Plaintiff v Defendants

1 By originating motion filed 21 March 2006, the plaintiff seeks an order in the nature of certiorari quashing the opinion of a Medical Panel comprised of the first to fourth defendants. The plaintiff does so on the basis that the Medical Panel ('the Panel') constituted under s 63 of the Accident Compensation Act 1985 ('the Act') denied the plaintiff procedural fairness in the execution of its functions. Alternatively, the plaintiff claims that the Panel acted outside of its jurisdiction in giving the opinion that it did in relation to a matter between the plaintiff and fifth defendant.

2 The plaintiff employed the fifth defendant from 9 April 1996 until August 2003. On 20 August 2003, the fifth defendant lodged a claim with her employer for compensation under Part IV of the Act for injuries suffered in the course of her employment. The claim was granted and the fifth defendant commenced receiving weekly payments in accordance with s 93 of the Act. On 8 July 2004, the defendant's insurer notified the fifth defendant that it would terminate her weekly payments, effective from 26 July 2004, pursuant to s 114(2)(b) of the Act, on the basis that her incapacity for work no longer resulted from or was materially contributed to by an injury arising out of or in the course of her employment. Further, the insurer desisted with medical and like expenses on the basis that they were no longer reasonably necessary for the treatment of the fifth defendant's injuries.

3 The fifth defendant referred the decision to the Accident Compensation Conciliation Service. No outcome resulted from these efforts.

4 Accordingly, by a complaint issued on 1 December 2004 in the Magistrates' Court of Victoria, the fifth defendant sought the reinstatement of weekly payments as well as the reinstatement of medical and like expenses pursuant to the Act. On or about 28 April 2005, the Magistrates' Court referred certain medical questions to a Medical Panel pursuant to s 45(1)(b) of the Act. The Medical Panel answered those questions. The plaintiff seeks to have those answers quashed and further seeks an order in the nature of mandamus that the matter be remitted to a differently constituted Medical Panel to answer the relevant questions according to law.

Legislative and Procedural Background

5 At various points in the Act, there is provision for 'a medical question' to be referred to a Medical Panel constituted under ss 63 or 64 of the Act, whether that referral be by a judge under s 45 or by a conciliator under s 55A, or by some other body. In proceedings such as those instituted by the fifth defendant in the Magistrates' Court, a magistrate may refer 'a medical question'[1] to a Medical Panel for an opinion.[2] Where this is done at the Court's instigation, the formulation of such questions is for the court referring the question.[3] Where the referral comes at the request of one of the parties, subject to two exceptions which are not relevant here,[4] the formulation of the questions is for the party requesting the referral.[5]

6 The function of a Medical Panel properly constituted is 'to give its opinion on any medical question in respect of injuries arising out of , or in the course of or due to the nature of employment....referred by a Conciliation Officer or the County Court or the Authority of a self-insurer'[6] or the Magistrates' Court.[7] In determining its opinion, the panel is not bound by rules of practice as to evidence[8] and must act informally.[9] The panel may ask a worker to meet with it, to answers questions, to supply copies of any relevant documents and to submit to a medical examination by the panel or by a member of the panel.[10] A similar power is enjoyed by the Court.[11] Further, unless the panel otherwise considers that it is necessary for another person to be present, any attendance of a worker before the panel must be in private.[12] The panel may also demand (with the consent of the worker) that any medical service provider who has examined the worker in the past meet with the panel, answer questions and supply copies of any relevant documents.[13]

7 Under s 65(6A) of the Act, the Court referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying: (a) the injury or alleged injury alleged to, or in respect of, which the medical question relates; and (b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.[14] Further, under s 65(6B) of the Act, the Court referring the medical question must submit to the Medical Panel copies of all documents relating to the medical question in the possession of that Court.[15]

8 Any opinion of a Medical Panel given with respect to a statutory benefits claim is final and conclusive. Irrespective of who referred the medical question, for the purposes of a statutory benefits claim, the opinion is to be adopted and applied by any court, body or person hearing the claim.[16]

The Questions Asked of the Panel and the Opinion Given

9 In the Magistrates' Court, the fifth defendant particularised her injuries as follows:

b) Injury to the right shoulder including tendonitis and partial tear of the rotator cuff.

