Plaintiff v Defendant

Supreme Court of Victoria|2010-02-22|Before: J. FORREST J

ADMINISTRATIVE LAW - Accident compensation - Review of decision of medical panel -Relief sought in the nature of certiorari- Psychiatric injury- Surveillance film viewed by the panel in presence of the worker --- Whether a failure to provide adequate reasons - Reasons disclose a path of discernible reasoning.

For the Fifth Defendant submitting appearances for the First to Fourth Defendants

1 In August 1997 the plaintiff, Damion McIver, injured his right arm in the course of his employment. He received weekly compensation payments under the Accident Compensation Act 1985 ("the Act") for some eight years. In April 2007, his payments were terminated. Subsequently, a medical panel, upon referral by a Magistrate pursuant to s 45 of the Act, was asked to answer a number of questions, including one relating to Mr McIver's current work capacity. The panel provided an opinion pursuant to s 68 of the Act and determined that Mr McIver had no present inability to perform his pre-injury duties of employment.

2 Mr McIver now seeks judicial review of that determination and an order in the nature of certiorari quashing the panel's decision. The only attack made at this hearing was upon the adequacy of the reasons accompanying the panel's opinion; specifically, its failure to advert to a number of medical opinions provided to it (from both treating doctors and medico-legal specialists) and its failure to refer to Mr McIver's pre-existing intellectual and psychological disability.

3 The first to fourth defendants are the members of the panel, namely, the chairman, Mr David Barton, psychiatrists, Drs Nathan Serry and Peter Mellington, and Mr Robert Carey, an orthopaedic surgeon. The members of the panel took no part in this hearing and have indicated by letter that they will submit to such orders as the Court might make.

4 The contradicter at the hearing was the fifth defendant, Mr McIver's employer, T & H Schreiber Pty Ltd ("Schreiber").

5 At the commencement of the hearing, counsel for Mr McIver confined the attack on the panel's decision to the adequacy of its reasons and abandoned the part of the originating motion asserting jurisdictional error. In essence, he identified two omissions:

(a) the panel's failure to explain its apparent discounting of the opinions of a number of medical practitioners as to the effect Mr McIver's psychological condition had upon his capacity to work;

(b) the panel's failure to deal with the consequences of a significant head injury sustained by Mr McIver in the 1980s and its effect upon his capacity to carry out work.

These failings, it was said, meant that the panel had neglected to address critical issues in its reasons and had not provided the parties or the Court with a clear chain of reasoning.

6 In response, counsel for Schreiber argued that it was clear from the panel's reasons that its members, having examined Mr McIver and then viewed seven tapes of video surveillance, considered he was capable of returning to his pre-injury duties. The panel, it was argued, had taken this view notwithstanding its conclusion that he had sustained an adjustment disorder as a result of the work injury. It was not necessary, in those circumstances, for the panel to deal chapter and verse with the material provided to it. It was said that it was implicit from the panel's reasons that it had considered the matters which are now the subject of complaint and hence its path of reasoning was clearly discernible.

7 Mr McIver was born on 14 December 1971. He was not a good student, with an intellectual capacity described by expert psychologists and psychiatrists as "borderline".[1]

8 On 10 May 1984, when he was 12 years of age, Mr McIver suffered a significant injury to his skull as a result of a fall from the back of a utility.[2] He left school in 1985 and worked intermittently in the ensuing years, performing basic manual labouring tasks.

9 In August 1997, Mr McIver obtained employment with Schreiber pruning vines. After approximately three weeks of employment, he sustained an injury to his right forearm whilst endeavouring to pull a grape vine. He lodged a claim for compensation with the Victorian WorkCover Authority on 8 September 1997[3] and received payments of compensation.

10 Following a request made by a conciliation officer pursuant to s 56(6) of the Act, on 19 July 2000, a medical panel provided a certificate of opinion[4] and reasons.[5] The essence of the opinion was that Mr McIver was suffering from a chronic pain syndrome of the right arm with an adjustment disorder and depressed mood. The panel concluded that the claimed injury contributed to his physical and mental condition and he had no current work capacity.

