Calleja v Franet Pty Ltd [1999] VSC 202

12. The appellant disputed the termination of the weekly payments, contending that she remained totally incapacitated. After an attempt at conciliation had failed to resolve the dispute, a proceeding which came on for hearing, on 30 April 1998, was instituted in the Magistrates' Court on her behalf. During the course of that hearing, the first respondent served, upon Mrs. Calleja, a Notice of Request pursuant to s 45(1)(b) of the Act, outlining medical questions to be referred to a Medical Panel. Section 45(1)(b) states:

"If a party to the proceedings so requests, the Court must refer a medical question to a Medical Panel for an opinion."

16. Mrs. Calleja gave evidence at the hearing and a number of medical reports were provided to the Court. The Magistrate then ordered that the following questions be put to a Medical Panel for determination:

(1) What is the nature of the plaintiff's medical condition relevant to the injuries alleged in the statement of claim in particular:

(a) injury to the right elbow;

(b) anxiety and depression;

(c) post traumatic neurosis?

2. Is the plaintiff partially or totally incapacitated?

3. Is the plaintiff's partial or total incapacity permanent?

25. He further directed that a transcript of the proceedings, the pleadings and the medical reports mentioned be forwarded to the Panel.

28. Three members were appointed to constitute the Medical Panel to deal with the questions posed. No question has arisen as to the process of appointment or the Panel's composition. Each member independently and separately examined Mrs. Calleja. Their findings were then set out in a "Certificate of Opinion" and a "Medical Panel Opinion", dated 4 August 1998, which reads:

"As Presiding Member of this Panel, I have discussed the answers herein with the other Panel Members and this is the consensus view formed: Q1 What is the nature of the plaintiff's medical condition relevant to the injuries alleged in the statement of claim in particular? (a) injury to the right elbow The panel is in agreement that the worker suffers a post traumatic lateral epicondylitis as a consequence of the alleged injury to the right elbow in Feb 1995. Mrs. Calleja also reports clinical symptoms of, and has electrophysiological evidence of mild right carpal tunnel syndrome. (b) anxiety and depression The panel is in agreement that the worker does not suffer with any work related 'anxiety or depression'. The panel is of the opinion that whilst the worker described symptoms consistent with an adjustment disorder with anxious mood related to her injury, these symptoms have now resolved. Thus, it can be said, she does not suffer any mental condition resulting from or materially contributed to by her injury. (c) post traumatic neurosis The panel is of the opinion that the worker does not suffer with post traumatic neurosis, nor with any other mental condition contributed to by her injury. Q2 Is the plaintiff partially or totally incapacitated? The panel is of the opinion that the worker is partially incapacitated. Q.3 Is the plaintiff's partial or total incapacity permanent?" The panel is of the opinion that the plaintiff's partial incapacity is permanent."

The findings were, in due course, forwarded to the Magistrate and to the solicitors acting for the appellant.

33. In response to the Opinion, the appellant's solicitor wrote to the Panel requesting that they provide reasons for their conclusion. After receiving a document headed "Reasons For Medical Panel Opinion", which reads:

"The worker has a post traumatic lateral epicondylitis of the right elbow resulting from blunt trauma sustained at work in Feb 1995. She also has clinical and electrophysiological evidence of a mild right carpal tunnel syndrome confirmed on EMG studies dated 15/7/98. Her work is considered a significant contributing factor in the precipitation of this syndrome. Ms. Calleja describes pain in the lateral aspect of her neck radiating to the shoulder and arm. She has clinical and radiological evidence of degenerative disc disease at C5/C6 which is considered to be age related and constitutional in nature. This condition has not been aggravated by her employment. Ms. Calleja described symptoms consistent with an adjustment disorder with anxious mood at the time of her injury. This condition has resolved. Currently she reports symptoms of flushing, irritability, emotional mood lability, loss of libido and impaired short-term memory. This cohort of symptoms is related to the menopause and as such is not related to her past injury. The worker is partially incapacitated and as such is fit for suitable employment not involving repetitive heavy lifting with the right arm of a repetitive power grasp with the right hand. With respect to the documented degenerative cervical spine disease, she should not be involved in work requiring repetitive flexion of the neck or repetitive use of the upper limbs above shoulder height. Ms. Calleja's partial incapacity of the right upper limb can be considered to be permanent as her symptoms have persisted three years despite optimal treatment, and the natural history of lateral epicondylitis is that of a chronically relapsing disorder."

