Yg-1 Australia Pty Ltd v Dr Brann & Ors
[2016] VSC 713
•1 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 01244
| YG-1 AUSTRALIA PTY LTD | Plaintiff |
| v | |
| DR SUSAN BRANN & ORS | Defendants |
JUDGE: | Zammit J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2016 |
DATE OF JUDGMENT: | 1 December 2016 |
CASE MAY BE CITED AS: | YG-1 Australia Pty Ltd v Dr Brann & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 713 |
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ADMINISTRATIVE LAW — Judicial review — procedural fairness — Workers’ compensation — Medical Panel — new information relevant, credible and significant to the Panel’s decision — Procedural fairness — Adequacy of reasons — Failure to take into account relevant considerations — Accident Compensation Act 1958 (Vic) ss 98, 98E
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr M Fleming QC with Ms S Gold of Counsel | Hall & Wilcox |
For the Third Defendant | Mr G Uren QC with Mr R Kumar | Shine Lawyers |
Background and Procedural History
Grounds for relief
Medical Assessments and Reports
The Panel’s Reasons
The Legislative Framework
The Applicable Law
Procedural fairness
Adequacy of Reasons
Relevant and Irrelevant Considerations
The Employer’s Submissions
Failure to accord procedural fairness
Failure to take into account relevant considerations/ taking into account irrelevant considerations
Adequacy of reasons
Mr Bahng’s Submissions
Procedural Fairness
Relevant and Irrelevant Considerations
Adequacy of reasons
Analysis
Notice of information ‘credible, relevant and significant’ to a decision
Failure to take into account relevant considerations and taking into account irrelevant considerations
Failure to provide adequate reasons
Materiality
Conclusion
HER HONOUR:
Background and Procedural History
On or about 31 May 2013, the third defendant (Mr Bahng), lodged a claim for weekly payments and medical and like expenses pursuant to the Accident Compensation Act 1985 (‘ACA’), alleging an injury described as ‘Depression, Anxiety and Insomnia, Mental injury’ (‘primary claim’).[1] The primary claim was accepted by the plaintiff, YG-1 Australia Pty Ltd (‘the Employer’).
[1] Affidavit of Jason Alan McMahon sworn 6 April 2016 (‘the April Affidavit’), Exhibit JAM1.
Subsequently, on 25 February 2014, Mr Bahng made a claim for lump sum impairment benefits pursuant to sections 98C and 98E of the ACA, in respect of an injury described as ‘mental injury, including but not limited to stress, anxiety and depression’ (‘impairment benefit claim form’).[2] Mr Bahng nominated the primary claim as a claim relating to the same injury or condition.
[2] The April Affidavit, Exhibit JAM2.
On 17 November 2015, for the purposes of the impairment benefit claim, psychiatrist Dr Steven Adlard examined Mr Bahng. The examination was at the request of QBE Workers’ Compensation (Vic) Limited, as the authorised agent of the Victorian WorkCover Authority (‘Agent’).
Dr Adlard assessed Mr Bahng’s whole person psychiatric impairment as 15% in accordance with section 91 of the ACA, and diagnosed Mr Bahng as suffering from ‘Major Depressive Disorder in partial remission’.[3]
[3] Ibid, Exhibit JAM6, 5.
By way of notice from the Agent dated 25 November 2015, the Employer accepted liability in the impairment benefit claim for an injury described as ‘psychiatric injury’ and accepted Mr Bahng’s degree of permanent psychiatric impairment to be 15%.[4]
[4] Ibid, Exhibit JAM3.
By way of Workers’ Response Form dated 8 December 2015, Mr Bahng accepted the Employer’s liability decision, but disputed the psychiatric impairment assessment and the calculation of impairment benefit.[5]
[5] Ibid, Exhibit JAM4.
Pursuant to section 104B(9) of the ACA, on 7 January 2016 the Agent referred medical questions to a Medical Panel.[6] The referral material included a number of medical documents and reports.[7]
[6] Ibid, Exhibit JAM5.
[7] Ibid.
A Medical Panel was convened, comprising the First and Second Defendants (‘the Panel’). Mr Bahng was examined by the Panel on 5 February 2016.
The Panel gave a certificate of opinion dated 10 February 2016 in respect of the referred medical questions (‘the Opinion’), as follows[8]:
Question (i)What is Mr Bahng’s degree of permanent whole person impairment arising from the accepted injury/s as assessed in accordance with section 91 and is the impairment permanent?
AnswerThe Panel is of the opinion that there is a 35% psychiatric impairment resulting from the accepted psychiatric injury when assessed in accordance with section 91 of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.
Question (ii) Does Mr Bahng have an accepted injury which has resulted in a total loss injury mentioned in the table on section 98E?
AnswerNo.
[8] Ibid, Exhibit JAM7.
On 10 February 2016 the Panel also gave written reasons in respect of its Opinion (‘Reasons’).[9] I will address the Reasons separately in further detail below, however I note that the Panel opined that Mr Bahng is suffering from a ‘severe Major Depressive Disorder with psychotic features, including persecutory delusions, relevant to the accepted psychiatric injury’.[10]
[9] Ibid, Exhibit JAM8.
[10] Ibid 8.
On 6 April 2016 the Employer commenced this proceeding, seeking, among other things, the following relief[11]:
(a)an order in the nature of certiorari quashing the Opinion of the Panel; and
(b)an order in the nature of mandamus remitting the referred medical questions to a differently constituted Medical Panel to be reconsidered in accordance with law.
[11] Originating Motion dated 6 April 2016 (‘the Originating Motion’).
Grounds for relief
The Employer relies upon the following grounds for relief in support of the orders sought[12]:
[12] Ibid.
(a)in determining its response to referred Question (i), the Panel fell into jurisdictional error by failing to accord to the parties procedural fairness, namely:
(i)by taking into account the psychotic symptoms and reports of current suicidal ideation (together comprising the ‘additional history’) in circumstances where the additional history had not previously been reported to doctors, nor was it otherwise apparent from the medical material supplied to the Panel and could not have been reasonably anticipated by the Employer, and failing to provide the Employer with notice of the additional history which it was taking into account, the Employer was denied an opportunity to ascertain and respond to relevant issues in Mr Bahng’s psychiatric presentation; and
(ii)by making the psychotic features diagnosis and failing to provide notice of the intended diagnosis to the parties, in circumstances where no prior practitioner had proposed a psychiatric diagnosis with psychotic symptoms, nor taken a history of psychotic symptoms, and the diagnosis was not apparent from the materials before the Panel and could not have reasonably been anticipated by the Employer, the Employer was denied an opportunity to ascertain and respond to relevant issues in respect of Mr Bahng’s psychiatric presentation and assessment of permanent impairment;
(b)the Panel fell into jurisdictional error and/or erred in law by failing to properly assess Mr Bahng’s impairment in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Ed (‘AMA Guides’) and/or the Guide to the Evaluation of Psychiatric Impairment for Clinicians (‘GEPIC’) as it was required to do pursuant to section 91 of the ACA, namely by failing to recognise or to reconcile the inconsistency in the previously provided histories from Mr Bahng and the additional history provided to the Panel, in particular in relation to the psychotic symptoms;
(c)the Panel fell into jurisdictional error by failing to take into account mandatory relevant considerations and/or taking into account irrelevant considerations:
(i)by failing to consider whether and the extent to which the impairment arising from the additional history and/or psychotic features diagnosis was related to an unrelated cause and must therefore be disregarded, the Panel failed to take into account a mandatory consideration; and
(ii)by failing to consider whether the psychotic symptoms represented a recent change in Mr Bahng’s presentation and therefore whether Mr Bahng’s impairment had stabilised, in circumstances where psychotic symptoms were not previously reported to or recorded by medical practitioners, the Panel failed to take into account a mandatory consideration;
(d)the Panel failed to give an adequate statement of reasons sufficient to comply with section 313(2) of the WIRCA; and
(e)the Reasons fail to explain the Panel’s actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.
Medical Assessments and Reports
The Panel had before it eight medical reports by way of referral material. It is convenient for me to summarise briefly certain observations and findings in each of the medical reports.
In addition I was taken to the report of Dr Hokin dated 28 December 2015.[13]
[13] April Affidavit, Exhibit JAM9.
Dr Nitin Dharwadkar, psychiatrist, prepared a report dated 20 June 2013[14] in which he:
(a)recorded that Mr Bahng stated that he had no voices and no suicidal ideation[15] and there were no disorders of perception apparent such as illusions or hallucinations[16]; and
(b)diagnosed Mr Bahng as suffering from adjustment disorder with mixed anxiety and depressed mood[17].
[14] April Affidavit, Exhibit JAM6, Report of Dr Nitin Dharwadkar dated 20 June 2013 (‘Dr Dharwadkar’s Report’).
[15] Ibid 4.
[16] Ibid 7.
[17] Ibid 9.
Dr Robert Athey, psychiatrist, prepared a report dated 17 October 2013[18] in which he:
(a)recorded that Mr Bahng appeared to show slowed thinking but otherwise his thoughts were logical and in a normal sequence[19];
(b)recorded that Mr Bahng had morbid beliefs in that he appeared to have delusional feelings of guilt over the effect of his illness on other people[20];
(c)recorded that he could not detect any perceptual abnormality on the part of Mr Bahng[21]; and
(d)diagnosed Mr Bahng as suffering from adjustment disorder with mixed anxiety and depressed mood[22].
[18] April Affidavit, Exhibit JAM6, Report of Dr Robert Athey dated 17 October 2013 (‘Dr Athey’s Report’).
[19] Ibid 6.
[20] Ibid.
[21] Ibid 7.
[22] Ibid 9.
