shoulder hydrodilatation or surgery, but Ms Schmael researched the procedures online and decided against them. She has recently seen an orthopaedic surgeon who has referred her for shoulder MRIs, which she is yet to have. The Panel noted from the referral material that she has not undertaken a pain management programme.
Next, the Panel set out its observations made during a physical examination of Ms Schmael. Examination of shoulder range of motion ‘revealed no crepitus in the glenohumeral or acromioclavicular joints and no evidence of muscle spasm’, although flexion, abduction, and internal rotation were limited by pain.
As to imaging and investigations:
Ms Schmael did not provide any radiological imaging for the Panel to review. The Panel noted from the referral material that the reports of Dr David Hayes, orthopaedic surgeon, Dr Chamila Dabare, rheumatologist and Adelaide Turner, osteopath, which refer to normal MRI studies of her cervical spine, brain and brachial plexus and normal upper limb nerve conduction tests. The report contained in the referral material of a bilateral shoulder ultrasound dated 30 November 2018, noted bilateral thickening of the subacromial bursae with bursal bunching on the coracoacromial ligament “implying bursitis”.[2]
The Panel considered that no additional medical imaging or other investigations were necessary for it to assess Ms Schmael’s current condition and answer the medical questions.
[2]Emphasis in original.
The Panel then explained its diagnosis:
The Panel also considered that shoulder ultrasounds are operator dependent, can be unreliable and that minor abnormalities, such as those described, are often seen in asymptomatic people. Given the common finding of minor ultrasound changes in normal shoulder joints, combined with the lack of efficacy of bilateral subacromial steroid injections on two occasions and physical findings that do not suggest significant rotator cuff pathology, in the Panel’s opinion, exclude the diagnosis of subacromial bursitis.
The Panel concluded that Ms Schmael is suffering from symptoms of chronic pain in her upper body, with no evidence of an organic medical condition.
The Panel revisited Ms Schmael’s description of her duties as store manager, and considered that ‘all the tasks described did not sound onerous or unsafe for a young person with no pre-existing disability’. It therefore concluded that her symptoms of chronic pain did not result from and were not materially contributed to by the claimed injury. It also concluded that any alleged incapacity did not result from and was not materially contributed to by the claimed injury. In short, the Panel ‘could not find an organic cause for her pain condition’.
Admissibility of evidence
Ms Schmael tendered an affidavit that she made on 30 September 2019. In her affidavit, she deposed that, during her examination by the Panel on 3 April 2019, she told the Panel that:
a. I had pain and restrictions in both shoulders;
b. I was recently seen by Mr Eugene Ek, orthopaedic surgeon, for opinion;
c. Mr Ek had referred me for MRI scans on both shoulders, which I was due to have shortly.
She said that the Panel did not ask her any further questions about the referred MRI investigations, and did not ask her to provide copies of the MRI scans once she received them.[3]
[3]Affidavit of Annette Schmael dated 30 September 2019 (Schmael affidavit), [5]–[7].
She deposed that she first saw Mr Ek on 26 March 2019, and told him she had pain in her neck, shoulders, and arms. Mr Ek referred her for MRI scans on her shoulders, which were performed on 16 and 17 April 2019.[4] She exhibited a copy of Mr Ek’s clinical file, which included the reports of the MRI scans.[5] She also exhibited a letter from Mr Ek to her general practitioner, dated 23 April 2019, in which Mr Ek said that he had reviewed the MRI scans and ‘they show features of bilateral subacromial bursitis and impingement, [with] tendinosis of the rotator cuff tendons’, in keeping with the clinical examination findings.[6]
[4]Schmael affidavit, [9]–[10].
[5]Exhibit AS-1.
[6]Exhibit AS-2.
Ms Schmael continued:[7]
On 23 April 2019, I had a telephone consultation with Mr Ek. During that telephone call, he said he had reviewed the MRI scans and said I had bursitis, impingement and rotator cuff tendinitis. He said I should try physiotherapy. I said to him I had already tried physiotherapy and it hadn’t worked. I asked him whether surgery was an option. He said yes. I also said to Mr Ek that I had been examined by the Medical Panel. He responded by saying he expected to hear from them, and if and when they called, he would let them know about my shoulder injuries and need for surgery. He said, depending on what the Medical Panel decides, Workcover could pay for the surgery. A further appointment was made for me to be reviewed by Mr Ek on 28 May 2019.
She believed that the Panel made no contact with Mr Ek, and nor did they request information from him, including information about the MRI scans, the results of those scans and what further treatments were planned or required. The Panel did not request a copy of the MRI scans or reports from Mr Ek.
[7]Schmael affidavit, [11].
