Ambrose v Eric Jones Stairbuilding Group Pty Ltd
[2023] VSC 427
•26 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04053
BETWEEN:
| NATHAN AMBROSE | Plaintiff |
| v | |
| ERIC JONES STAIRBUILDING GROUP PTY LTD & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2, 22 March 2023 |
DATE OF JUDGMENT: | 26 July 2023 |
CASE MAY BE CITED AS: | Ambrose v Eric Jones Stairbuilding Group Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 427 |
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JUDICIAL REVIEW – Medical panel – Jurisdictional error and/or error of law on the face of the record – Whether employment duties a substantial contributing factor to plaintiff’s cervical spine injury – Panel held that neck condition was of congenital origin, not work related – Whether panel formed its opinion in a manner that was legally unreasonable or constructively failed to exercise its jurisdiction by failing to make an obvious inquiry about a critical matter – Whether the material not before the panel was ‘critically relevant’ – Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, Chang v Neill (2019) 62 VR 174, Schmael v Leach [2020] VSC 562, Edwards v State of Victoria [2021] VSC 423, CD v Central Gippsland Health Service [2022] VSC 462, Troeth v Cerberus Catering Pty Ltd [2022] VSC 767 and Sidiqi v Kotsios [2021] VSCA 187 referred to – Held that it was not legally unreasonable for the panel to not make inquiries to obtain an operation report and other clinical records where the plaintiff has not shown the information was critically relevant to the causation issue.
JUDICIAL REVIEW – Procedural fairness – Whether denial of procedural fairness to the plaintiff by reason of not being afforded the opportunity to make submissions to the panel regarding the plaintiff’s spinal surgery – Whether denial of procedural fairness to the plaintiff by reason of a medico-legal report not being provided to the medical panel despite the report being extracted and referred to in the plaintiff’s submissions to the medical panel – Held that there was no denial of procedural fairness by reason of not allowing the plaintiff to make submissions regarding the operation, as the plaintiff had not identified what submissions it would have made, and how they would have made a difference to the outcome – Held that no denial of procedural fairness by reason of failure to obtain a copy of the medico-legal report, as the key conclusions were extracted in the plaintiff’s submissions, and the plaintiff had not established that the omission of the report was material to the outcome.
JUDICIAL REVIEW – Mandatory relevant considerations – Whether panel failed to consider and engage in an active intellectual process with respect to matters raised in submissions made to the panel and a medico-legal report – Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Swidryk Investments Pty Ltd v El-Najjar [2023] VSCA 11, Victorian Workcover Authority v Putrus [2023] VSCA 28 and Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 referred to – Held that the panel’s reasons show that the panel clearly considered whether the plaintiff’s employment was a substantial contributing factor to the plaintiff’s neck condition.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold with Ms Y Al‑Azzawi | Slater and Gordon Ltd Lawyers |
| For the First Defendant | Ms F Spencer | Lander & Rogers |
| For the Second, Third and Fourth Defendants | Victorian Government Solicitor |
HER HONOUR:
Introduction and background
These reasons concern an application by the plaintiff, Mr Nathan Ambrose, for judicial review of a determination of a medical panel constituted under s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’).
Mr Ambrose is currently 29 years of age. Between leaving school in around 2012 and the time he ceased work in about August 2019 he was employed full-time by the first defendant (‘employer’) as a boilermaker, building and installing metal staircases. All agree that this was heavy and physically demanding work. Since 2016, he has suffered from low back pain, and later also complained of neck pain.
The initial onset of low back pain occurred in April 2016, when he suffered acute pain when lifting heavy bluestone stair treads (‘2016 incident’). This injury resolved after taking some time off work and receiving some physiotherapy. He had some more time off work after having a fall playing basketball, which had caused some spinal pain, but he had no further problems until 2018, when the gradual onset of low back pain caused him to seek further physiotherapy treatment and to commence wearing a back brace.
In February 2019 Mr Ambrose had a further episode of back pain while lifting multiple steel treads from a pallet while building a staircase (‘2019 incident’), initially experiencing mid back pain. He took some weeks off work and was prescribed some analgesics, following which the employer put him on lighter duties, working reduced hours. However, his pain symptoms failed to resolve, and he ceased work in July or August 2019.
On 12 March 2019, Mr Ambrose lodged a claim for weekly payments of compensation under the WIRCA in respect of his lower back injury arising out of the 2019 incident. The employer’s claims agent accepted liability for the claim, but on 20 August 2019, the claims agent terminated Mr Ambrose’s entitlement to compensation on the basis that his incapacity for work was not materially contributed to by a compensable injury, and that he no longer required medical treatment for his injury.
The claims agent relied upon a report of Dr Sam Soliman, an occupational physician, dated 1 August 2019. Dr Soliman examined Mr Ambrose and conducted a workplace assessment at the employer’s premises. Dr Soliman opined as follows:
Based on the available information, Mr Ambrose may have had a simple mechanical lower back pain after the described lifting incident at work which in my opinion has now resolved. There is no clinical or radiological explanation for Mr Ambrose’ (sic) expressed lower back pain and it is highly likely to be posture related. Mr Ambrose also has non work related ongoing neck pain related to his congenital C5/6 fusion and degenerative disc disease above it.
…
Mr Ambrose’ (sic) cervical spine congenital abnormality and compensating degenerative disc disease is a medical condition and unrelated to the compensable mechanical lower back pain.
Dr Soliman concluded that Mr Ambrose’s current incapacity was no longer materially contributed to by the 2019 incident, and that he was capable of returning to his pre‑injury hours and duties.
On 19 December 2019 Mr Ambrose made a further claim in respect of injuries to his neck and back said to have been sustained over the course of his employment from about 2016. This claim was rejected by the claims agent.
On 18 December 2019 Mr Ambrose issued a proceeding in the Magistrates’ Court at Melbourne seeking weekly payments of compensation and payment of medical and like expenses pursuant to the WIRCA with respect to both claims. At the request of the employer, and with the consent of Mr Ambrose, on 27 October 2020 a magistrate referred certain questions (‘medical questions’) to a medical panel (‘panel’).
The referral to the panel was accompanied by a suite of documents (‘referral materials’), including the medical questions, a statement of agreed facts pursuant to s 304 of the WIRCA, and written submissions filed on behalf of Mr Ambrose and the employer. However, the referral materials were incomplete, as is discussed later in these reasons.
While the referral to the panel was made on 27 October 2020, the panel did not examine Mr Ambrose until 26 July 2021, because there was a delay in the provision of the balance of the referral materials to the panel. What occurred during this period of delay will also be discussed further in these reasons, but, in short, the complete set of referral materials was not provided to the panel until early July 2021. By this time, Mr Ambrose had undergone surgery, namely a C4/5 decompression and cervical arthroplasty, which had not occurred or even been foreshadowed at the time the referral order was made.
The panel and its reasons
The panel was constituted by Dr Dominic Yong, an occupational and environmental physician, Dr Armin Drnda, a neurosurgeon, and Mr Peter Wilde, an orthopaedic surgeon. The panel delivered its opinion on the medical questions on 3 September 2021, as follows:
Question 1What is the nature of the Plaintiff’s medical condition relevant to the claimed injuries to his:
a) Low back;
b)Chronic pain as a consequence to the low back injury, and
c) Neck;
(said injuries)
Answer: The Panel is of the opinion that Mr Ambrose is suffering from:
a)Lumbar soft tissue injury with persisting pain symptoms.
b)As above.
c)Right C4/5 mild disc protrusion, surgically treated, at a level above a constitutional segmental defect, with persisting dysfunction.
Question 2Was the Plaintiff’s employment in fact, or could it possibly have been, a significant contributing factor to the claimed neck injury?
Answer:The Panel is of the opinion that Mr Ambrose’s employment was not in fact and it could not possibly have been a significant contributing factor to the claimed neck injury, or to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition affecting the cervical spine.
Question 3Is the Plaintiff incapacitated for his pre-injury duties by any of the said injuries, and if so which?
Answer:The Panel is of the opinion that Mr Ambrose is incapacitated for his pre-injury duties due to his low back injury.
Question 4If yes to question 3, does the incapacity result from, or is it materially contributed to by any of the said injuries and if so, which?
Answer:The Panel is of the opinion that the incapacity results from and is materially contributed to by the low back injury.
The panel published reasons for its opinion (‘reasons’). After recounting formal and procedural matters, the panel noted the following agreed facts:
·Mr Ambrose was employed by the [employer] as a boilermaker on or about 8 November 2012. His duties included building metal and steel stairs and rails.
·In or about late 2018 Mr Ambrose fell backwards whilst playing basketball and experienced a flare up of lower back pain. He required some days off work.
·On 5 December 2018 he was investigated by way of MRI and had twice weekly physiotherapy for two to three weeks.
·In late December 2018 Mr Ambrose then returned to work on light duties for four months and thereafter resumed normal duties.
·Mr Ambrose sustained an injury to his back on 15 February 2019 whilst lifting metal in the process of building a steel staircase for the [employer].
·He subsequently alleged that he also sustained injury to his back and neck as a result of the general nature of his duties throughout the course of employment from around 2016.
Under the heading ‘History of presenting physical complaint,’ the reasons referred in some detail to the history provided by Mr Ambrose of his back and neck pain symptoms, and noted that Mr Ambrose told the panel that he had no lower back or neck pain after the 2016 incident, but that from about 2018, he noticed pain in his lower back, and had the odd day off work as a result of these symptoms.
The reasons record what Mr Ambrose reported as occurring after the 2019 incident as follows:
Mr Ambrose said that he had another spinal pain episode at work in February 2019, whilst at a job site and he was building a staircase. He said that he was bending and lifting multiple steel treads from a pallet as part of the installation process, leading to initial mid back pain (“the steel tread incident”).
Mr Ambrose said that he saw his doctor and was certified unfit to work any duties for a few weeks. He said that he was prescribed painkiller medications and advised to see a physiotherapist. Mr Ambrose said that he talked with his manager about this, and they changed his roles so that he did more tasks in the factory rather than doing more tasks onsite, as this involved less manual handling tasks.
Mr Ambrose said that he had persisting pain, and it started radiating to his lower back and to his neck. He said that he did his tasks and was noticing worsening pain in his arm and nerve-type pain. He said that his condition was not improving, and he had an independent medical examination where he was told that he was fit to work his normal duties and he had no injury.
Mr Ambrose said that due to his pain symptoms, he some (sic) scans of his neck and low back, and was told that these revealed some issues. He said that he was referred to see a specialist, Dr Neels du Toit at Metro Pain Group. He said that he had an epidural injection to his lumbar spine which did not lead to any significant improvement. He said that he had several injections into his neck including a facet joint injection and nerve root block; and the facet joint injection helped the most.
Mr Ambrose said that after this he was advised to do some exercises and he saw a physiotherapist to do a Kieser program. He said that he attended on a weekly basis initially, and then increased this to attending twice weekly. He said that he continued taking some painkiller medications.
Mr Ambrose said that he was also referred to consider a pain management program and had the initial assessment but did not proceed with this.
Mr Ambrose said that in 2021 he was referred to see a neurosurgeon, Mr Aliashkevich. He said that he had a range of neck scans and was told there were issues in his nerve and a disc problem. He said that he underwent a C4/5 decompression and cervical arthroplasty on 24 June 2021. He said that prior to going for this operation he was taking medications for his pain such as codeine, Valium and Endone. He said that the disc replacement has led to reduction in his pain, and he is due to see the neurosurgeon in two weeks time.
