Venture Campbellfield v Kemal Isitman
[2016] VSC 665
•8 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 00879
| VENTURE CAMPBELLFIELD | Plaintiff |
| v | |
| KEMAL ISITMAN | First defendant |
| ANDREW GIBSON | Second defendant |
| DAVID FISH | Third defendant |
| STEVEN LIETL | Fourth defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2016 |
DATE OF JUDGMENT: | 8 November 2016 |
CASE MAY BE CITED AS: | Venture Campbellfield v Kemal Isitman & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 665 |
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ADMINISTRATIVE LAW – Judicial review – O 56 Supreme Court (General Civil Procedure) Rules 2015 – Accident Compensation Act 1985 – Workplace Injury Rehabilitation and Compensation Act 2013 – Review of Medical Panel opinion – Panel considered information beyond statement of agreed facts in the joint statement – Procedural fairness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Fleming QC Ms S. Gold | Hall & Wilcox |
| For the First Defendant | Mr A. Clements QC Mr N. Dunston | Zaparas Lawyers Pty Ltd |
HIS HONOUR:
The plaintiff was the employer of Kamal Isitman, the first defendant. The second to fourth defendants constituted a medical panel (‘the Panel’),[1] who provided an opinion (‘the Opinion’) favourable to the first defendant and correspondingly unfavourable to the plaintiff in the context of compensation proceedings brought under s 98 of the Accident Compensation Act 1985 (‘ACA’). The plaintiff seeks judicial review to quash the medical panel’s opinion. These review proceedings are brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.
[1]Pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’).
The medical panel defendants have advised the Court that they will submit to such orders as might be made in this proceeding. They have not appeared nor made submissions.[2]
[2]See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35.
The Panel formed its Opinion on two medical questions that were referred to it from the Magistrates’ Court on the application of the employer. The questions and responding answers were:
Question 1: What is the nature of the plaintiff’s medical condition relevant to the alleged injuries to the:
(a) Right shoulder;
(b) Left shoulder.
Answer: The Panel is of the opinion that the worker is suffering from:-
(a)rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the right shoulder;
(b)rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the left shoulder;
Relevant to the alleged injuries.
Question 2: Was the plaintiff’s employment with the defendant a significant contributing factor to any medical condition identified in your answer above in relation to the:
(a) Right shoulder;
(b) Left shoulder;
Answer: The Panel is of the opinion that the plaintiff’s employment with the defendant was a significant contributing factor to the:
(a)rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the right shoulder; and the
(b)rotator cuff dysfunction and an aggravation of the acromioclavicular arthropathy of the left shoulder.
The plaintiff impugns these answers, which constitute the Opinion, and contends:
Ground 1:
The Panel failed to accord the plaintiff/employer procedural fairness by taking into account the worker/first defendant’s description of work duties (‘additional duties’) and injury history (‘additional history’), which were additional to a joint statement of facts prepared by the parties[3] and provided to the Panel, without providing the plaintiff an opportunity to respond to this additional account.
Ground 2:
The Panel failed to take into account relevant considerations or took account of irrelevant considerations by considering the additional duties and the additional history and ‘Failing to reconcile them’ with different injury histories provided on other occasions.
Ground 3:
The Panel failed to provide adequate written reasons for its opinions.
[3]Pursuant to WIRCA s 304(a).
Statutory background:
·The Medical Panel is a non-legal expert tribunal whose members are medical practitioners.[4] Its function is to give its opinion on questions referred to it by a court.[5]
·A medical question may be referred to a panel upon the request of a party or upon a court’s own motion.[6]
·A court may determine factual issues prior to a panel referral.[7] A court is prohibited from referring a medical question if the formation of the opinion would ‘depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a medical panel’.[8]
·The party or body who refers a medical question must specify the injury relevant to the medical question, relevant agreed facts and relevant disputed facts.[9] This document is known as the joint statement. The panel will also be provided with copies of all documents relating to the medical question that are in the possession of the referring party.[10]
·The panel is empowered to medically examine the worker and to question him.[11]
·The panel must act informally, without regard to legal nicety and may inform itself on any relevant matter in any manner ‘it thinks fit’.[12]
·The panel must act as speedily as a proper consideration of the reference allows.[13]
·Within 60 days of receiving the documents relating to the medical question the panel must form its opinion. Within 7 days after forming its opinion the panel must provide to the referring body its written opinion and a written statement of its reasons for that opinion.[14]
·The opinion of the panel is ‘final and conclusive’, and is to be ‘adopted and applied’ by the court.[15]
·A worker who suffers a compensable injury resulting in a permanent impairment[16] is entitled to lump sum compensation for non-economic loss. This loss is to be calculated by formulas contained within s 98C of the ACA.
