Akers v Namatjira Trading Pty Ltd; Akers v Goodcorp Pty Ltd
[2021] VSC 856
•20 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03432
| BRUCE AKERS | Plaintiff |
| v | |
| NAMATJIRA TRADING PTY LTD (and Others according to Schedule 1) | Defendants |
-and-
S ECI 2020 03434
| BRUCE AKERS | Plaintiff |
| v | |
| GOODCORP PTY LTD (and Others according to Schedule 2) | Defendants |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 6 and 9 August 2021 |
DATE OF JUDGMENT: | 20 December 2021 |
CASE MAY BE CITED AS: | Akers v Namatjira Trading Pty Ltd; Akers v Goodcorp Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 856 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Workplace incident – Injuries suffered during two different periods of employment – Further compensation sought for weekly payments and medical expenses under Accident Compensation Act 1985 (Vic) – Extension of time to bring claim for judicial review – Whether special circumstances exist to grant extension – Self-represented litigant – Futile to grant extension of time - no error on the part of the Panel – Originating Motions dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff in person | --- |
| For the First and Second Defendants in each proceeding | Mr M. Fleming QC Ms F. Spencer | Landers & Rogers |
| For the remaining Defendants in each proceeding | No appearances | DLA Piper Australia |
HER HONOUR:
Mr Akers was injured on 25 January 2000 while employed by Goodcorp Pty Ltd (Goodcorp), where he bred, trained and sold horses. On 18 March 2009, he suffered different injuries while employed by Namatjira Trading Pty Ltd (Namatjira). Following each injury, Mr Akers applied for benefits under the Accident Compensation Act 1985 (Vic) (the Act). The details of those claims and the disputes generated are set out below. On 9 August 2019, a referral was made by the Magistrates’ Court of medical questions to a medical panel in respect of the claim against Goodcorp. On 14 August 2019, the same Magistrate referred medical questions to a medical panel in respect of a separate proceeding regarding the claim against Namatjira. The two references were dealt with by a Medical Panel constituted by the same members and from the same examinations. A separate Opinion, answering the relevant questions and Reasons were provided for each referral. The plaintiff now brings proceedings for judicial review of both resulting Opinions; that from the Goodcorp referral dated 5 February 2020 (Goodcorp Opinion) and that from the Namatjira referral dated 6 February 2020 (Namatjira Opinion). The plaintiff seeks orders to quash both Opinions.
Background
The claim against Goodcorp
The injuries in January 2000 were sustained when a neighbour’s dog bit a horse that Mr Akers had in a horse wash. When the horse reacted, Mr Akers was pinned against the wall. He described being ‘smashed’ against the wall, breaking his right leg and a rib, injuring his right hip, twisting the right side of his body and grazing to his left leg from groin to foot, as well as injury to his carpal tunnels and ulnar nerve (the horse incident).0F[1] He had approximately six weeks off work and then returned until June 2002 on lighter duties, by which time he considered the ongoing employment too painful and dangerous for his health. His employer was a corporate vehicle of which he was a working director.
[1]Affidavit of Bruce Akers sworn on 14 August 2020, [4]; Affidavit of Bruce Akers sworn on 14 September 2020, [11].
Mr Akers lodged a claim for benefits dated 17 February 2003 under the Act. The claim form did not list a right hip injury. That claim was rejected on the basis that he had not established that he was a worker. Magistrates Court proceedings were commenced in 2006. The defence pleaded that the claim was for medical and like expenses only. Terms of Settlement were signed, which included a denial of liability and an agreement to make payment of certain past medical expenses (of a psychologist and chiropractor) as well as reasonable future medical and like expenses in accordance with the Act. Mr Akers was legally represented in those proceedings.
The documents show that in late 2003 Mr Akers’ general practitioner, Dr Maher Wasef, referred him to see Mr Craig Mills, an orthopaedic surgeon, regarding various musculoskeletal problems, including a right hip problem. In December 2003, Mr Mills thought the problem was ‘an arthritic hip substantially aggravated as a result of a horse kick’.1F[2] A request was made to WorkCover to approve hip replacement surgery. It was rejected in February 2004. This history is set out in Mr Mills’ report to the solicitors then acting for Mr Akers.2F[3] Notwithstanding the rejection, Mr Mills’ firm opinion was that the right hip had been aggravated in the incident. Neither the right hip injury nor the rejection of the right hip surgery were pleaded in the 2006 Magistrates’ Court proceeding.
[2]Letter to Dr Wasef dated 10 December 2003.
[3]Report of Mr Mills dated 4 May 2006, at Goodcorp court book page 181 (‘G CB’).
Mr Akers made requests for payment of further medical expenses as contemplated by the Terms of Settlement. This included a further request for right hip replacement surgery from Mr Michael Armstrong by letter dated 1 November 2007. On 14 November 2007, the Insurer wrote to Mr Akers advising it did not approve the surgery. This was copied to Mr Armstrong. However, they later wrote to Mr Armstrong on 21 November 2007 confirming the surgery would be funded. Mr Akers underwent the right hip replacement on 22 May 2008, which was paid for by WorkCover. However, weekly payments for the post-operative period (22 May 2008 to 22 August 2008) were not paid because, in a decision of 28 July 2011, the Insurer said its acceptance letter of 21 November 2007 was in error.
In 2008, Mr Berger, a hand surgeon, assessed Mr Akers as having bilateral cubital tunnel compression and possible carpal tunnel compression. Mr Berger sought permission for the surgery he recommended to the right arm, which was refused on 11 April 2008. A request from Mr Armstrong in June 2010 to fund right shoulder surgery was also refused. On 4 August 2009, a decision was made by the Insurer to cease payment of chiropractic services and psychology services.
Questions for a Medical Panel Opinion were referred by a conciliation officer and an Opinion was provided on 21 December 2010. On 23 February 2011, the Insurer ceased liability for all medical and like expenses except for psychology treatment in line with the Opinion dated 21 December 2010 (the 2010 Medical Opinion). A further conciliation resulted in another dispute being certified. Mr Akers argued that, as the 2010 Medical Panel Opinion was not asked to deal with treatment for all injuries, it could not be relied on by the Insurer as a basis for ceasing treatment for all injuries. The 2010 Medical Opinion was not asked to address any issues relating to the right hip as the questions referred to it were limited to those injuries listed on the claim form.
On 21 September 2009, Mr Akers’ claim for permanent impairment was accepted in respect of the following injuries: chest (fractured rib); back (cervical and lumbar); lower leg (graze); right hip; and psychiatric condition. Injuries to the head and left hip were rejected. His impairment was assessed at 23%.
Another medical panel was asked questions relating to the disputed impairment injuries and a Medical Panel Opinion dated 16 May 2011 was received. In that referral, which dealt with causation of disputed injuries, the Panel noted the accepted injuries in the referral.3F[4] It made no findings about the nature or cause of those accepted conditions.
[4]The previous Medical Panel opinion dated 16 May 2011 was included in the Namatjira court book at page 709-713 (‘N CB’).
