Hassan v Nisselle [2000] VSC 271

Supreme Court of Victoria|2000-06-27|Before: HARPER, J.

Ali Hassan ("the plaintiff") was born on 12 April 1945. He is now 55 years old. He claims that, by what his counsel described as "gradual process" he was injured at work. The "process" culminated in a fall on or about 19 September 1996, when he slipped on a mixture of oil and water while carrying a sheet of steel.

The plaintiff also claims that those medical practitioners who assessed his injuries failed to do so properly. First, there was no proper foundation in law for the assessment. This should have been conducted in accordance with the Accident Compensation Act 1985 ("the Act"). Mr. Hassan asserts that it was not. Secondly, he alleges that, as a matter of medical practice, his injuries were not assessed with due care and skill. He therefore submits that a Certificate of Opinion dated 23 July 1999, which was prepared by a medical panel convened by the first defendant as Convenor of Medical Panels, should be reviewed.

It was not long before the insurer came to the view that it was being over-generous. It was for the purposes of the Act then an "authorised insurer". On 13 March 1997 it wrote to the plaintiff. The letter was "a formal notice under s.114 of the ... Act ... to advise that your weekly payments of compensation will be terminated on 24 March 1997". This was only four days after the commencement, on 21 March 1997, of the payments announced on 7 March. The letter continued:

"After considering all available information we have determined that you are no longer entitled to weekly payments ... as [y]ou did not participate in an occupational rehabilitation service or a return to work plan [and] [y]ou did not make every reasonable effort to return to work in suitable employment at your place of employment in co-operation with your employer and the authorised insurer ..."

Whether or not the insurer's reliance upon s.114 could ultimately be justified, it was certainly explicable. Mr. Hassan claims that he has suffered a serious injury, and that as a result he is totally incapacitated. As the Act was then framed, s.114 when read with s.93B(2)(c) empowered an authorised insurer to terminate such a worker's entitlement to weekly payments on the ground that the worker had failed to make every reasonable effort to participate in an occupational rehabilitation service or a return to work plan and had failed to make every reasonable effort to return to work in suitable employment.

Mr. Hassan disagreed with the decision announced by the letter of 13 March. A number of alternatives were, in those circumstances, open to him. Of these he chose to proceed under s.39 of the Act. That section confers upon the County Court jurisdiction, which for present purposes may be taken as exclusive, to determine questions or matters arising out of any decision of an authorised insurer such as the company's workers' compensation insurer.

The Writ was issued out of the County Court at Melbourne on 24 June 1997. The company was named as the defendant. In his statement of claim, the plaintiff alleged that he was, within the meaning of the Act, an employee of the company when he suffered a "serious injury" (and therefore, by definition, was entitled to compensation) as a result of which his degree of impairment, as assessed in accordance with s.91 of the Act, amounted to 30% or more. In paragraph 3, under the heading "Particulars", the plaintiff inserted the following:

"Throughout the course of the plaintiff's employment the general physical stresses and strains together with an incident in or about September 1996 led to the production, aggravation, acceleration, exacerbation, recurrence and/or deterioration of injury to the left knee, neck, back, headaches, referred pain to the shoulders, sexual dysfunction, mental injury, anxiety and depression."

The plaintiff also alleged that as a result of his injuries he is and will permanently remain totally incapacitated for work. The statement of claim then proceeded to allege that the termination of his weekly payments of compensation was in breach of the Act. Given his medical circumstances, he was entitled to compensation unless he had done, or failed to do, something which might remove that entitlement. But he had not failed to participate in an occupational rehabilitation service or return to work plan; and he had not failed to make every reasonable effort to return to suitable employment. Accordingly, the plaintiff seeks (among other things) declarations that he (a) had a serious injury and (b) was totally and permanently incapacitated for work. In each case, the declaration is sought under the Act. The plaintiff also seeks weekly payments of compensation at the rate applicable to workers who have suffered serious injury of the kind allegedly inflicted by his employment upon him.

An amended statement of claim, dated 24 March 1999, was issued. By that pleading, the plaintiff asserted that, in October 1998, he submitted a claim for lump sum compensation for permanent disability pursuant to ss.98 and 98A of the Act. This was subsequently referred to the WorkCover Conciliation Service. The amended statement of claim went on to plead the issue, in April 1999, of a Certificate of Conciliation Outcome pursuant to s.104(8). Such a certificate must be issued if the appropriate official is satisfied that all reasonable steps have been taken by a claimant to settle the dispute constituted by the claim. The certificate must certify to that fact; and the insurer must, within 14 days after service of the certificate on the insurer, make a statutory offer in writing in settlement of the dispute. According to the amended statement of claim, however, the matter remains unresolved. The plaintiff accordingly added to his prayer for relief a claim for lump sum compensation pursuant to s.98 and s.98A of the Act in respect of (a) impairment of his neck and back, and (b) permanent partial disability of both his arms and both his legs.