11 As a result of that decision, Mr McIver continued to receive weekly payments of compensation under the Act.

12 On 14 March 2006, Schreiber gave Mr McIver notice that the weekly payments of compensation were to be terminated on 14 April that year.[6]

13 On 6 February 2007, Mr McIver issued a proceeding in the Magistrates' Court[7] at Mildura seeking a declaration that he was entitled to weekly payments of compensation at a rate of "no current capacity" or, alternatively, at a "partial incapacity" rate from 14 April 2006 to that date and continuing in the future.

14 On 22 February 2008, on the application of Mr McIver and pursuant to s 45(1)(b) of the Act, the medical questions were referred to the panel for its consideration.[8]

15 On 4 April 2008, the panel convened, interviewed and examined Mr McIver. The panel and Mr McIver viewed seven video surveillance films.

16 On 26 April 2008, the medical panel provided a certificate of opinion of its reasons to the parties and the Court.[9] In response to a request by Mr McIver's solicitors, written reasons for the opinion[10] were provided on 12 May 2008 (the reasons are dated 26 April 2008).

17 No further steps have been taken in the Magistrates' Court proceeding.

18 I have already referred to several of the relevant statutory provisions of the Act; it is necessary only to mention a couple of others. In this situation, s 93CC is the relevant provision of the Act. Sub-section (1) provides a worker with an entitlement to weekly payment only where:

... the worker is assessed by the authority or self-insurer as -

(a) having no current work capacity; and

(b) likely to continue indefinitely to have no current work capacity.[11]

19 "Current work capacity" is defined in s 5 of the Act as meaning:

a present 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.

20 Division 3 of Part III of the Act sets out the functions and operation of medical panels. Section 65 provides that:

(1)A panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.

(2) The panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.

(4) Any attendance of a worker before a medical panel must be in private, unless the medical panel considers that it is necessary for another person to be present.

21 The body referring a medical question to a panel, in this case the Magistrates' Court, must submit a document to the panel specifying certain information including agreed facts or questions of fact relevant to the medical question as well as indicating whether the facts are agreed or in dispute.[12]

22 Pursuant to s 65(6B) of the Act, the Magistrates' Court provided the panel with a large body of written material.

23 The schedule of attachments shows that 51 separate documents were provided.[13] In particular, the panel was provided with a large number of medical reports, the earlier decision of the medical panel of July 2000 with its reasons, as well as an agreed statement of facts, a statement from Mr McIver (which was actually a submission) and Schreiber's submissions.

24 The schedule, however, does not refer to the video surveillance of Mr McIver submitted by Schreiber to the panel. The dates upon which those tapes were taken are as follows:[14]

25 In its certificate of opinion, the panel found that Mr McIver was not suffering from a medical condition or loss of function of the right arm relevant to any alleged injury. It did, however, conclude that Mr McIver was suffering from a chronic adjustment disorder with disturbances of emotion and behaviour relevant to the alleged psychiatric mental injury. It also concluded that this condition was materially contributed to by the alleged psychiatric mental injury. In particular, it answered question three as follows:

Does the plaintiff have - (a) a current work capacity?

In the panel's opinion, the plaintiff has no present inability arising from any alleged injury to perform his pre-injury duties of employment.

(b) no current work capacity?

No.[15]

26 Given the panel's answer to question three, it was not necessary for it to answer questions four and five.

27 I summarise the relevant parts of its reasons (which run for three pages):

• In August 1997, when pulling out a vine, Mr McIver developed acute pain and swelling in the right forearm.

• His current symptoms have remained virtually unchanged over the past ten years and included pain extending from the right shoulder into the fingertips, a symptom continually present and unaffected by weather or time of day, an increase in pain with movement and when pressure was applied to the arm, weakness in the right arm, swelling of the right forearm at times, discolouration and a loss of feeling throughout the whole of the right arm.

