HEARING DATES: 12, 13 and 22 December 2011; written submissions received 23 December 2011 and 3 February 2012; further oral submissions 1 March 2012

JUDGMENT OF: His Honour Deputy President Judge BP Gilchrist

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

Advertiser Newspaper Limited v Despoja (1989) 1 WCATR 178

Gomez-Soto v Unisure Pty Ltd. (1997) 68 SASR 294

Isaacs v The Ocean Accident and Guarantee Corporation Ltd and Winslett (1958) SR (NSW) 69

Campbell v Samaras and Employers Mutual Limited and Yaghoubi v BDS People Pty Ltd and Employers Mutual Limited (2011) 281ALR 155

Lianos v Inner and Eastern Healthcare Network [1999] VSC 307 (27 August 1999)

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Lianos v Inner and Eastern Healthcare Network [2001] VSCA 997

1. 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.
2. The primary issue that arises in this judicial determination is whether or not that assertion is correct.
3. 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?
4. With these matters in mind I now turn to consider the relevant facts.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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]
12. 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]
13. 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.
14. 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:

"He tends to stay home, Mr Butto said, and he said he has tried some nightclubs, but he said he has less confidence than before, especially since he's lost his job. He was a bit depressed, Mr Butto said, and down, and he said he still gets depressed (after losing his job), but he said he's not suicidal, and he said he's taking medication now."

1. On the basis of that examination Dr Blakemore expressed the opinion that Mr Butto was suffering from an adjustment disorder with depressed mood. He said that he was uncertain of his prognosis.
2. Ultimately the dispute was resolved and consent orders were recorded in the Workers Compensation Tribunal on 18 April 2008 in terms which relevantly provide as follows:

"The worker's claim for work related stress sustained on 21 February 2007 is accepted for medical expenses pursuant to section 32 and ongoing incapacity from 22 February 2007. Average weekly earnings are set as $401.75."[7]

1. In May 2008 Dr Rositano wanted to explore the possibility of Mr Butto returning to work and accordingly he completed a medical certificate to that effect. He hoped that some sort of supported employment might be of assistance to Mr Butto. That effort failed and Dr Rositano expressed the opinion that Mr Butto's condition has deteriorated since then and that for the last two years he has been unemployable.
2. Dr Rositano gave the following evidence as to what he saw as the relevant factors:

"Q In your opinion, is the depression that you have diagnosed arising from the events that occurred in the workplace in late 2006 and in early 2007, a contributing factor to that deterioration in mental function?---

1. Yes, and the fact that he's not working, I think that's very important.
2. Are you able to explain how it is that these two factors are combining, if they are combining, to have that effect of reduced mental functioning in this case?---
3. In his environment, his life, his job was very important, it was his contact with his social network, with his friends of work, his job was the key part of his social life. When he lost that his self-esteem, which probably already was low, has just dropped to very low depths. So he's got no self-esteem, financially he's not in a good place, he's crying for help all the time in his behaviour. He goes and gives his number to girls in the street to try and get them to contact him, he's just crying out for friends and have some sort of relationships. I think that was the role that work was having for him, and since he's lost his job he's got no structure, no social network, no outlet."[8]

1. On 12 October 2009 Mr Butto saw Dr Marty Ewer, psychiatrist, at the request of EML. Dr Ewer recorded his findings on examination as follows:

"Mr Butto maintained good eye contact throughout the interview. His facial expressions and body language did not indicate he was suffering from a severe psychiatric disorder. There were no observable signs (such as self neglect) indicative of him suffering from a severe psychiatric disorder.

Mr Butto was not clinically depressed but he was mildly anxious.

There were no psychotic symptoms.

I did not formally test his short term memory and concentration but they seemed mildly impaired."[9]

1. It was Dr Ewer's opinion that the work event had probably temporarily exacerbated Mr Butto's pre-existing problems, not the least of which was his intellectual impairment, which Dr Ewer described as: "An ongoing significant stressor." It was Dr Ewer's opinion that Mr Butto was not currently suffering from a work related psychiatric disability and that his current presentation was the reflection of pre-existing issues and non work issues.[10]
2. It was on the basis of Dr Ewer's opinion that EML issued the s 36 notice that is the subject of this case.
3. Dr Blakemore reviewed Mr Butto on 14 April 2010.
4. In commenting upon that examination Dr Blakemore said that he thought that Mr Butto was unable intellectually to provide a clear history of his emotional state and behaviour and as a result he relied largely upon information he had been provided by Mr Butto's parents. He said that he thought Mr Butto was suffering from a depressive illness that could be characterised as an adjustment disorder with depressed mood.
5. He described the position as follows:

"Mr Butto's position psychiatrically is a complex one. He appears to have become depressed originally as a result of work-related matters, with his claim for work-related stress, and depression, being accepted, and when I saw him first, in November, 2007, I thought he was well enough at least for a trial of work in a supportive environment; at that stage, Mr Butto was taking antidepressant medication, which appeared to be helping him. Since then, Mr Butto appears to have deteriorated quite seriously emotionally, seriously enough for testing of his intellectual capacities to have deteriorated, the likelihood being that he is one person whose involvement within the workman's compensation and rehabilitation system has not been helpful, and has more than weighed against his recovery emotionally. The likelihood that his involvement thus has been a very important factor in regression, and worsening of Mr Butto's depressive illness. ...

Although Mr Butto has obligingly gone along to all the work trials requested of him, and has worked to some degree, accepting his parents', history really, and from his clinical presentation, it is unlikely that he is emotionally well enough to cope with any sustained employment in his present state."[11]

1. On 22 September 2010 Mr Butto was examined by Medical Panel SA comprising of Dr Ingrid Wangel, general practitioner and presiding member, Dr James Hundertmark, psychiatrist and Dr Colin Mills, occupational physician. The Panel had been asked by EML to answer the following question:

"Has the worker ceased to be incapacitated for work by his compensable work-related stress disability sustained on 20 February 2007?"

1. The Panel issued a certificate of opinion on 28 October 2010 that stated:

"The Panel is of the opinion that the worker has ceased to be incapacitated for work by his compensable work-related stress disability sustained on 20 February 2007."

1. In its reasons for opinion the Panel noted that Mr Butto was accompanied by his father and stated that it was appropriate for Mr Butto senior to clarify some of the issues on Mr Butto's behalf. The Panel recorded a history that included the following:

"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]

1. The Panel then went on to record its findings on medical examination. It recorded:

"He behaved in a very open, somewhat naive fashion. He spoke in fairly brief replies using a quite limited vocabulary that provided a convoluted and at time repetitive history. He used a few stock phrases repeatedly and had a stereotyped short nervous laugh that reflected his anxiety in the session. He did appear to have difficulty handling more complex concepts in the interview and the Panel used his father to clarify the history at times. There were some symptoms of avoidance related to the nightclub assault and mild symptoms of anxiety and depression that have settled since the cessation of his work at Spotless especially since recommencing work at Minda Inc. The worker has partial insight into his intellectual disability."

"The Panel accepted that the worker is a 27 year old man with intellectual disability secondary to Sturge-Weber Syndrome who lost his preferred position with a contract cleaning company. He had enjoyed the stability and consistency of a cleaning position at a public hospital through the contract cleaners. The Panel noted that the worker did appreciate the predictability of the hospital job, as is often the case with persons suffering intellectual disability. The loss of this position was a major stressor for the worker.

The Panel noted that the worker presented with some mild symptoms of post traumatic stress disorder (PTSD) following the night club assault but that these symptoms did not amount to the full diagnosis of PTSD. The worker also experienced other minor stressors including recurrent vandalism to his motor vehicle. The worker is gradually coming to terms with his intellectual disability but his degree of insight remains partial. The Panel noted that developmentally the worker is equivalent to a teenager and is currently negotiating the developmental phase of independence/dependence with his parents.

The Panel is of the opinion that the worker did suffer an adjustment disorder with mixed emotional features (DSM-IV-TR) relevant to the accepted work related stress disability but based on its examination of the worker this condition has now resolved and he has ceased to be incapacitated for work by his compensable work related stress claim."[13]

1. Dr Blakemore reviewed Mr Butto on 9 August 2011. Dr Blakemore described Mr Butto's then condition as follows:

"Mr Butto does not now appear particularly depressed, although his mother gives a history of his being aggressive and difficult at times when home now, but appears to have maintained a regression from a previously higher level of functioning, that is while he was working at the Women's & Children's Hospital, possibly having been helped there by the structure of the work and the rewards, emotional and financial, of that job, to a more childish state, in a way difficult to categorise in psychiatric illness terms."[14]

1. In his view, Mr Butto is totally and permanently incapacitated for work as a result of the deterioration in his emotional capacity.
2. Dr Ewer reviewed Mr Butto on 11 October 2011. On that occasion Dr Ewer said:

"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]

"Mr Butto's Adjustment Disorder is probably partially incapacitating him for work but his Sturge Weber syndrome is probably the more significant factor in making it difficult for him to obtain work."[16]

1. Notwithstanding this statement, Dr Ewer maintained his view that Mr Butto had ceased to be incapacitated as a result of the work related incident in 2007 and then went on to state that the opinion of the Medical Panel was consistent with his opinion.
2. In addition to this evidence I received statements from and heard oral testimony from Mr Butto and his mother.
3. The general flavour of their evidence was to the effect that Mr Butto's loss of employment has led to a marked deterioration in his social functioning.
4. Mr Butto described his job with Spotless and his loss of it in these terms:

"...I liked working in that job and I liked staying there, and I could have stayed there for longer, and I think about him giving me unfair dismissal, and I never done, really, anything wrong and he fired me, and I just keep thinking about it."[17]

He spoke in terms of being sad and upset by the loss of his job, which he described as one that was "really good" and which he enjoyed.

1. Mrs Butto described that change in her son's behaviour as follows:

"James, before the issues and - that happened in the hospital, was a very friendly chap, who had lots of friends and maintained normal relationships with normal people. Because of the issues that occurred there and - consequently, because of that, he has none of those friends left and he only has one friend, who has an intellectual disability, now, apart from my husband - my soninlaw's brother, who also has an intellectual disability, and - so therefore he's gone from someone who was basically leading a normal life before, but with a disability, to someone who's now leading a disabled life, with a disability, and the great tragedy is that James knows the difference. So, what he's trying to do by going out into the community, talking to people, getting their phone numbers, is almost like a compulsive disorder, it's kind of become. He's trying to make new friends and he's trying to get back to how he used to be before, but obviously he's going about it inappropriate[sic] ways. The police are concerned about his safety because he doesn't understand the safety aspects of - you know, he may get people that are scared or people that don't know him."[18]

1. Mrs Butto described Mr Butto's various attempts to return to work.
2. She described a return to work with Spotless at a site at Dudley Park. This required Mr Butto to use public transport, which proved a problem and resulted in Mr Butto becoming quite stressed as he missed buses and trains and would be late for work or stranded at night.
3. She said that Mr Butto undertook a six week trial as a car detailer and that he was confident that it would result in paid employment. That did not eventuate and this shook his confidence.
4. She described the undertaking of duties at Minda Homes. This was in October 2010. His employment there was short lived. She said that Mr Butto approached the job in the hope that his confidence and selfesteem would improve but this did not eventuate.
5. I accept this evidence.
6. I now turn to consider the issues I identified at the outset.

1. Mr Calligeros, counsel for EML, contended that the compensable disability was the aggravation of a pre-existing psychiatric condition caused by the change in Mr Butto's work conditions and the perceived lack of support from his supervisor and nothing more.
2. Mr Rossi, counsel for Mr Butto, contended that I should take a much broader view and that I should include within the accepted disability all of the related issues such as the loss of self esteem and isolation following his absence from the workplace.
3. Ultimately what is involved here is a fact finding exercise as to what the parties intended by the consent order made on 18 April 2008.
4. The description of the accepted disability in the consent order is "work related stress sustained on 21 February 2007." It does not however follow that the accepted disability is limited to those stressors that were in existence as at 21 February.
5. In Advertiser Newspaper Limited v Despoja[19] Judge Cawthorne was confronted with an assertion that a review had miscarried because the Review Officer had gone beyond the specific allegations that the worker had made in her compensation claim in connection with a psychiatric disability. He noted that the compensation claim form is directed towards simple traumas, which occur as a result of a specific event at a precise and early ascertainable time, date and place and that this did not fit the nature of the disability being asserted. He noted that psychiatric claims are often associated with vague allegations and the causes of the disability can be a complex and multi factorial. He said:

"In these circumstances, and in light of what the Act required of him, in our opinion he was entitled to take a robust approach to the matter at hand and take into account the events of late December particularly as those events had been linked to the disability by psychiatric investigations carried out on the appellant's part and of which it had knowledge prior to making its determination".[20]

1. A similar issue arose in Gomez-Soto v Unisure Pty Ltd. Duggan J, who wrote on behalf of the Full Court, expressly approved of Judge Cawthorne's approach.[21]
2. Consistent with all of this I think I should be open to the possibility that what was agreed upon in making the consent orders was an acceptance of the claim based upon stressors causally connected too but not necessarily confined to events on or before 21 February 2007.
3. In Isaacs v The Ocean Accident and Guarantee Corporation Ltd and Winslett, Street CJ and Roper CJ in Eq referred with approval the following passage from Spencer Bower on Res Judicata p 114 para 174 where the learned author said:

"In the case of judgments and orders by consent ... it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent ... judgment or order was made."[22]

1. In the case of a workers compensation claim settled at conciliation, it is unlikely that there will be in existence pleadings or affidavits. But there will be documents, including medical reports, which might throw light upon what the parties intended by their agreement. In my opinion it is appropriate to look to this material in identifying what was agreed upon by the parties.
2. In this case we know as a fact that by the time Mr Butto's claim was accepted he had stopped work for some time. Importantly, the parties were in possession of the report of Dr Blakemore following his examination of Mr Butto on 2 November 2007. This in turn implicitly identifies Mr Butto's loss of his job as a causally relevant to his psychological state at the time of his examination.
3. In the absence of evidence to the contrary, and there was none, I think the reasonable inference to draw from the terms of the consent order and the facts known and the evidentiary material in the possession of the parties at the time of its making, is that the stress and anxiety that that cessation of work produced was taken by the parties to have formed part of Mr Butto's accepted compensable disability and I so find. Accordingly I approach the resolution of this matter from that premise.

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? Is it sufficient for it to establish that employment is no longer a substantial cause?

1. Mr Calligeros contended that because a psychiatric disability is only compensable if employment was a substantial cause of it, it must follow that it is no longer compensable once the point has been reached at which it can be said that employment is no longer the substantial cause of it.
2. Whilst that submission has some simplistic appeal it ignores the relevant statutory provision. The issue before the Tribunal is not whether employment continues to be a substantial cause of Mr Butto's disability. It is whether he has ceased to be incapacitated for work by the compensable disability.[23] Accordingly, that is the burden that EML must discharge.

1. The primary issue that arises for consideration here concerns the opinion of the Medical Panel.
2. EML contends that that opinion has resolved the issue in its favour and that that is the end of the matter.

How should the Tribunal treat the certificate and reasons of the Medical Panel?

1. The status of a Medical Panel opinion was considered by the Full Supreme Court in Campbell v Samaras and Employers Mutual Limited and Yaghoubi v BDS People Pty Ltd and Employers Mutual Limited.[24] Gray and Sulan JJ issued a joint judgment. White J delivered separate reasons.
2. Within the joint judgment under the heading "If the above conclusion is incorrect and the Tribunal is a "body or person" under section 98H(4), then is Chapter III of the Constitution offended?" their Honours said as follows:

"Accepting that the Tribunal is obliged to give effect to the medical opinion, it remains for the Tribunal to determine if and to what extent that opinion is decisive in a given matter. The opinion is not a decision of the Executive. The opinion is to be accompanied by reasons. The opinion is arrived at after a process is undertaken in which the rules of procedural fairness, and other safeguards, are applied.

It is our view that in any event there remains a genuine adjudicative function to be undertaken by the Tribunal. The medical opinion is only decisive to the extent that the correct question is addressed, the factual basis agreed or relevant assumptions proven by independent evidence, and questions of law properly applied. These remain matters for the Tribunal. This in our view is implicit in section 98I of the Act.

The Tribunal's institutional independence is not compromised. As we touched on earlier in our discussion of the Medical Panels, the Tribunal is not but an extension of the Executive or a body conscripted by the Executive to achieve a directed outcome. Importantly, in our view, at no time can it be said that the Tribunal is directed to a certain outcome. There remains power vested in the Tribunal to satisfy itself that the opinion is one based on the evidence and within the expertise of the Medical Panel. It remains open to the Tribunal to receive further evidence or to refer a matter back to the Medical Panel for clarification or elaboration. It remains for the Tribunal to determine what weight shall be given to an opinion.

