Assessing unrelated impairment: VSC quashes Medical Panel

Introduction

The recent Victorian Supreme Court decision of Bazouni v State of Victoria & Ors¹ (Bazouni) has provided guidance on the role of the Medical Panel (Panel) in assessing and disregarding a claimant’s unrelated whole person impairment (WPI) in referrals under the Wrongs Act 1958. The decision confirms that the Panel’s role is to identify and disregard impairments from unrelated injuries or causes when assessing the impairment level of a claimant, rather than focusing on broad unrelated issues in a claimant’s life. The decision also confirms that procedural fairness requires that a claimant be given an adequate opportunity to be heard in respect of allegations upon which the Panel would ultimately rely in its decision.

This article briefly summarises the scheme in respect of psychiatric impairments and then examines the consequences of Bazouni for parties that refer claimants to the Panel under the various Victorian jurisdictions.

The scheme

In Victoria, in respect of a claim under the Wrongs Act 1958 or workers compensation legislation², a claimant may be referred the Panel to have their WPI assessed. In Wrongs Act claims, a claimant is only entitled to claim general damages (i.e. non-economic loss damages) from a respondent if he/she has suffered a “significant injury”, which the Wrongs Act defines to mean a minimum level of WPI. For psychiatric injuries (the relevant injury in Bazouni), the claimant must have a WPI of 10% or more.

In claims for psychiatric injury, the calculation of the impairment figure is performed pursuant to the GEPIC³. A WPI assessment under the GEPIC involves an assessment of a claimant’s various mental functions to obtain a median class of impairment, which then corresponds to a range of WPI percentages. The assessor then places the claimant within that percentage range depending on the severity of their symptoms.

The process of calculating WPI using this method requires that impairments from unrelated injuries or causes are to be disregarded in making the relevant assessment. Under the Wrongs Act, this requirement is contained in s 28LL(3).

Background to the Bazouni decision

This decision involved a plaintiff, Youssef Bazouni, who had a complicated past history. He had a difficult childhood and left school after Grade 3. He lost his right arm in a bombing incident in Lebanon. He also had an eldest son in prison and a daughter with whom he had no contact. Of some importance in the judgment, the Panel also accepted that the plaintiff had been violent and an alcoholic in the past.

Separate from all the above issues experienced by the plaintiff, the plaintiff’s present claim was against the State of Victoria and G4S (defendants) for compensation due to pure mental harm. The plaintiff claimed that he had experienced mental harm as a result of the July 2016 overdose death of his other son, Billy Bazouni, while Billy was an inmate at Port Phillip Prison.

The plaintiff had obtained a medical report and certification from Dr David Weissman (Psychiatrist) that he had various psychiatric disorders as a result of his son’s death that resulted in him satisfying the 10% WPI threshold requirement.

The defendants both referred the plaintiff’s certificate to the Panel, essentially challenging whether the plaintiff did indeed meet the 10% WPI threshold.

The Panel determined that the plaintiff did not meet the 10% threshold in the following key passage:

The Panel considered that there is evidence of unrelated impairment to be disregarded. The Panel noted mention of past alcoholism and violence on his part. The Panel noted a difficult childhood and leaving school after Grade 3 level. The Panel noted significantly his loss of his right upper limb in a bombing whilst in Lebanon for which the claimant surprisingly stated he had neither psychological sequelae nor ongoing distress. The Panel also noted the claimant’s eldest son is currently incarcerated in prison and he has little to no contact with his other daughter. The Panel is of the opinion that there is evidence of unrelated issues which the Panel is obligated to apportion. (our underlines)

The plaintiff lodged an originating motion in the Supreme Court of Victoria seeking to quash the Panel’s decision, and remit the question of whether the plaintiff satisfied the requisite WPI threshold back to a differently constituted Medical Panel.

The plaintiff made three arguments in support of his originating motion:

1. The Panel’s opinion was legally unreasonable and therefore unlawful;
2. The Panel made an error when attempting to disregard psychiatric impairment unrelated to the his claimed psychiatric injury; and
3. The Panel denied him procedural fairness.

The decision of the Supreme Court

Justice McDonald found in favour of the plaintiff and granted the orders that he sought in his originating motion.

In respect of arguments 1 & 2 above, Justice McDonald noted that there is a distinction between an unrelated impairment (which must be disregarded) and an unrelated issue. If an unrelated issue results in no permanent psychiatric impairment to a plaintiff, then there is nothing to disregard.

Various issues and difficulties were identified by the Panel in the plaintiff’s life, separate from the overdose of his son. But, the Panel’s reasons for determination did not disclose any real evaluation of the nature of any impairment flowing from those issues and life difficulties. In essence, the Panel needed to go a step further and identify what permanent psychiatric conditions or symptoms arose from the difficult life that the plaintiff had led. The Panel’s failure to do this meant that its decision was unlawful, with the Court ordering that the decision be quashed.

Although not needing to make a decision in relation to argument 3 given the above, Justice McDonald went on to find that the plaintiff was not afforded procedural fairness in relation to another matter. The material provided to the Panel included a reference to the plaintiff having been a “violent alcoholic who physically abused [his son]”. The plaintiff was not given an opportunity to respond to these allegations, but the Panel appeared to have relied on them in finding evidence of unrelated impairment. Justice McDonald held that this constituted a denial of procedural fairness.

Conclusion and implications

We do not yet know whether the defendants will appeal this decision to the Victorian Court of Appeal. We assume that it will not be appealed, and the Panel will be required to make a new decision with a differently constituted panel of specialists.

This decision is a reminder that referrals to the Panel should not simply be made when there is a ‘critical mass’ of unrelated life difficulties experienced by a claimant. Parties considering whether or not to refer a claimant’s WPI assessment to the Panel should also turn their mind to the seriousness of the difficulties, and whether the life difficulties or cumulative issues faced by a claimant were likely to have resulted in some unrelated permanent psychiatric impairment.

This decision is also a reminder that, where possible, any documentary evidence of psychiatric conditions, symptoms or treatment resulting from a complex life history should be included to bolster the Panel’s requisite reasoning.

It is common practice to refer a claimant to the Panel, in the various Victorian jurisdictions, when they have experienced a complex past history. The strict deadlines for referrals to the Panel often mean that it is the Panel which is left to distill what impairment flows from the compensable event rather than other various historical events. There is usually little time or incentive for expert evidence concerning apportionment to be obtained prior to the Panel making its decision. We have no doubt that this trend will continue, despite the above decision.

This article was written by David Guthrie, Partner and Dylan Younane, Senior Associate. 

¹Bazouni v State of Victoria & Ors [2019] VSC 407 (24 June 2019)
²Accident Compensation Act 1985, Workplace Injury Rehabilitation and Compensation Act 2013
³The Guide to the Evaluation of Psychiatric Impairment for Clinicians