St Joseph's Regional College v Longham

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00553

ST JOSPEPH'S REGIONAL COLLEGE	Plaintiff
v
STEPHEN LONGHAM (and others according to the Schedule attached)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2017
DATE OF JUDGMENT:	27 October 2017
CASE MAY BE CITED AS:	St Joseph's Regional College v Longham & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 657

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JUDICIAL REVIEW — Workplace injury — Medical Panel — Whether jurisdictional errors -Relevant considerations — Psychiatric condition — Medical Panel determining no psychiatric condition — Second Panel determining presence of psychiatric condition — Whether second Panel took into account first Panel’s opinion — Adequacy of reasons — Proceeding dismissed — Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 313.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M F Fleming QC with Ms F C Spencer	Minter Ellison
For the First Defendant	Mr T P Tobin SC with Mr C Griffin	Zaparas Lawyers

SCHEDULE OF PARTIES

S CI 2017 00553
BETWEEN:
ST JOSEPH'S REGIONAL COLLEGE	Plaintiff
- and -
STEPHEN LONGHAM	First Defendant
ASSOCIATE PROFESSOR RICHARD STARK	Second Defendant
DR CHRISTINE LE	Third Defendant
DR SANDRA HACKER	Fourth Defendant
DR SUSAN BRANN	Fifth Defendant
MYRON ROGERS	Sixth Defendant

HIS HONOUR:

Introduction

This is a judicial review challenge to a Medical Panel opinion. The plaintiff, who was the first defendant’s employer, seeks an order in the nature of certiorari quashing the certified opinion of the second to sixth defendants (‘the second Panel’) dated 19 December 2016 and an order remitting the questions before the second Panel for reconsideration by a differently constituted Medical Panel.

The plaintiff is a secondary college (‘the College’) at which the first defendant, Mr Stephen Longham, taught for 22 years until 2010.

The grounds of the judicial review challenge are that the second Panel did not have regard to a previous Medical Panel opinion, including the results of cognitive testing undertaken by that Panel concerning Mr Longham and that the second Panel did not give adequate reasons for its opinion.

In my opinion, those grounds have not been established.

Legislation

Part 6, Division 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’) provides for the functions, procedures and powers of medical panel constituted under the Act. Section 313 of the WIRC Act provides:

313 Opinions
(1) Subject to section 312, a Medical Panel must form its opinion on a medical question referred to it—
(a) within 60 days after the Medical Panel receives from the Convenor the documents relating to the medical question; or
(b) within such longer period as is agreed by ACCS, a court, VCAT, the Authority or the 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 7 days after forming its opinion on a medical question referred to it, a Medical Panel must give ACCS, the court, VCAT or the Authority or the 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—
(a) is to be adopted and applied by any court, body or person; and
(b) 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.

Section 313(2) of the WIRC Act is in identical terms to s 68(2) of the Accident Compensation Act 1985, now repealed, to which most of the case law in this area refers. Pursuant to s 4(5) of the Accident Compensation Act 1985, and s 622(1) of the WIRC Act, the two Acts are to be read and construed as one.

The accident and its aftermath

Mr Longham, who is aged 56, commenced working as a full-time secondary school teacher and sports master for the College in 1988. On 1 November 2000, Mr Longham was injured after falling from his bicycle during the course of his employment while supervising a school camp at Murrindindi. He suffered a vertebra fracture and other injuries. He was in hospital for some weeks and had to wear a halo-thoracic brace.

On 3 November 2000, Mr Longham submitted a Worker’s Claim for Compensation Form for injuries to his neck, shoulders, back and spine as a result of the fall. Liability for Mr Longham’s claim was accepted, and he received weekly payments and medical and like expenses in relation to those injuries, which included psychiatric injuries.

Mr Longham returned to teaching at the College in early 2001, and remained working there as a teacher until July 2010. He worked on more limited hours and duties until 2010 when he ceased employment completely. His salary continued to be paid by the College until October 2013.

End of the weekly payments

On 9 September 2013, Mr Longham was notified that his weekly payments would cease the following month. He commenced proceedings in the Magistrates’ Court disputing the termination of his payments and his entitlements to compensation as outlined in the notice.

The first Panel referral

On 21 August 2015, a Magistrate referred the matter to a Medical Panel (‘the first Panel’) asking it to determine various medical questions arising from the proceeding. The first Panel’s opinion dated 8 January 2016 concluded that:

(a) Mr Longham’s employment with the College was a significant contributing factor to a fracture of the lamina of the C6 vertebra, which had now healed;

(b) Mr Longham was not suffering from any physical or mental condition which resulted from or was materially contributed to by the alleged injury; and

(c) Mr Longham had ‘no present inability arising from an injury such that he is not able to return to his pre-injury employment’.

The serious injury application

In the interim, on 27 January 2015, Mr Longham issued an application under s 134AB of the Accident Compensation Act 1985 for a ‘Serious Injury Certificate’. The injuries listed were ‘head injury or neck injury or permanent severe mental behavioural disturbance or disorder’.

On 1 October 2015, Mr Longham’s application for a Serious Injury Certificate was refused. On 8 October 2015, Mr Longham filed an originating motion in the County Court seeking leave to commence proceedings to recover damages for pain and suffering and loss of earning capacity.

The second Panel referral

On 16 June 2016, the County Court referred medical questions concerning Mr Longham to a Medical Panel (‘the second Panel’). On 19 December 2016, the second Panel released its certified opinion, which differed substantially from the first Panel in its conclusions about Mr Longham’s physical injuries, capacity to work and psychiatric condition.

Medical evidence

Both Panels had extensive medical evidence before them and conducted their own examinations of Mr Longham. The first Panel described some of the medical evidence as follows:

The Panel noted significant inconsistencies in the history that the [first defendant] provided to the Panel, and that he had provided to other Independent Medical Examiners in the past, noting that:
Dr Robert Hjorth (neurologist), in his reports dated 24 June 2013 and 30 July 2013, referred to contradictions in the presentation.
Professor Simon Crowe (Neuropsychologist), in his report dated 6 September 2014, identified a general poor performance on cognitive assessment, but concluded that this was not consistent with traumatic brain injury.

The Panel also referred to the reports of independent psychiatric examiners: Dr M J Nathar of 30 March 2015, Dr Tim Entwisle of 26 March 2011 and 19 August 2013 and Dr Paul Kornan 24 July 2014 and 11 September 2014, and noted their respective diagnoses of Major Depression with a chronic pain disorder, Adjustment Disorder with depressed mood and a pain disorder and Adjustment Disorder with anxiety and depression and a pain disorder had been made.
Based on its own assessment, and its collective expertise and experience, the Panel formed the opinion that the [first defendant] had no current clinical evidence of any psychiatric disorder.

The medical evidence before the second Panel included the following of particular relevance.

There were reports from Dr Stephen Ward, who was Mr Longham’s general practitioner at the time of the accident. His reports recorded that Mr Longham had suffered significant headaches after the accident and in subsequent years the development of depression.

Dr Carole Beaumont, who was Mr Longham’s subsequent GP and who considered that his prognosis was extremely poor. She mentioned that he had experienced major depression, migraines, chronic pain and disability with respect to cognition as well as the physical aspects of life.

Dr Malcolm Brown, occupational physician, provided a report dated 20 May 2013, in which he concluded that any physical condition of Mr Longham had long since ceased and that all his stated physical symptoms had a psychosomatic basis and that his diabetes and hypertension were unrelated to his employment.

