Plaintiff v First Defendant

2 This judicial review proceeding concerns the assessment by a Medical Panel of the degree of psychiatric impairment suffered by Ms Nicholas as a result of these incidents. Ms Nicholas has been diagnosed with chronic post-traumatic stress disorder related to her employment with St Luke's.

3 The Medical Panel, constituted by the first and second defendants (the Panel), assessed Ms Nicholas to have a 35% psychiatric impairment directly related to her work for St Luke's. St Luke's contends that the Panel's opinion involved legal error, and seeks orders quashing the opinion and remitting the matter for reconsideration by a differently constituted Medical Panel.

4 For the reasons that follow I am not persuaded that the Panel's opinion involved any jurisdictional error or other error of law.

5 It was common ground that Ms Nicholas ceased working for St Luke's in July 2011. She made a workers compensation claim in 2011, which was accepted. In July 2015 she made a separate claim for payment of a lump sum impairment benefit under s 98C of the Accident Compensation Act 1985 (ACA).

6 In January 2017 Ms Nicholas was assessed by Dr Stephen Stern, a psychiatrist and independent medical examiner engaged by St Luke's claims agent, CGU Insurance. Dr Stern diagnosed Ms Nicholas to be suffering from a chronic post-traumatic stress disorder, related to the incidents at work, while noting that she had a significant pre-existing psychiatric history. He assessed Ms Nicholas as having a whole person psychiatric impairment of 25%, of which 15% was related to her work with St Luke's, and 10% was due to pre-existing factors.

7 After receiving Dr Stern's report, CGU wrote to Ms Nicholas accepting liability for her injuries. However, because her level of impairment had been assessed at less than 30%, CGU advised that she was not entitled to an impairment benefit under s 98C of the ACA. Ms Nicholas disputed this assessment of her impairment, and the calculation that she was not entitled to any impairment benefit.

8 In May 2017 CGU referred the dispute to a Medical Panel for an opinion. The medical questions referred were:

(a) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 and is the impairment permanent?

(b) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in s 98E(1)?

9 The referral was accompanied by numerous medical reports and other records, which were listed in a schedule. CGU also made a submission to the Panel, bringing to its attention Dr Stern's report of 12 January 2017 and requesting that his opinions be considered when determining Ms Nicholas's level of impairment. The submission also asked that, if 'the Panel's assessment differs significantly to the % whole person impairment determined by CGU, please ensure the Panel specifically addresses why its assessment is different in its reasons'.

10 The Panel examined Ms Nicholas on 7 July 2017, and provided a certificate of opinion and reasons for opinion on 11 July 2017. The Panel answered the questions referred for its opinion as follows:

(a) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 and is the impairment permanent?

The Panel is of the opinion that there is a 35% psychiatric impairment resulting from the accepted Psychological/psychiatric condition injury when assessed in accordance with Section 91 of the Act. The degree of psychiatric impairment is permanent.

(b) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in s 98E(1)?

11 The Panel's reasons for opinion (Reasons) first identified the material that informed its opinion. In addition to the documents and information referred to it by CGU,[2] the Panel had examined Ms Nicholas on 7 July 2017 and had taken a history from her. It also noted the submission made by CGU dated 26 May 2017.

12 After setting out the history provided by Ms Nicholas in some detail, and recording its own observations of her mental state, the Panel gave its diagnosis:

In the Panel's opinion the worker, on a background of chronically stressful development including interpersonal difficulties and abuse, is now suffering from a chronic and severe posttraumatic stress disorder, relevant to the accepted Psychological/psychiatric condition injury.

13 The Panel concluded that this psychiatric condition is stable and permanent. It then explained its conduct of a psychiatric impairment assessment in accordance with the Guide for the Evaluation of Psychiatric Impairment for Clinicians, beginning with a table assigning a class of impairment for each domain of mental function:

14 The Panel then gave its opinion about the degree of psychiatric impairment suffered by Ms Nicholas:

In the Panel's opinion the worker has a median Class 3 impairment and the degree of psychiatric impairment is 40%, and of this impairment there is a psychiatric impairment of 35% which arises directly due to the nature and circumstance of the accepted Psychological/psychiatric condition injury, and the remaining psychiatric impairment of 5% is due to the worker's pre-existing psychiatric condition and is therefore excluded from the psychiatric impairment assessment as being unrelated in accordance with Section 91(7)(c) of the Act.

