In September 2013, the Victorian Supreme Court determined that the Convenor of Medical Panels (in Victoria) cannot convene a Medical Panel to assess a psychiatric injury on the basis of a bare allegation in a statement of claim of a psychological reaction to a physical injury in circumstances where the injured worker (or his/her lawyer) has only served a certificate of assessment relating to a physical injury. So, in other words: no assessment will be undertaken without a Certificate.
Medical Panel to only assess injuries subject of the Certificate of Assessment of Degree of Impairment
The recent decision of Mitchell v Malios & Ors  VSC 480 has confirmed the Convenor of Medical Panels should only constitute a Medical Panel to assess the injuries the subject of the Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury (Certificate) rather than to assess all injuries claimed.
Ever since the judgment of Cavanough J of McAlister v Leitch & Ors  VSC 51 the Convenor of Medical Panels has requested the parties to an action confirm whether they require the Convenor of Medical Panels to convene a Medical Panel to assess the injured worker’s physical and psychiatric injuries in circumstances where the injured worker has only served a Certificate in respect of the injured worker’s physical injuries but the injured worker also complains of psychological or psychiatric injuries in addition to the physical injuries.
In circumstances where the parties cannot agree the Medical Panel should only be constituted in respect of physical or psychiatric impairment, the Convenor of Medical Panels has been constituting a Medical Panel to assess both, which has resulted in higher costs being incurred and paid by the unsuccessful party at settlement or trial.
Background of the landmark case
In Mitchell v Malios & Ors, the plaintiff orthopaedic surgeon was defending a County Court proceeding brought by the third defendant for alleged negligent medical treatment.
In the County Court proceeding the third defendant to this action claimed various physical injuries as well as “psychological reaction, pain and suffering” in his particulars of injury.
A Certificate was served in the County Court proceeding in which Dr Rodney Simm, orthopaedic surgeon, certified the degree of physical impairment the third defendant suffered satisfied the threshold level.
The plaintiff referred the Certificate to the Convenor of Medical Panels and requested a Medical Panel be constituted to assess the third defendant’s physical impairment only.
The Convenor of Medical Panels forwarded a letter to the parties advising he would constitute a Medical Panel to assess both the third defendant’s physical and psychiatric injuries unless he received written notification from both parties only the physical injuries should be assessed on the basis of the decisions of McAlister v Leitch and Melbourne Health & Ors v Dr John Lloyd & Ors  VSC 370.
The lawyers for the plaintiff advised the Convenor of Medical Panels the Certificate was provided in respect of physical injuries only, and as such, the plaintiff could not refer a question in respect of psychiatric injury for assessment, but the Convenor of Medical Panels advised he would and he ultimately did constitute a Medical Panel to assess both physical and psychiatric impairment.
The Medical Panel found the third defendant’s physical impairment satisfied the threshold level but his psychiatric impairment did not satisfy the threshold level.
The plaintiff brought these proceedings against the Convenor of Medical Panels, the Deputy Convenor of Medical Panels and the third defendant contending the Convenor of Medical Panels committed jurisdictional error and errors of law by exceeding the power conferred on him by the Wrongs Act 1958.
Justice Beach found:
In this case it was permissible for the plaintiff to refer a medical question so as to limit the Medical Panel’s consideration to whether the third defendant had sustained physical injuries which satisfied the threshold level.
The provisions of the Wrongs Act 1958 on proper construction do not permit the Convenor of Medical Panels to convene a Medical Panel to ask a medical question which is not an issue in dispute between the parties.
The decision of McAlister v Leitch does not require the Convenor of Medical Panels to convene a Medical Panel to assess and make a determination concerning psychiatric injuries where no Certificate in respect of psychiatric injuries has been served.
However, there may be very rare cases where an appropriate medical question might be referred which deals with psychiatric impairment even when the Certificate served deals only with physical impairment.
Normally, where a claimant wishes to contend they have a psychiatric injury which satisfies the threshold level, then a Certificate ought to be served which certifies the claimant has a psychiatric injury which satisfies the relevant threshold and the mere insertion of “psychological reaction” in the particulars of injury is insufficient to justify the Convenor of Medical Panels altering the form of a referred question without the consent of the person or entity making the referral.
The Convenor of Medical Panels and the Deputy Convenor of Medical Panels erred in law when they convened a Medical Panel to assess the third defendant’s degree of psychiatric impairment but Justice Beach exercised his discretion not to quash the determination because the Medical Panel performed the task it was required to notwithstanding it also performed a second task beyond its jurisdiction.
As such, the proceeding was dismissed.
Take home message
This decision is important for respondents and their insurers because it means that the Medical Panel is no longer compelled to consider both physical and psychiatric injury in circumstances where psychiatric injury is pleaded in a claim for damages, but no psychiatric injury certificate has been served. This should significantly reduce the costs associated with referring claimants to the Medical Panel and the delays associated with the parties determining whether both physical and psychiatric impairments should be assessed.[Source: based on the article “No assessment without certificate – a welcome decision for insurers ” by Landers and Rogers Lawyers]