The trial was set down for hearing before his Honour Judge Holt on 16 June 1999. On 10 June, however, the company issued an "amended" notice of request pursuant to s.45(1)(b) of the Act. The effect, so the company submits, was to require the Court to refer to a medical panel for an opinion the 10 medical questions specified in the request. These took the form set out at [21] below.

Section 45 applies where the County Court exercises jurisdiction under Part III - "Dispute Resolution" - of the Act. By s.40, another provision which is found in Part III, the County Court has exclusive jurisdiction to enquire into, hear and determine (among other things) any question or matter in relation to whether liability to pay compensation arises under the Act: s.40(1)(a)(ii). The plaintiff's County Court proceeding gives rise to "matter" of this kind.

In these circumstances, the County Court must, on the request of either party, refer to a medical panel the question or questions which are the subject of the request: s.45(1). Medical panels are constituted under s.63 of the Act. They must carry out such functions as may be conferred on them by the Act: s.63(1). One such function is to give an opinion on any medical question referred to a panel by the County Court. It is here that s.45(1) is relevant. In its present form, it reads as follows:

"45(1) Where the County Court exercises jurisdiction under this Part, the County Court - (a) may refer a medical question; or (b) if a party to the proceedings requests that a medical question or medical questions be so referred, must refer that medical question or those medical questions - to a Medical Panel for an opinion under this Division."

The questions posited by the company were asked, as the heading of the relevant notice indicated, "Pursuant to s.45(1)(b)." But the context in which s.45(1) must be read necessarily involves s.68 of the Act. This section requires that the medical panel to whom a medical question has been referred "must give a certificate as to its opinion": s.68(2); and that opinion must be "adopted and applied" by the Court by which the question was referred: s.68(4). The same sub-section goes on to provide that the Court must, therefore, accept the opinion "as final and conclusive".

The statutory provisions are clear enough. They must, however, be read against an ineluctable fact. The questions which are referred to a medical panel are not referred in a vacuum; and the opinion of the panel on those questions, which opinion the County Court must accept, has more than a merely academic purpose. The questions are referred by the County Court to a medical panel because their answers are intended to be used in the litigation which is before the Court and upon which the Court must eventually pronounce judgment. In other words, they are asked because they are, or purport to be, questions which are relevant to the determination of the issues between the parties in the litigation instituted in the County Court. The answers are intended to assist - indeed, they bind - the judge in determining the plaintiff's claim. But the judge, when performing his or her task, is also bound to pronounce judgment upon the claim as pleaded. If the questions asked do not relate to the issues raised in the statement of claim, then they are by definition irrelevant. There is no point in wasting valuable judicial and medical time on irrelevancies. More importantly, if they are irrelevant while, at the same time, the Court is bound to adopt and apply them, then the Court will be forced to engage in an exercise which is both unseemly and ridiculous. One would therefore think it important that the judge should take some interest in the questions which are to be sent to a medical panel for its answers.

This was the approach which commended itself to Hedigan, J. in the case of HIH Winterthur Workers Compensation (Vic.) Ltd. v. Greeves[1]. An appeal against his Honour's judgment in that case was subsequently dismissed: Greeves v. HIH Winterthur Workers' Compensation (Vic.) Ltd.[2] In his judgment, Hedigan, J. clearly enunciated the approach which the Court should take when dealing with a request such as that of the plaintiff in this case. The Court must not simply abdicate all responsibility for the framing of the questions which are the subject of the request. In other words, s.45(1) must be read in its context. As Hedigan, J. pointed out at [20], it is the Court's duty to manage the exercise of its jurisdiction. It would therefore not be in the interests of any party or the Court, including appellate courts, that any question devised by a party must automatically be sent off to a medical panel.

Not only was the judgment of Hedigan, J. in Greeves upheld by the Court of Appeal, but in Isuzu General Motors Australia Ltd. & Anor. v. Jordan[3] that Court held "that the court to whom a request is made under s.45(1)(b) must still have a residual power to decline to refer a question if the court is clearly of opinion that the opinion of a medical panel on that question cannot be of assistance in resolving the issues which are in dispute in the litigation": Isuzu at [14], per Phillips, J.A.

In his judgment in the Isuzu General Motors case, Phillips, J.A. also said at [13]:

"So far as concerns the criteria adopted by Hedigan, J. in Greeves, ... I agree with his Honour that a question must be referred to a medical panel under s.45(1)(b) (that is upon application by a party) if it is a 'medical question' as defined in s.5 of the Act and if it is relevant to the litigation then before the Court. In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the Court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the Courts, but nevertheless it is the Court which, in the end, must adopt and apply the opinion in the determination of the litigation before it."

