Butto v WorkCover Corporation

Butto v WorkCover Corporation - [2012] SAWCT 8 - SAWCT 2012 case summary — Zoe

[6]

Judicial Determination - S 36 notice alleging that the worker has ceased to be incapacitated for work as a result of a previously accepted compensable disability described as work related stress - What is the accepted compensable disability? - In determining this issue it is appropriate to look to facts known and material in the possession of the parties at the time of making the order in identifying what was agreed upon by them - Found that the stress and anxiety that the cessation of the worker's work produced was taken by the parties to have formed part of his accepted compensable disability - What is the burden that the compensating authority carries in a case such as this that concerns a disability is that only compensable if employment is a substantial cause of it? - Even though this is a psychiatric disability the issue before the Tribunal is not whether employment continues to be a substantial cause but whether the worker has ceased to be incapacitated on account of it - Whether the Tribunal or the parties are bound to adopt the opinion of a Medical Panel - Assuming without deciding that the parties may be bound they can only be bound if the Medical Panel has asked itself the right question and that the opinion satisfies the test of admissibility at common law - Held that there is nothing in the opinion or the material that has been placed before the Tribunal that enables it to have any confidence that the Medical Panel understood that the accepted compensable disability was as the Tribunal has found it to be - If it did, the opinion does not satisfy the test of admissibility at common law - Whether the word "certificate" as it is used in s 98I(1) includes the reasons as required by s 98H(3) - Held that as the Tribunal in determining what is to be made of the opinion may be required to venture into things including a consideration as to whether the correct question was addressed, identifying what the relevant factual assumptions underpinning the opinion are and whether the opinion satisfies the test for admissibility as expert evidence as required by law the reasons are potentially admissible - Having considered the evidence held that as at the date of the determination the worker was totally incapacitated for work and that that condition has not changed since - Held that EML's determination must be set aside - Ss 30A 36 98H and 98I Workers Rehabilitation and Compensation Act 1986

[14]

