Plaintiff v Defendants

Plaintiff v Defendants - [2016] VSC 713 - VSC 2016 case summary — Zoe

[8]

The Employer relies upon the following grounds for relief in support of the orders sought[12]:
- (a) in determining its response to referred Question (i), the Panel fell into jurisdictional error by failing to accord to the parties procedural fairness, namely:
  - (i) by taking into account the psychotic symptoms and reports of current suicidal ideation (together comprising the 'additional history') in circumstances where the additional history had not previously been reported to doctors, nor was it otherwise apparent from the medical material supplied to the Panel and could not have been reasonably anticipated by the Employer, and failing to provide the Employer with notice of the additional history which it was taking into account, the Employer was denied an opportunity to ascertain and respond to relevant issues in Mr Bahng's psychiatric presentation; and
  - (ii) by making the psychotic features diagnosis and failing to provide notice of the intended diagnosis to the parties, in circumstances where no prior practitioner had proposed a psychiatric diagnosis with psychotic symptoms, nor taken a history of psychotic symptoms, and the diagnosis was not apparent from the materials before the Panel and could not have reasonably been anticipated by the Employer, the Employer was denied an opportunity to ascertain and respond to relevant issues in respect of Mr Bahng's psychiatric presentation and assessment of permanent impairment;
- (b) the Panel fell into jurisdictional error and/or erred in law by failing to properly assess Mr Bahng's impairment in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Ed ('AMA Guides') and/or the Guide to the Evaluation of Psychiatric Impairment for Clinicians ('GEPIC') as it was required to do pursuant to section 91 of the ACA, namely by failing to recognise or to reconcile the inconsistency in the previously provided histories from Mr Bahng and the additional history provided to the Panel, in particular in relation to the psychotic symptoms;
- (c) the Panel fell into jurisdictional error by failing to take into account mandatory relevant considerations and/or taking into account irrelevant considerations:
  - (i) by failing to consider whether and the extent to which the impairment arising from the additional history and/or psychotic features diagnosis was related to an unrelated cause and must therefore be disregarded, the Panel failed to take into account a mandatory consideration; and
  - (ii) by failing to consider whether the psychotic symptoms represented a recent change in Mr Bahng's presentation and therefore whether Mr Bahng's impairment had stabilised, in circumstances where psychotic symptoms were not previously reported to or recorded by medical practitioners, the Panel failed to take into account a mandatory consideration;
- (d) the Panel failed to give an adequate statement of reasons sufficient to comply with section 313(2) of the WIRCA; and
- (e) the Reasons fail to explain the Panel's actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.

[9]