His Honour returned to this theme towards the end of his judgment. He said, at [43]:

"As I follow s.45(1), where the applicant makes clear to the court the issue that it seeks to have referred to a medical panel for opinion and that issue is fairly within at least one of the paragraphs in the definition of 'medical question' in s.5, then, if relevant, it is that issue - or 'that question' to use the language of s.45(1) - which the court is bound to refer to a medical panel upon application by a party, under s.45(1)(b). It may well be that the wording of the question upon which the medical panel will be required to express its opinion by virtue of s.67 needs attention; but if the court is alive to the issue to be referred and application is made for such referral and the issue is a 'medical question', then the precise wording of the question posed for the medical panel is as much for the court as for the applicant." (underlining supplied; italics as in the original)

19 Greeves' case (but not, of course, Isuzu General Motors) was cited to his Honour Judge Holt when the matter came before him on 16 June. For reasons which are not entirely clear on a reading of the relevant transcript, his Honour declined the plaintiff's invitation to examine the medical questions which were, in the circumstances described at [10] above, then before him. Rather, it seems (and the plaintiff asserts) that his Honour simply referred the questions to a medical panel. This case is a painful illustration of some of the inadequacies of that approach, and of the difficulties inherent in the legislative scheme which doubtless induced it.

Following his Honour's referral, the matter came before the Convenor of Medical Panels, Dr. Paul Nisselle, on 18 June 1999. Dr. Nisselle then received from his Honour's associate not only the referral itself, which had been signed by the judge on 17 June, but also the amended notice of request with its 10 questions (see [10] above). By 24 June 1999, a medical panel had been convened. Mr. Brian Flemming, a general surgeon, was nominated as presiding member. The other panelists were Dr. David Brownbill (a neurosurgeon), Dr. Michael Epstein (a consultant psychiatrist), Dr. Peter Lowthian (a rheumatologist) and Dr. David Kotzman (an occupational physician). In an affidavit sworn on 21 September 1999, Dr. Nisselle deposed to having, on receipt of the referral, examined each of the questions. As a result of this examination, he formed the view that all of them were properly described as "medical questions" as that term is defined in the Act.

The plaintiff was thereafter examined by members of the panel. It subsequently prepared a Certificate of Opinion, which is dated 23 July 1999. The certificate set out each question, and the answer given to it by the panel, as follows:

"1. What is the nature of the Plaintiff's medical condition relevant to each of the injuries alleged in the County Court Statement of Claim (copy attached)? Answer: The worker suffers from: (a) aggravation of mild cervical spondylitis with referred pain to the shoulders; (b) aggravation of pre-existing T12/L1 disc injury; (c) aggravation of early degenerative osteoarthritis of left knee; (d) adjustment disorder with depressed mood; (c) chronic pain syndrome. 2. Is the Plaintiff partially incapacitated as that term was previously defined in the Accident Compensation Act? Answer: Yes. 3. Is the Plaintiff totally incapacitated as that term was previously defined in the Accident Compensation Act? Answer: No. 4. If yes to question 3, then is the total incapacity permanent? Answer: Not applicable. 5. Does the Plaintiff have a current work capacity as that term is defined in the Accident Compensation Act? Answer: Yes. 6. Does the Plaintiff have no current work capacity as that term is defined in the Accident Compensation Act? Answer: No. 7. What is the Plaintiff's level of impairment when assessed in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (2nd edition) having regard to section 91 of the Accident Compensation Act? Answer: 21% whole person impairment. 8. Does the offer of employment made by the employer to the Plaintiff dated 23 January 1997, a copy of which is attached, constitute suitable employment as that term is defined in the Accident Compensation Act? Answer: No. 9. What is the level of impairment when assessed in accordance with the [AMA] Guides of the Plaintiff's: (a) back; (b) neck for the purposes of section 98? Answer: (a) 9% whole person impairment; (b) 6% whole person impairment. 10. What is the extent of the Plaintiff's loss of use of the following body parts taken from the table appended to section 98, not using the AMA Guides, expressed as a percentage:- (a) left upper limb; (b) right upper limb; (c) left lower limb; (d) right lower limb? Answer: (a) 0%; (b) 0%; (c) 15% for industrial purposes; (d) 0%."

The plaintiff does not accept either that the questions were appropriate, or that the answers are correct. Accordingly, he has instituted an application for an Order for Review of the Panel's "decision" pursuant to s.3 of the Administrative Law Act 1978. That section empowers any person affected by a decision of a tribunal to make an application to the Supreme Court for a review of that decision. If the application is granted, the Court will issue an order calling on the tribunal, and any interested party such as Tagertie Pty. Ltd., to show cause why the decision should not be reviewed. By s.2, a tribunal for these purposes is (subject to an irrelevant exception) any person or body of persons who, in arriving at a decision, is bound to observe one or more of the rules of natural justice; and a decision is one which operates in law to determine a question affecting the rights of any person.