10 The referral by the Magistrates' Court to the Medical Panel was accompanied by a document under s 65(6A) of the Act, the requirements of which I have already referred to above.[17] It canvasses the views of one Dr Esposito and one Dr Brown who disagree as to whether the worker's incapacity for work results from and is materially contributed to by an injury arising out of, or in the course of, her employment. That document then sets out the medical questions to be referred. As required under s 65(6B) of the Act, the referral was accompanied by various documents in the possession of the Court relating to the pertinent medical questions. In addition to the pleadings of each party, several medical reports of various doctors were provided to the Medical Panel.

11 For reasons that will become clear, it is important to observe that none of the practitioners who examined the fifth defendant were psychiatrists or psychologists. Further, with the exception of a few instances, there was no reference to the plaintiff's condition being psychological or psychiatric in nature. Those exceptions are as follows:

1. In the worker's initial Workcover Worker's Claim Form of 20 August 2003, the worker states her injury as being 'thoracic outlet syndrome.' In response to the question posed by the form, 'if your injury/condition is psychiatric/psychological in nature please give details and describe your symptoms,' she states, 'nerves in the neck are giving me dizzy spells/headaches/stress.'

2. In the report of Dr Esposito of 24 September 2004, it was mentioned that on 2 July 2004, Dr Esposito 'referred [the worker] to Mr Zac Stojcevski (clinical psychologist) for management of her chronic pain as [the worker] was coping with her pain and confused about her condition and lack of improvement. The lack of consensus of medical opinion added to her concerns and confusion.

3. In the reports of Dr Brown of 25 June 2004 and 22 September, he notes that the worker was 'reluctant to use her right arm and has significant anxiety about the condition.' In the latter of these reports, he states 'there is some element of abnormal illness behaviour present with this lady.'

4. The fourth defendant, a psychiatrist, was present on the Medical Panel. This was known to the plaintiff.

12 Significantly, none of these references to the worker's mental state, which should be considered scant amongst the general body of material commenting on the worker's condition, manifested themselves in the questions referred to the Medical Panel by the Magistrates' Court in the context of uncertainty as to the nature of the worker's injuries.

13 The questions that were referred by the Court and the answers that were provided by the Medical Panel were as follows:

Question 1: What is the nature of the worker's medical condition relevant to the following injuries or alleged injuries.:

a) injury (including aggravation of any pre-existing injury) to the cervical spine; and

b) injury (including aggravation of any pre-existing injury) to the right shoulder including tendonitis and partial tear of the rotator cuff.

Answer:

a) The Panel is of the opinion that the worker has constitutional cervical spondylosis, but this condition is not relevant to any injury or alleged injury.

b) The Panel is of the opinion that the worker is suffering from adjustment disorder with depressed mood of moderate severity, which has arisen in part as a consequence of a now resolved soft tissue injury of the right shoulder, relevant to the right shoulder injury.

Question 2: Was the worker's employment a significant contributing factor to the following injury or alleged injury:

a) injury (including aggravation of any pre-existing injury) to the cervical spine; and

b) injury (including aggravation of any pre-existing injury) to the right shoulder including tendonitis and partial tear of the rotator cuff.

Answer:

a) No

b) The Panel is of the opinion that the worker's employment was a significant contributing factor to the development of a soft tissue injury to the right should, which has now resolved.

Question 3: Does any incapacity of the worker for work result from, or has been materially contributed to by, any injury mentioned in Questions 1 or 2 to which her employment was a significant contributing factor?

Answer:

a) The Panel is of the opinion that any incapacity for work of the worker is materially contributed to by the psychiatric sequelae of the alleged right shoulder injury.

Question 4: Is arthroscopy with (if necessary) subacromial decompression an appropriate medical service for the worker?

Answer: No.

14 The plaintiff bases its submissions on the answer given by the Medical Panel to Question 1 and its answer to Question 3 wherein the Panel refers to a psychological or psychiatric illness affecting the fifth defendant.

