Plaintiff v Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant Fourthnamed Defendant Fifthnamed Defendant

Supreme Court of Victoria|2010-09-21|Before: BEACH J

ADMINISTRATIVE LAW - Review of Medical Panel - Whether jurisdictional error - Taking into account irrelevant considerations - Whether failure to take into account relevant considerations.

1 Mrs Festime Bregu, the plaintiff, was employed by Compass Recruitment Australia Pty Ltd, the fifth defendant, in a meatworks. On 19 October 2005, the plaintiff made a claim under the Accident Compensation Act 1985 ("the Act") in respect of a back injury which she alleged she sustained in the course of her employment. The injury was claimed to be as a result of "manual handling". In her claim form, the plaintiff asserted that her injury arose "gradually over a period of time".

2 The plaintiff's claim was ultimately accepted, and the plaintiff commenced to receive weekly payments under the Act. By notice dated 27 July 2009 ("the notice"), the plaintiff's entitlement to weekly payments was purported to be terminated as of 29 October 2009. The reasons for the purported termination were that the plaintiff had received payments for 130 weeks and had a current work capacity as defined by the Act.[1]

3 The notice was referred to the Accident Compensation Conciliation Service. The conciliation was unsuccessful. Subsequently, the conciliator referred two medical questions to a medical panel.

4 The first, second, third and fourth defendants (who are respectively a general practitioner, a psychiatrist, an orthopaedic surgeon and a rheumatologist) were the medical panel to which the medical questions were referred.

5 On 15 March 2010, the medical questions were answered as follows:

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

Answer: In the Panel's opinion, the worker is not suffering from any physical medical condition relevant to the claimed back injury. The Panel is also of the opinion that the worker is not suffering from any psychiatric condition relevant to the claimed back injury.

Question 2: Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?

Answer: In the Panel's opinion the worker does not have a present inability arising from an injury to return to her pre-injury duties."

6 Only the plaintiff and the fifth defendant took an active part in this proceeding. The first to fourth defendants indicated that they would submit to such orders as the Court might make.[2]

"1. An order in the nature of certiorari quashing the opinion of the medical panel ... .

2. An order in the nature of mandamus remitting the medical questions ... to a differently constituted panel to be reconsidered in accordance with law."

8 For the reasons given below, the opinion of the Medical Panel must be quashed.

9 The Medical Panel was provided with a number of documents for its consideration. These documents are listed in a document headed "Enclosure A".

10 The Panel took a history from the plaintiff, in which she described the onset of her alleged injury. The history included:

"The worker told the Panel that after arriving in Australia from Albania in 2002, she commenced work at a meatworks in August, 2004, and that she worked full-time.

She described her duties in detail to the Panel and said that, for the first 8.5 months of her employment, she was assigned to fill up 300-400 boxes per day with small pieces of meat in plastic bags. She indicated that she managed these duties without problems and told the Panel that, when she commenced employment at the meatworks, she was in good physical health and had no back pains or any other medical problems.

The worker told the Panel that, after performing these duties for 8.5 months, she was reassigned to a different set of work tasks and that she had to fill boxes with cuts of meat weighing up to 10kg. She said that a full box could weigh between 10 and 37kg and that, when the box was full, she had to push the box along a line. She indicated that she considered the work to be heavy and repetitive, and that she would sometimes have to lift up to 30 of the heavy boxes per day without assistance.

The worker said that from about August 2005 she became aware of back pain and left leg pain during and following her shifts and that she asked her supervisors to assign her to lighter duties.

She told the Panel that on 5 October, 2005, the back pain extended into both legs. She said her legs felt stiff and that she could not climb the stairs at work.

She said that on 10 October, 2005, her pain became so severe that she was unable to continue working. She said that she has not worked since then ('the incident').

...

The worker told the Panel that, despite ceasing work, her back pain and left leg symptoms have remained severe. On a visual analogue scale, the worker indicated that on or about the date of the incident, the pain she experienced rated 10 out of 10. She said that after a couple of months of 'medication' and ceasing work, her pain slightly eased to 8 out of ten and has remained at that level to date.