On the return of an order for review, the Court may discharge the order or grant any remedy in the nature of what was known as prerogative relief: s.7. Such relief is directed to ensuring that the tribunal exercises its powers according to law. It is not concerned with the merits of the tribunal's decision. This position has in cases such as the present been reinforced by s.63(1)(c) of the Accident Compensation (WorkCover) Act 1992, which removes any jurisdiction that the Supreme Court might otherwise have had to entertain an appeal on the merits from an opinion of a medical panel following a reference under s.45(1)(b) of the Accident Compensation Act 1985.

The application for an order for review came before Master Wheeler on 6 September 1999. Having nominated the panel's Certificate of Opinion dated 23 July 1999 as the "decision" which was the subject of the application for an order for review, the Master ordered that Dr. Nisselle, the members of the panel which Dr. Nisselle convened following the reference from Judge Holt, and Targetie Pty. Ltd. show cause before the Supreme Court why that decision should not be reviewed. I set out below, in a slightly modified form, the grounds on which that order was made:

(i) Dr. Nisselle, as Convenor of the Medical Panel, failed to apply the procedure set out in the Convenor's directions dated 1 March 1999;

(ii) Dr. Nisselle failed to properly examine the referral, and convened a panel to address and determine questions that were inappropriate and not medical questions as defined by the Act;

(iii) the medical panel failed to properly construe the "full definition" of the expression "injury" in the Act;

(iv) the medical panel, in making an assessment of the plaintiff's level of impairment in accordance with the AMA Guides, failed to take into account relevant considerations, namely, the panel's findings that the plaintiff suffers from aggravation of pre-existing T12/L1 disc injury;

(v) the medical panel failed to make proper assessment of the plaintiff's degree of impairment in accordance with the AMA Guides;

(vi) the medical panel "failed to take into account relevant considerations, make appropriate findings or properly construe the definition of 'suitable employment' as defined by s.5 of the [Act] in giving its opinion that the plaintiff:

(vii) the medical panel "failed to properly consider, having regard to the nature of the plaintiff's incapacity, age, education skills and work experience whether he was unfit for this pre-injury employment and if so, what other employment he had a capacity for";

(viii) the statement "furnished by the medical panel in purported pursuance of s.8 of the Administrative Law Act 1978", contained insufficient and inadequate reasons for the panel's decision.

As the Convenor of the Medical Panels, Dr. Nisselle has power under s.65(7) to give directions about the arrangement of the business of the panels. He also has power, this time conferred upon him by s.65(9), to give such directions about the procedures of the panels as are consistent with any guidelines issued by the relevant Minister. But, in exercising such powers, the Convenor is not in my opinion a "tribunal" within the meaning of that expression in s.2 of the Administrative Law Act. Nor are his directions about the arrangement of business, or about the procedures, of medical panels collectively or individually "decisions" for the purposes of that Act. It defines a "tribunal" as a person or body of persons who, in arriving at the decision in question, is or are by law required to act in a judicial manner to the extent of observing one or more of the rules of natural justice. A "decision" is defined as a decision operating in law to determine a question affecting the rights of any person.

It is important that here, as elsewhere, the courts retain a sense of perspective and balance. On the one hand, it is crucial to the proper governance of a democratic society that bureaucrats adopt "in the administrative process ... fair and flexible procedures for decision making": Kioa v. West[4]. The law has an important role in ensuring that this objective is realised. On the other hand, it is also important that the courts restrict themselves to their proper sphere. Fairness does not demand that every decision of every bureaucrat be subject to judicial review. On the contrary, good governance is enhanced if lawyers are not free to roam unrestricted around what ought to be the administrator's own domain.

The Convenor of Medical Panels is responsible for putting in place those mechanisms, or some of them, which enable the dispute resolution schemes contemplated by Part III of the Act to function as Parliament intended. In doing so, the Convenor will make decisions. But the decisions of the Convenor qua Convenor do not affect the rights of persons who come before medical panels for assessment. It is the Convenor who nominates the members of a particular medical panel. Apart from this, he or she has power to give directions about the arrangement of the business and of the procedures of panels. The exercise of none of these powers are such as would affect, at least directly, the rights of workers, employers, insurers or others interested in the outcome of the deliberations of a medical panel. Suppose, for example, that the Convenor gave directions which, if followed, would result in unfair procedures. In these circumstances, the opinion of any panel which acted in accordance with those procedures would be open to review by the courts. But it would be the opinion of the panel, not the decision of the Convenor, to which the attention of the reviewing court would be directed.

