Di Girolami v Garentone Pty Ltd [2001] VSC 57

I shall refer to this notification as the decision.

10. Di Girolami referred the decision to the conciliation service under the provisions of the Accident Compensation Act 1985 (the Act). Conciliation was attempted but was unsuccessful. Consequently, the conciliation officer certified there was a genuine dispute and that an application could be made to the Magistrates' Court to determine the matter. In August 1999 Di Girolami issued a complaint out of the Magistrates' Court seeking, amongst other things, reinstatement of his weekly payments of compensation.

13. In August 2000 at Garentone's request the Magistrate referred two medical questions to a Medical Panel established pursuant to the Act, s.45(1)(b). The second respondent, Dr. Nisselle, is the Convenor of Medical Panels under the terms of s.63 of the Act. The Medical Panel, which is the third respondent, comprised Mr. Francis, Mr. Huffman and Dr. Honey. The first two members are specialist surgeons and the latter a psychiatrist.

16. The questions addressed to the Medical Panel were as follows:

(1) What is the name of the worker's medical condition relevant to an injury or alleged injury?; and

(2) Is the worker's lack of current work capacity likely to continue indefinitely?

21. In September the Medical Panel produced its answers to the questions. As to question 1, it was as follows:

"In the Panel's opinion the worker is suffering from gross right knee instability as a result of severe loss of the quadriceps mechanism following a right patelectomy. He also has an adjustment disorder with depressed mood."

"In the Panel's opinion the worker's lack of current work capacity is unlikely to continue indefinitely."

27. Also in September, Di Girolami's solicitors requested Dr. Nisselle to furnish a statement of the Panel's reasons for its decision. That was done and they read:

"The Panel accepted that the worker has no current work capacity but considered that with further treatment the worker's condition is likely to improve. This treatment would involve further surgery. The worker indicated to the Panel he would consent to undergo treatment if a reasonable improvement was assured. The Panel also took into account the definition of suitable employment contained in the Act and considered that with the improvement in his medical condition, there is work for which the worker would be suited. The Panel therefore considers the worker's lack of current work capacity is unlikely to continue for the foreseeable future."

31. The answer to question 2 is based substantially, if not wholly, upon a conversation which Mr. Francis of the Medical Panel held with Di Girolami. He swore this as to its contents:

"Prior to preparing a Certificate of Opinion and the Reasons for Opinion of the Panel I telephoned the applicant to enquire what his attitude to further surgery to his right leg would be if he was given advice that such surgery was likely to improve his present condition. The applicant's response was that he would consent to undergo such treatment if reasonable improvement was assured."

35. Mr. Francis gave evidence that he was the person responsible for preparing the Certificate and Reasons and that they accurately record the conclusions of the Panel.

38. It was not argued nor could it be, that the Medical Panel is not a tribunal under the terms of the Administrative Law Act and that its decision required the exercise of the rules of natural justice.

41. An order was obtained requiring this Court to review the decision of the Medical Panel. The grounds argued before me thereof are as follows:

"7. The grounds for which it is sought to review the decision are: ... (b) the Medical Panel has not made any or any adequate findings to enable it to reach its decision; ... (d) the panel failed to take into account relevant considerations, make appropriate findings and apply properly the definition of 'suitable employment' contained in Section 5 of the Accident Compensation Act 1985 in giving its opinion that the Applicant's current lack of work capacity is unlikely to continue indefinitely."

45. The critical argument advanced by Mr. O'Loghlen for the applicant, goes to the Panel's conclusion that Di Girolami's acknowledged lack of current work capacity is "unlikely to continue indefinitely". He says this must have involved the Panel in making a series of decisions, none of which were supported by the evidence, and in any event were based upon an answer given by the applicant as to his willingness to undergo further operative intervention, when such answer was obtained in breach of the rules of natural justice.

48. It was argued the propositions the Panel must have found, were that the further surgery suggested was in fact available to be done and would be successful in its outcome. Furthermore, that Di Girolami would in fact submit to such surgery despite his reservation that he would only do so "if reasonable improvement was assured". Success of the surgery was assumed, as was indeed the nature of any future employment Di Girolami might undertake. A further assumption was that the surgery would make Di Girolami fit for employment sometime within the indefinite future.