In March 2016, the plaintiff commenced proceedings in the Magistrates’ Court against Goodcorp (C 10496707). Mr Akers represented himself. The initiating document, described as the Third Amended Statement of Claim, records the circumstances of injury and the previous proceeding and Terms of Settlement. The relief sought was a declaration that the initial claim be accepted, weekly payments, reimbursement of money payable pursuant to a previous Medical Panel Opinion in or about April 2012, and for treatment in respect of his spine. It was this proceeding in which the Goodcorp Opinion was obtained at the defendant’s request. The five questions that were referred are set out below.
The Namatjira claim
Mr Akers suffered his later injury while working for Namatjira, in particular in March 2009 when the grab handle on a truck came away as he was alighting from the truck, causing him to fall and land on his left shoulder, resulting in injuring (the truck incident). Namatjira was a company operated by his daughter and Mr Akers was doing some horse training and breeding.
Mr Akers made a claim for compensation pursuant to the Act for injuries to his left hand, shoulder and arm (the first claim). Liability was accepted for medical expenses only as the claim form indicated Mr Akers was working the same hours but on modified duties. In February 2011, the claims agent terminated liability for medical expenses on the basis that Mr Akers was not a worker.4F[5]
[5]The Notice was dated 16 February 2011, N CB 318.
A second claim dated 27 January 2011 was lodged for weekly payments claiming left and right shoulder injuries and a left knee injury occurring over the course of employment (the second claim). The claim form made reference to the first claim for the truck incident in March 2009. The second claim was rejected on the basis that he was not a worker. The rejection of the second claim and a dispute about termination of medical expenses went to conciliation.
At the conciliation on 25 May 2015, an agreement was reached to pay for the bilateral shoulder surgery and certain expenses associated with that surgery. The second claim for weekly payments and the termination of medical expenses other than the shoulder related medical expenses remained unresolved according to the Conciliation Outcome Certificate, on the basis that the Insurer still disputes that Mr Akers was a worker.5F[6]
[6]N CB 1355.
It appears that Mr Akers also lodged a claim for permanent impairment arising from the truck incident in June 2011. The Joint Statement in the Namatjira referral listed the claimed injuries as: injuries to [his] ‘head, brain, chest, left knee, whole of back, temperature, neck, left shoulder, right shoulder, stomach, pins and needles, thoracic spine, psychiatric condition, left hip and nervous system’.6F[7] The alleged injuries were claimed as a result of his employment with Namatjira. That claim was also rejected on the ground that he was not a worker under the Act.7F[8]
[7]Joint Statement pursuant to section 304 of the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), [20] at N CB 319.
[8]This information is included in the statement of agreed facts that went to the Panel but was not otherwise apparent from the evidence.
In March 2016, the plaintiff commenced an action in the Magistrates’ Court of Victoria (C 10838902) seeking ongoing medical treatment, compensation payments, and payment of medical and like expenses for the injuries suffered during his time employed by Namatjira, relying on both the truck incident on 19 March 2009 and the course of his employment. The defence denied that he: was an employee, was a worker under the Act, had suffered injury, suffered injury in the course of employment and was incapacitated. The defence did not differentiate between the first claim which had been accepted and the second claim which had been rejected on grounds unrelated to injury.
By the Statement of Agreed Facts prepared on behalf of the defendant, which was sent to the Panel, and as can be seen from the questions below no issue was taken about Mr Akers being a worker or being in employment with Namatjira. This was despite that being the basis for rejection of the second claim and the impairment claim. Despite the defence, the Joint Statement said ‘the defendants are no longer taking issue with the plaintiff not being considered a worker under the Act.’8F[9] The pleadings do not refer to the impairment claim against Namatjira.
[9]Joint Statement pursuant to section 304 of the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), [23] at N CB 316.
The Namatjira Opinion was:
Question 1. What is the nature of the plaintiff’s medical condition relevant to the alleged injuries (including any sequelae) sustained whilst employed by Namatjira Trading Pty Ltd from 2005 to 2011 and, in particular, on or about 18 March 2009, with respect to:
(a) Injury to the shoulders and/or arms;
(b) Injury to the knees;
(c) breathing;
(d) stomach problems;
(e) Injury to the lumbar spine;
(f) Injury to the cervical spine;
(g) Pins and needles throughout body;
(h) Any psychiatric condition; (the said injuries)?
Answer: In the Panel’s opinion the Plaintiff has the following medical conditions but these conditions are not attributable to any alleged injury sustained whilst employed by Namatjira Trading Pty Ltd from 2005 to 2011, including any alleged injury on or about 18 March 2009.
(a)bilateral symptomatic rotator cuff degeneration (surgically treated);
(b) symptomatic bilateral knee osteoarthritis;
(c) obstructive sleep apnoea resulting from obesity;
(d) no intrinsic medical condition;(e)symptomatic lumbar spondylosis with no clinical radiculopathy;
(f)symptomatic cervical spondylosis with no clinical radiculopathy or myelopathy;
(g) no intrinsic medical condition;
(h) delusional disorder;
Question 2. Was the plaintiff's employment with Namatjira Trading Pty Ltd from 2005 to 2011 and, in particular, on or about 18 March 2009 in fact a significant contributing factor to any and, if so which, of the said injuries?
Answer: In the Panel’s opinion, the plaintiff’s employment with Namatjira Trading Pty Ltd from 2005 to 2011 and, in particular, on or about 18 March 2009 was not in fact a significant contributing factor to any alleged injury to the shoulders and/or arms, injury to the knees, breathing, stomach problems, injury to the lumbar spine, injury to the cervical spine, “pins and needles throughout body” injury, or psychiatric condition or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease, in any way.
Question 3. If yes to question 2, 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: any and, if so which, of the said injuries?
Answer: Not applicable.
Question 4. If applicable, in any, and if so, what period from:
(i) 12 August 2011 (the date of the plaintiffs left shoulder surgery); and/or
(ii) 14 October 2011 (the date of the plaintiff’s right shoulder surgery):
to 28 February 2018 (the date the plaintiff turned 65 years of age) did the plaintiff have:
(a) a current work capacity;
(b) no current work capacity?
Answer: The Panel is of the opinion that, in the period between 12 August 2011 and 14 October 2011 to 28 February 2018, the plaintiff had no present inability arising from an injury such that the plaintiff was not able to return to his pre-injury duties.
Question 5. If yes to 4(b), was the plaintiff's no current work capacity in any and/or all of the said period, likely to continue indefinitely?
Answer: Not applicable.
Question 6. If applicable, is it appropriate for the plaintiff to receive the following medical and like services:
(a) general practitioner attendances;
(b) physiotherapy services;
(c) chiropractic services;
(d) psychological services;as treatment for any and, if so which, of the said injuries?
Answer: Not applicable.
Question 7. If applicable, whether the plaintiff's incapacity for work, if any:
(a) resulted from or was materially contributed to by;
(b)results from or is materially contributed to by: any, and if so, which of the said injuries?
Answer: Not applicable.