It is submitted on behalf of the plaintiff that Dr. Nisselle, as Convenor, failed to apply to this case the procedure which he laid down himself in his directions issued on 1 March 1999. These were published under the title "Convenor's Directions as to the Arrangement of Business and as to the Procedures of Medical Panels 1999". The relevant document states that they "are given under s.65(7) and s.65(9) of the Act". Their proclaimed purpose is "to define the procedures to ensure medical panels provide opinions on medical questions that are of real assistance in the resolution of medical questions arising in relation to WorkCover claims"; and so that this purpose may be fulfilled, the directions (by clause 5) aim to facilitate:

"(a) referrals on questions that are clear 'medical questions' as defined in s.5(1) of the Act;

(b) opinions of medical panels that are responsive and pertinent as answers to the questions referred; and

A further relevant passage in the Convenor's Directions is to be found (in clause 8) under the heading "Receipt of Referrals". It reads as follows:

"The Convenor will examine each referral and if a question is not clear in its meaning or is not a statutory medical question appropriate to be determined by a medical panel, the Convenor will not convene a panel to address the question, until he consults the person making the referral with a view to clarifying or amending the question/s."

The contrast between this position and that of a judge who simply acts as a conduit between a medical panel and a party to the proceeding, referring (without any consideration of the issues which the judge will ultimately have to decide) each question put by that party, is stark. The utility of the one position, and the lack of utility of the other, is obvious.

A different issue is the suggestion, contained in the Directions, that the Convenor might, after consultation with the judge (as the person making the reference) amend the questions. There seems to be no warrant for this. The plaintiff nevertheless submits that in this case the Convenor either failed to examine the reference or, if he did examine it, failed to take the steps necessary to have inappropriate questions clarified or amended.

Dr. Nisselle provides a partial answer to this submission. In an affidavit sworn on 29 September 1999, he deposes to the fact that, upon receipt of the reference, he "examined the questions and formed the view that all the questions referred were properly described as medical questions as that term is defined in the Act."

This statement does not go on to say that Dr. Nisselle formed the opinion that the questions were appropriate to be determined by a medical panel. But even had he thought that they were inappropriate, there appears to be no basis upon which he could have consulted with Judge Holt "with a view to clarifying or amending" them.

It follows that I need not consider the plaintiff's criticisms of the 10 questions. The decision of Dr. Nisselle to convene a panel to consider those questions is not a decision which falls within the meaning of that expression in the Administrative Law Act. Even if it were otherwise to be so categorised, it was one which would seem to have been dictated by the provisions of the Accident Compensation Act, and especially s.45; but that is not an issue about which I need to make a final determination.

Grounds (i) and (ii) are, for these reasons, not made out.

Ground (iii) is that the medical panel failed to properly construe the "full definition" of the expression "injury" in the Act. That definition includes "the ... aggravation ... of any pre-existing injury ... where the worker's employment was a significant contributing factor to that ... aggravation." In this context it is important to remember that, in answer to the first question referred to it by the Judge, the panel certified that the plaintiff suffers from (among other things) "aggravation of [a] pre-existing T12/L1 disc injury". It also certified that this resulted in "9% whole person impairment".

Read by itself, the opinion is on one view unequivocal about the source or cause of the aggravation; and that source or cause is the incident at work in September 1996. If the word "aggravation" bears the same meaning in the Act as it does in the opinion, then the aggravation is at least to a significant degree the result of the plaintiff's employment, either through the general stresses and strains of his work, or because of the fall in September 1996, or both: the only aggravation about which the statutory definition speaks is aggravation "where the worker's employment was a significant contributing factor". But what other meaning, it might be asked, could the opinion give to the word? The panel was asked, by question 1, to describe "the nature of the plaintiff's medical condition relevant to each of the injuries alleged in the County Court statement of claim". According to that pleading, one of these injuries was "aggravation ... of injury to the ... back". It could be said that, in those circumstances, the answer "aggravation of pre-existing T12/L1 disc injury" given by the panel to question 1 must attribute that aggravation to the plaintiff's employment, which (as the statement of claim alleges) resulted in "general stresses and strains together with an incident in or about September 1996".

This conclusion is, to a degree, reinforced by reference to question 9. This question inquired after the plaintiff's level of impairment of the back "when assessed in accordance with the [AMA] Guides ... for the purposes of s.98" (which deals with compensation for maims). There would be no point in asking this question if the issue whether the impairment arose out of, or in the course of, or was due to the nature of, the plaintiff's employment was not a live issue in the case.

At the same time as it prepared its Certificate of Opinion, however, the panel approved a document containing the reasons for its opinion. This recounted the plaintiff's relevant medical history as told by him to the panel: that he injured his back in 1975 at the T12/L1 level, that he fully recovered after three years, and that he remained "well" until September 1996, "when he fell while carrying a heavy steel sheet, injuring his neck, back and left knee."