The Plaintiff's Application for an Order in the Nature of Certiorari

15 The plaintiff founds it application for an order in the nature of certiorari on two grounds:

1. That the first to fourth defendants, in reaching their opinion, failed to act in accordance with the rules of procedural fairness; and

2. That the first to fourth defendants acted outside their jurisdiction in giving the opinion that they did.

16 At the outset, counsel for the first to fourth defendants (the fifth defendant made no appearance) informed the Court that the Medical Panel desired not to appear at trial and to submit to whatever order the Court may make, thereby adopting the position advocated by the High Court in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman.[18]

17 In my view, each of the plaintiff's grounds are, on their own, capable of founding an order in the nature of certiorari.[19] It is also clear that the Medical Panel is subject to such a writ under the Administrative Law Act 1978. An important authority on this point is Masters v McCubbery[20] where the Victorian Court of Appeal determined that a Medical Panel constituted by s 63 of the Accident Compensation Act 1985 falls within the definition of a tribunal as defined in the Administrative Law Act and is consequently amenable to the Court's powers under that Act.[21] A decision of the Medical Panel may fall to be considered under O 56 of the Supreme Court (General Civil Procedure) Rules 2005.[22]

18 Masters v McCubbery was referred to in the plaintiff's submission, but not in the specific context of any threshold question of whether or not this Court had the power to make an order in the nature of certiorari with respect to a decision by a Medical Panel constituted by s 63 of the Accident Compensation Act 1985. In any event, it is clear to me that the Court has such power. I particularly note the observation of Callaway JA who said:[23]

"Even without reference to modern Australian authority, a panel is a "body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially" within the meaning of Atkin LJ's celebrated statement in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd[1924] 1 KB 171 at 205 as explained by Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 74-6. It is a clear example of a tribunal amenable to the prerogative writs."

19 Turning to the first ground, the plaintiff submits that the first to fourth defendants, the fifth defendant having not framed the proceeding in the Magistrates' Court in terms of psychiatric illness, failed to act in accordance with the rules of procedural fairness in reaching their opinion. There no real reference to any psychological or psychiatric illness of the fifth defendant prior to the referral by the Court. In this light, it was argued that the plaintiff should have been given an opportunity to make submissions with respect to the first to fourth defendant's finding on this matter in accordance with the principles of procedural fairness.

20 Masters v McCubbery established that a Medical Panel under the Act is required to accord the parties affected by its decision procedural fairness.[24] However, it does not necessarily follow that the first to fourth defendants should have heard submissions from the plaintiff.

21 For the reasons that follow with respect to the plaintiff's second ground, it is unnecessary for me to make a finding on this point. However, I would express uncertainty as to how the Medical Panel, its procedure of fact finding being a combination of a private examination of the patient with an examination of previous medical examinations on the papers, would actually facilitate such a hearing.

22 In its second ground, the plaintiff submitted that the first to fourth defendants acted outside their jurisdiction in giving the opinion that they did. This ground was based on the submission that the questions referred by the Court circumscribed the jurisdiction of the Medical Panel; and that, in providing answers extending outside the scope of those questions, the Panel acted beyond their jurisdictional limit. Alternatively, the plaintiff argued that the Panel had given its opinion on matters that were not 'medical questions' as that term is defined under the Act; and that, because the jurisdiction of the Panel is restricted to giving its opinion on such questions, it had acted beyond its jurisdiction.

23 Section 67(1) of the Act states:[25]

"67. Examination by a Medical Panel

(1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of the employment.... referred by a Conciliation Officer or the County Court or the Authority or a self insurer."

24 The Magistrates' Court, by virtue of s 43 of the Act, can be added to this list.

25 In s 67(1), the term 'question' is qualified by the phrase 'referred by a Conciliation Officer of the County Court or the Authority or a self-insurer.' Accordingly, to the extent that they have answered a question not asked of it, the Medical Panel has acted outside its jurisdiction. A natural and plain reading of the section dictates this conclusion. The second reading speech which inserted this section, if indeed this is an appropriate instance to draw upon such a source, offers little assistance.[26]

26 The plaintiff, in submitting that s 67 of the Act should be so construed, referred the Court to Penrikyber Navigation Colliery Co Ltd v Edwards[26] which dealt with a similar mechanism in the former Workmen's Compensation Act 1925 (UK) whereby a worker could submit him or herself for examination by a medical practitioner.[27] The relevant provision, 19(3), states:

"(3) The medical referee to whom the matter is so referred shall, in accordance with regulations made by the Secretary of State, give a certificate as to the condition of the workman and his fitness for employment, specifying, where necessary, the kind of employment for which he is fit, and that certificate shall be conclusive evidence as to the matters so certified."

