Fitzgerald, Megan; Kenneally, Mathew --- "Factual errors in medical panel decisions: Is judicial review an option?" [2020] PrecedentAULA 34; (2020) 158 Precedent 44

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FACTUAL ERRORS IN MEDICAL PANEL DECISIONS

IS JUDICIAL REVIEW AN OPTION?

By Megan Fitzgerald and Mathew Kenneally

In Victoria, the medical panel acts as the gatekeeper for many injured people seeking to access significant compensation and heads of damages under workers’ compensation and personal injury legislation. An adverse determination from the panel can defeat a case before it has begun.

Following an adverse outcome, clients frequently take issue with the panel’s findings of fact. An error of fact can form a ground for judicial review only in very limited circumstances. The error must be based on the material that was before the medical panel; it must be fundamental; and it must be demonstrable.

Given the significance of the outcome and the challenges in appealing an error of fact, it is essential to represent your client well at the time of referral to the panel. This will reduce the likelihood of the need to appeal, and improve the prospects of an appeal if it becomes necessary.

JUDICIAL REVIEW OF A MEDICAL PANEL DECISION

It’s 4pm on a Friday. You’ve scheduled a client conference to deliver bad news. The medical panel referral has not gone well for your client. After reading the decision, your client pulls out a pen and energetically writes on the page: lines, crosses, and notes. Your client explains that the medical panel got the facts wrong: her work history, dates, what she said to them in the examination. What can you do about it? You were not there, and there is no transcript of the examination. The short answer, the one you remember from law school, is that you cannot seek judicial review in the Supreme Court for an error of fact – but that’s not quite right here. You can appeal, it’s just hard.

A decision of the medical panel is final. It can only be challenged by way of judicial review in the Supreme Court. A plaintiff must show jurisdictional error or error of law on the face of the record. In broad terms, jurisdictional error is an error of law that affected a medical panel’s conclusions. Conventionally it is understood that a mere error of fact is not a jurisdictional error, however in recent years courts have made clear that this is not necessarily the case.

A fundamental error of fact made by the medical panel may be a jurisdictional error. The nature of the error may be characterised as a failure by the panel to properly consider the material or a failure to have a proper evidentiary foundation for its conclusions.^[1] This means that the error of fact must have been based on the material that was before the medical panel. A plaintiff cannot challenge a panel’s conclusion based on information that they did not provide to the panel; they cannot produce a new medical report or rely on a new detail about their history. A plaintiff must show that the medical panel got the decision wrong based on the information and documents available at the time. For example, suppose a plaintiff is referred to the medical panel in respect of a neck injury. The plaintiff had a prior neck injury, many years earlier, and she tells the panel she last felt pain in 2005. The panel inexplicably records that she last felt pain in 2020 and in making its findings disregards the pre-existing impairment. This would be a fundamental error of fact.

ESTABLISHING A REVIEWABLE ERROR OF FACT

When a client tells you that the medical panel has made a mistake, there are three questions to consider:

1. Is this an error of fact based on the material before the panel?

2. Is it fundamental?

3. Can you prove that the panel made the error?

Your first job is to discern the nature of your client’s complaints about the decision. Is your client complaining that there is new information that is relevant but which was not before panel, or is she complaining that the medical panel misunderstood what it was told? Does your client believe that the medical panel formed the wrong opinion about her condition (unlikely to be amenable to judicial review), or is she asserting that the medical panel recounted a fact that is objectively wrong (and therefore, potentially reviewable)?

Next, you should ask: was the error fundamental to the conclusion? Or, in other words, if the panel had not made the mistake, was there a realistic chance that it would have decided in your client’s favour? Many factual errors will not rise to the level of fundamental errors. Errors in recording details about a plaintiff’s family, minor errors with dates and errors in recording medical history unrelated to the injury being assessed are unlikely to be ‘fundamental’. For instance, a medical panel incorrectly recording that a plaintiff suffers from hearing loss is unlikely to be relevant in an assessment of the impairment from a knee injury.

Even if an error is fundamental, can you prove it? Sometimes it’s easy. For example, if the panel has misread a document such as a medical report or a clinical note, the error can be objectively established. It is much harder to establish error where your client says that the medical panel wrongly recorded the medical history she gave to it.

The law is outlined in Karabinis v Bendrups & Ors.^[2] In that case, the plaintiff swore an affidavit to the effect that the panel had mistakenly recorded important details regarding how demanding her work was, and about the nature of her pre-existing injuries. The defendant produced the medical panel’s notes, which corroborated the history in the panel’s determination. Justice J Forrest held that a plaintiff who claims that the reasons of a decision-maker contain errors of fact must produce cogent evidence. His Honour held that a court was not bound to accept a plaintiff’s sworn evidence that the medical panel was wrong. In Karabinis, the medical panel’s notes corroborated the history recorded. In these circumstances, J Forrest J was not persuaded that the plaintiff’s evidence was ‘cogent’ and that the panel got it wrong.^[3]

When your client says that the history recorded by the medical panel is wrong, you need to consider how you will prove the case. Do the documents support your client’s account over the history recorded by the medical panel? Is there a plausible explanation for why the panel might have made the mistake? Does the panel’s history seem wrong when viewed against the documentary history? Is your client’s account of her history more plausible? Is your client reliable and likely to withstand cross-examination on her affidavit deposing to the history she gave to the panel? Returning to our example of the client with a neck injury: if the client provided comprehensive clinical records to the panel, and those records made no recent reference to a neck injury, and the client could produce records showing that the neck injury resolved in 2005, the client’s lawyer might be able to persuade the court that the history recorded by the panel should be rejected. However, if references to neck pain, referrals to physiotherapists and prescriptions for pain medication were dotted throughout the clinical notes, the prospects of an appeal would be poor.