Under the heading ‘Current physical condition and treatment,’ the reasons record that Mr Ambrose told the panel that he had some neck stiffness, some left arm pain symptoms, and a slight ache in his lower back, but that his symptoms have improved since the operation. He took four tablets of paracetamol per day.
Under the heading ‘Occupational history,’ the reasons record Mr Ambrose’s account of the work he did with the employer both before and after the 2019 incident. The reasons also provide some details of Mr Ambrose’s medical history, social history, and functional capacity.
The panel also reported upon its physical examination of Mr Ambrose, as follows:
On examination of the cervical spine, there was a 4.5cm well healed left anterior transverse scar on the left consistent with the recent surgery. There were no areas of swelling. There was no specific tenderness with palpitation. The range of movement of the cervical spine was reduced in all planes.
The neurological examination of the arms revealed that pin prick sensation was normal. The biceps, triceps and brachioradialis reflexes were normal. There was tenderness when palpating the forearms. Power was mildly reduced in the upper limbs bilaterally.
The panel also referred to the imaging materials and reports provided to it, as follows:
Mr Ambrose brought with him the following investigations, which were reviewed by the Medical Panel:
·X-ray cervical spine dated 25 June 2021 noted a lack of segmentation at C5/6 and the presence of a C4/5 implant with normal alignment.
·Weight-bearing MRI scan cervical spine dated 19 May 2021 noted a small C4/5 disc protrusion with minimal foraminal stenosis on the right and lack of segmentation at C5/6.
·MRI cervical spine dated 22 February 2020 noted a congenital fusion (incomplete segmentation) of the C5/6 intervertebral space. There was mild desiccation of the C3/4 and C4/5 discs, with a small disc bulge towards the right side at the C4/5 level, making slight contact with the right C5 nerve.
The Panel reviewed the following radiological investigation reports:
·MRI lumbar spine dated 5 December 2018 was reported as demonstrating no specific abnormality.
·CT scan cervical spine and lumbosacral spine dated 15 July 2019 was reported as demonstrating normal vertebral alignment with a congenital fusion of the C5/6. The C4/5 disc was described as demonstrating a right paracentral disc protrusion, projecting into the neural foramen, which the report suggested: “could likely account for C5 radiculopathy”. The CT scan of the lumbar spine was in fact reported as demonstrating no apparent abnormality. The report described no lumbar radicular compression or displacement.
The Panel concluded that no additional investigations were required by the Panel in order to complete its assessment and to answer the medical question.
Under the heading ‘Conclusions and diagnosis’ the panel stated as follows:
The Panel is of the opinion that Mr Ambrose is suffering from a lumbar soft tissue injury with persisting pain symptoms; and a right C4/5 mild disc protrusion, surgically treated, at a level above a congenital segmentation defect, with persisting dysfunction.
Significant contributing factor
The Panel noted the nature of Mr Ambrose’s neck condition. The Panel noted the lack of segmentation at the C5/6 level, which is also known as a congenital fusion. The Panel concluded that this is a constitutional developmental cervical spine condition. The Panel noted the natural history of this condition, and that it is likely that it would increase loading to the adjacent spinal levels, and commonly to the level above. The Panel noted the history of the gradual onset of neck symptoms, which would be consistent with the natural history of this developmental condition. The Panel noted the nature of the employment duties since commencing employment, and his ability to fulfil this role without significant difficulties until the incident. The Panel also noted the absence of a specific workplace incident and considered that there was no temporal relationship with his employment. Therefore, the Panel concluded that Mr Ambrose’s employment was not in fact and could not possibly have been a significant contributing factor to the claimed cervical spine condition, or to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition affecting the cervical spine.
The panel then referred to what it described as the inherent requirements of Mr Ambrose’s role with the employer, in particular, the requirement to do ‘heavy lifting, pushing and pulling duties,’ stating as follows:
The Panel considered that the required duties exceed the current physical tolerances, and, therefore, concluded that Mr Ambrose is incapacitated for the pre-injury duties.
The Panel noted the nature of the low back condition and its clinical course. The Panel noted the treatment undertaken, and the response to these. The Panel noted that the low back symptoms have not remitted. Therefore, the Panel concluded that Mr Ambrose’s incapacity for work results from and is materially contributed to by the claimed low back injury.
The panel concluded the reasons by commenting upon some of the medical reports provided to it. In summary:
(a) the panel agreed with Dr Soliman that Mr Ambrose had ‘non-work related ongoing neck pain related to his congenital C5/6 fusion and degenerative disc disease above it,’ but disagreed with Dr Soliman’s opinion that Mr Ambrose was fit for his pre-injury duties;
(b) the panel agreed with the opinion of Dr Saxby that ‘Mr Ambrose has a cervical spine congenital C5/6 fusion with associated C4/5 disc protrusion above and low back pain most likely muscular ligamentous of mechanical nature; and that the cervical or neck problem is a pre-existing or constitutional problem and work has no role in this’; and
(c) the panel disagreed with Dr du Toit’s conclusion that:
·Somatic neck pain coming from facet joint origin and lower back pain coming from lower lumbar facet or the sacroiliac joint origin and as a result of chronic pain, and he has developed overriding neuropathic pain.
·The neck and back pain started in 2016 at work, associated with lifting, pushing and pulling and performing repetitive neck extension type activities and that the current injury presentation and incapacity for work is a direct result of the injury as described.
The reasons concluded as follows:
The Panel noted the Submissions by the Plaintiff dated 6 October 2020, and the Submissions by the Defendant dated 9 September 2020, provided with the Referral letter. The Panel considered its Reasons herein adequately and appropriately address the issues.
The application for judicial review
In his amended originating motion dated 20 February 2023, Mr Ambrose seeks an order quashing the opinion of the panel, and an order remitting the medical questions, insofar as they concern Mr Ambrose’s neck condition, to a differently constituted medical panel.
The grounds upon which relief is sought are as follows:
Jurisdictional error/error of law on the face of the record
1.In determining its response to referred questions 1 and 2 with respect to the alleged injury to the neck, the panel formed its opinion in manner which was legally unreasonable and or constructively failed to exercise its jurisdiction.
Particulars
i.The medical panel has statutory power to request further information.
ii.Inter alia, the panel was asked to form an opinion about the nature of the plaintiff’s medical condition relevant to claimed injury to his neck and its causal relationship with his employment;
iii. The medical panel referred was lodged on 27 October 2020.
iv.The medical panel examination was carried out on 3 September 2021.
v.At the panel examination, the plaintiff reported to the panel, and the panel duly recorded in his reasons, that he underwent a C4/5 decompression and cervical arthroplasty on 24 June 2021.
vi.Further, the plaintiff’s written submissions to the medical panel 6 October 2020 referred to and relied on the opinions expressed in the medico-legal opinion of Dr Richard Sullivan dated 29 April 2020.[1]
[1]At trial, Mr Ambrose did not advance any submission to the effect that the panel’s failure to obtain a copy of the Sullivan report was unreasonable.
vii.The panel was not provided with, and so did not form its opinion with reference to:
a. The report of Dr Richard Sullivan dated 29 April 2020.
b.Any reports or records of Dr Aliashkevich (the plaintiff’s treating neurosurgeon).
c. Updated medical records.
viii.The panel took no steps to inquire about or obtain the additional information.
ix.The additional information as obvious and centrally relevant to the matters of injury and causation the panel was required to consider.
x.The failure of the panel regarding the additional information could have affected the opinion reached by the panel regarding the nature and cause of the claimed cervical spine injury.
2.In determining its response to the referred questions 1 and 2, the panel fell into jurisdictional error by failing to accord the plaintiff procedural fairness.
Particulars
i.As part of the referral material the panel received written submissions from the plaintiff and the first defendant. In the final paragraph of its reasons, the panel noted these submissions.
ii.The plaintiff’s submissions referred to and relied on the opinions expressed in the medico-legal opinion of Dr Richard Sullivan dated 29 April 2020, including with respect to the nature of the plaintiff’s work duties and the cause of the plaintiff’s cervical spine injury.
iii.In these circumstances, it was procedurally unfair for the panel to:
a.fail to put the plaintiff on notice that it intended to form its opinion without reference to the Sullivan report;
b. fail to inquire after, or read the Sullivan report;
c.form its opinion without considering the Sullivan report;
d.form its opinion without properly considering the matters raised by the submissions, namely the opinion of Mr Sullivan and the content of Mr Sullivan’s report.
iv.There is a realistic possibility that full review of the opinion of Mr Sullivan could have affected the conclusion reached by the panel regarding, in particular, the cause of the claimed cervical spine injury.
3.In determining its response to referred questions 1 and 2, the panel fell into jurisdictional error by failing to consider a mandatory relevant consideration, being matters raised by the plaintiff in his written submissions to the panel regarding causation of the plaintiff’s cervical spine injury.
Essentially, Mr Ambrose says that the panel erred in proceeding to form its opinion without obtaining the operation report prepared by a neurosurgeon, Dr Aliashkevich, who operated on Mr Ambrose’s cervical spine approximately one month before the panel’s examination (‘operation report’), and other clinical records associated with the operation and pre-operative investigations (together ‘operation records’). Mr Ambrose says that the panel erred in failing to obtain and consider a medico-legal report prepared by Dr Richard Sullivan on 29 April 2020 (‘Sullivan report’) prior to forming its opinion on the cause of Mr Ambrose’s neck condition, being whether it was a congenital condition or was work-related (‘causation issue’).
In summary, the issues in this proceeding are as follows:
(a) whether the panel fell into jurisdictional error by failing to make an obvious inquiry about a critical matter by failing to obtain the operation report and/or other operation records, and therefore failed to perform its statutory function within the bounds of legal reasonableness;
(b) whether the panel failed to make an obvious inquiry about a critical matter in failing to confer with, or in failing to obtain a report from Dr Aliashkevich;
(c) whether the panel erred in failing to provide the parties with the opportunity to make further submissions about the neck surgery[2], and, by failing to obtain a copy of the Sullivan report, the panel breached its obligation to afford Mr Ambrose a fair hearing;
(d) whether the panel failed to take into account Mr Ambrose’s submissions regarding the causation issue and the Sullivan report, and as such failed to take into account a mandatory relevant consideration; and
(e) which party bore the responsibility for the omission of the Sullivan report and/or the operation records from the referral materials, and the implications of any findings in that regard for Mr Ambrose’s entitlement to relief in this proceeding.
[2]This contention was not referred to in the amended originating motion, but was the subject of submissions.
Originally, Mr Ambrose claimed that the panel failed to provide an adequate statement of reasons as required by s 313(2) of the WIRCA, but this ground was not pressed at trial.
The evidence
Mr Ambrose relied upon three affidavits: an affidavit of Mr Andrew Karasmanis of Slater and Gordon Ltd Lawyers (‘Slater & Gordon’) affirmed on 8 November 2021, a further affidavit of Mr Karasmanis sworn on 28 September 2022, and an affidavit sworn by another solicitor with Slater & Gordon, Ms Irena Krakic, on 23 February 2023. The employer relied upon affidavits sworn by its solicitor, Ms Rachael Kennedy of Lander & Rogers on 22 February 2023 and 3 March 2023.