[4]WIRCA s 537(2).
[5]WIRCA s 274.
[6]WIRCA s 274(1)
[7]WIRCA s 275(1), (2).
[8]WIRCA s 274(5).
[9]WIRCA s 304(a).
[10]WIRCA s 304(b)
[11]WIRCA s 307.
[12]WIRCA s 303(1) and (2).
[13]WIRCA s 303(2).
[14]WIRCA s 313.
[15]WIRCA s 313(4).
[16]See s 91 Accident Compensation Act 1985 (‘ACA’).
Factual background
The plaintiff disputed both diagnosis and causation in the context of a contested claim for impairment benefits under s 98C of the ACA. A factual dispute between the parties was identified as to the nature of the worker’s duties.[17] The dispute was to be resolved on a preliminary hearing in the Magistrates’ Court.[18] After a false start,[19] the dispute was set down for hearing on 6 October 2015. Shortly before it commenced, the parties agreed as to what constituted the worker’s duties.[20] The product of this agreement was contained in a Joint Statement prepared pursuant to s 304(a) of the WIRCA. On 27 October 2015, upon the employer’s application, his Honour Magistrate Wright referred the medical questions (set out in [3] above) to a Medical Panel[21] for opinion. The Panel was provided with the Joint Statement dated 6 October 2015, together with 26 documents referred to in a Schedule to the referral.
[17]Affidavit of Markus Saltups, 9 March 2016.
[18]Pursuant to WIRCA s 275.
[19]Witnesses were not available on the initial hearing date.
[20]Affidavit of Markus Saltups, 9 March 2016, [24].
[21]Pursuant to s 274(1)(b) of the WIRCA.
The Joint Statement relevantly read as follows:
INJURIES TO BE ASSESSED
● Right shoulder;
● Left shoulder;
FACTS OR QUESTIONS WHICH HAVE BEEN AGREED
Background
1. The plaintiff was born on 3 March 1957 and is 58 years old.
2.The plaintiff commenced worked [sic] for the defendant as a process worker from 22 August 1988 until 28 June 2011 when he took a voluntary redundancy.
Work duties
3.The parties have agreed on the following description of the plaintiff’s work duties to be considered by the Panel in forming its Opinion:
4.The plaintiff worked as a process worker on machines which produced moulded plastic parts. The plaintiff manually handled parts weighing between 200g and 4.5 kilograms. As part of his work duties, the plaintiff was required to perform tasks on a repeated basis including:
●Trimming plastic pieces using a cutter, occasionally a fixed pneumatic counterweight drill, metal clips, sandpaper and a knife;
●Operating a machine that produced plastic parts and at times taking the plastic parts out of the machine;
●Operating a flame tool weighing about 1.5 kilograms to burn the edges off the bumper bar and other plastic pieces;
●Until approximately 2009, assembling of the dash board including cutting, trimming, clipping and cleaning;
●Making large empty cardboard boxes for the bumper bars and placing the bumper bars (weighing about 4.5 kilograms) into the boxes, then lifting the boxes (with one bumper bar per box) onto pallets for removal;
●At times, lifting of baskets of smaller plastic pieces onto pallets;
●Assembling of console lid covers (A4 size) including getting it out of the machine.
…
8.By way of claim form signed 20 October 2014, the plaintiff made a claim for permanent impairment benefits in relation to injuries to his left shoulder and right shoulder said to have been sustained throughout the course of his employment with the defendant from 2004 (“the impairment benefit claim”).
9.By way of Notice dated 3 December 2014, the authorised agent for the Defendant Allianz Australia Workers’ Compensation (Victoria) Limited, determined to reject liability for the impairment benefit claim on the basis:
●“you did not sustain an injury within the meaning of the Act”
●“you have not sustained an injury arising out of or in the course of your employment with Venture Campbellfield Pty Ltd”
●“you have not sustained an injury arising out of or in the course of your employment on or after 12 November 1997”
10.The plaintiff disputes the decision of the defendant to reject the impairment benefit claim. The plaintiff has brought proceedings in the Magistrates’ Court of Victoria seeking acceptance of liability for his alleged injuries to his left shoulder and/or right shoulder.