The Goodcorp Opinion was:
Question 1. What is the nature of the plaintiff’s medical condition relevant to the alleged injuries (including any sequelae) sustained on or about 25 January 2000 whilst employed by Goodcorp Pty Ltd with respect to:
(a) Injury to the head;
(b) Injury to the chest;
(c) Injury to the lumbar spine;
(d) Injury to the cervical spine;
(e) Injury to the hips and/or legs;
(f) Carpal tunnel;
(g) Any psychiatric condition; (the said injuries)?
Answer: In the Panel’s opinion the plaintiff has the following medical conditions, however, the Plaintiff is not suffering from any medical condition which is attributable to any alleged injury sustained on or about 25 January 2000 whilst employed by Goodcorp Pty Ltd.
(a) no medical condition;
(b) no medical condition (resolved left rib fracture);(c)symptomatic lumbar spondylosis with no clinical radiculopathy;
(d)symptomatic cervical spondylosis with no clinical radiculopathy or myelopathy;
(e)resolved soft tissue injuries of the legs, symptomatic osteoarthritis of the left hip and the left knee and of the right hip joint (surgically treated);
(f) substantially resolved bilateral carpal tunnel syndrome;
(g) delusional disorder.
Question 2. Was the plaintiff's employment with Goodcorp Pty Ltd on or about 25 January 2000 in fact a significant contributing factor to any and, if so which, of the said injuries?
Answer: The Panel is of the opinion that the plaintiff’s employment with Goodcorp Pty Ltd on or about 25 January 2000 was in fact a significant contributing factor to now resolved left rib fracture and soft tissue injuries of the legs.
In the Panel’s opinion the plaintiff’s employment with Goodcorp Pty Ltd on or about 25 January 2000 was not in fact a significant contributing factor to any alleged injury to his head, lumbar or cervical spine, hips, carpal tunnel or psychiatric condition or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease, in any way.
Question 3. If yes to question 2, 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: any and, if so which, of the said injuries?
Answer: The Panel is of the opinion that the plaintiff’s resolved left rib fracture and soft tissue injury of the legs, resulted from but are no longer materially contributed to by the alleged injury to the chest and legs, respectively.
Question 4. If applicable, in any, and if so, what period from 22 May 2008 (the date the plaintiff underwent a right hip replacement) to 22 August 2008 (the plaintiff provided a certificate of capacity for the period from 18 May 2008 to 22 August 2008) did the plaintiff have:
(a) a current work capacity;
(b) no current work capacity?
Answer: The Panel is of the opinion that between 22 May 2008 and 22 August 2008 the plaintiff had no present inability arising from an injury such that the plaintiff was not able to return to his pre-injury duties.
Question 5. If applicable, is it appropriate for the plaintiff to receive the following medical and like services:
(a) chiropractic services;
(b) psychological services;as treatment for any and, if so which, of the said injuries?
Answer: Not applicable.
If these Opinions are adopted and applied as the Magistrates’ Court would be obliged to do, the practical effect would be to bring both of those proceedings to an end although it is not entirely clear from the pleadings which are the relevant decisions of the Authority that give the Magistrates’ Court jurisdiction.
Extension of time
Mr Akers seeks an extension of time as his claims are outside the 60-day time limit prescribed by Order 56. He has sworn an affidavit explaining the reasons for the late commencement of the proceedings.9F[10] He says that he attempted to file originating documents and a fee waiver form on 3 or 4 April 2020, but the documents were rejected and the suggestion was made that he seek some legal advice. The email from the Supreme Court Registry demonstrating the communication is in fact dated 5 May 2020. Mr Akers remains of the belief that he attempted to file documents before the time expired. In any event, Mr Akers was unable to obtain legal assistance and his originating motions each dated 26 June 2020 were accepted for filing on 20 August 2020. Additionally, he swore that he attended hospital by ambulance on 25 May 2020 due to his pulse rate and blood pressure levels. He generally deposed to poor health, taking six months to recover from an episode at the medical panel examination which he said ‘upset [his] mind’ and which took him some six months to recover from. He did not provide any medical opinion directly in support of those health matters although he did exhibit some hospital notes regarding his attendance in May 2020. Mr Akers must satisfy me that his explanation as to the events described amounts to ‘special circumstances’ as required by Order 56.02.
[10]In each proceeding an Affidavit sworn on 23 November 2020 and in the Namatjira proceeding an additional Affidavit sworn on 26 November 2020.
The defendants objected to any extension of time. They contend I should not accept that any attempt to file within time was made, and submit that regardless of the explanation for the delay no extension should be given as the prospects of success of the appeal are hopeless so that an extension would be inutile.
I accept that the combination of Mr Akers long standing health issues referred to in the material generally, and his difficulties in obtaining legal assistance to advise him and assist in putting his documents into proper form, might amount to special circumstances. I have regard to the fact that otherwise Mr Akers has been diligent in compliance with Court orders and preparing his case to the best of his ability.
Grounds for review
The plaintiff has extensive grounds of review. They largely mirror each other in each proceeding.
As set out by Mr Akers, the grounds are not easy to follow. At hearing, I clarified with him that the grounds traverse the following matters:
(a) By finding that Mr Akers is not suffering from any medical condition attributable to the relevant employment, the Tribunal fell into jurisdictional error and/or error on the face of the record by arriving at an opinion that was not open to it or because it misunderstood and/or exceeded its jurisdiction (paragraph 12 of the Goodcorp originating motion; paragraph 14 of the Namatjira originating motion);
(b) The Panel erred by giving weight to a statement of agreed facts which was not actually agreed to by the plaintiff, and failed to consider other relevant material. In the Goodcorp proceeding 8 specific pieces of evidence were listed. (paragraph 13, Goodcorp; paragraph 14 (second numbered), Namatjira);
(c) The Panel failed to take into account relevant considerations in respect of his capacity to perform work (paragraph 14, Goodcorp; and by leave was added to the Namatjira grounds in relation to capacity);
(d) In finding that Mr Akers’ shoulder injury did not occur during his employment at Namatjira, the Panel fell into jurisdictional error by failing to take into account considerations it was bound in law to have regard to (paragraph 15, Namatjira). Although relevant to Mr Aker’s employment at Namatjira, leave was given to add this ground in the Goodcorp proceeding as Mr Akers submits that the Panel also failed to properly account for a shoulder injury arising from the horse incident in its reasons;
(e) The Panel erred in reaching the opinion that Mr Akers had no psychiatric injury due to his employment (paragraph 18 Goodcorp, paragraph 16, Namatjira) by not having regard to or not accepting the opinion of treating psychologist Mr Cummins, such that its reasons are misleading;
(f) The Panel erred by finding that the plaintiff’s health problems are due to Metabolic Syndrome (paragraph 19 Goodcorp, paragraph 17, Namatjira) and so failed to consider his heart and breathing conditions, his weight loss and kidney condition;
(g) The Panel provided inadequate reasons by failing to give proper, accurate and complete reasons and gave a misleading impression of the plaintiff’s medical history (paragraph 20, Goodcorp; paragraph 18, Namatjira).
By way of Hardiman letters dated 10 February 2021,10F[11] the third to ninth defendants take no part in either proceeding. I will refer to the contradictors, the first and second defendants in each proceeding as the defendants.