Given the issues in this proceeding, it is necessary to traverse the evidence in some detail. One basis upon which Mr Ambrose challenges the determination of the panel is the panel’s failure to obtain and consider the Sullivan report, which was referred to in Mr Ambrose’s submissions to the panel (‘panel submissions’), but was not included in the referral materials sent by Lander & Rogers to the panel in July 2021. Mr Ambrose says that the failure of the panel to consider the Sullivan report amounted to a denial of procedural fairness. The evidence of how the Sullivan report came to be omitted from the referral materials is arguably relevant to the question of whether the panel denied Mr Ambrose procedural fairness, and if so, to the Court’s discretion as to whether to grant relief on that ground.
Mr Ambrose also challenges the panel’s determination on the grounds that the panel failed to take steps to obtain the operation report and the other operation records. There was some evidence about the circumstances in which the operation report was not provided to the panel, which was said by Mr Karasmanis to be ‘regrettable’.
In his first affidavit, Mr Karasmanis exhibited the panel’s opinion, the reasons, and the referral materials, and deposed briefly as to the factual background to Mr Ambrose’s claims. Under the heading ‘Additional information not before the panel,’ Mr Karasmanis deposed as follows:
The medical panel referral was lodged on 27 October 2020.
Subsequently, the plaintiff was referred to a neurosurgeon Dr Ales Aliashkevich, and on 24 June 2021 the plaintiff underwent a C4/5 decompression and cervical arthroplasty.
The panel examination was conducted on 26 July 2021. Its opinion was dated 3 September 2021. The panel was not provided with updated medical records following the medical panel referral or any material from Dr Aliashkevich.
In addition, since the return of the opinion it has come to my attention that, apparently due to an oversight, the panel was not provided with the report of Dr Richard Sullivan dated 29 April 2020. This report was referred to in the plaintiff’s written submissions to the panel.
…
I am currently reviewing the file and conducting inquiries relevant to this material. I intend to prepare a further affidavit of these matters in due course.
In his further affidavit of 28 September 2022, Mr Karasmanis deposed, in summary, as follows:
(a) he had conduct of Mr Ambrose’s file until he left Slater & Gordon in February 2021, following which the file was transferred to another solicitor. He resumed conduct of the file when he returned to the firm in October 2021[3];
[3]That is, Mr Karasmanis was not employed by Slater & Gordon during the critical period when the referral materials were being compiled and forwarded to the panel.
(b) on 1 September 2020 Lander & Rogers served the proposed medical questions and agreed facts upon Slater & Gordon, advising that the employer’s submissions and a schedule of the referral materials (‘schedule’) would follow separately;
(c) in October 2020 the medical questions, the agreed facts, and the parties’ submissions were sent to the medical panel;
(d) in April 2021 Slater & Gordon was advised by the medical panel that the referral had been suspended pending the delivery of the balance of the referral materials;
(e) between April and July 2021 Slater & Gordon contacted Lander & Rogers on a number of occasions asking them to send the referral materials to the medical panel, which they did on or about 25 June 2021;
(f) the schedule provided to the panel was signed by both firms of solicitors, but there is nothing on Slater & Gordon’s file to evidence how the Slater & Gordon electronic signature was affixed to the schedule;
(g) both the schedule and the referral materials omitted the Sullivan report, which was served upon the employer by Slater & Gordon on 18 June 2020;
(h) on or about 21 May 2021 Mr Ambrose told Slater & Gordon that he was seeking further treatment for his neck condition from a neurologist, Dr Ales Aliashkevich;
(i) on or about 1 June 2021 Mr Ambrose told Slater & Gordon that he would undergo neck surgery on 24 June 2021;
(j) on or about 9 July 2021 Mr Ambrose provided Slater & Gordon with a copy of the operation report; and
(k) he deposed as follows:
Regrettably, the materials provided by the plaintiff regarding his recent neck surgery were not provided to the Medical Panel by the solicitor with the conduct of the file at the time, ahead of the plaintiff’s examination by the Panel on 26 July 2021.
Mr Karasmanis exhibited to his affidavit the operation report, along with a report prepared by Dr Aliashkevich dated 18 January 2022 (that is, after the commencement of this proceeding) (‘expert report’). In the expert report, Dr Aliashkevich provided his opinion regarding the question of whether Mr Ambrose’s neck pain was materially contributed to by his work duties with the employer. He answered this question in the affirmative.
In her affidavit sworn on 22 February 2023, Ms Kennedy deposed as to the following matters and events:
(a) between September 2020 and October 2020 the parties exchanged written submissions, and corresponded about the form of the medical questions and the joint statement to be provided to the panel;
(b) in October 2020 orders were made by consent in the Magistrates’ Court proceeding referring the questions to the panel. At this time, the only materials prepared by the parties were the medical questions, the joint statement, and the parties’ written submissions;
(c) in April 2021 the parties were notified that the panel had not received the referral materials, and accordingly, the referral was on hold. Following this notification, Slater & Gordon provided the panel submissions and the medical questions to the panel;
(d) on 20 May 2021, Ms Kennedy instructed her assistant to email the schedule and a link to the documents referred to in the schedule to the Magistrates’ Court. Mr Karasmanis was copied into this email. Ms Kennedy deposed that she is unable to confirm how Slater & Gordon’s signature came to be fixed to the schedule. She said that during this period she had three different assistants, whose emails she is now unable to access;
(e) also on 20 May 2021, and shortly after sending the email referred to in (d) above, Ms Kennedy realised two reports of Dr O’Brien (which were commissioned and served by Slater & Gordon) were not included in the schedule. Ms Kennedy amended the schedule to include the two reports of Dr O’Brien, and resent the schedule and link to the Magistrates’ Court, copying in Mr Karasmanis. The electronic signature of Slater & Gordon was also affixed to the amended schedule. Ms Kennedy deposed that she did not receive any automated response to her email on 20 May 2021 to the effect that Mr Karasmanis had left the firm or that the email had not been received by Slater & Gordon;
(f) on 24 May 2021, Ms Kennedy received an email from Slater & Gordon requesting an update on the referral documents. Ms Kennedy responded advising that the referral documents had been sent to the Magistrates’ Court. That day, Ms Kennedy received a response from Slater & Gordon advising her that Mr Karasmanis had left the firm, and requesting that the emails she sent to the Magistrates’ Court be provided to them;
(g) on 1 June 2021, Ms Kennedy sent a copy of the emails as requested to Slater & Gordon;
(h) on 8 and 11 June 2021, Ms Kennedy received a further email from Slater & Gordon requesting that the emails sent by Lander & Rogers to the Magistrates’ Court and a copy of the referral be provided to it. Ms Kennedy responded on 11 June 2021 stating that there must be an IT issue, because she had already responded;
(i) on 18 June 2021, the Magistrates’ Court emailed Ms Kennedy advising that it had not received the referral materials, Ms Kennedy responded again to the effect that there must be an IT issue;
(j) on 25 June 2021, Ms Kennedy’s then assistant emailed the link to the referral materials to the Magistrates’ Court and the panel, copying in Slater & Gordon. The panel replied that the referral remained suspended pending the provision of a hard copy of the referral materials; and
(k) on 6 July 2021 the referral materials were resent to the panel in PDF form by Ms Kennedy’s assistant.
Ms Kennedy deposed that at no point during the period above did Slater & Gordon request that the Sullivan report be included in the referral materials, despite Slater & Gordon having been provided with a copy of the schedule and a link to the referral materials.
Ms Kennedy deposed further that following the issue of this proceeding, and at her request, Slater & Gordon provided her with copies of correspondence between Mr Ambrose and Slater & Gordon prior to his examination by the panel regarding Mr Ambrose’s further treatment by Dr Aliashkevich. She summarised the contents of this correspondence as follows:
i.The plaintiff advised that he had recently had surgery (cervical arthroplasty) via Mineuro and he had also had a nerve conduction test, weight bearing MRI etc, and he had gotten x-ray of scans after the surgery all done through Synapse Neurology and all results were sent to Mineuro.
ii.The plaintiff wanted to put the results and a report possibly from the neurosurgeon forward to the Medical Panel as he thought it would help.
iii.Ms Cooke advised the plaintiff to send Slater & Gordon a copy and “JM” (it appears the solicitor with conduct of the file at the time) would review and go from there.
iv.The plaintiff said that previously Slater & Gordon had requested records etc from places.
v.Ms Cooke advised that “we can request a report but they will charge us a fee so if you can try and get a report done yourself, they may not charge you. See how you go and let us know. Meanwhile if you forward what you do have to us, I will send to JM to have a look at” and the plaintiff responded “okay Ill see how I go”.
Ms Kennedy deposed that an email chain on 9 July 2021 included:
i.an email from Ms Crooke to the plaintiff attaching a letter of the same date advising of the Medical Panel examination details and that he should take with him any relevant X-rays or X-ray reports for the specialist to examine;
ii. an email from the plaintiff to Ms Crooke sent at 1.11pm on 9 July 2021 which stated “Mineuro have provided me with a report of the examination and operation. Please let me know if you need anything else” and which attached a four page record of the plaintiff’s neck operation performed by Dr Aliashkevich dated 24 June 2021 and a post operative summary letter from Dr Aliashkevich of the same date addressed to the plaintiff’s general practitioner.
Ms Kennedy deposed that at no point prior to the panel’s examination of Mr Ambrose did Slater & Gordon provide her with any operation records, noting that Slater & Gordon did not at any stage request the deferral of the panel’s examination of Mr Ambrose so that the panel could be provided with any or all of the operation records.
In a short affidavit sworn on 23 February 2023, Ms Krakic deposed as follows:
I am a lawyer in the firm of Slater and Gordon. I have had care and conduct of this file on behalf of the plaintiff, Mr Nathan Ambrose. Mr Andrew Karasmanis, the lawyer who had previous conduct of this file is no longer with Slater and Gordon.
I have had conduct of this file since around early November 2022.
I have reviewed the file and have been unable to locate any record of Slater and Gordon signing the Schedule on behalf of the plaintiff.
Ms Kennedy’s affidavit sworn on 3 March 2023 provided copies of some documents which were omitted from her first affidavit, and set out some of the difficulties experienced by her when she attempted to recover attachments to emails sent during the relevant period, and her inability to access the email archives of her previous assistants.
Ms Kennedy was cross-examined at the trial of the proceeding. She gave evidence, in summary, as follows:
(a) as a partner at Lander & Rogers, she has been involved in making referrals to medical panels on many occasions;
(b) as the employer was the applicant for the referral, she was responsible for preparing the first draft of the questions to be provided to the medical panel, in accordance with the usual practice; and
(c) as to the usual process for referrals to medical panels, which involved the parties conferring in relation to the documents to be included in the referral materials. She gave evidence to the effect that agreement is usually reached between the parties regarding the schedule of documents to be provided to the medical panel, which is then signed by both parties.
Counsel for Mr Ambrose cross-examined Ms Kennedy on the two versions of the ‘notice of request pursuant to section 274(1)(b) of the Workplace InjuryRehabilitation and Compensation Act 2013’ (‘notice of request’) to the medical panel. The first notice of request was dated 9 October 2020. In relation to the signatures contained in the notice of request, Ms Kennedy advised that this is usually typed in, not signed electronically, as it is not a sworn document. Ms Kennedy confirmed that when she receives a document of this kind signed by the other party, she understands this to mean that the other party approves of the contents of the document concerned.
