Tuffa Workwear v Ha
[2015] VSC 557
•16 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 00989
| TUFFA WORKWEAR PTY LTD | Plaintiff |
| v | |
| BINH NGUYEN HA | First defendant |
| and | |
| JENNIFER HARMER | Second defendant |
| and | |
| JOEL AIZENSTROS | Third defendant |
| and | |
| SUSANNE HOMOLKA | Fourth defendant |
| and | |
| PAUL KIERCE | Fifth defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2015 |
DATE OF JUDGMENT: | 16 October 2015 |
CASE MAY BE CITED AS: | Tuffa Workwear v Ha |
MEDIUM NEUTRAL CITATION: | [2015] VSC 557 |
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ADMINISTRATIVE LAW – judicial review – procedural fairness – workers’ compensation – opinion of medical panel that worker was suffering from a work-related injury - whether opinion of panel could reasonably have been anticipated by employer – whether ‘out of the blue’– Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 274(1)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr M Fleming QC and Ms F Spencer | Lander & Rogers Lawyers |
| For the first defendant | Mr A Uren QC and Ms M Schilling | Zaparas Lawyers |
| For the second to fifth defendants | No appearance |
HIS HONOUR:
Tuffa Workwear Pty Ltd seeks judicial review of the opinion expressed on 7 January 2015 by a medical panel in respect of Binh Nguyen Ha. Tuffa was the employer of Mr Ha who was injured during the course of his employment. The opinion of the panel related to Mr Ha’s entitlement to weekly payments of compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Tuffa contends that it was denied natural justice by the panel. On that and other grounds, it seeks an order quashing the opinion and for reconsideration by a differently constituted panel.
The question of Mr Ha’s medical condition was before the panel on the reference of the Magistrates’ Court of Victoria under s 274(1)(b) of the Act. Mr Ha had been receiving weekly payments of compensation in respect of his injuries. Tuffa’s authorised insurer terminated those payments upon the ground that the injuries were resolved. Mr Ha issued a proceeding in the Magistrates’ Court seeking (among other things) continuation of those weekly payments. The outcome of that proceeding will substantially turn upon the opinions given to the medical questions referred to the panel.
The questions referred to the panel, and the opinions expressed with respect to those questions, were certified by the panel as follows:
Question 1.What is the nature of the plaintiff’s medical condition relevant to the claimed injuries, namely:
(a) Back and lumbar disc;
(b) Right hand;
(c) Pain and distress.(‘the alleged injuries’)?
Answer:(a) and (b) In the Panel’s opinion the plaintiff has previously suffered from soft tissue injuries to the lumbar paraspinal musculature and to the right hand, but these conditions have now resolved.
The Panel is also of the opinion that the plaintiff is currently suffering from ankylosing spondylitis with fibromyalgia, but this condition is not attributable to any alleged injury.
(c) The Panel is also of the opinion that the plaintiff is currently suffering from a Major Depressive Disorder.
Question 2.Was the plaintiff’s employment with the defendant in fact, or could it possibly have been, a significant contributing factor to any and if so which of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s employment with the Defendant could possibly have been, and was in fact, a significant contributing factor to the soft tissue injuries to the lumbar paraspinal musculature and right hand, but these soft tissue injuries have now resolved.
The Panel is also of the opinion that the Plaintiff’s employment with the Defendant could possibly have been, and was in fact, a significant contributing factor to the Major Depressive Disorder.
The Panel is also of the opinion that the Plaintiff’s employment with the Defendant could not possibly have been, and was not in fact a significant contributing factor to the ankylosing spondylitis with fibromyalgia or to any alleged aggravation, exacerbation, deterioration, acceleration or recurrence of any pre-existing condition in any way.
Question 3.By reference only to the injuries identified in 2, does the plaintiff have an incapacity for his pre-injury employment?
Answer: Yes.
Question 4. By reference only to the injuries identified in 2,
(a) does the plaintiff have ‘no current work capacity’?
