Plaintiff v First Defendant

2 This judgment repeats many of the matters contained in the plaintiff's and fifth defendant's joint memorandum to the Court dated 18 May 2017.

3 In that memorandum, the factual background to the proceeding is described as follows:

On or about 22 March 2016, [Ms Haeusler] completed a Worker's Injury Claim Form citing injury as follows: 'Lower back pain, not resolving. Bi-lateral i/c pain upon bending, lifting and lifting legs". It was alleged that injury had been sustained on 27 February 2016 when [Ms Haeusler], a personal/disability support worker, was transferring a client to bed. The claim was initially accepted.

4 The issues in the judicial review application were:

(a) Whether the Panel denied the employer procedural fairness by failing to afford it a fair opportunity to address the Panel in respect of:

(i) its diagnosis of the worker's psychiatric condition;

(ii) its conclusion that the worker's diagnosed psychiatric condition was causally related to a compensable physical injury;

(b) Whether the Panel failed to give a proper and adequate statement of reasons for its opinion.

5 The employer and worker agreed that the Panel's opinion is vitiated on the first of the grounds alleged by the employer, that is denial of procedural fairness. However, the worker disputes that the opinion is vitiated with respect to the second alleged ground, that is inadequacy of reasons.

6 In judicial review proceedings, the Court cannot make consent orders setting aside an Medical Panel opinion unless satisfied that the consent orders are appropriate. For the reasons set out below, I am satisfied that the orders proposed are appropriate.

7 The relevant referred questions and opinions in response were as follows:

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?

Answer: In the Panel's opinion the worker is suffering from persisting pain and dysfunction of the lumbar spine following a soft tissue injury on a background of minimal degenerative changes to the lumbar spine and mild Adjustment Disorder with Depressed Mood Benzodiazepine Use Disorder in sustained partial remission, relevant to the claimed injury.

Question 2: Was the worker's employment in fact or could it possibly have been a significant contributing factor to the: disease; or recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?

Answer: In the Panel's opinion the worker['s] employment has been a significant contributing factor [to] the worker's medical condition of persisting pain and dysfunction of the lumbar spine following a soft tissue injury on a background of minimal degenerative changes to the lumbar spine and mild Adjustment Disorder with Depressed Mood and Benzodiazepine Use Disorder in sustained partial remission.

Question 3: What is the extent to which any medical condition of the worker results from or is materially contributed to by any, and if so which, of the claimed injuries?

Answer: In the Panel's opinion the worker's medical condition of persisting pain and dysfunction of the lumbar spine following a soft tissue injury on a background of minimal degenerative changes to the lumbar spine and mild Adjustment Disorder with Depressed Mood and Benzodiazepine Use Disorder in sustained partial remission results from the claimed lower back pain not resolving, bilateral pain upon bending and lifting injury.

Question 4: Does the worker have any incapacity for work? If so, what is the extent which the worker's incapacity for work results from or is materially contributed to by any, and if so which, of the claimed injuries?

Answer: In the Panel's opinion the worker is incapacitated for work and this incapacity results from the worker's persisting pain and dysfunction of the lumbar spine following a soft tissue injury on a background of minimal degenerative changes to the lumbar spine.

8 The employer contends that the Panel failed to accord the employer procedural fairness before finding that the worker had a medical condition of a 'Benzodiazepine User Disorder'.

The Panel concluded that the worker is a woman without a significant family history of psychiatric illness, who suffered from longstanding pre-existing anxiety and depressive symptoms that were exacerbated by her workplace injury. The Panel concluded that she suffers from a mild Adjustment Disorder with Depressed Mood and Benzodiazepine Use Disorder in sustained partial remission, relevant to the claimed injury.

The Panel also concluded that although these disorders were contributed to by the worker's pre-existing injuries and pain affecting her neck, shoulder and upper thoracic area, the worker's workplace injury of 27 February 2016 was in fact an exacerbating factor to these disorders also.

10 The employer and worker agreed that the Panel's findings as to the diagnosis of the Benzodiazepine Use Disorder and its relationships to the worker's employment were open to it, on the basis of its clinical examination and medical expertise. However, the Panel's findings in this regard were unexpected, could not reasonably have been anticipated by the employer, and came 'out of the blue'.[1] The worker's claim did not identify any such psychiatric illness or condition of Benzodiazepine Use Disorder. The referral to Medical Panels did not identify any issue which raised the possible existence of a Benzodiazepine Use Disorder or similar condition. The material which was provided to the Panel confirmed the worker's use of benzodiazepine medication both before and after the workplace injury in February 2016, but there was nothing that suggested that there was a diagnosable psychiatric condition relevant to its use which had been exacerbated by the workplace injury.

11 I accept that in those circumstances the employer was denied a fair opportunity to address the Panel as to its identification of Benzodiazepine Use Disorder which was causally related to the workplace injury. As the joint memorandum states, had the Panel advised the parties that it was giving consideration to the making of such a finding, the issue might have been addressed by the employer via written submissions advanced on its behalf or by obtaining further expert medical opinions. The Panel's failure to afford the employer procedural fairness affects the whole of its opinion, not only its consideration of question one.[2]

12 I therefore consider it appropriate to make the orders proposed which are:

1. There be an order in the nature of certiorari to quash the opinion of the Medical Panel comprised of the first to fourth defendants certified in writing dated 29 December 2016.

2. There be an order in the nature of mandamus remitting the medical questions in respect of which the certified opinion was given to a differently constituted Medical Panel to be reconsidered in accordance with law.

4. The fifth defendant be granted an indemnity certificate pursuant to the Appeal Costs Act 1998.[3]

[1] Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [48].

[2] Calleja v Franet Pty Ltd [1999] VSC 202; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.

[3] Walsh v Boys & Ors [2016] VSC 74, [11].