[11]In accordance with R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
Submissions of the Plaintiff
Fundamentally, Mr Akers takes issue with the conclusions that his various injuries and the resulting incapacity have not been related to his employment. The question of causation in both employments was put in issue and underpinned the questions in each proceeding. The grounds of review attack the legality of these conclusions in various overlapping ways.
Mr Akers submitted that the reasons contain within them contradictions, or provide incomplete and so misleading or erroneous descriptions. I will give some examples by way of illustration. He submits that the Panel recorded he was employed at Goodcorp as a ‘horse breeder and trainer’ but that he did not train racehorses other than as a hobby. This was to be distinguished from his work at Namatjira when he did work as a horse trainer. He also submits that the Panel recorded that he used a Continuous Positive Airway Pressure machine at night, but recorded on examination that his breathing was normal, thus contradicting themselves at different points in their reasons. Taking all these errors or incomplete recordings of information, he submits the Panel has in effect proceeded on a wrong factual basis and that the reasons are inadequate.
He submits that relevant material was overlooked, pointing to specific medical opinions as to his physical injuries that were either not mentioned or to which insufficient weight was given by the Panel. Similarly, the submission in relation to the causation of his psychiatric injury was that insufficient weight was given to his treating practitioner Mr Cummins, and that given the complicated psychiatric history the psychiatric Panel had insufficient opportunity to come to an informed opinion after a single consultation in the time available. He submitted that ‘there is no medical evidence that the injuries did not happen during the plaintiff’s employment’. The double negative really amounts to the proposition that there was only medical evidence that linked the injury to employment. On that question, Mr Akers also submitted that given the agreement to pay for the bilateral shoulder surgery, and the fact of having paid for the hip surgery, the Panel got it wrong when it concluded that the shoulders and the hip hadn’t relevantly been injured at work.
Mr Akers submitted that the Panel was asked about his heart and breathing problems but the Panel described him suffering a metabolic syndrome and so did not answer the question identifying the nature of his heart or breathing problems.
Finally, Mr Akers’ complaint is that he had not agreed with the accuracy of facts that went to the Panel as a Joint Statement in each proceeding. The Panel had proceeded on the basis that the Joint Statement reflected agreed facts when it did not in fact do so. Although Mr Akers points to a number of facts with which he disagreed, many of them were peripheral to the questions that were asked of the Medical Panel. However, some went to the issue of which injuries were compensable.
Defendants’ submissions
The defendants submitted that the ‘no evidence’ ground fails to meet the very high bar that is set for such a ground. Where, as here, a decision maker applies its own experience and expertise, that itself may be an evidentiary basis for its decision.11F[12] In any event, to make out such a ground there must be no evidentiary basis at all, and amongst the extensive documentary material available to the Panel were opinions to the effect that any compensable injury no longer persisted and were in accord with the answers provided by the Panel.
[12]S v Crimes Compensation Tribunal [1998] 1 VR 83.
They further submitted that the Panel properly carried out its function in answering questions 1 and 2 because its role is to arrive at its own conclusion. Neither payment of medical expenses pursuant to the Terms of Settlement in relation to the 2000 incident nor a previous medical panel opinion in 2010, nor any agreement at conciliation in relation to shoulder surgery, demonstrated an acceptance of liability or compelled this Panel to a particular conclusion in February 2020.
The right hip injury had not been included on the original claim form, and a request for surgery had been denied on the basis that the condition was not work related. Liability had never been determined for injuries prior to 2007. Conflicting notices were sent about liability for the hip in 2007. The employer submitted that the notice accepting liability had been sent in error. On this basis, the Insurer had rejected the claim for weekly payments for the period of recuperation from the surgery between May and August 2000. It fell for determination whether the hip surgery was related to the horse incident in 2000. The defendants submitted that it was proper for the Panel to consider and reach its own conclusion about the causal connection. In any event, it submitted whether or not the Insurer made an error, or changed its mind about liability for surgery, was ‘neither here nor there’ because the Panel was required to form its own opinion on the question.
The defendants submitted more generally that none of the factual errors, or incomplete descriptions of facts identified by the plaintiff in the course of his oral submissions, amounted to errors of jurisdictional fact. Rather they should be characterised as an attempt at merits review. By way of example, they submitted Mr Akers complained that the agreed facts contained a wrong description of his work at Goodcorp after the 2000 incident. Many early histories given to doctors by Mr Akers in fact departed from the history he now said was accurate. More importantly, the Panel accepted the history given to it by Mr Akers at examination and not that contained in the ‘Joint Statement’. Similarly, as to documents not before the Panel the complaint was misconceived as many of the documents identified by the plaintiff were in fact contained in Schedule B attached to the Panel’s Opinion. Others were only peripherally relevant and could not have altered the outcome.
The Panel’s Reasons
As to the Goodcorp Opinion, the paragraphs of the reasons that set out the Panel’s ultimate conclusions on questions of physical injury are as follows:
The Panel considered the mechanism of injury on 25 January 2000, including the plaintiff’s chest pain following direct impact of a horse’s hock against the plaintiff’s left chest, and the chest x-ray that was obtained and diagnosed fractured left ribs. The Panel noted that the plaintiff’s spine (neck/lower back), right hip and bilateral carpal tunnel symptoms emerged much later (after the plaintiff had ceased work in April 2002), indicating development of the underlying constitutional conditions, through a gradual process, as expected of the constitutional conditions. The Panel considered that the radiological changes in the plaintiff’s spine and right hip were not indicative of a specific physical injury but they were consistent with constitutional conditions that became more symptomatic as time passed, as part of the natural ageing process or as a result of metabolic factors (obesity) that were entirely unrelated to the physical injury incurred on 25 January 2000.
On this basis, the Panel concluded that the plaintiff’s employment with Goodcorp Pty Ltd was in fact a significant contributing factor to the (now resolved) left rib fracture and soft tissue injuries to the legs, but employment on or about January 2000 did not affect the underlying multiple constitutional conditions, which were subsequently diagnosed. Therefore, the Panel concluded that the plaintiff’s employment was not in fact a significant contributing factor to the plaintiff’s symptomatic cervical spondylosis with no clinical radiculopathy or myelopathy; his symptomatic lumbar spondylosis with no clinical radiculopathy; his symptomatic osteoarthritis of the left hip and left knee or symptomatic right hip osteoarthritis (surgically treated); his resolved bilateral carpal tunnel syndrome (surgically treated); his bilateral symptomatic rotator cuff degeneration (surgically treated) or his psychiatric condition, or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease, in any way.
…
The Panel therefore also concluded that the plaintiff’s resolved left rib fracture and soft tissue injury of the legs, results from but are no longer materially contributed to by the alleged injury to the chest and legs, respectively.
As the Panel concluded that the plaintiff had no relevant injury that precluded his return to pre-injury duties between 22 May 2008 and 22 August 2008, the Panel also concluded that between 22 May 2008 and 22 August 2008 the plaintiff had no present inability arising from an injury such that the plaintiff was not able to return to his pre-injury duties.12F[13]
[13]Medical Panel, Certificate of Opinion (Medical Panel Ref Number M119/2679), page 21-22.
