Slade v John Patrick Pty Ltd
[2014] VSC 563
•7 November 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 03937
| JUDITH SLADE | Plaintiff |
| v | |
| JOHN PATRICK PTY LTD (ACN 006 343 826) | First Defendant |
| and PETER DOHERTY and DENIS ROBERTSON and EDMOND VAN AMMERS and FRANCIS GALLICHIO and HENRY RUNDLE | Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant |
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JUDGE: | RUSH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2014 | |
DATE OF JUDGMENT: | 7 November 2014 | |
CASE MAY BE CITED AS: | Slade v John Patrick Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 563 | |
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ADMINISTRATIVE LAW – Judicial review of a certified opinion of a medical panel –Medical panel provided inadequate reasons for its opinion – Actual path of reasoning – Improper use of Occupational Asthma Guidelines to assess pre-existing constitutional asthma impairment - Whether medical questions should be remitted to original medical panel or differently constituted medical panel – Order that the medical panel’s opinion be quashed and that the medical questions be remitted to a differently constituted medical panel - Wingfoot Australia Partners Pty Ltd & Kocak (2013) 303 ALR 64 – Body Corporate Strata Plan (no 4166) & Ors v Stirling Properties Limited [1984] VR 903 - Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56 - Accident Compensation Act 1985 (Vic) ss 65, 67, 68, 82(1), 91(1), 91(6A), 91(7)(c), 98C and 98E(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr K.P. Hanscombe SC with Dr K.A. Bowshell | Robinson Gill |
| For the First Defendant | Mr M.F. Fleming SC with Mr R. Kumar | Lander & Rogers |
| For the Second to Sixth Defendants | No appearance |
HIS HONOUR:
Introduction
This is an application for judicial review[1] of a certified opinion of a medical panel comprising the second to sixth defendants (the ‘Panel’) concerning injuries sustained by the plaintiff, Ms Judith Slade, in the course of her employment with the first defendant, John Patrick Pty Ltd.
[1]Pursuant to o 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
On 11 March 2010, in the course of her duties working as a landscape architect, the plaintiff attended a site meeting with clients where she unwittingly inhaled toxic fumes emanating from an ‘oil based paint enamel gloss’[2] (the ‘Incident’), which resulted in her suffering (amongst other things) injuries to her respiratory system. The plaintiff seeks to recover compensation for her injuries from the first defendant pursuant to the Accident Compensation Act1985 (Vic) (the ‘Act’).[3]
[2]See Worker’s Claim for Impairment Benefits Form dated 26 March 2012 (‘Worker’s Claim Form’).
[3]See Plaintiff’s Submissions at [1] where it is stated that this judicial review proceeding arises out of a claim in the County Court of Victoria.
The first defendant’s Workcover insurer, Allianz Australia Limited (‘Allianz’), accepted liability for the plaintiff’s aggravation of pre-existing constitutional asthma, irritable larynx syndrome (‘ILS’) and psychiatric condition (the ‘Accepted Injuries’), but rejected liability for other injuries claimed by the plaintiff. For reasons explained below, the plaintiff disputed Allianz’s assessment of her degree of permanent impairment resulting from the Accepted Injuries. Allianz then referred certain medical questions regarding the impairment of the plaintiff to a medical panel for opinion.[4] The Panel was then convened to provide such opinion.
[4]Pursuant to s 104B(9) of the Accident Compensation Act 1985 (Vic) (the ‘Act’).
The Panel delivered a certified opinion dated 5 June 2013 (the ‘Opinion’), which was accompanied by a statement of reasons for the Opinion of the same date (the ‘Reasons’). The Opinion answered the following two medical questions:
Question 1: What is the [plaintiff’s] degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 of the Act and is the impairment permanent?
Answer: In the Panel’s opinion the worker has a 14% whole person impairment resulting from the accepted aggravation of pre-existing asthma; irritable larynx syndrome (‘ILS’) injury when assessed in accordance with s 91 of the Act. The degree of impairment is permanent.
Question 2: Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in s 98E(1) of the Act?
Answer: No.
The plaintiff (amongst other things) seeks an order in the nature of certiorari quashing the Opinion, together with an order in the nature of mandamus remitting the medical questions to a differently constituted medical panel, on the grounds that the Panel failed to take into account relevant considerations and other matters, took into account irrelevant considerations, and provided inadequate reasons for the Opinion.