The Panel had before it eight medical reports by way of referral material. It is convenient for me to summarise briefly certain observations and findings in each of the medical reports.
In addition I was taken to the report of Dr Hokin dated 28 December 2015.[13]
Dr Nitin Dharwadkar, psychiatrist, prepared a report dated 20 June 2013[14] in which he:
- (a) recorded that Mr Bahng stated that he had no voices and no suicidal ideation[15] and there were no disorders of perception apparent such as illusions or hallucinations[16]; and
- (b) diagnosed Mr Bahng as suffering from adjustment disorder with mixed anxiety and depressed mood[17].
Dr Robert Athey, psychiatrist, prepared a report dated 17 October 2013[18] in which he:
- (a) recorded that Mr Bahng appeared to show slowed thinking but otherwise his thoughts were logical and in a normal sequence[19];
- (b) recorded that Mr Bahng had morbid beliefs in that he appeared to have delusional feelings of guilt over the effect of his illness on other people[20];
- (c) recorded that he could not detect any perceptual abnormality on the part of Mr Bahng[21]; and
- (d) diagnosed Mr Bahng as suffering from adjustment disorder with mixed anxiety and depressed mood[22].
Dr John Gill, consultant in general and forensic psychiatry, prepared a report dated 20 February 2014[23] in which he:
- (a) recorded that Mr Bahng stated that prior to attending upon a psychiatrist, Dr Hokin, he developed extreme thoughts including ideas of suicide and homicidal feelings[24];
- (b) recorded that Mr Bahng described developing depression associated with suicidal ideation prior to seeking psychiatric treatment[25];
- (c) recorded that Mr Bahng showed no apparent impairment of perception, Mr Bahng's cognitive functioning did not appear to be impaired, his thought content revealed impaired self-esteem but no apparent delusional thinking and he did not acknowledge having any suicidal intent[26];
- (d) did not observe Mr Bahng as showing evidence of current suicidal intent[27]; and
- (e) diagnosed Mr Bahng as suffering from an adjustment disorder with anxiety and depression which has now evolved into a Major Depressive Disorder[28].
Dr Michael Duke, psychiatrist, prepared a report dated 2 September 2014[29] in which he:
- (a) recorded that there were no voices and no suicidal ideation[30];
- (b) recorded that Mr Bahng's perception was unimpaired, and in particular there were no illusions or hallucinations[31]; and
- (c) diagnosed Mr Bahng as suffering from major depression in partial remission (DSM-IV Category 296.25)[32].
Dr John Douglas prepared an initial report dated 12 May 2015[33] in which he:
- (a) recorded that Mr Bahng said previously he had suicidal thinking but not now[34], and Mr Bahng denied any disorders of perception such as illusions or hallucinations[35]; and
- (b) diagnosed Mr Bahng with major depressive disorder in partial remission (DSM-IV-296.25)[36].
Dr Arthur Hokin, psychiatrist, prepared a report dated 29 July 2015 in which he opined that Mr Bahng's condition had stabilised and could be considered a permanent impairment[37].
Dr John Douglas, psychiatrist, prepared a supplementary report dated 9 September 2015[38] in which he found that there may have been some useful improvement to Mr Bahng's condition (previously diagnosed as a major depressive disorder in partial remission).[39]
Dr Steven Adlard, psychiatrist, prepared a report dated 17 November 2015[40] ('Dr Adlard's Report'), in which Dr Adlard:
- (a) recorded that Mr Bahng said that he had some suicidal thoughts when he was working with Mr Rhee but he no longer has these thoughts[41];
- (b) found that Mr Bahng's thought stream and form were normal[42];
- (c) found that some themes of lowered mood were described though Mr Bahng said he no longer has any suicidal ideas[43]; and
- (d) concluded that Mr Bahng has a Major Depressive Disorder in partial remission[44], with a total whole person impairment of 15%[45].
In addition to the eight reports that were provided to the Panel, I was also taken by Counsel for the Employer to a report prepared by Dr George Mendelson, psychiatrist, dated 2 September 2016 ('Dr Mendelson's Report').[46] There was an argument before me in relation to the admissibility of Dr Mendelson's Report.
Prior to setting out the submissions of the parties as to admissibility, it is convenient for me to set out the circumstances, and findings of Dr Mendelson's Report.
In Mr Bahng's outline of submissions dated 15 August 2016 ('Mr Bahng's Submissions'), it was submitted that the Panel's formal diagnosis was one of Major Depressive Disorder, and the reference to psychotic features, including persecutory delusions was an identification of a particular symptomology relevant to or arising from that condition. It was submitted that the Panel's conclusion was not inconsistent with that of the previous medical practitioners.[47]
In light of Mr Bahng's Submissions, the solicitors for the Employer sought an expert opinion limited to the question of whether the diagnosis of the Panel is a materially distinguishable diagnosis from those diagnoses previously given by the medical professionals.
Dr Mendelson's was of the opinion that:
- (a) the diagnosis of 'severe Major Depressive Disorder with psychotic features' is materially distinguishable from the previously proposed diagnoses that were listed in the question, in terms of the clinical phenomena, the specific diagnostic terms, and the formal DSM coding[48]; and
- (b) the Panel elicited from Mr Bahng psychiatric symptoms that he had not previously described to any of the psychiatrists who had examined him. The clinical relevance of these symptoms is that he has a significant psychiatric disorder that has not been treated appropriately since mid-2013.[49]
Counsel for Mr Bahng objected to the admissibility of Dr Mendelson's Report on the following bases:
- (a) the general tone and content of the affidavit of Jason Alan McMahon dated 14 September 2016 (which exhibits Dr Mendelson's Report) invite the Court to look at and contest the decision of the Panel on a merits aspect[50];
- (b) Dr Mendelson does not actually say that the Panel's diagnosis is a different diagnosis to that of the previous medical practitioners,[51] and the concept of materially distinguishable is not relevant in the present case.[52] In this regard it was submitted that:
  - (i) Dr Mendelson seems to confirm that psychotic features is a factor in major depressive disorder. Dr Mendelson only confirmed that it's a major depressive disorder with psychotic features and has not said that it's out of the range of a major depressive disorder;[53] and
  - (ii) Dr Mendelson notes that adjustment disorders are distinguished from severe major depressive disorders. The case is not about adjustment disorders and there is no point in saying the diagnosis of any sub-type of major depressive disorder is clearly distinct from that of an adjustment disorder, as that is quite irrelevant to the present case.[54]
Counsel for the Employer submitted that, following the diagnosis of the Panel, which was couched in expert technical fashion, Dr Mendelson's Report was obtained as evidence as to the meaning of the technical expression.[55] It was submitted that the report fits within the rubric of evidence as may be needed in explanation of technical expressions.[56] Counsel for the Employer relied on the case of Midfield Meat Processing v Fish [2015] VSC 195 in which Bell J admitted a report for the sole purpose of understanding the nature of the panel's diagnosis and the symptoms that it embraces.[57]
In addition to answering the specific questions put to him, Dr Mendelson provided his opinion as to an alternate diagnosis, being Schizophrenia.[58] Counsel for the Employer sought to admit Dr Mendelson's Report on the basis that the alternative diagnosis gives an indication of the things that they would have explored if given an opportunity to hear what history the Panel had taken.[59]
I do not accept the submission on behalf of Mr Bahng that Dr Mendelson does not opine that the Panel's diagnosis is a different diagnosis to that of the previous medical professionals. I also find that Dr Mendelson's reference to adjustment disorders in comparing same with the Panel's diagnosis is relevant in circumstances where two of the previous medical professionals found Mr Bahng was suffering from such a disorder.
I will allow Dr Mendelson's Report insofar as it provides an opinion as to whether the diagnosis of the Panel is materially distinguishable from previous diagnoses. However, I will limit the admissibility of the report for this purpose only, and I will not allow the report as evidence of materiality, or otherwise.

