Plaintiff v First to Fifth Defendants

Supreme Court of Victoria|2015-09-24|Before: CAVANOUGH J

ADMINISTRATIVE LAW - Judicial review - Procedural fairness - Adequacy of reasons - Workers' compensation - Medical panel - Application to quash opinion of medical panel - Proceeding dismissed

1 This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in relation to a medical panel's certified opinion. The opinion was given on 2 January 2015 in response to medical questions relating to, amongst other things, a decision by the sixth defendant's WorkCover insurer to terminate weekly payments to the plaintiff as from 3 March 2012. The only grounds which have been pressed at the hearing are, first, that the panel denied the plaintiff natural justice or procedural fairness in a particular respect and, second, that the panel failed to provide an adequate statement of reasons.

2 As to the first ground, the natural justice ground, the contention is that the panel omitted to give a fair hearing to the plaintiff in that it failed to give the plaintiff adequate notice or warning of a diagnosis of her psychiatric condition to which it came. The diagnosis, as stated in the reasons given by the panel for its answers to the medical questions, was that the plaintiff had suffered from:

an undiagnosed somatoform disorder, (specifically a Pain Disorder, now termed in DSM 5[1] as a Somatic Symptom Disorder with predominant pain) and from an Anxiety Disorder with intermittent panic symptoms prior to the commencement of her employment with the Defendant in October 2008.[2]

3 The panel went on to determine that that remained the diagnosis of the plaintiff's mental or psychiatric condition at the time of the panel's decision; and this was reflected in the panel's certified opinion. At first sight, one might have thought that this was a case like Barrett Burston Malting Co Pty Ltd v Kotzman,[3] to which the parties have referred. That appearance was caused or promoted in part because the panel used the word 'undiagnosed' in the passage to which I have just referred. But, on closer examination of the reasons and the material generally, one sees clearly that what the panel meant was that the condition had been undiagnosed by the worker's own treating medical practitioners in the period up to October 2008 when she commenced employment with the sixth defendant.

4 The other feature that at first glance made it rather appear that this might be a Barrett Burston case is that the written submissions filed on behalf of the sixth defendant seemed to treat the relevant aspects of the panel's decision and reasons as amounting to the making of a diagnosis different from that which had been arrived at by anybody, including any of the medico-legal practitioners, at any time. But again I think it is clear on proper consideration of the material as a whole that that is not what the panel was doing.

5 The panel in fact accepted, and found, that the plaintiff was suffering from a Pain Disorder, which is a diagnosis that had been included in DSM 4[4] for many years and which is a well understood and well known concept. It is a concept which had been used in reports by many of the medical practitioners who had been involved in this matter since it became litigious, after the filing of the worker's claim for compensation. The expression 'Pain Disorder' was used in the reports either alone or in combination with other descriptors. It was so used by practitioners who had been consulted by the plaintiff herself, as well as by practitioners who had been consulted or engaged by the sixth defendant.

6 I take into account the principles relating to the way in which one must read the reasons of non-legal tribunals that are laid down in many cases - perhaps most recently for medical panels in the decision given by Maxwell P and myself in December 2012 in a case that was cited in the sixth defendant's submissions, namely Gamble v Emerald Hill Electrical Pty Ltd.[5] One must read the reasons for decision of a medical panel fairly and without undue nit-picking or over-zealously in search of error. I consider that, when one applies that approach to the opinion and reasons of the panel, the conclusions of the panel in the relevant respect become clear and it also becomes clear that there was no want of notice given to the plaintiff and her legal and medical advisors of the prospect that this would be the way in which the panel might view the case ultimately. So I think that Barrett Burston is duly distinguished and I would not uphold the natural justice contention.

7 Turning to the contention that the panel gave inadequate reasons, I am guided by what the High Court said in Wingfoot Australia Partners Pty Ltd v Kocak[6] as to the approach that needs to be taken to the assessment of the adequacy of reasons given by medical panels. I have read the panel's reasons carefully and repeatedly and I am satisfied that in the only respect that now matters, namely the panel's conclusion that, as from 3 March 2012, there remained no longer any work-relatedness in the plaintiff's psychiatric condition,[7] the panel adequately explained its reasoning.

8 As to the plaintiff's psychiatric condition after October 2008,[8] the panel considered the non-work factors that had overtaken the plaintiff in the period since she ceased work altogether in November 2009. It also looked at the amount of time she had spent at work. It considered all her complaints about what had happened at work, most importantly her complaints about the relationship she had had with her manager, which was the matter principally relied upon by the plaintiff in this regard.

9 The panel looked carefully at all of the evidence concerning what had happened in the plaintiff's life since she ceased that employment, including the difficulties she had had with the unplanned arrival of her child, the breakup with the father of the child, the fact that she got to the stage of taking out an intervention order against the father of her child in late 2011 because of threatened abuse, comments from the plaintiff's own treating GP about the child's father having drug issues and blaming the plaintiff for the breakup of the relationship, and the fact that the father has no contact with the child.

10 The panel said that it considered that the difficulties and ultimate breakdown of the plaintiff's relationship with her son's father and his verbal aggression towards her would have been significantly distressing for the plaintiff with a resultant increase in her pain perception and with an aggravating effect on her pre-existing previously undiagnosed psychiatric condition.[9]

11 Then the panel went on to consider whether the plaintiff's current psychiatric condition as diagnosed by the panel could be said to be in any way attributable to anything that had happened at or in connection with work. The panel deals with that on page 27 of its very detailed reasons and it arrives at a negative conclusion, having once again looked at matters such as the plaintiff's difficulties with her manager, the duration of her employment with the defendant between October 2008 and November 2009 and the relatively brief periods of time which she actually spent at the workplace between those dates.[10]

12 The panel said that it also considered the nature, extent and severity of the plaintiff's pre-existing undiagnosed psychiatric medical condition which predated her employment, its natural history when essentially untreated and the impact on this condition due to events that occurred after the plaintiff ceased employment with the defendant, including her failed relationship and her single motherhood.[11]

13 To some extent, psychiatric diagnosis is an art rather than a science. It seems to me that the panel has sufficiently explained what moved it to arrive at the conclusions at which it arrived in that regard. Whether those explanations are cogent or not is not the question. The question is whether the panel's explanation is sufficiently informative as to what were in fact the reasons of the panel, having regard to the standard set by the High Court in Wingfoot. I would not uphold the complaint that there was an inadequate statement of reasons.

14 There being no other grounds pressed, I would dismiss the application for review. That is to say, I would dismiss the proceeding.

(b) The plaintiff pay the costs of the sixth defendant, including all reserved costs.

[1] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed) 812-3 (citation added).

[3] [2013] VSC 248 ('Barrett Burston').

[4] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed).

[7] At one point the plaintiff's counsel also suggested that the panel had not adequately explained how the panel could say, as it did (Court Book, 72-73), that it accepted the plaintiff's history that she had continued to experience lower back pain from the time of the first incident at work in October 2008 up to the time of the panel's decision, on the one hand, and that her lower back injury had resolved by April 2009, on the other hand. As I think her counsel in the end acknowledged, it is quite clear that the panel regarded the plaintiff's ongoing lower back symptoms as being reflective of her (psychiatric) Pain Disorder condition only.

[8] These matters were considered by the panel in order to determine whether the plaintiff's work-related Adjustment Disorder (which the panel had accepted) had persisted beyond 2010 or 2011. In the end, the panel's conclusion was in the negative, the panel having concluded that the plaintiff's Adjustment Disorder had resolved by 2010 or 2011 in the context of other unrelated stressors.

Court (General Civil Procedure) Rules 2005

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