Dr John Gill, consultant in general and forensic psychiatry, prepared a report dated 20 February 2014[23] in which he:
(a)recorded that Mr Bahng stated that prior to attending upon a psychiatrist, Dr Hokin, he developed extreme thoughts including ideas of suicide and homicidal feelings[24];
(b)recorded that Mr Bahng described developing depression associated with suicidal ideation prior to seeking psychiatric treatment[25];
(c)recorded that Mr Bahng showed no apparent impairment of perception, Mr Bahng’s cognitive functioning did not appear to be impaired, his thought content revealed impaired self-esteem but no apparent delusional thinking and he did not acknowledge having any suicidal intent[26];
(d)did not observe Mr Bahng as showing evidence of current suicidal intent[27]; and
(e)diagnosed Mr Bahng as suffering from an adjustment disorder with anxiety and depression which has now evolved into a Major Depressive Disorder[28].
[23] April Affidavit, Exhibit JAM6, Report of Dr John Gill dated 20 February 2014 (‘Dr Gill’s Report’).
[24] Ibid 2.
[25] Ibid 4.
[26] Ibid.
[27] Ibid 5.
[28] Ibid 6.
Dr Michael Duke, psychiatrist, prepared a report dated 2 September 2014[29] in which he:
(a)recorded that there were no voices and no suicidal ideation[30];
(b)recorded that Mr Bahng’s perception was unimpaired, and in particular there were no illusions or hallucinations[31]; and
(c)diagnosed Mr Bahng as suffering from major depression in partial remission (DSM-IV Category 296.25)[32].
[29] April Affidavit, Exhibit JAM6, Report of Dr Michael Duke dated 2 September 2014 (‘Dr Duke’s Report’).
[30] Ibid 3.
[31] Ibid 5.
[32] Ibid.
Dr John Douglas prepared an initial report dated 12 May 2015[33] in which he:
(a)recorded that Mr Bahng said previously he had suicidal thinking but not now[34], and Mr Bahng denied any disorders of perception such as illusions or hallucinations[35]; and
(b)diagnosed Mr Bahng with major depressive disorder in partial remission (DSM-IV-296.25)[36].
[33] April Affidavit, Exhibit JAM6, Report of Dr John Douglas dated 12 May 2015 (‘Dr Douglas’ Initial Report’).
[34] Ibid 2.
[35] Ibid 5.
[36] Ibid.
Dr Arthur Hokin, psychiatrist, prepared a report dated 29 July 2015 in which he opined that Mr Bahng’s condition had stabilised and could be considered a permanent impairment[37].
[37] April Affidavit, Exhibit JAM6, Report of Dr Arthur Hokin dated 29 July 2015, 2 (‘Dr Hokin’s July Report’).
Dr John Douglas, psychiatrist, prepared a supplementary report dated 9 September 2015[38] in which he found that there may have been some useful improvement to Mr Bahng’s condition (previously diagnosed as a major depressive disorder in partial remission).[39]
[38] April Affidavit, Exhibit JAM6, Report of Dr John Douglas dated 9 September 2015 (‘Dr Douglas’ Supplementary Report’).
[39] Ibid 2.
Dr Steven Adlard, psychiatrist, prepared a report dated 17 November 2015[40] (‘Dr Adlard’s Report’), in which Dr Adlard:
(a)recorded that Mr Bahng said that he had some suicidal thoughts when he was working with Mr Rhee but he no longer has these thoughts[41];
(b)found that Mr Bahng’s thought stream and form were normal[42];
(c)found that some themes of lowered mood were described though Mr Bahng said he no longer has any suicidal ideas[43]; and
(d)concluded that Mr Bahng has a Major Depressive Disorder in partial remission[44], with a total whole person impairment of 15%[45].
[40] April Affidavit, Exhibit JAM6, Report of Dr Adlard dated 17 November 2016 (‘Dr Adlard’s Report’).
[41] Ibid 2.
[42] Ibid 4.
[43] Ibid.
[44] Ibid 5.
[45] Ibid 7.
In addition to the eight reports that were provided to the Panel, I was also taken by Counsel for the Employer to a report prepared by Dr George Mendelson, psychiatrist, dated 2 September 2016 (‘Dr Mendelson’s Report’).[46] There was an argument before me in relation to the admissibility of Dr Mendelson’s Report.
[46] Further Affidavit of Jason Alan McMahon dated 14 September 2016 (‘September Affidavit’), Exhibit JAM11.
Prior to setting out the submissions of the parties as to admissibility, it is convenient for me to set out the circumstances, and findings of Dr Mendelson’s Report.
In Mr Bahng’s outline of submissions dated 15 August 2016 (‘Mr Bahng’s Submissions’), it was submitted that the Panel’s formal diagnosis was one of Major Depressive Disorder, and the reference to psychotic features, including persecutory delusions was an identification of a particular symptomology relevant to or arising from that condition. It was submitted that the Panel’s conclusion was not inconsistent with that of the previous medical practitioners.[47]
[47] Outline of Submissions dated 15 August 2016 (‘Mr Bahng’s Submissions’) 4 [8].
In light of Mr Bahng’s Submissions, the solicitors for the Employer sought an expert opinion limited to the question of whether the diagnosis of the Panel is a materially distinguishable diagnosis from those diagnoses previously given by the medical professionals.
Dr Mendelson’s was of the opinion that:
(a)the diagnosis of ‘severe Major Depressive Disorder with psychotic features’ is materially distinguishable from the previously proposed diagnoses that were listed in the question, in terms of the clinical phenomena, the specific diagnostic terms, and the formal DSM coding[48]; and
(b)the Panel elicited from Mr Bahng psychiatric symptoms that he had not previously described to any of the psychiatrists who had examined him. The clinical relevance of these symptoms is that he has a significant psychiatric disorder that has not been treated appropriately since mid-2013.[49]
[48]September Affidavit, exhibit JAM11, Report of Dr Mendelson dated 2 September 2016, 8 (‘Dr Mendelson’s Report’).
[49] Ibid 9.
Counsel for Mr Bahng objected to the admissibility of Dr Mendelson’s Report on the following bases:
(a)the general tone and content of the affidavit of Jason Alan McMahon dated 14 September 2016 (which exhibits Dr Mendelson’s Report) invite the Court to look at and contest the decision of the Panel on a merits aspect[50];
(b)Dr Mendelson does not actually say that the Panel’s diagnosis is a different diagnosis to that of the previous medical practitioners,[51] and the concept of materially distinguishable is not relevant in the present case.[52] In this regard it was submitted that:
(i)Dr Mendelson seems to confirm that psychotic features is a factor in major depressive disorder. Dr Mendelson only confirmed that it’s a major depressive disorder with psychotic features and has not said that it’s out of the range of a major depressive disorder;[53] and
(ii)Dr Mendelson notes that adjustment disorders are distinguished from severe major depressive disorders. The case is not about adjustment disorders and there is no point in saying the diagnosis of any sub-type of major depressive disorder is clearly distinct from that of an adjustment disorder, as that is quite irrelevant to the present case.[54]
[50] T25 LL10-13
[51] T25 LL13-16
[52] T27 LL10-11
[53] T28 LL12-20.
[54] T27 LL17-26.
Counsel for the Employer submitted that, following the diagnosis of the Panel, which was couched in expert technical fashion, Dr Mendelson’s Report was obtained as evidence as to the meaning of the technical expression.[55] It was submitted that the report fits within the rubric of evidence as may be needed in explanation of technical expressions.[56] Counsel for the Employer relied on the case of Midfield Meat Processing v Fish [2015] VSC 195 in which Bell J admitted a report for the sole purpose of understanding the nature of the panel’s diagnosis and the symptoms that it embraces.[57]
[55] T34 LL2-8.
[56] T34 LL11-13.
[57] T35 L23–T36, L4
In addition to answering the specific questions put to him, Dr Mendelson provided his opinion as to an alternate diagnosis, being Schizophrenia.[58] Counsel for the Employer sought to admit Dr Mendelson’s Report on the basis that the alternative diagnosis gives an indication of the things that they would have explored if given an opportunity to hear what history the Panel had taken.[59]
[58] Dr Mendelson’s Report, 7.
[59] T37 L9–T38, L7.
I do not accept the submission on behalf of Mr Bahng that Dr Mendelson does not opine that the Panel’s diagnosis is a different diagnosis to that of the previous medical professionals. I also find that Dr Mendelson’s reference to adjustment disorders in comparing same with the Panel’s diagnosis is relevant in circumstances where two of the previous medical professionals found Mr Bahng was suffering from such a disorder.
I will allow Dr Mendelson’s Report insofar as it provides an opinion as to whether the diagnosis of the Panel is materially distinguishable from previous diagnoses. However, I will limit the admissibility of the report for this purpose only, and I will not allow the report as evidence of materiality, or otherwise.
The Panel’s Reasons
In reaching its Opinion, the Panel had access to the eight medical reports referred to in paragraphs 15-22 herein, together with the history given by Mr Bahng himself during the examination by the Panel on 5 February 2016. The Panel reached its Opinion on the basis of this material, together with the examination findings elicited by the Panel at the examination on 5 February 2016.
Of particular relevance are the following history and symptoms taken by the Panel during Mr Bahng’s examination on 5 February 2016. The Panel noted that Mr Bahng said that:
(a)he still experiences suicidal ideation occasionally, even though it was more frequent previously;[60]
(b)he asks God for the numbers to the lottery, but then said that God is asking if God gives him the lottery numbers, what will Mr Bahng give him in return. Mr Bahng said that his answer to this is that he will give God his ‘worthless self’. He said that he has frequent conversations with God in his mind;[61]
(c)sometimes he feels as though someone is watching him. He said he had seen the surveillance video of him but had believed that he was being watched before he knew about the surveillance. He said however that since that time he believes he is being watched all the time. He said that he rarely went out of the house before and rarely goes out now;[62]
(d)he also believes someone might be listening in on his phone calls and believes he has to be very careful about what he says. He stated that he has thought there might be cameras in the house actually filming what he is doing and has tried to search for such items, but has not found any. He said he last looked for the cameras in late 2015;[63] and
(e)he did not experience any ideas of reference, but then said that when he is out of the house he does think people might be able to read his mind and take thoughts out of his mind. He said that he has had all such experiences since the problems at his workplace, and not just since the surveillance videos.[64]
[60] Reasons, 5.
[61] Ibid.