[10]

In reaching its Opinion, the Panel had access to the eight medical reports referred to in paragraphs 15-22 herein, together with the history given by Mr Bahng himself during the examination by the Panel on 5 February 2016. The Panel reached its Opinion on the basis of this material, together with the examination findings elicited by the Panel at the examination on 5 February 2016.
Of particular relevance are the following history and symptoms taken by the Panel during Mr Bahng's examination on 5 February 2016. The Panel noted that Mr Bahng said that:
- (a) he still experiences suicidal ideation occasionally, even though it was more frequent previously;[60]
- (b) he asks God for the numbers to the lottery, but then said that God is asking if God gives him the lottery numbers, what will Mr Bahng give him in return. Mr Bahng said that his answer to this is that he will give God his 'worthless self'. He said that he has frequent conversations with God in his mind;[61]
- (c) sometimes he feels as though someone is watching him. He said he had seen the surveillance video of him but had believed that he was being watched before he knew about the surveillance. He said however that since that time he believes he is being watched all the time. He said that he rarely went out of the house before and rarely goes out now;[62]
- (d) he also believes someone might be listening in on his phone calls and believes he has to be very careful about what he says. He stated that he has thought there might be cameras in the house actually filming what he is doing and has tried to search for such items, but has not found any. He said he last looked for the cameras in late 2015;[63] and
- (e) he did not experience any ideas of reference, but then said that when he is out of the house he does think people might be able to read his mind and take thoughts out of his mind. He said that he has had all such experiences since the problems at his workplace, and not just since the surveillance videos.[64]
The Panel conducted a mental state examination, and observed that Mr Bahng denied experiencing hallucinations but gave clear examples of thought insertion and control and persecutory delusions.[65]
The relevant paragraphs of the Reasons are as follows:

[73]