• He experienced feelings of irritability, frustration and anger at having to go through recurrent medical assessments, to the extent that if the panel did not find in his favour, he intended to commit suicide.

• He had undergone previous psychiatric and psychological treatment, including a period of inpatient psychiatric treatment in 1998.

• Physical examination of Mr McIver demonstrated a marked reduction in movement of the right shoulder and elbow, with exquisite and wide-ranging tenderness from the right shoulder to the hand, most marked around the right forearm. Mr McIver also demonstrated equal muscle bulk of the upper arm, with greater muscle bulk in the right arm below the elbow and a marked reduction and restriction in demonstrated movements of the right shoulder and the right elbow and hand.

• The panel viewed the seven surveillance videos[16] in the presence of Mr McIver and noted:

The video showed the plaintiff undertaking movements of the right arm which the panel considered were inconsistent with the panel's findings on examination. The plaintiff told the panel while he undertook these movements, he did not believe that these confirmed he had a capability for working.

• The panel noted the previous medical opinion and reasons, and the information contained in the schedule and -

concluded that there is now no medical condition or loss of function of the right arm relevant to any claimed injury.

• Whilst the soft tissue injury of the right arm had subsequently resolved -

the panel concluded that the plaintiff's ongoing complaint of symptoms and the findings on examination are consistent with abnormal illness behaviour and a psychiatric condition.

• The psychiatric examination revealed an underlying depressive theme with thought content reflecting a marked preoccupation with his circumstances, including pain and the medical legal processes. It was noted that he was "particularly frustrated, angry, resentful and preoccupied".

a chronic adjustment disorder with disturbances of emotion and behaviour relevant to the alleged injury,

but that his intermittent symptoms of stress and depression were not consistent with a diagnosis of major depression or a formal anxiety disorder.

• The panel determined that the adjustment disorder (as it had found it) still materially contributed to the alleged injuries.

28 The panel's conclusion as to the effect of the psychiatric impairment was as follows:

The panel considers the plaintiff's psychiatric condition does not affect his capacity for work. The panel therefore concluded that the plaintiff has no present inability rising from any alleged injury to perform his pre-injury duties of employment.

29 The decisions of this Court in relation to the adequacy of reasons provided by medical panels constituted under the Act and the Wrongs Act 1958 are voluminous.[17]

30 In Masters v McCubbery,[18] Winneke P said of the obligations of the medical panel to provide adequate reasons:

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. This, after all, is the limit of the obligation imposed by the Administrative Law Act 1978 (ALA) upon any 'tribunal' which is required to accord natural justice in arriving at its 'decision': see s 8(4) of the ALA. ...

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: ... (Emphasis added.)[19]

It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.[20]

Callaway JA said of "the kind of reasons that s 8 requires":

In the present context, they 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. There is nothing in the nature even of the simplest medical question that is incompatible with the furnishing of reasons. For example one doctor could sensibly ask another the 'reasons' for his or her diagnosis of a patient's illness.[21]

31 In Clarke v National Mutual Life Insurance Ltd,[22] I set out the principles applicable to a consideration of the adequacy of the reasons of a medical panel (which included the following):

The panel is an expert tribunal, whose members are chosen for their experience and their findings need to be viewed in that light (cf a non-expert tribunal).
- The reasons provided are those of a Tribunal not that of a judicial body and must be viewed from that perspective.
- The reasons of the panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.
- The reasons of an administrative decision maker such as the panel are meant to inform and over-zealous judicial review is to be eschewed. The reasons should not be over-analysed.

• Judicial review should not be used to conduct a merits review.

The reasons of the panel do not need to advert in detail to those matters it has taken into account.[23] (Citations omitted).

In most cases where a medical panel provides reasons it is not necessary for it to deal with medical opinions contrary to its own conclusions. The rejection of a contrary view, and the reasons for it, can usually be inferred from the panel's reasoning.[24]

32 Later, in Moyston Court Fisheries Ltd v Dr John Malios & Ors, I explained what I thought was the rationale for the provision of reasons by a medical panel:

First, it assists a reviewing court in determining whether a court has or has not had regard to relevant circumstances. Although the failure to advert to a matter does not, as has been discussed, lead to a conclusion that a particular matter has not been considered, the reference to a particular matter will enable a court to determine precisely the nature of the considerations entertained by the relevant tribunal. ...