The reasons go on to state that the plaintiff's current symptoms include "a burning pain" at various parts of his back, including the thoraco-lumbar junction. This restricted the plaintiff's movement of his thoraco-lumbar spine. A MRI examination revealed a markedly degenerate disc with a posterior bulge at the T12/L1 level. The reasons continued:

"The panel is of the opinion that Mr. Hassan suffers from ... aggravation of a pre-existing injury to the thoraco-lumbar junction of the spine ... The [consequential] whole person impairment ... is 9% as a result of abnormal motion. The panel did not make an allowance pursuant to Table 1.53 for the T12/L1 disc injury with residuals as the panel considers this condition primarily arose from the 1975 injury and has not been extended by the alleged injuries in 1996 ... Using the combined value tables the total whole person impairment ... is 21% when assessed in accordance with s.91 of the Act."

(Italics not in the original.)

As I understand the plaintiff's submissions, this finding is said to sustain the proposition, which forms the basis for grounds (iii) and (iv), that the panel failed to properly construe the word "injury", and failed to take into account the relevant finding - that is, in the words of ground (iv), "that the plaintiff suffers from aggravation of pre-existing T12/L1 disc injury".

It is certainly true that, on one view at least, there is an inconsistency between the panel's Certificate of Opinion and its published reasons for its opinion. The latter document discounts the fall in September 1996; in the panel's reasons for its opinion, that fall is characterised as not having "extended" (read, "aggravated") the plaintiff's problem at the thoraco-lumbar junction of his spine. The former document, in answer to the question "[w]hat is the nature of the plaintiff's medical condition relevant to each of the injuries alleged in the County Court statement of claim", states that the plaintiff "suffers from ... aggravation of pre-existing T12/L1 disc injury".

It may be that this inconsistency is more apparent than real. It is entirely possible that the panel accepted that the condition of the thoraco-lumbar junction of the plaintiff's spine has deteriorated since 1975. At the same time, the panel also concluded (according to this construction of the two relevant documents, when read together) that the deterioration (or "aggravation") has not been caused by the plaintiff's subsequent employment - or, at least (to use the words of the panel's reasons for its decision) not by the "alleged injuries in 1996". Put another way, in using the word "aggravation" in its answer to question 1, the panel was not using that word in a sense which, as in the definition of "injury" in s.5 of the Act, would link it with circumstances "where the worker's employment was a significant contributing factor".

The necessity to perform this exercise (the construction of two possibly inconsistent documents) has arisen because the questions asked of the panel were not as well framed as they could have been. They failed to make it clear that the panel was (or was not) being asked not only whether the plaintiff suffered from the injuries alleged in the statement of claim, but also whether those injuries were attributable to his employment with Tagertie Pty. Ltd. I also note, in this context, that in its reasons for its opinion the panel appears to exclude the accident of September 1996 as a source of aggravation of the plaintiff's T12/L1 disc injury, but does not advert to the possibility that the general stresses and strains of the plaintiff's employment may have caused, in whole or in part, the aggravation in question.

These, however, are problems for Judge Holt when the proceeding returns to him. They are not problems which I should attempt to answer for myself. Indeed, it seems to me that I have no jurisdiction to take on that exercise. For present purposes, I sit not as a court of construction, but as a court of review. I am asked to determine whether the panel fell into an error of law in failing "to properly construe the 'full definition' of the expression 'injury' in the Act": ground (iii) and in failing "to take into account relevant considerations, namely, the panel's findings that the plaintiff suffers from aggravation of pre-existing T12/L1 disc injury": ground (iv).

There was, clearly, no such failure. The panel answered the questions asked of it. This includes its answer to question 1. In answering that question, it used the words "aggravation" and "injury". They were, for the panel's purposes, appropriate words, even if the panel could have done more to clarify the sense in which they were employed. The panel might or might not have meant them to be given, in the answer, the same meaning as, or a meaning consistent with, their respective statutory definitions. If there is any ambiguity, however, that is as much the fault of the question as of the answer. In fact, it seems to me, neither are as clear as they should be; but that is a different issue. It has nothing to do with whether or not the panel misconstrued the word "injury" as that word is used in the Act (or, for that matter, in question 1). The panel was obviously well aware of the difference between injuries which are aggravated by the worker's employment and injuries which are aggravated by factors having no relevant connection with that employment. The panel, it is equally clear, took into account the plaintiff's pre-existing T12/L1 disc injury when making its assessment of the plaintiff's level of impairment. Having done so, the panel concluded (if one accepts at face value the panel's reasons for its decision) that the aggravation of that injury was not attributable to a fall at work in 1996.

A possible difficulty for the judge when the proceeding returns to the County Court is that each answer to each question put to the panel must be adopted and applied as final and conclusive. That, at least, is arguably the necessary consequence of s.68(4). If so, the Court has a problem (perhaps solvable by calling evidence, pursuant to s.48(2), from one or more members of the panel) where the answers are inconsistent. The inconsistency may be the result of the careless drafting of the questions. All the more reason why the Court should not act as a mere conduit in referring medical questions to a medical panel.