FACTS OR QUESTIONS WHICH ARE IN DISPUTE
(i)The nature of the plaintiff’s medical condition relevant to the alleged bilateral shoulder injuries;
(ii)Whether any medical condition related to the alleged bilateral shoulder injuries was significantly contributed to by the plaintiff’s employment with the defendant.
As I have mentioned, in addition to the agreed facts, the referral contained copies of 26 documents listed in the Schedule to the referral. It is unnecessary to set them out. Although there were some minor variations in dates, the theme of the representations made by the worker in various of the 26 documents was that his shoulders had been injured as a result of the repetitive use of his arms in the performance of his work duties. His right shoulder became symptomatic in 2004, his left in 2009. The duties ‘included trimming, sanding, cutting requiring forceful use of arms, drilling’.[22] He used a knife or scissors to trim plastic mouldings. He had to do some repetitive lifting on the bumper bar line, but the items lifted were not heavy.[23] It is common ground that nowhere in the material contained in the Schedule documents was there any reference to lifting above head height or working overhead.
[22]Worker’s Claim for Impairment Benefits form, 20 October 2014.
[23]Medical report of Dr H Baglar of 27 March 2013.
The Panel was also provided with written submissions from the employer and the worker. The duties relied upon by both parties were, in effect, the agreed duties.
The Panel gave a Certificate of Opinion on 12 January 2016. The Panel found that the plaintiff’s employment with the defendant was a significant contributing factor to the claimed bilateral shoulder injuries. The Panel also provided written reasons for its opinion. I shall reproduce those parts of the reasons that bear upon the plaintiff’s contention that it was denied procedural fairness. The emphasis is mine.
The Panel reviewed with the worker the agreed facts in the referral. The Plaintiff confirmed that he was right handed and was aged 58 and had worked as a process worker for the defendant from 22 August 1988 until 28 June 2011.
The Panel noted the description of the Plaintiff’s duties. The Plaintiff told the Panel that in addition to the matters listed in the agreed duties that he would sometimes be lifting petrol tanks weighing up to 6kg, that trimming of the pieces using a cutter was usually held in the right hand but from 2004 onwards he would occasionally hold the cutter in his left hand, that in addition to making large empty cardboard boxes he would stack them to above head height onto pallets at a rate of up to 200 per day.
The Plaintiff told the Panel that he developed right shoulder pain in approximately 2004. He said that this occurred while he was stacking parts above head height onto a pallet at which time he experience [sic] pain over the right shoulder and indicated the region of the anterior and posterior shoulder.
…
The Plaintiff told the Panel that he had continued work with continuing right shoulder pain and self-treatment with various gels. He said that he began using his left hand more and although he continued working the symptoms in the right shoulder never totally resolved. …
The Plaintiff said that he thought that he developed left shoulder problems in about 2010. He said that this occurred when performing overhead reaching and that he had pain over the front of the left shoulder and when moving his left hand behind his back. He began experiencing difficulty sleeping on his left shoulder.
…
The Panel physically examined the Plaintiff and noted that there was an elevated left shoulder with bilateral supraspinatus wasting and wasting of the right deltoid. There was restricted motion in both shoulders in flexion, extension, and internal rotation with complaints of pain. He demonstrated a painful arc with abduction in both shoulders. There were prominent left and right AC joints with mild tenderness over both anterior shoulders.
Stress test for the supraspinatus were positive on both the left and right although infraspinatus, subscapularis and teres major stress test were negative.
The Panel examined available medical imaging …
The Panel concluded that the worker is suffering from rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the right shoulder; and rotator cuff dysfunction and an aggravation of acromioclavicular joint arthropathy of the left shoulder relevant to the alleged injuries.
The Panel noted the duration of the Plaintiff’s employment for over 20 years, the specific tasks of his employment, and the Panel also noted that there were no activities in the Plaintiff’s lifestyle or hereditary risk factors and that the Plaintiff had not engaged in any specific activities outside of the workplace which could possibly be associated with the development of the Plaintiff’s condition.
The Panel therefore concluded on the basis of the above, and its collective experience and expertise, together with the significant contributing factor considerations, that the Plaintiff’s employment affected his shoulders and therefore was a significant contributing factor to the rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the right shoulder, and the rotator cuff dysfunction and an aggravation of acromioclavicular joint arthropathy of the left shoulder.
The Panel went on to disagree with the medico-legal opinion expressed by Dr Gary Davison (for the employer/plaintiff) and concluded by declaring its own reasons to be adequate.