Counsel made the following submissions in support of the contention that the Employer had not been afforded procedural fairness, in circumstances in which the additional history and the diagnosis came 'out of the blue',[130] and could not have been reasonably anticipated by the Employer:
- (a) nowhere in the material provided to the Panel was there any mention of psychotic features or an account of symptoms characterised by persecutory delusions;[131]
- (b) in contrast to all prior material, on examination of Mr Bahng, the Panel took an account of symptoms of delusions, thought control and persecutory paranoia[132];
- (c) differing from the supplied material, the Panel also took a history suggestive of occasional ongoing (as opposed to past and entirely resolved) suicidal ideation[133];
- (d) the history given by Mr Bahng to the Panel is at odds with what Mr Bahng reported to the previous doctors, and there is a gulf between the previously reported symptoms to multiple medical practitioners and the additional material recorded by the Panel. Each of the prior medical practitioners did not refer to an active psychotic presentation in coming to their view;[134]
- (e) the psychiatric and delusional symptoms, along with ongoing suicide ideation amounted to new information and differing symptoms of the type referred to by the agent[135];
- (f) the Panel unquestionably relied on this new information in coming to a novel diagnosis involving severity and psychotic features, increasing its assessment of Mr Bahng's whole person impairment;[136] and
- (g) such striking symptoms (conversations with God in relation to lottery numbers, belief that someone is listening to phone calls, may be able to read his mind) are distinguishable from the isolated reference in a 2013 report to delusional feelings of guilt.[137]
It was submitted that in circumstances in which the Panel did not advise the Employer of this new information or differing symptoms, and the Employer had no ability to ascertain these issues, or be informed of the nature or content of this material before the Panel went on to reach its Opinion, the Employer was denied the opportunity to address the new information.[138]
Counsel for the plaintiff cited McCubbery [1995] VICSC 209; [1996] 1 VR 635 for the proposition that it had a right to be heard regarding the 'adverse new material' that Mr Bahng gave the Panel on 5 February 2016.[139]
The Employer disagreed with Mr Bahng's submission that the Panel's diagnosis should be read as a major depressive order with the accompanying words psychotic features including persecutory delusions, a reference to symptoms rather than part of the diagnosis itself[140] such that it is not a new diagnosis. The Employer submitted that this submission is contrary to the structure and the wording of the Reasons.[141]
In this regard, Counsel for the Employer submitted that the terms 'severe and with psychotic features' are terms of art which are specifiers, demonstrating that it's a different kind or a special kind of major depressive disorder that's being described, with a separate coding and therefore describing a distinguishable disorder.[142]
It was submitted that the Court ought to be satisfied that the diagnosis found by the Panel was not one which was present or reasonably apparent on any prior materials and came out of the blue for the Employer.[143]
It was further submitted that, even if the Court concludes that it is still in a sense part of the same diagnosis, this does not relieve the Panel of the requirement to afford the Employer procedural fairness in respect of findings that could not be reasonably anticipated. It was put to me that this requirement is not merely to inform the Employer of a novel diagnosis, but of anything that the Panel finds that means the Employer did not get a fair hearing.[144] Counsel referred[145] to the case of Sargent [2016] VSC 292 in which McDonald J found that a symptom was sufficiently new and material to the ultimate finding that the fact that it hadn't been disclosed meant there was a deficiency in procedural fairness that warranted certiorari.
Counsel submitted that the psychotic symptoms are so substantially different from any prior symptoms reported on by other medical examiners that the Employer was not given an opportunity to have the Panel's proposed conclusions explored by its own experts.[146]
It was put to me that, in terms of materiality, the additional information of the sort which could have been obtained by the Employer was logically capable of affecting the Panel's decision making process regarding diagnosis, causation, assessment of impairment, apportionment of impairment and stabilisation of injury.

[75]