Only the plaintiff and the first defendant took an active part in this proceeding. Consistent with the rule in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[5] the second to sixth defendants (being the Panel) did not appear at the hearing and submitted to the orders of the Court.
[5](1980) 144 CLR 13 at 45 – 46 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
For the reasons further explained below, I will order that the Panel’s Opinion be quashed and that the medical questions be remitted to a differently constituted medical panel.
Statutory framework
Section 82(1) of the Act provides that a worker is entitled to compensation in accordance with the Act for ‘an injury arising out of or in the course of any employment’. The definition of ‘injury’ in s 5(1) of the Act includes aggravation of any pre-existing injury.
Section 93 of the Act provides for weekly payments of compensation where ‘a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation’.
Section 98C of the Act sets out the method of calculating compensation for non-economic loss in respect of an injury resulting in permanent impairment.[6] Pursuant to s 98C(2) of the Act, compensation for non-economic loss in respect of a physical injury[7] is only payable if the plaintiff suffers a permanent impairment of 10% or greater. Further, pursuant to s 98C(3) of the Act, compensation for non-economic loss in respect of a psychiatric injury is only payable if the plaintiff suffers a permanent impairment of 30% or greater.[8]
[6]As assessed in accordance with s 91 of the Act.
[7]Meaning ‘other than psychiatric impairment and industrial deafness in respect of a further injury’.
[8]Note s 91(2) of the Act which states: ‘In assessing a degree of impairment under subsection (1), regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury’.
Pursuant to s 91(1) of the Act, any assessment of a degree of impairment resulting from an injury must be made in accordance with the ‘AMA Guides’,[9] unless a specific subsection of s 91 provides otherwise.
[9]Section 5 of the Act defines the ‘AMA Guides’ as the ‘American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by [the] Act and any regulations made under [the] Act’.
Relevantly, s 91(6A) of the Act applies specifically to ‘occupational asthma’ and states that for the purposes of assessing the degree of occupational asthma impairment, due regard should be paid to the guidelines entitled ‘Impairment Assessment in Workers with Occupational Asthma’ (the ‘Occupational Asthma Guidelines’). The section reads:
For the purposes of assessing the degree of occupational asthma impairment—
(a) the AMA Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 5, Tables 8 and 10, there were substituted the guidelines entitled [the Occupational Asthma Guidelines]; and
(b) occupational asthma has the meaning given by [the Occupational Asthma Guidelines]…[10]
[10]‘Occupational asthma’ is defined in the Occupational Asthma Guidelines as ‘a disease characterised by variable airflow limitation and/or airway hyper-responsiveness due to causes and conditions attributable to a particular occupational environment’.
Section 91(7)(c) of the Act states that ‘[f]or the purposes of s 98C impairments from unrelated injuries or causes are to be disregarded in making an assessment’.
Section 98E(1) of the Act states:
If a worker suffers an injury which entitled the worker to compensation and the injury is a total loss mentioned in the Table in Schedule 3B and the amount of compensation calculated under section 98C is less than the amount payable for total loss specified in the Table in respect of that injury, the worker is entitled to compensation equal to the amount specified in the Table instead of compensation calculated under section 98C.
Section 67(1) of the Act provides that the function of a medical panel is to give its opinion on any medical question referred to it in respect of injuries arising out of, or in the course of, or due to the nature of employment. Further, s 67(1A) of the Act stipulates that a medical panel ‘must give its opinion on a medical question in accordance with this Division’.
Section 68 of the Act governs the provision of opinions and their accompanying reasons by medical panels under the Act:
(1) A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, the Authority or self-insurer.
(2) The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.
(3) Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer or the County Court or the Authority or self-insurer its written opinion and a written statement of reasons for that opinion.
(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
Pursuant to s 65(1) of the Act, a medical panel is not bound by the rules of evidence and may inform itself on any matter relating to a reference in any manner it thinks fit. Further, s 65(2) of the Act provides that a medical panel ‘must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows’.
Background
On 26 April 2012, the plaintiff completed, and signed, a worker’s claim for impairment benefits form (‘Worker’s Claim Form’) which listed a number of injuries the plaintiff claimed to have suffered from the Incident.[11]
[11]The Worker’s Claim Form listed the following injuries: ILS, neuralgia and paresthesia, right arm/right shoulder, left foot and right hands, right foot, ribs, diaphragm, back, neck, left shoulder, left arm, pelvic floor weakness, development of chronic asthma and psychiatric injury.