In summary, the psychiatric conclusion was that the plaintiff had no psychiatric condition relating to the 2000 incident. It considered the plaintiff suffered a longstanding and pre-existing delusional disorder unrelated to the 2000 incident. It considered that there was possibly some distress, but did not consider that the plaintiff has or had a Post-Traumatic Stress Disorder caused by that event. Based upon its own psychiatric examination, it concluded the plaintiff did not meet the criteria for a Generalised Anxiety Disorder and Major Depression, Chronic Pain Disorder or Alcohol Abuse Disorder which diagnoses had been reached by other practitioners at various times.
In the Namatjira proceeding, the conclusions as to physical injury are expressed as follows:
The Panel considered the nature of the plaintiff’s employment from 2005 to 2011, and in particular on or about 18 March 2009. The Panel considered the nature of the incident with the truck handle detaching from its fastening, but considered that there was either no shoulder injury or that any soft tissue injury of the left (or right) shoulder was minor and quickly resolved. The Panel had regard to the plaintiff’s age, his medical history of metabolic syndrome, the duration of his employment, including the specific tasks, and the probability of his medical conditions emerging in any event, had those tasks or the incident of 18 March 2009, not occurred.
The Panel was not satisfied that the plaintiff’s employment from 2005 to 2011 including on or about 18 March 2009 had affected or caused an aggravation injury to the plaintiff’s pre-existing constitutional shoulder, knees or the cervical or lumbar spine pathology. The plaintiff consumed nonsteroidal anti-inflammatory medication and analgesic medication that probably provoked medication-related gastritis and/or oesophagitis. However, the nonsteroidal anti-inflammatory medication and analgesic medication was not for any employment-related injury, but rather, for gout or the other constitutional conditions. The worker was later diagnosed with obstructive sleep apnoea, the root cause of which is overweight and obesity, and the Panel considered that the worker’s overweight/obesity was not directly or indirectly adversely affected by any workplace injury between 2005 and 2011. On this basis, the Panel concluded that the plaintiff’s employment with Namatjira Trading Pty Ltd from 2005 to 2011 and, in particular, on or about 18 March 2009 was not in fact a significant contributing factor to any alleged injury to the shoulders and/or arms, injury to the knees, breathing, stomach problems, injury to the lumbar spine, injury to the cervical spine, “pins and needles throughout the body” injury or psychiatric injury or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease, in any way.13F[14]
…
As the Panel concluded that the plaintiff had no injury that precluded his return to his pre-injury duties between 12 August 2011 and 28 February 2018, the Panel also concluded that, in the period between 12 August 2011 to 28 February 2018, the plaintiff had no present inability arising from an injury such that the plaintiff was not able to return to his pre-injury duties.
As the Panel concluded that the plaintiff’s medical conditions are not attributable to any alleged injuries, the Panel made no finding on the question of whether general practitioner attendances, physiotherapy, chiropractic or psychological services were appropriate.14F[15]
[14]Medical Panel, Certificate of Opinion (Medical Panel Ref Number M119/2717), page 21-22.
[15]Ibid.
The Panel applied identical reasoning regarding psychiatric injury to conclude there was no psychiatric condition relating to the alleged injury when the plaintiff was employed by Namatjira.
The material before the Medical Panel
A large volume of documentation was provided to the Panel with the referrals. In both proceedings, the material was listed as Enclosure A which contained 142 listed items. In the Goodcorp proceeding, Enclosure B was also before the Panel which contained a further 35 listed documents. Item 2 (in Goodcorp) and 25 (in Namatjira) of Enclosure A were documents described as the ‘Statement pursuant to s 304’. Each was followed by the submissions of each party. Section 304 provides that a person or body referring a medical question must provide the Convenor with a document specifying the injuries and, relevantly:
304(a)(ii) the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute;
Each document that went to the Medical Panel was headed ‘Joint Statement pursuant to s 304’. It identified the injuries as those alleged (in Goodcorp) to the plaintiff’s ‘head, chest, lumbar spine, cervical spine, hips and/or legs, carpal tunnel and/or psychiatric state.’ Thereafter it set out what is essentially a claims chronology, followed by the proposed questions. The Namatjira Joint Statement identified the relevant employment period and set out injuries as ‘shoulders, arms, knees, breathing and stomach problems, lumbar spine, cervical spine, pins and needles throughout the body, psychiatric state and any sequelae thereof’ and set out the relevant claims histories.
The Joint Statements did not identify those facts in each document that were agreed and those that were disputed. Before it was sent to the Panel, Mr Akers took issue with some of the facts set out in the chronologies and advised the solicitors who had prepared the documents that he disputed those facts. In the Goodcorp referral they included the incorrect inclusion of left hip pain and the exclusion of other injuries, an incorrect description of the nature and periods of employment and an incorrect assertion of a return to full duties after the injury. He disputed acceptance of the right hip surgery in 2007 being in error, noting that the error was not corrected prior the surgery, that rehabilitation and home modifications associated with the hip surgery had also been paid for and noted the subsequent acceptance of the right hip in the impairment claim in 2009. He also disputed aspects of the Namatjira chronology.
A series of correspondence between the parties ensued prior to the referrals. This correspondence had not previously been exhibited to any affidavit, and were tendered during the course of the hearing with the consent of the defendant.15F[16] These additional documents had not been put before the Panel. This included an email dated 23 June 2019 setting out a list of matters that were inaccurate.16F[17] In response, he was informed that, subject to one matter which was changed, the respondents did not agree to changes being made to what were described by them as ‘agreed facts’.17F[18] He sent a further email on 8 July 2019 when a copy of the referral folders had been delivered to him.18F[19] He again repeated the alleged errors in the Joint Statements and said he disagreed with the description of each document as a ’Joint’ Statement. In response to changes previously proposed by Mr Akers, he was informed by the defendants’ solicitors that he could make submissions to the Panel,19F[20] the inference being that he could not make adjustments to the joint statements. Ultimately, the Joint Statements were provided to the Panel.
[16]Transcript of Proceedings, Akers v Namatjira Trading Pty Ltd & Ors and Akers v Goodcorp Pty Ltd & Ors (Supreme Court of Victoria, S ECI 2020 03432 and S ECI 2020 03234, Forbes J, 6 and 6 August 2021) 79 (‘T’).
[17]Email dated 23 June 2019 at G CB 1535.
[18]Letter dated 19 June 2019 at G CB 1540.
[19]Letter dated 8 July 2019 at G CB 1537.
[20]Email dated 23 June 2019 at G CB 1548.
Mr Akers was able to and did make additional written submissions pointing out that he disputed aspects of the Statements. Those submissions (which amounted to 5 further documents variously titled ‘submissions’ totalling 74 pages) were included in Schedule B. Schedule B appears to be the additional documents that the plaintiff sought to have included in the referral. A number of errors in the Joint Statement were not accepted by the Medical Panel. For example, the erroneous history in the Joint Statement in Goodcorp, that ‘within 6 to 8 weeks the plaintiff had returned to full time work’ was not relied on. The Reasons noted that ‘he never resumed full duties’, and the Panel observed that this contradicted a history obtained by Mr Scott in April 2003. The Panel obtained the history that Mr Akers ceased work in April 2002 and did not work between 2002 and 2005.
