Plaintiff v Defendants

Plaintiff v Defendants - [2014] VSC 236 - VSC 2014 case summary — Zoe

[55]

...

The Panel concluded that the worker suffered from an exacerbation of a pre-existing Chronic Schizophrenia, and that the exacerbation of this condition has since resolved, relevant to the accepted psychiatric - schizophrenia injuries.

The Panel is therefore of the opinion that the entirety of the current psychiatric condition results from the worker's pre-existing Chronic Schizophrenia.

The Panel considers that due to the chronic nature of the worker's psychiatric injury and the duration of the symptoms, the worker's psychiatric condition has substantially stabilised and is unlikely to remit with further treatment.

The Panel therefore concluded that for the purposes of the assessment, the worker's psychiatric condition is stable and permanent.

...

In the Panel's opinion the median class is 3 and the degree of psychiatric impairment is 35%, and all of this psychiatric impairment is due to the worker's pre-existing chronic schizophrenia and is therefore excluded from the psychiatric impairment assessment in accordance with Section 91(7)(c) of the Act. The Panel considers the degree of impairment is permanent.

The Panel therefore concluded that there is a 0% psychiatric impairment resulting from the accepted psychiatric, schizophrenia injury when assessed in accordance with Section 91 of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.

The Panel noted the report of independent medical examiner Dr S Adlard dated 20 March 2013, in which he concluded that the worker was suffering from 'chronic Schizophrenia' and had a total psychiatric impairment of 35%, all of which was preceding and unrelated to the relevant workplace incident. The Panel noted that Dr Adlard documented clear psychotic phenomena dating from 1983 and on this basis concluded that the Schizophrenic illness predated the relevant workplace incidents by many years.

The Panel came to a similar conclusion with respect to the diagnosis and to a similar conclusion regarding the level of impairment, based upon its own history taking, mental status examination and clinical judgment. The Panel came to a different conclusion regarding an exacerbation and subsequent resolution of the exacerbation of the Schizophrenic illness, for reasons as detailed in the relevant paragraphs above.

...

The Panel assessed the accepted psychiatric schizophrenia injury in accordance with Section 98E of the Act and concluded that there is no total loss or total loss of use injury when assessed pursuant to Section 98E of the Act.

[72]

The Court of Appeal reached its conclusion that the County Court would be compelled by s 68(4) of the Act to adopt and apply the opinion of the medical panel because it considered itself bound by the reasoning in the first of those quoted passages in Brown to hold that an opinion of a medical panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act. An earlier decision of the Court of Appeal, Pope v WS Walker & Sons Pty Ltd, is to the contrary. The correctness of Pope was not in issue in Brown, and is supported in the present appeal by both the employer and the worker. The Court of Appeal's reasoning in Pope highlights the potential for injustice in the outworking of the construction to which the Court of Appeal felt compelled, as well as the lack of support for that construction in legislative history. The passage in Brown should not be interpreted as having overruled Pope.

The correct construction of s 68(4) of the Act, consistent with Pope and with Brown, is to read the word "any" in the introductory expression "[f]or the purposes of determining any question or matter" as referring to "a question or matter" not "all questions and matters". In respect of a particular opinion of a medical panel on a medical question referred to it, formed under s 68(1) and certified under s 68(2), the question or matter to which s 68(4) refers is the question or matter in which the medical question arose and in respect of which the medical question was referred to the medical panel.

What s 68(4) of the Act on that construction requires is that an opinion of a medical panel on a medical question referred to it must thereafter be adopted and applied for the purposes of determining the question or matter, arising under or for the purposes of the Act, in which the medical question arose and in respect of which the medical question was referred to the medical panel. What s 68(4) does not require is that the opinion must thereafter be adopted and applied for the purposes of determining some other question or matter.

The operation of s 68(4) of the Act in the present case was therefore to require the opinion given by the medical panel on the medical questions referred to it in the statutory compensation application to be adopted and applied by all courts and persons in the determination of the question or matter the subject of the statutory compensation application. That question or matter comprised the controversy between the parties to the statutory compensation application about the worker's entitlement to the statutory compensation he claimed under Pt IV of the Act, and was brought to a conclusion when the statutory compensation application was dismissed. Section 68(4) did not have, and does not have, the further effect of requiring the opinion given on the medical questions referred in the statutory compensation application to be adopted and applied if and to the extent that the same medical question may arise in the determination of the question or matter the subject of the serious injury application. That quite distinct question or matter, which remains unresolved, comprises the controversy between the parties to that application as to whether the worker should have leave to bring common law proceedings.

[74]

Although the breadth of medical question (i) would be such as to encompass any questions on the topics set out in the existing paragraphs of the definition in s 5 of "medical question", the fact that power to refer questions under the existing paragraphs was expressly granted as well as additional power under paras (h) and (i) does not indicate that Parliament treated an opinion obtained for the purpose of a statutory benefits dispute as being of equal relevance to the hearing of a s 134AB application.

Before 2000 all of the existing medical questions from paras (a)-(g) could have been referred by the Court to a medical panel with respect as to a dispute about statutory benefits, pursuant to the power under s 45(1), and it was statutory benefits claims with which s 68(4) was concerned. Thus, what is made clear by s 45(1A) is that the Court now has power to refer all such medical questions (that is those under paras (a)-(g)) for the purpose of its hearing of a s 134AB application, but, in addition, exclusive power is given to pose medical questions under paras (h) and (i). Thus, the Court hearing proceedings under s 134AB is given power which is no less, and is indeed greater, than that given to courts, bodies or persons concerned with statutory benefits disputes.

The opening words of s 68(4) are: "For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical panel ... ". In my view, the word "any" cannot be interpreted literally, because to do so would give the provision unlimited operation, which could not have been intended. The provision is intended to give binding effect to the opinions of medical panels "on a medical question referred" and, as discussed above, the Act gives power to refer a medical question in quite specific contexts, one of which is with respect to proceedings under s 134AB(16)(b). Thus, it is natural to link the question or matter upon which the opinion is binding to the proceeding from which the question was referred. That then focuses attention on the nature of the proceedings in which the opinion was obtained. Section 68(4) goes on to state that the opinion must be "adopted and applied by any court, body or person", which means that the opinion is binding on all persons who have a role to play in proceedings of that nature. So construed, an opinion on a medical question referred in a proceeding concerning statutory benefits would not be binding on a court concerned with an application under s 134AB(16)(b).

The legislative scheme is, however, consistent with the conclusion that if a Court hearing a s 134AB application refers any of the questions from paras (a)-(i) to a medical panel, then it will be bound by the (final and conclusive) answer which is given (subject, of course, to consideration of such matters as the express terms of the question and answer and of the relevance and applicability of the opinion to the issues being addressed).

At a glance

Court

Decision date

Before

Source

Judgment (129 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)