Dr Robert Hjorth, a consultant neurologist, in a report of 24 June 2013, referred to suggestions of a psychological component to Mr Longham’s symptoms and that he had developed fugue states in which he lost contacts with things. He stated that Mr Longham’s account of condition contradicted accounts that recorded by other doctors. He concluded that the uncertainty as to the diagnosis of Mr Longham’s fugue-like states and blackouts made it hard to be confident of the disability. In a supplementary report of 30 July 2013, Dr Hjorth stated:

A central diagnostic problem here is of the ‘Fugue’ state. It’s possible that they are of psychiatric origin but otherwise one would have to consider the possibility of some kind of epilepsy or transient ischemic attack or even cardiac arrhythmia. Either way, if one accepts the history of Fugue states on face value, they are serious and require investigation.

Dr Timothy Entwisle, a consultant psychiatrist, in a 2013 assessment, stated ‘it was difficult to determine his psychiatric diagnosis’ but felt that Mr Longham could be deemed as having features of an adjustment disorder and that there were indications that he may well have suffered some form of psychotic breakdown. He considered that Mr Longham was unable to provide a cogent history in this regard. However, he considered that Mr Longham did not have a work capacity of any type and said that his life was in disarray.

Dr Paul Kornan, a consultant psychiatrist, provided an independent medical examination on 24 July 2014 and concluded that Mr Longham presented with an adjustment disorder with mixed anxiety and depressed mood and a pain disorder associated with psychological factors.

Professor Simon Crowe, a consulting neuropsychologist, prepared a report on 6 September 2014. As his report was particularly relied on by the College, I will describe its contents in some detail. Professor Crowe conducted tests on Mr Longham relating to intellectual functioning, including estimates of pre-injury function, memory function, tests that related to performance validity, language functioning, and visuoperceptual and visuomotor functions and executive functioning and personality assessment.

Professor Crowe completed a number of tests of performance validity to ascertain that Mr Longham was making his best efforts on the assessment. These included a test of memory malingering. Mr Longham correctly recognised 31 of the 50 items on the first trial and 35 of the 50 items on the second trial. The relevant manual indicated that any performance of less than 45 of 50 items correct on the second trial of the task was consistent with less than genuine effort by Mr Longham. He also performed at the tenth percentile or lower in each case for the overall clinical sample base rates which again indicated that Mr Longham had made a less than genuine effort.

Professor Crowe stated that Mr Longham’s performances on tests were not consistent with what would be expected from a mild traumatic brain injury some 13 years previously and some or all of the deficits observed were due to his less than genuine efforts. However, it is important to note that Professor Crowe described Mr Longham’s return to work after the accident as follows:

It would appear that over the period shortly thereafter he recovered sufficiently to be able to return to work in the role of secondary school teacher for some 10 years but subsequently deteriorated in an unknown way, which was associated with fugue states as well as what he described as black outs.

It is unclear whether Professor Crowe had read Mr Fazzino’s statement which described the gradual decline in Mr Longham’s work performance, to which I refer later.

Professor Crowe stated that:

On a comprehensive neuropsychological assessment in the present [Mr Longham] demonstrates profound deterioration in the present consistent with the notion of significant compromise of perceptual reasoning, working memory and particularly processing speed, a significant deficit of auditory verbal and visuospatial memory, both immediately and delayed, compromise of language function insofar as he is currently performing at the level of a second grader with regard to his spelling function and deterioration in terms of his reading. In association with this showing profound compromise of psychomotor function both visual tracking and fine motor coordination of both his left and right hand. These exist in association with less than genuine effort on three or four tests of symptom validity administered to him indicating that some or all of the deficits observed are not genuine in nature. Surprisingly, he performs in an adequate way on some tests particularly sensitive to the effects of traumatic brain injury including the Trail Making Test Part B and also the Wisconsin Card Sorting Test indicating that some or all of the deficits are not genuine. In association with this he endorses inconsistent performances on tests of self-reported psychopathology with a tendency to high levels of both positive and negative impression management and some aspects of performance consistent with the notion of depression and anxiety in the present.

Professor Crowe considered that it was very difficult to pin down the cause of Mr Longham’s deterioration. He considered that the nature of his fugue states and the fact that he was being treated with Tegretol raised some concerns that there may be some epileptiform activity which might warrant further investigation. He considered it prudent to ascertain the nature of these psychotic episodes. He stated that it was possible that Mr Longham had some intercurrent process which had developed subsequent to the injury, which had culminated in his significant deterioration. However, that was not to gainsay that some or all of the deficits noted were not genuine in nature due to Mr Longham’s less than genuine efforts to perform to the best of his ability on performance validity tests.

Dr M Nathar, a consultant psychiatrist, in an independent psychiatric assessment of 24 March 2015 considered that there was sufficient evidence to diagnose that Mr Longham suffered from a major depressive illness with symptoms of anxiety as well as a chronic pain disorder involving psychological factors and general medical conditions, both of them were of moderate severity. Mr Longham had described the presence of what was probably ‘a Dissociative Fugue State’. He said that a differential diagnosis would be of malingering, but that he as a psychiatrist, was not ‘an arbiter of truth’. He concluded that:

taking his history at face value and taking into account the overall global history and development of his problems then it is more probable that his symptoms are psychological in origin and not consciously exaggerated or produced.

In an assessment of 16 June 2016, Dr Nathar confirmed his previous opinion and concluded that Mr Longham’s prognosis was poor and that he was totally incapacitated for pre-injury and alternative work duties permanently. Dr Nathar specifically referred to the neuropsychological testing carried out by Professor Crowe and said:

his assertion that some or all of the deficits observed were not genuine in nature. Whilst this may be the case, and I have no way of determining the degree of genuineness as against non-genuineness of his complaints, it is also possible to explain the variation and somewhat inconsistent outcome of his neuropsychological tests basis on the basis that he may not well be trying very hard at various times; after all this has been clearly part and parcel of his psychiatric symptomatology and highlighting his coping difficulties where he seemed to me as if he has lost interest, lost drive and motivation and had taken a ‘could not care less attitude’, which would be consistent as being part and parcel of his depressive illness.

Mr Thomas Kossmann, an orthopaedic surgeon, in a report of 29 April 2016, considered that Mr Longham suffered from significant restriction of movement in his cervical spine and also in both of his upper extremities. He appeared to be severely handicapped by the high-pitched ringing in his ears, his poor balance, weakness and poor memory. Owing to these significant injuries, Mr Kossmann recommended further investigations of Mr Longham by a neurologist and neuropsychologist. He concluded that due to Mr Longham’s poor recovery from his injuries and his poor prognosis that he was totally incapacitated for pre-injury and alternative duties permanently.

Dr Nathan Serry, a consultant psychiatrist, made an independent psychiatric examination in respect of the WorkCover claim. In his report of 12 September 2016, that was not before the first Panel, he concluded:

Like a number of others who have examined your client, I feel that making an accurate psychiatric diagnosis is rather complicated in your client’s case.
My best estimate is that he has suffered a complex adjustment reaction to his work-related injury with an admixture of mood and anxiety features as well as the development of a dissociative disorder in the form of recurring episodes of fugue.
I think it would be reasonable to suggest that a diagnosis of an unspecified dissociative disorder be applied along with that of a chronic adjustment disorder with mixed features including depressed mood, anxious features with episodes of panic and with disturbance of conduct.