Secondly, the reasons of a medical panel should provide an explanation as to why it has reached the decision. It is the extent of that obligation beyond that of demonstrating which matters have been considered and that the panel has not acted unreasonably which needs to be further considered.[25] (Citations omitted).

33 In Bluescope Steel Limited v Niselle & Ors, Osborn J said:

Nevertheless, it is implicit in the above formulations from McCubbery of the relevant requirements, that the panel's reasons must disclose what Ashley J has called the route that led to its answer and Forrest J has described as a discernible path of reasoning.[26]

34 Finally, the authorities demonstrate that one should not lose sight of the issues which the panel has been required to deal with in reaching its opinion. As Ashley J stated in Kamener v Griffin:

... the reasons required of a panel in a particular case will be shaped by the particular issues in dispute and by the material of which the panel is seised. It is thus necessary, on an application for review, to carefully consider the context in which the opinion was reached and the reasons were given.[27]

35 I think the discernible path of reasoning by the panel can be identified as follows. First, Mr McIver had no ongoing physical disability as a result of the work injury. It reached this conclusion on the basis of its physical examination of Mr McIver as well as its viewing of the video surveillance, which, as I follow it, revealed a series of findings inconsistent with his disability having a physical basis. Second, the panel concluded that Mr McIver had an ongoing psychological disorder, in the form of an adjustment disorder that did not affect his capacity for pre-injury work - bearing in mind that the panel had seen the videos in his presence and had also conducted a psychiatric examination which revealed that he had no major depression or, even, an anxiety disorder.

36 It is important here to note that the attack on the panel's findings is confined to the adequacy of the reasons in relation to the asserted psychiatric injury. There is no complaint made of the adequacy of the reasons relating to the physical injury. This is understandable. There were multiple medical reports obtained by both Mr McIver and Schreiber which were provided to the panel relating to the physical injury. The panel conducted its own examination of Mr McIver and viewed the surveillance films. It is implicit in the panel's decision that it rejected the opinion of those doctors who concluded there was an incapacity for pre-injury employment on the basis of physical injury.

37 The submissions made to the panel by the parties demonstrate the context in which the panel's decision was arrived at. Schreiber's submissions were directed, almost entirely, to the surveillance videos and the contrast between Mr McIver's actions as shown on the videos and Mr McIver's presentation to a number of consultant medical practitioners. The surveillance was undertaken over a period of five years. Schreiber asserted, in its submissions, that the surveillance demonstrated that Mr McIver's claimed lack of function of the right arm was inconsistent with his activities as revealed by the surveillance. At least one of the doctors, Mr Jones, had viewed the surveillance videos, and his opinions as to Mr McIver's presentation were relied upon. A consultant psychiatrist, Dr Entwistle, was also aware of the contents of the videos and could not find any psychiatric impairment. Schreiber contended that the surveillance demonstrated that Mr McIver currently had no disability of the right arm. The only mention in Schreiber's submissions of any psychiatric injury was based on the views of Dr Entwistle, who noted, in August 2007, that Mr McIver did not present with a psychiatric condition, was not having any treatment for such a condition and was not psychiatrically incapacitated for employment.

38 The submissions made on behalf of Mr McIver are found within a document headed "Statement by worker pursuant to s 65(6)".[28] The title is misleading. The ten page document is a set of submissions made on behalf of Mr McIver. That document refers to the previous medical panel's opinion, describes Mr McIver's previous psychiatric injury problems resulting from the 1984 transport accident and refers to some of the medical reports, in particular, the opinions of the general practitioner, Dr Marrow, and the psychiatrist, Dr Walton.