...

The worker described to the Panel the symptoms that she experiences at present. She described constant severe back and left leg pain, which limits her walking to 200m. She described decreased sitting tolerance, and said she is unable to use public transport and shops for a couple of small items weighing less than 2kg at a shop very close to her home. She said that she has never driven a car."

11 It is not immediately apparent why the Panel defined the expression "the incident" in its reasons. The claim was one relating to the onset of back pain from approximately August 2005 to a point on 10 October 2005 when the plaintiff said that she was unable to continue working. Further, in the employer's claim form (which was part of the material provided to the Panel, and referred to in enclosure A), the employer stated that the date and time of injury was "not specified", and that the plaintiff "cease[d] to work as a result of the injury/condition" on 17 October 2005. Perhaps the Panel were led into the notion of an "incident" by the terms of the referral to it. However, this is a matter about which one can only speculate.

12 The Panel conducted both a physical examination and a psychiatric examination. Discrepancies were observed in the plaintiff's range of movements between when the plaintiff was sitting at 90 degrees of hip flexion and on range of motion testing. In its reasons, the Panel said that it "considered that the worker [plaintiff] demonstrated stigmata of considerable abnormal illness behaviour".

13 The reasons of the Panel then went on as follows:

CT scan of the lumbosacral spine dated 29 May, 2005 (prior to the incident) showing degenerative disc bulging at L4-5;
CT scan of the lumbosacral spine dated 29 November, 2005 (after the incident) showing degenerative disc bulging at L4-5 with small prolapse contributing to a degree of lateral recess stenosis on the left at this level and a small degree of canal stenosis bilaterally;
CT scan of the lumbosacral spine dated 21 May, 2007 showing persistent L4-5 disc bulge with resolution of disc prolapse from that of 29 November, 2005.

On the basis of the history, the examination by the Panel, the radiological findings and the supporting documentation provided with the referral, the Panel concluded that the worker is suffering from constitutional degenerative lumbosacral disc disease, but that this is not relevant to any claimed back injury said to have occurred on 10 October, 2005.

The Panel is of the opinion, following review of radiology and reports that the L4-5 disc prolapse which occurred on or about the time of the claimed back injury has now resolved.

The Panel undertook a mental state examination. The worker had a calm manner, there was exaggerative pain and other illness behaviour which dominated her presentation and limited any capacity for rapport. She avoided eye contact and was evasive and prevaricating in her responses. There was no disorder of thought form, possession or content. Her affect was euthymic, full in range and normally reactive after an initial phase of apparent resignation and incongruity. Perception, cognition and judgment were unimpaired.

The Panel noted that the worker demonstrated considerable illness behaviour which the Panel considered to be elaboration and/or exaggeration. The Panel gave consideration to a diagnosis of chronic pain disorder with psychological factors. The Panel concluded however, that, on balance, there was little evidence of the worker having any actual mental symptoms, disability, or condition, and this is supported by her readiness to discontinue all treatment since cessation of payments in late 2009. The Panel considered there is insufficient evidence from the worker's history, including treatment history, of any actual mental symptoms, disability or condition.

The Panel therefore concluded that the worker is not suffering from any psychiatric or psychological condition relevant to the claimed injury. The Panel noted from the referral material that the independent medical examiner, Dr Mendelson, reached the same conclusion in his report dated 14 December, 2007.

The Panel noted several reports by Independent Medical Examiner, Dr Mutton, and in particular his report dated 16 January, 2009, in which he opined that the worker has 'some capacity with limitations' and 'more capacity than she admits to'.

As the Panel considered that the worker is not suffering from any medical condition relevant to the claimed injury, the Panel concluded that any alleged incapacity for work is not relevant to the claimed injury. The Panel therefore concluded that the worker does not have a present inability arising from an injury to return to her pre-injury duties."