The solicitor then requested that the Panel provide additional documents evidencing the factual foundation on which it was reached. This request was refused.

38. The appellant now seeks a review of the Medical Panel's decision upon the following grounds:

(a) The Medical Panel failed to provide any, or any proper opinion in respect to question: "What is the nature of the plaintiff's medical condition relevant to the injuries alleged in the statement of claim in particular ... anxiety and depression ..."

(b) The Medical Panel's finding that her current mental symptoms are related to the menopause and that therefore a work related adjustment disorder with anxious mood was made without any material to support it provided by the parties but, presumably solely on the basis of an examination of the worker, and without giving the applicant or the respondent any opportunity to respond to or be heard in relation to this conclusion.

(c) The Medical Panel failed to take into account relevant considerations, make appropriate findings or apply the definition of "suitable employment" set out in s.5 of the Accident Compensation Act 1985 in giving its opinion that the worker is partially incapacitated.

(d) The Medical Panel failed to consider, having regard to the nature of the applicant's incapacity, the age, background, education and training of the applicant, whether she was unfit for her pre-injury employment and if so, what other employment she had a capacity for.

45. The appellant had initially sought a review of the Medical Panel's decision upon another ground which was abandoned at the trial and need not be further addressed.

These will be dealt with in the order in which they were presented by counsel for the appellant.

In his submissions Mr. McCredie, counsel for the appellant, first dealt with ground (b). He contended that, until the reasons of the Panel were received, no suggestion had ever been advanced nor was there any evidence to indicate that the appellant's condition may have been related to menopause. In this context, emphasis was placed upon the transcript of the Magistrates' Court hearing and also upon the medical reports forwarded to the Panel. The only portion of the transcript in which any reference at all is made to the possible significance of menopause reads:

Mr. Batten: Yes. And are you going through change of life as well?

Mr. Batten: And have you had problems - women's problems since 1995?

Mr. Batten: Have you been treated by Dr. Hawtin for those sorts of problems?

62. It will be observed that no questions concerning any specific symptoms that could possibly have been related to "women's problems" were ever put to her nor was any suggestion raised that she may have been aware of the presence of any such "problems".

65. The only other reference to menopause in the material before the Magistrate appears in the psychiatric report of Dr. Kenny, which states as follows:

"Other Medical and Psychiatric History:- She denies other significant accidents, illnesses, injuries, psychiatric or emotional problems. Her periods have stopped. She sees herself as generally having been a fit and healthy person."

69. Importantly, the argument proceeded, as the possible significance of menopause had never been raised or even intimated to be relevant to the presence of the appellant's condition or incapacity, and was touched upon only in the series of questions set out, no party to the proceedings ever addressed it. Dr Kenny obviously did not perceive her difficulties as related to the onset of menopause and dealt with it in an historical and exclusionary fashion.

72. Counsel contended that against that background, the Panel was not entitled to find, without first giving her the opportunity to be heard, that the appellant's mental symptoms were related to the onset of menopause, arguing that the obligation on the Panel to accord procedural fairness to Mrs. Calleja necessitated that she be made aware that this, previously unsuggested, diagnosis had been made and that she be given an opportunity to respond to it.