39 On this application, the first ground of Mr McIver's argument centres upon the medical evidence relevant to the psychiatric injury provided to the panel. Counsel for Mr McIver attacked the panel's failure to refer to the opinions of:

and to explain why it had come to a contrary conclusion in respect of Mr McIver's capacity to work occasioned by the work injury.

(e) Dr Granger-Smith, a consultant psychiatrist; and

Dr Marrow had treated Mr McIver over a number of years. In his report of July 2007,[29] he noted that Mr McIver was suffering from a useless right arm due to a complex regional pain syndrome which "resulted from an overuse injury at work". He concluded that his inability to perform manual work "would have aggravated his psychological situation".

40 Dr Walton had seen Mr McIver in August 2000, April 2001 and September 2007. In his final report, he said:

Specifically in relation to pain and other symptoms affecting Mr McIver's right upper limb, it would appear that there are now a variety of proposed diagnoses, including complex regional pain syndrome type 1, malingering and the non-specific, but considered to be genuine, chronic pain syndrome identified by the medical panel.[30]

Clearly it is not for a psychiatrist to determine what is the preferred description of Mr McIver's problems but I would simply emphasise that it is very well recognised indeed that pain which may be originally on the basis of physical injury may subsequently be distorted and perpetuated by a parallel emotional disturbance, especially depressed mood. In that sense there might be seen to be a continuity from the original incident of injury at work and the current symptoms, although it would have to be acknowledged that the fact that the original physical became complicated by psychiatric factors is usually not simply attributable to work but underlying personality and constitutional factors implying vulnerability to that type of complication.[31]

On the basis of the history that I have obtained, that is, that Mr McIver's physical and psychiatric problems have not improved significantly since I last saw him in April 2001, and from when the medical panel declared that he was unfit for all work in July 2000, there would seem to be no reason to disturb the description of Mr McIver remaining totally incapacitated, that is, it would seem the proper description now is that of total and permanent incapacity.[32]

Dr Walton acknowledged that he was reliant upon the history he had obtained from Mr McIver.

41 Dr Stern saw Mr McIver on two occasions, in October 2000 and April 2002, on behalf of Schreiber's solicitors. In his first report, he diagnosed Mr McIver as suffering from a chronic depression and a conversion disorder affecting his right arm related to his work injury. He was of the opinion that Mr McIver's reaction was more severe due to his underlying personality and psychosocial factors. He concluded that Mr McIver was psychiatrically incapacitated for any labouring work and restated this opinion when he reviewed Mr McIver in April of 2002.[33]

42 The previous panel in 2000 had concluded that Mr McIver had no current work capacity. In its reasons, it said:

The panel considers the minor forearm soft injury has triggered an Adjustment Disorder in an individual prone to recurrent Major Depression. The panel also took into account the history of probable brain injury following the prolonged coma associated with head trauma as a teenager. The panel therefore concluded the worker's current mental and physical condition are materially contributed to by the right arm injury and its sequelae.

The panel considered all those factors, which are relevant to the definition of suitable employment in the Act and concluded there was no work for which the worker is currently suited. He therefore has no current work capacity.[34]

43 Dr Granger-Smith saw Mr McIver in March 1987 (i.e. over 20 years before this panel's assessment) in relation to the effects of the May 1984 transport accident. He concluded:

There is no doubt that this young man suffered a major head injury with three fractures of the skull and a prolonged period of unconsciousness. The school reports I have indicate that he was a poor student before the accident and that after the accident there are comments about disruptive class behaviour, easily distractible and potentially dangerous behaviour. ... There is reduction in memory function as a result of the accident and his distractible behaviour has been aggravated by the accident.[35]

I feel that Mr McIver is presently unemployable. He does some work on his grandfather's farm, but it is difficult to gauge just how much work is done there from asking both his Mother and the boy himself. I would think that as his grandfather was driving the Utility from which he fell and injured himself, his grandfather may tolerate behaviour which nobody else would do. Apart from working for a tolerant relative, it is doubtful if he could do simple tasks for even twenty hours per week. He may have worked as a labourer before the accident, but is now unfit for full-time work and I would think will be placed on the Invalid Pension in due course.[36]