Statement of Deputy Principal Fazzino

At this point, it is appropriate to refer to the statement by Mr John Fazzino, Deputy Principal of the College, made on 28 October 2010, about Mr Longham’s deterioration in work performance. Mr Fazzino had been a staff member at the College since January 2002 by which time Mr Longham had returned to work after the injury. Mr Longham’s workload was decreased to assist his return to work with his initial timetable was about half the ordinary workload of a teacher. He also performed yard duties, class preparation and marking of assignments. Mr Longham used a cane to assist his walking for a number of years.

Mr Fazzino stated that Mr Longham had ongoing issues in performing his duties. He took medication which caused swelling, sweating, slow movements and he struggled in sleeping. Accordingly, commencing in 2009, Mr Longham no longer taught the first school period, which meant that he could arrive at school late if he had struggled to sleep overnight.

Mr Longham taught thirteen standard classes each week and had supervisory duties for seventeen other classes. He also supervised the daily lunch time detention four days per week. On occasions, he fainted or took a turn at school, but later returned to his duties. He also suffered from short term memory loss, which Mr Fazzino believed was a direct result of the initial injury, and which resulted in the need to prompt him about some events that were not part of his regular routine.

In 2010, Mr Longham’s ability to continue his duties gradually declined. He appeared to be constantly bloated due to his medication and increasingly to struggle. He told Mr Fazzino that the time would come when he would be unable to continue working and that because of the medication and his lack of sleep, he was struggling. Eventually, Mr Longham told him that he was not coming into work and that his doctor had given him further time off. Later still, Mr Longham told the College that he was not able to teach for the rest of the year and that in his doctor’s opinion he might never be able to return to work. Mr Fazzino thought Mr Longham was too young for that outcome and perhaps needed a second opinion. However, he did not doubt Mr Longham’s ongoing issues and inability to continue working and said that Mr Longham had never tried to use his condition to his advantage. Rather, it had been the College that recommended his timetable changes and expressed concerns about his health. If Mr Longham had continued to deteriorate, at some point the College would have had to consider whether his continued employment was viable. The College made him a part time work offer, but he said that he could not afford to reduce his working hours.

The first Medical Panel’s opinion

The first Medical Panel included an endocrinologist, a neurologist, a neuro psychiatrist, a gastroenterologist, a cardiologist, a psychiatrist, an orthopaedic surgeon and a rehabilitation and general physician.

The questions referred to the first Panel and its answers were:

Question 1
What is the nature of the [first defendant’s] medical condition relevant to the following alleged injuries:
(a)       fracture to the cervical spine
(b)       injury to the head
(c)       injury to the back
(d)      injury to the leg
(e)       injury to the arms
(f)       injury to the stomach
(g)       damage to eyesight
(h)      memory loss
(i)        blood pressure/hypertension
(j)        diabetes
(k)       psychiatric condition
(‘the alleged injuries’)

Answer
In the Panel’s opinion the [first defendant] has a now healed fracture of the lamina of the C6 vertebra, no current conditions of the head, back, leg, arms, stomach or eyes, and no currently identifiable memory loss or psychiatric condition relevant to the alleged injuries.
The Panel also concluded that the [first defendant] has hypertension and diabetes, but concluded that both of these conditions are constitutional in origin and not attributable to the alleged injuries.
Question 2
Was the [first defendant]’s employment with the [plaintiff] in fact, or could it possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation and/or deterioration of any and if so which of the alleged injuries?
Answer
In the Panel’s opinion [the first defendant]’s employment with the defendant was in fact a significant contributing factor to a fracture of the lamina of the C6 vertebra, which has now healed.
In the Panel’s opinion the [first defendant]’s employment could not possibly have been and was not in fact a significant contributing factor to any other alleged injury or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any alleged pre-existing injury or disease, in any way.
Question 3
What is the extent to which any physical or mental condition results from or is materially contributed to by the alleged injuries?
Answer
In the Panel’s opinion the [first defendant] is not now suffering from any physical or mental condition which results from or is materially contributed to by any alleged injury.
Question 4
In the period 24 October 2014 to date, did the [first defendant] have:
(a) a ‘current work capacity’
(b) ‘no current work capacity’

Answer
In the Panel’s opinion the [first defendant] had no present inability arising from an injury such that he was not able return to his pre-injury employment in the period 24 October 2014 to date.
Question 5
Does the [first defendant] currently have:
(a) a ‘current work capacity’
(b) ‘no current work capacity’

In the Panel’s opinion the [first defendant] has no present inability arising from an injury such that he is not able return to his pre-injury employment.
Question 6
Does the [first defendant’s] incapacity (if any) result from or is it materially contributed to by any and if so which of the alleged injuries?
Answer
Not applicable
Question 7
If ‘yes’ to question 5(b), is the incapacity likely to continue indefinitely?
Answer
Not applicable
Question 8
Are the following medical services appropriate treatments for the alleged injuries, and if so with what frequency should they take place?
(a)       Panadeine forte
(b)       Tenormin
(c)       Zoloft
(d)      Coversyl
(e)       Medication for diabetes
(f)       Diazepam
(g)       Physiotherapy
(h)      Chiropractic treatment
(i)        Massage

Answer
Not applicable

The first medical Panel’s reasons

The first Panel’s reasons of 8 January 2016, considered Mr Longham’s capacity for movement and concluded that he was feigning illness and physical abnormalities, which it later described as ‘malingering’. It stated:

On objective examination there was some limitation of movement in all directions but the Panel noted that during the consultation, and while getting dressed, he displayed a normal range of flexion and extension of his spine and considered that part of the reduced range of motion is due to the [first defendant]’s abnormal illness behaviour, not due to physical factors.

The first Panel also considered that although using a walking stick, Mr Longham walked without any obvious unsteadiness and in respect of his neck and spinal motion stated:

The Panel… considered that the findings on examination did not reflect his true capacity.

In relation to Mr Longham’s psychiatric disorder, the first Panel undertook a cognitive assessment and recorded twelve features of those tests It stated:

The Panel concluded that the tests detailed above reflected a contrived presentation of cognitive impairment, which the [first defendant] attributes to the injuries sustained on 1 November 2000. The Panel considered that further detailed neuropsychological assessment would be unlikely to yield a meaningful pattern. The Panel concluded that the worker has no current psychiatric condition relevant to the claimed injuries.
The Panel noted significant inconsistencies in the history that the [first defendant] had provided to the Panel and that he had provided to other Independent Medical Examiners in the past, noting that:
·Dr Robert Hjorth (neurologist), in his reports dated 24 June 2013 and 30 July 2013, referred to contradictions in the presentation.
·Professor Simon Crowe (neuropsychologist), in his report dated 6 September 2014, identified a general poor performance on cognitive assessment, but concluded that this was not consistent with traumatic brain injury.

…
Based on its own assessment, and its collective expertise and experience, the Panel formed the opinion that the [first defendant] had no current clinical evidence of any psychiatric disorder.
Based on its physical and psychiatric assessment of the [first defendant], the Panel thus formed the opinion that the [first defendant] is not now suffering from any physical or psychiatric condition which is attributable to the alleged injuries.
…
The Panel also noted from the correspondence from the senior teacher, cited above, that he had finally ceased employment because of the ‘episodes’ or fugue states described above, and other factors including fatigue, and unpunctuality.
While the Panel acknowledged the above, based on its own, current physical and psychiatric assessment of the [first defendant], the Panel concluded that the [first defendant] currently has no physical or psychiatric condition, arising from the alleged injuries that would render him incapable of returning to his pre-injury employment.