By determination dated 28 January 2010 Employers Mutual Limited determined that Mr James Butto had ceased to be incapacitated for work as a result of a previously accepted compensable disability described as work related stress.
The primary issue that arises in this judicial determination is whether or not that assertion is correct.
There are, however, several important secondary issues that also arise. They are as follows:
- What is the accepted compensable disability?
- What is the burden that the compensating authority carries in a case such as this that concerns a disability is that only compensable if employment is a substantial cause of it? [1] Is it sufficient for it to establish that employment is no longer a substantial cause?
- In this case EML obtained an opinion from the Medical Panel constituted under Part 6 of the Workers Rehabilitation and Compensation Act 1986. Are the Tribunal or the parties bound to adopt the opinion unless I were to conclude that an error of fact or law has been found to exist in the Panel's opinion? If so, is there an error of fact or law?
- Section 98I(1) of the Act provides that "a certificate given by a Medical Panel is admissible in evidence in any proceedings under this Act." Section 98H(2) and (3) provide that a certificate as to a Medical Panel opinion must include a statement setting out the reason or reasons for the opinion. Are the reasons admissible pursuant to s 98I(1)? Or, to put it another way, does the word "certificate" as it is used in s 98I(1) include the reasons as required by s 98H(3)?
- If I were to find that Mr Butto had not ceased to be incapacitated for work as at 28 January 2010 is it open for me to consider whether he ceased to be incapacitated for work at some later date and, if so, is it then open for me to act upon that finding and conclude that weekly payments are to stop from that later date?
- If I were to find that Mr Butto's capacity for work varied from time to time from 28 January 2010 to date is it open for me to determine that he has an entitlement to weekly payments at some times but no entitlements to weekly payments at others?
With these matters in mind I now turn to consider the relevant facts.
There is very little controversy about the background facts. There are, however, some differences of opinion in the expert evidence in respect of the primary issue that I am to determine. Whether that evidence is admissible, and, if so, how the conflicts are to be resolved will be discussed later in these reasons.
The worker is a young man who suffers from some degree of intellectual impairment. Notwithstanding this, with the aid of some special assistance and modified curriculum, he was able to attend a mainstream school.
When he left school, and with assistance of a relevant government agency, he secured employment with Spotless Catering Services in 2001. He was allocated duties at the Women's and Children's Hospital as a cleaner on a permanent part time basis. It would appear that for many years he undertook his employment duties satisfactorily.
Sometime in 2004 Mr Butto was assaulted outside of a nightclub. Although there was no evidence of significant psychological problems immediately following the assault, Mr Butto's general practitioner, Dr Bruno Rositano, became concerned in 2006 that Mr Butto had lost confidence and was becoming forgetful. He thought that Mr Butto might be suffering from post traumatic stress. Accordingly, he referred him to Mr Anthony Walsh, a psychologist.
Mr Walsh thought that there had been some deterioration in Mr Butto's capacity to deal with matters of complexity, speed of performance, intellectual performance, planning and organisation and recent memory. He thought it likely that this deterioration had been caused, at least in part, as a result of a post traumatic stress reaction to the assault at the nightclub in 2004.
Mr Walsh recorded in a report dated 12 February 2008[2] that by June 2006 other stressors had become relevant. He noted that Mr Butto's car was seriously damaged on a number of occasions and that these attacks appeared to be personally directed towards him. He also noted that during the latter half of 2006 Mr Butto's work with Spotless Cleaning had become a problem as he had become the subject of increased scrutiny at work and his work duties had changed. The change in his work duties resulted in him making mistakes. He records that Mr Butto perceived a lack of support from management. This led Mr Walsh to express the opinion that the change in his work conditions and the perceived lack of support from the work place were substantial stressors.
At a consultation on 21 February 2007 Dr Rositano recorded that Mr Butto was very stressed about a meeting with the employer at which he had been asked to resign. This culminated in Dr Rositano completing a prescribed medical certificate wherein he certified that Mr Butto was incapacitated from work as a result of an illness, which he described as an "aggravation of pre-existing psychological illness."[3]
On 25 February 2007 Mr Butto completed a claim for compensation wherein he alleged that he was suffering from stress. He stated that he had stopped work on account of the disability on 21 February. He described the disability in terms of a gradual onset of the aggravation of a pre-existing psychological illness. He identified a prior disability as an assault upon him on 3 July 2004.[4]
Mr Butto's claim for compensation was initially rejected. By determination dated 13 July 2007[5] EML rejected the claim on the basis that employment had not been a substantial cause of the disability and that in any event, to the extent that employment was a cause, it comprised of reasonable action taken in a reasonable manner to provide performance counselling. This led to the lodgement of a Notice of Dispute.
Presumably in connection with the ensuing dispute Dr Warwick Blakemore, psychiatrist, examined Mr Butto on 2 November 2007. In his report following that examination[6] Dr Blakemore recorded a history that included the following:

[30]

"The worker told the Panel that he had some ongoing dissatisfaction about losing his job at the Women's and Children's Hospital. He said that he would try to forget about it but it was obvious he had difficulty doing this. He also said he felt cheated and let down by some of his co-workers who had said they were his friends but then did not talk to him and made fun of him. He also admitted a degree of anger given that he had been given what he termed unfair dismissal. He said he wanted to stay there and in that position. He added that there 'aren't much jobs around'.

The worker told the Panel that he had some other issues in the workplace. He reported that co-workers would not speak to him in the cafeteria. He stated that they would say to him things like 'shut up - don't talk to me'.

The worker told the Panel he attended his local general practitioner, Doctor Rositano, to discuss his difficulties in the workplace. The worker's father stated that the worker was not sleeping at night and had become extremely repetitive in his behaviours. The worker's father also stated that the worker had some seemingly unjustified feelings of guilt frequently stating, 'I haven't done anything wrong'. The father said that the general practitioner gave the worker some medication to relax him. Reportedly the medication made the worker somewhat 'whoozy' according to the worker, but agitated according to the father. ...