15 The Panel went on to explain its reasons for reaching a different assessment from that made by Dr Stern:

The Panel reviewed the opinion of the independent impairment assessor, Dr Stephen Stern dated 12 January 2017 where he assessed the worker to have a 25% psychiatric impairment of which he considered 10% to be due to pre-existing factors. The Panel agreed with the diagnosis, but not with the assessment of the degree of total psychiatric impairment based on its own history taking and examination findings, and higher ratings in the domains of perception and judgement. The Panel also arrived at a different apportionment of the pre-existing impairment, assessing 5% of the impairment due to pre-existing factors. The Panel noted that although there was some evidence of impairment arising from her problematic upbringing, childhood sexual abuse and relationship history at the time of the incident, the worker was not under any psychological care nor was she taking any psychotropic medication.

16 Ms Nicholas suffered injury before the commencement of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA) on 1 July 2014, and so her entitlements to compensation are governed by the ACA. However, the resolution of disputes arising in relation to claims under the ACA is governed by Pt 6 of the WIRCA.[3] Provision is made for the referral of medical questions for the opinion of a Medical Panel in Pt 6, Div 3 of the WIRCA.

17 Under the ACA, a worker who suffers a compensable injury resulting in permanent impairment is entitled to lump sum compensation for non-economic loss calculated pursuant to s 98C. Section 98C(1) requires the worker's impairment to be assessed in accordance with s 91, after the injury has stabilised. The amount of non-economic loss in respect of a permanent psychiatric impairment is to be calculated in accordance with s 98C(3). If the worker's degree of impairment is less than 30%, the amount of the non-economic loss is zero. If the worker's degree of impairment is 30% or greater, there is an entitlement to a lump sum payment for non-economic loss, with the amount of the payment increasing with the degree of impairment.

18 Section 91 of the ACA is a key provision. Section 91(1) provides, relevantly, that a reference to the assessment of a degree of impairment in accordance with the section is a reference to an assessment made in accordance with the AMA Guides as applicable subject to subsections (1A) and guidelines in accordance with subsection (6). Those sub-sections provide:

(1A) Despite anything to the contrary in the AMA Guides, an assessment under subsection (1) of the degree of impairment resulting from an injury must be made -

(a) after the injury has stabilised; and

(b) subject to subsection (7), based on the worker's current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.

...

(6) For the purposes of assessing the degree of psychiatric impairment the AMA Guides apply, subject to any regulations made for the purposes of this section, as if for Chapter 14 there were substituted the guidelines entitled 'The Guide to the Evaluation of Psychiatric Impairment for Clinicians'.

19 The reference in the ACA to the AMA Guides is a reference to the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by the ACA and the regulations.[4] The Guide to the Evaluation of Psychiatric Impairment for Clinicians is discussed below.

20 Section 91(7)(c) provides that, for the purposes of s 98C, 'impairments from unrelated injuries or causes are to be disregarded in making an assessment'.

21 Medical Panels are constituted under s 537 of the WIRCA as necessary for the purposes of the WIRCA, the ACA and Part VBA of the Wrongs Act 1958. A Medical Panel is convened from a list of medical practitioners appointed by the Governor in Council.

22 Section 302 of the WIRCA sets out the functions of a Medical Panel under the WIRCA and the ACA:[5]

(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, employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.

(2) A Medical Panel must give its opinion on a medical question in accordance with this Division.

23 The medical questions for the Panel's opinion in this case were referred by the Victorian WorkCover Authority, through the claims agent CGU, under s 104B(9) of the ACA.

24 Section 313 of the WIRCA provides for the opinions of Medical Panels. Section 313(2) provides:

The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.

25 The opinion of a Medical Panel is final and conclusive and must be adopted and applied by any court, body or person for the purpose of determining any matter or question.[6]

Guide to the Evaluation of Psychiatric Impairment for Clinicians

26 Section 91(6) of the ACA substitutes the Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) for Chapter 14 of the AMA Guides for the assessment of psychiatric injuries.[7] As is the case with the AMA Guides, the prescription of the GEPIC for assessing psychiatric impairment is designed 'to promote precision, certainty and consistency' and 'to make as objective as possible the process of estimating impairment'.[8]

27 The method for assessing psychiatric impairment described in the GEPIC 'involves the assessment of the severity of six specific mental functions into five classes of increasing severity'.[9] The six mental functions are intelligence, thinking, perception, judgment, mood and behaviour. The level of impairment for each mental function is assessed in classes of impairment from 1 (least severe) to 5 (most severe). Guides for the rating of impairment for each mental function form part of the GEPIC.