Ms Kennedy gave evidence that the process for the provision of referral materials to medical panels changed during the COVID-19 pandemic emergency. The referral materials were provided to the medical panel in electronic format, not hardcopy form. Further, the Magistrates’ Court made a direction requiring that parties only provide the court with the parties’ submissions and the proposed medical questions rather than all of the documents and reports referred to in the parties’ submissions. Ms Kennedy confirmed that as at October 2020, the schedule and the documents referred to in the schedule had not yet been drafted or collated.
Ms Kennedy was taken to the panel’s email to the parties in April 2021, which informed the parties that the referral had been put on hold due to the referral materials not having been provided. Ms Kennedy agreed that there is no evidence of Lander & Rogers providing any schedule to Slater & Gordon to review prior to this time. Ms Kennedy said that the schedule and a link to the documents referred to in the schedule were prepared following the receipt of this email.
Counsel for Mr Ambrose put to Ms Kennedy that from Slater & Gordon’s review of their file there is no record that Ms Kennedy or Lander & Rogers sent the schedule for Slater & Gordon to review prior to sending the schedule to the Magistrates’ Court on 20 May 2021, and that there was no other evidence that Slater & Gordon signed the schedule. Counsel for Mr Ambrose noted that the font used in Slater & Gordon’s signature in the schedule was different to the font used by Slater & Gordon to sign other court documents in this proceeding.
Ms Kennedy said that she could not definitively say that the schedule was provided to Slater & Gordon before 20 May 2021, but that it was provided to Slater & Gordon on 20 May 2021 when she first sent the schedule and the link to the referral materials to the Magistrates’ Court. Ms Kennedy agreed that the dates in the schedule did not reflect the date that the document was likely to have been finalised.
Ms Kennedy gave evidence that after she realised that the two reports of Dr O’Brien were omitted from the schedule attached to her first email on 20 May 2021, this was corrected in her second email to the court that day which attached an amended schedule. However, at that time, she did not realise that the report of Dr Sullivan was missing from the schedule.
Ms Kennedy accepted that the changes to the schedule contained in her second email of 20 May 2021 were not sent to Slater & Gordon to review prior to her sending the amended schedule to the medical panel, but that she received no ‘bounce back’ from any of the emails sent on this date indicating that the emails had not been delivered to Slater & Gordon.
Ms Kennedy denied that Lander & Rogers had signed the schedule on behalf of Slater & Gordon, and said that neither she, or to her knowledge anyone else at Landers & Rogers would sign documents on behalf of another firm.
Ms Kennedy noted that her own practice when attaching signatures to documents is to do so herself, or her assistant may send her a specific request to fix her signature or the signature of the firm to a document or letter. Such permission would be sought for each individual document, and no standing permission is granted to her staff to sign documents on her behalf or on behalf of the firm.
In re-examination, other documents signed by Slater & Gordon which used the same style of font as the signature in the schedule were brought to Ms Kennedy’s attention. Ms Kennedy also confirmed that she expressly noted in the second email of 20 May 2021 the changes that had been made to the schedule, and had copied Slater & Gordon into that email.
The admissibility of evidence not before the panel
At the hearing of this proceeding, there was a dispute regarding the admissibility of three documents sought to be relied upon by Mr Ambrose, being:
(a) the Sullivan report;
(b) the operation report; and
(c) the expert report.
The employer objected to the admission of these documents on the grounds that none of these documents were before the panel. However, the employer conceded that it was at least arguable that the Sullivan report and the operation report were admissible in accordance with the principles in Prasad v Minister of Immigration and Ethnic Affairs[4] (‘Prasad principle’), and reserved its most strenuous objection to the admission of the expert report.
[4](1985) 6 FCR 155.
During the course of the hearing, I indicated that it was my preliminary view that I would admit the Sullivan report and the operation report into evidence, but not the expert report. I have considered the issue further during the course of preparing these reasons, and have decided to admit all three documents into evidence.
The employer relied upon the following statement of the Court of Appeal in Mackenzie v Head, Transport for Victoria[5]:
[5][2021] VSCA 100.
Ordinarily, in a judicial review proceeding, the legality of a decision is determined by reference to the material that was before the decision-maker when he or she made the impugned decision and therefore evidence that was not then before the decision-maker is usually inadmissible. However, there are some classes of evidence that is admissible even though it was not before the decision-maker. The classes that require consideration in the present case are:
(5) Evidence that constitutes an admission by the decision-maker.
(6)Evidence that falls within the Prasad principle, that is, evidence that is capable of showing that the decision-maker failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, and the failure renders the decision legally unreasonable or constitutes a constructive failure to exercise jurisdiction.
(7)Evidence that is capable of showing that the decision-maker made an error as to a jurisdictional fact and therefore did not have jurisdiction to make the decision.
(8)Evidence that is capable of showing that the decision-maker made an error as to a non-jurisdictional fact of such a nature that he or she thereby constructively failed to exercise jurisdiction.
(9)Expert evidence that is capable of showing that there was no intelligible foundation for the decision.[6]
[6]Ibid [153]. Numbering in original.
The employer submitted that while it is at least arguable that the Sullivan report and the operation report could fall within the Prasad principle, the expert report could not possibly fall within the Prasad principle. The expert report was commissioned by Slater & Gordon several months after the panel made its determination, and could only fall within the Prasad principle if I accepted what counsel for the employer described as the ‘quite extraordinary’ submission that the panel, in order to fulfil its statutory function, was obliged to seek a medico-legal opinion from another medical practitioner about the very question the panel was being asking to decide.
Turning first to the Sullivan report, it seems to me that the Sullivan report was arguably ‘before’ the panel when it made its determination, in that its key conclusion was extracted in the panel submissions, such that it is not necessary that any of the exceptions above be engaged. In any event, given that the alleged denial of procedural fairness and the alleged failure to take into account a material relevant consideration arises from, at least in part, the failure of the panel to obtain the Sullivan report, the contents of the Sullivan report are clearly relevant to the question of whether any omission on the part of the panel was, or could have been, material to the outcome.
However, when it comes to the operation report and the expert report, the question of the admissibility of these documents arguably rises or falls with the fate of the ground which the documents are sought to be relied upon. That is, given that Mr Ambrose seeks to rely upon the operation report and the expert report to support his contention that the panel failed to make an obvious inquiry about a critical matter, then if that ground of review is made out, the operation report and/or the expert report will fall within the Prasad principle, and will therefore be admissible.
In order to establish their admissibility, I reviewed the operation report and the expert report. Having undertaken this exercise, however, the contents of those documents do not assist Mr Ambrose. Indeed, as will be seen from the discussion later in these reasons, the contents of these documents provides support for the contrary contention.
That raises the question of whether the operation report and the expert report are admissible under the Prasad principle, or, more accurately, a variant of the Prasad principle, in that they are relevant to the question of whether the decision-maker failed to make an obvious enquiry about a critical fact, even though, as will be seen, the contents of the documents tend to negate, rather than support the proposition that the decision-maker breached its duty to inquire. As a matter of logic, and in accordance with the law of evidence, they must be admissible, as the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely, whether there was information readily available to the panel which was critically relevant to the causation issue.[7]
[7]See s 55 of the Evidence Act 2008 (Vic).
Further, there is authority in support of the proposition that, where one of the grounds of review is legal unreasonableness, evidence not before the original decision-maker may be admissible, depending upon the circumstances of the case.[8] While such evidence is usually admissible to support an argument that the outcome of the decision making process is legally unreasonable based upon a disregard of fundamental scientific or medical knowledge or principles, or was founded on plainly erroneous findings of fact, there seems to be no reason in principle why such evidence should not be admissible where the challenge is to the reasonableness of the decision making process, provided of course that the evidence is relevant.
[8]See City of Melbourne v Neppessen [2019] VSC 84 [84]-[87], referring to Port Phillip Scallops v Minister for Agriculture [2018] VSC 589 and Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446. See also SLG v James [2021] VSC 364 [28].
I accept that there are sound policy reasons for exerting some degree of discipline over the admissibility of evidence in judicial review proceedings. There are particularly sound reasons for limiting the admission of documents which are primarily relevant to the merits of the decision under review, even where the ground of review is legal unreasonableness. However, it seems to me that when the questions raised by the grounds of review are relatively confined in scope, as they are here, and where the documents do materially assist in determining the question of whether the panel failed to make an obvious inquiry about a critically relevant matter, or whether the panel afforded Mr Ambrose procedural fairness, then those documents should be admitted into evidence.
The operation report, the expert report, and the Sullivan report
In order to address the issues in this proceeding it is necessary to consider the contents of the operation report, the expert report, and the Sullivan report in some detail.
The operation report is dated 24 June 2021 and was addressed to Mr Ambrose’s treating general practitioner. After reciting Mr Ambrose’s personal particulars, the report states under the heading “Medical Problems”:
- Chronic neck, bilateral shoulder and arm pain
- Chronic back pain
- Chronic pain syndrome
- Congenital C5/6 fusion
- C4/5 disc protrusion with right C5 nerve root irritation
- Chronic right C5 radiculopathy on EMG
- History of work-related injury in February 2019
- Left C4/5 and C5/6 facet joint injections on 20/09/2019
- Lumbar epidural injection on 07/02/2020
- Right C5 nerve root block on 06/04/2020
- Smoking 1 - 3 cigarettes per day
Under the Heading “History”, Dr Aliashkevich stated as follows:
This 26-year-old patient presented with a long history of complex neck and back problems after a work-related injury in February 2019 in his role as a welder. Nathan was lifting 15 - 20 kg heavy pieces of steel and experienced pain in his neck. He was under the care of Dr Neels to Toit (sic), a pain specialist in Metro Pain Clinic and underwent several injections into his neck and back. He could not work since July 2020. Nathan didn't get much support from his WorkCover insurer and was involved in the legal proceedings. He was under the care of St Vincent's pain management clinic. He tried physiotherapy, the Kieser program and gym exercises without sustained improvement. Nathan indicated that the intensity of his chronic neck, bilateral shoulder, arm and back pain could reach 7/10. He was taking Valium and oxycodone.
Under the heading “Examination”, the operation report continued:
On examination, Nathan had a normal gait but stiff posture. He had difficulty elevating his arms above the head due to pain. His muscle strength appeared generally reduced. The deep tendon reflexes were depressed. There was no sensory deficit on pinprick testing. The range of neck movements was significantly restricted in all directions due to pain. Moderate tenderness was noted in the mid-cervical region.
The operation report then displayed some images of Mr Ambrose’s cervical spine, with the following commentary:
Cervical weight-bearing MRI and flexion/extension x-rays on 19/05/2021 confirmed C4/5 disc protrusion extending towards the right foramen and resulting in foraminal narrowing, possibly irritating the right C5 nerve root.
Cervical MRI on 22/02/2020 showed C4/5 disc bulging contacting predominantly C5 nerve root in the foramen on the background of congenital C5/6 fusion.
Cervical and lumbar CT on 15/07/2019 and lumbar MRI on 05/12/2018 showed congenital C5/6 fusion and C4/5 disc protrusion with right C5 nerve root irritation.