Additional documents were sent to the Panel. It appears that two documents only were not sent, having been refused by the Magistrate because it was not appropriate to include, were documents related to a proposed settlement offer.
Two matters of some significance for the purpose of answering the medical questions arise by reason of this dispute. First, it was important for the parties to identify for the Panel, as matters that are agreed or disputed, those injuries accepted as compensable and those that were not. The Goodcorp claim had been rejected on the basis that the plaintiff was not a worker under the Act. The settlement, with a denial of liability left the question of what injuries were causally related to the incident somewhat uncertain. By the settlement terms, acceptance of psychological and chiropractic services would suggest both physical and psychological injuries were accepted and future claims for expenses would need to address a continuing causal connection. Whether or not the right hip was subsequently accepted or not was a matter of dispute between the parties. It was not answered by the fact that the right hip did not appear on the claim form or in the 2006 proceedings. The compensability of the right hip condition was a medical dispute, overlaid by a factual dispute about whether or not the Insurer had accepted liability for surgery in error. The Joint Statement also identified a right hip injury as having been accepted with respect to the impairment benefits claim.
Relevantly, the question asked about the plaintiff’s current condition in relation to the hip injury was for the purpose of determining his claim for weekly payments for the post-operative period. Questions 1 and 2 were relevant stepping stones to the answer given to question 4 by the Panel about work capacity. The physical and psychiatric conditions were relevant to question 5, which asked about particular categories of medical expenses. The admission or rejection of injuries provides the proper starting point for the consideration of the various medical questions in the context of the dispute that has arisen from particular decisions of an insurer. The pleadings did not easily identify the relevant decisions that gave rise to the disputes nor did the Joint Statements.
Mr Akers’ complaint about factual errors really had two aspects. He pointed to errors of fact in the Joint Statements and errors of fact in the Panel’s reasons. As to errors in the s 304 Statement, Mr Akers was entitled, as he endeavoured to do, to have the Statement reflect those matters that were agreed and those matters that were disputed. The fact that the Statement did not distinguish factual matters in this way, combined with the description of it as a ‘Joint Statement’ led the Panel to mistakenly describe it as a statement of ‘agreed facts’. However, the question remains for me, exercising a supervisory jurisdiction, did the Panel fall into error in undertaking its task because it was mistaken about what was in dispute or otherwise from the shortcomings in the Joint Statements? That question is to be considered in light of the fact that Mr Akers made extensive written submissions which were provided to the Panel setting out the matters he disputed in the Joint Statement and that he was able to provide the factual information that he felt was accurate to the Panel during the three consultations.
Consideration
(a) Did the Panel exceed jurisdiction?
The role of a medical panel, providing an opinion by way of answers to medical questions, does require it to determine matters of fact and law.20F[21] To that extent, even if its reasons contain factual error as submitted by Mr Akers, or those reasons record matters in a way that is misleading or incomplete, that does not necessarily lead to the conclusion that the Panel has made a legal error. Distinguishing between errors of fact and errors of law, Phillips JA said in S v Crimes Compensation Tribunal of questions of fact:
It is sometimes said that where the question is one of degree, involving some element of value judgment, the question is one of fact. Thus if the question is whether the claimant’s circumstances is one on which minds can legitimately differ, involving a value judgment on the evidence (or other material), it is a matter for the tribunal. In that category one can put most questions of a causal link, or (in a case like this) whether some identified expense was the result of the relevant injury, or whether the claimant suffered “total or partial incapacity for work”. Involving questions of degree and evaluation, on the facts as otherwise established, these are essentially questions of fact which are committed to the tribunal and not to the Court.21F[22]
[21]Masters v McCubbery [1996] 1 VR 635.
[22](1998) 1 VR 83.
The qualification is where the error of fact is one that causes the decision maker to go beyond or outside its statutory function. Then an error of law arises. In Chang v Neill the Court of Appeal said:
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.22F[23]
[23]Change v Neill (2019) 62 VR 174; [2019] VSCA 151, [92].
First, was there no evidence upon which the Panel could have reached the conclusions it did? It is to be borne in mind that a ‘no evidence’ ground will fail if there is some evidence, even if only weak.23F[24] It is also difficult where the Tribunal is to apply its own experience and expertise in arriving at a decision because the application of that experience and expertise may itself be the evidence.24F[25] There was clearly evidence contained in medical reports that the need for right hip surgery was not due to any injury resulting from the horse incident, including that of Ms E Lewis, neurosurgeon and Mr I Jones, orthopaedic surgeon.25F[26] As to the need for shoulder surgery, the evidence that it was unrelated to employment with Namatjira included that of Mr Shannon dated 24 January 2011 who was of the view that the rotator cuff tears in both shoulders were degenerative in nature, that any contribution to injury in the left shoulder from the fall was slight and no longer contributing to symptoms. This ground of review must fail.
[24]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33.
[25]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, [47].
[26]Upon which opinions the Insurer relied in its Notice of Rejection dated 14 November 2007.
Second, did the Panel fall into error because it mistakenly overlooked that there had been acceptance of liability for hip surgery and bilateral shoulder surgery such that it misconstrued the identification of compensable injuries? Mr Akers contends in his written submissions in reply dated 15 June 2021 that, as the right hip was an accepted claim and as the shoulder surgery was paid by the Insurer, the Panel’s findings about the nature and extent of injury are wrong in a way that might raise an argument that it has made a mistake of fact in the sense described by Chang v Neill.
The Panel’s reasons are silent as to the claims history. Clearly from the claims history in the Goodcorp proceeding the causal connection between the 2000 incident and the need for hip surgery was in issue. There was no contemporaneous acceptance of the hip injury. The complaint of hip pain to medical practitioners and the commencement of chiropractic treatment occurred sometime after the horse incident. In 2007, there were conflicting decisions both to accept and to reject surgery. There was an acceptance of the right hip injury for impairment purposes. Whether or not the acceptance of surgery was in error as the first and second defendants contend, given the conflicting liability decisions, the question of liability for that surgery and therefore the incapacity following it remained an issue. Neither the decision to accept, nor to reject, could have bound the Panel. Had the Joint Statement identified disputed facts, it is clear that the parties would have included a dispute as to whether the need for hip surgery (and therefore the incapacity associated with it) was related to the horse incident.
Similarly, an agreement to pay for shoulder surgery arrived at following a conciliation led to a notice of acceptance dated 5 August 2011. The conciliation certificate shows that the parties reached agreement as to liability for particular medical expenses associated with the surgery but reached no agreement as to weekly payment entitlements. Liability for the first claim was only ever accepted for medical expenses. In the Namatjira Magistrates’ Court proceeding, incapacity and any entitlement to weekly payments was denied in the defence, including on the ground that it was an incapacity not materially contributed to by the compensable injury. Whether, in the Namatjira proceeding, the need for shoulder surgery was related to either the first accepted (and subsequently terminated) claim or the second disputed claim was to be determined. The plaintiff’s own submission put the level of incapacity in issue, submitting that he was restricted to very light duties from 7 March 2009 and could not work from 12 August 2011 to 14 October 2012 due to the operations. He submitted that he has been incapacitated for work since that time. Therefore, questions of incapacity and its relationship to a compensable injury arose more broadly than just the post-operative periods.