[62] Ibid 6.
[63] Ibid.
[64] Ibid.
The Panel conducted a mental state examination, and observed that Mr Bahng denied experiencing hallucinations but gave clear examples of thought insertion and control and persecutory delusions.[65]
[65] Ibid 7.
The relevant paragraphs of the Reasons are as follows:
The Panel therefore concluded that the worker is suffering from a severe Major Depressive Disorder with psychotic features, including persecutory delusions, relevant to the accepted psychiatric injury.
The worker viewed the surveillance recordings with the Panel. The worker identified himself. The Panel formed the opinion that no further information was added by the surveillance and that it was not inconsistent with his presentation.
The Panel considers that due to the nature of the psychiatric injury and the duration of symptoms, the worker’s psychiatric condition has stabilised and is permanent.
The Panel conducted a psychiatric impairment assessment in accordance with the Guide for the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) as required by Section 91(6) of the Accident Compensation Act 1985. The Panel assessed the worker as follows:
Mental Function
Class
Intelligence
1
Thinking
3
Perception
2
Judgment
3
Mood
3
Behaviour
3
In the Panel’s opinion, the median class is 3 and the degree of psychiatric impairment is 35%, all of which results from the accepted psychiatric injury. The Panel considers the worker’s condition is unlikely to improve in the foreseeable future, and therefore concluded that the degree of psychiatric impairment is permanent within the meaning of the Act.
The Panel is of the opinion that there is no impairment from an unrelated injury or cause or previous injury, which is playing a part in the worker’s current impairment and which ought to be disregarded in accordance with Section 91(7)(c) of the Act.
The Panel noted the report of Dr Steven Adlard, Psychiatrist, report dated 17 November 2015, wherein he diagnosed the worker as suffering from a Major Depressive Disorder in partial remission. The Panel also noted that Dr Adlard assessed the worker as having a psychiatric impairment of 15%, all of which was attributable to the accepted psychiatric injury, and considered that the psychiatric injury had stabilised.
On the basis of the Panel’s own examination and history taking and clinical experience and judgment, the Panel came to a different conclusion, regarding diagnosis and total psychiatric impairment. The Panel noted that the worker clearly described psychotic symptoms, including thought control and persecutory delusions and the Panel also formed a different opinion as to the severity of impairment of the workers thinking and judgment and mood and behaviour. The Panel considers that the psychiatric impairment of 35% adequately reflects the extent of the workers severe psychiatric disorder and psychiatric impairment resulting from the accepted psychiatric injury.
The Panel noted the Submission by the WorkSafe Victoria Agent dated 6 January 2016 and considered its Reasons herein adequately and appropriately address the issues raised by the Agent.
The Panel therefore concluded that there is a 35% psychiatric impairment resulting from the accepted psychiatric injury, when assessed in accordance with Section 91 of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.
The Panel assessed the accepted psychiatric injury in accordance with Section 98E of the Act and concluded that there is no total loss or total loss of use injury when assessed pursuant to Section 98E of the Act.[66]
[66] Reasons, 8, 9.
The Legislative Framework
The Written Submissions of the Employer provide a convenient summary of the relevant legislative framework, which was expanded upon in oral submissions by Counsel for the Employer.
Mr Bahng’s entitlement to compensation is governed by the provisions of the ACA.[67] In particular, a claim for impairment benefits is made in accordance with s 98C which provides that a worker who suffers a compensable injury resulting in permanent impairment is entitled to lump sum compensation for non-economic loss calculated pursuant to s 98C of the ACA.[68]
[67] Mr Bahng’s submissions [4].
[68] Ibid [5].
Section 98C(1) requires an assessment of the degree of permanent impairment resulting from the injury to be conducted in accordance with s 91 of the ACA[69].
[69] ACA s 98C(1).
The assessment required for the purpose of compensation under s 98C(1) may only be made after the injury has stabilised.[70] Further, s 91(7)(c) provides that for the purpose of s 98C, impairments from unrelated injuries or causes are to be disregarded in making an assessment[71].
[70] Submissions [5] citing ACA s 91(1A)(a).
[71] Submissions [5] citing ACA s 9 1(7)(c).
In order for lump sum compensation to be payable in respect of psychiatric injuries, the degree of permanent psychiatric impairment as assessed pursuant to s 91 must be 30% or more.[72]
[72] Submissions [5] citing ACA s 98C(3).
In relation to the assessment required for the purposes of s 98C, s 91 prescribes that the degree of impairment is to be assessed ‘in accordance with’ the AMA Guides[73]. For the assessment of psychiatric injuries, the AMA Guides apply ‘subject to any regulations made for the purposes of this section, as if for Chapter 14 there were substituted [the GEPIC]’[74].
[73] ACA s 91(1)(a).
[74] Ibid s 91(6).
The Written Submissions of the Employer also provide a helpful overview of the principles contained in the AMA Guides and the GEPIC, relevant to the assessment to be undertaken pursuant to s 91 of the Act.
The GEPIC defines ‘permanent impairment’ as follows:
Impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite future medical treatment. If an impairment is not permanent, it is inappropriate to characterise it as such.[75]
[75] The GEPIC, 1567.
The AMA Guides define ‘permanent impairment’ as:
impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it according to the Guides criteria.[76]
[76] The AMA Guides, 315.
In relation to the assessment of impairment, the GEPIC provides that:
[t]he assessment of psychiatric impairment is based on the systematic application of empirical criteria, and takes into consideration both the diagnosis and other factors unique to the individual. It is also relevant to consider motivation, and to review the history of the illness, as well as the treatment and rehabilitation methods.[77]
[77] The GEPIC, 1566
GEPIC sets out five principles relevant to its application. Principle 5 states:
A careful review must be made of the treatment and rehabilitation methods that have been applied or are being used. No final judgment can be made until the whole history of the illness, the treatment, the rehabilitation phase, and the individual’s current mental and physical status and behaviour have been considered.[78]
[78] Submissions [8] citing the GEPIC, 1566
To conduct the assessment, the assessor evaluates the severity of impairment of six mental functions (intelligence, thinking, perception, judgment, mood and behaviour) by reference to five classes of impairment described in the GEPIC.[79] Under the heading ‘Use of the Guide’ the GEPIC explains:
The descriptors associated with particular classes for each mental function are intended to be indicative only. They are intended to provide an overview of the type and severity of symptoms expected for each particular class. It would be futile to attempt to list all relevant symptoms and would be onerous for the assessor. The absence of a particular symptom in the list of descriptors does not mean that that symptom is to be disregarded. The assessor may be required to justify why that/those symptom(s) is/are associated with a particular class of severity.[80]
[79] Submissions [9].
[80] The GEPIC, 1566
In the course of submissions, Counsel for the Employer outlined the purpose of the AMA Guides, and referred[81] to the case of H J Heinz & Anor v Kotzman & Ors [2009] VSC 311 (‘H J Heinz’)[82] in which Kyrou J noted as follows:
[24] The interpretation of the Guides is a question of law. The determination of the level of impairment is a question of fact.
…
[27] The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[83]
[81] T40 L14.
[82] H J Heinz & Anor v Kotzman & Ors [2009] VSC 311 (‘H J Heinz’).
[83] Ibid [24],[27] (citations omitted).
Kyrou J further stated inter alia that ‘the role conferred by the Act on a [medical] panel is not to arrive at a fair or correct assessment but rather to arrive at an assessment that is the product of the application of the guides’.[84]
[84] Ibid [46].
Counsel for the Employer submitted that in circumstances where the GEPIC is substituted for chapter 14 of the AMA Guides, the principles outlined by Kyrou J in H J Heinz are directly applicable to an assessment made in accordance with GEPIC.[85]
[85] T42 L8.
Counsel for Mr Bahng took issue with the applicability of Kyrou’s J’s statements to the use of the GEPIC, submitting that the AMA Guides provide for particular results dependent upon particular things that are observed objectively, which are measurable, and being measured by a measuring process they lead to a particular result. The GEPIC on the other hand uses judgmental words like mild, severe and other words which are not capable of percentage assessment.[86]
[86] T42 L20.
Counsel for Mr Bahng submitted that one cannot move from statements about the AMA Guides (which are objective in their language and in their diagrams) to the GEPIC which has assessments made on the basis of judgment of words which are not themselves confined by a particular numerical order.[87]
[87] T41 L29-T43, L4.
Whilst Counsel for Mr Bahng did not consent to the applicability of H J Heinz to the GEPIC, I find there was no sound basis put to the Court as to why the principles enunciated by Kyrou J in H J Heinz should not be applied to provide guidance as to the use of the GEPIC.
The Applicable Law
Procedural fairness
In Kioa v West (1985) 159 CLR 550 (‘Kioa’), the High Court held that the Tongan citizens concerned were entitled, in keeping with ordinary rules of procedural fairness, to be heard before the making of the deportation orders against them so that they might deal with matters prejudicial to them that had been put to the Minister's delegate.
Mason J stated:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[88]
[88] Kioa v West (1985) 159 CLR 550, 582.
Mason J distinguished the principle of natural justice from the principle of procedural fairness:
it is more appropriate to speak of a duty to act fairly or to accord procedural fairness [than to speak of natural justice]. This is because the expression "natural justice" has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making ... The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision-making, procedures which do not necessarily take curial procedures as their model.[89]
[89] Ibid 583-4.
Mason J stated that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.[90]
[90] Ibid 584.
His Honour continued:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; National Companies and Securities Commission v News Corporation Ltd. In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements.[91]
[91] Ibid 584-5 (citations omitted).
In Masters v McCubbery [1996] 1 VR 635 (‘McCubbery’), Winneke P said: ‘the critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?’[92]
[92] Masters v McCubbery [1996] 1 VR 635, 645 citing Kioa (1985) 159 CLR 550, 585.