The operation report went on to say as follows:
Neurophysiology
Nerve conduction tests and EMG[9] on 21/05/2021 by Dr Gorai demonstrated active and chronic denervation changes in the C5 and C6 distribution consistent with predominantly C5 radiculopathy. There was no evidence of peripheral neuropathy.
[9]Referring to an Electromyography test.
Plan of Management
Given Nathan’s recent radiological and neurophysiological results, I felt that the C4/5 disc pathology could be the dominant contributor to his complex chronic neck, shoulder and arm pain.
The operation report also included a detailed report of what took place during the surgery, and provided instructions regarding the post-operative care required. A post-operative report of the same date provided further comments upon the operation as follows:
Just a note to let you know that uncomplicated C4/5 disc replacement was accomplished on Nathan in Epworth Richmond Hospital. His surgery went smoothly - physiological disc height was restored, and good decompression of the spinal canal and nerve roots achieved. The intra- and postoperative x-rays confirmed good placement of the implant and anatomical position of the spine.
Hopefully, Nathan will obtain symptomatic benefit from this operation, providing relief from his pain. He should be able to return to normal activities within a few weeks.
The expert report is dated 18 January 2022, and the first part of the expert report largely mirrored the operation report, save that the expert report did not contain the detailed account of what took place during the operation, or the instructions for Mr Ambrose’s post operative care and monitoring. Dr Aliashkevich commented upon his post-operative review on 5 August 2021, and noted Mr Ambrose’s report of ‘positive post operative results with significant improvement in his neck and back pain.’
Dr Aliashkevich provided the following answers to the questions posed to him by Slater & Gordon:
…
2.Your diagnosis of the injuries sustained by my client throughout the course of his employment and on or about 15 February 2019 with Eric Jones Stairbuilding Group Pty Ltd
- Improved neck, bilateral shoulder and arm pain
- Improved back pain
- Chronic pain syndrome
- Congenital C5/6 fusion
- C4/5 disc protrusion with right C5 nerve root irritation
- Chronic right C5 radiculopathy on EMG
- History of work-related injury in February 2019
- Left C4/5 and C5/6 facet joint injections on 20/09/2019
- Lumbar epidural injection on 07/02/2020
- Right C5 nerve root block on 06/04/2020
- C4/5 arthroplasty on 24/06/2021
- Smoking l - 3 cigarettes per day
3.Whether, on the balance of probabilities, my client’s employment with Eric Jones Stairbuilding Group Pty Ltd generally, and on or around 15 February 2019 was a significant contributing factor to my client's cervical spine injury.
Having regard to your client’s:
-physical and repetitive nature of long-term full-time employment as a boilermaker and welder,
-history and mechanism of the stated accident on or around 15/02/2019,
- chronic and refractory character of pain since the accident,
- exacerbation of pain after attempted return to work,
- no evidence of previous neck problems,
-ability to work full time as a boilermaker and welder before the accident,
- failed long-term relief after conservative treatment,
- significant relief after C4/5 arthroplasty on 24/06/2021,
- clinical examination,
- available radiological results,
- available results of neurophysiological investigations,
-available medical documentation, GP referral and reports of other medical specialists,
I consider his employment in general and the stated incident in particular as materially contributing factors to a significant exacerbation of a pre-existing degenerative condition of the cervical spine. His employment-related activities and the stated incident also appeared as the dominant contributors to a musculoskeletal back injury and the evolution of chronic pain syndrome.
4.Whether, on the balance of probabilities, my client's injury related to work is a materially contributing factor to my client’s incapacity for work.
When considering factors outlined in paragraph 3, I consider your client’s cervical spine injury as the dominant materially contributing factor to his work incapacity.
…
The Sullivan report is dated 29 April 2020, and was addressed to Mr Karasmanis of Slater & Gordon. Dr Sullivan is a practising anaesthetist and pain management specialist. He prepared a medico-legal report after meeting with and examining Mr Ambrose.
The Sullivan report summarises the history provided by Mr Ambrose under the following headings:
(a) Background information;
(b) Onset of pain;
(c) Further injury;
(d) Medical history;
(e) Management;
(f) Treatments;
(g) Current pain;
(h) Functional tolerances;
(i) Surgical history;
(j) Interventional treatments;
(k) Medications;
(l) Impact on mood, sleep and relationships; and
(m) Social history.
Under the headings ‘Onset of pain’, ‘Further injury’ and ‘Medical history’, Dr Sullivan largely referred to the condition of Mr Ambrose’s lumbar spine. The first relevance to any neck pain is in the context of the aftermath of the 2019 incident, which Dr Sullivan reported led to a ‘substantial aggravation of his low back pain’. The only reference to neck pain in these sections is in the following statement:
By June 2019, because of ongoing pain affecting his neck, his arm, and his lower back he had to cease work…
The Sullivan report continued as follows:
Investigations
An MRI of the cervical spine dated 22 February, 2020 concludes a congenital fusion at C5/6 vertebral body with spondylitic changes including disc desiccation at C3/4 and C4/5, a disc bulge at C4/5 more prevalent on the right with contact of the right C5 nerve root.
A CT of the cervical spine and lumbosacral spine was reported on 15 July, 2019 and concluded congenital fusion of C5/6 and evidence of a C4/5 disc protrusion accounting for right C5 radiculopathy.
Normal alignment of the lumbar vertebra without substantial disc protrusion noted.
MRI of the lumbar spine was reported on 5 December, 2018 and concluded normal study.
Examination
On examination, Mr Ambrose was able to ambulate without a gait aide. He had some limitations in terms of lumbar flexion and extension. He was able to forward flex with hands to knees and extend approximately 15" before noticing increase in lower back pain.
Cervical movements were limited with right lateral flexion and right rotation mild to moderately restricted. Flexion and extension were acceptable. Deep tendon reflexes of the upper limbs and lower limbs were intact. He was able to heel stand and toe stand without substantial impediments. Shoulder movements were acceptable in terms of internal and external rotation. Grip strength was normal and equal bilaterally.
No substantive deformity was noted of his posture or axial spine on inspection.
Summary
Mr Nathan Ambrose is a 25-year-old right-handed welder who has chronic pain affecting his low back and cervical region as well as his right upper limb.
His chronic pain and associated functional limitations have occurred in the context of repetitive and strenuous work as a welder. Such symptoms began in or around 2016 and were significantly aggravated following a work place injury caused by repetitive movements and lifting of heavy objects on or around 15 February, 2019.
Mr Ambrose has functional impairment and psychological sequelae due to his work place injuries.
In response to the specific questions put to him by Slater & Gordon, Dr Sullivan responded as follows:
(a) in relation to his diagnosis of Mr Ambrose’s injuries:
Mr Nathan Ambrose has aggravation of cervical spondylosis.
Mr Ambrose has a post traumatic chronic pain condition affecting his low back, cervical spine and right upper limb. He has clinical evidence of the presence of central sensitisation (an organic disorder stemming from his workplace injury charaterised (sic) by amplification of pain signling (sic).
Mr Ambrose has symptoms consistent with right cervical nerve root irritation (C6).
Mr Ambrose has symptoms consistent with depression consequent to his chronic pain following work place injury.
(b) in relation to whether, on the balance of probabilities, Mr Ambrose’s employment was generally, and on about 15 February 2019, a materially contributing factor to Mr Ambrose’s capacity for work:
Whilst Mr Ambrose details a history of onset of his pain condition as early as 2016 in the context of his work for Eric Jones Stairbuilding Group Pty Ltd, it was the event of 15 February, 2019 that led to substantive aggravation of his back and neck pain that culminated in a situation whereby he was unable to continue his employment.
As such, I believe that his employment with Eric Jones Stairbuilding Group Pty Ltd and the injurious events on or around 15 February, 2019 is the materially contributed factor to his capacity for work.
(c) in relation to whether, on the balance of probabilities, Mr Ambrose’s physical duties with the employer was a cause of any production, aggravation or deterioration of, or was a substantial contributor to the diagnosed injuries:
Yes, I believe that Mr Ambrose was required to undertake very physically demanding strenuous work in his role as an apprentice welder and trade assistant and in the context of this strenuous work has aggravated cervical spondylosis and developed a chronic pain condition affecting his low back, his neck and his right upper limb.
Did the panel form its opinion in a manner which was legally unreasonable?
Mr Ambrose submitted that the decision of the panel to proceed to form its opinion as to the cause of Mr Ambrose’s neck injury (that is, whether it was a congenital condition or whether it was caused or substantially contributed to by his work duties with the employer) (‘causation issue’) without obtaining the operation records (including, but not limited to the operation report) was legally unreasonable, because the panel failed to make an obvious inquiry about a critical matter. The panel knew about the operation, because Mr Ambrose told them about it, and provided the associated imaging to the panel. The panel members, being medical practitioners, must have known that there would be an operation report in existence, and possibly other operation records relevant to forming its opinion on the causation issue.
Mr Ambrose referred to a medical panel’s power pursuant to s 312 of the WIRCA to request further information for the purpose of providing its opinion on the medical questions, submitting that the following statement of the Court of Appeal in Chang v Neill[10] (‘Chang’) supports the proposition that if the material before the panel is “critically wanting”, the panel may be obliged to seek further material in order to properly perform its statutory function:
Consistent with the provisions of the Act and the observations in Wingfoot, a medical panel is required to provide an informed professional opinion on the medical questions referred to it. Where, in a given case, a medical panel considers that it is not able to provide such an opinion because of material deficiencies in the information available to it, it cannot ignore those deficiencies and proceed to reach an opinion which is not an informed professional opinion. Rather, in that situation it is empowered by s 312(1)(a) of the Act to seek such further information as it requires to provide an informed professional opinion.
The fact that a medical panel is empowered to examine a worker confirms that it is not merely a passive body which cannot go beyond the material submitted to it…
It follows that there may be circumstances in which a medical panel may need to seek information from a worker that is not included in the material submitted to the panel.[11]
[10](2019) 62 VR 174 (‘Chang’).
[11]Ibid [50]-[53].
Further, Mr Ambrose referred to the decision of Richards J in Schmael v Leach[12], (‘Schmael’). In that proceeding, a medical panel formed a view regarding the cause of a worker’s pain condition despite the worker advising the panel of a pending MRI examination scheduled shortly after the date of the medical panel’s examination, in circumstances where the medical panel considered that the imaging material available to it may have been unreliable. Her Honour stated as follows (omitting citations):
The Panel’s determination to give its opinion without seeing any further imaging was ‘a failure to make an obvious inquiry about a critical fact’, the existence of which could easily have been ascertained. Here, there was a ‘material deficiency’ in the information that was available to the Panel at the time it assessed Ms Schmael. In these circumstances, the Panel could not ignore this deficiency and proceed to form an opinion which would not constitute an ‘informed professional opinion’. There was no need for the Panel to hasten to form its opinion, when a request for the MRI results made under s 312(1) would have suspended the 60 day time limit in s 313(1)(a) of the WIRC Act.[13]
[12][2020] VSC 562 (‘Schmael’).
[13]Ibid [41].