28 The different classes of impairment for each mental function are then combined to produce a total psychiatric impairment. The GEPIC directs use of the 'median method' as the 'most appropriate and fairest' of the methods available to calculate the overall level of whole person psychiatric impairment.[10] Each median class includes descriptors which indicate a range of symptoms within the class - a low range, a mid range and a high range. Once the median class and descriptor for a person has been determined, the overall percentage impairment is assessed having regard to the indicative ranges for the class and the descriptor:[11]

The assessor should consider both the descriptors for each class and equivalent symptoms that might not be listed amongst the descriptors. The assessor should assess the severity of each symptom or descriptor and/or the number of symptoms or descriptors present. As a result of this clinical assessment the assessor should use clinical judgment to determine where the final figure lies.

29 At various points the GEPIC emphasises the role of clinical judgment in making an assessment. For example:[12]

The evaluation of psychiatric impairment in accordance with the Guide is meant to be informed by clinical judgement, based on appropriate training and experience, and the specific rating criteria are not meant to be used in a 'cookbook' fashion.

It is ultimately for the clinician, and no one else, to make the clinical judgement whether a specific rating criterion is present.

30 While the interpretation of the GEPIC is a question of law, the determination of a level of impairment is a question of fact.[14] A clinical judgment reached by a Medical Panel in accordance with the methodology prescribed by the GEPIC is a finding of fact.

31 The originating motion for judicial review was quite lengthy and identified five separate grounds for review. At the hearing, however, only two grounds for review were pressed by St Luke's.

32 The first ground concerned whether the Panel erred in law in its application of s 91(7)(c) of the ACA, which requires the Panel to disregard unrelated impairments. While this ground was put in a range of ways - misapprehending the legal question, failing to take into account a mandatory relevant consideration, and having regard to an irrelevant consideration - all of them were to the effect that the Panel had not disregarded impairment caused by events that occurred after May 2010 that were not related to Ms Nicholas's employment, as s 91(7)(c) obliged it to do. The essential complaint made by St Luke's here is that the Panel did not evaluate the extent of impairment from unrelated causes, being the effect of unrelated psychological stressors after the work injury.

33 The second ground concerns the adequacy of the Panel's reasons for opinion, and whether the reasons were sufficient to comply with s 313(2) of the WIRCA.

Ground 1 - Did the Panel misapply s 91(7) or disregard a relevant consideration?

34 It was common ground that s 91(7)(c) of the ACA is a mandatory relevant consideration for a Medical Panel determining questions referred under s 104B(9). There was also no dispute that a failure to disregard impairments from unrelated injuries or causes would amount to a jurisdictional error or an error of law on the face of the record.[15] For that reason it matters not whether the contended error is characterised as a failure to have regard to a relevant consideration, taking into account an irrelevant consideration, or a misapplication of s 91(7)(c).

35 The issue in dispute was whether the Panel had failed to disregard (or, without the double negative, had regard to) unrelated injuries or causes.

36 For St Luke's, Mr Fleming submitted that the Panel had disregarded only pre-existing impairment, and had failed to consider the effect of unrelated impairment caused by events that occurred after Ms Nicholas finished working for St Luke's. The records of Ms Nicholas's treating practitioners recorded significant stressors in her life after 2010, including family violence and housing insecurity in 2011, a house fire in 2015, and family conflict related to her daughter's drug use in 2015 and 2016. None of these matters, it was submitted, had been identified or addressed in the Panel's reasons. This was a failure to consider a 'fundamental issue' that arose from the materials.

37 Ms Forbes, who appeared for Ms Nicholas, submitted that the Panel's Reasons demonstrate that it performed the task required of it by s 91(7)(c). The Reasons, read as a whole, were said to demonstrate that the Panel was alive to the need to consider, for the purpose of disregarding, unrelated injuries or causes of psychiatric impairment. The Panel had identified an unrelated psychiatric condition that existed before May 2010, had assessed its contribution to the overall degree of impairment at 5%, and had disregarded it. There was nothing in the materials considered by the Panel to suggest that events after Ms Nicholas left St Luke's employment had caused her to suffer any additional impairment or discrete injury. The most that could be said, based on those materials, was that some events had held back her recovery from the accepted injury for a while.