75. Mr. Fleming, counsel for this respondent, submitted that this contention lacked substance. The Act itself provided the framework for Panel decision making. There were provisions within it designed to ensure that, in the event that the proper procedures were followed, and although the Panel is obliged to act with a minimum of formality, the principle of audi alterem partem would be observed in matters referred to a Medical Panel and which determined the manner in which this was to be achieved. For instance, parties are given the opportunity to submit any material prior to the Panel's deliberation, indeed the Panel may itself request the production of relevant documents. It must also be borne in mind that each member may examine the worker and that Mrs. Calleja was separately examined by all members. Further, the assumptions should be made that in the absence of any evidence to the contrary, each member will have given full regard to any history provided and any findings made on examination. Members of a Panel, he quite correctly contended, are to be regarded as honest and independent specialists and their evaluations should be treated accordingly.

78. Counsel submitted that there is nothing in the Act to suggest that the Panel must notify a worker of its preliminary opinions or to give them an opportunity to respond to such opinions. Cases such as Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 A.L.R. 502 and Commissioner for ACT Revenue v. Alphaone Pty. Ltd. [1994] FCA 1074; (1994) 49 F.C.R. 576 were cited, in this context, as authorities for the proposition that the non-disclosure of preliminary findings does not amount to a denial of natural justice. Apart from the contrary assertion advanced in this Court, it has not been suggested, the argument proceeded, that the Panel failed to carry out any of its obligations under the Act, and therefore no basis exists for interference on the footing that the appellant had not been accorded a proper hearing.

81. Counsel accepted without any apparent hesitation, in the course of discussion , that if a Medical Panel came to a conclusion that a worker was suffering from some undiagnosed condition to which no reference had ever been made, then it may well be necessary that an opportunity be given to the person concerned to address this possibility, and to present further material evidence on the point, if so desired. But Mr. Fleming submitted that this was not the situation in the present matter, and that Mrs. Calleja did have an adequate opportunity to address a clearly present possibility. The issue of menopause had been raised, he said, during the Magistrates' Court proceedings, at which stage counsel for the appellant could have elicited any relevant material had it been considered to be advantageous to the appellant to do so. Her legal advisors could have requested doctors with expertize in that area to provide opinions as to whether Mrs. Calleja's problems may have been related to the onset of menopause and they clearly did have an opportunity to submit any such material to the Panel.

84. Counsel for the respondent suggested that even if the Medical Panel had informed Mrs. Calleja directly that her symptoms were due to menopause, she would not have been able to further assist them. But that proposition is beside the point. Obviously the appellant could not provide the Panel with an expert medical opinion as to her condition, but she may well have been able to address the issue through appropriate specialist opinions had she been given such an opportunity.

87. Finally, in relation to this ground, Mr. Fleming submitted that the scheme of the Act allows the Panel to rely on its own expertise when forming its opinion. As long as the worker has been given a fair opportunity to present her position to the Panel, then the requirements of natural justice have been met. Of course that is so, but again it begs the question.

90. In my opinion, the argument advanced on behalf of the appellant on ground (b) possesses considerable force. 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. As Mason, J. said in Kioa v West [1985] HCA 81; [1985] 159 C.L.R. 550 at 582:

"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."

"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."

96. 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.

99. Mr. Fleming argued that the Panel was under no obligation to present its preliminary findings as a preliminary determination for further consideration and submissions by the appellant. In the ordinary course of events, this statement would undoubtedly be correct. However, in the particular 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.

102. Given the finality of its decision (see s.68(4) of the 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.

105. 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 then have been afforded an opportunity to present material on this issue.

Mr. McCredie next dealt with ground (a). He submitted that the Medical Panel was asked to provide an opinion about "the nature of the plaintiff's medical condition relevant to the injuries". They were not required to express a view as to the possible cause of any condition from which they decided that the appellant was suffering, but only whether her injuries were related to her employment. Counsel submitted that in answering questions 1(a), (b) and (c) the Panel went beyond the bounds of the medical questions asked of it. They provided the following answers to those questions:

"1(a) The Panel is in agreement that the worker suffers a post traumatic lateral epicondylitis as a consequence of the alleged injury to the right elbow in February 1995. Mrs. Calleja also reports clinical symptoms of, and has electrophysiological evidence of mild right carpal tunnel syndrome. (b) The Panel is in agreement that the worker does not suffer with any work related 'anxiety or depression'. The Panel is of the opinion that whilst the worker described symptoms consistent with an adjustment disorder with anxious mood related to her injury, these symptoms have now resolved. Thus, it can be said, she does not suffer any mental condition resulting from or materially contributed to by her injury. (c) The panel is of the opinion that the worker does not suffer with post traumatic neurosis, nor with any other mental condition contributed to by her injury."