Legal Principles
Considerations
An administrative tribunal errs if it identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material. If the tribunal’s purported exercise of power is thereby affected, it will have exceeded its authority or power and the error of law is a jurisdictional error.[24]
[24]Minister for Immigration and Multicultural Affairs v Yussuf (2001) 206 CLR 323; Craig v South Australia (1995) 185 CLR 163, 179.
The identified error must have affected the relevant tribunal’s exercise or purported exercise of power such that the decision may have been different if the error did not occur.[25]
[25]Australian Broadcasting Tribunal v Bond 170 CLR 321, 384; Craig v South Australia, Ibid 163, 179.
Procedural fairness
The Medical Panel is obliged to observe procedural fairness in forming opinions in relation to referred questions.[26] A failure ‘to sufficiently accord an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review’.[27]
[26]Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248; Masters v McCubbery [1996] 1 VR 635.
[27]Bennett Burston Malting Co Pty Ltd v Kotzman & Ors, Ibid at [32]; Kioa v West (1985) 159 CLR 550.
A medical panel is obliged to accord the protection of the ‘hearing rule’ of procedural fairness to the employer/insurer party, not merely to the worker party. In Weerappah v Nisselle,[28] Smith J said:
While much of the foregoing discussion is centred on the position of the worker, it must be borne in mind that there is always another party to these disputes and it too can be disadvantaged if the Panel does not accord natural justice. For example, in the course of a medical examination, the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation that it had been denied. It would be a denial of natural justice for the insurer not to have an opportunity to address that information before the Panel reached its decision.[29]
[28][1999] VSC 249.
[29]Weerappah v Nisselle Ibid at [50]; see also Vegco Pty ltd v Gibbons [2008] VSC 363 at [23].
It is fundamental in cases where the rules of procedural fairness apply that a party who may be directly affected by the decision be given the opportunity of being heard.[30]
[30]Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 cited with approval in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at [29]ff.
Adequacy of reasons
The High Court has recently stated the standard of reasons required of a medical panel when providing a medical opinion. The statement of reasons must explain the actual path of reasoning by which the Medical Panel arrived at the its opinion 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 or law.[31]
[31]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 225 CLR 480 (Wingfoot dealt with s 68(2) of the Accident Compensation Act which imposed an express obligation on a medical panel to provide reasons for a medical opinion. The 2016 equivalent provision is WIRCA s 313(2))
The panel is under no obligation to explain why it did not reach an opinion it did not form, even if that differed opinion is shown by material before it to have been formed by someone else.[32] Its function is to ‘form its own opinion … by applying its own medical experience and its own medical expertise.’[33] This standard differs markedly from the standard of reasons required of a judge giving reasons for a final judgment of an action in a court.[34]
[32]Ibid 80, [56].
[33]Ibid 77, [47].
[34]Ibid 80, [56].
The adequacy of the Medical Panel reasons should be considered in light of the ‘beneficial construction’ that this and other courts have traditionally afforded tribunals whose members are not legally trained. Care should be taken not to scrutinise the reasons overzealously, by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed or by focusing on ‘looseness of language [or] unhappy phrasing’.[35]
[35]Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280, 287.
Analysis
Ground 1: Was the plaintiff denied procedural fairness?
The plaintiff accepted that the Panel had express statutory power to meet with Mr Istiman and to ask questions of him.[36] It also accepted that the Panel was under an obligation to act as ‘speedily as a proper consideration of the reference allows’. It submitted that where a worker provides the panel with information to the panel that is materially different to an agreed joint statement, procedural fairness required that the employer have the opportunity to respond to the new or different information. The plaintiff submitted that the additional information provided by the first defendant was significant to the Panel’s reasoning and the most plausible inference to be drawn from the reasons was that the Panel, in providing its Opinion, did have regard to the additional alleged duties, particularly the overhead duties and the additional histories linking the onset of pain to overhead duties. The plaintiff submitted that the employer should have been informed of the content of this additional material and given the opportunity to either make additional submissions, place further material before the Panel, or both. It followed, submitted the plaintiff, that the Panel’s Opinion was formed in breach of the requirements of procedural fairness.
[36]See ss 307 and 310 WIRCA.
The first defendant accepted that the Panel was obliged to accord the parties procedural fairness. He submitted that not every piece of additional material provided by a worker to a panel obliged the panel to place an employer/insurer on notice. If the additional information ‘was not crucial to the resolution of the medical questions asked of the Panel’, procedural fairness did not compel the Panel to give the employer the opportunity to respond to that new or different information.