In this case, the Court is, if I am correct about the effect of s.68(4), bound by the panel's opinion that the plaintiff's level of whole person impairment is 21%. It may well be likewise bound by the panel's opinion (a) that the level of whole person impairment of the plaintiff's back is 9% and that of his neck 6%; and (b) that the loss of his use of his left lower limb is 15% for industrial purposes. These answers may or may not be contradictory. If they are, the County Court will have to solve the problem. In either event, it would have been better had the medical panel been asked to clearly distinguish between work-related injury and those medical conditions which had or have no such relationship. The questions directed to that point should, so far as possible, have been drafted using statutory terms with the meaning given to those terms by the Act. To the extent that the medical questions were concerned with whether the plaintiff's employment was in fact, or could possibly have been, a significant contributing factor (or, for that matter, merely a contributing factor) to an injury or alleged injury, or to a similar injury, the relevant non-medical facts or suppositions should have been carefully put before the panel.

It may in some cases be desirable for the County Court to make relevant findings of fact before the questions are put. Where, for example, a worker alleges an industrial accident which the employer denies ever occurred, it would not be appropriate for the medical panel to have to determine that or any related issue in order to answer the medical questions which have been referred to it. Equally, it would not be appropriate for the panel to give binding opinions which are based upon assumptions unless, at the least, these are very carefully spelt out.

I should perhaps repeat at this point that, according to the Master's orders of 6 September last year, the "decision" which is the subject of the application for an order for review is the Certificate of Opinion, not the panel's reasons for its decision; and it is arguable that it is the former, but not the latter, which is caught by s.68(4) of the Act.

In my opinion, neither ground (iii) nor ground (iv) as set out in the Master's orders is made out. For the same reasons, an additional ground is not made out either. This is that the panel "misapprehended and failed to answer the medical questions referred". All the questions were answered. I can find nothing to suggest that they were misapprehended, except in the sense that their lack of precision necessarily resulted in some difficulty in apprehension. The panel cannot be blamed for that. Unless a panel is provided with a question or set of questions which clearly specifies to what extent (if any) the panel is asked to examine any link between an injury and the worker's employment, the confusion which has followed receipt of the Certificate of Opinion in this case is likely to be repeated.

Ground (v) is that the panel failed to make a proper assessment of the plaintiff's degree of impairment in accordance with the AMA Guides. This ground is based upon the affidavit evidence of the plaintiff sworn on 26 August 1999. At paragraph 8 of the affidavit, the plaintiff says:

"On 9 July 1999 the panel doctors carried out a physical examination ... At this point Mr. Brownbill took over the conduct of the examination. Mr. Brownbill told me to stand with my hands above my head. He then directed me to hold my right thumb in my left hand ... I was also asked to stand with my hands by my side and to bend to the left side only."

A further relevant passage appears at paragraph 10 of the affidavit. The plaintiff there deposes that:

"The lateral flexion movements for the cervical spine as demonstrated in ... the AMA Guides were never carried out during the entire physical examination. The head and neck movements depicted ... were all carried out when my arms were held above my head. Moreover, the rotation movement for the thoraco-lumbar region as shown in ... the AMA Guides was not carried out as depicted."

On 27 September 1999, Mr. Brownbill swore an affidavit in reply. He there deposes, at paragraph 7, as follows:

"I have read a copy of the affidavit of the plaintiff sworn 26 August 1999. I carried out a detailed general physical examination of the plaintiff which included undertaking the tests of the plaintiff in accordance with the [AMA's] Guides ... to assess the plaintiff's level of whole person impairment and, specifically, the level of whole person impairment in respect of the plaintiff's back and neck. The results of the tests were noted by Mr. Fleming and Dr. Lowthian. The general physical examination also included asking the plaintiff to raise his arms above his head and then asking him to hold his right thumb in his left hand in addition to other examination tests."

Both Mr. Fleming and Dr. Lowthian swore affidavits containing like evidence, with a like degree of generality. It is perhaps unfortunate that the plaintiff's assertions, if incorrect, were not more specifically rebutted. This may, I acknowledge, have required a detailed exposition of the AMA Guides and their proper application in the plaintiff's case; and (as is being more and more recognised these days) the expenditure of resources on litigation must be subjected to reasonable limits. In the circumstances, it seems to me that I should accept the sworn statement of each medical practitioner that each has read the plaintiff's affidavit, and that Mr. Brownbill "carried out a detailed physical examination of the plaintiff which included undertaking the tests of the plaintiff in accordance with the [AMA's] Guides ... to assess the plaintiff's level of whole person impairment and, specifically, the level of whole person impairment in respect of the plaintiff's back and neck": paragraph 6 of the affidavit of Peter Lowthian sworn 24 September 1999; paragraph 7 of the affidavit of Brian Fleming also sworn 24 September 1999.

