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[2014] VSC 452
Supreme Court of Victoria
2014-09-16
MACAULAY J
Original judgment source is linked above.
ADMINISTRATIVE LAW judicial review Accident Compensation Act 1985 (Vic) Pt III Div 3 opinion of medical panel whether worker's employment a significant contributory factor to injury whether jurisdictional error whether panel failed to take into account considerations it was bound to take into account whether panel relied on considerations it was bound to ignore whether panel failed to accord procedural fairness whether panel failed to give proper and adequate reasons for decision standard of reasons required Wingfoot Australia v Kocak [2013] HCA 43; (2013) 303 ALR 64.
**1 On 13 May 2013 a medical panel comprising the first to seventh defendants (the panel) convened under Part III Division 3 of the Accident Compensation Act 1985 (Vic) (the Act) gave a certificate of opinion pursuant to s 68(2) of the Act in response to a number of medical questions referred to it by a magistrate. In substance, the panel was of the view that a particular worker's employment with the Maribyrnong City Council (the Council) was a significant contributing factor to that worker developing a carpal tunnel injury to her right wrist and a secondary depressive illness.
2 In this proceeding the Council seeks a remedy in the nature of certiorari to quash the certified opinion and an order remitting the medical questions to a differently constituted panel to be reconsidered in accordance with law. There are four grounds for the review:**
(1) the panel fell into jurisdictional error by failing to take into account considerations it was bound to have regard to;
(2) the panel fell into jurisdictional error by relying on considerations it was bound to ignore;
(3) the panel failed to accord the Council procedural fairness; and
(4) the panel erred in law in failing to give proper and adequate reasons for its opinion on the referred medical questions.
3 All of the grounds express in different ways the Council's fundamental complaint that the panel did not properly evaluate or take into account information and submissions concerning:
**4 The Council is the plaintiff in this proceeding. The worker, Ms Reyna Bonilla, is the eighth defendant. Ms Bonilla took the active role in opposing the Council's application. As is customary in such proceedings, the panel, through their solicitors, notified the Court that they would submit to such orders as the Court might make.[1]
5 Upon the referral to the panel under s 45(1)(b) of the Act, the magistrate submitted a body of documents relating to the medical questions as listed in a schedule to the referral. Among other things, those documents contained an agreed statement of facts.[2] It is convenient to repeat those facts here (Ms Bonilla being referred to as 'the plaintiff' in this extract and in other panel documents):**
1. The Plaintiff was born on 19 November, 1969.
6 Ten specific questions were referred to the panel for its opinion. I will set out the first three questions and the answers given by the panel to them.
Question 1. What is the nature of the Plaintiff's medical condition(s) relevant to any of the Plaintiff's alleged injuries to her hands, wrists, right arm, right shoulder, stomach and anxiety and depression?
Answer: In the panel's opinion the Plaintiff is suffering from a right median neuropathy at the level of the right wrist surgically treated, gastritis, and chronic Major Depressive Episode with Anxiety relevant to the alleged injuries to her "hands, wrists, right arm, right shoulder, stomach and anxiety and depression".
In the panel's opinion the Plaintiff is also suffering from mild right shoulder rotator cuff tendinopathy but this condition is not relevant to any claimed injury.
In the panel's opinion the Plaintiff is not suffering from any medical condition of the hands, right arm or left wrist.
Question 2. Was the plaintiff's employment with the defendant, in fact, or could possibly have been, a significant contributing factor to any and, if so, which of the alleged injuries referred to in question 1?
Answer In the panel's opinion the Plaintiff's employment with the Defendant could possibly have been and was in fact a significant contributing factor to the right median neuropathy at the level of the right wrist surgically treated, gastritis, and chronic Major Depressive Episode with Anxiety, but was not in fact and could not possibly have been a significant contributing factor to any alleged injury to her hands, left wrist, right arm, and right shoulder, or to any alleged aggravation, deterioration, exacerbation or acceleration of any underlying or pre-existing condition of the hands, left wrist, right arm or right shoulder.
Question 3. What is the extent to which any physical or mental condition of the plaintiff:
(a) Resulted from or was materially contributed to by:
(b) Results from or is materially contributed to by:
(c) Any and, if so, which of the alleged injuries referred to in question 1?
In the panel's opinion the Plaintiff's conditions of right median neuropathy at the level of the right wrist surgically treated, gastritis, and chronic Major Depressive Episode with Anxiety, resulted from (and result from) and were (and are) materially contributed to by the alleged injuries to the wrist (right), stomach and anxiety and depression, but the mild right shoulder rotator cuff tendinopathy did not (and does not) result from and was not (and is not) materially contributed to by any alleged injury.
7 The panel's answers to the remaining questions contain the panel's opinion that Ms Bonilla was incapacitated from work from 31 July 2010 until and including the date of its opinion on 13 May 2013. Further, the panel opined that her incapacity resulted from or was materially contributed to by the anxiety and depression consequential to her right wrist condition.
**8 Ms Bonilla was born in San Salvatore in 1969 and came to Australia with her husband in 1992. With her husband she has had five children. Until December 2006, when she first commenced work, she had remained at home caring for her family.
9 Since at least 1996 Ms Bonilla had been a patient of the Sunshine City Medical Centre in Ballarat Road, Sunshine. Her long-standing general practitioner was Dr Luz Conejera. The records of the medical centre formed part of the materials referred to the panel.