In Calleja v Franet Pty Ltd & Ors [1999] VSC 202, the medical panel had decided that Ms Calleja’s symptoms were indicative of menopause. The medical panel had refused to provide Ms Calleja’s solicitor with additional documents evidencing the factual foundation on which the attribution to menopause was reached. Vincent J stated:
[21] In circumstances, such as those present in the matter before the Court, where a decision can, as a practical proposition, finally determine a person’s legal rights, it is of the utmost importance that the affected individual has been given a proper opportunity to be heard.
[22] Apart from a few quite innocuous questions asked of the appellant at the Magistrates' Court, the answers to which were never challenged in any respect, there was no indication whatever that menopause was or could have been an issue. Nor was there in the medical reports forwarded to the Panel any suggestion or question that the symptoms of which Mrs. Calleja was complaining could have been related to its onset.[93]
[93] Calleja v Franet Pty Ltd & Ors [1999] VSC 202 [21], [22].
His Honour continued:
in the circumstances of this case, Mrs Calleja had no way of knowing that the issue had arisen, the Panel should have informed her that it may arrive at the view that her symptoms were related not to her work injury but to a quite separate condition.
Given the finality of its decision (see s 68(4) of the [Accident Compensation] Act which states that the opinion of a Medical Panel “must be accepted as final and conclusive by any court, body or person”) and the effect that it would have upon her legal rights, the concept of procedural fairness required in the particular circumstances of her case that Mrs Calleja be informed about the basis upon which it arrived at its view which, accordingly, should have been regarded as preliminary or tentative.
This is so because it must have been apparent to the Panel, that had before it the transcript of the Magistrates’ Court proceedings, the pleadings and numerous medical reports, that in none of which documents was there any suggestion that menopause was an issue in Mrs Calleja’s case. She should have been afforded an opportunity to present material on this issue.[94]
[94] Ibid [22]-[23].
Vincent J quashed the decision and the question of Ms Calleja’s incapacity was remitted to another medical panel.
The parties referred to Weerappah v Nisselle [1999] VSC 249. In that case, the WorkCover Conciliation Officer had sent questions, documents and a video tape to a medical panel and did not initially provide Ms Weerappah’s solicitor with a copy of the questions and documents.[95] Ms Weerappah’s solicitor eventually received the video tape. The medical panel did not ask Ms Weerappah’s solicitor to respond to the video tape. The medical panel then made its decision.
[95] Ibid [10], [11].
Smith J held that there had been a denial of procedural fairness as Ms Weerappah had been denied an opportunity to be heard on the form and content of the medical questions to be put to the medical panel and had been denied an opportunity to put forward material relating to the medical questions, both as to their form and as to the merits of the matters referred to the medical panel.[96] His Honour granted certiorari to quash the medical panel’s decision and issued an order of mandamus that the matter be referred to another medical panel.[97]
[96] Weerappah v Nisselle [1999] VSC 249 [46].
[97] Ibid [54].
In obiter, his Honour makes it clear that both the employee and employer are to be afforded natural justice:
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.[98]
[98] Ibid [50].
In Vegco Pty Ltd v Gibbons & Ors [2008] VSC 363 (‘Vegco’), the medical panel had been informed that the injured worker had suffered a subsequent injury in Broome, Western Australia. The medical panel had been provided with a radiological report of that subsequent injury. The medical panel had not notified the solicitors for the employer about the worker’s subsequent injury in Broome. Kyrou J held that not notifying the employer was a breach of procedural fairness.[99]
[99] Vegco Pty Ltd v Gibbons & Ors [2008] VSC 363 [23]-[27] (‘Vegco’).
In HJ Heinz, Kyrou J held that the medical panel exceeded its jurisdiction in assessing the total impairment of an ankle replacement in a way not set out in the AMA Guides.[100] On that basis, his Honour quashed the medical panel’s decision. However, in obiter, Kyrou J also responds to the appellant’s alternative ground of review, that it had been denied natural justice.[101]
[100] HJ Heinz [2009] VSC 311 [47]-[55].
[101] See ibid [62]-[70].
His Honour held that by going beyond the provisions of the AMA Guides, the medical panel had also breached the hearing rule.[102]
[102] Ibid [63].
In Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248 (‘Barrett Burston’), Cavanough J stated:
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be “heard” (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.[103]
[103] Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248 [34] (‘Barrett Burston’).
Subsequently, his Honour stated:
I agree with the employer’s submission that the medical panel’s psychiatric diagnosis – that the worker [Mr Vranjesevic] was suffering from a “factitious disorder” – was unexpected and could not reasonably have been anticipated; and that the employer was denied a fair opportunity to address the matter. In my view, the panel’s psychiatric diagnosis of a “factitious disorder” in its opinion and reasons came “out of the blue”.[104]
[104] Ibid [48].
His Honour stated that the expression ‘factitious disorder’ did not appear in any document that went to the medical panel, including three medical reports from different doctors.[105] His Honour rejected the worker’s contention that the employer should have anticipated that the medical panel might arrive at a diagnosis of ‘factitious disorder’.[106]
[105] Ibid [50].
[106] Ibid.
His Honour continued:
The quality of the medical panel’s decision and the clarity of its explanation of its reasons could only have been improved by affording the employer an opportunity to comment on the novel proposition that the worker was suffering from a factitious disorder. Such an opportunity was all the more necessary because there may be a question as to whether any entitlement to statutory benefits under the Act can properly arise from or through a factitious disorder.[107]
[107] Ibid [51].
Cavanough J held that the employer had been denied natural justice as it was not given an opportunity to make submissions on the medical panel’s opinion that the worker had a ‘factitious disorder’. His Honour quashed the medical panel’s decision and referred the matter to a differently constituted medical panel.[108]
[108] Ibid [53].
In Sargent v Disler [2016] VSC 292 (‘Sargent’), McDonald J cites paragraph [9] of Ashley JA’s judgment in North v Homolka [2014] VSC 478:
It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation.[109]
[109] Sargent v Disler [2016] VSC 292 [9] (‘Sargent’) citing North v Homolka [2014] VSC 478 [103]-[104].
In Sargent, the medical panel had made a decision that Mr Sargent had maltracking of a patella. McDonald J held that the medical panel had reached that conclusion after analysing an MRI scan attached to a doctor’s report.[110] McDonald J stated there were three main factors indicating that Mr Sargent was denied procedural fairness by not being afforded an opportunity to file material with the medical panel in respect of the maltracking finding:
First, none of the medical reports filed with the Panel made any reference to maltracking of the patella. Second, the radiologist’s report of 8 August 2012 made no reference to maltracking of the patella. Third, the written submissions filed in the Magistrates’ Court by Qube, which were provided to the Panel, made no reference to maltracking of the patella.[111]
[110] Sargent [2016] VSC 292 [26].
[111] Ibid [39].
McDonald J stated that:
I am not satisfied that had Mr Sargent been afforded an opportunity to place material before the Panel in relation to the maltracking finding, the Panel would inevitably come to the same conclusion that he did not suffer from any ongoing work related incapacity, and that any ongoing knee dysfunction was constitutional in origin.[112]
[112] Ibid [50].
His Honour held that Mr Sargent had been denied procedural fairness by reason of not being afforded an opportunity to place material before the medical panel in respect of the maltracking finding. His Honour quashed the medical panel’s decision.[113]
[113] Ibid [59].
Adequacy of Reasons
There was no dispute before me as to the law in relation to the adequacy of reasons, which is clearly set out in the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’) in which their Honours said, inter alia:
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.[114]
[114] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55] (‘Wingfoot’).
In considering the standard of reasons required, the High Court in Wingfoot stated[115]:
A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.
[115] Ibid 502 [56].
In applying the standard of reasons as established in Wingfoot, the Court of Appeal in Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 (‘Gruma Oceania’) stated that if the reasons are such that the Court is left in real doubt about whether the medical panel correctly performed its statutory functions, the reasons will not comply with ACA
s 68(2).[116][116] Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [47].
Phillips JA, in the case of S v Crimes Compensation Tribunal [1998] 1 VR 83 stated that an evaluation of a psychiatric impairment is a question ‘on which minds can legitimately differ, involving a value judgment on the evidence (or other material)’.[117]
[117] Ibid 89.
In Woolworths Ltd v Warfe [2013] VSCA 22, Kaye AJA noted that a serious injury application necessarily involves a substantial amount of value judgment which does not itself admit of detailed explicit reasoning.[118] His Honour further stated:
The adequacy of the reasons must depend upon the issues, and nature of the proceeding, in any individual case. In an appropriate case, reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. Thus, as Neave and Beach AJA stated in Murray Goulburn Coop Co ltd v Filliponi:
In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based. [119]
[118] Woolworths Ltd v Warfe [2013] VSCA 22 [130].
[119] Ibid [131] (citation omitted).
In the case of Dias v Oakleigh Centre Industries [2016] VSC 115, in the context of a medical panel opinion, Cavanough J stated that ‘the reasons behind the formation of an opinion by a medical panel on an evaluative question of that nature cannot often be extensively articulated’.[120]
[120] Dias v Oakleigh Centre Industries [2016] VSC 115 [29].
Relevant and Irrelevant Considerations
The applicable law in relation to relevant and irrelevant considerations was conveniently summarised in the Employer’s Submissions, which I will adopt for the purpose of this judgment.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, the High Court set out the following matters which must be established in a challenge to the decision of an administrative decision-maker where failure to take into account a relevant consideration is asserted:
(a)the relevant consideration must be one ‘which he is bound to take into account in making that decision’;[121]
(b)the factors which must be taken into account can only be determined by reference to the relevant statute[122]:
If the relevant factors — and in this context I use this expression to refer to factors which the decision-maker is bound to consider — are not expressly stated they must be determined by implication from the subject matter, scope and purposes of the Act.[123]
(c)a failure to take into account a particular consideration will not necessarily result in a setting aside of the decision. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.[124]
(d)the court’s role is to review the exercise of the discretion — if it is made appropriately within the discretion it cannot be assailed. The limited role of a court reviewing the exercise of an administrative function must constantly be borne in mind.[125]
[121] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
[122] Ibid.
[123] Ibid.
[124] Ibid 40.
[125] Ibid.