Ground (vi) is that the panel "failed to take into account relevant considerations, make appropriate findings or properly construe the definition of 'suitable employment' as defined by s.5 of the [Act] in giving its opinion that the plaintiff:

In support of this ground, counsel for the plaintiff submitted that the panel's reasons for its decision failed to meet the tests laid down by the Court of Appeal in Masters v. McCubbery[5]. These are to be found in the judgments of, respectively, the President and Callaway, J.A. The President said, at 650:

"A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions."

"If I am correct in coming to the view which I have that medical panels are required to accord natural justice, they are 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."

His Honour, at 640, pointed to a balancing consideration:

"It is only by setting out its reasons in sufficient detail to demonstrate whether it has acted on proper principles that the court will be in a position to effectively review [the panel's] decision."

"In the present context, [the reasons that s.8 of the Administrative Law Act 1978 requires] are medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members' medical knowledge and experience."

The panel explained its answers to the relevant questions in a passage on the second page of the reasons for its decision:

"The panel carefully considered all aspects of the definitions of total incapacity [repealed by Act No. 107/1997 s.30(1)(e)], partial incapacity [repealed by the same Act, s.30(1)(c)], current work capacity [inserted by Act No. 107/1997 s.30(1)(a)], no current work capacity [inserted by the same Act, s.30(1)(b)] and suitable employment [the definition of which was amended by Act No. 107/1997 s.30(1)(d)] contained in the Act and concluded that Mr. Hassan is not fit for his pre-injury duties, but he is fit for employment that avoids heavy lifting, prolonged bending, heavy pushing or pulling and providing he can sit or stand alternately. Therefore, Mr. Hassan is partially incapacitated and has a current work capacity. The panel considers the offer of work dated 23 January 1997 is not suitable employment because operating the automatic drill requires the operator to stand all the time."

The touchstone of relevance for the panel, and the need for the panel to take into account the concept of "suitable employment" as defined in the Act, is to be ascertained by reference to the questions which were referred to it. In this context, questions 2-6 and question 8 are relevant. For convenience, I set them out again, together with the answers given to them by the panel:

"2. Is the Plaintiff partially incapacitated as that term was previously defined in the Accident Compensation Act? Answer: Yes. 3. Is the Plaintiff totally incapacitated as that term was previously defined in the Accident Compensation Act? Answer: No. 4. If yes to question 3, then is the total incapacity permanent? Answer: Not applicable. 5. Does the Plaintiff have a current work capacity as that term is defined in the Accident Compensation Act? Answer: Yes. 6. Does the Plaintiff have no current work capacity as that term is defined in the Accident Compensation Act? Answer: No. 8. Does the offer of employment made by the employer to the Plaintiff dated 23 January 1997, a copy of which is attached, constitute suitable employment as that term is defined in the Accident Compensation Act? Answer: No."

In my opinion, the panel's reasons for its decision are sufficient. The panel itself states that it took the relevant expressions, including the expression "suitable employment" as defined by the Act, into account. In the paragraph quoted above, and in other passages of the reasons for its opinion to which I have already referred, the panel explains how it formed its view of Mr. Hassan's medical condition. It also provided information for which the expertise of medical practitioners is an appropriate source, about the nature of the work which the plaintiff might be able to perform. It is not within the panel's expertise to be able to form a concluded view about what might be suitable employment for the plaintiff when one takes into account all the matters to which one must or may, by s.5 of the Act, have regard. Some of those matters extend well beyond the expertise of medical practitioners.

The panel also adverted to the general factors which bore upon the conclusion that the plaintiff is not a person who has no current work capacity but is a person for whom the offer of work put by Tagertie Pty. Ltd. on 23 January 1997 is not suitable. In my opinion, the panel thereby fulfilled the relevant requirements.

Ground (vii) was that the medical panel "failed to properly consider, having regard to the nature of the plaintiff's incapacity, age, education skills and work experience whether he was unfit for this pre-injury employment and if so, what other employment he had a capacity for". The answer is that the panel found that the plaintiff was unfit for his pre-injury employment and (as I have stated above) described the work of which the plaintiff is capable.

Ground (viii) is based upon the premise the panel's reasons for its opinion were insufficient and inadequate. I have, in what I have already said, given my reasons for thinking that none of the bases put forward by the plaintiff as supporting a proposition of inadequacy are made out. For these reasons grounds (vi) and (viii) also fail.

In my opinion, the plaintiff has shown no cause why the decision of the panel should be reviewed.

[1] [1998] VSC 97, 2 October 1998

[4] [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason, J.

Compensation Act 1985

Compensation (WorkCover) Act 1992

At a glance

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Judgment (98 paragraphs)

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Legislation Cited (3)

Cases Cited (1)