Finally, it would be for the Tribunal to determine the legal question that is the dispute in which the parties are joined. There remains a genuine adjudicative function to be undertaken independent of the Executive and legislature and in no way directed or participated in by either."[25]

1. Mr Calligeros submitted that this is the approach that I should adopt. He said that I should not be in any way concerned by the fact that these remarks were made after the heading to which I referred because to do otherwise would be to misapprehend and exalt the status of a heading that was used only for convenience. He said that it should not be used in construing the judgment.
2. I do not understand why a heading should be ignored as suggested by Mr Calligeros. I can see no reason in principle why a heading should not be given the same respect as any other parts of a judgment. If anything, it might be thought to be particularly important because it is usually used to focus the attention of the reader to the issue being discussed. But, in any event, the text of their Honours' judgment makes it clear that the statements following the heading did not form part of the primary judgment. They said at para 118:

"It is to be recalled that these conclusions are alternative conclusions. As discussed earlier, it is our view that section 98H(4) is not to be taken to include the Workers Compensation Tribunal within the phrase a 'body or person'".[26]

1. I therefore reject this contention.
2. In my view I must look elsewhere in the judgments for guidance as to what I am to make of the Medical Panel opinion.
3. It is important to note that these matters came before the Full Court by way of a reference of various questions of law by the Full Bench.
4. For present purposes the relevant question posed by the Full Bench was whether s 98H(4) of the Act required the Tribunal to do something substantially inconsistent or incompatible with the continuing subsistence in respect of the Tribunal's judicial role.
5. In deciding this issue the Full Court focussed upon the construction of s 98H(4) of the Act which provides:

"For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any body or person acting under this Act and must be accepted as final and conclusive irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

1. The majority, Gray and Sulan JJ and the minority, White J, all thought that it was significant to compare this provision with the comparable provision in the Victorian Accident Compensation Act 1985. That Act similarly provides for Medical Panels to issue opinions on medical questions in connection with the resolution of workers compensation matters. Section 68(4) of that Act provides:

"For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

1. In making the comparison between the two provisions Gray and Sulan JJ said:

"It is not without significance that the Victorian model upon which section 98H(4) was based provided that 'any court, body or person' was bound in the manner identified, thereby suggesting a deliberate decision being made on the part of the South Australian Parliament to exclude the Tribunal from the ambit of section 98H(4)."[27]

1. White J expressed himself a little differently but came to the same conclusion. All the judges decided that s 98H(4) of the Act does not apply to the Tribunal. For present purposes this is the ratio decidendi of the case. It is the ruling that I am bound to follow.
2. It follows that whatever statements contained in the judgments as to what the Tribunal is to make of a Medical Panel opinion and how it affects the parties are obiter dictum. I am not bound to follow them. However, as they are the observations of judges of the Supreme Court, they must be treated with great respect.
3. In their joint reasons Gray and Sulan JJ suggest that although the Tribunal is not bound by the opinion of a Medical Panel, the parties might be. If that is correct, this would necessarily affect the conduct of litigation before the Tribunal. They said:

"We accept that the words, 'irrespective of who referred the medical question to the Medical Panel' are significant. They suggest an intent to prohibit any contention made by one body or person that they are not bound in the sense identified by virtue of the fact that they did not refer the medical question. This implication supports the proposition that it is those joined in an issue who are to be bound by the medical opinion.

The section only purports to be binding in relation to a 'medical question'. The definition of a medical question does not have the effect that the opinion of the Medical Panel resolves the legal question that is the issue in which the parties are joined. It remains for those determining the question or matter to determine the legal question.

That a Medical Panel may give an opinion on the ultimate issue does not detract from this construction. It remains for the decision maker to determine whether or not the opinion should be accepted. Again, it might be that the opinion is binding upon the bodies or persons joined in the issue, and must be accepted as final and conclusive by them. But it can only be binding and conclusive as the opinion of the Medical Panel on the decision maker to the extent that the factual basis upon which the opinion is based is agreed, or the assumptions upon which it is based are subsequently proven. In this regard, it is important to note that a question may be referred despite facts and questions being disputed. Further, the value of the opinion may also depend upon matters of law.

In our view, the above factors allow the conclusion in that the Medical Panel is a facility available to the parties to a dispute under the Workers Rehabilitation and Compensation Act, one which, if utilised, has the effect of minimising the undesirable alternative of 'duelling experts', prevents the proliferation of reports, and provides for a speedy and definitive ruling on medical matters."[28]

(footnote omitted)

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:

"In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise' (at [41])."[29]

1. 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.
2. 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.
3. 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.
4. 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.
5. In Campbell v Samaras and Employers Mutual Limited and Yaghoubi v BDS People Pty Ltd and Employers Mutual Limited Gray and Sulan JJ said:

"Further, there is nothing to prevent the Tribunal, which has control over its own processes, from referring a question back to the Medical Panel for clarification or elaboration."(footnote omitted)[31]

1. In saying that their Honours cited Lianos v Inner & Eastern Health Care Network.[32] I think it is likely that they were relying upon the following passage from the judgment of Teague J in that case where he said:

"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]

1. 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.
2. I received further oral submissions in response to this. Having reflected upon them I have resolved not to take the matter any further.
3. 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.
4. 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.
5. It is notable that EML maintains that the accepted disability does not include the stress related to Mr Butto's loss of his job.
6. 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.
7. 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.