The Full Federal Court explained that consideration of a mandatory matter ‘requires a decision-maker to engage in an active intellectual process, in which each relevant matter received his or her genuine consideration’.[126]
[126] Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts [2011] FCAFC 59 [44].
In addressing what would constitute a mandatory relevant consideration for the purpose of a medical panel constituted under the ACA, the Court of Appeal in Ryan v the Grange at Wodonga Pty Ltd [2015] VSCA 17 stated that:
Under s 65(5) a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. 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.[127]
[127] Ryan v the Grange at Wodonga Pty Ltd [2015] VSCA 17 [60].
A decision maker is correspondingly precluded from taking into account irrelevant considerations, being ‘factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error’.[128]
[128] Ballantyne v Workcover Authority (NSW) [2007] NSWCA 239 [113].
The Employer’s Submissions
Counsel for the Employer submitted that the Panel made the following errors[129]:
(a)failure to accord procedural fairness;
(b)failure to take into account relevant considerations/taking into account irrelevant considerations; and
(c)failure to provide adequate reasons.
[129] Plaintiff’s Outline of Submissions dated 21 June 2016.
Failure to accord procedural fairness
Counsel made the following submissions in support of the contention that the Employer had not been afforded procedural fairness, in circumstances in which the additional history and the diagnosis came ‘out of the blue’,[130] and could not have been reasonably anticipated by the Employer:
(a) nowhere in the material provided to the Panel was there any mention of psychotic features or an account of symptoms characterised by persecutory delusions;[131]
(b) in contrast to all prior material, on examination of Mr Bahng, the Panel took an account of symptoms of delusions, thought control and persecutory paranoia[132];
(c) differing from the supplied material, the Panel also took a history suggestive of occasional ongoing (as opposed to past and entirely resolved) suicidal ideation[133];
(d) the history given by Mr Bahng to the Panel is at odds with what Mr Bahng reported to the previous doctors, and there is a gulf between the previously reported symptoms to multiple medical practitioners and the additional material recorded by the Panel. Each of the prior medical practitioners did not refer to an active psychotic presentation in coming to their view;[134]
(e) the psychiatric and delusional symptoms, along with ongoing suicide ideation amounted to new information and differing symptoms of the type referred to by the agent[135];
(f) the Panel unquestionably relied on this new information in coming to a novel diagnosis involving severity and psychotic features, increasing its assessment of Mr Bahng’s whole person impairment;[136] and
(g) such striking symptoms (conversations with God in relation to lottery numbers, belief that someone is listening to phone calls, may be able to read his mind) are distinguishable from the isolated reference in a 2013 report to delusional feelings of guilt.[137]
[130]T48 L31-T49 L4 citing Barret Burston [2013] VSC 248 [48].
[131] Plaintiff’s Submissions, [26]; T49 L8.
[132] Ibid [29]
[133] Ibid [30].
[134] Ibid [31]; T51 LL9-16 .
[135] Ibid [33]; T51 LL28-31.
[136] T52 LL1-4.
[137] ` T60 LL4-6.
It was submitted that in circumstances in which the Panel did not advise the Employer of this new information or differing symptoms, and the Employer had no ability to ascertain these issues, or be informed of the nature or content of this material before the Panel went on to reach its Opinion, the Employer was denied the opportunity to address the new information.[138]
[138] T52 LL6-11.
Counsel for the plaintiff cited McCubbery [1996] 1 VR 635 for the proposition that it had a right to be heard regarding the ‘adverse new material’ that Mr Bahng gave the Panel on 5 February 2016.[139]
[139] T100 L28.
The Employer disagreed with Mr Bahng’s submission that the Panel’s diagnosis should be read as a major depressive order with the accompanying words psychotic features including persecutory delusions, a reference to symptoms rather than part of the diagnosis itself[140] such that it is not a new diagnosis. The Employer submitted that this submission is contrary to the structure and the wording of the Reasons.[141]
[140] Mr Bahng’s Submissions, [12].
[141] T57 LL13-20.
In this regard, Counsel for the Employer submitted that the terms ‘severe and with psychotic features’ are terms of art which are specifiers, demonstrating that it’s a different kind or a special kind of major depressive disorder that’s being described, with a separate coding and therefore describing a distinguishable disorder.[142]
[142] T57 L31-T58 L4.
It was submitted that the Court ought to be satisfied that the diagnosis found by the Panel was not one which was present or reasonably apparent on any prior materials and came out of the blue for the Employer.[143]
[143] T58 LL14-17.
It was further submitted that, even if the Court concludes that it is still in a sense part of the same diagnosis, this does not relieve the Panel of the requirement to afford the Employer procedural fairness in respect of findings that could not be reasonably anticipated. It was put to me that this requirement is not merely to inform the Employer of a novel diagnosis, but of anything that the Panel finds that means the Employer did not get a fair hearing.[144] Counsel referred[145] to the case of Sargent [2016] VSC 292 in which McDonald J found that a symptom was sufficiently new and material to the ultimate finding that the fact that it hadn’t been disclosed meant there was a deficiency in procedural fairness that warranted certiorari.
[144] T58 LL18-24.
[145] T58 L26.
Counsel submitted that the psychotic symptoms are so substantially different from any prior symptoms reported on by other medical examiners that the Employer was not given an opportunity to have the Panel’s proposed conclusions explored by its own experts.[146]
[146] T60 LL9-14.
It was put to me that, in terms of materiality, the additional information of the sort which could have been obtained by the Employer was logically capable of affecting the Panel’s decision making process regarding diagnosis, causation, assessment of impairment, apportionment of impairment and stabilisation of injury.
Failure to take into account relevant considerations/ taking into account irrelevant considerations
The Employer submitted that the Panel failed to have regard to mandatory considerations.[147] In addressing this ground, some of the submissions also traverse the ground of failure to give adequate reasons.
[147] T52 L17.
Counsel submitted that the Panel relied on ‘clearly described psychotic symptoms, including thought control and persecutory delusions’ in reaching its Opinion. It was submitted that the absence of prior documented psychotic symptoms or diagnosis with psychotic features component were matters which arose from the materials and the Panel was required to consider and address this in its reasons[148].
[148] Plaintiff’s Submissions, [35].
Firstly, Counsel referred to the GEPIC principles which require the Panel to consider the whole history of the illness and treatment.[149]
[149] Ibid [36]; T52 L18.
Counsel also referred to the AMA Guides[150] which direct the Panel to consider in its evaluation whether its current findings are consistent with the results of previous clinical examinations by stating that ‘if the current findings do not agree with the recorded information, there should be further clinical evaluation to resolve the disparities’.[151]
[150] Ibid [36]; T52 L18.
[151] AMA Guides, 2.
Counsel submitted that the Panel recorded in the Reasons Mr Bahng’s history of treatment and medication and set out a detailed account of currently reported symptoms, but made no attempt to reconcile the differing symptoms.[152] It was submitted that the inconsistency of findings between the Panel and previous reports was a matter that the Panel was bound to give consideration to and failed to do so.[153]
[152] T52 LL20-24.
[153] Plaintiff’s Submissions, [36].
Counsel submitted that either the intellectual engagement required (in which each relevant matter receives genuine consideration) did not occur, in which case the Panel failed to engage with that earlier history the way they are bound to do, or if the Panel did so intellectually engage, it is unstated so there are no reasons to explain how the Panel resolved the disparity.[154]
[154] T53 L29-T54 L2.
Secondly, it was submitted that s 91(7)(c) of the ACA directs that any impairment from unrelated causes is to be disregarded so as to ensure that the impairment assessment relates only to the impairment resulting from the compensable injury. It was submitted that the Panel was required to consider the extent to which Mr Bahng’s current complaints resulting in impairment might be attributed to unrelated causes, and that the Panel did not properly carry out its task in relation to considering the possibility of irrelevant impairments that are required to be disregarded from the assessment.[155]
[155] T55 LL4-L6.
In this regard, Counsel referred to the Reasons[156] in which the Panel states as follows:
The Panel is of the opinion that there is no impairment from an unrelated injury or cause or previous injury, which is playing a part in Mr Bahng’s current impairment and which ought be disregarded in accordance with section 91(7)(c) of the Act.[157]
Counsel submitted that this is a formulaic statement insufficient to support the proposition that the Panel gave genuine consideration to the extent to which the newly reported symptoms could be causally attributed to the compensable injury for which the liability was accepted[158] — one of the mandatory considerations they were bound to have regard to.[159]
[156] T55 L7.
[157] Reasons, 8.
[158] Plaintiff’s Submissions, [38].
[159] T54 L11.
Thirdly, Counsel submitted that the Panel was bound to consider whether the additional history, namely the psychotic symptoms, and apparent re-emergence of suicidality represent an ongoing fluctuation or deterioration in Mr Bahng’s condition such that his condition has not stabilised.[160]
[160] T56 LL14-19.
Counsel referred me to the Panel’s Reasons as follows:
The Panel considers that due to the nature of the psychiatric injury and the duration of symptoms, Mr Bahng’s psychiatric condition has stabilised and is permanent.[161]
[161] Reasons, 8.
It was submitted that this is a formulaic and generally expressed statement which could not be fairly construed as indicating that the Panel gave genuine consideration as to whether Mr Bahng’s condition was permanent and static in the light of the recent new symptoms identified by the Panel.[162]
[162] Plaintiff’s Submissions, [39]; T56 L5-10.
Counsel submitted that the recency of the history taken by the Panel, and the difference in the history compared to multiple previous reports ought to have put the Panel on sufficient notice to expose their thinking as to how they could say this was a stabilised and permanent condition.[163] It was submitted that the Panel was bound to consider whether the additional history represented ongoing fluctuation or deterioration in Mr Bahng’s condition such that his condition had not stabilised within the meaning of the AMA Guides, GEPIC and the ACA[164].
[163] T56 LL26-30.
[164] Plaintiff’s Submissions, [39].
Adequacy of reasons
The Employer claims that the Panel’s Reasons fail to show the path of reasoning by which the Panel arrived at its Opinion sufficient to enable a Court to determine whether the Opinion involves any error of law[165].