Summary of the first Panel’s reasons

In summary, the first panel concluded that:

(a) Mr Longham was not suffering from any physical or mental condition that resulted from or was materially contributed to by any alleged injury; and

(b) that he had no present inability arising from the injury that would prevent him from returning to his pre-injury employment.

The second Medical Panel’s opinion

The second Medical Panel included a neurologist, a rheumatologist, two psychiatrists and a neurosurgeon.

The questions referred to the second Panel and its answers were:

Question 1
As at the date of the Medical Panel examination, does the [first defendant] have any:
(a)       Medical condition of the head?
(b)       Medical condition of the neck?
(c)       Psychiatric Condition?

Answer
(a) no
(b) no
(c) In the Panel’s opinion, as at the date of the Medical Panel’s examination, the [first defendant] is suffering from a dissociative disorder not otherwise specified and dissociative fugues.

Question 2

If ‘yes’ to question 1(c), was the fall on 1 November 2000 in fact, or could it possibly have been, a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any psychiatric condition?
Answer
In the Panel’s opinion the [first defendant’s] psychiatric condition is not a recurrence, aggravation, acceleration, exacerbation, or deterioration of any psychiatric condition.
Question 3
Does any, and if so what physical or mental condition enquired of in Question 1 result from or is materially contributed to by the fall on 1 November 2000?
Answer
In the Panel’s opinion the [first defendant’s] dissociative disorder not otherwise specified (DDNOS) with dissociative fugue episodes results from and is materially contributed to by the fall on November 1, 2000.
Question 4
Is any, and if so what physical or mental condition enquired of in Question 1 permanent (i.e. likely to persist for the foreseeable future)?
Answer
In the Panel’s opinion the [first defendant’s] dissociative disorder not otherwise specified (DDNOS) with dissociative fugue episodes is permanent.
Question 5
Disregarding any psychiatric consequences of physical injury:
(a) does the [first defendant] have:
(i) a capacity to undertake his pre-injury employment?
(ii) a current work capacity?
(iii) no current work capacity?
(b)does any incapacity for work result from or is materially contributed to by any:
(i) medical condition of the neck?
(ii) medical condition of the head?
(c) if ‘yes’ to question 5(b) is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

Answer
(a)       (i)        Yes
(ii)       Yes
(iii)      No

(b) Not applicable
(c) Not applicable

Question 6
Taking into account only any psychiatric condition (including any physical consequences of the psychiatric condition):
(a)       does the [first defendant] have:
(i)        a capacity to undertake his pre-injury employment?
(ii)       a current work capacity?
(iii)      no current work capacity?
(b)does any incapacity for work result from or is materially contributed to by any psychiatric condition?
(c) if ‘yes’ to question 6(b) is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

Answer
(a)       (i)        No
(ii)       No
(iii)      Yes
(b)In the Panel’s opinion the [first defendant’s] incapacity for work results from and is materially contributed to by his psychiatric condition

(c) Yes

Question 7
If the [first defendant] is capable of performing suitable employment
(a) for how many days and hours per week can he perform this employment?
(b)what restrictions (if any) would be placed on the work that he can do?

Answer
Not applicable

The second Panel’s medical examination

The second Panel conducted a physical examination of Mr Longham; a neurological examination of his limbs; an examination of his cranial nerves; a cerebellar functioning test and a memory test. It found that his memory testing was normal. It also conducted a psychiatric examination that encompassed Mr Longham’s personal history from childhood. It confirmed with him that the accuracy of the history that he had given to the first Panel was accurate. However, unlike the first Panel, it decided that:

…the [first defendant]’s incapacity for work results from and is materially contributed to by the [first defendant’s] psychiatric condition.

The second Panel invites further submissions

Before reaching that conclusion however, the second Panel gave the College and Mr Longham a further opportunity to make submissions about its tentative findings. By letter dated 31 August 2016, the Convenor of Medical Panels wrote to them:

A Medical Panel examined the [first defendant] on 12 August 2016 and I am advised that while the Panel has not yet formed an opinion it considers that the worker is exhibiting dissociative symptoms and while these may be present in post-traumatic stress disorder the Panel considers that the [first defendant’s] current symptomatology may be better described as a dissociative disorder not otherwise specified with dissociative fugues.
As this has not been considered as a possible diagnosis in any of the material provided to the Panel and the parties to the proceeding have not had an opportunity to provide the Panel with any submissions on the possible existence or relevance of such a psychiatric condition, the Panel will delay forming an opinion for 21 days to allow the parties an opportunity to make submissions or to provide additional medical reports.
The Panel also advises that while the “Facts Which Have Been Agreed” statement indicates that the [first defendant] returned to work with the [plaintiff] in early 2001 and remained working as a full time secondary school teacher until July 2010, the history given by the [first defendant] to the Panel is of working limited duties and not performing at the same level he had prior to the 2001 accident.
The Panel has also asked for clarification or submissions from the parties in respect of the duties performed by the [first defendant] during 2001 to 2010 compared to the duties performed prior to 2001.

In response, the College submitted that any dissociative symptoms exhibited by Mr Longham were most likely attributable to the differential diagnosis of malingering. It also submitted that any genuine dissociative disorder from which he suffered had ‘no relationship to the transient physical injury that occurred in the fall at work almost 16 years ago’.

Mr Longham, in further submissions, disputed that he was consciously exaggerating his symptoms, or that he was intentionally presenting as more disabled than he was or had a greater work capacity than he asserted.

The second Panel’s reasons

The second Panel described Mr Longham’s history, including a childhood characterised by extreme violence. For instance, he told the second Panel that he had been thrown headfirst through a plate-glass window as a child.

In its reasons, the second Panel stated:

In the Panel’s opinion the [first defendant] is suffering from a dissociative disorder not otherwise specified and dissociative fugues. The Panel noted the dissociative symptoms presented for many years, including dissociative fugues and memory gaps, some of which indicated extreme behaviour such as the destruction within his home, the nature of the auditory hallucinations which are of a different quality to those seen in schizophrenia, the somatic symptoms including numbness and paralysis, and disorientation in both time and place. The Panel concluded, on the basis of its expertise and experience, that these symptoms and behaviours represented a known clinical picture and the complexity and comorbidity typical of dissociative disorder and not suggestive of malingering.
The Panel noted that the [first defendant] ceased work after the fugue episodes ensued.
The Panel noted the variety of psychiatric diagnoses obtained by the independent medical examiners, ranging from a psychotic disorder to a malingered amnestic condition and noted that the previous Panel considered that the [first defendant] had ‘a contrived presentation of cognitive impairment which the Panel attributes to the injury sustained on 1 November 2000’, and further that the ‘Panel concluded that the [first defendant] had no current psychiatric condition relevant to the claimed injuries’.
The Panel is of the view that the diagnoses of dissociative disorder not otherwise specified and dissociative fugues are an appropriate diagnoses and that the [first defendant] prior to the injury had a successful career and that following the injury the dissociative disorder gradually became manifest. The Panel noted that a past history of severe physical, emotional or sexual abuse is characteristic of the developmental history of people with dissociative disorders and that this history was not obtained in any detail in any previous examination.
The Panel understands a Medical Panel gives its opinion upon the questions that are referred to it. In accordance with the Court of Appeal decision of McVey v Smith [2014],[1] while it is open to a Medical Panel to have regard to an earlier Medical Panel opinion, it is not bound to apply any of its conclusions, and when forming its opinion the Panel must consider only the contemporaneous facts and examination findings of the current Medical Panel (citation added).