51. Mr. O'Loghlen put it that Mr. Francis' telephone call raised with Di Girolami nothing more than a subjunctive, namely an enquiry as to his possible attitude about possible future surgical intervention, rather than it being a request he submit to the same. Moreover, he was asked, if he was given advice that such surgery was likely to improve his condition, would he be prepared to undergo treatment. That is two conditions precedent. As Mr. Francis records, his response was that of any reasonable person. Mr. O'Loghlen contended that as the consequences of his answer, whether equivocal or reasonable, was to terminate his right to weekly compensation payments, then the significance of the enquiry and its consequences should have been made known to Mr. Di Girolami.

54. Mr. Ruskin, on behalf of the respondents, contended that the nature of the proposed intervention had previously been raised with Di Girolami, accordingly he knew what the enquiry was about. Moreover, the suitable employment involved, was obviously work of a like nature which involved some sitting and standing, but not his previous employment as a meat boner.

57. Mr. Ruskin contended that Di Girolami's reply, on any clear reading of the language indicated he would consent to undergo such treatment and it was reasonable to assume improvement was assured. Accordingly he was not then unfit in the indefinite future. In any event, so it was argued, the issue of reasonable improvement was a medical issue rather than a legal one and Di Girolami's equivocation or qualification was irrelevant. Mr. Ruskin contended, this was a case where the expertise of the Medical Panel enabled it to conclude that reasonable improvement was assured. Therefore, it was able to go further, and conclude that there was no likelihood of indefinite incapacity in the future. In substance, and according to the answer on the Certificate, his current work incapacity is "unlikely to continue indefinitely". Therefore the cessation of his payments after the statutory period of two years was justified.

60. There are several faults in Mr. Ruskin's reasoning. It would have required the prescience of a chemist interpreting the medical records to conclude that Di Girolami would have known of the nature of the further medical intervention proposed. There is some oblique reference to the possibility of further medical intervention, but I am satisfied the nature, extent and scope of it were never clearly translated to Di Girolami who, after all, is illiterate and dyslexic. Both of these facts were known to the medical practitioners.

63. The second fault in Mr. Ruskin's argument is to assume that Di Girolami would have known the results of answering Mr. Francis' enquiry. His response was that he would be prepared to undergo further intervention if he could be assured of its success, the reasonable answer any person would give in his circumstances. Of course he would need to know and have spelt out to him the nature of the intervention, the likely period of hospitalisation, the degree of pain, the degree of inconvenience as well as a reasonable estimation of the risks of failure as well as success, before he could give a definitive answer. None of this was ever proposed or laid out before Di Girolami. Yet, the consequences of his reasonable response deprived him of any source of income. No response to Di Girolami's response was forthcoming.

66. The seriousness and significance of his response and the consequences can be tested by reversing the process. Would any medical practitioner be expected to answer, per phone, an enquiry couched in the subjunctive tense, if he knew that the consequences thereof would be to deprive him of his practising certificate and sources of income? Of course not. Yet that is the position for which the respondents contend, namely that an illiterate, innumerate, dyslexic labourer with nothing to sell but his physical strength, should be deprived of his sole source of income, on the basis that he would like to be assured that further medical intervention would likely be successful.