[165] Ibid [40].
Counsel referred the Court to the wording of the GEPIC,[166] which provides:
The assessment of psychiatric impairment is based on the systematic application of empirical criteria and takes into consideration both the diagnosis and other factors unique to the individual. It’s also relevant to consider motivation and to review the history of the illness as well as treatment and rehabilitation methods.[167]
[166] T39 L3.
[167] The GEPIC, 1566.
The Court was also taken to principal 5 of the GEPIC[168] which states:
A careful review must be made of the treatment and rehabilitation methods that have been applied. No final judgment can be made until the whole history of the illness, the treatment, the rehabilitation phase and the individual’s current medical and physical status and behaviour have been considered.[169]
[168] T39 L13.
[169] Ibid.
Further, the AMA Guides direct the Panel to consider whether its current findings are consistent with the results of previous clinical examinations.[170]
[170] Plaintiff’s Submissions [42] citing the AMA Guides, 2.
It was submitted that the Panel made no comment in its Reasons as to whether it considered the ‘clearly described’ psychotic symptoms had newly emerged, whether they had persisted for some time and other practitioners had wrongly failed to ascertain them or whether there was some other explanation for absence of these symptoms documented in any of the existing medical material.[171]
[171] Plaintiff’s Submissions [42].
The Reasons do not disclose as required that the Panel gave any active intellectual consideration to whether the psychotic symptoms were consistent with the previous clinical examinations concordant with the full history of Mr Bahng’s illness and psychiatric treatment.[172] Counsel submitted that by failing to sufficiently address the emergence and clinical course of the psychotic symptoms it identified, the reasons fail to illuminate whether the Panel properly performed the impairment assessment.[173]
[172] T64 LL11-15.
[173] Plaintiff’s Submissions [42].
Counsel for the Employer rejected Mr Bahng’s submission to the effect that the Panel reasoned as it did on the basis that Mr Bahng’s psychotic symptoms were newly recorded but not newly experienced. It was submitted by Counsel for the Employer that without any statement to this effect in the Reasons, there is a risk of attributing a path of reasoning to the Panel that is not the actual path of reasoning.[174]
[174] T64 LL25-30.
It was submitted that the Panel failed to adequately show how it arrived at the ratings for thinking, perception, judgment, mood and behaviour with reference to the descriptors in the GEPIC (each of which were assessed to be a higher class as compared with Dr Adlard).[175]
[175] Plaintiff’s Submissions, [41].
While the Employer concedes that the assessment of 35% was open to the Panel and could have been made lawfully, it was submitted that as it stands the Court is unable to determine by what means lawful or otherwise the Panel evaluated that assessment.[176] Counsel submitted that the Court should not be left having to engage as in H J Heinz, a speculative gap filling to make good the Panel’s reasons.[177] There is no elucidation as to the criteria or process the Panel employed to come to this assessment; the Court is left to speculate as to the manner in which the Panel exercised its clinical judgment.[178]
[176] T66 LL5-9.
[177] T66 L4.
[178] Ibid [43].
It was submitted that the Court is left in ‘real doubt’ as to whether the Panel correctly performed its statutory function, correctly interpreting and adhering to the GEPIC directions, such a failure constitutes a breach of the requirement for reasons in s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’).
Mr Bahng’s Submissions
Procedural Fairness
Counsel for Mr Bahng made the following submissions as to the Employer’s claim that the Panel failed to accord it procedural fairness:
(a)firstly, the Employer misconstrued the Panel’s diagnosis, which was ‘Major Depressive Disorder’ which is not in fact inconsistent with the medical practitioners who had previously examined Mr Bahng;[179]
(b)secondly, while Counsel for Mr Bahng acknowledges that no prior medical examiner specifically identified ‘psychotic features’ or ‘persecutory delusions’, Counsel referred to the report of Dr Athey dated 17 October 2013 in which he documented that Mr Bahng ‘did have morbid beliefs in that he appeared to have delusional feelings of guilt over the effect of his illness on other people’. It was submitted that, in this regard, it could not be said that the identification of delusional symptomology came out of the blue;[180]
(c)thirdly, there was a generally consistent reporting of symptoms and the effect of the injury by Mr Bahng to the examining doctors, notwithstanding the Panel being given a history termed the ‘additional history’;[181]
(d)fourthly, Mr Bahng specifically denied to the Panel that he was experiencing hallucinations, which was consistent with the history previously given. The Panel’s finding of psychotic features was based on its questioning of Mr Bahng and its assessment of his answers. Insofar as prior examiners had considered there were no hallucinations or delusions, this represented a conclusion of their assessment which differed from that of the Panel (as opposed to any specific assertion by Mr Bahng himself);[182] and
(e)fifthly, it could not be said that the history given to the Panel of some occasional suicidal ideation, but without any intent, could not reasonably be anticipated. There had been suicidal thoughts accompanying the onset of the injury which was reported to several of the medical practitioners, namely[183]:
(i)By 20 June 2013[184] there was no suicidal ideation;
(ii)On 17 October 2013[185] the possibility of suicidal ideation (in the future) was mooted; and
(iii)By 20 February 2014[186] suicidality had reduced.
[179] Mr Bahng’s Submissions, [8].
[180] Ibid [19].
[181] Ibid [20].
[182] Ibid [21].
[183] Ibid [22].
[184] Dr Dharwadkar’s Report, 6.
[185] Dr Athey’s Report, 11.
[186] Dr Gill’s Report, 2.
Whilst Mr Bahng generally accepted the correctness of the legal principles as to procedural fairness set out by the Employer, it was submitted that it is important to note that:
(a)the overarching consideration is whether the employer has been given the opportunity of being heard; and
(b)this involves an evaluative question of fact and degree.[187]
[187] Mr Bahng’s Submissions [23].
It was submitted that in the above circumstances, the Court should not be satisfied that the Panel has failed to accord the Employer procedural fairness.[188]
[188] Ibid [24].
It was further submitted that even if the Court finds that the Panel failed to accord the Employer procedural fairness, relief in the nature of certiorari should not be granted, as there was nothing the Employer might have done to address the new information which might have resulted in a different finding.
Relevant and Irrelevant Considerations
Counsel for Mr Bahng submitted that the claim that the Panel failed to take into account relevant considerations should be rejected.
Firstly:
(a)there was, generally, a consistent reporting and recording of symptoms by medical examiners for Mr Bahng; and
(b)delusional symptoms or features of Mr Bahng’s psychiatric illness had previously been identified.[189]
[189] Ibid [29].
It was submitted that the Panel sufficiently addressed the difference in its conclusions compared to those of previous medical practitioners. The ‘clearly described psychotic symptoms’ referred to by the Panel were not newly experienced by Mr Bahng and the Panel recorded that ‘he has had all such experiences since the problems in his workplace, and not just since the surveillance videos’.[190]
[190] Ibid [30].
In the absence of any suggestion of Mr Bahng being untruthful, it was submitted that it was appropriate for the Panel to act upon the history received, and it was not necessary for it to further ‘reconcile’ any differences in assessment.[191]
[191] Ibid [31].
Secondly, there is no basis upon which to suggest that the newly reported symptoms might be attributable to injury other than for which liability was accepted. The symptoms were newly reported but not newly experienced.[192]
[192] Ibid [32].
Thirdly, the Panel gave specific consideration to whether Mr Bahng’s condition was stable[193] stating:
The Panel considers that due to the nature of the psychotic injury and the duration of symptoms, Mr Bahng’s psychiatric condition has stabilised and is permanent.[194]
[193] Ibid [33].
[194] Reasons, 8.
It was submitted that, in circumstances where the Panel accepted that Mr Bahng’s history of psychiatric features commenced ‘since the problems at his workplace and not just since the surveillance videos’, the Panels’ finding as to stability was open to it[195].
[195] Mr Bahng’s Submissions, [34].
Adequacy of reasons
It was submitted that the complaint that the Reasons are deficient should be rejected.
Firstly, it was submitted that the Panel recorded and appeared to have accepted Mr Bahng’s history that the psychotic features of his illness commenced since the problems at his workplace rather than more recently and had persisted since that time.[196]
[196] Ibid [42].
Secondly, the assessment under the GEPIC, and the ultimate conclusion of a 35% psychiatric impairment, was an evaluative question for the Panel. The evaluation was necessarily, and appropriately, informed by the history taken by the Panel, the mental state examination, and the application if its expertise. It cannot be said the evaluation was irrational or not open to the Panel.[197]
[197] Ibid [43].
It was submitted that the Court should accept that the Panel set out the path of reasoning by which it arrived at its Opinion, and the Reasons contain sufficient detail to enable the reviewing court to determine whether or not the Opinion involved any error of law.[198]
[198] Ibid [44].
In addition to the Written Submissions, Counsel for Mr Bahng made further oral submissions in the course of the hearing.
Counsel spent a considerable amount of time in oral submissions comparing the Panel’s assessment of the GEPIC principles to Dr Adlard’s assessment of those principles. Counsel proceeded to demonstrate the numerical calculations undertaken by each of the Panel and Dr Adlard, in an attempt to support the submission that the history given to the Panel by Mr Bahng of his psychotic symptoms did not alter the ultimate assessment made by the Panel.
Counsel for Mr Bahng also made oral submissions as to the character and integrity of Mr Bahng. In particular, Counsel submitted that the descriptions given by all doctors who had seen Mr Bahng are that he is an honest and honourable person.[199] Counsel submitted that the fact that the Panel believed what he said, led to there being no resolution which is required to be exposed in the Reasons[200]
[199] T82 L2.
[200] T82 L13.
Finally, Counsel for Mr Bahng submitted that the Panel took the view that the psychotic symptoms were not relevant to the question of the calculation of impairment,[201] and the psychotic features did not give rise to a different diagnosis[202] or have any relevant effect on the assessment.[203]
[201] T87 L3.
[202] T90 L18.
[203] T90 L21.