Mr Ambrose also relied upon the decision of Edwards v State of Victoria[14] (‘Edwards’), where Richards J found that the panel had failed to obtain centrally relevant information, being up to date clinical records, stating as follows (citations omitted):
The function of a Medical Panel must be performed within the bounds of legal reasonableness, and an opinion or determination formed outside those bounds is beyond the Panel’s jurisdiction. One form of legal unreasonableness is making a decision without attempting to obtain information that it is obvious is readily available and centrally relevant to the decision to be made. Legal reasonableness also governs the powers of a Medical Panel to inform itself in order to perform its function. In circumstances where it is apparent that there is additional information that can easily be obtained about matters critical to its opinion, a Panel cannot disregard deficiencies in the material that it already has, and proceed to reach an opinion that is not informed.[15]
[14][2021] VSC 423 (‘Edwards’).
[15]Ibid [71].
Mr Ambrose accepted that it is for the panel to determine what, if any, further information it requires.[16] However, in not obtaining the operation records, in particular the operation report, the panel failed to make an obvious inquiry about a critical fact and as such, acted in a manner which was legally unreasonable, and accordingly, failed to properly discharge its statutory function.
[16]Schmael [2020] VSC 562 [42] and SLG v James [2021] VSC 364 [80]-[81].
Mr Ambrose accepted that the panel is informed by expertise that the Court does not possess, and that its central function is to form its own informed opinion on the medical questions referred to it. However, in applying that expertise the panel cannot ignore material deficiencies in the information provided to it. Two critical matters would have been apparent to the panel once it became aware of the operation: first, that investigations would have been carried out prior to the operation, and secondly, the existence and identity of a surgeon who had recently seen the inside of Mr Ambrose’s neck.
Mr Ambrose submitted that he is not required to show that the missing material must have made a difference to the opinion formed by the panel. Rather, the question is whether the panel properly and fairly informed itself in conformity with its statutory task. Referring to the decision of O’Meara J in Troeth v Cerberus Catering Pty Ltd[17], Mr Ambrose submitted that the following matters are relevant to determining whether a duty to inquire arises on the facts of a particular case (citations omitted):
(a) whether there was anything in the documents submitted to the panel or any information provided by the applicant that alerted the panel to the possibility that there could be a need to enquire in respect to the particular fact;
(b)in particular, whether the circumstances gave rise to an ‘obvious need’ for the panel to seek clarification;
(c) whether the fact was ‘critical’ or ‘merely one of a myriad of potentially relevant facts’; and
(d) whether the fact could have led to a different answer to the relevant medical question.[18]
[17][2022] VSC 767.
[18]Ibid [62].
Mr Ambrose submitted that all of the above criteria have been satisfied in the current case, and that the operation records were relevant to a central issue before the medical panel, being the causation issue, such that it was unfair and unreasonable for the panel to form its opinion without taking steps to obtain the operation records. Mr Ambrose submitted that the employer’s submission to the effect that he must show that the additional information revealed by any further inquiry must lead to a different outcome is incorrect, as that would require the Court to substitute its own expertise for that of the panel, and is any event, the ultimate outcome would be for another medical panel to determine, not this Court.
In response, the employer submitted that it will only be in rare and exceptional circumstances that a failure to inquire will amount to jurisdictional error on the basis that the failure to inquire was manifestly unreasonable.
The employer submitted that judicial review of the opinions of medical panels should not be approached in quite the same way as judicial review of the decisions of non-expert administrative persons or bodies, as expert tribunals will be informed by their own expertise in determining what material it requires to form its opinion. The employer referred to the following statement of the Court of Appeal in Sidiqi v Kotsios[19] (‘Sidiqi’):
[i]n a fundamental sense, it is for the Panel itself to determine what information is sufficient to found an opinion with respect to a medical question.[20]
[19][2021] VSCA 187 (‘Sidiqi’).
[20]Ibid [41].
Further, the employer submitted that Mr Ambrose has not established that the operation report was of critical significance to the panel’s determination or was a matter of obvious inquiry. Indeed, that there was not an obvious need for the panel to obtain the operation report can be inferred from the fact that Slater & Gordon had the operation report, and neglected to or chose not to provide it to the panel.
The employer submitted that whether an inquiry is ‘critical’ is tested by considering whether, had the posited inquiry been made, the information would have changed the outcome. The threshold for what is critical is far more stringent than the threshold for what is material, where it is only necessary for the party asserting error to establish that the outcome may have been different had the error not been made.
The employer acknowledged that the decision of the Court of Appeal in Chang[21] is authority for the proposition that there may be circumstances where a medical panel may need to seek further information, and that a medical panel cannot ignore material deficiencies it identifies in the information before it and proceed to deliver an opinion regardless.[22] However, the employer submitted that the fact that it may have been reasonable for the medical panel to make an inquiry does not render the lack of any such inquiry as amounting to jurisdictional error.[23] Further, the position in Chang[24] was somewhat different than in the current case, where the posited inquiry concerned a simple factual matter, not like in the current case, where the panel’s assessment of the adequacy of the information available to it turned upon its own expertise.
[21](2019) 62 VR 174.
[22]Ibid [50], [52].
[23]See Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 [33].
[24](2020) 62 VR 174.
The employer submitted that Mr Ambrose did not identify with any clarity the further information which is said to have been contained in the operation report or the other operation records that went beyond the information that was before the panel at the time of the examination, nor why there was an obvious need for the panel to obtain that information in order to form its opinion on the causation issue. Further, Slater & Gordon had the opportunity to provide the operation report to the panel, but failed to do so.
The employer submitted that the information in the operation report and other operation records did not satisfy the threshold of criticality where:
(a) Dr Aliashkevich’s opinion that certain imaging showed right C5 nerve root irritation or possible irritation was not a critical fact in circumstances where the panel reviewed the imaging itself and formed its own opinion on the imaging;
(b) similarly, there was no obvious reason for the panel to have sought the results of the nerve conduction tests, and in any case, it has not been shown that the results of these tests were critically relevant to the causation issue; and
(c) Mr Ambrose had informed the panel of what the operation involved and the panel reviewed the pre- and post-operative imaging. It could not be said that the details of the operative procedure was a matter of obvious inquiry or critical significance.
Accordingly, Mr Ambrose has failed to establish a sufficient link between the panel’s failure to make further inquiries and its determination of the causation issue.
The jurisprudence concerning the circumstances when the failure of a decision-maker to inquire as to certain factual matters amounts to jurisdictional error commences with the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs[25], where his Honour stated as follows:
A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.[26]
[25](1985) 6 FCR 155.
[26]Ibid 169-170. See also the references to the authorities in Chang (2019) 62 VR 174 at [37]-[42].
Further, in Minister for Immigration and Citizenship v SZIAI (‘SZIAI’)[27], the High Court stated as follows:
The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.[28]
[27](2009) 259 ALR 429 (‘SZIAI’).
[28]Ibid [20].
Accordingly, what the present application is concerned with is the reasonableness of the process by which the panel formed its opinion, rather than the reasonableness or rationalist of the outcome. When evaluating the validity of the decision-making process of the panel, one must have regard to the functions and powers of a medical panel, which were summarised in the following paragraphs of the decision of the Court of Appeal in Chang[29] (citations omitted):
I accept that, had the panel proceeded to make a determination that Mr Ambrose’s neck condition was work related, and the reasons showed that the panel had based its determination upon the fact that Mr Ambrose had undergone the operation, and/or the additional imaging provided to the panel on the date of the examination, then the employer would have had grounds for complaint, as there was no way the employer could know about the operation and the associated investigations. However, the converse does not necessarily apply, given that Slater & Gordon were well aware that the operation had taken place.
As for the Sullivan report, while I agree that it would have been desirable for the panel to have the full report, I am not satisfied that its absence from the referral materials was material to the outcome.
A careful analysis of the reasons shows that the panel formed its opinion regarding the causation of the Mr Ambrose’s neck condition from the history taken from Mr Ambrose and its review of the imaging material, and concluded, emphatically, that Mr Ambrose’s employment was not a significant contributing factor to his neck condition. While the reasons include some consideration of the medico-legal reports provided in the referral materials at the end of the reasons, the panel merely states whether it agreed or disagreed with the opinions of the report writers. There is nothing in the reasons to indicate whether any of the reports provided to the panel exerted any particular persuasive force upon the panel.
Dr Sullivan’s conclusion regarding the cause of Mr Ambrose’s cervical spine condition were extracted in the panel submissions. The panel submissions also referred to Dr Sullivan’s qualifications as an interventional pain specialist and specialist anaesthetist, and stated that he was ‘unequivocal as to causation’.
The key features of the Sullivan report are summarised at paragraphs 73 to 76 of these reasons. As can be seen from this summary, the only references to the causation issue other than the statement extracted in the panel submissions were as follows:
Summary
Mr Nathan Ambrose is a 25-year-old right-handed welder who has chronic pain affecting his low back and cervical region as well as his right upper limb.
His chronic pain and associated functional limitations have occurred in the context of repetitive and strenuous work as a welder. Such symptoms began in or around 2016 and were significantly aggravated following a work place injury caused by repetitive movements and lifting of heavy objects on or around 15 February, 2019.
Mr Ambrose has functional impairment and psychological sequelae due to his work place injuries.
…
Ambrose has a post traumatic chronic pain condition affecting his low back, cervical spine and right upper limb. He has clinical evidence of the presence of central sensitisation (an organic disorder stemming from his workplace injury charaterised [sic] by amplification of pain signling [sic]).
…
5.Having regard to my client's history, whether it is your view, that on the balance of probabilities, my client’s physical duties with the Eric Jones Stairbuilding Group Pty Ltd was a cause of any production, aggravation or deterioration of the diagnosed injuries.
Yes, I believe that Mr Ambrose was required to undertake very physically demanding strenuous work in his role as an apprentice welder and trade assistant and in the context of this strenuous work has aggravated cervical spondylosis and developed a chronic pain condition affecting his low back, his neck and his right upper limb.
6.Whether, on the balance of probabilities, my client's employment with the Eric Jones Stairbuilding Group Pty Ltd was generally, and throughout the course of his employment, a significant contributing factor to my client’s injuries
As above.
Mr Ambrose submitted that it was necessary for the panel to be aware not only of Dr Sullivan’s conclusions, but also his reasoning process. However, it is difficult to see the statements extracted above as anything other than restatements of the conclusion regarding the cause of Mr Ambrose’s neck condition which was extracted in the panel submissions. Otherwise, the report is based upon the history he took from Mr Ambrose, his physical examination of Mr Ambrose, and the radiological investigation materials available to him, all of which were also carried out by or available to the panel and were, based upon the part of the reasons under the heading ‘Significant Contributing Factor’, also the matters the panel relied upon to form its opinion with respect to the causation issue. There was no dispute between the parties regarding the strenuous or demanding nature of Mr Ambrose’s work duties, and the reasons show that the panel was well aware of the nature of these duties. Accordingly, Mr Ambrose has not established that there was any new information, or any particularly compelling reasoning process in the Sullivan report which might have caused the panel to form a different opinion regarding the causation issue.
Accordingly, I am not satisfied that Mr Ambrose suffered any practical injustice from the panel’s failure to obtain the Sullivan report. I note, for completeness, that the referral materials included other medico-legal reports supporting Mr Ambrose’s contentions regarding the causation issue. While the first report of Mr O’Brien dated 22 April 2020 was equivocal as to whether Mr Ambrose’s neck and lower back conditions were work related, in a second report dated 24 June 2020, Mr O’Brien stated as follows:
As reported, at the time of my examination I considered that the symptoms and signs demonstrated by the patient indicated he was suffering from Chronic Pain Syndrome.