In order to assess the plaintiff’s whole person impairment, the plaintiff was examined by the following independent assessors in accordance with s 91 of the Act and the AMA Guides: Dr Peter Trembath on 21 August 2012, Mr Robin Hooper on 27 August 2012 and Dr Mathew Tagkalidis on 10 September 2012 (the ‘Independent Impairment Assessors’).
On 17 October 2012, Allianz accepted liability for the Accepted Injuries but rejected liability for the remaining injuries claimed in the Worker’s Claim Form.[12]
[12]See the ‘Notice of impairment benefit liability, assessment and entitlement’ dated 17 October 2012 sent from Allianz to the plaintiff (‘Notice of Entitlement’).
Allianz assessed the percentage of the plaintiff’s whole person impairment caused by the Accepted Injuries after taking into account the assessments provided by the Independent Impairment Assessors. However, Allianz’s determination of the degree of the plaintiff’s whole person impairment differed from the final figure allocated by the Independent Impairment Assessors.[13]
[13]The reasons for the difference are set out in the Notice of Entitlement, and there is no reason to replicated them here.
Allianz determined the plaintiff’s whole person physical impairment to be at 21%, the plaintiff’s psychiatric whole person impairment to be at 0%, and that the plaintiff did not have a total loss injury as defined in s 98E of the Act.[14] As a consequence of these determinations, Allianz calculated that the plaintiff was entitled to an impairment benefit of $45,200 in accordance with s 98C and/or 98E of the Act.
[14]See also the Table in Schedule 3B of the Act.
As stated above, the plaintiff disputed Allianz’s assessment of her degree of permanent impairment resulting from the Accepted Injuries.[15]
[15]See the ‘Workers Response Form’ signed by the plaintiff on 15 January 2013, and sent to Allianz by facsimile on 16 January 2013.
On 17 January 2013, Allianz referred the matter to the Convener of Medical Panels, requesting a medical panel be constituted to determine the above medical questions.[16] The Panel received the referral on 1 February 2013, and proceeded to conduct six medical examinations of the plaintiff between 4 March 2013 and 16 April 2013.[17]
[16]Pursuant to s 104B(9) of the Act.
[17]Conducted both jointly and separately by different members of the Panel.
The Panel delivered its Opinion and Reasons on 5 June 2013. The Panel’s assessment of the plaintiff’s impairment from her psychiatric condition is not disputed, and is not the subject of this judicial review. What is contested is the Panel’s method of assessing the plaintiff’s impairment in respect of her aggravation of pre-existing asthma and her ILS, and the adequacy of the Reasons given in respect of those assessments.
Panel’s Reasons
The Panel stated in its Reasons it had considered the listed documents and information provided to it.[18] These documents included numerous medical reports, including the reports of the Independent Impairment Assessors, medical records and file documents.
[18]Enclosures A and B.
Further, the Panel also stated that it had taken into account the history provided by the plaintiff and the findings of the Panel following their examinations of the plaintiff. The Reasons then set out the history, the Panel’s conclusions and the reasons for those conclusions.
The Panel concluded the plaintiff as a result of the Incident had suffered, together with an ILS injury, a temporary aggravation of her pre-existing constitutional asthma which had in effect resolved. In other words, the plaintiff’s current physical symptoms from the Accepted Injuries were caused solely by the plaintiff’s ILS injury. The Panel stated the plaintiff:
… is suffering from laryngeal spasm with muscle tension dysphonia and impaired speech, relevant to the accepted irritable larynx syndrome injury.
The Panel considered that the [plaintiff’s] medical condition arising from the accepted irritable larynx syndrome injury has stabilised.
The Panel is of the opinion that the [plaintiff] has suffered from an aggravation of pre-existing constitutional bronchial asthma following exposure to paint fumes or other fumes during her employment which led to temporary exacerbations of her asthma, and these exacerbations have now resolved, and her present symptoms are entirely laryngeal in origin.
The Panel therefore concluded that the [plaintiff] is now no longer suffering from any medical condition of the lungs or respiratory system relevant to the accepted aggravation of pre-existing asthma injury.[19]
[19]Reasons at 8 – 9.