14 In her originating motion, the plaintiff made three broad complaints:

(a) first, that the Panel fell into jurisdictional error by taking into account irrelevant considerations;

(b) secondly, that the Panel fell into jurisdictional error by failing to take into account considerations it was bound in law to have regard to; and

However, in her written reply submissions,[3] the plaintiff abandoned the ground alleging inadequacy of reasons.[4]

15 As stated in her originating motion, the irrelevant considerations the plaintiff alleged the Panel took into account were:

"• a CT scan dated 29 May 2005 that was not listed in the schedule of attachments and was not referred to in any of the medical reports accompanying the referral

• that it considered that the CT scan referred to above showed that the plaintiff was suffering from back pain prior to first consulting her GP, Dr Wegrzynowski, regarding work-related back pain, on 24 September 2005;
• CT scans dated 29 November 2005 and 21 May 2007 that were not listed in the schedule of attachments and were not referred to in any of the medical reports accompanying the referral."

16 The relevant considerations which were not taken into account were said, by the plaintiff, to be:

"• the fact that the plaintiff first attended her GP, Dr Wegrzynowski, regarding work-related back pain, on 24 September 2005;

• the fact that the first radiological investigation came after the attendance referred to above, namely a CT scan done on 29 September 2005;
• the MRI scans dated 30 November 2005 and 22 May 2007 listed in the schedule of attachments;
• the report of the MRI dated 22 May 2007 that stated that there was 'no significant change when compared to the previous study';
• the opinion of the treating neurosurgeon, Mr Tiew Han, expressed in his report dated 26 October 2009, that the plaintiff 'has a prolapsed disc at L4/5 resulting in a moderate degree of stenosis and compression onto the L5 nerve roots';
• the opinion of Dr Mutton, who examined the plaintiff at the request of the fifth and sixth defendants,[5] who expressed an opinion, in his report dated 16 January 200, that the 'most recent MRI identifies broad based disc herniation at L4-5 with bilateral recess stenosis with pressure on both L5 nerve roots'."

17 The relevant principles in applications of this kind have been stated and summarised on a number of occasions.[6] It is convenient to restate them here:

(a) First, it is not enough for a plaintiff to show that the medical panel's reasons for its decision are so expressed as to suggest the possibility that the panel proceeded upon a wrong view of the law. The Court is not entitled to interfere with the decision unless it is satisfied that there was in fact a vitiating error of law.

(b) Secondly, a medical panel's reasons should enable a Court and the parties to understand that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on the appropriate application of the panel members' medical knowledge and expertise.

(c) Thirdly, the medical panel is an expert tribunal, whose members are chosen for their experience and its findings need to be viewed in that light.

(d) Fourthly, a medical panel's reasons are those of a tribunal, not that of a judicial body, and must be viewed from that perspective.

(e) Fifthly, the reasons of a medical panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.

(f) Sixthly, the reasons of a medical panel are meant to inform, and over-zealous judicial review is to be eschewed.

(g) Seventhly, the reasons of the medical panel do not need to advert in detail to those matters it has taken into account.

(h) Eighthly, the reasons should give sufficient explanation so as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.

(i) Ninthly, although the medical panel's task is to determine questions of a medical nature, it does not follow that it cannot, or should not, provide the reasons for its determination. Even the most simple of medical questions determined by the panel will nonetheless be based on a process of reasoning and hence enable it to provide reasons.[7] As was said by Callaway JA in Masters v McCubbery:[8]

"There is nothing in the nature even of the simplest medical question that is incompatible with the furnishing of reasons. For example one doctor could sensibly ask another the 'reasons' for his or her diagnosis of a patient's illness."

18 Of the above propositions, the first, third, sixth and seventh are most relevant in the present case.

The reference in the reasons to a CT scan dated 29 May 2005

19 The plaintiff contends that the Medical Panel fell into jurisdictional error when it took into account a CT scan allegedly dated 29 May 2005. The plaintiff submits that, in doing so, the Panel referred to material which was not listed in the schedule of material referred to the Panel, and which was not referred to in any of the medical reports accompanying the referral.