Although, as reported, the patient had a past history of low back pain, he did describe a work-related incident occurring in February 2019 as the precipitating cause of back injury, and the subsequent ongoing clinical course of back pain as reported. Thus, from this history, on the balance of probability it would appear the patient's work-related physical duties were the cause of the clinical condition, as defined in my report.
The panel made no reference to Mr O’Brien’s reports in the reasons. The panel did, however, make reference to a report of Dr Neels du Toit dated 14 October 2019, who opined that Mr Ambrose’s injuries and incapacity for work were work related. The panel disagreed with Dr du Toit with respect to both the diagnosis of Mr Ambrose’s condition and its relationship to his work duties, at least insofar as they concerned his neck condition. Accordingly, it could not be said that in the absence of the Sullivan report, there was no supportive expert opinion regarding the causation issue. But that said, my reading of the reasons leads to a conclusion that the panel was far more influenced by its own investigations and examinations than the opinions of other medical practitioners.
For completeness, if I had found that the panel had failed to afford Mr Ambrose procedural fairness by reason of the panel’s failure to obtain the Sullivan report, I would not have denied Mr Ambrose relief based on a finding that his solicitors were at fault in failing to ensure that the Sullivan report was included in the referral materials. While it is difficult to reach any firm conclusion about what happened based upon the evidence, including any conclusion as to how Slater & Gordon’s signature came to be affixed to the schedule, it seems to me that there were mistakes on all sides.
First, neither the schedule or the amended schedule drawn by Ms Kennedy included the Sullivan report, which was clearly an oversight on her part. Secondly, no mechanism was put in place by Slater & Gordon to ensure that Mr Karasmanis’ emails were redirected to another practitioner after his departure from the firm, or to set an automated response to the effect that he had left the firm, such that Ms Kennedy was entitled to assume that her correspondence was being received and attended to by the relevant practitioner at Slater & Gordon. Thirdly, the practitioner who had conduct of Mr Ambrose’s file after Mr Karasmanis took no steps to double-check the schedule to ensure that all of the relevant documents were included in the referral materials, although that was understandable, given that the presence of Slater & Gordon’s signature on the schedule would have conveyed the impression that the schedule had already been settled by both solicitors. Fourthly, the members of the panel were clearly not alerted by the panel submissions to the existence of the Sullivan report, or, had itself formed the conclusion that it was not necessary to obtain a copy of the Sullivan report. In all of the circumstances, it seems to me that it would be unfair for Mr Ambrose to be denied relief based on a finding that the sole responsibility for the omission of the Sullivan report from the referral materials lay with his solicitors.
Did the panel fail to into account any mandatory relevant consideration?
Mr Ambrose submitted that the panel failed to take into account a mandatory relevant consideration by failing to consider and engage in an active intellectual process with respect to fundamental matters raised by the panel submissions regarding the causation issue, including the contents of the Sullivan report.
Mr Ambrose referred to the following statement of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd[67] (omitting citations):
If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[68]
[67][2015] VSCA 17.
[68]Ibid [60].
Mr Ambrose observed that if a submission or evidence before the panel raises critical facts or fundamental issues relevant to the informed and fair determination of the medical questions, then those facts or issues will be a matter that the medical panel is required to consider as part of the proper performance of its statutory function.
Mr Ambrose submitted that the Sullivan report contained “substantial and consequential evidence”[69] which went to the central issue raised by the medical questions, being whether Mr Ambrose’s employment was a significant contributing factor to his cervical spine condition. The panel did not have the Sullivan report. Accordingly, Mr Ambrose submitted that the inescapable inference is that the panel failed to take into account mandatory matters and accordingly fell into error.
[69]See Chang (2020) 62 VR 174 [77].
Mr Ambrose submitted that the Sullivan report cannot be characterised as merely a granular piece of evidence. The Sullivan report draws a clear linkage between the 2019 incident and the aggravation of Mr Ambrose’s lower back and neck pain, and the panel did not address in any substantive way the question of whether the 2019 incident was a substantial contributing factor to the aggravation of Mr Ambrose’s cervical spine condition.
In response, the employer submitted that Mr Ambrose’s submission to the effect that the medical panel fell into jurisdictional error by failing to have regard to the panel submissions (or the Sullivan report) should be rejected.
The employer submitted that the requirement to engage in an ‘active intellectual process’ is a requirement which applies only to mandatorily relevant matters. Further, in the recent decisions of Sidiqi[70], Swidryk Investments Pty Ltd v El-Najjar[71] (‘Swidryk’), and Victorian WorkCover Authority v Putrus[72] the Court of Appeal has held that only a failure to have regard to a fundamental issue arising from the referral materials will constitute a failure to have regard to a mandatory relevant consideration. Also, in Chang[73], the Court of Appeal observed that not every part of every document is a mandatory consideration to which a medical panel must have regard.
[70][2021] VSCA 187.
[71][2023] VSCA 11 (‘Swidryk’).
[72][2023] VSCA 28.
[73][2019] VSCA 151.
The employer referred to the decision of Cavanough J in Vellios Electrical Contractors Pty Ltd v Barton[74], where his Honour stated in relation to a contention that submissions made by a party to a medical panel were a mandatory consideration (citations omitted):
[74][2014] VSC 664.
… it is not necessary for an administrative tribunal to refer in its written reasons to every piece of evidence and every contention of a party; there is a distinction between failure to refer to a piece of evidence or a particular contention and failure to address a contention which constitutes a claim or an integer of a claim. Distinguishing between these two kinds of situations does not constitute trespassing into the merits of the tribunal’s decision.
In my view, the fact that, normally, the written submissions of the parties to the Medical Panel are included in the bundle of documents submitted to the Panel by the person or body referring the medical question pursuant to s 65(6B) of the Act does not, of itself, mean that every such submission, much less every part of every such submission, must be dealt with in the Medical Panel’s statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part. The requirement to engage in an ‘active intellectual process’ is a requirement that applies only in relation to mandatorily relevant matters, factors or considerations. The identification of mandatorily relevant considerations for a statutory decision-maker depends on the terms of the relevant statute, not on the terms of whatever submission happens to be made to the decision-maker. Section 65(6B) of the Act does not make every submission, much less every part of every submission, a mandatorily relevant consideration for a Panel regardless of the terms of the submission. Further, as Wingfoot emphasises, it is not the function of a Medical Panel to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. Rather:
The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[75]
(emphasis added).
[75]Ibid [78]-[79].
The employer submitted that the Court is not generally entitled to infer that there was a failure to take into account a mandatory consideration simply on the basis that certain evidence or submissions were not expressly referred to in the panel’s reasons.
The employer said that the submission that the panel failed to take into account the panel submissions should be rejected, given that the panel submissions were in the referral materials, and were noted in the reasons provided by the panel. Further, that it is improbable that the panel would have overlooked the panel submissions given the small number of documents provided to it and the careful survey of the referral materials evidenced by the reasons.
The employer submitted that the Sullivan report was merely a piece of evidence, rather than a mandatory consideration or a fundamental issue. An opinion on a matter that the panel is required to determine cannot be a mandatory relevant consideration.[76] In any event, there is no basis to conclude that the panel did not have regard to the panel submissions and the extracts from the Sullivan report included in the panel submissions.
[76]Referring to Cameron v Board of Trustees (2003) 130 FLR 122 [32].
The principles governing this ground of review is explained in the following statement of the High Court in Minister for Aboriginal Affairs v Peko Wallsend Ltd[77] (‘Peko-Wallsend’):
[77](1986) 162 CLR 24 (‘Peko-Wallsend’)
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision
…
(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.
…
(c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.[78]
[78]Ibid 39-40.
In the recent decision of Victorian Workcover Authority v Putrus[79], the Court of Appeal said the following in relation to judicial review of the determination of medical panels:
[79][2023] VSCA 28.
It is well-settled that a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider, and that consideration could have materially affected its decision, or if it fails to give genuine consideration to fundamental issues raised by the facts of the case. Thus a medical panel examining a worker in accordance with the provisions of the Act is required to consider:
–the medical questions referred to the panel;
–the submissions of the parties (if provided);
–the document provided by the parties, required by s 304(a) of the Act, specifying the alleged injury and the agreed facts and disputed facts;
–the documents relating to the medical questions, provided by the parties pursuant to s 304(b) of the Act; and
–matters arising out of the medical panel’s examination of the worker (including the worker’s history, evidence as to any investigations, tests, studies or the like, and the panel’s findings on examination).[80]
[80]Ibid [37].
The Court also observed that the question of what matters a medical panel was bound to take into account was a very fact dependent inquiry.[81]
[81]Ibid [42].
A further recent consideration and application of the principles set out in Peko-Wallsend[82] is to be found in the decision of the Court of Appeal in Swidryk. As in this proceeding, the medical panel’s determination involved forming an opinion as to whether the worker’s employment duties were a substantial contributing factor to his injuries. The trial judge had found that the medical panel had failed to take into account the nature of the work performed by the worker and the particular tasks of his employment.
[82](1986) 162 CLR 24.
The Court of Appeal commenced its discussion by observing that it was not in dispute that the panel was required to consider this issue: rather, the question was whether the medical panel had done so.
The Court went on to say as follows (omitting citations):
In any review of the decision of a medical panel the starting point is a consideration of its statutory function under the Act.
The phrase ‘significant contributing factor’ is defined in sch 1, item 25 of the Act, as follows:
In determining whether a worker’s employment was a significant contributing factor to an injury, the following must be taken into account—
(a) the duration of the worker’s current employment;
(b) the nature of the work performed;
(c) the particular tasks of the employment;
(d)the probable development of the injury occurring if that employment had not taken place;
(e) the existence of any hereditary risks;
(f) the life style of the worker;
(g) the activities of the worker outside the workplace.
In the context of Mr El-Najjar’s claim, the relevant parts of the definition obliged the Panel to consider paras (a), (b), (c) and (d).
In carrying out its task, the Panel was also required to consider, pursuant to s 3 of the Act, whether Mr El-Najjar’s employment duties with the Applicants constituted a ‘recurrence, aggravation, acceleration, exacerbation or deterioration’ of Mr El-Najjar’s cervical and lumbar conditions.
A medical panel commits jurisdictional error if it fails to give genuine consideration to matters which it is required by the Act to consider (such as those set out at [43]), provided such consideration could materially affect its decision or goes to fundamental issues raised by the facts of the case.[83]
[83]Ibid [42]-[46].
As for the task before a reviewing court, the Court stated as follows:
It may be observed at the outset that in determining whether the Panel genuinely considered the role and nature of Mr El-Najjar’s work for the Applicants and its contribution to his cervical and lumbar conditions and symptoms, the examination by the Court is not that of a minute and forensic analysis of the Panel’s Reasons. Rather, in determining whether its consideration of an issue was genuine or realistic, attention needs to be directed to all of the material provided to the Panel and inferences to be drawn from that material as well as the content of the reasons. It is then for Mr El-Najjar to demonstrate that, on the basis of that analysis, it is likely that the Panel did not give appropriate consideration to the relevant issue or issues — in this case the role of the work tasks undertaken by Mr El-Najjar in relation to any injury to his cervical and/or lumbar spine.[84]
[84]Ibid [55].