The first defendant contended that in this instance the additional information did not represent a significant departure from the list of duties in the joint statement at paragraph 4. He submitted that the additional information of the petrol tanks ‘weighing up to 6 kg’ (as opposed to 4.5 kg) and lifting empty cardboard boxes ‘to above head height at a rate of up to 200 a day’ was not sufficiently different to the duties set out in paragraph four of the Joint Statement as to require that, as a matter of procedural fairness, the employer be given the opportunity to respond to that new information.
It follows that both sides approached the oral information provided by the worker to the Panel as additional to the Joint Statement, and the issue devolved to one of fact and degree. Approached in this way, it can be seen that the dispute between the parties is narrow. Either the additional information was not sufficiently consequential to the opinion sought as to require the employer to be given notice of it; or it was.
I consider that the additional information provided by the worker was of sufficient consequence to require the Panel, acting procedurally fairly, to place the employer on notice of that evidence. Nowhere in the Joint Statement, the worker’s injury claim forms, the histories given to various doctors, or the written submissions made to the panel, is there any reference to working above head height. The parties were entitled to assume that the duties considered by the Panel were as described in paragraph 4 of the Joint Statement and the histories relevant to his bilateral shoulder injuries were broadly as described to the treating and medico-legal doctors.
It is clear in my view that the Panel attached real significance to the new information. The overhead nature of the duties was significant enough to be mentioned on three occasions in the Panel’s reasons, and the fact that the onset of symptoms in both shoulders (albeit six years apart) was accompanied by overhead duties was apparently accepted by the Panel. Whilst the panel did not directly link these bilateral shoulder injuries to the overhead nature of the worker’s duties, I am comfortably satisfied that it regarded those duties as material or significant in determining the answer to Question 2 of the reference. “The panel therefore concluded on the basis of the above … that the (worker’s) employment affected his shoulders and therefore was a significant contributing factor to the rotator cuff dysfunction …”. “The above” included repeated references to the overhead duties and their relationship to the onset of pain.
In these circumstances, I do not accept the worker’s contention that the additional information was a mere insignificant departure from the list of duties in the Joint Statement. I am satisfied that the additional duties identified by the worker in the panel interview were central to the disputed causation of the worker’s injuries. I am also satisfied that having resolved the previously disputed aspect of the worker’s duties, the employer/insurer could not have reasonably anticipated that the Panel would consider the additional duties as asserted by the worker. I consider that once the worker had articulated this additional ‘overhead duties’ history, given that it appeared nowhere in the Joint Statement or in any of the 26 documents attached to the referral, if the Panel considered the information to be of significance to its Opinion (which, in my view it did), it should have provided both parties with notice of this development and the opportunity to put on further material and/or make further submissions. The failure to do so, in my view, constitutes a denial of procedural fairness and I consider the Panel’s Opinion to be vitiated by legal error.
Ground 2: relevant/irrelevant considerations
As the argument developed the plaintiff moved away from pressing this ground. It was accepted that the new material was relevant to the Opinion sought – the Panel was entitled to consider it as a relevant consideration but only after complying with the requirements of procedural fairness. In view of my finding on Ground 1 it is unnecessary to consider this ground further – it is sufficient to state that the additional material was entirely relevant to the questions that were the subject of the reference, and that there were no irrelevant considerations taken into account by the Panel.
Ground 3: insufficient reasons
I consider the Panel’s reasons to be adequate in the circumstances. Certainly they were sufficiently adequate to expose the failure to accord procedural fairness to the plaintiff, and more generally, I consider that they explain well enough the reasoning process by which the Panel arrived at its Opinion on the medical questions referred to it.
Consequences of error
The Bond[37] standard, being the requirement to show that decision may have been different if the error had not occurred, was accepted as the test of materiality by both parties. I consider that this test is answered in my analysis of Ground 1 in [20] – [26] above. The panel clearly attached real significance to the new information. This is sufficient to conclude that, absent this error, the Panel may have come to a different opinion.
[37]See footnote [13].
Orders
I will make an order in the nature of certiorari quashing the Certificate of Opinion of the Medical Panel dated 12 January 2016, and make an order in the nature of mandamus remitting the medical questions the subject of the Opinion for reconsideration and determination by a differently constituted panel in accordance with law. It may be that following submissions from the worker, the Panel will be required to invite further submissions from his employer. If the submissions of those parties result in a material factual disagreement that is better resolved by the Magistrates’ Court (see s 274(5) of the WIRC Act), it may be that the matter will need to return to that Court for further consideration and/or for the production of a revised Joint Statement pursuant to s 304(a) of the WIRC Act.
I will hear the parties on costs.
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