In each proceeding payment for surgery was a relevant piece of evidence, but did not for all time determine any question about the ongoing relationship between an injury sustained and the plaintiff’s condition as posed by the medical questions. The payment of surgery did not compel the Panel to reach a particular conclusion as to the relationship between present condition and injury. The Panel did not exceed or misunderstand its jurisdiction.
(b)Did the Panel have regard to irrelevant considerations given its misdescription of the Joint Statement as one of ‘agreed facts’?
Relevant to this ground is whether the Panel incorrectly treated any of the matters that were actually in dispute as having been agreed, and thereby considered that purported agreement as an irrelevant matter.
While a medical panel is to reach its own conclusion on the questions referred to it, more fundamentally, section 302 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) says:
(1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.
A Panel does not certify in the air or in a vacuum. It does so by reference ‘to those injuries or diseases relevant to compensation under the Act.’26F[27] It is relevant for the panel to understand the injuries that have been accepted or disputed as being compensable so that it understands whether it is being asked a question of ongoing causal connection of an accepted injury, or threshold causal connection of a disputed injury.
[27]Smith v Mann (1932) 47 CLR 426.
Whilst there was no dispute that each of the horse incident and the truck incident occurred, and perhaps even no dispute as to at least some of the body parts that suffered injury – it remained for the Panel to determine for itself the nature of the injury to those body parts. In relation to the right hip and the shoulders, the medical conditions included degenerative conditions; thus, one question for the Panel was whether any injury sustained affected those degenerative conditions or was unrelated to them.
To this extent the Joint Statements made reference to documents evidencing both acceptance and rejection. It is clear that the Panel did not act in reliance on any particular part of the Joint Statements but formed its own views in order to answer the questions. I see no basis to conclude that by referring to the joint statements as containing ‘agreed facts’, the Panel relied on them in such a way as to have regard to irrelevant matters, or failed to have regard to matters that were relevant.
As outlined above, the question of whether a compensable right hip injury had been sustained in relation to the horse incident had not been determined. A left shoulder injury had been accepted in the first claim regarding the Namatjira proceeding. It was necessary for the Panel to decide the nature of that shoulder injury. Although the Panel concluded ‘that there was either no shoulder injury or that any soft tissue injury of the left (or right) shoulder was minor and quickly resolved’, this conclusion was consistent with the acceptance of a left shoulder injury in the first claim and a disputed injury in relation to the second claim. In any event the question of identification of injury cannot be completely divorced from the cause of that injury.
(c) Relevant considerations regarding capacity for work
The plaintiff took issue with capacity findings in both proceedings but more so in the Namatjira review. He submitted that the Panel described the shoulder surgery as having been successful and this did not identify in any practical way his capacity for work. Further, he submitted that the Panel failed to have regard to the impact on work of his psychological condition.
In respect of the physical injuries, the plaintiff says ‘to accept that I had a work capacity to go back to, the day after two shoulder operations when one shoulder was in a sling for six months, …but [the Panel] did state that I could go back to work the day after the shoulder operations’.27F[28] He made a similar submission in relation to capacity for work in the immediate post-operative period following the hip surgery.
[28]T 82.14.
This ground of review is misconceived. The Panel did not positively conclude that the plaintiff could resume work on the day following surgery. It determined that the inability to work did not arise from a compensable injury. Fundamentally, the Panel concluded that what was sustained in 2000 were left rib fractures and soft tissue injuries to the legs, and neither of those injuries incapacitated Mr Akers for work in 2008. Similarly with the shoulder surgery, there was no positive finding of a capacity to resume work immediately after surgery, but that surgery was not required for a work injury to the shoulders (which the Panel found was ’minor and quickly resolved’) so the incapacity that resulted from the surgery was not related to the compensable injury.
(d) Findings about the shoulder injury
The Panel recorded that Mr Akers said he had no shoulder injury before commencing work with Namatjira. He submitted to me that an effect of the horse incident was that his shoulders were denied adequate blood so that damage may have occurred at that time which, as I understood the argument, increased the likelihood of injury to the shoulders when working with horses in the Namatjira employment.28F[29] It is not apparent that the Panel were told this, or that Mr Akers had medical support for that proposition. In any event, the complaint about the shoulder injury in the Namatjira employment rests on the proposition that, having accepted liability for the cost of surgery and associated other rehabilitation expenses, the incapacity associated with the surgery ought also be accepted.
[29]T 8.
Whatever the logic of that proposition, it was not what was agreed at conciliation. The entitlement to weekly payments, both postoperatively and more broadly as sought by Mr Akers, were not agreed and were to be determined in the Namatjira Magistrates’ Court proceeding. It was therefore an appropriate question for the Panel. No error is demonstrated in its answer.
(e) Findings about psychiatric injury
Mr Akers contended that the Panel was in error recording the prescription of antidepressants following the horse incident because he never took the prescribed medication. He also submitted that the Panel was incorrect in the way it recorded dealings he had following the death of his son. The Panel took a history regarding his application for a training licence to Racing Victoria in 2013 which the plaintiff described as incomplete. The Panel thought this a relevant matter as to his psychological capacity in working around and with horses. Similarly he took issue with the way the Panel expressed his lack of contact with a friend by failing to record that it was because the friend had passed away. He submitted that he is able to deal with problems that he has some input into – problems he faces outside of work - but because he has no control over the work problems he has developed psychological problems.
There is no doubt that Mr Akers has had to deal with a number of psychologically difficult circumstances outside of his employment. It is appropriate that the Panel have regard to those matters as part of its consideration of what psychological impact the work incidents and the physical injuries sustained in them have had on his mental health. Although Mr Akers himself considered he had no psychiatric illness or condition prior to the horse incident, the Panel noted a number of family interactions that suggested otherwise.
The Panel’s conclusions as to psychiatric injury rested on two matters. First, it accepted that the horse incident was traumatic and may have caused a direct psychiatric injury. Mr Akers described problems with confined spaces, working with horses and trust in authorities. It observed his present ongoing thoughts about the horse incident were that ‘he would not want to be in that situation again’ and did not describe flashback problems. It concluded that Mr Akers continued to attend to horses over many years since the horse incident despite some avoidance behaviours and caution. It had regard to a discrepancy as to why he stopped work with horses in 2011. The Panel was told it was partly attributed to fear of horses but noted a letter to Racing Victoria in 2013 that said he was working and training horses. The Panel concluded that any psychiatric symptoms from the horse incident were not sufficient to lead to a psychiatric diagnosis.