[1]McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293 (‘McVey’).

The second Panel further stated:

The Panel was also concerned that the aforementioned diagnosis may not have been reasonably anticipated and the Panel therefore requested further submissions from the parties before finalising its opinion. The Panel noted the [first defendant’s] further submissions which essentially relied on a report of Dr Nathan Serry dated 12 September 2016 …
The Panel carefully considered the [plaintiff’s] further submissions dated 2 September 2016. The Panel noted the [plaintiff’s] contention that when regard was had to all the available evidence, including the observations and opinions of the [first defendant’s] treating GP, treating psychiatrist and the previous Panel opinion, any symptoms are most likely attributable to the differential diagnosis of malingering. The Panel carefully considered the opinion of the Previous Panel and other reports referred to by the defendant in this regard but recognised that it is characteristic of the dissociative processes that the person presents different history and symptoms at different times. In the panel’s opinion and in the context of the full psychiatric picture, such different presentations do not suggest malingering or deliberate changes to any information provided. The Panel concluded therefore that the [first defendant’s] symptoms are not attributable to the differential diagnosis of malingering.
The Panel also noted the [plaintiff’s] submission that any Dissociative disorder, if one is present, has no relationship to the transient physical injury that occurred at work. The defendant instead points to what it calls a number of significant unrelated personal stressors in the [first defendant’s] life in recent years. The Defendant submits that his developmental history and subsequent life stressors are more likely to be the cause of his Dissociative Disorder. The Panel carefully considered the [first defendant’s] developmental history and stressors in his early life and his subsequent successful University and sporting achievements and his teaching career with the development of a significant psychiatric disorder after a relatively minor head injury. In the Panel’s opinion it is likely that the dissociative disorder was precipitated in circumstances triggered in this potentially vulnerable man by the head injury essentially repeating the past history of extensive physical abuse including his being thrown through a window headfirst as a child. It is common that a Dissociative Disorder manifests when an injury is sustained which replicates or closely resembles an injury sustained in the course of childhood abuse and the resulting dissociative symptoms are often exacerbated by further stress in the adult’s life.

The Panel therefore disagreed with the [Plaintiff’s] submission and concluded that the [first defendant’s] psychiatric condition results from and is materially contributed to by the fall on 1 November 2000.

DSM criteria

The College and Mr Longham referred to DSM-IV[2] which contains diagnoses similar to those on which the second Panel relied, as well as to DSM-5, which was current at the time of the second Panel’s opinion. The DSM-IV contains a ‘Cautionary Statement’ which in part states:

The specified diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills.
These diagnostic criteria and the DSM-IV Classification of mental disorders reflect a consensus of current formulations of evolving knowledge in our field. They do not encompass, however, all the conditions for which people may be treated or that may be appropriate topics for research efforts.
The purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study, and treat people with various mental disorders.

[2]The Diagnostic and Statistical Manual of Mental Disorders.

The College did not contend that the second Panel erred by considering DSM-IV rather than DSM-5, but submitted that by doing so, it assumed a greater requirement to give sufficient explanation of its diagnoses.

The diagnosis of ‘dissociative disorder not otherwise specified and dissociative fugues’ that the second Panel reached is not a combined diagnosis contained in DSM- IV or DSM-5. However, there are separate diagnoses of ‘dissociative disorder not otherwise specified’ and ‘dissociative fugue’ contained in DSM-IV, but not in DSM-5.

The relevant diagnoses in DSM-IV state:

Dissociative Disorders
The essential features of the Dissociative Disorders is a disruption in the usually integrated functions of consciousness, memory, identity, or perception of the environment. The disturbance may be sudden or gradual, transient or chronic. The following disorders are included in this section:
…
Dissociative Fugue is characterized by sudden, unexpected travel away from home or one’s customary place of work, accompanied by an inability to recall one’s past and confusion about personal identity or the assumption of a new identity.
300.13 Dissociative Fugue (formerly Psychogenic Fugue)
Diagnostic Features
The essential feature of Dissociative Fugue is sudden, unexpected, travel away from home or one’s customary place of daily activities, with inability to recall some or all of one’s past (Criterion A). This is accompanied by confusion about personal identity or even the assumption of a new identity (Criterion B). The disturbance does not occur exclusively during the course of Dissociative Identity Disorder and is not due to the direct physiological effects of a substance or a general medical condition (Criterion C). The symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion D).

DSM-IV also contains the following diagnosis, which is relevant to the question of malingering:

Differential Diagnosis
…
Individuals with Dissociative Fugue usually score high on standard measures of hypnotizability and dissociative capacity. However, there are no tests or set of procedures that invariably distinguish true dissociative symptoms from those that are malingered. Malingering of fugue states may occur in individuals who are attempting to flee a situation involving legal, financial, or personal difficulties, as well as in soldiers who are attempting to avoid combat or unpleasant military duties (although true Dissociative Fugue may also be associated with such stressors). Malingering of dissociative symptoms can be maintained even during hypnotic or barbiturate-facilitated interviews. In the forensic context, the examiner should always give careful consideration to the diagnosis of malingering when fugue is claimed. Criminal conduct that is bizarre or with little actual gain may be more consistent with a true dissociative disturbance.

In DSM-5, the former diagnostic category of dissociative fugue is changed from a separate diagnosis to be a specifier of dissociative amnesia. It contains a diagnosis of ‘dissociative disorders’ as follows:

Dissociative disorders are characterized by a disruption of and/or discontinuity in the normal integration of consciousness, memory, identity, emotion, perception, body representation, motor control, and behaviour. Dissociative symptoms can potentially disrupt every area of psychological functioning. This chapter includes dissociative identity disorder, dissociative amnesia, depersonalization/derealization disorder, other specified dissociative disorder, and unspecified dissociative disorder.
Dissociative symptoms are experienced as a) unbidden intrusions into awareness and behaviour, with accompanying losses of continuity in subjective experience (i.e., “positive” dissociative symptoms such as fragmentation of identity, depersonalization, and derealization) and/or b) inability to access information or to control mental functions that normally are readily amenable to access or control (i.e., “negative” dissociative symptoms such as amnesia).
The dissociative disorders are frequently found in the aftermath of trauma, and many of the symptoms, including embarrassment and confusion about the symptoms or a desire to hide them, are influenced by the proximity to trauma. In DSM-5, the dissociative disorders are placed next to, but are not part of, the trauma-and stressor-related disorders, reflecting the close relationship between these diagnostic classes. Both acute stress disorder and posttraumatic stress disorder contain dissociative symptoms, such as amnesia, flashbacks numbing, and depersonalization/derealization.

DSM-5 also contains the following statement of relevance to the question of malingering:

Factitious disorder and malingering. Individuals who feign dissociative identity disorder do not report the subtle symptoms of intrusion characteristic of the disorder; instead they tend to over report well-publicized symptoms of the disorder, such as dissociative amnesia, while underreporting less-publicized comorbid symptoms, such as depression. Individuals who feign dissociative identity disorder tend to be relatively undisturbed by or may even seem to enjoy “having” the disorder. In contrast, individuals with genuine dissociative identity disorder tend to be ashamed of and overwhelmed by their symptoms and to underreport their symptoms or deny their condition. Sequential observation, corroborating history, and intensive psychometric and psychological assessment may be helpful in assessment.
Individuals who malinger dissociative identity disorder usually create limited, stereotyped alternate identities, with feigned amnesia, related to the events for which gain is sought. For example, they may present an “all-good” identity and an “all-bad” identity in hopes of gaining exculpation for a crime.