111. Mr. McCredie argued that the Panel were not entitled to provide such answers, which, in any event, he contended, were unsupported by the evidence before it.

114. Counsel for the respondent argued, and I agree, that this ground must fail. The Medical Panel, in its answer to question 1, gave responsive opinions based upon the material that it had before it concerning the appellant's medical condition. Its conclusions could hardly be invalidated because it elaborated upon its opinion and may arguably have provided more information than was strictly required.

117. From the Medical Panel's answers to the referred questions were opinions as to matters of fact, decisions as to which are only subject to review where there is a clear absence of material capable of supporting the impugned finding - (see S v. Crimes Compensation Tribunal [1998] 1 V.R. 83). I am not satisfied that there was, in this case, no evidence to support the Panel's opinions. It was constituted by three specialist medical practitioners, each of whom had separately conducted an examination of the appellant. They had been supplied with medical reports from other medical practitioners who had examined or attended Mrs. Calleja. And they were also provided with the transcript of the examination and cross-examination of the appellant from the Magistrates' Court proceeding. The Panel was entitled to form its own opinion based upon those materials. In the course of presenting his submissions on this aspect, counsel for the first respondent drew my attention to the manner in which the legislature intended that such panels would approach their tasks. They are not bound by rules of evidence (see s.65(1) of the Act) and it is obliged to act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows (see s.65(2)). Of course, regard must be had to the specialist character of the Panel's composition. In consequence, and consistent with long standing principles, a court should be slow to interfere with its findings unless they were clearly not supported by the evidence. As I have indicated, I do not consider that it would be proper to arrive at such a view.

In relation to grounds (c) and (d) counsel for the appellant argued that the Medical Panel was required to give an opinion as to whether the appellant was partially or totally incapacitated, and whether such partial or total incapacity was permanent and that it had failed to have regard to a number of factors which were not only relevant in the circumstances but which it was statutorily required to take into account.

122. In support of these submissions reliance was placed upon the absence of any reference to a number of them in the Opinion or Reasons provided by the Panel. The following definitions which appear in s.5 are relevant in this context:

"partial incapacity" in relation to a worker, means an inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

"total incapacity" in relation to a worker means an inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.

"suitable employment", in relation to a worker, means employment in work for which the worker is suited (whether or not that work is available), having regard to the following -

(a) the nature of the worker's incapacity and pre-injury employment;

(b) the worker's age, education, skills and work experience;

(d) the details given in medical information including the medical certificate supplied by the worker;

(f) in any occupational rehabilitation services are being provided to or for the worker.

134. Whilst, Mr. McCredie argued, the Panel determined that the appellant was partially incapacitated and was, therefore, fit for "suitable employment", apart from stating that Mrs. Calleja could not be involved in repetitive heavy lifting with the right arm or a repetitive power grasp with the right hand, it did not indicate what sort of work she could perform. He contended that given her medical condition, age, education, language skills and work experience, all of which the Panel was required to take into account, there was, as a practical proposition, probably very little work that she could undertake. Counsel further argued that by failing to address the question of what type of employment would be "suitable" in her situation, the Medical Panel simply made an assertion and, importantly, provided no indication whatever that any attention had been directed to the requirements of the Act.