The father had a concern that there had been a recent decline in the worker's cognitive capacity. It is noted that the worker has held a motor vehicle licence for the past eight years. The father stated that his wife had been communicating with other parents of SturgeWeber individuals. The worker's father told the Panel that there had been no recent imaging studies done of the workers head and that he was currently consulting with a particular specialist for his condition. ...

The father also added that the worker was moody on occasions. ...

The worker told the Panel that his sleep is currently not too bad. There was no prominent initial or middle insomnia. His appetite and weight were quite stable. The worker did admit that on occasions he would become tearful at home."[12]

[37]

"His current presentation is probably best described by the diagnosis of a Chronic Adjustment Disorder with Depressed and Anxious Mood.

...

It is probable that Mr Butto was significantly distressed when he lost the job at the Women's and Children's Hospital in the circumstances that he told me about in 2009. It is probable that those events either exacerbated his pre-existing Post-Traumatic Stress Disorder or caused an Adjustment Disorder.

The Adjustment Disorder that Mr Butto was suffering from when I saw him on this occasion was probably caused by a range of factors. Mr Butto told me on a number of occasions that he is distressed that he has few friends and I note he has been going out at night and asking strangers for their phone numbers in an attempt to find more friends. Mr Butto's father indicated to me that Mr Butto does not have more friends because of the social deficits he has (probably due to his Sturge Weber syndrome). Therefore, his lack of friends and problems due his Sturge Weber syndrome are probably one cause of his Adjustment Disorder with Depressed and Anxious Mood. Mr Butto also spoke to me on a number of occasions during this interview about difficulties learning and this is probably due to his Sturge Weber syndrome and this is probably another substantial cause of his Adjustment Disorder. Mr Butto spoke to me about his inability to get a job. This is probably another substantial cause of his Adjustment Disorder. Probably the main reason he had difficulty obtaining employment relates to his Sturge Weber syndrome.

Mr Butto continues to occasionally talk about the events that led him to lose his job at the Women's and Children's Hospital four or five years ago. This is probably perpetuating his current psychiatric symptoms. It is difficult to know how significant this factor is. It is probably less significant than the other factors I have referred to. The assault from 2004 appears to continue to trouble Mr Butto and this is probably playing a small role in perpetuating his current psychiatric symptoms."[15]

[66]

With respect I am not entirely certain as to whether their Honours were doing no more than merely musing about how the provision might operate or whether they were purporting to give some informed suggestions as to how it applies.
Their reference to "decision maker" would appear to be a reference to the WorkCover Corporation, a self-insured employer and a Claims Agent. It should be noted that White J expressly stated that the WorkCover Corporation, a self-insured employer and a Claims Agent must adopt and apply the opinion of a Medical Panel "for the purposes of determining any question or matter" for which they have responsibility under the Act.
What they intended in also making reference to "those joined in an issue" is not clear to me. I think that expression means the parties who are privy to the dispute and who are in dispute over the particular issue that is the subject of the opinion. However, it is not clear to me that their Honours were authoritively stating that with some exceptions the parties might be obliged to accept a Medical Panel opinion as final and conclusive.
Moreover, if this is what they were doing, I see some tension with this and the notion that the Tribunal is not bound by a Medical Panel opinion. If this is correct it means that although the Tribunal is not bound by the opinion, in a very real sense it is, because depending upon the circumstances of the case, it may only be able to determine the dispute upon limited evidence because the parties might be constrained in presenting their evidence by the opinion.
Whatever is the case, in my view the opinion could only be binding on the parties if it addressed the right question. The Medical Panel could only express a valid opinion as to whether Mr Butto had ceased to be incapacitated by the compensable disability if it correctly understood what the accepted compensable disability was. Moreover, the Act merely says that the certificate is admissible. It does not say that it must be admitted into evidence. Save for not requiring the author to give oral evidence, I can discern no reason in principle why the Tribunal should be any less exacting in considering the admissibility of a Medical Panel opinion than it would in the case of any other expert opinion. In my view, the opinion, as expert evidence, must satisfy the test of admissibility that applies to such evidence, and if it does not, then it could not be binding upon parties. This test is conveniently summarised by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles as follows:

[68]

I suppose it might generally be taken for granted that the members of the Medical Panel by reason of their specified training, study or experience, are experts in the field of specialised knowledge in respect of which the opinion is given.[30] But that does not relieve the authors of the opinion of the obligation to do what all experts must do to make their opinions admissible, and that is, to make the basis of the opinion explicit.
The opinion makes reference to a history of Mr Butto's ongoing dissatisfaction about losing his job and that despite his attempts to forget about it that it was obvious that he had difficulty doing so. It records that he felt cheated and let down by some of his co-workers who had said they were his friends but then did not talk to him and made fun of him. It records his anger and a belief that he had been unfairly dismissed. It records that Mr Butto had feelings of guilt and would say to his parents 'I haven't done anything wrong'. It records his admission that on occasions he would become tearful at home. There is nothing in the opinion that would indicate that the Medical Panel found this history unreliable. It provides cogent evidence that Mr Butto's cessation of work produced stress and anxiety that has been ongoing. The opinion expressly stated that the loss of the job was a major stressor.
The opinion states an acceptance that Mr Butto suffered from an adjustment disorder with mixed emotional features. It links this to the accepted work related stress disability without the reader knowing what the Medical Panel understood what the accepted work related stress disability to be. It states that this condition has now resolved. It states that it has come to this view based on its examination of Mr Butto without articulating what it was about the examination that led it to that conclusion.
The absence of any analysis explaining why a major stressor, being the loss of the job, was no longer relevant and was not continuing to impact upon Mr Butto's mental health suggests to me that the Medical Panel did not regard this stressor as part of the accepted compensable disability. If it did, the reasons do not reveal the process of reasoning that enabled the Panel to conclude that this stressor, which I have found as a fact should be taken to have formed part of the accepted compensable disability, was no longer impacting upon Mr Butto's capacity to work. To adopt the words of Heydon JA in Makita, the reasons fail to demonstrate the scientific or other intellectual basis for the conclusion reached that enables the reader to understand the process of reasoning by which the Panel reached that conclusion and which enables the reader to be satisfied that that reasoning was adequate.
In Campbell v Samaras and Employers Mutual Limited and Yaghoubi v BDS People Pty Ltd and Employers Mutual Limited Gray and Sulan JJ said:

[71]

"It seems as obvious to me as it seemed obvious to the higher courts in Towler, Connor and Penrikyber, that the practical and most appropriate approach to any concern as to lack of clarity in the certificate of a Medical Panel is to seek clarification from the Medical Panel. I am troubled about an approach which contemplates that it is preferable to challenge a certificate for lack of clarity than to ask the Medical Panel for clarification. I say that after noting, and reflecting upon the alternative approaches taken in Morgan & Co v Thomas and in Fletcher.

I do not think that it could be said that the main Act provides, or that the scheme of the main Act contemplates, that seeking clarification is inappropriate and so forbidden. It seems to me that the position is to the contrary. The main Act is not silent as to courses that might be followed when there are concerns as to the meaning of a certificate. Section 45 provides one option. The Court can be asked again to put to the Medical Panel a medical question that was not put in the first instance. Section 48(2) points up another option. It is the option of requesting a member of a Medical Panel to give evidence as to matters in the certificate. I recognise that there is a reservation within the sub-section. A member of a Medical Panel is competent, but cannot be compelled to give evidence. However, to focus on the reservation is to look at the hole, not the doughnut. Until a member of a Medical Panel chose to rely upon the shield of non-compellability it would, in my opinion, be appropriate to assume that the member would not do so. A simple option open to a party with a concern as to one or more matters certified to would be to contact the convenor of Medical Panels. The convenor could be told the nature of the concern, and asked whether the members would be willing to provide a report clarifying the matter, or whether the members or any member would be prepared to give evidence, or both." (footnotes omitted)[33]