Grounds one and two: asking the wrong question and failing to take into account a relevant consideration
The College’s submissions

The College, in respect of grounds one and two, submitted that the second medical Panel made a jurisdictional error by asking the wrong question, ignoring relevant material and by failing to take into account a mandatory consideration in a way that affected its decision. That material and that mandatory consideration were the first Panel’s examination findings and opinion.

Some of the College’s submissions in respect of the first two grounds overlapped with its submissions in respect of its third ground.

The College submitted that a very significant consideration was the first Panel had concluded that Mr Longham had no psychiatric disorder only some eight months before the second Panel’s examination of him. The first Panel found that the results of its cognitive tests of Mr Longham reflected ‘a contrived presentation of cognitive impairment’. Unlike the first Panel, the second Panel did not include a neuropsychiatrist, and it performed no cognitive assessment.

The College relied on the decision in Moyston Court Fisheries Ltd v Dr John Malios & Ors,[3] that material provided to the medical panel pursuant to s 65(6B) of the Accident Compensation Act 1984,[4] was a consideration that it was required to take into account. To like effect was Neave JA ‘s statement in Ryan v The Grange at Wodonga Pty Ltd[5] that:

Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[6]

[3][2007] VSC 518.

[4]Now s 304 of the WIRCA.

[5][2014] VSCA 17 [60]. The other members of the Court agreed with her Honour’s judgment.

[6][60].

The College submitted that the second Panel was required to engage in an active intellectual process, in which each relevant matter received genuine consideration.[7] In determining whether a Panel has addressed a particular issue or consideration, the Court must base its opinion on ‘exclusively what the decision-maker has said or written’.[8]
[7]Tickner v Chapman (1995) 57 FCR 451, 462.
[8]Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337 [58].

More specifically, the College submitted that the second Panel was obliged to consider, but ignored, the certified reasons of the first Panel. Furthermore, the second Panel’s reasons demonstrated a misunderstanding of the Court of Appeal judgment in McVey v GJ & LJ Smith Pty Ltd[9] and the weight that it should give to the first Panel’s reasons. That misunderstanding was clear in the following passage in the second Panel’s reasons:
In accordance with the Court of Appeal decision of McVey v Smith [2014], while it is open to a Medical Panel to have regard to an earlier Medical Panel opinion, it is not bound to apply any of its conclusions, and when forming its opinion the Panel must consider only the contemporaneous facts and examination findings of the current Medical Panel.
[9][2014] VSCA 293.
The College also submitted that the second Panel’s reasons did not address the significant discrepancies in Mr Longham’s account of his medical and personal histories which the first Panel had considered to be critically important. Although the history provided by Mr Longham to the second Panel contained further discrepancies, the second Panel, consistently with its statement that it was to ‘consider only the contemporaneous facts’, did not identify those discrepancies and merely stated that it had confirmed with Mr Longham the accuracy of the history that he had given to the first Panel. The discrepancies and inconsistencies included Mr Longham’s description of episodes where he had ‘lost time’ and that he had ‘taken out’ the interior walls of the bathroom and kitchen and had no recollection of doing so. This was in contrast to another of his accounts of the incident that it occurred when he was ‘angry one day’. His description to the first Panel of his blackouts or passing out episodes and his description to the second Panel of his ‘losing time episodes’ also contained inconsistencies. The second Panel recorded without comment Mr Longham’s statement that he ‘talked to his mother on a daily basis’ while at the same time recording a history that his mother died in her late seventies in 2015.[10]
[10]Senior Counsel for Mr Longham submitted that the materials suggested that his mother was still alive or alive at the time of the assessment; see Transcript of Proceedings, St Joseph’s Regional College v Longham & Ors (Supreme Court of Victoria, S CI 2017 0553, Ginnane J, 23 August 2017) 67.

The second Panel did not engage at all with Professor Crowe’s report or the findings of the first Panel about the cognitive assessment of Mr Longham and merely adverted to his presentation of different histories and symptoms. The first Panel’s conclusion that Mr Longham was malingering should have been taken into account, particularly as a long time had passed since his accident. The second Panel thereby fell into jurisdictional error and that error could not be overcome by any beneficial reading of the reasons.

The second Panel made no finding as to how the relevant diagnoses contained in DSM-IV or DSM-5 were established. The College referred to J Forrest J’s statement in Clarke v National Mutual Life Insurance Ltd that:

First, the Panel did not explain, either in terms nor can it be inferred implicitly, how it reached the diagnosis that the plaintiff suffered from a paranoid personality disorder in 1994/1995. Given the diagnostic criteria set out in DSM-IV, I think that the diagnosis of this disorder required the Panel to set out the basis for reaching such a conclusion. This is particularly so given the gap in time between the onset of symptoms and the Panel assessing the plaintiff. To make the diagnosis the Panel needed to be satisfied that the plaintiff’s symptoms fitted the DSM-IV criteria. Nowhere in the reasons is there reference to the criteria. Moreover there are certain elements of the criteria for this diagnosis which, on a review of the material, do not appear to have been present in the plaintiff. In particular a key element of this condition, as I understand it, is a pervasive distrust and suspiciousness of others. This condition is meant to have its onset (according to the DSM-IV guidelines) in early adulthood; indeed this seems to be a hallmark of the condition as explained by DSM-IV. Nowhere does the Panel refer to any material which supports this proposition. Moreover the treating psychiatrist’s history taken in 1995 when the plaintiff was symptomatic was that there was no psychiatric history.[11]
[11][2007] VSC 341, [53] (Citations omitted).

Mr Longham’s submissions

Mr Longham submitted that the first Panel’s reasons were another medical opinion and did not have any particular status. Medical Panels do not have to have regard to every statement made to them or express their views on every statement or opinion provided to them. The second Panel was obliged to make a decision as at the time of its determination. It applied the right test and considered all the evidence. After the further submissions were provided, the second Panel received Dr Serry’s report, which supported its conclusions.

Mr Fazzino’s report indicated that Mr Longham’s condition and capacity to perform teaching duties had deteriorated after the accident.

The cognitive testing carried out by the first Panel was in the nature of performance testing and whether or not they showed that Mr Longham had not engaged with the testing, they did not establish that his condition was explicable as malingering.

The second Panel did have regard to the first Panel’s conclusion and the previous psychiatric diagnosis. It specifically noted the previous Panel’s opinion that any symptoms were most likely attributable to the differential diagnosis of malingering. The second Panel’s reasons demonstrated that it had engaged with the facts as required by law, but simply drew different conclusions based upon a more complete picture of Mr Longham’s medical history. The second Panel referred to the history obtained by the first Panel, to its examination findings; and to the histories and findings of other medical witnesses whose opinions were before both Panels. In addition, the second Panel confirmed Mr Longham’s history in the way recorded by the first Panel and expressly referred to its diagnosis of a ‘contrived presentation of cognitive impairment’. The second Panel expressly referred to ‘the variety of psychiatric diagnoses obtained by (other) medical examiners’. It stated that it had ‘carefully considered’ Mr Longham’s further submissions, and referenced the first Panel’s opinion and previous medical observations. The second Panel stated that its different diagnosis was based on its own ‘opinion and in the context of the full psychiatric picture’; and explained that any inconsistencies in the histories that Mr Longham gave were a symptom of his psychiatric illness rather than aspects of his malingering. It thereby addressed the inconsistencies in the histories.