10 Mention is made in those medical records of a number of medical conditions for which she sought advice and treatment, some of which are relevant to the issues in this case and some of which are not. Among those that are arguably relevant are the following:**
(a) May 1996 - two separate attendances reporting pain in the left hand;
(b) 15 November 1997 - an attendance with reference to putting on weight, feeling tired and 'feels depressed';
(c) 11 August 2000 - a reference to pain in the left wrist with a notation 'carpal tunnel ... for nerve conduction studies';
(d) 29 April 2004 - a notation of 'depression ... post natal';
(e) 5 October 2005 - a record in a patient history given to the Western Hospital Women's Services, under the heading 'Relevant Past History', to carpal tunnel syndrome (right) and depression, both in 2004; and
(f) 10 April 2006 - a notation of 'carpal tunnel' in the outpatient progress notes for Western Health Obstetrics and Gynaecology Clinic under a heading 'PH' (past history).
**11 Within a relatively short time after Ms Bonilla commenced work on or about 21 December 2006, she complained to Dr Conejera, of symptoms of pain in both wrists. That complaint was recorded on 22 January 2007. An EMG carried out on 2 March 2007 was apparently reported to reveal 'right carpal tunnel syndrome'. With some treatment, including a series of cortisone injections, Ms Bonilla kept working in her task as a Home Care Worker through until 31 August 2010. At that time, because of reported continuing symptoms of right wrist pain and there being no available light duties, she ceased work.
12 In addition to the 3 references relevant to Ms Bonilla's reported condition of depression before she commenced work set out above, medical records made after she commenced work included the following:**
(a) 18 February 2009 - a reference on a discharge summary from Sunshine Hospital, after an admission for severe migraine and occipital headaches, to reported complaints of psychological tensions at home;
(b) 18 April 2009 - a record of an apparent diagnosis by Dr Conejera of 'depression, anxiety' and an associated reference to Ms Bonilla's husband being a depressive who tried to commit suicide last year, being an alcoholic and making Ms Bonilla the 'culprit of anything';
(c) 11 August 2009 - a Sunshine City Medical Centre pro forma questionnaire recording instructions that Ms Bonilla had 'feelings of depression all of the time';
(d) 26 July 2010 - referral of Dr Conejera to a psychologist for 'treatment of major depression' with an associated assessment of 'major depression ... worse after recent suicide attempt of husband';
(e) 13 January 2011, the report of psychologist, Ms Valenzuela, to Dr Conejera following the referral of 26 July 2010, reporting 'major depression relating to family breakdowns'; and
(f) 17 November 2011 - report of Dr Conejera to Ms Bonilla's solicitors recording her injuries as including 'right carpal tunnel, secondary depression (she is disappointed of the long delay for this operation)'.
**13 The panel comprised seven medical practitioners: a gastroenterologist, two psychiatrists, a general practitioner, two orthopaedic surgeons and a plastic surgeon. Its reasons for the opinions it gave, in answer to the specific questions referred to it, were given in writing dated 13 May 2013 and signed by the presiding member, Dr John Malios (reasons).
14 In its reasons, the panel stated that it formed its opinion by having regard to the documents and information referred to in Enclosure A, together with the history provided by the Ms Bonilla and findings elicited by the panel at examinations conducted on four separate occasions. Enclosure A listed forty documents (running to over 300 pages) comprising the material the panel referred to. It also contained a written acknowledgment, signed by Dr Malios on 13 May 2013, that the panel had received the medical and other materials listed and confirmed 'that the panel took this information into consideration in forming the opinion'.**
15 After setting out the agreed facts (above [5]), the panel recorded the history of injuries as given to the panel by Ms Bonilla. Concerning the right wrist injury, the panel stated as follows:
The Plaintiff said that following commencement of her employment in December 2006, she experienced the onset of right wrist and hand symptoms which she said she thought had started in approximately February/March 2007. She said that initially she suffered pain which she described as being in the volar and dorsal aspects of the right wrist when using the right hand and wrist at work. She said that shortly after the commencement of the right wrist symptoms, she also suffered numbness and tingling, which she specifically described as in the volar aspect of the right hand and the distal dorsal aspects of the right thumb, the index, the middle and the ring fingers, but not involving the little finger. She said that the sensory symptoms initially began shortly after the wrist pain symptoms, while she was using her right wrist and hand at work.
The Plaintiff said that by mid-2007, the symptoms had progressed and were present at work and when she was home and were occurring both day and night and disturbed her sleep. She said that over the weekend when away from the work there was some decrease of the symptoms. She said that up to mid-2007, when she would arrive at work in the morning, there would be some soreness around the right wrist, but by the time she reached the second house involved in her work duties, at approximately 10:30 to 11:00 am, the symptoms in the right wrist and hand would have become more severe, with more pain and with the development of the sensory symptoms.
The Plaintiff confirmed to the panel that she had undergone investigation with nerve conduction studies of the bilateral forearms, wrists and hands, on 2 March 2007, and the panel noted that the studies were reported as showing 'electrophysiological evidence of right carpal tunnel syndrome'.
The panel assessed the nerve conduction study report and noted that the results of the studies did not indicate compromise of the left median nerve conduction function.
The Plaintiff said that one of her local medical practitioners initially treated the right side 'carpal tunnel syndrome' with a cortisone injection, after mid-2007, which she said provided total relief of the symptoms for five to six months towards the end of 2007. She said that she continued working, however the symptoms returned and so she attended the local medical practitioner where she had a further cortisone injection into the right wrist/carpal tunnel region. She said that again the symptoms resolved.
She told the panel that she had a total of three to four injections spaced approximately six months apart. She said that in early 2010 the local medical practitioner recommended that there should be no further injections, and that she should undergo a right carpal tunnel operation.
On specific questioning by the panel concerning the left wrist and hand, the Plaintiff said that she had some pain around the left wrist and the dorsum of the left hand in 2007 when doing vacuuming and the like, but there was no left hand, thumb or finger 'numbness'. She said that after approximately seven months, the left side 'did not hurt any more'.