The short answer for your client is this: errors of fact can form the basis of the appeal. The error must be clear, it must be fundamental to the panel’s conclusion – trivial errors don’t count – and you need to be able to convince the Supreme Court that your client is right and the panel got it wrong.

REDUCING THE NEED FOR JUDICIAL REVIEW

Of course, the better approach would be to protect your client against these errors in the first place. In Victoria, the two major paths to a medical panel are referral by a respondent under Part VBA of the Wrongs Act 1958 (Wrongs Act) and referral by a court pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act).

Perhaps because of the court’s involvement in WIRC Act referrals, we tend to see these matters going to the medical panel in a better prepared state. The issues for the panel’s consideration have usually been set out in submissions made on behalf of the plaintiff and defendant, and the applicable law identified. The relevant medical records have been provided to the panel and the plaintiff’s history clearly set out. While this process does not prevent errors of fact from occurring, it seems to reduce their occurrence and simplify their identification and proof.

Referrals under the Wrongs Act, however, are often far less organised. Frequently, the alleged injury is only vaguely identified. Often only cursory submissions have been provided to the panel, if any submissions have been provided at all, and neither the plaintiff’s nor the defendant’s representative has set out the history of injury, pre-existing condition(s) or relevant treatment records. This approach, in our view, leaves far too much to chance for a plaintiff.

A poor outcome at the medical panel can effectively bring a plaintiff’s compensation or damages claim to an end before it has even begun. Often, especially in Wrongs Act claims, time and money will have been wasted on issuing proceedings for claims that have little to no quantum once damages for non-economic loss are precluded.

In our experience, plaintiffs are frequently dissatisfied with the medical panel’s identification and assessment of impairment from unrelated injuries or causes. It seems to us that, in at least some of these cases, it may have been possible to improve the plaintiff’s prospect of a positive outcome at the panel and avoid the need for expensive and complex Supreme Court judicial review proceedings. Submissions addressing pre-existing or unrelated injuries are likely to be of assistance. It is typically appropriate to draw the medical panel’s attention to injuries the plaintiff says have resolved or that, according to the medical evidence, have not settled so as to amount to permanent impairment. Clinical records should be provided where appropriate, and submissions highlighting the relevant aspects of those records should be provided to the medical panel.

While there are limits to the types of submissions that may be made to the medical panel, it is certainly permissible to set out a history of the plaintiff’s injury and impairment. Likewise, if there are potentially harmful clinical notes, a submission addressing those notes and setting out the plaintiff’s explanation of them can usually be made. Note that this may not always be helpful – care should be taken to ensure that any such submission is based on the plaintiff’s consistent and reliable instructions. Similarly, a strategic decision should be made as to whether it is best to attack an issue arising from the evidence in advance or hope that it does not arise. There remains the risk that submissions may draw an issue to the panel’s attention that the panel would not otherwise have considered.

Nevertheless, in our opinion, providing relevant material and making submissions to the medical panel is preferable to leaving it entirely to the plaintiff to give a verbal history at examination. Few people, particularly those who have suffered a traumatic injury and numerous medical assessments of that injury, will perform at their best under medical panel examination. Furthermore, the likelihood of a plaintiff perfectly recalling what they said and what was said to them is low. The impact of stress on memory is well known and likely to reduce the court’s assessment of the reliability of a plaintiff’s recall. Providing clinical records, along with submissions outlining the plaintiff’s history, will ensure that any departure from the facts can be proved and any substantial rejection of the plaintiff’s history by the panel must be explicit. This will reduce the likelihood of a negative outcome and improve the prospects of judicial review for fact-finding error.

CONCLUSION

In limited circumstances it is open to a plaintiff to appeal to the Supreme Court in respect of an error of fact in a medical panel decision. In order to successfully appeal, the error must be based on the material that was before the medical panel; it must be fundamental; and it must be demonstrable. The prospects of such an appeal will be markedly improved where the materials put before the medical panel have been thoughtfully and thoroughly prepared. Moreover, the likelihood of a need for such an appeal will be reduced when a plaintiff has been well-represented at the time of referral to the panel.

Megan Fitzgerald and Mathew Kenneally are barristers at Owen Dixon Chambers East, Melbourne. PHONE [phone] EMAIL [e-mail] / [e-mail].

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^[1] For a further discussion of the nature of the jurisdictional error revealed by an erroneous fact finding, see EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681, [65]–[96], [115]–[141].

^[2] [2017] VSC 648.

^[3] Ibid, [69]–[87]; upheld on appeal: Karabinis v Bendrups & Ors [2018] VSCA 124.