27 In that case, Viscount Dunedin referred to the words of Viscount Sumner in Evans v Scahill[28] who stated:[29]

"My lords, [the relevant provisions], which makes the certificate of a medical referee conclusive evidence, adds the words, 'as to the matters so certified.' I think that a provision which gives this effect to a certificate of a person who is not before the Court, and makes it conclusive against the evidence of competent witnesses who are, is, if any provision ever is, one which must be applied strictly and must be limited to an exact compliance with its terms."

28 These words do not suggest that s 67 should be read in the way that supports the plaintiff's contention. The ill that Viscount Sumner was guarding against was not a medical referee going beyond the duty with which it is charged, but rather a Court reading into a medical referee's opinion more than what was expressly stated. So much is clear when this passage is read in context. Like the two Australian cases considered below, both these cases really deal with the conclusiveness of a certificate; specifically, whether a certificate may be contradicted by a subsequent medical certificate or a subsequent finding of a Court considering the certificate.

29 In the present case, the issue is whether an opinion is, in light of s 67(1), a nullity by virtue of that opinion extending beyond the questions asked of it. Accordingly, the case referred to does not support the plaintiff's submission. However, the plaintiff's contention on this matter is reached in any event.

30 The judgment of Windeyer J in the Commonwealth v Mifsud[30] (although it must be understood in light of the terms of the statute with which he was dealing) provides some insight into the problem. His Honour said:[31]

"A certificate of a medical board as to the condition of an employee, given pursuant to that section must, it seems to me, relate to his condition as affected by the injury for which he claims or is receiving compensation, its consequences, physical and mental, for him and their bearing upon his capacity for work. The policy of the Act and the purpose for which a certificate is to be given impose some restriction upon what could otherwise be a very far-reaching inquiry as to his "condition". I do not think that in certifying as to his condition the board is obliged to report exhaustively upon aspects of his physical, nervous and mental state which do not arise or could not arise from the injury. For example, if the purpose of the reference to a board was to ascertain the consequences of some traumatic injury to a limb, one would not expect the board's certificate to deal with the state of the man's lungs, his eyesight, his hearing or his digestion, unless their condition was, or was said to be, or could be supposed to be, in some way affected by the injury.

It is the man's condition at the time of the examination of which the certificate speaks. And it is only as to this that it is conclusive.

A statement of his condition at that time may however involve stating, as a medical fact, that it will inevitably not improve or will worsen. Moreover, the ordinary presumption of continuance may give a statement of the man's condition at the time of the examination an evidentiary value as to his condition at a later date without it being conclusive. If in stating what his condition and fitness for employment were at the time of the examination the board incorporates some prediction of the future, not as an inevitable medical fact but as a conclusion of probability, that in most cases could be only an opinion and conclusive only of the fact that members of the board held that opinion.

Further, it seems to me that the suggested separation of condition from cause is often imprecise and in some cases may be a matter more of words than reality; and the same can sometimes be said of the distinction between a pathological state and its symptoms. This is especially so in the case of psychological disabilities arising from, or accompanying, physical hurts. A certificate that describes a man's condition in medical terms must often, perhaps more often than not, by its very nature convey information as to its cause in an aetiological sense. Lead poisoning is the familiar example since the decision in Smith v. Mann. Anthrax and malaria are other obvious examples. And a bare statement of physical consequences of a traumatic injury would often give only an incomplete picture, from a medical point of view, of a man's condition. For example, a description of a condition in terms of some form of paralysis might be incomplete if it did not state that it was the consequence of an injury to a nerve, or whatever else was its cause in a medical sense. But how the wound which injured the nerve was itself caused would not be a matter for the board."

31 Earlier, in Bavcevic v the Commonwealth,[32] Dixon CJ and Kitto J noted that, with respect to an exercise with which the Medical Panel was faced, 'the purpose is to leave medical questions to the determination of medical men, what is fairly involved in such a determination must come within its conclusive effect.'[33]

32 In this case, the Medical Panel have not ventured outside the terms of the questions referred to them by delving into the aetiological causes[34] of the fifth defendant's injury. Rather, they have done quite the opposite, insofar as they have stated what the Panel thought were the injury's sequelae at the time of the examination.