Rather than ignoring relevant considerations, the second Panel drew its own different conclusions based on the material before it. It thereby performed its statutory function.

Mr Longham submitted that the College had misread the second Panel’s recitation of the Court of Appeal’s statement in McVey.[12] He argued that the reference to ‘contemporaneous facts’ was wholly appropriate and referred to ‘the information available to the panel at the time of its assessment’.
[12]{2014] VSCA 293.

Analysis of the first and second grounds

In my opinion, the second Medical Panel carried out its statutory duty, which to quote the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[13], was to give its opinion on the medical questions referred to it. The following passage in the High Court judgment gives additional context to that principle:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion… 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 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 or 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 by applying its own medical experience and own medical expertise.[14]
[13](2013) 252 CLR 480 (‘Wingfoot’).
[14]Wingfoot (2013) 252 CLR 480, 498-99 [47].
The second Panel did have regard to the first Panel’s reasons, but it formed its own opinion and reached a different conclusion. It specifically said that it had carefully considered the opinion of the previous Panel and other reports referred to by the College. It expressed its conclusion as follows:
In the panel’s opinion and in the context of the full psychiatric picture, such different presentations do not suggest malingering or deliberate changes to any information provided. The Panel concluded therefore that the Plaintiff’s symptoms are not attributable to the differential diagnosis of malingering.
The second Panel’s reasons must be read as a whole. Much attention was directed to its statement that while it was open to a medical panel to have regard to an earlier panel, it was not bound to apply its conclusions, and that it must consider only the contemporaneous facts and its examination findings. If that statement was viewed in isolation, the adverb ‘only’ might suggest that the second Panel failed to have regard to relevant considerations, including the opinion of the first Panel and its reference to the neuropsychological tests conducted by Professor Crowe. But the reasons, when read as a whole, did not support that conclusion.

The second Panel did note the first Panel’s opinion that Mr Longham had ‘a contrived presentation of cognitive impairment which the Panel attributes to the injury sustained on 1 November 2000’ and that it ‘concluded that [Mr Longham] had no current psychiatric condition relevant to the claimed injuries’. However, the second Panel took into account that it was characteristic of the dissociative process that the person affected presents different histories and symptoms at different times. The sentence which refers to contemporaneous matters is not to be read in isolation but as part of all the reasons. The second Panel stated that it had reached the same conclusion as Dr Serry, who was an independent psychiatrist and whose report was prepared for its consideration.
The second Panel was not obliged to express an opinion on the neuropsychological or cognitive tests that were before the first Panel.
It was not, and could not have been, contended that the second Panel was obliged to apply the opinion of the first Panel, even though it was quite recent. The Court of Appeal judgment in McVey[15] makes that clear. I have previously set out part of that judgment, but the following passage are also relevant in the present context:
The Employer did not specifically address the question of whether a medical panel can be a ‘body’ that is required by s 68(4) of the Act to give effect to an opinion of a previous medical panel. In our opinion, there are difficulties in treating a medical panel as such a body. First, s 67(1) and (1A) and s 68(1) and (2) make it clear that a medical panel must give its ‘opinion’ on the medical questions that are referred to it. A medical opinion that automatically adopts and applies an opinion of a previous medical opinion and treats the opinion as final and conclusive, will not reach its own opinion and, accordingly, will not comply with those sections. Secondly, a medical panel’s opinion must be based on the information available to the panel at the time of its assessment rather than on a state of affairs that existed at a previous time. Thirdly, if an opinion of a medical panel determined a particular question or matter, there would be no need to refer any medical questions dealing with that question or matter to another medical panel. As the parties, did not make considered submissions on these issues, it is not necessary for us to form a final view on whether a medical panel can be a ‘body’ for the purposes of s 68(4).[16]
[15]McVey [2014] VSCA 293.
[16]Ibid [60].

The Court concluded that the ‘question or matter’ in respect of which the medical questions were referred to the second Medical Panel were not the same as the ‘question or matter’ in respect of which the medical questions were referred to the first Medical Panel.

I do not consider that the decision in McVey,[17] which was the subject of considerable discussion, is decisive to the determination in this case. Rather, it is an example of a second Panel being required to decide a different question or matter than those answered by an earlier Panel. Moreover, I do not consider that the second Panel erred in its reference to that decision, as it was obliged to answer the medical questions as at the date of its medical examination. It is clear enough that it considered the history of Mr Longham’s condition and not just its presentation at the date of the examination.
[17][2014] VSCA 293.
The second Panel had the additional medical opinion of Dr Serry and the second opinion of Dr Nathar before it, as well as the results of its own examination and assessment of Mr Longham. The reports of Dr Nathar and Dr Serry, as well as the medical reports of Dr Kornan and Dr Entwisle, supported a finding that Mr Longman had suffered a significant psychiatric illness.
As to the effect of inconsistencies contained in Mr Longham’s histories, I consider that there was evidence to support the second Panel’s conclusions and they were open to it to reach. For example, Mr Longham had mentioned the important matter of childhood abuse to Dr Le Bas and Dr Entwisle, and to the second Panel, but not to all doctors. The first Medical Panel’s reasons do not appear to contain a history of Mr Longham’s childhood.
Mr Longham described his childhood to the second Panel as characterised by extreme violence and that on one occasion as a child he was thrown head first through a plate-glass window. He said that his father had been a violent alcoholic and heroin addict, who often threatened to kill him, his ‘sibs’ and his mother; and that he was frequently beaten; that the police were often at the family home; and that when he grew a little older, he attempted to protect his mother and his young siblings against his father’s attacks.
The second Panel placed weight on Mr Longham’s childhood history stating that it was likely that the dissociative disorder was precipitated in circumstances triggered in this ‘potentially vulnerable man’ by the head injury, essentially repeating the past history of extensive physical abuse, including being thrown through a window head first as a child. The second Panel stated:
It is common that a Dissociative Disorder manifests when an injury is sustained which replicates a close or closely resembles an injury sustained in the course of childhood abuse and the resulting dissociative symptoms are often exacerbated by further stress in the adult’s life.
In my opinion, it was open to the second Panel to reach that conclusion. It was not its statutory task to reconcile every inconsistency in Mr Longham’s histories.
Differences also existed in Mr Longham’s accounts to the two Panels of his consciousness on the occasion when he removed or threw out kitchen and bathroom fittings. But, in accordance with Dr Nathar’s and Dr Serry’s opinions, the second Panel accepted that those inconsistencies were consistent with the dissociative disorders that it identified.
The first Panel did not accept that Mr Longham had a dissociative disorder condition, but that he was malingering. Once the second Panel did not accept that conclusion, it was open to it to adopt the diagnosis that it did. Its diagnosis was supported by the second opinion of Dr Nathar and the opinion of Dr Serry which were made after the first Panel had given its opinion.
Conclusion on the first and second grounds

In my opinion, the second Panel performed its statutory duty and answered the questions put to it. There is no basis to conclude that it ignored or failed to have proper regard to relevant considerations.