38 I am not persuaded that the Panel failed to disregard any unrelated cause or injury in making its assessment. The Panel here did not fail to consider a 'fundamental issue' that was raised on the materials before it.[16]

39 The Panel stated expressly that it found Ms Nicholas to have a psychiatric impairment of 35% which arose 'directly' due to the accepted injury. It is clear from the Reasons that the Panel was aware of, and disregarded, the pre-existing psychiatric injury related to her difficult early life. Moreover, a review of the materials before the Panel reveals that none of Ms Nicholas's treating practitioners had diagnosed her with any injury or impairment caused or aggravated by events after her employment. Nor had the independent medical examiners who provided reports in relation to her initial workers compensation claim and her impairment benefit claim. In particular, Dr Stern did not suggest in his January 2017 report that Ms Nicholas suffered from any injury or impairment caused by post-employment events. Further, in its submission to the Panel, CGU did not ask the Panel to consider whether those events had aggravated her post-traumatic stress disorder or caused any other injury.

40 Just as a Medical Panel need not give reasons why it did not reach an opinion that it did not form,[17] a Panel need not have regard to an issue that does not arise on the materials before it. Here, there was simply no 'elephant in the room' that should have been noticed.[18] The first ground of review is not made out.

Ground 2 - Were the Panel's reasons for opinion adequate?

41 Section 313(2) of the ACA requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel's actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.[19] If a statement of reasons given under the WIRCA does not meet that standard, there is an error of law that is amenable to correction on judicial review by an order in the nature of certiorari.[20]

42 However, an error of law involves something more than 'looseness in the language of the tribunal' or 'unhappy phrasing of the tribunal's thoughts'. A reviewing court should not construe a Panel's reasons 'minutely and finely with an eye keenly attuned to the perception of error'.[21] Rather, the reasons of a non-legal, expert tribunal such as a Medical Panel should be given a beneficial construction.[22]

43 A statement of reasons is not adequate if there is a 'real doubt' whether the Panel correctly performed its statutory functions.[23] However, a balance must be struck between requiring too much, or too little, of Medical Panels.[24] Notably, a Panel is under no obligation to explain why it did not reach an opinion it did not form.[25]

44 In this case, St Luke's made two complaints about the Panel's statement of reasons. The first concerned the Panel's application of s 91(7)(c) of the ACA. The second was that the Panel did not adequately explain its opinion that Ms Nicholas's degree of psychiatric impairment (before reduction for pre-existing impairment) is 40%.

Application of s 91(7)(c)

45 St Luke's first submitted that the Reasons are inadequate because they do not reveal the methodology employed by the Panel to assess the 5% impairment it determined to disregard in accordance with s 91(7)(c). In particular, it submitted, the Court is left to speculate as to whether the Panel properly considered the subsequent events and their contribution to Ms Nicholas's psychiatric condition. Although reasons may be able to be understood combining what is expressly stated with inferences necessarily arising, a reviewing court must not speculate about a Panel's path of reasoning in order to fill the gaps.[26] The Court should avoid drawing inferences that lack a 'proper evidential foundation disclosed in the reasons'.[27]

46 In response, Ms Nicholas submitted that the Panel had sufficiently set out its path of reasoning with respect to unrelated injury. It identified, assessed and disregarded her pre-existing psychiatric injury. It also noted matters of significance post-injury. The Panel was not required to set out in its reasons the way in which it considered and then disregarded entries contained in the clinical notes about later events. That would be akin to requiring the Panel to give reasons why it did not form a particular opinion, which it is not required to do.[28]

47 I have already concluded, in relation to the first ground of review, that the Panel did not fail to disregard some unrelated cause or injury in making its assessment.[29] None of the health practitioners who treated or examined Ms Nicholas diagnosed her as suffering from any impairment or injury related to events that occurred after she ceased working at St Luke's. I do not have to speculate to infer that the Panel made no such diagnosis either. The Panel was not obliged to explain an opinion that it did not form; all the more so here because no other practitioner had formed that opinion.[30]

48 I consider that the Reasons adequately explained the Panel's path of reasoning in relation to s 91(7)(c).

49 The second complaint made by St Luke's about the Reasons was that the Panel's assessment of a 40% overall level of impairment is not sufficiently explained to enable the Court to determine whether the Panel correctly applied GEPIC. No issue was taken with the Panel's assessment of the six domains of mental function, nor with its application of the median method to arrive at a median class 3 impairment. The specific complaint was that the Panel did not explain how it came to an assessment of 40% total impairment, within the range of 25% to 50% for a median class 3 impairment.