Despite finding that the temporary symptoms of aggravation had resolved, the Panel proceeded to conduct an impairment assessment of what it described as the accepted aggravation of the pre-existing asthma injury. The Panel stated that it assessed the impairment of the plaintiff’s aggravation of pre-existing asthma in accordance with the Occupational Asthma Guidelines as required by s 91 of the Act,[20] and by doing so assessed the plaintiff as having a ‘low range Class 4 Respiratory Impairment’ resulting in whole personal impairment of 30%.[21] In reaching this finding, the Panel considered ‘that the [plaintiff’s] aggravation of occupational asthma has had an opportunity to stabilise’,[22] indicating that the Panel believed the aggravation still existed.
[20]Ibid at 14.
[21]Ibid at 15.
[22]Ibid at 14.
The Panel went on to find that the impairment from the plaintiff’s pre-existing impairment of respiratory function was playing a part in the plaintiff’s current occupational asthma impairment and consequently, ‘that there is impairment from an unrelated constitutional factor which is playing a part in the [plaintiff’s] current occupational asthma impairment and which ought to be disregarded in accordance with s 91(7)(c) of the Act’.[23]
[23]Reasons at 16.
The Panel assessed that a whole person impairment of 30% according to the Table for Impairment Assessment in the Occupational Asthma Guidelines was attributable to the plaintiff’s pre-existing constitutional asthma. The Panel then proceeded to subtract what it had determined to be impairment from pre-existing constitutional asthma, the 30% whole person impairment, from what it stated was the current whole person impairment of 30%, to reach a whole person impairment of 0% attributable to the accepted aggravation of pre-existing asthma injury.[24]
[24]Ibid.
The Panel stated that it assessed the plaintiff’s impairment resulting from the ILS injury in accordance with:
Section 9.3d of Chapter Nine of the [AMA] Guides, and followed the specific instructions and examining procedure prescribed on page 9/232 of the [AMA] Guides and testing the [plaintiff’s] speech in accordance with Table 8 of Chapter Nine.
The Panel then used the Speech Impairment criteria by referring to Table 7 of Chapter Nine and assessed a low grade, mild to moderate Class 3 Impairment, for Audibility, Intelligibility and Functional Efficiency and assessed a speech impairment of 40%, which is equivalent to a 14% whole person impairment pursuant to Table 9 of the Chapter Nine.[25]
[25]Ibid.
The issues
The Panel’s impairment assessment of the occupational asthma as outlined above involved the Panel taking the following steps:
(a) first, an assessment of the plaintiff’s whole person impairment of 30% pursuant to the Occupational Asthma Guidelines and the Impairment Assessment Guidelines for Occupational Asthma;[26]
(b) second, an assessment of the plaintiff’s pre-existing constitutional asthma of 30% pursuant to the Occupational Asthma Guidelines;[27] and
(c) finally, a deduction of the 30% pre-existing constitutional asthma impairment from the 30% whole person impairment in accordance with s 91(7)(c), meaning the Panel found the plaintiff was suffering ‘0% whole person impairment’ as a result of the occupational asthma.[28]
[26]Reasons at 15.
[27]Ibid at 16.
[28]Ibid.
Dr K.P. Hanscombe SC, senior counsel for the plaintiff, submits the Panel’s Reasons disclose fundamental inconsistencies between the Panel’s findings concerning aggravation of the plaintiff’s pre-existing asthma as a consequence of the Incident.
Counsel for the plaintiff further submits that the Panel inappropriately assessed the plaintiff’s pre-existing asthma using the Occupational Asthma Guidelines; it is contended such assessment should be conducted by way of the AMA Guides.
The plaintiff also contends that the Panel failed to assess respiratory symptoms caused by ILS, an accepted injury. This assessment, the plaintiff submits, should have been conducted using Chapter 5 of the Guides titled ‘The Respiratory System’.
Inconsistency
I have set out the Panel’s assessment and conclusions in detail above. What are the contradictory findings – after consideration of the plaintiff’s account of the Incident, her medical history including reports of treating specialists and the Panel’s own examinations, the Panel concluded that the plaintiff is not suffering from any medical condition of the lungs or respiratory system as a consequence of the accepted aggravation of her pre-existing asthma condition. In the Panel’s words, the Incident ‘led to temporary exacerbations of her asthma, and these exacerbations have now resolved and her present symptoms are entirely laryngeal in origin’.[29] Later in the Reasons, the Panel stated that it had conducted ‘an impairment assessment of the accepted aggravation of the pre-existing asthma injury’.[30] The Panel concluded the plaintiff had a whole person impairment of 30% ‘based on the results of pulmonary function studies and the Table of the Impairment Assessment Guidelines for Occupational Asthma’.[31] In reaching that conclusion, the Panel found ‘that the [plaintiff’s] aggravation of occupational asthma has had an opportunity to stabilise’.[32]
[29]Ibid at 9.