20 The fifth defendant's answer to this contention is that the Panel mis-recorded the date of the CT scan of 29 September 2005 as 29 May 2005. The fifth defendant points out that there was no CT scan dated 29 May 2005, and submits that "It is hardly to be inferred that the Panel invented a non-existent CT scan". In elaboration of its submissions, the fifth defendant contends:

"The natural inference is that the Panel was referring to one of the CT scans sent to it with the referral, but misstated the date of the scan. Second, the Panel referred to the scan as having been undertaken 'prior to the [10 October 2005] incident', and the 29 September 2005 scan (which the plaintiff's submissions identify as 'the first radiology' which came after the plaintiff's attendance on Dr Wegrzynowski on 24 September 2005 and is discussed in that doctor's report dated 24 December 2009) is the only scan performed on the plaintiff which could meet that description. It is to be inferred, we contend, that the plaintiff brought that CT scan with her when she was examined by the Medical Panel, and that [the] Panel had access to the scan by that means. Third, it is [a] plausible inference that a scan date recorded by the Panel (particularly if in handwritten notes) as '29/9/05' might be later misread as '29/5/05'."[9]

21 It is then submitted on behalf of the fifth defendant that a minor misstating of the date in the Panel's reasons is not jurisdictional error. I should say at the outset that if I was satisfied that there was a mere minor misstatement of the date (to use the fifth defendant's words), then I would accept the submission that this did not amount to jurisdictional error. However, in my view the Panel's reasons do not disclose any mere misstatement (minor or otherwise) of the date of the relevant CT scan.

22 Central to the Panel's conclusion that the plaintiff is not suffering from any physical medical condition relevant to the claimed back injury is the chronology set out in the Panel's reasons (extracted above). The Panel answered the medical questions on the basis that the plaintiff had a claimed back injury "said to have occurred on 10 October 2005". This is not consistent with the history given by the plaintiff to the Panel; nor is it consistent with the claim forms and other documents referred to in enclosure A.[10] The evidence disclosed that the plaintiff became aware of back pain and left leg pain in about August 2005; she continued to work; on 5 October 2005, the back pain extended into both legs; and on 10 October 2005, the pain became so severe that she was unable to continue working.

23 The tenor of the Panel's reasons was that there was a CT scan before the plaintiff claimed to suffer injury in the course of her employment (29 May 2005) which showed the existence of a back injury (and presumably which was taken because of some complaint or symptom the plaintiff had at that time). Thus, it was easy for the panel to reason that whatever was shown on radiology before and after 10 October 2005 was "constitutional degenerative lumbosacral disc disease ... not relevant to any claimed back injury said to have occurred on 10 October 2005".

24 The fifth defendant attempted to answer the difficulties created by the reference to a 29 May 2005 CT scan by saying that if one assumed this was a misstatement of the date 29 September 2005, then the same chronology pertained. The fallacy in this argument was that the plaintiff's claim has never been one in respect of an incident said to have occurred on 10 October 2005. Rather, the plaintiff's claim is in respect of an injury that occurred gradually over a period of time. Further, the plaintiff's claim is in respect of an injury which first manifested itself before the first radiological report (whether dated 29 May 2005 or 29 September 2005) - not after that report.

25 In her written reply submissions,[11] the plaintiff contended that there was not simply a choice between the fifth defendant's typographical error contention and that the Medical Panel invented a non-existent CT scan.[12] It was submitted that it was equally possible that the Medical Panel confused the CT scan of the plaintiff with that of another worker who in fact had a CT scan dated 29 May 2005. Other possibilities abound. For example, it is just as likely that the label on the CT scan was wrong or was misread as 29 May 2005. At the commencement of the hearing,[13] the plaintiff admitted that there was no CT scan taken in May 2005 and that the first CT scan referred to in the Panel's reasons was likely to be the CT scan dated 29 September 2005. Whatever the position, the result has been that the Panel proceeded on the basis that there was a significant radiological abnormality prior to any claimed work-related injury (and implicitly, that there had been some symptom or basis for a CT scan being taken of the plaintiff's back before any work-related back injury was said to have occurred or first manifested itself).