The Plaintiff told the panel that in July 2010 the symptoms in her right hand and right arm worsened and she ceased work. She said that at that time she was also experiencing pain spreading up her right arm to her right shoulder.
The Plaintiff said that she was referred to a plastic surgeon in possibly 2010 who recommended that she should have a right carpal tunnel operation. The Plaintiff told the panel that following the rejection of the claim by the Authorised Insurer she was referred to a public hospital and in April 2010 she underwent a right carpal tunnel operation.
The panel noted that the Plaintiff had undergone a right carpal tunnel decompression operation on 17 April 2012, through Western Health. The Plaintiff said that the numbness and pain in the right thumb and fingers has resolved subsequent to the operation, but she still has some pain around the right wrist, both with movement and at rest.
The Plaintiff told the panel that there has been no specific traumatic injury episode to the right or the left forearms, wrists or hands, during the employment period from December 2006 to when she ceased work in July 2010.
16 After summarising Ms Bonilla's account of her specific work duties, current symptoms and current medications, the panel turned to the medical records relevant to Ms Bonilla's right wrist injury (and her depressive condition). Notably, the panel stated it had 'reviewed the copies of the medical records of the Plaintiff's general practitioner, and medical reports'. And, after making specific reference to parts of Dr Conejera's report of 17 November 2011, and clinical notes of 22 January 2007 and 3 June 2011, the panel continued:
The panel also noted a handwritten medical consultation dated 11 August 2000 that noted that there was pain in the left wrist to left arm, and carpal tunnel syndrome. Dr Luz also noted "for nerve conduction studies".[3]
17 The panel also recorded the outcome of its physical examinations of Ms Bonilla, then concluded, relevantly to question 1 of the referred medical questions:
... that the Plaintiff has suffered from right compression median neuropathy (carpal tunnel syndrome), at the level of right wrist, which was confirmed by nerve conduction study investigation and by clinical history, and which was initially treated with cortisone injections and subsequently by open carpal tunnel decompression.
18 Relevantly to its opinion on question 2 of the referred medical questions, it said that it:
... considered the Plaintiff's history surrounding the performance of her work duties involved the right wrist and the dominant right hand, the onset of symptoms occurring initially only at work, with subsequent exacerbation and acceleration of symptoms initially at work and subsequently also occurring away from work. The panel considered the recurrent nature of the work activities and loads applied to the wrist and hand. The panel considered the onset, the timing, the progress of the symptoms of the right median neuropathy/carpal tunnel syndrome, the results of the nerve conduction studies, the examination assessments by the local practitioner and treating surgeon, and the results of the surgical carpal tunnel release in April 2012.
**19 The panel made specific mention of having had regard to the reports of Dr Karna, Mr Stapleton and Dr Wood, all of whom had examined Ms Bonilla on behalf of the insurer, noting that each had opined that Ms Bonilla's employment duties had not significantly contributed to her carpal tunnel syndrome condition. Each of those doctors had identified factors such as obesity, hypothyroidism and 'constitutional' features as more cogent causal or risk factors for the onset of injury.
20 Nevertheless, after adding a reference to epidemiological considerations to the matters it had already taken into account, the panel concluded:**
Having regard to all of the aforementioned factors, the panel concluded that the Plaintiff's employment did affect the right wrist and was in fact a significant contributing factor to the development of and to the exacerbation and acceleration of the Plaintiff's right median neuropathy condition.
**21 In respect of Ms Bonilla's claimed depressive condition, the panel briefly outlined the history it obtained from her relevant to that condition, including a short history of her early family life and migration to Australia. It stated its findings of its own psychiatric examination of Ms Bonilla, including a mental state examination. The panel described in some detail the history she gave of her symptoms, their onset, the treatment she had received and the progress of her symptoms over time, summarising the history as to the onset of her symptoms in these terms: 'following the onset of her right hand and wrist symptoms in early 2007 she became depressed and anxious, and was worried about coping with her work'. It was the panel's opinion that Ms Bonilla suffered from 'a chronic Major Depressive Episode with Anxiety.'
22 Having separately considered the development of Ms Bonilla's claimed injury of gastritis, the panel linked the development of her gastritis and depression with her employment via their causal connection with her right wrist carpal tunnel syndrome:**
The panel considered the Plaintiff's development of gastritis and a chronic major depressive episode with anxiety occurred as a consequence of her right compression median neuropathy (carpal tunnel syndrome). The panel therefore concluded that the Plaintiff's employment with the defendant was in fact a significant contributing factor to the Plaintiff's gastritis and chronic major depressive episode with anxiety.
23 Importantly for the purposes of this case, the panel stated:
The panel also had regard to the submissions made on behalf of the plaintiff and the defendant.[4]
24 The Council submitted that the panel failed to say anything in its reasons about:
25 It submitted that these failures meant that the panel:
(a) failed to take into account the relevant facts listed in the preceding paragraph, all of which were contained in the medical material;
(b) took into account irrelevant considerations, namely Ms Bonilla's inaccurate assertions of a postwork onset of her conditions given that the medical evidence shows that her statements were wrong;
(c) failed to accord the Council procedural fairness because it appeared the panel did not consider the Council's written submissions which specifically drew attention to Ms Bonilla's pre-work history of the conditions she claimed; and
(d) did not disclose, in its reasons, a path of reasoning because it neither engaged with the contradictory material nor showed how it reached its findings despite that contradictory material.
**26 Ms Bonilla rejected the proposition that the panel failed to take into account her pre-work medical records or the Council's submissions upon them. She submitted that a careful reading of the panel's opinion demonstrates that it did. Further, she rejected the proposition that the panel wrongfully took into account her statements concerning when she commenced to experience symptoms. She argued that the panel was bound to take into account what she told them about her history.