44 Dr Molloy examined Mr McIver in 1987 and conducted a series of tests to determine the effects of the motor vehicle accident. In March of that year, she concluded:

In summary, this boy has had a significant head injury leading to cognitive changes which have aggravated pre-existing weaknesses in learning skills and behaviour. These deficits are unlikely to improve and will be impediments to the working and social life of a boy who has never been the bearer of great cerebral power and who has demonstrated behavioural problems since his early school days. He has changed from a boy who may have survived in the workforce at a low level to one who is expected to have little chance to enter employment permanently even at this level.[37]

45 There was therefore a body of evidence before the panel which supported the proposition that Mr McIver was totally incapacitated for work as a result of his psychological condition or, alternatively, a combination of his psychological and physical condition. However, there were also a number of opinions from medical practitioners to the effect that there was a real doubt about whether Mr McIver was suffering from any physical or psychological disability. For instance, in December 2003, Mr Jones, an orthopaedic surgeon, examined Mr McIver. On that occasion, Mr McIver -

... kept his arm firmly in his jacket pocket and could only extricate it with much difficulty. ... On this occasion he had an almost full range of movement in the cervical spine, but was unwilling to move his right shoulder and almost unwilling to move his right elbow. He had normal function in the wrist and hand. It was too painful for him to take out the arm reflexes.[38]

Mr Jones noted that the loss of function in the arm could not be explained on a physical basis and contrasted that to a surveillance report concerning a video taken in July 2002. The video showed Mr McIver driving a motor vehicle using both hands, opening vehicle doors with the right hand, opening and closing the bonnet of the vehicle using both hands and using the right hand to place the bonnet support in position.[39]

46 Mr Jones examined Mr McIver on several occasions. On each of his examinations, Mr McIver either kept his right arm in his jacket pocket or when persuaded to remove his arm it was effectively useless. This was in contrast to the video surveillance. Mr Jones concluded that the asserted disability was "completely fictitious".[40]

47 Dr Entwistle, a psychiatrist, saw Mr McIver on three occasions commencing in October 2003. He initially accepted a diagnosis of conversion disorder affecting Mr McIver's right arm but with no symptoms of anxiety or depression. Once he became aware of the contents of at least one of the surveillance reports, he concluded (in his report of July 2004) that Mr McIver did not have a psychiatric condition and he was not incapacitated for employment as a result of any psychiatric condition.[41] He noted in his August 2007 report that Mr McIver was having no psychological treatment either in the form of counselling or medication.[42]

48 The panel was, therefore, confronted with a situation in which medical practitioners who had seen the video surveillance or associated reports and examined Mr McIver were of the opinion that he suffered from no physical or psychological disability which would prevent him from working. On the other hand, there were a number of doctors who had examined Mr McIver subsequent to his work injury, but had not seen the video surveillance and concluded that either physically or psychiatrically, or as a combination of both, he was totally incapacitated.

49 I do not think it was necessary for the panel to deal with the opinions of the previous panel or the other doctors in reaching its conclusion. The panel had a number of pieces of video surveillance of Mr McIver inconsistent with previous histories given to other medical practitioners[43], as well as being inconsistent with its own examination and the history given to it by Mr McIver. In the context of this case, the real contest, was whether Mr McIver's level of disability, be it on a physical or psychological basis, was to be accepted. What had been said previously by a number of the other doctors (including Drs Molloy and Granger-Smith) was, mainly, of historical interest, as was the decision of the previous panel made seven years earlier. What was significant to the panel was the content of the surveillance film in light of its own examination of Mr McIver and the history provided to it.

50 In light of the conclusion reached by the panel, it was not necessary for it to explain why it reached an opinion which might have been said to be at odds with that of the previous panel or the other doctors -particularly Dr Walton, the psychiatrist who had seen Mr McIver between 2000 and 2007. It was self-evident - the panel found no physical disability, only a psychological disability that did not prevent Mr McIver from working. To require it to deal with the opinions of other doctors in the context of a case in which the contest centred upon Mr McIver's true level of disability is, in my view, both unrealistic and unnecessary.[44] As the authorities make clear, the panel only needed, in the context of this case, to explain how it arrived at its conclusion. This, it did.

