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Barry Lane
13 November, 2007  
Call the doctor, again

Medical Panels in Victoria are supposed to assist in achieving a cheaper and less legalistic workers comp regime. However, increasingly the “finality” of their findings is being impugned. Barry Lane is on the case


imageThe then Treasurer of Victoria Rob Jolly rose to his feet in the parliament on August 17, 1989 to move the second reading of the Accident Compensation (General Amendment) Bill.

The Bill, which was a substantial amendment of the Accident Compensation Act 1985, was intended to resolve a number of “fundamental problems” plaguing the WorkCare workers’ compensation scheme. One of the problems was:

“A disputes resolution system that has become excessively costly and legalistic, with much of the disputation locked around the issue of contested medical opinion.”

It was then believed that a way to overcome unnecessary disputation in relation to the problem of contested medical opinions was to establish a system of “expert medical panels” under the Act which, independent of the parties, would examine and opine on injured workers.

Since those humble beginnings, the jurisdiction of medical panels has expanded to cover all aspects of claims under the Act including “serious injury” applications.

Doubtless you will have at the forefront of your mind remarks earlier this year from Prez Maxwell of our Court of Appeal in Allsmanti Pty Ltd v Ernikiolis (Maxwell, Ashley and Neave), where he said in relation to serious injury cases that:

“Of course, parliament has made it perfectly clear in s.134AD that this court must decide for itself whether a worker has a serious injury as defined. My own view as President of the court, however, is that to have the Court of Appeal sitting as – in effect – a medical tribunal is not a good use of scarce judicial resources. Having a full rehearing on appeal is apt to undermine the conscientious work of County Court judges at first instance, since it is an invitation to the losing party to rerun the facts in the hope that the appeal court will take a different view.”

With respect, I agree entirely with the Prez. The Court of Appeal shouldn’t be sitting as a “medical tribunal”.

However, I would go further and say neither should the Magistrates Court or the County Court be so sitting, yet that is what they do on a daily basis.

Following the amendments to the Act in 1989 and since, the parties and the courts can refer a “medical question” to a medical panel at any stage of a proceeding, whether that proceeding be a claim for statutory benefit (weekly payments, medical expenses, lump sum payments etc.) or an application for a “serious injury” certificate.

Under the Act, opinions on medical questions by medical panels are supposed to be:

“adopted and applied by any court [and] must be accepted as final and conclusive by any court … irrespective of who referred the medical question to the medical panel or when the medical question was referred.”

Figures from the medical panels indicate that for the year ended June 2007, 81 percent of referrals emanated from the Conciliation Service established under the Act and authorized claims agents while 77 percent of those referrals were in relation to applications for statutory benefits being either weekly payments or lump sums resulting from permanent impairment.

The County Court referred two percent and the Magistrates Court referred five percent. There was no referral in relation to common law claims which I assume to be “serious injury” applications.

Given that a worker is precluded from commencing a proceeding in either the Magistrates Court or the County Court before subjecting his or her dispute to conciliation, it is understandable why a fair slab of referrals come from the Conciliation Service – yet such referrals still amount to only 34 percent of total referrals.

Presumably, authorized claims agents submit a fair proportion of the balance.

The Conciliation Service says that about 65 percent of disputes are settled at conciliation.

As I’ve already said, referrals from the Magistrates Court and the County Court don’t even make it to double figures.

imageAs Professor Julius Sumner Miller (pic) might ask: “Why is it so?”

I can only speculate but I think it’s probably got something to do with the fact that lawyers don’t get a look-in when the medical panels conduct their examinations and form their opinions nor do they get a guernsey at a conciliation hearing, unless the conciliator and all parties agree. And that that doesn’t happen too often.

But the lawyers do get a look-in when one or other of the parties gets an opinion that it doesn’t like. Given that the legislation seeks to insulate a panel’s opinion from attack, it might be thought that this is a somewhat difficult task.

In reality it’s not all that hard. All one has to do is convince a Supreme Court judge that the reasons in the opinion are inadequate via the Administrative Law Act 1978 and you’re home free.

Reasons were found wanting in:

  • Calleja v Franet Pty Ltd & Ors, June 1, 1999, Vincent J;
  • Pyle v Nisselle & Ors, October 2, 2000, Smith J;
  • Kamener & Ors v Griffin & Ors, July 1, 2004, Williams J;
  • Taylor v Mountain Pine Furniture Pty Ltd & Anor, September 1, 2004, Williams J;
  • Cladingboel v Newcrest Mining Limited & Ors, September 17, 2007, Habersberger J; and
  • Clarke v National Mutual Life Insurance Ltd & Ors, September 18, 2007, Forrest J.

    That’s not to say that all applications are successful – one which wasn’t was George v Nisselle & Ors May 27, 2005, Gillard J. In that case HH made the following observations about applications which seek to impugn a panel’s reasons:

    “As I remarked in submissions, a ground alleging inadequacy of reasons is sometimes the refuge of the desperate – if nothing else can be established, allege that the reasons are inadequate. In my opinion, the wording of the ground is offensive. To assert that nobody else could understand the reasoning of the panel in coming to its opinion is nonsense. The reasons must be read in context, taking into account the background and all the documentation, bearing in mind what were the real issues were (sic) for determination and, as understood by a person having some familiarity with the Act and a claim for compensation.

    “Speaking for myself, I have no difficulty whatsoever in understanding the reasoning. The panel considered the documentation, saw the applicant, took a history and examined him, and then formed an expert opinion as to whether or not he had suffered a total loss under the table appended to s.98E. In particular, the panel investigated the use of the right hand by the applicant. The panel reached the conclusion that he did not suffer any total loss relating to his right arm which included the hand and fingers in the table appended to s.98E(1). This ground must fail. It is obvious how the panel reached that conclusion. Insofar as Mr Wallace’s opinion was concerned, the panel did not agree with it and rejected it. Nevertheless, it is clear from the submissions put by Mr Fehring on behalf of the applicant that the real complaint was that the panel did not refer to Mr Wallace’s opinion in its reasons and therefore the applicant did not know what effect, if any, Mr Wallace’s opinion had upon the panel.

    “As I have stated, the panel was required to consider Mr Wallace’s report, and placed what weight it thought appropriate on his opinion. As against his opinion the panel had to form its own opinion based upon all the documents before it, seeing the applicant, taking a history and examining the applicant. The panel rejected Mr Wallace’s opinion. No other conclusion is open.”

    Curiously, I haven’t been able to find any reported decision emanating from Justice “Silver Tray” Gillard after George.