Analysis
Counsel for the Employer submitted that ‘the history taken by the Panel of psychotic symptoms, as well as the diagnosis that they made, which is severe major depressive disorder with psychotic features including persecutory delusions, came out of the blue in the Barrett Burston sense’.[204]
[204] T48 L31.
The cases cited by the parties can be divided into two categories. The first category features cases in which the parties had all the information that was before the Panel and the Panel then interpreted that information in a way that was arguably not ‘reasonably anticipated’ or expected by the parties.[205] The second category features cases in which at least one of the parties was lacking information that the Panel had.[206] The facts of this matter pertain more closely to the latter category.
[205] Calleja [1999] VSC 202; HJ Heinz [2009] VSC 311; Barrett Burston [2013] VSC 248; Sargent [2016] VSC 292.
[206] Weerappah [1999] VSC 249; Vegco [2008] VSC 363.
In Weerappah, Smith J stated
Having an obligation to accord natural justice means that the body in question must consider what its obligations are in the circumstances of a particular case and it carries the responsibility to accord natural justice to the litigants. That can be a significant burden where parties are not represented. Counsel for the defendants, in referring to the above case [Kioa], conceded that there could be situations where the relevant tribunal was obliged to give an opportunity to the relevant parties to be heard about a critical issue — for example, where the worker provided the Panel with new material and, thus, in fairness to the insurer, it was necessary to contact the insurer to give it an opportunity to respond.[207]
[207] Weerappah [1999] VSC 249 [41].
The medical panel had been given a video tape of Ms Weerappah, and had not notified Ms Weerappah’s solicitor about the video. Smith J stated:
the video constituted a significant piece of evidence as to which neither the plaintiff or the insurer had commented or led any evidence. It was evidence of a kind that a Panel should not consider acting upon without first inviting the parties to attend and comment or lead other evidence about it. In the absence of such an invitation, both parties were properly entitled to feel that they were denied natural justice, particularly the unsuccessful one.[208]
[208] Ibid [45].
In Vegco, Kyrou J stated:
A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel’s own medical expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[209]
[209] Sargent [2016] VSC 292 [12] citing Vegco Pty Ltd v Gibbons [2008] VSC 363 [24].
Prima facie, it would appear that on 5 February 2016, the Plaintiff gave new information to the Panel regarding his psychiatric symptoms. It would also appear that the Panel ‘relied’ on this information to reach its decision. However, it is worth noting Redlich JA’s comments in Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492:
Procedural fairness must be upheld for its own sake, as well as for its consequences because ‘the experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge’. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome; with the decision-making process not the decision. The true legal issue ‘is not only, whether the person adversely affected by a decision has had his or her legitimate expectations disappointed. That may be a consequence of the departure from the legal standard; but it is not the invalidating cause.[210]
[210]Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 512 [57] cited in Sargent [2016] VSC 292 [48].
As such, the question is, from the point in time (5 February 2016) when Mr Bahng told the Panel that he had psychiatric symptoms, should the Panel have notified the Employer about that information? It is worth examining the High Court’s discussion of the principle of natural justice and a decision maker’s obligation to inform the parties about information that is ‘relevant’, ‘credible’ and ‘significant’ to the decision.
Notice of information ‘credible, relevant and significant’ to a decision
In Kioa, Brennan J discussed the content of the fair hearing rule:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya; Ridge v Baldwin per Lord Morris; De Verteui v Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary:
"To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair."
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.[211]
[211] Kioa (1985) 159 CLR 550, 628-9 (emphasis added) (citations omitted).
Brennan J was concerned with the ‘subconscious effect’ that information could have on a decision maker, especially when a party is not given a chance to respond to it:
Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr. and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.[212]
[212] Ibid 629.
Brennan J’s judgment was cited with approval in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (‘VEAL’). In a joint judgment, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ stated:
what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made.
“Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been.[213]
[213]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96 [17] (‘VEAL’) (emphasis added).
In VEAL, the Refugee Review Tribunal had received an unsolicited letter from a purported ‘whistleblower’ stating that the Plaintiff, a Temporary Protection Visa applicant, had not been persecuted by the Eritrean government, but had in fact worked for that government. The applicant was not made aware of this letter until the Tribunal made its decision. In its reasons, the Tribunal stated that it had given no weight to the letter. However, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ stated:
It follows that the Tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness.[214]
[214] Ibid [18].
Their Honours held that procedural fairness required the Refugee Review Tribunal to inform the applicant of the substance of the allegations made in the letter before reaching its decision.
It would appear that at common law, if a decision maker has information adverse to the interests of one of the parties, then the decision maker is to ask itself, is this information credible, relevant and significant to the decision I am about to make? Unless the decision maker can demonstrate that the information is clearly not credible, not relevant and not significant to its decision, the decision maker is to notify the parties of the existence of the information in order to give the parties a chance to respond. This is necessary to ensure procedural fairness.
The powers of the Panel are such as to prima facie attract an obligation on its part to act fairly or to abide by the rules of natural justice, in the performance of its function.[215] This has implications to the way in which the Panel gathers and processes evidence and information, although the nature of these implications is capable of changing over time.
[215] Masters v McCubbery [1996] VR 635, 644.
In this case, the Panel was clearly resolving the competing contentions of the parties. That is, on the one hand, the Agent’s contention that Mr Bahng had a psychiatric injury and whole level person impairment of 15%. On the other hand Mr Bahng’s contention was that he accepted liability but disputed the assessment of impairment. As noted by Winneke P in McCubbery,[216] the Panel in such circumstances is in its own informal way deciding the dispute by reference to the competing contentions.
[216] Ibid.
Accordingly, the powers of the Panel are such as to prima facie attract an obligation to act fairly.
The Panel is obliged to accord the protection of the hearing rule of procedural fairness to the employer insurer party, not merely the worker party.[217]
[217] Barrett Burston [2013] VSC 248 [33].
The Reasons clearly indicate that it reached a different conclusion to that of Dr Adlard in relation to diagnosis and total psychiatric impairment. Dr Adlard diagnosed Mr Bahng as suffering from a major depressive disorder in partial remission and as having a psychiatric impairment of 15%, all of which was attributable to the accepted psychiatric injury and that the psychiatric injury had stabilised. In contrast, the Panel concluded Mr Bahng was suffering from a major depressive disorder with psychotic features, including persecutory delusions and that he had 35% psychiatric impairment relating to the accepted psychiatric injury which was stabilised and permanent.
There is support in Dr Mendelson’s Report for the proposition that a diagnosis of Major Depressive Disorder with psychotic features is materially distinguishable from the previously proposed diagnoses, including Dr Adlard’s diagnosis of Major Depressive Disorder in partial remission.[218]
[218] Dr Mendelson’s Report, 5.
In the course of submissions, it was put by Mr Bahng that the Panel’s diagnosis was not inconsistent with that made by the other medical practitioners. Further, it was submitted that it could not be said that Mr Bahng’s psychotic features or persecutory delusions came ‘out of the blue’.
However, in the eight medical reports available to the Panel, nowhere in the material was there any mention of psychotic features or an account of symptoms characterised by persecutory delusions of the type or intensity reported by Mr Bahng to the Panel. At the most, there was a history in Dr Athey’s report dated 17 October 2013 to Mr Bahng having morbid beliefs in that he appeared to have delusional feelings of guilt over the effect of his illness on other people. This is in contrast to the history he gave the Panel which included:
a) Mr Bahng stating that he still experienced suicidal ideation occasionally, even though it was more frequent previously;
b) Mr Bahng’s history of frequent conversations with God in his mind, including asking for the numbers of lottery and God asking him what he would do in return for the lottery numbers and the worker indicating that he would give God his ‘worthless self’;
c) Mr Bahng providing a history that he felt that on occasions people were watching him;
d) Mr Bahng providing a history that he believed someone might be listening in on his phone calls and that there might be cameras in his house actually filming what he was doing as he tried to search for items and that the last time he looked for the cameras was in late 2015; and
e) Mr Bahng’s telling the Panel that when he is out of the house he thinks people might be able to read his mind and take thoughts out of his mind.
In addition, the Panel concluded that Mr Bahng gave examples of thought insertion and control and persecutory delusions.
In the circumstances, the Panel elicited from Mr Bahng new symptoms. The information regarding the new symptoms (‘the new information’) was adverse to the interests of the Employer, as if it was adopted by the Panel, it could lead to the Panel finding Mr Bahng’s total impairment was more than the previously stated 15%.
The Panel was determining, among other things, Mr Bahng’s mental impairment. As stated above, Counsel for Mr Bahng submitted that the Panel took the view that the psychotic symptoms were not relevant to the question of the calculation of impairment.
Counsel for Mr Bahng submitted that the Panel took the view that the psychotic features did not give rise to a different diagnosis[219] or have any relevant effect on the assessment.[220]
[219] T90 L18.
[220] T90 L21.
Counsel for Mr Bahng proceeded to demonstrate the numerical calculations undertaken by each of the Panel and Dr Adlard, in an attempt to demonstrate that the history given to the Panel by Mr Bahng of his psychotic symptoms did not alter the ultimate assessment made by the Panel.
With respect, I do not accept this submission. A Judge’s role is to examine whether or not the Panel complied with the AMA Guides and GEPIC, in order to assess whether or not the Panel has exceeded its jurisdiction. It is not the Judge’s role, nor is a Judge qualified, to attempt to make a numerical calculation regarding impairment. There is nothing to indicate that the psychotic symptoms were not relevant to the assessment.
There was also no question as to the credibility of Mr Bahng’s evidence before the Panel on 5 February 2016.[221]
[221] T101 LL20-22.
As such, I am not convinced that the new information was not relevant, not credible and not significant to the decision that the Panel was tasked with making.
As the Panel did not notify the Employer about the new information, the Agent did not have an opportunity to consider the new symptoms and what relevance they may have had to the ultimate diagnosis and assessment of impairment. The Agent was denied an opportunity to make any relevant submissions and obtain further information or evidence to put before the Panel reached its final conclusion in relation to diagnosis and level of impairment.