[72]

This in turn led me to have my Associate write to the parties to receive further submissions from them as to whether it would be appropriate for the Tribunal or for one or other of the parties to contact the convenor of Medical Panels and advise the convenor of the nature of the concern, and ask whether the members would be willing to provide a report clarifying the matter, or whether the members or any member would be prepared to give evidence, or both.
I received further oral submissions in response to this. Having reflected upon them I have resolved not to take the matter any further.
It is agreed that the authors of the opinion have been requested by EML to give oral testimony in this case and that they have declined to do so. In light of that prior refusal I am not minded to now make a further request myself. For me to attempt to address this issue by seeking clarification in the manner suggested by Teague J, would, in the circumstances of this case, be procedurally unfair. I say that because given the glaring gap in the stated reasoning of the Medical Panel opinion Mr Rossi would have to be given an opportunity to cross-examine the authors if their advice was that they understood the accepted disability to include the stressor, being the loss of the job, and that in their opinion it was no longer relevant to the issue of incapacity. In light of their refusal to give evidence to date I could have no confidence that they would accede to a further request to submit themselves to oral examination.
Accordingly the state of the evidence before me is such that I have no confidence that the Medical Panel addressed the right question. If it did, on general common law principles, its opinion does not satisfy the test for admissibility as expert evidence.
It is notable that EML maintains that the accepted disability does not include the stress related to Mr Butto's loss of his job.
Assuming, without deciding that a Medical Panel opinion may be binding upon the parties, including a worker, I find that it is not binding in this case. It is therefore open for the parties to adduce other expert evidence that is contrary to the opinion expressed by the Medical Panel.
Before moving on to make other findings in light of that evidence it is convenient for me to now deal with the other issue that I identified as relevant in connection with the opinion of a Medical Panel.

[74]

In reaching the conclusion just made it is clear that I have had regard to the reasons supporting the Medical Panel opinion and regarded them as potentially admissible.
I will now explain why I have reached the view that they fall within the purview of s 98I(1).
It needs to be acknowledged that the Victorian jurisprudence would suggest a contrary conclusion. In Lianos v Inner and Eastern Healthcare Network[34] a Magistrate and on appeal a singe judge held that in connection with a comparable provision in the Accident Compensation Act that only the certificate was admissible. On appeal the Victorian Court of Appeal upheld that view. Chernov JA wrote the primary judgment on behalf of the court. The reasoning of Chernov JA makes it plain that his conclusion was based upon the premise that the relevant legislation had transferred the resolution of medical questions from the court to Medical Panels. Accordingly, on that analysis, it is simply not open for a court or tribunal to review, on the merits, an opinion formed by a Medical Panel to which a medical question has been referred. Therefore there would be no point in admitting the reasons into evidence because they would not serve any purpose.
In contrast to this the Full Court in Campbell v Samaras and Employers Mutual Limited and Yaghoubi v BDS People Pty Ltd and Employers Mutual Limited has held that the Tribunal is not bound by the opinion of a Medical Panel. The majority also said that the Tribunal, in determining what is to be made of the opinion, may be required to venture into matters including a consideration as to whether the correct question was addressed and identifying what the relevant factual assumptions underpinning the opinion are. For the reasons outlined above, in my view, the Tribunal must also determine whether the opinion satisfies the test for admissibility as expert evidence as required by law.
It would be impossible for the Tribunal to determine these issues without evidence from the presiding members or a consideration of the reasons underpinning the certificate. Given that the presiding members cannot be compelled to give evidence[35] I think it must follow that the word "certificate" as it is used in s 98I(1) includes the reasons as required by s 98H(3) of the Act.
I return to the primary issue that I must determine.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (93 paragraphs)

Butto v WorkCover Corporation (Spotless Catering Services Ltd) [2012] SAWCT 8 (8 March 2012)

Parties

Legislation Cited (3)

Cases Cited (4)