In addition to some paragraphs concerning the steps she took on learning that the Panel had reached its opinion without reference to the MRI scans of her shoulders,[8] Ms Schmael described the treatment she received after that date:[9]
[8]Schmael affidavit [12]–[16], [19], exhibits AS-3, AS-4 and AS-5.
[9]Schmael affidavit, [17]–[18], [20]–[21].
On 28 May 2019, [I was] reviewed by Mr Ek. Scheduled for surgery to be performed by Mr Ek on 3 June 2019, but the surgeries did not proceed. I could not afford to pay for Mr Ek’s operating costs, even with private health insurance. In light of the Panel’s opinion, Workcover was not going to fund my surgery.
I then made my own investigations for possible alternative orthopaedic specialists who could operate on my left shoulder at either a lower cost or no cost.
…
A short time later, I saw Mr Audi Widjaja, orthopaedic surgeon. He recommended I undergo left shoulder surgery.
On 1 July 2019, I underwent left shoulder surgery performed by Mr Widjaja. The surgery involved left shoulder manipulation under anaesthesia, arthroscopy, acromioplasty (subacromial decompression) and bursectomy, and release of adhesion and debridement.
She also exhibited a copy of the operating record dated 1 July 2019, noting the findings indicated organic conditions in her left shoulder, ‘namely left shoulder impingement, subacromial bursitis, and rotator cuff tendinosis’.[10]
[10]Schmael affidavit, [23] and exhibit AS-6.
Colette objected to the admissibility of paragraphs 8 to 23 of Ms Schmael’s affidavit, and all of the exhibits to the affidavit, on the ground that they were not relevant to any fact in issue or any relief sought in the proceeding. No other objection was taken.
The objection was to evidence of matters that were not before the Panel at the time it formed its opinion. Colette submitted that, because judicial review is concerned with the lawfulness of a decision and not its merits, the general rule is that evidence in a judicial review proceeding should be confined to the evidence that was before the decision maker.[11] It argued that this case did not fall within one of the limited exceptions to that rule, because the Medical Panel was not under a duty to inquire about or obtain the MRI reports and had not been procedurally unfair.
[11]Relying on Chandra v Webber (2010) 187 FCR 31 at [40]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 [442], [454].
Ms Schmael accepted that the starting point in a judicial review proceeding is that only the material before the decision-maker is relevant. However, she argued that the evidence in her affidavit fell within exceptions to the general rule, because:
(a) it proved that there was material that was readily available and centrally relevant to the issue before the Panel, and so was relevant to whether there had been a failure to inquire by the Panel; and
(b) it showed that the Panel’s opinion might have been different had it sought and obtained the MRI reports, both because of what they said, and because of the consequent treatment decisions.
As Colette acknowledged, there are exceptions to the general rule. One recognised exception is where legal unreasonableness is alleged as a ground of review.[12] In Prasad v Minister for Immigration and Ethnic Affairs,[13] where there was a question whether the Minister’s decision was legally unreasonable because of a failure to obtain information that was both available and relevant, Wilcox J held that evidence should be received ‘as to the existence and nature of that information’.[14] Similarly, in Wei v Minister for Immigration and Border Protection,[15] critical evidence that was readily available but not obtained by the decision-maker was admitted.
[12]Australian Retailers Association, [458]; Port Phillip Scallops v Minister for Agriculture (2018) 238 LGERA 344, [28]; City of Melbourne v Neppessen [2019] VSC 84, [84]–[87].
[13](1985) 6 FCR 155 (Prasad).
[14]Prasad, 170.
[15](2015) 257 CLR 22 (Wei).
In this case, one of Ms Schmael’s grounds of review is that the Panel failed to obtain the MRI reports — information that she argued was both readily available and centrally relevant to the medical questions referred to the Panel. Paragraphs 8 to 11, 17, 18, 20, 21 and 23 of her affidavit, and exhibits AS-1, AS-2, and AS-6 are relevant to that ground. They are probative of the existence of information that could have been obtained by the Panel, the nature of the information, and its significance for the performance of the Panel’s statutory function. They are also probative of whether the alleged failure to inquire was material to the outcome, in the sense discussed below.[16] Those paragraphs and exhibits are therefore admissible.
[16]See [42] below.
Paragraphs 12 to 16 and 19 of the affidavit, and exhibits AS-3, AS-4, and AS-5 concern steps taken by Ms Schmael to ask the Panel to revisit its opinion in light of the MRI reports, and are not relevant to any question in this proceeding. Paragraph 22 is argument rather than evidence, and is irrelevant for that reason. Those parts of Ms Schmael’s affidavit are therefore not admissible.