The Court disagreed with the trial judge’s conclusion that the medical panel had failed to properly consider the nature of the work performed by the employer and the particular tasks of his employment, which was said to be based upon the medical panel’s failure to refer to the worker’s employment duties in its reasons. The Court said the following as to the relevance of a medical panel’s reasons to the task of evaluating whether the medical panel gave genuine consideration to the matters it was bound to consider:
We repeat that, in determining whether this argument is made out, it is important to firstly to identify the statutory task of the Panel in answering the questions posed by the Judge and secondly, to determine what appropriate inferences can be drawn by a court from the content of the Panel’s Reasons in the context of the material it was required to consider.[85]
[85]Ibid [82].
The way in which Mr Ambrose puts his case in this proceeding differs somewhat from the way in which the worker in Swidryk[86] put his case. In Swidryk[87], the relevant considerations said to have been ignored by the panel were matters prescribed by the relevant statutory provision, being item 25 of Schedule 1 of the WIRCA. In the current case, the panel is said to have failed to take into account the panel submissions regarding the causation issue and the Sullivan report, not that it failed to consider any specific factor enumerated in the statute when determining whether Mr Ambrose’s employment was a significant contributing factor to his neck condition. It is accepted, however, that matters raised in a party’s submissions may well be a matter that the panel is bound to take into account. Accordingly, I will consider the matters raised by the panel submissions and, for completeness, the relevant matters provided for by the relevant statutory provision.
[86][2023] VSCA 11
[87]Ibid.
Further, Mr Ambrose relies upon the Sullivan report, its omission from the referral materials, and the failure of the panel to take steps to obtain the Sullivan report as support for his contention that the panel failed to have regard to, or failed to meaningfully engage with, the panel submissions with respect to what was clearly a fundamental issue, being the causation issue. Mr Ambrose says that a critical feature of the Sullivan report was the linkage made by Dr Sullivan between the 2019 incident and Mr Ambrose’s neck condition.
The panel submissions focused upon the neck and back injuries said to have been sustained by Mr Ambrose during the course of his employment, submitting that the heavy and arduous duties of his employment was a significant contributing factor to the development of these injuries. The panel submissions included an extract from the Sullivan report regarding Mr Ambrose’s duties, including a statement that these duties involved the installation of staircases in ‘precarious and ergonomically disadvantageous situations’.
The panel submissions then went on to refer to the 2016 incident and its aftermath, and the 2019 incident and its aftermath, referring only to Mr Ambrose’s back or lumbar pain. The first reference to any medical diagnosis of neck pain was in the following paragraphs of the panel submissions:
What is clear from the history above, and is open to the Medical Panel to find, is that the plaintiff has been labouring under progressively deteriorating lumbar and neck pain with ongoing work-related exacerbations and flare-ups due to the heavy nature of his employment. Despite this the plaintiff, who was just 24 years of age at the time, has continued to work in the face of symptoms.
On 8 July 2019, the plaintiff was examined by Dr Protassow of the Mooroolbark Medical Centre, who recorded non-specific lower lumbar spine and muscle spasm with tenderness in his neck.
On 15 July 2019, the Plaintiff underwent a CT scan of his lumbar and cervical spine which reported: Congenital fusion at C5/6 with evidence of a C4/5 disc protrusion which would account for the right CS radiculopathy; No lumbar spine radicular compression or displacement.
On 4 September 2019, the Plaintiff was referred to Dr du Toit of the Metro Pain Group. In his report, Dr du Toit records a history consistent with the plaintiff's developing injury throughout the course of his employment. In particular, Dr du Toit's report of even date states “[h]e reports that neck pain started at work in 2016 associated with lifting, pushing and pulling and repetitive neck extension”.
On 20 September 2019, Dr du Toit performed a CT guided left fact (sic) joint injection into C4/5 and C5/6, which provided short term relief only.
On 15 October 2019, Dr du Toit reported to the plaintiff’s GP that he requested approval for branch blocks to assess the pain from the fact (sic) joint.
…
On 7 February 2020, the plaintiff underwent an epidural injection into his lumbar spine, which unfortunately did not provide any symptomatic benefit
An MRI of the cervical spine from 22 February 2020 was reported as demonstrating a congenital fusion of the C5/6 vertebral body, as well as a desiccation of the C4/5 and C4/5 disc levels, with a small disc bulge towards the right side at the L4/5 level, making contact with the right C5 nerve.
In April 2020, the plaintiff underwent nerve root injections into the cervical spine which again did not provide any symptomatic benefit.
The panel submissions then went on to summarise Mr Ambrose’s conditions and symptoms (as at October 2020), and then went on to make the following submissions regarding the relevant statutory framework (omitting footnotes):
The factors listed in WIRCA, clause 25 of Schedule 1, are not exhaustive.
It is submitted that every one of these factors resoundingly points to the plaintiff’s employment being a significant contributing factor to his claimed injuries sustained throughout the course of employment; lumbar, neck and chronic pain syndrome.
Whether employment is a “significant contributing factor” to the injury is an “essentially factual enquiry, the question being one of degree, requiring evaluation” by the Panel. The Panel must have regard to the fact that employment may be a significant contributing factor even if other factors are more significant. An injury may be cause by multiple significant factors. Even so, there is no evidence before the Panel of any other contributing factor to the plaintiffs presentation.
The panel’s submissions then went on to refer to the opinions of Mr O’Brien, Dr Sullivan and Dr du Toit regarding both the causation issue and Mr Ambrose’s capacity for his pre-injury duties, stating that ‘Dr Sullivan was unequivocal as to causation’.
I agree that the causation issue was one of the critical issues before the panel. However, it is clear from the reasons that Mr Ambrose’s contention that the panel failed to have regard to Mr Ambrose’s submissions regarding the causation issue, or failed to actively intellectually engage with the causation issue, is unsupportable. The discussion under the heading ‘Significant Contributing Factor’ in the reasons makes it clear that the panel recognised that the causation issue was a fundamental issue that it needed to resolve, and was alert to the competing arguments before it. The heading itself mirrors the language of the applicable statutory provision. The panel had taken a detailed history from Mr Ambrose, had access to all of the imaging material, and reached an emphatic conclusion that Mr Ambrose’s employment ‘was not in fact and could not possibly have been a significant contributing factor to the claimed cervical spine condition, or to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the cervical spine.’ (emphasis added).
Again, the panel used language mirroring the applicable statutory test, which supports my view that the panel was well aware of the fundamental issue that it had to decide. The relevant portion of the reasons (under the heading ‘Significant Contributing Factor’) referred to the nature of Mr Ambrose’s neck condition, the natural history of the diagnosed neck condition, and the gradual onset of Mr Ambrose’s symptoms. It noted Mr Ambrose’s work duties, and ‘considered there was no temporal relationship with his employment’.[88]
[88]This statement no doubt reflects the earlier statement in this section of the reasons to ‘the history of the gradual onset of neck symptoms’.
The reasons then went on to comment upon three of the medical opinions provided in the referral materials (one of which was referred to in the panel submissions), and stated whether it agreed or disagreed with those doctors regarding Mr Ambrose’s condition or conditions, his capacity for his pre-injury duties, and Mr Ambrose’s ‘work contribution’ or ‘relationship to employment’ of Mr Ambrose’s neck condition.
It is difficult to reach any conclusion other than that the panel was well aware of the critical issues it needed to determine and statutory framework governing the formulation of the its opinion, and that it had regard to all of the materials provided to it, including the panel submissions. The absence of the Sullivan report does not lead to the inevitable conclusion that the panel failed to review the panel submissions (which clearly, succinctly and forcefully set out Mr Ambrose’s contentions regarding all of the relevant issues) or actively engage with their contents.
A critical matter which Mr Ambrose says the panel failed to properly engage with is the linkage drawn in the Sullivan report between Mr Ambrose’s neck pain and the 2019 incident. However, it seems to me that the alleged connection said to be drawn by Dr Sullivan is far less clear and direct than that asserted by Mr Ambrose. As noted earlier in these reasons, Dr Sullivan’s recounting of the history provided by Mr Ambrose of his symptoms prior to and after the 2019 incident focuses largely on the condition of Mr Ambrose’s lumbar spine, and makes only a fleeting reference to any neck pain. Nothing in the Sullivan report contradicted the panel’s statement that there was a ‘history of the gradual onset of neck symptoms’. Contrary to the submissions of Mr Ambrose, there is nothing in the Sullivan report to suggest that the panel failed to properly consider or engage with the causation issue, or that, even if the panel had available to it the Sullivan report, its opinion regarding the causation issue might have been different. In the end, the Sullivan report is, as submitted by the employer, just another piece of evidence.
Further, while no complaint is made in this regard, for completeness, it seems to me that there is no basis for concluding that the panel failed to take into account any of the matters prescribed by clause 25, schedule 1 of the WIRCA.
Finally, in the reasons, and in its answers to the medical questions, the panel’s statement that Mr Ambrose’s employment ‘was not in fact and could not possibly have been a significant contributing factor’ to the neck injury almost perfectly mirrors the language used by the employer in its submissions to the panel. It seems to me to be highly unlikely that the panel would have had regard to the employer’s submissions regarding the causation issue without paying any attention to the panel submissions, particularly in circumstances where Mr Ambrose’s submissions regarding his ongoing incapacity for his pre-injury duties as a consequence of his lower back injury and his neck condition were accepted by the panel.
Accordingly, this ground of review is not made out.
Discretionary matters
Given that Mr Ambrose has been wholly unsuccessful in this proceeding, then strictly speaking, it is not necessary for me to address the submissions of the employer to the effect that even if one or more of the grounds of review was made out, then Mr Ambrose should be denied relief upon discretionary grounds, being the failure of Slater & Gordon to provide the panel with the Sullivan report and/or the operation report and/or the other operation records.
I have addressed the possible causes and consequences of the failure of the panel to have before it the Sullivan report earlier in those reasons. As for the operation report and/or the balance of the operation records, if Mr Ambrose had been successful on the first ground of review, that success would have been as a result of a finding that the panel had failed to make an obvious inquiry regarding a critical matter. I have already observed that the members of the panel must have known that an operation report would have been in existence, and I concluded that the panel must have formed the view that the operation report would not have contained critically relevant information. Further, the statements in the authorities considered in these reasons to the effect that a medical panel is not confined reviewing the material put before it, but is in some circumstances obliged to make its own inquiries, tells against denying relief on the ground advanced by Mr Ambrose on the basis of his solicitors’ failure to provide the operation report to the panel, particularly given that Mr Ambrose told the panel about the operation.
However, as none of the grounds of review have been made out, the proceeding will be dismissed. I shall hear further from the parties on the question of costs.
SCHEDULE OF PARTIES
| S ECI 2021 04053 | |
| BETWEEN: | |
| MR NATHAN AMBROSE | Plaintiff |
| ERIC JONES STAIRBUILDING GROUP PTY LTD | First Defendant |
| DR DOMINIC YONG | Second Defendant |
| DR ARMIN DRNDA | Third Defendant |
| MR PETER WILDE | Fourth Defendant |
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