33 In the context of the Panel's answer (b) to question 1, the question is whether the worker's psychological symptoms can be considered 'relevant' to the worker's spine and shoulder injury. It is the presupposition of the Panel's answer that the causative nature between the worker's psychological symptoms and the actual injury means that the former is in fact relevant to the latter. I agree with this view. This opinion is informed by what is said above in Bavcevic and Mifsud.

34 However, the other controversial answers should be impugned. The Medical Panel's answer (a) to question 1 is, on its face, beyond power. By its own terms, the answer makes reference to something that is not relevant.

35 Question 3 confines the reference of the Medical Panel to the injuries alleged in questions 1 and 2 which are:

a) injury (including aggravation of any pre-existing injury) to the cervical spine; and

b) injury (including aggravation of any pre-existing injury) to the right shoulder including tendonitis and partial tear of the rotator cuff.

36 The Panel's opinion that 'any incapacity for work of the worker is materially contributed to by the psychiatric sequelae of the alleged right shoulder injury' recognises the conceptual difference between the right shoulder injury and its psychological sequelae. A priori, the Panel has ventured outside the boundaries of their power by stating that the latter materially contributes to the incapacity of the worker.

37 I would grant the writ in order of certiorari and, as is the practice, remit the matter to a differently constituted Medical Panel for the questions referred by the Magistrates' Court on or about 28 April 2005 to be answered in accordance with my reasons.

[1] As defined under the Act, s 5.

[2] See the Act, s 45(1); where a party so requests, the Court must refer the question (see s 45(2)).

[3] Austin v Amcor Ltd (Supreme Court, Byrne J, 5923/97, 3 April 1998); see generally Hassan v Nisselee Ors [2000] VSC 271.

[4] See the Act, s 45(1B)-(1C).

[5] See the Act, s 45(1)(b); see also Greeves v HIH Winterhur Workers' Compensation (Vic) Ltd [2000] VSCA 68; [2000] 1 VR 344.

[6] The Act, s 67(1).

[7] See the Act, s 43(1) and (3) which confer like jurisdiction on the Magistrates' Court.

[8] The Act, s 65(1).

[9] The Act, s 65(2).

[10] The Act, s 65(5)(a)-(c).

[11] The Act, s 67(2).

[12] The Act, s 65(4).

[13] The Act, s 65(6).

[14] See the Act, s 65(6A).

[15] See the Act, s 65(6B).

[16] See the Act, s 68(4); the position is slightly different when the matter being determined is an application under the Act, s 134AB; see Rick Pope v WS Walker & Sons Pty Ltd [2006] VSCA 227, [41].

[17] See paragraph [7].

[18] [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[19] For the scope of certiorari , see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6.

[20] [1995] VICSC 209; [1996] 1 VR 635.

[21] See especially Winneke P at 642, Ormiston JA at 652 and Callaway JA at 655.

[22] See Austin v Amcor Pty Ltd (Supreme Court, Byrne J, 5923/97, 3 April 1998).

[23] [1995] VICSC 209; [1996] 1 VR 635, 655.

[24] Ibid 644-5.

[25] This section was modified by s 32(1) of Accident Compensation (Amendment) Act 1994 (50/1994). The intended effect of this modification was to enlarge the functions of the Medical Panel to matters arising before 1 December 1992; see Castillo v Victorian Workers Authority (County Court, Williams J, 24 August 1995).

[26] See Victoria, Parliamentary Debates, Legislative Assembly, 30 October 1992, 306 (Phillip Gude, Minister for Industry and Employment). It states:

Disputes relating to diagnosis, treatment and/or capacity to work will be determined by medical panels of independent doctors. The definition of a medical question will be expanded to include questions of treatment and incapacity and medical panels' findings will be binding.

[26] [1933] AC 28.

[27] See the Workmen's Compensation Act 1925 (UK), s 19.

[28] (1927) 20 BWCC 348.

[29] Ibid 352.

[30] [1965] HCA 56; (1966) 114 CLR 505.

[31] Ibid 512-13.

[32] [1957] HCA 67; (1957) 98 CLR 296.

[33] Ibid.

[34] To use the term of Windeyer J in Mifsud [1965] HCA 56; (1966) 114 CLR 505, 513.