Plaintiff v Defendants

2 The reference by the magistrate was made in an application issued by Mr Cockburn. The relevant circumstances were that, on or about 3 September 2008, he was injured in the course of his employment with H & G MacDonald Carriers for which he received weekly payments of compensation under the Accident Compensation Act. By a notice dated 11 August 2011 under s 93C, he was informed by the statutory agent that his payments were to be terminated upon the ground that he had a current work capacity. Mr Cockburn exercised his right under the Act to challenge that assessment in the Magistrates' Court of Victoria.

3 The questions referred to the panel by the magistrate were as follows:

1. What is the nature of the plaintiff's medical condition with respect to the 'Particulars of Injury' alleged in paragraph 6 of the plaintiff's Statement of Claim, namely:

(i) Injury to lumbar spine;

(ii) Injury to cervical spine;

(iii) Injury to the hip;

(iv) Aggravation, exacerbation and/or deterioration of degenerative changes in the spine;

(v) Referred pain radiating to the right and/or left leg;

(vi) Psychiatric injury;

(vii) Chronic pain.

(hereinafter referred to as 'the said injuries').

1. Does the plaintiff have a current work capacity having regard to the definition of 'current work capacity' in section 5 of the Accident Compensation Act?
2. If 'no' to 2, is the plaintiff likely to continue indefinitely to have no current work capacity having regard to the definition of 'no current work capacity' in section 5 of the said Act?
3. If the plaintiff has no current work capacity which is likely to continue indefinitely, does the incapacity result from or is it still materially contributed to by any, and if so which, of the said injuries?

Question 1

...

Answer:

In the Panel's opinion the plaintiff's medical condition with respect to the particulars of injury alleged in paragraph 6 of the plaintiff's statement of claim is:

(i) a resolved soft tissue injury of the lumbar spine in the setting of longstanding mild degenerative changes of the lumbosacral spine, without radiculopathy;

(ii) resolved soft tissue injury of the cervical spine in the setting of degenerative changes of the cervical spine, without radiculopathy;

(iii) resolved soft tissue injury of the right hip;

(iv) resolved temporary exacerbation of degenerative changes in the spine;

(v) referred symptoms but no intrinsic medical condition of the right and/or left leg;

(vi) mild adjustment disorder with depressed mood, which is currently in remission;

(vii) Benzodiazepine and Tramadol dependence.

Question 2

...

Answer:

No.

Question 3

...

Answer:

Yes.

Question 4

...

Answer:

In the Panel's opinion the plaintiff's incapacity results from and is materially contributed by the Benzodiazepine and Tramadol dependence.

5 The main grounds of this application for judicial review concern the answers given by the panel to questions 1(vii) and 4. In the application in the Magistrates' Court of Victoria, Mr Cockburn did not rely upon dependence on medication as a ground for establishing that he had no current capacity for work. Yet, after rejecting the grounds of lack of work capacity on which he had relied, the panel opined that dependence on medication was the cause of his incapacity.

6 H & G MacDonald Carriers contends that, in expressing this opinion, the panel committed a jurisdictional error. More particularly, it contends that the panel committed a jurisdictional error by breaching the rules of natural justice, by failing to have regard to, and only to, relevant considerations and by failing to comply with the obligation in s 68(2) of the Act, as properly interpreted, to provide an adequate statement of reasons for its opinion. It is well-established that each of these three grounds, if made out, would amount to a jurisdictional error. Having regard to the view I have come to with respect to the first ground, it is not necessary for me to determine the other two.

7 For the purpose of assessing whether the panel complied with the rules of natural justice, it is necessary to identify the case that Mr Cockburn was putting against H & G MacDonald Carriers. The case being put by Mr Cockburn was made clear in the complaint in the Magistrates' Court of Victoria (including the statement of claim) and the submissions made by his legal representatives, as well as the medical and other documentation that was supplied to the panel as described in Enclosure A of its reasons for decision.

8 The injuries suffered by Mr Cockburn were described in the statement of claim as follows:

PARTICULARS OF INJURY

Injury to the lumbar spine;

Injury to the cervical spine;

Injury to the hip;

Aggravation, exacerbation and/or deterioration of degenerative changes in the spine;

Referred pain radiating to the right and/or left leg;

Psychiatric injury; and

Chronic pain.

9 The submissions made on behalf of Mr Cockburn recited his background, the injury, his claim history, his return to work, his chronic pain and depression and his lack of capacity for work. The conclusion expressed was as follows:

By reason of the combination of his chronic pain, and depressive reaction to the chronic pain, poor literacy, low education and vocational experience, the plaintiff says that he has no capacity for suitable employment. This is unlikely to change in the foreseeable future.

10 There was no reference in the statement of claim or the submissions to Mr Cockburn being dependent upon medication or that he had no current capacity for work for that reason.

11 The medical documentation provided to the panel was voluminous. It referred to Mr Cockburn's poor mental condition and attempted suicide. Several medical reports made a direct connection between his chronic pain and his work-related injuries. I think the following passage from the report of his treating general practitioner gives a fair account of the evidence in this regard:

[Mr Cockburn] has soft tissue injury to his neck, lower back, right shoulder and elbow, and both hips. These injuries have now developed with central sensitisation to chronic pain syndrome with significant disability. He also has evidence of right ulnar nerve neuropathy and depression in the context of chronic pain. He also suffers from other conditions as a result of his chronic pain and side effects of his medications: weight loss due to lack of appetite, nausea and sweating from his analgesics and deterioration of his teeth as a result of his medications.

Prognosis is poor. His chronic pain is quite debilitating.

Notably, neither this report nor any other of the documents provided to the panel mentions medication dependence as a medical condition in itself or that such condition constituted a work-related injury. I do not think that one medical opinion that '[w]ithdrawal of the medication would adversely affect [Mr Cockburn's] ability to undertake the necessary activities of daily living' put H & G MacDonald Carriers on notice that dependence on medication as such was a potentially determinative issue.

12 There was a lot of evidence in the documentation before the panel about the medication being taken by Mr Cockburn. The reasons for the decision of the tribunal recount that Mr Cockburn himself said he was taking the following medication:

Lyrica (for neuropathic pain) 75mg daily

Clofen (for muscle spasm) 10 mg three times a day

Tramadol (strong analgesic) 200mg twice a day

Valium (benzodiazepine for anxiety) 5mg four times a day

Pantoprazole (for gastrointestinal symptoms) 40mg per day

Temaze (benzodiazepine hypnotic) at night

Cymbalta (antidepressant) daily.

It was common ground in the proceeding before me that this is a great amount of medication and, in particular, that Mr Cockburn was taking a significant amount of Valium (a tranquiliser) and Tramadol (an opiate painkiller), which are highly addictive. But it was never suggested by or on behalf of Mr Cockburn that his dependence upon this medication was a, or much less the, reason for him having no current capacity for work.

13 On the basis of its review of the evidence, including its personal examination of Mr Cockburn and his medical history, the panel rejected his claim that he had no current work capacity by reason of injury-related physical or psychiatric conditions of the kind relied upon by him. As the answers to the referred questions show (see above), it rejected all of the grounds of lack of capacity for work referred to in the submissions made on his behalf. The reasons for decision of the panel make clear that, in rejecting those grounds, it considered (among other things) that it could not reconcile Mr Cockburn's account of his injuries and disabilities with his performance during medical examination and his medical history. However, the panel went on to find that he was suffering from injury-related medication dependence.

14 These views were expressed in the following passages from the reasons for decision of the panel:

The Panel particularly noted its findings on physical examination of the plaintiff with an absence of verifiable physical signs of limitation of range of motion of the cervical or lumbosacral spines or of any physical medical conditions of the lower limbs. The Panel noted that medical imaging changes of the plaintiff's cervical and lumbosacral spines are longstanding in nature.

On the basis of the history, the Panel's findings on examination, its review of the imaging and other material included with the referral the Panel considers that the plaintiff's back and neck conditions were exacerbated by the nature of his work and in particular the incident on 3 September 2008. The Panel considers however that the physical effects of the incident have resolved whilst the subsequent development of a pain disorder and Tramadol and benzodiazepine dependence have persisted.

The Panel concluded therefore that the plaintiff's current medical condition, namely benzodiazepine and Tramadol dependence is still materially contributed to by the accepted injury.

Later in its reasons for decision, the tribunal expressed this conclusion:

The Panel concluded that the nature and extent of the plaintiff's compensable benzodiazepine and Tramadol dependence is of sufficient severity that the plaintiff is not able to return to his pre-injury employment and for the reasons detailed above the Panel also concluded that the plaintiff's incapacity for work is still materially contributed to by the accepted injury.

15 H & G MacDonald Carriers submitted that the panel breached the rules of natural justice by expressing opinions about Mr Cockburn's medical condition which were not fairly in contest and which it could not have predicted might be formed. I think these propositions have been made out.

16 It was not in dispute before me that, as regards the duty of the panel to observe the rules of natural justice, the principles were correctly stated by Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman & Ors[1] as follows:

A medical panel convened to form its opinion as to medical questions referred to under the Act is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of that function.[2] Failure to sufficiently accord an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review. Examples of a medical panel's opinion being quashed upon judicial review for failure to observe 'the hearing rule' of procedural fairness may be found in Calleja v Franet Pty Ltd[3] and Weerappah v Nisselle[4]. The leading Australian case concerning the content of the hearing rule generally is Kioa v West.[5]

In that case the panel made an unexpected finding that the worker was suffering from a 'factitious disorder'. His Honour held that, in doing so, the panel breached the rules of natural justice:

I agree with the employer's submission that the medical panel's psychiatric diagnosis - that the worker was suffering from a 'factitious disorder' - was unexpected and could not reasonably have been anticipated; and that the employer was denied a fair opportunity to address the matter.[6] In my view, the panel's psychiatric diagnosis of a 'factitious disorder' in its opinion and reasons came 'out of the blue'.[7]

17 Of course the panel is an expert body and its members can rely upon their own medical expertise, as they undoubtedly did in the present case when expressing the opinions that are under challenge. However, in relying upon their own expertise, panel members must still give parties and interested persons a fair opportunity to be heard in relation to the matters in issue. Again, I can gratefully adopt the principles that were stated by Cavanough J in Barrett Burston Malting:

A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion - say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners - such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be 'heard' (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.[8]

18 It was submitted for Mr Cockburn that H & G MacDonald Carriers should have expected that the panel might decide that medication dependence was a material reason for Mr Cockburn having no current capacity for work. It was open to the panel to so conclude, indeed the conclusion was demanded, because the information before the panel contained ample evidence of that dependence. H & G MacDonald Carriers well knew that Mr Cockburn was taking strong tranquilising and painkilling medication. It was in the very nature of this medication that it was addictive. Combined with the evidence of Mr Cockburn's chronic pain and poor mental condition, the quantity and kind of the medication being taken pointed to medical dependence as a material cause of his lack of current capacity for work. It was open to the panel to find that this was a work-related condition and so answer the referred questions. These contentions were developed in carefully prepared written and oral submissions.

19 There is much in these contentions that can be accepted. Indeed H & G MacDonald Carriers did accept a great deal of what was put on behalf of Mr Cockburn. The point remains that it was never Mr Cockburn's case in the Magistrates' Court of Victoria (or previously) that he had no current capacity for work by reason of medication dependence. In my view, a fair assessment of the issues and documentation before the panel would not have revealed to H & G MacDonald Carriers that the answers to the referred questions might turn on that issue.

20 This was not a case in which the panel simply placed an obvious condition in an appropriate medical category. What it did, in effect, was to recast Mr Cockburn's medical case. After rejecting the way he had put his case because (among other things) it was not supported by his medical history and physical examination, it determined that he had no current work capacity on grounds of dependence on medication. That proposition had never been put or tested and the opinion of the panel in this regard did indeed come 'out of the blue'.

21 I do not criticise the reasoning of the panel with respect to the opinions that it expressed but rather the procedure that it followed with respect to the formation of those opinions. If the panel had given notice to the parties that it might express those opinions, H & G MacDonald Carriers would have had the opportunity to consider its position. Given that opportunity, I think it is very likely that it would have sought to have Mr Cockburn medically examined in relation to the issue of dependence upon medication and made submissions as to whether such dependence, if established, was caused by the work injury. We are not to know what opinions may have been expressed by the panel had this course been followed. Plausibly the answers given might, or might not, have been different.

22 A decision-maker, such as a panel, can breach the rules of natural justice in making a decision that would otherwise be open on the evidence. The question is not whether the evidence permitted the decision to be made but whether the party concerned had a fair opportunity to address the determinative issues. In the present case, H & G MacDonald Carriers did not have that opportunity.

23 For those reasons, I have concluded that, in giving the answers to the referred questions, the panel breached the rules of natural justice and thereby committed a jurisdictional error. There will be orders quashing the answers and remitting the referred questions for reconsideration by a differently constituted panel.

[1] [2013] VSC 248 (15 May 2013) [32]-[33] ('Barrett Burston Malting').

[2] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 (Winneke P, Ormiston and Callaway JJA).

[3] [1999] VSC 202 (1 June 1999) (Vincent J).

[4] [1999] VSC 249 (2 July 1999) (Smith J).

[5] [1985] HCA 81; (1985) 159 CLR 550 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).

[6] For a similar conclusion in a comparable case, see Australian Postal Corporation v Kember [2003] FCA 800 (1 August 2003) (Finn J), esp [25].

[7] [2013] VSC 248 (15 May 2013) [48].