27 Ms Bonilla argued that the Council's essential complaint arose from it falsely attributing too much significance to minor pre-work, episodes of wrist pain and psychological symptoms. Having done so, the Council then incorrectly reasoned that the panel's failure to mention those minor pre-work symptoms necessarily meant that the panel had failed to take them into account or consider them. On her submission, the panel considered all relevant matters but it was not bound to explain away matters it likely regarded as unimportant. In substance, Ms Bonilla contended, the Council's argument amounted to a merits review in the guise of a judicial review.
28 With respect to the alleged inadequacy of reasons, Ms Bonilla argued that the Council's submissions on that issue proceeded from a misconception of the panel's task, particularly having regard to recent exposition of the law by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[5].
29 It is true that an examination of the panel's reasons reveals that it did not make explicit reference to all, if any, of the matters that the Council says it should expressly have dealt with. So, it may be seen from this summary of arguments, that the issues in this case turn upon the significance or otherwise of it not doing so. That is:**
Did the panel fail to take into account considerations it was bound to have regard to?
30 In its originating motion, the Council particularised the matters the panel allegedly failed to take into account as follows:
(a) the worker gave the Panel a history '... that following commencement of her employment in December 2006, she experienced the onset of right wrist and hand symptoms which she said she thought had started in approximately February/March 2007' (p.6); and
(b) in determining whether 'the [worker's] employment affected the right wrist and was in fact a significant contributing factor to the development and to the exacerbation and acceleration of the plaintiff's right median neuropathy condition', the Panel considered and took into account ;... ' the chronological clinical history of the [worker's] nature and onset of symptoms' and 'the clinical examination findings from 2007 onwards': p.13;
notwithstanding, that medical records provided to the Panel which:-
(c) showed that the worker complained of pain in her left hand in May 1996; showed reported pain in her left wrist and left arm which was attributed to carpal tunnel syndrome in August 2000; showed a history given to Western Health on an outpatient referral form dated 5/10/05 including, inter alia, right carpal tunnel syndrome, hypothyroidism, obesity and depression; and showed the presence of carpal tunnel syndrome, hypothyroidism and hypertension on a Western Health outpatient progress note dated 10/4/06 (hereafter 'the pre-employment right wrist and hand symptoms'):
and notwithstanding the plaintiffs' written submissions dated 22 January 2013 provided to the Panel which:-
(d) had noted the pre-employment right wrist and hand symptoms referred to in the medical records, and
(e) submitted, based thereupon, that the worker had experienced symptoms of left and right carpal tunnel syndrome prior to commencement of employment with the first plaintiff.
In the premises, the Medical Panel Reasons reveal that the Panel failed to have take into account considerations it was bound to have regard to, namely:-
(a) the medical records provided to the Panel containing the pre-employment right hand and wrist symptoms, and
(b) the plaintiffs' written submissions dated 22 January 2013.
**31 It is not disputed that a medical panel, like an administrative tribunal, falls into an error of law if it ignores relevant material or relies on irrelevant material such that its exercise or purported exercise of power is thereby affected. If it does commit that error and its exercise of power is thereby affected, it exceeds its authority or powers and commits jurisdictional error.[6]
32 It is enough that, but for the error, the decision might have been different. As Mason CJ said in Australian Broadcasting Tribunal v Bond[7]**
A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been different, or might have been, different.
33 In Minister for Aboriginal Affairs v Peko-Wallsend[8], the High Court explained the obligation of a statutory tribunal to take into account relevant considerations. Drawing upon the High Court's analysis, in Moyston Court Fisheries Limited v Malios & Ors[9], Forrest J summarised the matters which must be established in a challenge to the decision of an administrative decision-maker in which it is asserted that the decision-maker has failed to take into account a relevant consideration. They are:
(a) The relevant consideration must be one "which he is bound to take into account in making that decision".
(b) The factors which must be taken into account can only be determined by reference to the relevant statute.
"If the relevant factors - and in this context I use this expression to refer to factors which the decision-maker is bound to consider - are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the Act. ..."
(c) A failure to take into account a particular consideration will not necessarily result in a setting aside of the decision.
"A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. ..."
(d) The Court's role is to review the exercise of the discretion - if it is made appropriately within the discretion it cannot be assailed.
"The limited role of a court reviewing the exercise of an administrative function must constantly be borne in mind".[10]
34 Significantly, in Peko-Wallsend, the High Court had expanded on the 'limited role' of the reviewing court (referred to in the quoted passage in paragraph (d)) in the following terms:
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ...[11]
35 Turning more specifically to what a medical panel was required to take into account, Forrest J enumerated the following:
(a) Its own examination of the worker (including any history provided and evidence as to any investigations, tests, studies or the like) and its opinion.
(b) The document required under s 65(6A) of the Act identifying the alleged injury and the agreed facts and disputed facts.
(c) The "material" provided by the referring body or person, including the documents relating to the medical question as provided: s 65(6B).
(c) The medical question or questions asked.[12]
**36 The Council argued that the panel failed to take into account the medical records recording Ms Bonilla's pre-employment right hand and wrist symptoms, her pre and post-employment depression, and the Council's written submission dated 22 January 2013. It was not in dispute that the medical records and the submissions were provided to the panel. Nor was it disputed that the panel was obliged to take them into account. Both were contained in the body of documents referred to the panel by the magistrate.[13]
37 The Council alleged that the panel made no reference at all in its reasons to the employer's submissions, let alone to the substance of those submissions. Such an omission, the Council argued, was a strong indication the panel had failed to intellectually engage with or evaluate those submissions. Further, it argued that the mere statement by the presiding officer that the panel had taken into consideration the documents listed in Enclosure A when forming its opinion was not determinative of the question whether particular information within those documents had in fact been taken into account. That is, it argued that the requirement of proper consideration is not satisfied by mere 'formalistic reference'.[14]
38 Relevantly, the Council's written submission to the panel had made several points:**
**39 In this proceeding, in relation to Ms Bonilla's depressive disorder, the Council argued that the panel had failed to take into account Dr Conejera's clinical records and, in particular, the report of the treating psychologist Ms Valenzuela dated 13 January 2011 (see [12(e)] above). The Council argued that the medical records and the psychologist's opinion tended to establish that the onset of Ms Bonilla's mental condition predated her employment and the onset of any right wrist condition, and further tended to attribute Ms Bonilla's depression to family circumstances.