26 Whichever hypothesis one favours, the result is that the Panel proceeded by taking into account an unfounded and irrelevant assertion that the plaintiff had a radiologically demonstrable back injury before commencing to suffer from her alleged work-related back injury. The evidence disclosed that the plaintiff became aware of work-related back pain in approximately August 2005; she went to her GP (Dr Wegrzynowski) on 24 September 2005; and the first CT scan was taken on 29 September 2005. This was the evidence the Panel was required to take into account when answering the medical questions - not some erroneous set of circumstances involving the taking of a CT scan demonstrating back pathology prior to any claimed work-related injury, and of the subsequent alleged suffering of a work-related injury which when examined disclosed the same (or like) pathology as that disclosed on the so-called "prior to the incident" CT scan. During the course of argument, Mr Fleming conceded the force of this argument. This concession was properly made.[14]

27 It follows that the Panel fell into jurisdictional error when it took into account this irrelevant consideration. Accordingly, the Panel's opinion must be quashed.

28 Having regard to the conclusion I have just expressed, it is not necessary for me to deal in any detail with the plaintiff's other complaints. However, I should say that there is nothing in the complaint that the Panel took into account irrelevant considerations when it referred to CT scans dated 29 November 2005 and 21 May 2007, and nothing in the complaint that the Panel failed to take into account relevant considerations when it failed to refer to the MRI scans of 30 November 2005 and 22 May 2007. The true position is that there were MRI scans taken on 29 November 2005 and 21 May 2007, which were reported on on 30 November 2005 and 22 May 2007. It is clear that in referring to CT scans of 29 November 2005 and 21 May 2007 in their reasons, the Panel was in fact referring to MRI scans taken on those days and reported (in each case) on the following day.

29 Similarly, the mere fact that the Panel did not expressly record the opinion of the treating neurosurgeon, Mr Tiew Han, or part of the opinion of Dr Mutton, does not mean that the Panel failed to take into account matters it was bound to have regard to.[15]

30 For the reasons given above, the opinion of the medical Panel must be quashed. The plaintiff seeks an order that the medical questions be remitted to a differently constituted panel. The question of remittal to the same Panel or a differently constituted panel has been the subject of some discussion in the authorities.[16] For the reasons discussed in those authorities, I am of the view that the medical questions should be remitted to a differently constituted panel.

31 I will hear the parties on the precise form of order and the question of costs.

[2] Cf R v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13, 35.

[4] This ground was said to be abandoned "in light of the decision of the Court of Appeal in Sherlock v Lloyd & Ors [2010] VSCA 122.

[5] The sixth defendant was removed as a defendant to this proceeding by order of Zammit AsJ made 24 May 2010.

[6] See in particular the judgment of Forrest J in Dixon v Hacker [2007] VSC 342 at paragraphs [40] - [44]. See also Davidson v Fish [2008] VSC 32; Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36; Bluescope v Nisselle & Ors [2008] VSC 72; and Robert Bosch (Australia) Pty Ltd v Barton [2008] VSC 227. See further Portland Properties Pty Ltd v MMBW (1971) 38 LGRA 6 at 18, Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488 at paragraph [9]; Treacy v Newlands & Ors [2008] VSC 395 and Nicholls v Corlett & Ors [2010] VSC 115.

[7] See Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 at 661 per Callaway JA.

[9] See paragraph 8 of the fifth defendant's outline of submissions dated 3 August 2010.

[12] Cf paragraph [8] of the fifth defendant's outline of submissions dated 3 August 2010.

[13] And in response to a notice to produce.

[14] The concession was made after debate and after the matter was stood down to enable Mr Fleming to obtain instructions from his client.

[15] Cf McIver v Barton and ors [2010] VSC 22, [49] - [51] (J Forrest J).

[16] See generally Body Corporate Strata Plan (No. 4166) and ors v Stirling Properties Limited [1984] VicRp 73; [1984] VR 903, 912; Clarke v National Mutual Life Insurance Limited [2007] VSC 341, [70] and Tracey v Newlands and ors [2008] VSC 395, [30] - [31].

Compensation Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)