Failure to inquire?
Ms Schmael’s first ground of review was that the Medical Panel fell into jurisdictional error by failing to exercise its power under ss 311 or 312 of the WIRC Act to obtain the MRI examination results or reports in respect of both shoulders, before giving its opinion. She relied on the line of authority concerning failure to inquire as a species of legal unreasonableness, beginning with Prasad, and examined more recently by Nettle J in Wei,[17] and by the Court of Appeal in Chang v Neill.[18] Her argument was that the Panel had power to inform itself by obtaining the MRI reports, and it was legally unreasonable for it to give its opinion without having done so. She submitted that it was critical for the Panel to seek out the MRI reports, given that it considered the shoulder ultrasounds to be unreliable. The MRI reports were readily available and centrally relevant to the medical questions before the Panel, and supported the diagnosis of bursitis that was rejected by the Panel because there was ‘no evidence of an organic medical condition’.
[17]Wei, [49].
[18][2019] VSCA 151, [35]–[40], [53], [56] (Chang v Neill).
Colette submitted that there was doubt whether an opinion of a Medical Panel could be set aside for a failure to inquire, or on the broader ground of legal unreasonableness. It pointed out that neither the Court of Appeal or the High Court had definitively embraced failure to inquire as a form of jurisdictional error, and queried whether the observations made in Minister for Immigration and Citizenship v SZIAI[19] applied to the statutory function performed by a Medical Panel.
[19](2009) 259 ALR 429, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (SZIAI).
More specifically, it argued that this was not one of the ‘rare or exceptional’ cases in which a failure to inquire amounted to jurisdictional error.[20] Section 311 of the WIRC Act had no application in this case, since the complaint was about a failure to obtain further medical information, and not a failure to have required the attendance of any of Ms Schmael’s doctors. The Panel did not consider that it required any further imaging or investigations, and so could not have requested further information under s 312. That conclusion was open to the Panel, given the information already available to it. Colette argued that, taking a real world approach to the Panel’s decision-making,[21] Ms Schmael was the person best placed to obtain the MRI results and provide them to the Panel.
[20]Minister for Immigration and Citizenship v Le (2007) 164 FCR 151, [60]; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309, [30].
[21]Citing Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469 (Hill J, Gummow and O’Connor JJ agreeing).
Colette further contended that the MRI reports were not critical, in that the Panel would not necessarily have formed a different opinion if the reports had been before it. The Panel’s conclusion was formed by reference to matters other than the absence of reliable imaging of Ms Schmael’s shoulders, including its findings on physical examination, and the lack of efficacy of steroid injections on two occasions.
Relevant provisions
Medical Panels are constituted as necessary under s 537 of the WIRC Act. A Medical Panel is convened from a list of medical practitioners appointed by the Governor in Council.
Section 302 of the WIRC Act sets out the functions of a Medical Panel:
(1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.
(2) A Medical Panel must give its opinion on a medical question in accordance with this Division.
A Medical Panel may inform itself on any matter relating to the reference in any manner it thinks fit.[22] While a person or body who refers a medical question to a Medical Panel is obliged to provide all relevant information,[23] the WIRC Act provides several ways in which a Panel may inform itself:
(a) under s 307, it may ask a worker to meet with the Panel and answer questions, to supply to the Panel copies of documents in the worker’s possession that relate to the medical question, and to submit to a medical examination by the Panel; and
(b) under s 311, it can ask a provider of medical services who has examined the worker to meet with the Panel and answer questions, and supply relevant documents to the Panel.
[22]WIRC Act, s 303(1).
[23]WIRC Act, s 304.
Section 312 provides specifically for a Medical Panel to request further information that it requires in order to form an opinion:
(1) If a medical question has been referred to a Medical Panel and the Medical Panel considers that further information is required to enable it to form a medical opinion on the question—
(a) the Medical Panel may request the worker, or the person or body referring the medical question, to provide the information within the period specified in the request, not being a period less than 14 days after the date on which the worker last attended for examination by the Medical Panel; and
(b) the Medical Panel must consider the information provided; and
(c) the time limit specified in section 313(1) is suspended from the date on which the request under paragraph (a) is made until the end of the period specified in the request.
(2) The Medical Panel may accept any further information requested under subsection (1)(a) which is provided after the period specified in the request under subsection (1).
Subject to s 312, a Medical Panel must form its opinion on a medical question referred to it within 60 days after it receives the documents relating to the medical question, or any longer period agreed.[24] Within that time, the Panel must give a certificate of its opinion and a written statement of reasons for that opinion.[25]
[24]WIRC Act, s 313(1).
[25]WIRC Act, s 313(2).
Consideration
For reasons I have given previously, I consider that an opinion of a Medical Panel can be reviewed on the ground of legal unreasonableness.[26] While the Court of Appeal is yet to rule definitively on that question,[27] I can find nothing in the WIRC Act that displaces the presumption that Parliament intended Medical Panels to perform their statutory functions within the bounds of legal reasonableness.[28] An opinion of a Medical Panel formed in breach of the standard of legal reasonableness would be, in my view, beyond the power conferred upon a Medical Panel by the WIRC Act.
[26]Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266, [22]; Mailton Holdings Pty Ltd v Jussy [2019] VSC 421, [40].
[27]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [82]–[100] (Neave JA, Santamaria JA and Ginnane AJA agreeing); Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281, [48].
[28]As to the implication of reasonableness, see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]–[90] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [51]–[53] (Gageler J), [80] (Nettle and Gordon JJ), [131]–[135] (Edelman J).
I also accept that one form of legal unreasonableness is making a decision without attempting to obtain information that it is obvious is readily available and centrally relevant to the decision to be made.[29] Put another way, ‘a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a … constructive failure to exercise jurisdiction’.[30]
[29]Prasad, 170; Wei, [49] (Nettle J).
[30]SZIAI, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In Chang v Neill, the Court of Appeal made some observations about whether a Medical Panel could fall into jurisdictional error by failing to make an obvious inquiry.[31] Unlike many statutory tribunals, a Medical Panel does not adjudicate on parties’ rights and obligations after an adversarial hearing; its function is to give its expert medical opinion in answer to the medical questions referred to it.[32] Moreover, an opinion provided by a Medical Panel must be an ‘informed professional opinion’.[33] A Medical Panel is not a passive body that cannot go beyond the material submitted to it, and is empowered by the WIRC Act to obtain the information it needs to provide an informed opinion.[34] If a Medical Panel considers that further information is required to enable it to form a medical opinion, it cannot disregard the deficiencies in the material available to it and proceed to reach an opinion that is not informed.[35] The power in s 312(1) to seek further information is an integral component of a Medical Panel’s function of giving an informed medical opinion, and is also bounded by legal reasonableness.
[31]Chang v Neill, [49]–[53].
[32]Chang v Neill, [49]. See also Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [49].
[33]Chang v Neill, [50].
[34]Chang v Neill, [51]. The relevant provisions are set out at [32]–[35] above.
[35]WIRC Act, s 312(1).
I consider that it was manifestly unreasonable of the Panel to proceed to form its opinion that there was no organic cause for Ms Schmael’s pain condition, without first obtaining and considering the results of the MRI examinations. Ms Schmael told the Panel that she had seen Mr Ek recently, and that he had referred her for MRI scans on both shoulders, which she was due to have shortly. It must have been obvious to the Panel that the MRI results would be centrally relevant to the medical questions on which it was to provide its opinion.
The Panel’s view ‘that no additional medical imaging or other investigations were necessary’ was unexplained in its reasons. This conclusion had no evident or intelligible basis, in circumstances where:
(a) the Panel accepted that Ms Schmael was suffering pain in her upper body, including her shoulders;
(b) was dubious about the diagnosis of bilateral subacromial bursitis reached by her treating doctors;
(c) had rejected the only available imaging of her shoulders — the ultrasounds — as unreliable; and
(d) knew that Ms Schmael would shortly have MRI examinations of both shoulders.
The Panel’s determination to give its opinion without seeing any further imaging was ‘a failure to make an obvious inquiry about a critical fact’, the existence of which could easily have been ascertained.[36] Here, there was a ‘material deficiency’ in the information that was available to the Panel at the time it assessed Ms Schmael. In these circumstances, the Panel could not ignore this deficiency and proceed to form an opinion which would not constitute an ‘informed professional opinion’.[37] There was no need for the Panel to hasten to form its opinion, when a request for the MRI results made under s 312(1) would have suspended the 60 day time limit in s 313(1)(a) of the WIRC Act.[38]
[36]SZIAI, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[37]Chang v Neill, [50].
[38]WIRC Act, s 312(1)(c).
It was not to the point that Ms Schmael could have provided the MRI results to the Panel once they were available. While it might have been advisable for her to do so, the Panel had a statutory function of providing an informed opinion in answer to the referred medical questions. This function is not adjudicatory or adversarial, to be performed only by reference to the material provided to the Panel by the parties. Ms Schmael bore no onus of proof.[39] It was for the Panel to determine whether it required further information in order to form its opinion, and for the Panel to request any further information it required.
[39]Cf SZIAI, [52] (Heydon J).
I do not accept Colette’s submission that the MRI results were not ‘critical facts’, in the sense discussed by the plurality in SZIAI. Whether there was any organic cause for the pain experienced by Ms Schmael in her shoulders, neck, and arms was a critical question for the Panel, and the results of her MRI examinations were centrally relevant to that question. Ms Schmael did not have to demonstrate that the Panel would necessarily have formed a different opinion; only that consideration of the MRI results ‘could realistically have resulted in a different decision’.[40] The Panel may well have formed a different opinion if it had known that the MRI examinations indicated that Ms Schmael had bursitis in both shoulders. Its failure to obtain the MRI results before forming its opinion was therefore material to the outcome.
[40]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 412, [45] (Bell, Gageler and Keane JJ). See also Chang v Neill [2019] VSCA 151, [94]–[100] and Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [66].
In conclusion on this ground, the Panel’s failure to obtain the results of the impending MRI examinations of Ms Schmael’s shoulders before forming and giving its opinion involved jurisdictional error.
Procedural fairness
Ms Schmael also contended that the Panel did not afford her procedural fairness, because its opinion that there was no organic cause for her shoulder pain came ‘out of the blue’.[41] She argued that procedural fairness required the Panel to inform her, before finalising its opinion, that:
[41]Relying on Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [34]–[37]; Wagstaff, [40].
(a) it considered that ultrasound examinations were operator-dependent and could be unreliable;
(b) it was proposing to finalise its opinion without reference to the MRI examination results; and
(c) it was proposing to form a view that she had no organic medical condition in her shoulders.
I do not accept this argument. Ms Schmael’s compensation entitlements were terminated because Colette’s claims agent determined that she was no longer incapacitated for work and no longer required any medical treatment for her injury. This decision was based on a medico-legal report of Dr David Hayes, orthopaedic surgeon, dated 11 October 2018, who considered that Ms Schmael had suffered from a ‘musculoligamentous spasm of the neck and upper thoracic spinal region’ that had resolved. Dr Hayes found no injury to her shoulders. One of the range of possible outcomes of the referral was that the Panel would conclude that there was nothing physically wrong with Ms Schmael’s neck, shoulders, and arms.
Ms Schmael had every opportunity to provide the Panel with information that supported her treating doctors’ diagnosis of bilateral subacromial bursitis. In February 2019, the ACCS conciliator provided her and her solicitors with an opportunity to comment on the draft referral. This resulted in the inclusion of some further material, including the report of shoulder ultrasounds performed on 30 November 2018 that supported the diagnosis of bursitis. Once she had undergone the MRI examinations on 16 and 17 April 2019, Ms Schmael and her solicitors were free to provide the MRI reports to the Panel, either directly or through the ACCS conciliator. While another four weeks passed before the Panel gave its opinion, Ms Schmael did not take the opportunity to provide it with the MRI reports.
There was no suggestion that the Panel did or said anything to give Ms Schmael the impression that it would seek out the MRI results.[42] I accept the submission for Colette that the Panel was not obliged to expose its thought processes or provisional views for comment before forming and providing its opinion.[43]
[42]Cf Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.
[43]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [9] (French CJ and Kiefel J).
The complaint of procedural unfairness is not made out.
Disposition
The opinion of the Panel was affected by jurisdictional error, and will be quashed by an order in the nature of certiorari. I will also make an order in the nature of mandamus, remitting the referred medical questions for reconsideration according to law.
It remains to determine whether the order in the nature of mandamus should include a direction that the medical questions be reconsidered by a differently constituted Medical Panel. Consistent with the approach I have taken in other cases,[44] that direction should be given only where there is some feature of the original Panel’s conduct or reasons that would make it unfair, or give the appearance of unfairness, if the matter were to be remitted to the same Panel.
[44]For example, Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [54]–[55] citing Vegco Pty Ltd v Gibbons [2008] VSC 363, [33]. See also Santo v Gibbons [2020] VSC 488, [27]–[37] (Moore J).
I consider there is such a feature in this case. The Panel formed an opinion that there was no organic cause of the pain experienced by Ms Schmael, without first obtaining centrally relevant information that it was aware had been requested by her treating surgeon. As I have found, this was manifestly unreasonable. For the same Panel to reconsider the referred questions would, in my view, give the appearance of prejudgment on a critical issue, and hence unfairness to Ms Schmael. In addition, this was a fairly straightforward referral, with only a modest amount of documentation to be considered. I do not consider that remitting the questions for consideration by a different Panel would have any serious resourcing implications for Medical Panels, or add unduly to the cost and delay involved in resolving this dispute.
I will hear the parties on the question of the costs of the proceeding.
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