40 For her part, Ms Bonilla argued that the panel squarely acknowledged and considered the central submission made on behalf of the Council that Ms Bonilla's right carpal tunnel syndrome was not, relevantly work related. She points out that the issue was clearly articulated in agreed fact number 6 set out at the beginning of the panel's reasons. That fact recited that the Council's WorkCover insurer had rejected Ms Bonilla's claim on the basis that her claimed injuries did not arise out of or in the course of employment and that her employment was not a significant contributory factor to the injury.
41 Ms Bonilla disputed a characterisation that the Council had sought to place on the panel's approach - ie. 'careless and cursory' - saying, instead, it had been 'diligent and thorough'. She highlighted eight features of the panel's approach to addressing the questions referred to it for opinion:**
(2) They questioned her extensively: apparently, there are 70 sentences beginning with 'the plaintiff said' or something similar indicating, she submitted, a very detailed interview.
(3) The panel conducted a physical, clinical examination of her right and left wrists, arms and abdomen.
(5) It reviewed radiological and other investigative documents.
(6) It reviewed the reports and medical records of the general practitioner, Dr Conejera, which commenced in 1993 and it referred to specific aspects of those records.
(7) It also had regard to the medical reports of Dr Karna and others.
(8) It had regard to the written submissions of the parties (which, she said, the panel mentioned twice: once explicitly, and the second time implicitly at the end of Enclosure A to the reasons).
42 Ms Bonilla argued that the panel had made more than mere 'formalistic reference' to the medical records and the submissions of parties, including that of the Council. In support of her submission, Ms Bonilla emphasised the panel's reference to Dr Conejera's handwritten notes of 11 August 2000 which recorded complaint of pain in the left wrist to left arm. Either the panel members had read the handwritten notes carefully for themselves, she argued, or they had read the Council's written submissions that referred to them, or they had done both. Moreover, she pointed out, immediately after that reference, the panel continued, saying:
The plaintiff told the panel that she does not recall ever being told that she was suffering from carpal tunnel syndrome previously, and she said that she did not have nerve conduction studies performed in 2000. She said that she recalled being treated for the condition as "arthritis", with the prescription of Celebrex, which she took for three months. She said that the symptoms completely resolved. She said that she had no similar symptoms subsequent to 2000.[15]
43 Still further, she drew attention to the fact that the panel expressly stated that it had regard to the reports prepared by Dr Roy Karna, Dr Murray Stapleton and Dr Timothy Wood, and their respective opinions that the carpal tunnel syndrome condition had not been significantly contributed to by her employment duties. And, in its reasons, the panel went on to say:
The panel also considered the plaintiff's prior clinical history of hypothyroidism, and her body weight level and BMI of 42.3, which is above what would be expected in the normal range for a woman of her age of 43 years.[16]
**44 In the face of those references, and others like them, Ms Bonilla argued that the panel's reasons disclose that it clearly had regard to her past medical records, the opinions of the doctors submitted on behalf of the Council, and the arguments raised in the Council's submissions about those records and opinions.
45 In relation to her depressive condition, Ms Bonilla made a similar argument. Again she argued there was no reason not to accept the panel's express statements that it took into account the relevant pre and post-employment medical records, the Council's submissions and the written opinion of Dr Chris Grant, the psychiatrist who saw Ms Bonilla on behalf of the Council.
46 Ms Bonilla pointed out that Dr Grant was of the opinion that she suffered an adjustment disorder with depressed and anxious mood that appeared to be secondary to her ongoing difficulty with pain in her right hand/wrist from carpal tunnel syndrome. But, noting that Dr Karna's opinion was that the wrist problem was constitutional and not work related, Dr Grant said that her psychiatric condition, which was entirely secondary to the carpal tunnel syndrome, was also not a work related problem.[17] In other words, Ms Bonilla pointed out that Dr Grant supported the proposition that her depression was relevantly work related if one assumes that her wrist problem was also relevantly work related.**
**47 In my opinion, the Council has not established that the panel failed to take into account considerations it was bound to consider. First, the panel said it had taken into account the three things the Council said it had not taken into account: the medical records referring to pre-employment history of carpal tunnel syndrome and pre and post-employment experience of depression, the Council submissions and the medical reports submitted on behalf of the Council. In two ways the panel said it had done so: implicitly, by certifying in Enclosure A that the panel had taken into account all of the listed materials (which included those I have just mentioned); and explicitly, by making deliberate reference in the body of its reasons to having done so.
48 I agree with Ms Bonilla's submission that there is no reason for me to suspect that the seven members of the panel were disingenuous in stating that it had taken account of the materials it identified.
(a) the panel made specific reference to portions of the past medical history (ie. the wrist episode of August 2000) and demonstrated that it specifically questioned Ms Bonilla about that episode; and
(b) further, its reasons demonstrated it addressed the factual underpinnings of the alternative hypothesis advanced in the Council's submissions, and in the reports of the doctors who saw Ms Bonilla on its behalf, that Ms Bonilla's wrist condition was related to non-work risk factors such as hypothyroidism and obesity.
**50 Strictly speaking, I do not need to deal with a second contention made by Ms Bonilla, namely that even if the panel had not taken into account the particular prior employment history to which the Council points, its failure to do so would not amount to an error which was material to the decision. Her argument was directed to materiality as described by Mason J in Bond.[18] That is, she argued that the weight of the matters which the panel took into account in forming its affirmative view pointed irresistibly to the likelihood that any consideration of medical references to past right carpal tunnel syndrome (assuming they had not been taken into account) would not have made any difference to their opinion.
51 There is an overlap here between that argument and the issues that arise in relation to the Council's fourth contention (ie. that reasons were inadequate). But there are three matters which generally favour Ms Bonilla's arguments on this point. They are these:**
(a) The pre-employment references to left or right wrist symptoms, and to depression, can aptly be described as 'flimsy' because (1) there are very few; (2) insofar as they concern the wrist, they mainly relate to the left wrist, and; (3) the most recent are notes of past history made in connection with obstetric and gynaecological attendances, and thus do not have the same degree of cogency one might attribute to a record of a consultation held specifically for the recorded condition.
(b) The past medical references to bilateral wrist symptoms or depression are not inconsistent with temporary, past resolved problems, nor do they necessarily exclude the proposition that employment was a significant contributory factor to the development of carpal tunnel syndrome or depression, or their redevelopment.
(c) The positive causal connections between employment and the right carpal tunnel syndrome and, in turn, depression, available on the material and identified by the panel, provided a sound basis for its conclusions (see further below).
**52 But, in the end I do not consider I need to decide this point. In this instance, I prefer to defer to the principle, as stated in Peko-Wallsend, that the appropriate weight to be given to the various matters to be taken into account is generally to be left to the decision maker.
Did the panel rely on considerations it was bound to ignore?
54 In addition to the matters relied upon for the first ground, in the originating motion, the Council particularised the considerations the panel was bound to ignore as follows:
The Medical Panel Reasons reveal that the Medical Panel relied upon a history given by the worker as to the onset of right wrist symptoms which was inaccurate, and contradicted by the medical records supplied to it.
55 As I followed it, the Council's argument was that the panel only considered the clinical history of the nature and onset of Ms Bonilla's symptoms of right carpal tunnel syndrome after she commenced work in December 2006. That is, the Council argued that the panel improperly accepted at face value what Ms Bonilla told it about the onset of her right wrist condition and failed to "interrogate" her about the pre-work symptoms that the medical history reveals.
**56 First, in my view the Council is simply wrong in its premise. As I have already pointed out, the panel specifically noted a reference to carpal tunnel syndrome in the notes of Dr Conejera of 11 August 2000 and went on to record the discussion it had with Ms Bonilla concerning, not only that prior episode, but any similar symptoms she had thereafter. Secondly, insofar as the Council argues that it was impermissible for the panel to have regard to the worker's account of her symptoms, in my view that proposition is self-evidently incorrect.
57 However, the Council's real submission on this point was exposed in its reply when it referred to what Beach J said in Smith v Commonwealth of Australia:**
To make and then take into account an incorrect fact-finding is not necessarily to commit a jurisdictional error. It is the same with failing to find, and therefore ignoring, a fact. Moreover, reasons for decision must be examined fairly, in context and as a whole, not legalistically, minutely and looking for error. But when the relevant facts have been clearly established and the reasons show the decision maker acted on the wrong basis in important respects, it may legitimately be said that relevant facts have not been taken into account, that irrelevant ones have been considered and that the decision maker has failed properly to exercise their discretion. [19]
**58 So, it seems that the Council argued that the panel simply acted on a wrong basis in the face of other facts which, it maintained, had been 'clearly established'.
59 I am far from persuaded that the panel acted on a wrong factual basis. Further, I refer again to what I said above ([51]) in respect of the submission made by Ms Bonilla on materiality. The extent to which the 'fact' of any material pre-employment history of right carpal tunnel syndrome or depression was established by the medical records is debatable.
60 At one stage, the Council argued that because the panel had made an erroneous reference to Ms Bonilla working 35 hours per week rather than per fortnight, it had a 'propensity' to make factual errors. It argued I could more readily conclude it made a factual error concerning her past right wrist symptomatology. I reject that proposition as a matter of logic or principle.
61 For these reasons, the Council fails on its second ground.**
Did the panel fail to accord the Council procedural fairness?
62 Again, in addition to the matters raised in respect of the first ground, the Council particularised the panel's failure under this ground as follows:
The Medical Panel Reasons reveal that the Medical Panel did not give a fair hearing to the plaintiffs' written submissions dated 22 January 2013, particularly to paragraphs 11-20 thereof and paragraph 24 thereof.
63 It is not disputed that a medical panel convened to form its opinion as to medical questions is bound to observe the rules of natural justice in favour of those whose rights are liable to be affected by the discharge of its function. A failure to accord procedural fairness or natural justice contaminates the medical panel's opinion with illegality such that it is liable to be quashed upon judicial review.[20]
64 The Council argued that the panel denied it natural justice by failing to respond to a substantial, clearly articulated argument that relied upon established facts, as contained in the Council's submissions to the panel.[21] The argument which the panel allegedly failed to respond to is, in substance, the argument that I summarised earlier (see [38] above).
65 In substance, I have already addressed the Council's argument on this ground. The panel did take into account the Council's submissions. It said it did, and I have already explained why I accept that it did. In that regard, the Council fails on its third ground. Beyond that, the Council's argument on this point is answered in relation to the next ground dealing with adequate reasons. That is, to the extent that the Council's argument is that the panel failed to intellectually engage with opinions and propositions contrary to those which the panel itself formed, that debate is the territory of the next ground.
Did the panel fail to give proper and adequate reasons for its opinion?
66 The Council particularised the panel's failure under this ground as follows:
The Medical Panel erred in law by failing to give a proper and adequate written statement of reasons for its opinion in respect of the referred medical questions in accordance with s 68(2) of the Act.
**67 Section 68(2) of the Act requires a panel not only to give a certificate as to its opinion but also "a written statement of reasons for that opinion". The High Court recently clarified the law with respect to the standard required of a written statement of reasons given by a medical panel pursuant to s 68(2) of the Act in Wingfoot Australia v Kocak.[22]
68 The court (French CJ, Crennan, Bell, Gageler and Keane JJ) said that, as a matter of statutory construction, there were two considerations of particular significance for determining that standard: one, the nature and function performed by a medical panel and, the other, the objective, within the scheme of the Act, of requiring the panel to give a written statement of reasons for its opinion.[23] The court addressed each of those two considerations separately, drawing a conclusion in each case as to what was to be implied for the appropriate standard. It then fused them together by way of a statement of the standard.
69 As to the function performed by a medical panel, the court said**
The function of a medical panel is to form and to give its own opinion on the medical question referred for its opinion. ... The medical panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[24]
70 From that analysis, the Court concluded that the panel was required to set out
... the reasons which led the medical panel to form the opinion that the medical panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the medical panel arrived at the opinion the medical panel actually formed for itself.[25]
71 Turning to the objective of requiring the panel to give a written statement of its reasons, the Court considered the legislative history of the requirement in s 68(2) for the provision of reasons. Ultimately, the Court concluded
The objective, within the scheme of the Act, of requiring the medical panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons a_dequate to enable a court to see whether the opinion does or does not involve any error of law_ ... The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the medical panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of a written statement.[26]
72 Drawing its two conclusions together, the High Court expressed the standard in these terms:
The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[27]
73 A more complete understanding of the standard described by the High Court is gained from its explanation why the approach of the Court of Appeal, which made the decision under review, was incorrect. It said that the Court of Appeal "analogised the function of a medical panel forming its opinion on a medical question to the function of a judge deciding the same medical question". In rejecting that analogy, the court disagreed with the Victorian court's conclusion that "it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them". The High Court continued
A medical panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[28]
**74 In Wingfoot, the panel was provided with competing medical opinions, but it did not expressly address those that came to the view that it did not ultimately adopt itself. In the present case, the panel was arguably possessed with potentially opposing facts to those upon which it relied, without specifically discussing those 'opposing' facts or explaining how it could hold its opinion in the face of them.
75 The High Court said in Wingfoot that the panel did not necessarily have to explain why it did not accept opinions contrary to its own, so long as it explained why it reached its own opinion. That dichotomy is arguably different from only mentioning the facts that support its opinion but not discussing those that might contradict it. But, I do not think that those concepts are necessarily so different, depending on the nature of the question on which the panel is asked to give its opinion and the capacity which the unaddressed facts had to negate its view.
76 In my view, the standard that the High Court expressed in Wingfoot may equally apply to the question whether a panel needs to explain why particular facts, which might point to one contributory cause to a given medical condition, do not detract from its opinion that other facts point positively to the worker's employment being a significant contributory factor to that condition.
77 Adapting the language of Wingfoot, what the panel had to explain was its path of reasoning for coming to the opinion that it formed about the actual or possible contributory role played by employment in the identified injuries. The panel did not have to explain why it was not persuaded that the existence of other potential contributory factors excluded the opinion it held about the contributory role of employment. That statement may require qualification where the nature of those other factors is such that, if they are not referred to, an inference should be drawn that the panel's reasoning must have involved a step that was not reflected in the panel's reasons.[29] But that aside, as already mentioned, it is generally for the decision-maker to determine the appropriate weight to be given to the various competing considerations before it.
78 In practical terms, the issue is whether the facts of which the panel was possessed, necessarily contradicted or negated the view it reached so that, to come to the conclusion it did without explaining them away must have involved some reasoning that is not involved in their written reasons. The remaining hypothesis is that the facts in question were deemed either not relevant to or not inconsistent with the conclusion reached.
79 When considering this ground, it is essential to bear steadily in mind the question on which the panel was asked to give its opinion. That question was whether Ms Bonilla's employment was, in fact, or could possibly have been, a significant contributing factor to her injuries as identified. Clearly, the employment did not have to be the only causal factor to the exclusion of any other; nor, clearly, could the existence of other potential or actual causes exclude the possibility that employment was also a significant contributing factor.**
80 The Council argued that the reasons were inadequate because:
(a) the panel failed to refer at all to the Council's submissions or deal with the substance of them;
(b) the panel failed to refer at all to the pre-employment right wrist and hand symptoms referred to in the medical records, or to the material in Dr Conejera's clinical records tending to establish that Ms Bonilla's mental condition pre-dated the employment or was attributable to family breakdown;
(c) given those failures, the court is unable to determine whether any error of law vitiated the decision through failing to take into account mandatory consideration; and, or alternatively,
(d) the reasons do not sufficiently exhibit a discernible path of reasoning showing how 'these matters were countervailed'.
**81 The Council's central point was that the panel had failed to engage with the significance of the previous episodes of left and right carpal tunnel syndrome as set out in the employer's submission. It contended that the panel had failed to 'intellectually engage with' the substance of the Council's submissions in the reasons which it gave.
82 The Council called in aid of its submissions what Giles JA (with whom Priestley JA agreed) said in Weal v Bathurst City Council,[30] namely that taking relevant matters into consideration called for 'an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration...'. This, the Council argued, the panel failed to do. The Council went further and argued that the panel was obliged to resolve factual problems which, implicitly, meant it had to interrogate Ms Bonilla about any contra-indications in the medical information concerning the onset of her various conditions.
83 In my view, the Council's initial submissions did not adequately take account of what the High Court said in Wingfoot. But, in its written reply submission (and oral submissions developing it) the Council emphasised the requirement that a statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. It argued that the shortcomings identified above ([80]) meant that the panel's reasons were not sufficient to enable a reviewing court to determine whether its opinion involved any error of law.
84 Ms Bonilla argued that the Council's submissions misconstrued the standard required of a written statement of reasons given by a medical panel as enunciated in Wingfoot. In substance, she argued that the Council's contentions remained premised on the 'old law', namely that it was the obligation of the panel to decide between competing contentions or to explain why other conflicting medical opinion was rejected in coming to the opinion the panel formed for itself.
85 Ms Bonilla contended that the panel clearly articulated the facts, and the reasoning from those facts, which led to its conclusion that Ms Bonilla's employment was a significant contributing factor to the development of her right wrist carpal tunnel syndrome and her depressive condition.
86 In relation to her right wrist carpal tunnel syndrome Ms Bonilla said that the panel's reasons disclose it identified the factors which, in combination, persuaded it to the positive opinion which it held. Those facts were:**
(a) a temporal emergence of symptoms in conjunction with the performance of her work duties;
(b) the nature of her work duties involving regular manual wrist and hand use;
(c) there being no specific traumatic episode to the wrist or hand;
(d) nerve conduction study confirming on 2 March 2007 right carpal tunnel syndrome during the period of symptom development, in association with the performance of work duties;
(e) repeated occurrence of symptoms when performing work duties after periods of resolution with cortisone injections; and
(f) epidemiological studies linking work duties to median entrapment neuropathy and median nerve dysfunction at the level of the wrist.
**87 In Ms Bonilla's submission, the panel did what the law required which was to set out the reasons which led to the formation of the opinion which the panel in fact formed for itself. It considered all the material before it, took a history, conducted an examination, considered investigation results, and expressed opinions and conclusions in a way that made the path of reasoning sufficiently clear. In Ms Bonilla's submission the panel did not otherwise have to explain why it rejected other conflicting medical opinion.
88 Focusing more particularly on the panel's reasoning that employment was a significant contributing factor to the onset of her depression, it is to be recalled that it was agreed between medical practitioners that her right wrist carpal syndrome was a significant contributory factor to the development of her depression. The panel concluded that because her employment was a significant contributory cause of her right wrist injury, her employment was also a significant contributory cause to her depression.
89 Beyond arguing that the panel had failed to adequately explain its reasoning in relation to the right wrist injury, the Council argued that the panel did not explain how it concluded there was a relevant causal connection between employment and the depression in the face of other potential causative factors (eg. family breakdown or a pre-existing condition as revealed in her past medical history).
90 Again, Ms Bonilla argued that the panel should be taken to have considered all the medical records, the medical reports and the submissions. She further argued that, again, the panel was only obliged to explain the opinion it reached, not explain why it thought that other competing or contributory causes were not inconsistent with it holding the opinion it formed.**
**91 In my view, Ms Bonilla's contention should be accepted, both in respect of the panel's reasons given for its opinion on the right carpal tunnel injury and her depression. I am not persuaded that the panel failed to give adequate reasons.
92 I believe the panel explained its path of reasoning in sufficient detail to enable a court to see whether its decision involved any error of law. The panel's reasons demonstrated how it reasoned from the reported onset and progress of the conditions, the nature of the employment, relevant medical investigations, the panel's own medical examinations, and a consideration of the substance of certain competing causal factors that it deemed worthy of consideration, to a conclusion that Ms Bonilla's right wrist injury was caused by her employment (in the sense of her employment being a contributing cause). Adopting a similar process the reasons demonstrate how the panel concluded that her depression was secondary to that right wrist injury (in the sense of the right wrist being a contributory cause) so that employment was a significant contributory cause of that depression.
93 To require the panel to explain why it held those views despite there being evidence of pre-employment injury or other factors which might have caused or contributed to her injuries; or to require it to explain why those previous injuries or other factors did not displace its view that employment was a contributing factor in each case - would be to impose on the panel a higher standard of reasoning than the High Court said was required in Wingfoot.
95 It follows that the Council has not made out any of the grounds on which it seeks to impugn the panel's opinion and the proceeding must be dismissed.
[1] In accordance with The Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.
[4] Reasons 12; CB 94.
[5] [2013] HCA 43; (2013) 303 ALR 64 ('Wingfoot').
[6] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Minister for Immigration and Cultural Affairs v Yusuf (2002) 206 CLR 323, 351.
[7] [1990] HCA 33; (1990) 170 CLR 321, 353 ('Bond').
[8] [1986] HCA 40; (1986) 162 CLR 24, 39-40 ('Peko-Wallsend').
[9] [2007] VSC 518 ('Moyston Court Fisheries').
[12] Moyston Court Fisheries [2007] VSC 518 [47].
[13] Accident Compensation Act 1985, s 65(6B); Milwain v Slim & Ors [2009] VSC 75 [23] (Kyrou J).
[14] Azriel v New South Wales Land & Housing Corp [2006] NSWCA 372 [49].
[16] Reasons 10; CB 92.
[19] [2009] VSC 419 [17].
[20] Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248 [32] (Cavanough J).
[21] Cf Dranichnikov v Minister for Immigration (2003) 197 ALR 389 [95].
[30] [2000] NSWCA 88; (2000) 111 LGERA 181 [80], cited with approval by the New South Wales Court of Appeal in Azriel v New South Wales Land & Housing Corporation [2006] NSWCA 372 [49]-[51].
Maribyrnong City Council & Anor
Malios & Ors [2014] VSC 452
(2013) 303 ALR 64
(1980) 144 CLR 13
(1995) 184 CLR 163
(2002) 206 CLR 323
(1990) 170 CLR 321
(1986) 162 CLR 24
(2003) 197 ALR 389
(2000) 111 LGERA 181