[30]Reasons at 14.
[31]Ibid at 15.
[32]Ibid at 14.
These two conclusions are an inherent contradiction of one another.
The Panel then set out its approach to s 91(7)(c) of the Act. The Panel took into account the plaintiff’s ‘history and referral material to determine the level of impairment that may have been present prior to and/or after the accepted aggravation … which the Panel ought to disregard’.[33] The Panel then concluded ‘that there is an impairment from an unrelated constitutional factor which is playing a part in the [plaintiff’s] current Occupational Asthma Impairment which ought to be disregarded in accordance with s 91(7)(c) of the Act’ (emphasis added).[34] This finding of the Panel further contradicts its earlier opinion in the sense that the finding recognises a pre-existing impairment ‘playing a part’ with the aggravation of the asthma impairment.
[33]Ibid at 15.
[34]Ibid at 16.
The Panel assessed precisely the same percentage impairment for pre-existing impairment as it had for the accepted aggravation. The Panel, in its Reasons, stated that for the purpose of making both assessments it used the Occupational Asthma Guidelines.
The Panel then reached a conclusion that the plaintiff suffered from 0% whole person impairment attributable to the aggravation of the pre-existing asthma injury. The modus operandi of the Panel was to ‘subtract’ ‘the pre-existing impairment’ of 30% from the ‘current impairment’ of 30%.[35]
[35]Reasons at 16.
Nowhere in its Reasons does the Panel explain how it determined the Incident has resulted in an aggravation of the pre-existing asthma injury of 30% whole person impairment against the Panel’s earlier finding that the plaintiff is not suffering from any condition of the lungs or respiratory system relevant to the accepted aggravation of the pre-existing asthma injury.
Mr M.F. Fleming SC, senior counsel for the first defendant, during the course of submissions could only speculate as to the reasoning and processes of the Panel. He attempted to explain the conduct of the Panel as follows:
The curiosity, of course, is to have them using these Guidelines at all, even though their very clear finding was that there was no more any impairment at all to be assessed that was occupationally caused, but we say it is the irresistible inference from what they’ve done is that they felt obliged to go about this task in this way to derive a percentage as though it were occupational asthma, even though they knew it wasn’t, they’d determined that any impairment they found had to be associated with the pre-existing condition, and then pedantically saying, “And look here, we’ve subtracted it off”, in a sense exposing the reasoning process, as I say rather pedantically carried through, but coming up with the answer that they had to come up with having regard to their central finding.[36]
[36]Transcript at 40.11 – 40.24.
Later in submissions, Mr Fleming referred to the Panel’s use of the Occupational Asthma Guidelines in the assessment of pre-existing asthma. He stated:
The curiosity in all of this is, as our friend fastens upon it, it is for the Panel to be seen to use guidelines for the assessment of pre-existing constitutional asthma when you’re using guidelines that are meant to be used for occupational asthma only and there is a curiosity, obviously there is, but the curiosity stems from having to use the Guidelines in the first place having regard to their asthma finding, that there is currently – even though there had been an aggravation which would have been impairing, it has now passed and there is nothing now left, there is no current permanent impairment for them to assess, so they look at…
…
They could have simply said, “We don’t need to go on any further, we don’t need to go even into the guideline process because there is no present permanent impairment occupationally caused to assess and so we don’t need to go into the guidelines”. But evidently, they were fearful that it might be said they hadn’t done what s 91(6A) told them to do, which is when you’re assessing for the purposes of occupational asthma, you have to use the guidelines.
So their technique, as we see it, was to say “Alright, we’ll use the Guidelines, just as long as you understand what we’re doing. We’re using the Guidelines for the purpose of telling you what the impairment would have been if this was occupational asthma, but then because it is all constitutional, it all has to be subtracted off”, and that’s what they’ve really done.[37]
[37]Transcript at 47.22 – 48.29.
These submissions may explain the conduct of the Panel, but equally they may not. The Panel did not provide such any such explanation in its Reasons. The Reasons at face value present unexplained inconsistent findings concerning aggravation of the plaintiff’s pre-existing asthma.
The first defendant submits I should accept the ‘diagnostic opinion’ and that it was unnecessary for the Panel to proceed to an impairment assessment of the aggravation.[38] This, again, may be a correct explanation of the Panel’s conduct and it may be that the Panel undertook an unnecessary impairment assessment; it is not for me to speculate as to the motivation of the Panel. However, it can be said that if the Panel was conducting an impairment assessment for a reason other than it believed such an assessment ought to have been performed, then it should have explained why it did so. The Panel states in its Reasons that it conducted an assessment whole person impairment ‘based on the accepted aggravation of pre-existing asthma injury’.[39] If the Panel really meant in the words of Mr Fleming ‘All right, we’ll use the Guidelines, just so long as you understand what we are doing; we’re using the Guidelines for the purpose of telling you what the impairment would have been if this was occupational asthma, but then because it is all constitutional, it all has to be subtracted off’, then it was incumbent on the Panel to explain itself in those terms. The failure of the Panel to provide an explanation for its contradictory findings leads to the Reasons being flawed, and results in the path of reasoning being impossible to follow and unintelligible.
[38]Ibid at 56.24 - 56.30.
[39]Reasons at 14.
It was argued by the first defendant that I should give the Panel’s Reasons a beneficial construction. I was referred to Gamble v Emerald Hill Electrical Pty Ltd[40] in support of the proposition that ‘there is no scope on judicial review for a reconsideration of the merits of the decision under review’, but the court should be cognisant of ‘the practical restraints on judicial review’, that the reasons of a medical panel should not be construed ‘minutely and finely with an eye keenly attuned to the perception of error’.[41] Mr Fleming also referred me to Minister for Immigration and Ethnic Affairs v Wu Shan Liang[42] where it was observed that ‘reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[43]
[40](2012) 38 VR 45.
[41]Ibid at 48 (Maxwell P and Cavanough AJA).
[42](1996) 185 CLR 259.
[43]Ibid at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The Reasons in the matter before me do not require an eye keenly attuned to the perception of error to understand that there is an unexplained contradiction in the reasoning of the Panel that is fundamental to the issue the Panel was requested to determine. The Panel has not explained its ‘actual path of reasoning’ in a manner that enables an understanding of its contradictory findings.[44] In my opinion, on this ground alone the finding of the Panel should be quashed and the medical questions be remitted to a medical panel differently constituted.
[44]Wingfoot Australia Partners Pty Ltd & Kocak (‘Wingfoot’) (2013) 303 ALR 64 at 79.
As a consequences of my opinion that the finding of the Panel be quashed it is unnecessary to consider the further grounds advanced by the plaintiff. However, as the matters were the subject of argument before me I will briefly consider each point.
Inappropriate assessment
The plaintiff contends that the Panel was not entitled to assess the pre-existing constitutional asthma impairment using the Occupational Asthma Guidelines.[45]
[45]Transcript at 18.27 – 18.31.
As stated above, the Occupational Asthma Guidelines are to be used for assessing the degree of occupational asthma impairment.[46] Occupational asthma has the meaning given by the Occupational Asthma Guidelines.[47] The Occupational Asthma Guidelines define occupational asthma as follows:
Occupational asthma is a disease characterised by variable airflow limitation and/or airway hyper-responsiveness due to causes and conditions attributable to a particular occupational environment.[48]
[46]The Act s 91(6A)(a).
[47]Ibid s 91(6A)(b).
[48]‘Impairment Assessment in Workers with Occupational Asthma’, Victorian Government Gazette, No G 30, 27 July 2006, 1581.
It is apparent that the Occupational Asthma Guidelines are to be used to assess asthma caused by conditions of an occupational environment. The Occupational Asthma Guidelines in fact distinguish between ‘asthma’ and ‘occupational asthma’.
Section 91(1) of the Act requires the AMA Guides to be used for assessing impairment under the Act unless a specific provision provides otherwise. Section 91(6A) of that Act applies relevantly to occupational asthma. In my opinion the Panel should have assessed the constitutional element of the plaintiff’s asthma according to Chapter 5 of the AMA Guides.
During the course of submissions, Mr Fleming conceded that the Occupational Asthma Guidelines ‘are meant to be used for occupational asthma only’.[49] The concession is properly made. The Panel erred in assessing the impairment of the plaintiff’s pre-existing asthma injury pursuant to the Occupational Asthma Guidelines.[50]
[49]Transcript at 47.23 – 47.26.