In fact, the Panel in this case clearly relied on the psychotic features including persecutory delusions to reach its conclusion in relation to diagnosis and level of impairment. The fresh symptoms were critically important in the Panel’s findings in relation to diagnosis and level of impairment. The Panel’s decision was materially affected by the history provided and new symptoms reported by Mr Bahng to the Panel.
In the circumstances, I consider the Panel’s opinion was formed in breach of the requirements of procedural fairness and is vitiated by legal error.
Failure to take into account relevant considerations and taking into account irrelevant considerations
Because the Agent has succeeded on procedural fairness grounds, I will only consider the Panel’s remaining grounds briefly.
An administrative decision maker makes a jurisdictional error if it fails to take account of a matter which it is bound to take into account, and its failure materially affects its decision.[222]
[222] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 (Mason J).
Under the ACA, the role of a medical panel is to form an opinion relating to medical questions which are referred to it for various purposes set out in the legislation. In this case, the medical questions were referred for the purpose of deciding Mr Bahng’s psychiatric impairment assessment and the calculation of impairment benefit.
It was not in dispute that the Panel is bound to consider Mr Bahng’s answers to questions and the documents in this case submitted by the Agent, when the Panel formed its Opinion and delivered its Reasons. Nor was it in dispute that if Mr Bahng’s answers or documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.
In summary, I consider the Panel did not take account of a matter it was bound to consider when it failed to address the question of the absence of prior documented psychotic symptoms or diagnosis with a psychotic features component. The Panel recorded Mr Bahng’s history of treatment and medication and set out a detailed account of his current symptoms and to a lesser extent past symptoms, which did not include the new symptoms consistent with psychotic features. The Panel’s findings were not consistent with the findings made by earlier practitioners and in particular Dr Adlard in his report dated 17 November 2015. I do not consider the Panel gave adequate consideration to the previous clinical examinations, history provided by Mr Bahng and the findings of the other practitioners.
The Panel noted Dr Adlard’s Report, and his diagnosis that Mr Bahng was suffering a major depressive disorder in partial remission and that he assessed Mr Bahng as having an impairment of 15% attributable to the accepted psychiatric injury and that the psychiatric injury had stabilised.
The Panel was not required to explain why it took a different view from Dr Adlard (or any of the earlier medical assessments it was provided with) in reaching its assessment of Mr Bahng’s degree of permanent whole person impairment. However, it is required to explain how it had taken account of the newly reported symptoms and the extent to which the newly reported symptoms could be causally attributable to the compensable injury for which liability was accepted s 98C of the ACA.
I accept the Agent’s submissions that the Panel did not adequately consider the newly reported symptoms identified by the Panel. That is, the psychotic symptoms and apparent re-emergence of suicidality, and how in such circumstances, Mr Bahng’s condition had or had not stabilised within the meaning of the AMA Guides, the GEPIC and the ACA. The recent nature of the newly found symptoms and the difference in histories given to Dr Adlard and the other doctors by Mr Bahng are significant factors in the Panel’s diagnosis and assessment of impairment. As such, it was required to explain how it had taken into account the emergence of the newly reported symptoms and why it considered in a background of such symptoms not having been recorded in the past, how and why it considered Mr Bahng’s condition stabilised. Put another way, the Panel was required to explain why the newly found symptoms were not a new unrelated condition, or how it could be said given the recent newly found symptoms, the condition had stabilised.
Further, the GEPIC principles require the Panel to consider the whole history of the illness and treatment. The Panel failed to reconcile the different symptoms it elicited with those previously recorded by the medical examiners since 2013. The AMA Guides direct the Panel to consider in its evaluation whether its current findings are consistent with the results of previous clinical examinations.
Given the inconsistent findings between the Panel and the previous clinical examinations, I consider this was a matter the Panel was bound to give consideration to and that it failed to do so.
Failure to provide adequate reasons
The adequacy of a Medical Panel’s reasons depends on the issues and the nature of the proceeding, in any given case.[223]
[223] Woolworths Ltd v Warfe [2013] VSCA 22 [131].
I am not satisfied that the Panel’s Reasons adequately explain the actual path of reasoning in sufficient detail to enable a Court to determine whether the Opinion does or does not involve any error of law.[224]
[224] Wingfoot (2013) 252 CLR 480 [55].
In its Reasons, the Panel states that it reached a different conclusion to that of Dr Adlard, noting that Mr Bahng ‘clearly described psychotic symptoms’. In circumstances in which no such symptoms were reported to the previous medical practitioners since 2013, the newly reported psychotic symptoms were a significant factor in the Panel’s finding. The Panel failed to adequately explain whether, and how, it addressed the disparity in symptoms reported to previous medical practitioners, when compared with the history taken by the Panel, such that the Court could be confident that the Panel correctly performed its statutory functions, particularly whether it considered the whole of Mr Bahng’s history, and the inconsistency of findings, as required by the GEPIC and the AMA Guides respectively.
Further, the Panel failed to adequately explain how it reached the 35% degree of psychiatric impairment. Whilst I accept that it was open to the Panel to make this finding on the basis of the Panel’s own examination and history taking and clinical experience and judgment, there is no explanation as to the manner in which the Panel reached this finding, particularly its determination of a percentage of impairment in the lower end of class 3. The Court is left to speculate how the Panel came to the conclusion of 35%, in a class with a range lying between 25% and 50%.
In these circumstances, I consider that the Panel has failed to give adequate Reasons in support of its Opinion.
Materiality
Having found that the Panel breached the fair hearing rule, that it failed to take into account a relevant consideration and that it failed to give adequate reasons, I will now turn to the question of materiality as to whether or not relief is to be granted.
The effect of failure to afford a proper hearing is typically that the subsequent decision is void. However, there may be cases where the breach is such that the Court can be confident that the decision would have been the same even in the absence of a breach of the requirement. There are several ways in which such breaches may be treated. One approach would be to treat the affording of procedural fairness as of such importance that failure to afford a proper hearing would invariably mean that any subsequent decision had been treated as a legal nullity. An alternative approach would involve treating ‘minor breaches’ of the procedural fairness requirement as fatal to the validity of a decision except in cases where the decision would have been identical even if there had been no breach. A compromised position might involve the discretionary refusal of relief in a case where the breach could not have made a difference. As was said in Stead v State Government Insurance Commission (1986) 161 CLR 141 (‘Stead’):
not every departure from the rules of natural justice at trial will entitle the aggrieved party to a new trial. … Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. … It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.[225]
[225] Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (‘Stead’).
The High Court held in Stead that the denial of natural justice might have affected the outcome and that the appeal should therefore be allowed. The decision indicates that the denial of procedural fairness is not necessarily fatal to a decision, but it normally will be. The position in relation to the tribunals and administrators is similar. This is the case even if it is unlikely that the decision would have been any different, assuming procedural fairness to have been afforded. It is not for the Courts to second guess how administrators might react to additional material.
In HJ Heinz, Kyrou J cites Stead in stating that:
My finding that the panel breached the rules of natural justice does not necessarily mean that its opinion must be quashed. If it would be futile to quash the opinion because, for example, any further material or submissions from the plaintiffs could not possibly have affected the panel’s opinion, the court would ordinarily not do so.[226]
[226]HJ Heinz [2009] VSC 311 [66] citing Stead (1986) 161 CLR 141, 145.
Kyrou J perused the plaintiff’s affidavits to assess what the appellant would have done if it had been given notice that the medical panel proposed to rely on the AMA Guides provisions regarding hip and knee replacement to assess an ankle impairment. The plaintiff stated that the VWA and the claims agent would have made written submissions regarding the legal and medical appropriateness of the medical panel using the AMA Guide in that way.[227]
[227] Ibid.
His Honour stated:
Had the panel received further submissions from the plaintiffs prior to reaching its opinion, there is a real possibility that the panel would not have applied the provisions of the Guides dealing with total hip and knee replacement.[228]
[228] Ibid [69].
Kyrou J held that he would have upheld the third ground of review regarding natural justice.[229] His Honour held that in the circumstances, it was appropriate to quash the opinion on the basis of the breach of the rules of natural justice.[230]
[229] Ibid [70].
[230] Ibid [69]
Further, In Bahonko v Moorfields Community [2008] VSCA 6, Nettle JA stated:
The authorities are clear that, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have a bearing on the outcome. In effect, the onus is on the respondents, therefore, to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would ‘inevitably result in the making of the same order as that made by the primary judge at the first trial’.[231]
[231]Bahonko v Moorfields Community [2008] VSCA 6 [30] cited in Sargent [2016] VSC 292 [49] (emphasis added).
In this case, I accept the Agent’s submissions that the Employer was denied the opportunity to address the new information as submitted by the employer, by:
- investigating whether the presence of psychotic symptoms and the additional history suggested that Mr Bahng’s condition had not stabilised;
- considering the extent to which psychotic symptoms causally relate to the compensable injury;
- ascertaining the opinion of Dr Adlard, Mr Bahng’s treating psychiatrist or alternatively another qualified medical examiner regarding the psychotic symptoms and additional history; and
- furnishing additional material to the Panel and making submissions on matters arising from the additional history.
In order for me to use my discretion to not grant relief, I must be convinced that had the Employer been able to make the above submissions, it would not have made a difference to the Panel’s opinion. That is a high evidentiary burden. But such is the importance of procedural fairness.
I have not been convinced that had the Employer been able to make those submissions, that the Panel would inevitably have reached the same outcome.
In the circumstances, I believe it is appropriate to quash the Panel’s opinion.
Conclusion
The Plaintiff’s Originating Motion seeks ‘an order in the nature of mandamus remitting the referred medical questions to a differently constituted Panel to be reconsidered in accordance with law’.[232]
[232] Plaintiff’s Originating Motion, 6 April 2016, 2 [2].
The Court will order that:
a. there be an order in the nature of certiorari to quash the Opinion of the Panel dated 10 February 2016; and
b. there be an order in the nature of mandamus remitting the medical questions in respect of which the Opinion was given to a differently constituted Medical Panel to be reconsidered in accordance with the law.
I will hear submissions on the questions of costs.
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