Ground 3: Inadequacy of reasons
The College’s submissions

The College submitted that the second Panel’s reasons failed to meet the standard set by the High Court in Wingfoot that:
The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[18]
[18]Wingfoot (2013) 252 CLR 480, 501 [55].
The College further contended that the second Panel did not provide reasons for its dissociative disorder diagnosis, nor explain why symptoms did not appear until nine or ten years after the accident. This, in part, was a submission that the second Panel did not provide a path of reasoning in respect of causation.
Furthermore, the College submitted that the second Panel did not refer to, or adequately explain, the diagnostic criteria by which it reached its diagnosis of psychiatric impairment of a ‘dissociative disorder not otherwise specified and dissociative fugues’ which, after all, was a finding contrary to that of the first Panel.
The College also submitted that the second Panel had failed to have regard to the first Panel’s cognitive testing. The letter inviting further submissions failed to indicate the second Panel’s view of the significance of the first Panel’s cognitive testing.
Nor had the second Panel had regard to inconsistencies in the histories provided by Mr Longham for example that he had mentioned particular episodes of ‘lost time’ on some, but not other, occasions. As previously mentioned, these inconsistencies included that he had suffered significant childhood abuse and that out of anger he had ripped out kitchen and bathroom fittings and thrown them into the backyard.
Mr Longham’s submissions
Mr Longham submitted that the second Panel had explained its path of reasoning. He said that the second Panel had dealt with the issue of delay.
Secondly, Mr Longham submitted that there was no reason to infer that any delay in the development of the dissociative disorder symptoms was relevant to the disorder’s diagnosis, especially when its symptoms could be ‘triggered’ by other ‘stressors’ in a patient’s life, such as his accident that mirrored previous head traumas that he had suffered as a child. As previously stated, the second Panel stated it was:
likely that the dissociative disorder was precipitated in circumstances triggered in this potentially vulnerable man by the head injury essentially repeating the past history of extensive physical abuse including his being thrown through a window as a child.

The second Panel also noted that:

a past history of severe physical, emotional or sexual abuse is characteristic of the developmental history of people with dissociative disorders and that this history was not obtained in any detail in any previous examination.

Therefore the second Panel’s diagnosis explained its finding as to the requisite causal link between Mr Longham’s fall and his alleged injury. The second Panel disclosed how it had reached its diagnosis, in any event the DSMs were a guide for clinicians and not a statutory formulation that had to be construed.

It should be inferred that the second Panel took into account the histories provided to all the doctors who provided statements.

Analysis of the third ground

The second Panel’s reasons do show its path of reasoning. I will set out further passages from Wingfoot about the requirement for reasons and the actual path of reasoning that they must contain:
The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.[19]
…
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[20]
[19]Wingfoot (2013) 252 CLR 480, 499 [48].
[20]Wingfoot (2013) 252 CLR 480, 501 [55].
The second Panel’s path of reasoning was as follows. Mr Longham had dissociative symptoms that had existed for many years. Mr Fezzino’s statement also put the issue of delay into context and supported a conclusion that Mr Longham’s condition had declined in the decade following the accident. The second Panel referred to Mr Longham’s extreme behaviour. Relying on its expertise and experience, it described this as a ‘known clinical picture and the complexity and comorbidity [which] is typical of a dissociative disorder and not suggestive of malingering’. It thereby demonstrated that it had considered the question of malingering, but found that it was not an explanation for Mr Longham’s condition. It noted that prior to the accident he had had a successful career, but following the accident the dissociative disorder gradually became manifest. It noted that a past history of abuse was characteristic of people with dissociative disorders.
There was then the issue of causation of whether the fall had been a material contributor to the dissociative disorder. The second Panel noted the College’s submission that any dissociative disorder, if one were present, had no relationship to the transient physical injury that occurred at work, but was due to recent significant unrelated personal stressors in Mr Longham’s life and to his developmental history. But, the second Panel disagreed with that submission and concluded that Mr Longham’s psychiatric condition resulted from, and was materially contributed to, by the fall on 1 November 2000. Its path of reasoning for that conclusion was expressed as follows:
The Panel carefully considered the [First Defendant’s] developmental history and the stressors in his early life and his subsequent successful University and sporting achievements and his teaching career with the development of a significant psychiatric disorder after a relatively minor head injury. In the Panel’s opinion it is likely that the dissociative disorder was precipitated by in circumstances triggered in this potentially vulnerable man by the head injury essentially repeating the past history of extensive physical abuse including his being thrown through a window headfirst as a child. It is common that a Dissociative Disorder manifests when an injury is sustained which replicates or closely resembles an injury sustained in the course of childhood abuse and the resulting dissociative symptoms are often exacerbated by further stress in the adult’s life.
There is then the question of whether the second Panel in its reasons explained its diagnosis, which was ‘dissociative disorder not otherwise specified and dissociative fugues’. Although this diagnosis does not exactly adopt the title of any combined condition described in the DSM-IV or DSM-5, it clearly is related to those diagnoses discussed by Dr Nathar and Dr Serry and is similar to those described in the DSMs. In my opinion, the second Panel did not err or fail to explain how it reached its diagnosis as the Panel failed to do in Clarke’s Case.[21] In the paragraph of its reasons that I have set out above and in other paragraphs to which I have previously referred, it concluded that Mr Longham was suffering from a dissociative disorder not otherwise specified and dissociative fugues. It gave reasons for that conclusion, which brought the disorder within the DSMs’ descriptions of the particular disorders to which it referred. As previously stated, it also considered, but rejected, the differential diagnosis of malingering.
[21][2007] VSC 341.
True it is that the second Panel did not refer specifically to the criteria in the DSM-IV or DSM-5 but neither did the psychiatrists, Dr Nathar or Dr Serry, both independent psychiatric examiners, who made a diagnosis of dissociative fugue or recurring episodes of fugues. Rather, they referred to features of Mr Longham’s condition that brought it within those diagnoses. I do not understand the passage in Clarke’s Case[22], which I have set out above, to require anything more than a statement of matters that would satisfy the diagnosis reached and the basis for the Panel’s conclusion. The second Panel did that.
[22][2007] VSC 341, [53].
Mr Longham informed the second Panel that he was often told that he had done things but lacked a clear memory of them, that he frequently lost time, for example on one occasion ending up in Sydney and on another occasion he had taken out the interior walls of his kitchen and bathroom. He said that he had heard voices talking about him and to him, often arguing, and that he had recently fallen through a window thinking that he was sitting at a bus stop, and when he came to found that he was lying on the grass.
It was open to the second Panel to conclude that these features brought Mr Longham’s condition within the diagnosis of dissociative disorders as disruptions of the usually integrated functions of consciousness, memory, identity or perception of the environment as described in DSM-1V. Again on that evidence, it was open to the second Panel to reach a diagnosis of a dissociative fugue being a sudden, unexpected travel away from home accompanied by an inability to recall one’s past and confusion about one’s identity.
I have referred in considering the first and second grounds to inconsistencies in Mr Longham’s account of matters in his history for instance in his accounts to the Panels of his removal of his kitchen and bathroom fittings. However, that was not a matter that the second Panel had to reconcile in the manner in which a court would. Its task was to answer the questions put to it and that is what it did.
There was evidence on which the second Panel could find that Mr Longham had experienced abuse as a child. In addition, the confusion about whether Mr Longham’s mother was dead was not necessarily the result of his misstatement and was not a matter that the second Panel had to reconcile.
In my opinion, the second Panel provided adequate reasons for its answers to the questions referred to it that satisfied its statutory obligations.
Conclusion on third ground
The third ground is not established.
Conclusion
The proceeding is dismissed.

[2017] VSC 657

27 October 2017