(b) If yes to (a), is this likely to continue indefinitely?
Answer: (a) Yes.
(b) Yes.
Question 5.To what extent does any incapacity materially result from any and if so which of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s incapacity for work results from and is materially contributed to by the Major Depressive Disorder.
As can be seen, the referred questions required the panel to determine the nature of Mr Ha’s medical condition relevant to the claimed injuries, whether his employment was in fact, or could possibly have been, a significant contributing factor to those injuries and his consequential incapacity for work.
As can also be seen, the panel opined that Mr Ha had suffered a soft-tissue injury during the course of his employment. Although this injury was resolved when the panel expressed its opinion, when not resolved the injury had been a significant contributing factor to a major depressive disorder, which was ongoing. In respect of that injury, he had no capacity for work. That was likely to continue indefinitely.
By reference to well-established principles relating to the application of the rules of natural justice,[1] Tuffa contends that these findings are invalid because they came ‘out of the blue’.[2] In its submission, Mr Ha’s case was never put as reflected in the panel’s opinion and Tuffa had no fair, or any, opportunity to present evidence, and make submissions, in relation to that opinion.
[1]Calleja v Franet Pty Ltd [1999] VSC 202 (1 June 1999) [21] (Vincent J); Weerappah v Nisselle [1999] VSC 249 (2 July 1999) [50] (Smith J); Vegco Pty Ltd v Gibbons (2008) 30 VAR 1, 8 [23] (Kyrou J); Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248 (15 May 2013) [32]–[34] (Cavanough J) (‘Barrett Burston Malting’); H & G MacDonald Carriers Pty Ltd v Carson [2014] VSC 586 (19 November 2014) [16]–[17] (Bell J); Midfield Meat Processing Pty Ltd v Fish& Ors [2015] VSC 195 (8 May 2015) [4]–[5] (Bell J).
[2]Barrett Burston Malting [2013] VSC 248 (15 May 2013) [48] (Cavanough J).
The court has a supervisory jurisdiction with respect to opinions of the panel but it is not a merits-review jurisdiction. Jurisdictional or legal error must be established. The court is always mindful that, an expert body established under statute for a specialised purpose, it is entitled to full respect in relation to matters of medical opinion. Where a psychiatrist is included in its membership, as in the present case, that includes matters of psychiatric medical opinion. Under the Act, matters of medical opinion are for the panel, not the court, to determine.
The submission of Tuffa that the panel was not entitled to express an opinion with respect to Mr Ha’s condition of mind must be rejected. It was clearly on notice that the panel might go into that matter. As submitted for Mr Ha, there was an abundance of material before the panel to suggest that this was raised by the referred questions. One needs only to look at question 1(c) (‘Pain and distress’) and Mr Ha’s submissions to the panel dated 12 August 2014 (many references to ‘psychological injury’) to come to that conclusion. Tuffa made brief submissions in relation to this issue which were, in effect, disputed by Mr Ha and, implicitly, rejected by the panel.
However, in expressing the opinion that it did, the panel did not just go into Mr Ha’s mental condition. Mr Ha put his case upon the basis that his psychological injuries were due to particular physical injuries, being ankylosing spondylitis and L4/5 disc degeneration. The panel accepted that he suffered from those physical injuries but found that they had not been caused by his employment. It went on to find that he was suffering from a major depressive disorder to which the (work-related but now resolved) soft-tissue injury had significantly contributed. That had never been put by Mr Ha.
The question at issue in the application for judicial review is, therefore, whether Tuffa had a fair opportunity to be heard in relation to whether Mr Ha was suffering from a major depressive disorder to which the (work-related but now resolved) soft-tissue injury had significantly contributed. In my view, it did not.
When questions are referred to a panel, the issues in contest before the panel may be identified by reference to the terms of the questions read in the context of certain background documents. I discussed this in in Midfield Meat Processing Pty Ltd v Fish & Ors:[3]
In the usual case, the parties ascertain what the issues are from the pleadings in the court and through the exchange of medical reports and like material. The issues, so ascertained, enable the parties to determine what documents and information, and submissions, should be supplied.