[50]Reasons at 15.
Respiratory symptoms and irritable larynx syndrome
The plaintiff submits that the Panel was required to assess impairment arising from respiratory symptoms associated with ILS according to Chapter 5 of the AMA Guides (the Respiratory System). The Panel assessed impairment for ILS using Chapter 9.3(d) of the AMA Guides (Speech) and the procedures and tables referred to and assessed a 14% whole person impairment using Table 9 of Chapter 9.
The Panel in its Reasons referred to an examination of the plaintiff’s ear, nose and throat, of the plaintiff’s speech and the conducting of a speech test, and a physical examination of the plaintiff’s respiratory system.[51] The Panel referred to the plaintiff’s medical history, clinical notes of her local doctors and reports of treating specialists, including Dr R. Hoy, respiratory physician, and his opinion that the laryngeal dysfunction was a non-organic condition.[52] The conclusion of the Panel was as follows:
The Panel concluded that the [plaintiff] is suffering from laryngeal spasm with muscle tension dysphonia and impaired speech, relevant to the accepted irritable larynx syndrome injury.[53]
[51]Reasons at 7.
[52]Ibid at 7 and 8.
[53]Ibid at 8.
Dr Hanscombe submits that in the history that the plaintiff had provided to the Panel she had described breathing trouble as ‘the inability to inhale air in or to breathe out’. I was referred to a research paper by respiratory physician Dr Hoy which had been provided to the Panel. The paper titled ‘Work-related laryngeal syndromes’ specifically raises the prospect of laryngeal dysfunction co-existing with symptoms of asthma.
Dr Hoy, as the Panel observed, described the plaintiff’s laryngeal condition as a ‘consistently severe non organic laryngeal dysfunction’.[54] Dr Hoy also reported that the severity of the condition ‘laryngeal dysfunction (vocal cord dysfunction)…cannot be assessed by respiratory function tests’.[55]
[54]Hoy Report dated 21 December 2012.
[55]Hoy Report dated 14 March 2013.
The Panel conducted an assessment of the plaintiff’s asthmatic condition and a separate assessment of the plaintiff’s ILS condition. An assessment of a ‘non-organic’ laryngeal condition does not in my opinion require any specialised assessment of the asthmatic condition even if co-existing with ILS at the time of assessment. The Panel was entitled to assess each condition independently. On my reading of the materials provided to the Panel this is the way each condition has been evaluated and treated by the plaintiff’s medical practitioners.
Remitter to original or differently constituted medical panel
The question now arises as to whether the matter be remitted to the original Panel for further or better reasons, or to a differently constituted medical panel for a fresh determination of the medical questions entirely. As stated above, the plaintiff seeks the medical questions be remitted to a differently constituted medical panel. The first defendant did not provide any submissions on the issue.
The following principle of Ormiston J in Body Corporate Strata Plan (no 4166) & Ors v Stirling Properties Limited (‘Body Corporate’)[56] is oft cited in this regard: where no reasons are provided then it may be appropriate to refer the matter back to the Panel for delivery of adequate reasons, however where the reasons are partly defective in the sense that ‘not all issues have been dealt with’ an order compelling delivery of further or better reasons has an ‘air of unreality’. Such an order would merely give the Panel an opportunity to patch up what has shown to be defective in circumstances where it is more than likely that the Panel overlooked the issue altogether, or ‘reconstruct its reasoning to meet the defects’ identified.[57]
[56][1984] VR 903 at 912.
[57]See also summaries of that principle in Davidson v Fish & Ors [2008] VSC 32 at [16] – [21] (Pagone J); Clarke v National Mutual Life Insurance & Ors [2007] VSC 341 at 70 (J. Forrest J).
Where a decision has been set aside for error, it is generally considered fairer to the parties that the matter be heard and decided again by a differently constituted tribunal.[58] In the circumstances of this matter it is my opinion that this course is preferable.
[58]Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39. See also Nabbs v Handrinos [2013] VSC 419 at [40] (Beach J), citing with approval in the context of a medical panel.
Conclusion
For the above reasons, I order that the Panel’s Opinion be quashed and that the medical questions be remitted to a differently constituted medical panel. I will hear the parties concerning any other necessary additional orders.
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