137. In dealing with medical questions 2 and 3, counsel for the appellant submitted that the Medical Panel made a further error. It appears, he argued, that they only had regard to Mrs. Calleja's work related injuries, rather than looking at the total effect of the injuries upon her. As Ashley, J. stated in Stanko Dumancic v. GIO Workers' Compensation (Vic.) Ltd. & Anor. Supreme Court of Victoria, 4 March 1998 (unreported) at p.7:

"... the definition of 'suitable employment' does not require the incapacity for work resulting from compensable injury to be placed in a context which, partly by response to matters which may be described as an employer taking a worker as it finds him, in substance builds upon the bare physical incapacity. Such a proposition is not, with respect, sound."

141. Mr. Fleming, in dealing with grounds (c) and (d), argued that the Medical Panel's opinions and reasons are entitled to a "beneficial construction": that is, a reviewing court should not find that the Panel applied the wrong test or otherwise erred unless this is clear from the terms of the opinions and reasons. (See Minister for Immigration v. Wu Shan Liang [1996] HCA 6; (1996) 185 C.L.R. 259). In this case, the Panel was entitled, after considering the relevant definitions in the Act, to arrive at the opinions which they did, he asserted.

144. With respect to ground (c), counsel argued that the Medical Panel's opinion in relation to the incapacity question, and the reasons for the opinion are in a similar form to those given in Masters v. McCubbery (supra) and Masters v. McCubbery (No. 3) (1996) 10 V.A.R. 18. As Winneke, P. stated in Masters v. McCubbery (supra) at 651, a panel is:

"not obliged to overwhelm themselves with the provision of elaborate reasons. As I have already pointed out they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably."

148. Counsel for the respondent argued that the reasons in the present proceeding are in the same general form as those upheld by O'Bryan, J. in Masters v. McCubbery (No. 3) (supra). They do not provide any support for the proposition, he contended, that the Panel failed to take into account any relevant considerations or had failed to make relevant findings.

151. In relation to ground (d) Mr. Fleming again relied on the judgment of O'Bryan, J. in Masters v. McCubbery (No 3). In that matter, His Honour said at p 23:

"In my opinion, the Panel was not required to consider or form an opinion as to whether 'suitable employment' could be found for the plaintiff. The definition of suitable employment is concerned with 'employment in work for which the worker is suited (whether or not that work is available)'. The Panel's reasons sufficiently explain its opinion that the plaintiff is not totally incapacitated for employment but is partially incapacitated for employment."

155. If the Panel in that case was not required to give any further reasons, then this Panel could not be said to have fallen into error for acting in the same manner, he argued. The Panel, in forming its opinion, cannot be said to have erred simply because of the inadequacy of the reasons it provided for its opinion.

158. However, in my opinion, the respondent's arguments in relation to grounds (c) and (d) gain very little support from those cases. Clearly the principles outlined in them are applicable, but it is important to have regard to the respective factual backgrounds of the different matters. Of course, Masters v. McCubbery (No.3), upon which particular emphasis was placed, also involved a challenge to a decision of the Medical Panel but unlike the Panel in the present matter, the Panel there provided relatively detailed reasons for its opinions, specifically:

* it stated that the worker was fit for suitable employment "having regard to the criteria for suitable employment set out in s.5 of the Act". It would be reasonable to accept that the Panel directed attention to the factors there set out. The Panel, which considered Mrs Calleja's situation, made no reference that suggested that they were even aware of the existence of those criteria;

* it explained how it had formed its view based on the history and examination of the worker. In Mrs Calleja's case there was nothing to indicate what matters were taken into account;

* some information, at least, was provided by the Panel in that case as to the sort of work that the worker might be able to perform in contrast to what occurred here;

* the Panel there adverted to the general factors which bore upon the conclusion that the worker was not totally incapacitated. In the present case the Panel provided no indication as to how they arrived at that opinion.

165. Nevertheless, in Masters v. McCubbery (No 3) O'Bryan, J. held that the reasons were not adequate to enable a court to see whether the decision involved any error of law and the Panel was ordered to provide a further statement of reasons. The same could be said in the present case. Here the Panel provided very little indication as to how it arrived at its conclusions and a serious doubt must exist as to whether it acted in accordance with the relevant provisions of the Act.