[3][2015] VSC 195 (8 May 2015) [5].
This was so in the present case. The determination of the panel was preceded by a proceeding in the Magistrates’ Court. The court hearing that proceeding made the reference of the questions to the panel. As usual, before the panel examined Mr Ha and expressed its opinion, the parties exchanged with each other, and filed with the panel, medical reports, other information and submissions. As a result of that procedure, the terms of the referred questions, read in the context of those documents, defined the relevant issues.
Having examined the referred questions in the context of the statement of claim in the proceeding before the Magistrates’ Court, as well as the medical and like information given to the panel and the submissions presented to the panel by the parties, nothing put Tuffa on notice that the panel might give the opinion that it did. There was no psychiatric evidence to support the opinion (although, if due notice had been given by the panel to the parties, it would have been entitled to rely upon its own expertise in this regard). There was no medical evidence at all connecting Mr Ha’s mental condition to the soft-tissue injury (as to which I make the same observation). The opinion travelled well beyond the case that Mr Ha advanced. Tuffa could not reasonably have anticipated that the panel would go down this path. In this respect, its opinion really did come ‘out of the blue’.
I do not accept Tuffa’s criticism of the reasons for decision of the panel. To the contrary, with respect I find them to be excellent reasons. They demonstrate with clarity the path of reasoning adopted by the panel to arrive at the opinion that it did. It took note of the opinion of an earlier medical panel (dated 14 January 2013) that Mr Ha had suffered from a work-related soft-tissue injury to his lower back which had resolved. Tuffa had accepted this condition. The present panel rejected Mr Ha’s contention that his ongoing condition of ankylosing spondylitis and other pre-existing physical injuries were related to his employment. Rather, it linked the onset of the depression to the (work-related but now resolved) soft-tissue injury. All that is perfectly clear. But Tuffa did not have a fair, or any, opportunity to contest this reasoning.
The reference will have to go to a differently constituted panel where, I expect, Mr Ha will restate his case in terms that include the approach adopted by the present panel. Therefore I do not want to go too heavily into the detail of the opinion that it expressed. For similar reasons, I do not want to go into whether the panel properly considered the ‘significant contributing factor’ requirement, although I do note that it made an express finding in this regard. It is enough to note that the foundation of the opinion was not fairly in contest between Tuffa and Mr Ha and that it reasonably appears that Tuffa can make legitimate submissions, and present evidence, in opposition to that opinion. What opinion is to be expressed is entirely a matter for the new panel.
There have been a number of similar cases in this court in recent times. I have determined some of them. We need to pause to reflect whether there is an underlying cause that might be addressed. The observations I would make are that panels are obviously constituted by highly-skilled medical practitioners. Medical questions are referred in the context of adversarial legal proceedings in the Magistrates’ Court. As diagnoses and work-related causes are contestable and often contested, referred questions have to be considered by the panel in the context of what the issues in contest are. As I have said, those issues may be identified by reference to the terms of the questions read in the context of the pleadings in the proceeding in the court, the medical and like information provided, and the submissions made to, the panel. Examining those background documents in the present case, it is clear enough to me that the found link between the onset of the depression and the (work-related but now resolved) soft-tissue injury was not in contest. Obviously this was not clear to the panel. They took Mr Ha as he presented, examined him like a patient and answered the questions upon the basis of their own expertise. This was a very natural course for medical practitioners to take but, in this adversarial context, went beyond the issues in contest. More could have been done to make the issues in contest much clearer. The submissions in the case were brief. Tuffa went first and did not reply. There was no consolidating document available for the panel’s ready reference. It may be that the panel was led into error. Perhaps the procedure by which questions are referred, and medical and like information and submissions are provided, to panels needs to be adjusted to address this problem.
The application for judicial review will be granted. The opinion of the panel will be quashed. The reference will be remitted to a differently constituted panel for reconsideration in accordance with law.
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