The Employer submitted that the Panel failed to have regard to mandatory considerations.[147] In addressing this ground, some of the submissions also traverse the ground of failure to give adequate reasons.
Counsel submitted that the Panel relied on 'clearly described psychotic symptoms, including thought control and persecutory delusions' in reaching its Opinion. It was submitted that the absence of prior documented psychotic symptoms or diagnosis with psychotic features component were matters which arose from the materials and the Panel was required to consider and address this in its reasons[148].
Firstly, Counsel referred to the GEPIC principles which require the Panel to consider the whole history of the illness and treatment.[149]
Counsel also referred to the AMA Guides[150] which direct the Panel to consider in its evaluation whether its current findings are consistent with the results of previous clinical examinations by stating that 'if the current findings do not agree with the recorded information, there should be further clinical evaluation to resolve the disparities'.[151]
Counsel submitted that the Panel recorded in the Reasons Mr Bahng's history of treatment and medication and set out a detailed account of currently reported symptoms, but made no attempt to reconcile the differing symptoms.[152] It was submitted that the inconsistency of findings between the Panel and previous reports was a matter that the Panel was bound to give consideration to and failed to do so.[153]
Counsel submitted that either the intellectual engagement required (in which each relevant matter receives genuine consideration) did not occur, in which case the Panel failed to engage with that earlier history the way they are bound to do, or if the Panel did so intellectually engage, it is unstated so there are no reasons to explain how the Panel resolved the disparity.[154]
Secondly, it was submitted that s 91(7)(c) of the ACA directs that any impairment from unrelated causes is to be disregarded so as to ensure that the impairment assessment relates only to the impairment resulting from the compensable injury. It was submitted that the Panel was required to consider the extent to which Mr Bahng's current complaints resulting in impairment might be attributed to unrelated causes, and that the Panel did not properly carry out its task in relation to considering the possibility of irrelevant impairments that are required to be disregarded from the assessment.[155]
In this regard, Counsel referred to the Reasons[156] in which the Panel states as follows:

[85]

Further, the AMA Guides direct the Panel to consider whether its current findings are consistent with the results of previous clinical examinations.[170]
It was submitted that the Panel made no comment in its Reasons as to whether it considered the 'clearly described' psychotic symptoms had newly emerged, whether they had persisted for some time and other practitioners had wrongly failed to ascertain them or whether there was some other explanation for absence of these symptoms documented in any of the existing medical material.[171]
The Reasons do not disclose as required that the Panel gave any active intellectual consideration to whether the psychotic symptoms were consistent with the previous clinical examinations concordant with the full history of Mr Bahng's illness and psychiatric treatment.[172] Counsel submitted that by failing to sufficiently address the emergence and clinical course of the psychotic symptoms it identified, the reasons fail to illuminate whether the Panel properly performed the impairment assessment.[173]
Counsel for the Employer rejected Mr Bahng's submission to the effect that the Panel reasoned as it did on the basis that Mr Bahng's psychotic symptoms were newly recorded but not newly experienced. It was submitted by Counsel for the Employer that without any statement to this effect in the Reasons, there is a risk of attributing a path of reasoning to the Panel that is not the actual path of reasoning.[174]
It was submitted that the Panel failed to adequately show how it arrived at the ratings for thinking, perception, judgment, mood and behaviour with reference to the descriptors in the GEPIC (each of which were assessed to be a higher class as compared with Dr Adlard).[175]
While the Employer concedes that the assessment of 35% was open to the Panel and could have been made lawfully, it was submitted that as it stands the Court is unable to determine by what means lawful or otherwise the Panel evaluated that assessment.[176] Counsel submitted that the Court should not be left having to engage as in H J Heinz, a speculative gap filling to make good the Panel's reasons.[177] There is no elucidation as to the criteria or process the Panel employed to come to this assessment; the Court is left to speculate as to the manner in which the Panel exercised its clinical judgment.[178]
It was submitted that the Court is left in 'real doubt' as to whether the Panel correctly performed its statutory function, correctly interpreting and adhering to the GEPIC directions, such a failure constitutes a breach of the requirement for reasons in s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRCA').

[86]