69. An answer to the second question, the terms of which reflect the provisions of the statute, can result in the worker's entitlement to compensation being terminated or ultimately extinguished. Therefore the consequence of an answer can be extremely dire. The Panel itself is confronted with difficult issues of fact and medicine and required to produce an answer free of complications or comments. Thus stated, the enormity and difficulty confronting Medical Panels is exposed. I repeat and endorse the comments of Smith, J. in Weerappah v. Nisselle (unreported, 22 July 1999); [1999] VSCR 249 particularly at p.20 et seq. Moreover, when a Medical Panel is asked for reasons, it is not required to deliver them with a degree of exposition and precision suitable for a medical journal. However, the reasons must be sufficiently stated so that a court is enabled to ascertain how it is the decision was arrived at. See Masters v. McCubbery [1996] 1 VR 634 at pp.640 and 650. Accordingly, I am guided in my approach in assessing the second question and the reasons therefore. I find that Di Girolami's entitlement to having his weekly payments reinstated, was extinguished by his own qualified answer to a hypothetical question. Firstly, he was asked about his attitude to further surgery. He was not asked whether he would be prepared to submit to further surgery but merely to indicate what he might do in the future, if a proposal for further surgery was put to him. The second part of Mr. Francis' question was - What would his attitude be if he were given advice that such surgery was likely to improve his present condition? He was not told that the surgery would improve his present condition but merely advised that there was a possibility of that occurring. That is a contingency which is compounded by the contingency first expressed in the question, namely if he were given advice. No such advice, I find, had been given and certainly not in terms comprehensible to Di Girolami. Therefore I find that there were three contingencies, all relating to future events being put to Di Girolami. His response was in the same terms as the question asked, namely that he would consent to undergo the treatment if reasonable improvement was assured. No assurance was given, no explanation was given as to what the surgery might have involved and, accordingly, he gave an appropriately qualified answer to a question which contained three hypothetical assumptions.

72. The Panel, in its stated reasons, said that it concluded that the worker's lack of current work capacity is unlikely to continue for the foreseeable future because "with further treatment the worker's condition is likely to improve". Therefore the Medical Panel translated the hypothetical and subjunctive nature of its question into a present moment conclusion. As no explanation was given to Di Girolami as to what "further treatment" involved and no exposition as to what degree of improvement, when it would occur and how it would affect him, was proffered, I consider that the Medical Panel arrived at its conclusion without due and proper regard to the interests of the worker. Therefore I find that the first arm of Mr. O'Loghlen's argument to be made out and the ground posed in the order to review established.

75. I turn to the issue of natural justice and procedural fairness. This Court is guided by the principles set out in Kioa v. West (1985) 159 CLR 590 and in particular that rule of natural justice which requires a person, particularly an unrepresented one, to be aware and comprehending of the nature of questions put to him or her and the consequences any answer may bring. A fair hearing requires fairness to the parties particularly when they may be unguided and untutored in the technical area being questioned, and the dire personal consequences an answer may attract. For this principle I return to Smith, J. in Weerappah's case wherein he cited with approval, as I do, the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v. Alpha One [1994] FCA 1074; (1994) 49 FCR 576 at 591. Smith, J. then went on to say:

"Having an obligation to accord natural justice means that the body in question must consider what its obligations are in the circumstances of a particular case and it carries the responsibility to accord natural justice to the litigants. That can be a significant burden where parties are not represented."

79. Bearing these admonitions in mind I find that the Panel did not accord natural justice to Di Girolami. He was telephoned at his home, not interviewed in person. He was asked a question which was inadequately explained, and given little context. His answer affected the very basis of his income. He was known by the questioner to be illiterate and dyslexic. He was in a supine position of helplessness viz a viz the medical, technical and presentational skills of the questioner. If all that were not enough, he was asked a question based upon a contingency, on a hypothetical, his own answer, far from being definite, was in the same terms. Yet that answer brought elimination of his right to have the weekly payments reinstated. In my view the rules of natural justice were offended. The decision of the Medical Panel cannot stand in these circumstances. The grounds (b) and (d) in the Order to Review have been made out although there is no need to consider the "suitable employment" point.

82. I appreciate that members of Medical Panels are not and can not be expected to have the forensic skills of lawyers. They must operate at speed and are required to deliver simple answers to complex and teasing medical issues. However, that is the structure of the Act. But they are obliged to proceed in accordance with the rules of natural justice which impose yet another burden upon the members of such panels. The Court might sympathise with their difficulties, express some surprise at the enormity of the tasks laid upon them, but justice demands that they proceed in compliance with the rules of natural justice and procedural fairness. This was not done. Accordingly, I shall order that the matter be remitted to a further Medical Panel, differently constituted, and the matter proceed in accordance with the Act.