Does the word "certificate" as it is used in s 98I(1) include the reasons as required by s 98H(3)?

1. 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.
2. I will now explain why I have reached the view that they fall within the purview of s 98I(1).
3. 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.
4. 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.
5. 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.
6. I return to the primary issue that I must determine.

Has Mr Butto ceased to be incapacitated for work as a result of a previously accepted compensable disability described as work related stress?

1. As I stated earlier in these reasons the stress and anxiety that that cessation of work produced should be taken to have formed part of Mr Butto's accepted compensable disability. My very firm impression is that this stress in not only ongoing but has resulted in a marked deterioration in Mr Butto's functioning.
2. I found Dr Rositano's evidence persuasive. He has had the advantage of seeing Mr Butto over a long period of time and was well placed to express the opinion that Mr Butto's condition has deteriorated since the failed attempt to return to work in 2008 and that for the last two years he has been unemployable. I am fortified in coming to this view by the evidence of Dr Blakemore that I also found persuasive. I think the evidence of Dr Ewer suffered because he, like the Medical Panel, does not appear to have asked himself the right question. He assumed that Mr Butto's accepted compensable disability was of much narrower context than I have found it to be. In light of his statement that Mr Butto's loss of his job was probably perpetuating his current psychiatric symptoms I think it is likely that had Dr Ewer assumed that the accepted compensable disability was, as I have found it to be, his opinion would be much closer to the views expressed by Dr Rositano and Dr Blakemore.
3. In light of my concerns about the Medical Panel opinion as set out above and in the absence of any oral testimony from the authors of the opinion I would not admit it into evidence.
4. I find that as at the date of the determination Mr Butto was totally incapacitated for work and that that condition has not changed since. Having reached this conclusion it is not necessary for me to consider whether I could take the robust and versatile approach that EML urged upon me if I were to find that Mr Butto ceased to be incapacitated for work at some later date or that his capacity for work varied from time to time.

1. Mr Butto's accepted compensable disability includes the consequences of the stress and anxiety that the cessation of his work at Spotless has produced.
2. The fact that the accepted disability is a psychiatric disability does not mean that EML will have established that Mr Butto has ceased to be incapacitated by it upon proof that employment is no longer the substantial cause of it. The issue is simply this: Has Mr Butto ceased to be incapacitated by the accepted compensable disability?
3. Assuming, without deciding that the parties might be bound in the conduct of their case by the opinion of the Medical Panel, I find that that state of affairs does not exist here.
4. In exploring this issue I have had regard to the reasons accompanying the certificate, which I find are potentially admissible pursuant to s 98I(1) of the Act.
5. Having considered the evidence I find that as at the date of the determination Mr Butto was totally incapacitated for work and that that condition has not changed since. Accordingly, EML's determination must be set aside.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Because the compensable disability is a psychiatric disability pursuant to s 30A(a) such a disability is compensable if and only if the employment was a substantial cause of it.

[19] (1989) 1 WCATR 178

[20] (1989) 1 SAWCT 178 at 189

[21] (1997) 68 SASR 294

[24] (2011) 110 SASR 57

[25] (2011) 110 SASR 57 at 84

[26] (2011) 110 SASR 57 at 84

[27] (2011) 110 SASR 57 at 81

[28] (2011) 110 SASR 57 at 81

[29] [2001] NSWCA 305; (2001) 52 NSWLR 705 at para 85

[30] The members of the Medical Panel must be legally qualified medical practitioners who are appointed by the Governor on the recommendation of Minister following a selection process undertaken by a selection committee: s 98(2) and (3) of the Act. From this list a Convenor of Medical Panels is appointed and the Convenor selects the members to form a particular Panel and who amongst them is to be the presiding member of that Panel: s 98(8), s 98A(1) and (5) of the Act. It might therefore be thought reasonable to assume that the members of the Panel are appropriately qualified to express an opinion in respect of the medical question(s) referred.

[32] [1999] VSC 307 (27 August 1999)

[33] [1999] VSC 307 at paras 54-5

[34] [2001] VSCA 997