Counsel for Mr Bahng made the following submissions as to the Employer's claim that the Panel failed to accord it procedural fairness:
- (a) firstly, the Employer misconstrued the Panel's diagnosis, which was 'Major Depressive Disorder' which is not in fact inconsistent with the medical practitioners who had previously examined Mr Bahng;[179]
- (b) secondly, while Counsel for Mr Bahng acknowledges that no prior medical examiner specifically identified 'psychotic features' or 'persecutory delusions', Counsel referred to the report of Dr Athey dated 17 October 2013 in which he documented that Mr Bahng 'did have morbid beliefs in that he appeared to have delusional feelings of guilt over the effect of his illness on other people'. It was submitted that, in this regard, it could not be said that the identification of delusional symptomology came out of the blue;[180]
- (c) thirdly, there was a generally consistent reporting of symptoms and the effect of the injury by Mr Bahng to the examining doctors, notwithstanding the Panel being given a history termed the 'additional history';[181]
- (d) fourthly, Mr Bahng specifically denied to the Panel that he was experiencing hallucinations, which was consistent with the history previously given. The Panel's finding of psychotic features was based on its questioning of Mr Bahng and its assessment of his answers. Insofar as prior examiners had considered there were no hallucinations or delusions, this represented a conclusion of their assessment which differed from that of the Panel (as opposed to any specific assertion by Mr Bahng himself);[182] and
- (e) fifthly, it could not be said that the history given to the Panel of some occasional suicidal ideation, but without any intent, could not reasonably be anticipated. There had been suicidal thoughts accompanying the onset of the injury which was reported to several of the medical practitioners, namely[183]:
  - (i) By 20 June 2013[184] there was no suicidal ideation;
  - (ii) On 17 October 2013[185] the possibility of suicidal ideation (in the future) was mooted; and
  - (iii) By 20 February 2014[186] suicidality had reduced.
Whilst Mr Bahng generally accepted the correctness of the legal principles as to procedural fairness set out by the Employer, it was submitted that it is important to note that:
- (a) the overarching consideration is whether the employer has been given the opportunity of being heard; and
- (b) this involves an evaluative question of fact and degree.[187]
It was submitted that in the above circumstances, the Court should not be satisfied that the Panel has failed to accord the Employer procedural fairness.[188]
It was further submitted that even if the Court finds that the Panel failed to accord the Employer procedural fairness, relief in the nature of certiorari should not be granted, as there was nothing the Employer might have done to address the new information which might have resulted in a different finding.

[90]

It was submitted that the complaint that the Reasons are deficient should be rejected.
Firstly, it was submitted that the Panel recorded and appeared to have accepted Mr Bahng's history that the psychotic features of his illness commenced since the problems at his workplace rather than more recently and had persisted since that time.[196]
Secondly, the assessment under the GEPIC, and the ultimate conclusion of a 35% psychiatric impairment, was an evaluative question for the Panel. The evaluation was necessarily, and appropriately, informed by the history taken by the Panel, the mental state examination, and the application if its expertise. It cannot be said the evaluation was irrational or not open to the Panel.[197]
It was submitted that the Court should accept that the Panel set out the path of reasoning by which it arrived at its Opinion, and the Reasons contain sufficient detail to enable the reviewing court to determine whether or not the Opinion involved any error of law.[198]
In addition to the Written Submissions, Counsel for Mr Bahng made further oral submissions in the course of the hearing.
Counsel spent a considerable amount of time in oral submissions comparing the Panel's assessment of the GEPIC principles to Dr Adlard's assessment of those principles. Counsel proceeded to demonstrate the numerical calculations undertaken by each of the Panel and Dr Adlard, in an attempt to support the submission that the history given to the Panel by Mr Bahng of his psychotic symptoms did not alter the ultimate assessment made by the Panel.
Counsel for Mr Bahng also made oral submissions as to the character and integrity of Mr Bahng. In particular, Counsel submitted that the descriptions given by all doctors who had seen Mr Bahng are that he is an honest and honourable person.[199] Counsel submitted that the fact that the Panel believed what he said, led to there being no resolution which is required to be exposed in the Reasons[200]
Finally, Counsel for Mr Bahng submitted that the Panel took the view that the psychotic symptoms were not relevant to the question of the calculation of impairment,[201] and the psychotic features did not give rise to a different diagnosis[202] or have any relevant effect on the assessment.[203]

[108]