Second, the Panel considered whether a psychiatric injury arose as a consequence of compensable physical injuries, including whether Mr Akers suffered from a Pain Disorder as diagnosed in some of the medical opinions provided to the Panel. Given the Panel’s conclusions that the horse incident resulted in fractured ribs and soft tissue injuries to the legs which had resolved and that the Namatjira employment resulted in a minor injury to the shoulders, the lack of a compensable psychiatric injury consequent to those injuries is unsurprising.
The Panel did find that Mr Akers suffers from psychiatric conditions, but that they are unrelated to the Workcover claims. This ground is not made out.
(f) Finding about metabolic syndrome
Mr Akers submits that by finding that he suffered from a metabolic syndrome the Panel failed to grapple with his breathing difficulties and his heart problems. Mr Akers submitted that the Panel was asked its opinion on his heart and breathing problems but said that the Panel chose not to address it.29F[30] The Panel were not asked any question about a heart condition in the Namatjira referral. The Panel took a history of his cardiac condition with a series of collapses from 2012 leading to the insertion of a pacemaker in 2019 as part of its overall history of medical conditions. Nowhere was the Panel asked about any relationship of the heart condition to the Namatjira employment.
[30]T 83.11.
As to breathing difficulties the Panel noted a diagnosis of obstructive sleep apnoea diagnosed in 2014. It obtained a history of Mr Akers using a CPAP machine, occasional use of Ventolin for wheezing and that pain rather than shortness of breath limited exercise. The Panel obtained its own respiratory function tests which did not show significant obstruction or restriction. It concluded that the obstructive sleep apnoea was due to obesity. The Panel then concluded that the obesity was ‘not directly or indirectly adversely affected by any workplace injury between 2005 and 2011’. It can be seen that, as it was asked to, the Panel did in fact deal with the breathing condition.
To the extent that the Panel relied on dated medical opinion to arrive at a conclusion that the plaintiff suffered from a metabolic syndrome, it did so as part of the overall medical history of the plaintiff. That condition, like Mr Akers age, the duration of employment with Namatjira and the tasks involved were all relevant only to the Panel’s conclusion as to the probability of the various medical conditions emerging even if the truck incident or the Namatjira work had not occurred. The Panel did not make any particular finding as to metabolic syndrome. No error has occurred.
(g) Inadequate Reasons
Read as a whole, the Reasons clearly demonstrated that the plaintiff failed because the Panel concluded that his incapacity following hip surgery in 2008 and shoulder surgery in 2011 was not related to injury sustained in employment, as the surgery was needed for an underlying constitutional condition. It was not because the Panel formed the view that Mr Akers could resume work immediately after each surgery. The Panel, although required to form its own opinion, arrived at that opinion by synthesis and consideration of a number of sources of information: what they are told, documents they are provided with, and any further information they identify as necessary. To the extent Mr Akers argues that the Panel had insufficient time or material on which to reach its conclusions the submission must be rejected. It is part of the Panel’s function to determine whether or not it has sufficient information to reach an informed opinion.30F[31]
[31]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 311, 312.
To the extent that the grounds complain that the Panel gave insufficient weight to other medical opinion that was placed before it, I cannot accept the plaintiff’s submission. It is for the Panel to decide what weight it gives to evidentiary material before it. Certainly by the handwritten annotations on Schedule A and the various references in the Reasons to the material it is apparent that the Panel have had regard to many of the details contained in the accompanying material. The fact that the Panel gave some information little weight, or disagreed with an opinion expressed, does not mean it failed to have regard to it. The reasons make extensive reference to various medical opinions that were provided to it and on occasion set out the substance of those opinions within its Reasons. Its role is to form its own opinion, not to adjudicate on competing medical opinions.31F[32] It expressly stated ‘it was not necessary for the Panel to adjudicate the dissenting opinions’ as to the causation of physical injuries.
[32]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.
I do not propose to deal with every factual error or misdescription identified by Mr Akers in his oral submissions. Many of the specific contradictions or incomplete recording of facts in my view cannot be sustained by a reading of the reasons as a whole. They do not in my view affect the overall adequacy of the Reasons. I will give two examples.
The plaintiff said that the Panel’s recorded history that ‘in or about mid-2003, he had severe right hip pain’ was incomplete, wrong and misleading because it did not articulate what the pain was caused by and because it incorrectly recorded that he was having no specific treatment when he was in fact having regular chiropractic treatment. This overlooks first that the Panel is recording what it was told about treatment and onset of symptoms as part of its history taking. Elsewhere, the Panel records that he had treatment from a chiropractor for his spine from 2003 for some years. The chiropractor’s reports do indicate treatment for spine and hip pain although commencing from July 2004. It also overlooks the point that (later in the Reasons) the Panel expresses an opinion as to the cause of right hip pain - that it was constitutional in nature. In the same vein, he submits that a description of the outcome of hip surgery as ‘successful’ is insufficient because it did not express as a percentage what his capacity for work would be after the surgery. The idea of a percentage quantification of capacity finds no support in the Accident Compensation legislation.
Similarly, he says that the Panel were wrong to conclude that the carpal tunnel arose in 2008 when Mr O’Brien (whose report was before the Panel) diagnosed it in 2004. The Panel’s opinion was described as a ‘false articulation’. The Panel did record Mr O’Brien’s diagnosis in 2004 and the nerve conduction studies in April 2004. It then went on to describe developments in 2008 which took him to Mr Berger and the carpal tunnel surgery that was performed.
Conclusion
For these reasons, his Originating Motions must fail. In those circumstances, notwithstanding the explanation for the delay in commencing the proceedings, it would be futile to grant extensions of time.
SCHEDULE 1
S ECI 2020 03432
| BRUCE AKERS | Plaintiff |
| -and- | |
| NAMATJIRA TRADING PTY LTD | First Defendant |
| VICTORIAN WORKCOVER | Second Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS (CONVENOR OF MEDICAL PANELS) | Third Defendant |
| ASSOCIATE PROFESSOR ABRAHAM RUBINFELD | Fourth Defendant |
| ASSOCIATE PROFESSOR EVANGE ROMAS | Fifth Defendant |
| MR RODDICK CUMMINGHAM | Sixth Defendant |
| MR PETER DOHRMANN | Seventh Defendant |
| ASSOCIATE PROFESSOR RICHARD STARK | Eighth Defendant |
| DR PETER FARNBACH | Ninth Defendant |
SCHEDULE 2
S ECI 2020 03434
| BRUCE AKERS | Plaintiff |
| -and- | |
| GOODCORP PTY LTD | First Defendant |
| VICTORIAN WORKCOVER | Second Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS (CONVENOR OF MEDICAL PANELS) | Third Defendant |
| ASSOCIATE PROFESSOR ABRAHAM RUBINFELD | Fourth Defendant |
| ASSOCIATE PROFESSOR EVANGE ROMAS | Fifth Defendant |
| MR RODDICK CUMMINGHAM | Sixth Defendant |
| MR PETER DOHRMANN | Seventh Defendant |
| ASSOCIATE PROFESSOR RICHARD STARK | Eighth Defendant |
| DR PETER FARNBACH | Ninth Defendant |
| DR STEVEN ADLARD | Tenth Defendant |
2
5
0