51 Although the panel did not use expressions which might be found in a judgment of a Court (for example - stating that it rejected Mr McIver's evidence as to his disability or concluding that he was malingering), it is nonetheless abundantly clear that as a result of having seen the video surveillance in the company of Mr McIver and having conducted its examination of him, it was not persuaded that any physical or psychiatric incapacity precluded him from performing his pre-injury duties.

Failure of the panel to deal with Mr McIver's pre-existing mental state

52 In its reasons, the panel referred to Mr McIver's previous history, including the effects of the motor vehicle accident, his psychiatric and psychological treatment, as well as a number of the factors which had affected his psychological condition in the past.

53 In its psychiatric examination, it made specific reference to the past history of Mr McIver's head injury, but concluded that the cognitive assessment was unremarkable and there was no suggestion of impaired cognition. The most marked feature of Mr McIver's presentation to the panel appears to have been his pre-occupation with his alleged pain and the medico-legal process that led to him being frustrated, angry, resentful and pre-occupied. Presumably, it was on that basis that the panel concluded that he suffered from a chronic adjustment disorder, but no more - notwithstanding this finding, it concluded that his psychiatric condition did not affect his capacity for work.

54 In my view, the reasons of the panel, far from being shrouded in mystery, are patently clear. Having taken into account all those past issues , the panel found that Mr McIver was presently suffering no more than an adjustment disorder, which, on the panel's findings, meant that he was not incapacitated for his pre-injury work. It was not necessary for it to deal with the opinions of Dr Molloy and Dr Granger-Smith expressed some 20 years ago. Nor was it necessary for it to deal with the previous panel's findings. Its reasons demonstrate that it was aware of those issues and Mr McIver's limited capacity to carry out gainful employment. Mr McIver was performing a mundane task and his vocational limitations (be they a result of the motor vehicle accident or separate psychological issues) were patent.

55 The panel's reasoning is clear in the context in which it was invited to reach a conclusion. Given its examination, its findings and its viewing of the surveillance film, the panel did not accept that, on a psychological basis, Mr McIver suffered a disability such as to prevent him carrying out his pre-injury work. It explained the nature of the psychological injury and that it was not of sufficient severity to prevent Mr McIver carrying out his pre-injury employment. It was not necessary for it to do any more.

56 This was not a case where the panel reached a diagnosis which had not been considered by other medical practitioners,[45] or by reason of the nature of the case should have dealt with the opinion of a particular medical practitioner,[46] or failed to deal with a material issue raised by the parties. [47] Rather, it did exactly what it was required to do - provide concise and comprehensible reasons for reaching the conclusion it did.

57 No reviewable error has been established. The originating motion should be dismissed.

[11] It was agreed that this was the relevant provision to be applied by the Court or in the event of referral to the medical panel.

[17] See recently, Amendola v Coles Supermarket Australia Pty Ltd & Ors [2008] VSC 36, Davidson v Fish & Ors [2008] VSC 32, Bluescope Steel Limited v Nisselle & Ors [2008] VSC 72, Robert Bosch (Aust) Pty Ltd v Barton & Ors [2008] VSC 227.

[24] Ibid, [59[. See also Bluescope Steel Limited v Niselle and Ors [2008] VSC 72 [83].

[25] [2007] VSC 518 [62]-[63].

[30] CB 105. Mr Walton was referring to the decision of the medical panel in 2000.

[41] CB 193, repeated in his report of August 2007. CB 200.

[43] For instance, Dr Marrow's opinion was essentially based on a finding of an organic injury which resulted in a "useless right arm".

[45] Bluescope Steel Limited v Niselle & Ors [2008] VSC 72, [85].

[46] Collins v Nave & Ors [2008] VSC 85 [42].

Compensation Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (120 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)