Their Honours held that procedural fairness required the Refugee Review Tribunal to inform the applicant of the substance of the allegations made in the letter before reaching its decision.
It would appear that at common law, if a decision maker has information adverse to the interests of one of the parties, then the decision maker is to ask itself, is this information credible, relevant and significant to the decision I am about to make? Unless the decision maker can demonstrate that the information is clearly not credible, not relevant and not significant to its decision, the decision maker is to notify the parties of the existence of the information in order to give the parties a chance to respond. This is necessary to ensure procedural fairness.
The powers of the Panel are such as to prima facie attract an obligation on its part to act fairly or to abide by the rules of natural justice, in the performance of its function.[215] This has implications to the way in which the Panel gathers and processes evidence and information, although the nature of these implications is capable of changing over time.
In this case, the Panel was clearly resolving the competing contentions of the parties. That is, on the one hand, the Agent's contention that Mr Bahng had a psychiatric injury and whole level person impairment of 15%. On the other hand Mr Bahng's contention was that he accepted liability but disputed the assessment of impairment. As noted by Winneke P in McCubbery,[216] the Panel in such circumstances is in its own informal way deciding the dispute by reference to the competing contentions.
Accordingly, the powers of the Panel are such as to prima facie attract an obligation to act fairly.
The Panel is obliged to accord the protection of the hearing rule of procedural fairness to the employer insurer party, not merely the worker party.[217]
The Reasons clearly indicate that it reached a different conclusion to that of Dr Adlard in relation to diagnosis and total psychiatric impairment. Dr Adlard diagnosed Mr Bahng as suffering from a major depressive disorder in partial remission and as having a psychiatric impairment of 15%, all of which was attributable to the accepted psychiatric injury and that the psychiatric injury had stabilised. In contrast, the Panel concluded Mr Bahng was suffering from a major depressive disorder with psychotic features, including persecutory delusions and that he had 35% psychiatric impairment relating to the accepted psychiatric injury which was stabilised and permanent.
There is support in Dr Mendelson's Report for the proposition that a diagnosis of Major Depressive Disorder with psychotic features is materially distinguishable from the previously proposed diagnoses, including Dr Adlard's diagnosis of Major Depressive Disorder in partial remission.[218]
In the course of submissions, it was put by Mr Bahng that the Panel's diagnosis was not inconsistent with that made by the other medical practitioners. Further, it was submitted that it could not be said that Mr Bahng's psychotic features or persecutory delusions came 'out of the blue'.
However, in the eight medical reports available to the Panel, nowhere in the material was there any mention of psychotic features or an account of symptoms characterised by persecutory delusions of the type or intensity reported by Mr Bahng to the Panel. At the most, there was a history in Dr Athey's report dated 17 October 2013 to Mr Bahng having morbid beliefs in that he appeared to have delusional feelings of guilt over the effect of his illness on other people. This is in contrast to the history he gave the Panel which included:

[111]

Mr Bahng providing a history that he believed someone might be listening in on his phone calls and that there might be cameras in his house actually filming what he was doing as he tried to search for items and that the last time he looked for the cameras was in late 2015; and 2. Mr Bahng's telling the Panel that when he is out of the house he thinks people might be able to read his mind and take thoughts out of his mind.
In addition, the Panel concluded that Mr Bahng gave examples of thought insertion and control and persecutory delusions.
In the circumstances, the Panel elicited from Mr Bahng new symptoms. The information regarding the new symptoms ('the new information') was adverse to the interests of the Employer, as if it was adopted by the Panel, it could lead to the Panel finding Mr Bahng's total impairment was more than the previously stated 15%.
The Panel was determining, among other things, Mr Bahng's mental impairment. As stated above, Counsel for Mr Bahng submitted that the Panel took the view that the psychotic symptoms were not relevant to the question of the calculation of impairment.
Counsel for Mr Bahng submitted that the Panel took the view that the psychotic features did not give rise to a different diagnosis[219] or have any relevant effect on the assessment.[220]
Counsel for Mr Bahng proceeded to demonstrate the numerical calculations undertaken by each of the Panel and Dr Adlard, in an attempt to demonstrate that the history given to the Panel by Mr Bahng of his psychotic symptoms did not alter the ultimate assessment made by the Panel.
With respect, I do not accept this submission. A Judge's role is to examine whether or not the Panel complied with the AMA Guides and GEPIC, in order to assess whether or not the Panel has exceeded its jurisdiction. It is not the Judge's role, nor is a Judge qualified, to attempt to make a numerical calculation regarding impairment. There is nothing to indicate that the psychotic symptoms were not relevant to the assessment.
There was also no question as to the credibility of Mr Bahng's evidence before the Panel on 5 February 2016.[221]
As such, I am not convinced that the new information was not relevant, not credible and not significant to the decision that the Panel was tasked with making.
As the Panel did not notify the Employer about the new information, the Agent did not have an opportunity to consider the new symptoms and what relevance they may have had to the ultimate diagnosis and assessment of impairment. The Agent was denied an opportunity to make any relevant submissions and obtain further information or evidence to put before the Panel reached its final conclusion in relation to diagnosis and level of impairment.
In fact, the Panel in this case clearly relied on the psychotic features including persecutory delusions to reach its conclusion in relation to diagnosis and level of impairment. The fresh symptoms were critically important in the Panel's findings in relation to diagnosis and level of impairment. The Panel's decision was materially affected by the history provided and new symptoms reported by Mr Bahng to the Panel.
In the circumstances, I consider the Panel's opinion was formed in breach of the requirements of procedural fairness and is vitiated by legal error.

[113]

Because the Agent has succeeded on procedural fairness grounds, I will only consider the Panel's remaining grounds briefly.
An administrative decision maker makes a jurisdictional error if it fails to take account of a matter which it is bound to take into account, and its failure materially affects its decision.[222]
Under the ACA, the role of a medical panel is to form an opinion relating to medical questions which are referred to it for various purposes set out in the legislation. In this case, the medical questions were referred for the purpose of deciding Mr Bahng's psychiatric impairment assessment and the calculation of impairment benefit.
It was not in dispute that the Panel is bound to consider Mr Bahng's answers to questions and the documents in this case submitted by the Agent, when the Panel formed its Opinion and delivered its Reasons. Nor was it in dispute that if Mr Bahng's answers or documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.
In summary, I consider the Panel did not take account of a matter it was bound to consider when it failed to address the question of the absence of prior documented psychotic symptoms or diagnosis with a psychotic features component. The Panel recorded Mr Bahng's history of treatment and medication and set out a detailed account of his current symptoms and to a lesser extent past symptoms, which did not include the new symptoms consistent with psychotic features. The Panel's findings were not consistent with the findings made by earlier practitioners and in particular Dr Adlard in his report dated 17 November 2015. I do not consider the Panel gave adequate consideration to the previous clinical examinations, history provided by Mr Bahng and the findings of the other practitioners.
The Panel noted Dr Adlard's Report, and his diagnosis that Mr Bahng was suffering a major depressive disorder in partial remission and that he assessed Mr Bahng as having an impairment of 15% attributable to the accepted psychiatric injury and that the psychiatric injury had stabilised.
The Panel was not required to explain why it took a different view from Dr Adlard (or any of the earlier medical assessments it was provided with) in reaching its assessment of Mr Bahng's degree of permanent whole person impairment. However, it is required to explain how it had taken account of the newly reported symptoms and the extent to which the newly reported symptoms could be causally attributable to the compensable injury for which liability was accepted s 98C of the ACA.
I accept the Agent's submissions that the Panel did not adequately consider the newly reported symptoms identified by the Panel. That is, the psychotic symptoms and apparent re-emergence of suicidality, and how in such circumstances, Mr Bahng's condition had or had not stabilised within the meaning of the AMA Guides, the GEPIC and the ACA. The recent nature of the newly found symptoms and the difference in histories given to Dr Adlard and the other doctors by Mr Bahng are significant factors in the Panel's diagnosis and assessment of impairment. As such, it was required to explain how it had taken into account the emergence of the newly reported symptoms and why it considered in a background of such symptoms not having been recorded in the past, how and why it considered Mr Bahng's condition stabilised. Put another way, the Panel was required to explain why the newly found symptoms were not a new unrelated condition, or how it could be said given the recent newly found symptoms, the condition had stabilised.
Further, the GEPIC principles require the Panel to consider the whole history of the illness and treatment. The Panel failed to reconcile the different symptoms it elicited with those previously recorded by the medical examiners since 2013. The AMA Guides direct the Panel to consider in its evaluation whether its current findings are consistent with the results of previous clinical examinations.
Given the inconsistent findings between the Panel and the previous clinical examinations, I consider this was a matter the Panel was bound to give consideration to and that it failed to do so.

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