50 Ms Nicholas submitted that the Panel sufficiently explained its assessment of her overall level of impairment, and that the Reasons demonstrated that it had correctly applied the GEPIC methodology. The ultimate assessment of the degree of impairment was said to be a matter of clinical judgment that is not easily reduced to reasons and is not amenable to judicial review. The assessment of 40% was in the mid range of a median class 3 impairment, which was open to the Panel on the material before it and the history and observations recounted in the Reasons.

51 It is the case that the Panel's opinion that the degree of psychiatric impairment is 40% is expressed as a bare conclusion, without any explanation of how the Panel arrived at that number rather than, say, 30% or 50%. However, it is clear from the preceding paragraphs of the Reasons that the Panel correctly applied the methodology prescribed by the GEPIC. St Luke's takes no issue with the Panel's reasons for determining that Ms Nicholas has a median class 3 impairment. All that remained for the Panel to do was to exercise its clinical judgment to determine where, within the possible range of 25% to 50%, the final figure lay. That was a 'quintessential judgment of fact' for the Panel to make.[31]

52 Although the Panel's reasons might have been enhanced by some explanation of why it assessed the overall impairment to be 40%, and not some other figure, the Reasons leave me in no doubt that the Panel correctly performed its statutory functions. The Panel's core statutory function was to exercise its clinical judgment, within the framework of the GEPIC, to assess Ms Nicholas's whole person degree of impairment resulting from her work-related injury. The Reasons demonstrate that the Panel did exactly that.

53 The Panel's clinical judgment was a finding of fact that would be amenable to judicial review on 'irrationality' grounds, for example that there was no evidence to support the finding,[32] or that it was 'manifestly unreasonable' or lacked an 'evident and intelligible justification'.[33] However, no such submission was made here. More detailed reasons are not necessary for me to be satisfied that the Panel made a clinical judgment that was open to it on the information it had, for which there is an evident and intelligible basis in the Reasons.

54 The Panel's statement of reasons was adequate. The second ground of review is not made out.

55 I will make an order dismissing the proceeding, and will hear the parties on the question of costs.

[1] This factual summary is drawn from the reasons for opinion of the Medical Panel dated 11 July 2017.

[2] Listed in Enclosure A to the Reasons.

[4] WIRCA, s 3 - definition of 'A.M.A. Guides'; ACA, ss 4(5), 5(2)(a).

[5] The Wrongs Act 1958 makes separate provision for the determination by a Medical Panel of medical questions arising under the Wrongs Act, in Pt VBA, Div 5.

[7] The GEPIC was gazetted on 27 July 2006 and remains in force under s 67 of the WIRCA.

[8] HJ Heinz Company Australia Ltd v Kotzman [2009] VSC 311, [27] ('HJ Heinz'), applied in relation to GEPIC in YG-1 Australia Pty Ltd v Brann [2016] VSC 713, [54] ('YG-1').

[14] HJ Heinz, [24]; applied in relation to GEPIC in YG-1, [54].

[15] Vegco Pty Ltd v Gibbons [2008] VSC 363, [17], [21]; Alcoa Holdings Ltd v Lowthian [2011] VSC 245, [66], [76].

[16] Cf Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60] (Neave JA, Santamaria JA and Ginnane AJA agreeing).

[17] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, [56] ('Wingfoot').

[18] Omerasevic v Kotzman [2016] VSC 383, [97].

[21] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, [9], [20] and Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29] ('Gruma Oceania').

[24] Kipniak Pty Ltd v Rann [2017] VSC 651, [97] ('Kipniak').

[26] Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].

[27] Tan v Kotzman [2016] VSC 482, [22].

[29] See [38]-[40] above.

[31] Georgiou v Capitol Radiology Ply Ltd [2011] VSC 158, [116]; Kipniak, [28].

[32] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-90; Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390, [91].

[33] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, 40-41; Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ).