Ayana v Qantas Airways Ltd

[2021] VSC 500

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00663

BELEMA AYANA	Plaintiff
v
QANTAS AIRWAYS LTD (ACN 009 661 901) & Ors (according to the schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2021
DATE OF JUDGMENT:	17 August 2021
CASE MAY BE CITED AS:	Ayana v Qantas Airways Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 500

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Where Panel found that aspects of worker’s presentation were inconsistent with video surveillance but made no express finding that worker was feigning – Where Panel considered and excluded a diagnosis of an organic pain condition but did not expressly consider a non-organic pain condition – Tension between principles that a Panel is required to set out its reasoning process and that a Panel is not required to explain why it did not reach an opinion it did not form – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Schilling (Victorian Bar Pro Bono Scheme)
For the First Defendant	Mr M Fleming QC and Ms S Gold	Sparke Helmore

HIS HONOUR:

1. Mr Ayana worked for Qantas as a baggage handler.  He suffered the onset of symptoms in his left knee and lower back in October 2014, and on 31 October 2014 made a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.  That claim was accepted and no-fault benefits were paid.  On 8 May 2017, Qantas terminated Mr Ayana’s entitlement to no-fault benefits on the grounds that, among other things, he no longer suffered from a compensable injury.  

1. In May 2018, Mr Ayana commenced proceedings in the County Court under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, in which he sought leave to commence proceedings for the recovery of damages on the basis that he had suffered a serious injury.  He contended that he had a permanent serious impairment or loss of a body function,[1] and/or a permanent severe mental or behavioural disturbance or disorder.[2]  The County Court referred questions to a medical panel (‘the Panel’) established under the Workplace Injury Rehabilitation and Compensation Act 2013.  The answers to the questions posed are binding on the County Court hearing the application for leave to commence proceedings for the recovery of damages.[3]

   [1]See Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 325(1) (para (a) of the definition of ‘serious injury’).

   [2]Ibid (para (c) of the definition ‘serious injury’).

   [3]Ibid s 313(4).

1. The Panel took a history from Mr Ayana and examined him.  Mr Ayana presented to the Panel as somebody in significant pain and with considerable disability.  However, the Panel, in answer to a question directed at the nature of Mr Ayana’s medical condition, stated:

In the Panel’s opinion, Mr Ayana is suffering from a chronic adjustment disorder with depressed mood, but is not currently suffering from any medical condition of the back, left leg, left knee or left foot, attributable to any alleged injury.

1. In its reasons, the Panel said:

The Panel concluded that the worker is suffering from a chronic adjustment disorder with depressed mood, which arose as a consequence of his initial, now resolved, physical injury and his perception of pain.

1. Mr Ayana submitted that this passage indicated an acceptance by the Panel of an ongoing, genuine perception of pain.  I disagree.  The second clause is expressed in the past tense.  I read the diagnosis as conveying that Mr Ayana had developed a chronic adjustment disorder in the past in the context of him at that time having a perception of pain, and not as conveying an opinion of genuine ongoing pain (although not excluding it either). 

1. Then,  in answer to a question directed at whether this psychiatric condition resulted in any incapacity for employment, the Panel said:

In the Panel’s opinion, Mr Ayana’s psychiatric condition is mild, and he has a capacity for his pre-injury employment.

1. Mr Ayana has applied to this Court for an order in the nature of certiorari quashing the decision of the Panel.  He has two grounds of appeal: first, that the Panel failed to have regard to whether or not Mr Ayana suffered from ‘a chronic pain syndrome’; and second, that the Panel failed to give an adequate statement of reasons.  The second to sixth defendants are the doctors who comprised the Panel.  In accordance with the usual practice,[4] they have advised the Court that they do not wish to appear in this proceeding and that they will abide by the Court’s decision.

   [4]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

1. Although the phrase ‘chronic pain syndrome’ can refer either to an organic or a psychiatric condition,[5] in this proceeding, Mr Ayana was using the phrase to refer to a psychiatric pain disorder.  This was a sensible approach by Mr Ayana in light of the fact that the Panel explicitly referred to, and stated that it disagreed with, medical opinion before it to the effect that Mr Ayana had developed an organic pain condition.  I will use the phrase ‘genuine non-organic pain condition’ to describe the condition that Mr Ayana contends was not considered by the Panel.

   [5]Sidiqi v Kotsios [2021] VSCA 187, [24] (Beach, Kaye and Osborn JJA).

1. Qantas accepted that the Panel was required to consider whether or not Mr Ayana had a genuine non-organic pain condition.  Again, this was a sensible concession in circumstances where the material placed before the Panel clearly adverted to this as a possible diagnosis and explanation for Mr Ayana’s disabled presentation.

1. Mr Ayana’s grounds of review require a consideration of the Panel’s reasons, in the context of the case as it was presented, in order to determine whether the Panel failed to have regard to the issue of whether or not he had a genuine non-organic pain condition.  The relevant parts of the Panel’s reasons include the following:

(a)   First, at the beginning of its reasons, the Panel stated that it had formed its opinion with regard to the documents and information referred to in the enclosure to its reasons, which document listed the 88 documents that were provided to the Panel. 

(b)  Then, under the heading ‘Current Physical Symptoms’, it recorded:

[Mr Ayana] complains of constant pain in the whole spine, and numbness in the whole of the left leg, from the waist down. He said that he is unable to bend the left knee and uses a crutch held in the right hand to mobilise. He said that his sitting tolerance is 15–30 minutes, standing tolerance is 10–15 minutes and walking tolerance is 50 metres. Current medications include: Coveram, Crestor, Imrest, Norspan patches, Pristiq, Amitriptyline, and Diazepam.

(c)   Then, under the heading ‘Psychiatric History’, the Panel referred, among other things, to:

(i)     the opinion of a psychiatrist that the plaintiff had a chronic pain syndrome;

(ii)  the opinion of a psychologist that Mr Ayana complained of constant pain through his knee, back, neck and head regions; and

(iii)             the opinion of a pain specialist, Dr Blombery, that Mr Ayana’s disability ‘was out of proportion to the severity of his injury to his knee but that was not under his conscious control and may be based on psychological and cultural factors’.

(d)  Then, under the heading ‘Current Psychiatric Symptoms’, the Panel noted Mr Ayana’s complaints of pain and other somatic symptoms in various parts of his body, and the use of a right forearm crutch to give him extra support.  The Panel noted Mr Ayana’s assertion that he ‘can only walk a few steps at a time’, but also noted that that was shown to be wrong by reference to the surveillance video that they viewed.  It also referred to other symptoms, such as an increase in weight, trouble sleeping, anger issues, loss of self-esteem and confidence, memory problems, loss of motivation, and feelings of worthlessness and hopelessness.

(e)   The Panel then performed a physical examination.  It expressed its findings that Mr Ayana presented with ‘collapsing weakness on the assessment of power and non-dermatomal sensory changes’.  It stated that, despite the presentation of walking ‘very slowly, with a left-sided stiff-leg gait, using a crutch in his right hand’ and an ‘unwillingness to move the left knee’, there was good quadriceps muscle strength, no significant thigh or calf muscle wasting, normal callous formation on the sole of the left foot and a similar wear pattern on both shoes.  The Panel referred to the surveillance videos and expressed its conclusion that ‘the actions depicted were inconsistent with his presentation on physical examination’.  The Panel indicated that the videos provided information upon which ‘it could rely to reach an opinion about the nature and severity of Mr Ayana’s medical condition’.

(f)    The Panel then set out its physical diagnosis.  It concluded that Mr Ayana was no longer suffering from any medical condition of the back, left leg, left knee or left foot.  The Panel expressly stated that, in forming this view, it took account of the variable findings on physical examination and the inconsistencies demonstrated on video surveillance, noting that its conclusion was drawn ‘despite’ Mr Ayana’s complaint of symptoms. 

(g)  The Panel then conducted a mental state examination.  This examination focussed on Mr Ayana’s mood, affect, thought content, perception, attention and concentration.  It noted that his thought content was ‘about his ongoing pain and the effect this had had on his life’. 

(h)  The Panel then expressed its diagnosis that Mr Ayana had a chronic adjustment disorder.

(i)     There were no express findings about whether or not Mr Ayana had a genuine non-organic pain condition, or whether he was feigning any symptoms, beyond the findings earlier expressed that the ‘actions depicted’ on the videos were inconsistent with Mr Ayana’s presentation on physical examination.

(j)     Finally, the Panel noted at the end of its reasons that it disagreed with the opinion of Dr Blombery.  But although Dr Blombery had opined both that Mr Ayana had an organic pain condition and that Mr Ayana had a disproportionate level of disability that was ‘not under his conscious control’, when the Panel mentioned that it disagreed with Dr Blombery’s opinion, it only set out his opinion as it related to the organic pain condition.  That is, the Panel did not express the view that it disagreed with Dr Blombery’s opinion that Mr Ayana’s disproportionate level of disability was not under his conscious control.

1. The Panel’s reasons are to be read in circumstances where the issue as to whether or not Mr Ayana had a genuine non-organic pain condition, and the related issue of his credit, were squarely raised by the material before the Panel.  Mr Ayana, in his written submissions to the Panel, had drawn its attention to the opinion of one of his treating psychiatrists that he suffered from a ‘chronic major depressive disorder’ as well as ‘chronic pain syndrome secondary to workplace based injury’.  Video surveillance provided to the Panel had revealed a level of movement that was inconsistent with how Mr Ayana had presented to many of the doctors.  Qantas, in its submissions to the Panel, had contended, in a forthright way, that Mr Ayana was ‘feigning his ongoing pain and restrictions’.  It had contended that ‘the inconsistencies in [Mr Ayana’s] presentations are so extensive that his symptoms simply cannot be genuine’.  Qantas had also drawn the Panel’s attention to the opinion expressed by the previous Panel that Mr Ayana ‘does not have clinical features consistent with a somatic symptom disorder (previously known as a pain disorder and also sometimes referred to as a chronic pain syndrome.)’.

1. Despite these matters, as noted above, the Panel, in its reasons, did not expressly state whether or not it thought that Mr Ayana had that condition, nor did it expressly state whether it thought that Mr Ayana was feigning his symptoms.  This lack of an expressed conclusion on the issue of whether Mr Ayana had a genuine non-organic pain condition allows for the possibility that the Panel failed to consider that issue at the time it formed its diagnosis.  

1. The absence of an expressed conclusion does not compel an inference that the Panel did not have regard to the issue as to whether or not he had that condition.  The questions required the Panel to opine as to what conditions Mr Ayana had, but did not themselves require the Panel to opine on what conditions he may have had, but did not have.  Indeed, the fact that the Panel expressly concluded that Mr Ayana had a chronic adjustment disorder might support an inference that the Panel concluded that he did not have any other psychiatric conditions.  In the absence of express findings, it is, ultimately, a matter of inference as to whether, in all the circumstances of the case, the Panel failed to consider the relevant issue when it came to forming its opinion.

1. In the circumstances of this case, I am not positively satisfied that the Panel simply failed to consider the question as to whether or not Mr Ayana had a genuine non-organic pain condition.  There are too many references to his pain and the unusual and inconsistent way he presented to make a positive finding, on the balance of probabilities, that the issue was simply overlooked.  Accordingly, Mr Ayana has not made out his first ground of review.

1. On the other hand, however, I am likewise not positively satisfied that the Panel did consider that issue at the stage that it was formulating its diagnosis.  In my view, the reasons leave the position uncertain.  The Panel did not say that it did so.  It recorded Mr Ayana’s complaints of significant pain and that he took medication including Norspan patches for those complaints, but did not say that the pain was not genuine.  The inconsistency between the activity shown on the video surveillance and the presentation on examination, along with the examination findings, was used to deny the presence of an ongoing organic condition.  It was not returned to, though, in either the mental state examination or when the psychiatric diagnosis was being expressed.  The Panel did not refer to the possibility of a genuine non-organic pain syndrome, save to the extent that it set out the opinions of some other doctors that related to that issue.  It did not express its disagreement with any of those opinions.  In particular, it did not express disagreement with Dr Blombery’s opinion that Mr Ayana’s exaggerated presentation was not under his conscious control.  Accordingly, there is nothing explicit in the reasons that shows that the Panel considered and excluded this diagnosis, or that they formed the view that Mr Ayana’s exaggerations precluded the existence of such a condition.

1. The reasons justify an inference that the Panel might well have considered this condition when making its diagnosis, but, in the particular circumstances of this case, do not justify an inference that it in fact did do so.  If it did consider and exclude this condition when making its diagnosis, it is somewhat surprising, in the circumstances of this case, that it made no reference to it.  The fact that the Panel said, as it usually does, at the start of its reasons that it had had regard to the documents provided to it does not lead me to alter this conclusion.  The reasons allow for the real prospect that the Panel, having determined that Mr Ayana did not suffer from an organic condition, failed to return to the issue of whether his complaints of pain were nonetheless genuine when forming its psychiatric diagnosis, and focussed instead on his affect, depressed presentation, concentration, irritability and like factors that justified a diagnosis of an adjustment disorder deriving from the now-resolved organic injury.  In the particular circumstances of this case, I do not consider that the diagnosis of a chronic adjustment disorder implied consideration and rejection of the diagnosis of a genuine non-organic pain condition.  It is noteworthy and significant that the Panel explicitly stated that it disagreed with Dr Blombery’s opinion in so far as it related to the claimed organic condition, but made no corresponding statement relating to any claimed non-organic condition or Dr Blombery’s opinion that Mr Ayana’s presentation was not under his conscious control.

1. In this way, the reasons fail to explain the actual path of reasoning in sufficient detail for me to see whether or not the Panel had regard to the agreed mandatory consideration and thus whether or not its opinion contains an error of law.  Accordingly, in my view, there is an error of law on the face of the record and an order in the nature of certiorari ought to be made.[6] 

   [6]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).

1. Finally, I make the following further observations:

(a) A tension can arise between the principle that a panel must set out its reasoning process in sufficient detail to allow the court to ascertain whether that process involved an error or law,[7] and the principle that a panel is not obliged to give reasons to explain why it did not reach an opinion it did not form.[8]  The tension arises in a case like this, where the parties agree that the Panel was required to consider a possible diagnosis, but the Panel did not reach that diagnosis.  The tension is resolved, in my view, by giving priority to the former principle.  If a panel is required to consider a diagnosis, then in ordinary circumstances the reasons ought to reveal whether or not it considered that diagnosis, even if it did not ultimately form that diagnosis.  Otherwise, the Court would be unable to detect and correct error.

(b)  In ordinary circumstances, reasons will not be sufficient if they merely create in the Court a suspicion that a panel has had regard to a relevant matter.  This is particularly important where the uncertainty derives from an absence of an express reference to a mandatory consideration in a set of reasons.  The reasons themselves must be read, in their full context, with an open mind as to whether or not the decision-maker has erred, including with an open mind as to whether or not the decision-maker has made an obvious or surprising error.  That is not to say that the reasons ought to be read with an eye to error; rather, they must be read on their merits.  The Court may draw inferences, and in many cases this will include an inference that a panel has considered a matter to which it has not explicitly referred.  But starting with a presumption that a panel would not ordinarily fail to consider a relevant matter, and then in effect relying on this to justify an inference that the matter was considered despite it not being explicitly referred to at the relevant part of the reasons, can be both circular and unfair.  Of course, each case will turn on its own particular circumstances, and there may be cases where the error, if it occurred, would be so surprising and obvious that a conclusion may be reached that it did not occur.  I do not think this is such a case.

(c)   Experience shows that doctors, when preparing medical reports, sometimes do not express an opinion on whether or not a worker is feigning symptoms.  Presumably, some consider that it is not their role to assess reliability, and instead accept histories and presentations as genuine and treat or express opinions on that basis.  Such an approach is understandable where the doctor is treating a patient in a private setting.  It is also understandable where the doctor is to be called to give opinion evidence, on the basis that the doctor’s opinion can then be assessed by reference to whether or not the history taken is established to the satisfaction of the finder of fact.[9]  In this way, the doctor is acting as other expert witnesses act.  But in my view, such an approach should not be followed by medical panels in their reasons supporting opinions formed by them on medical questions referred to them under the Workplace Injury and Compensation Act 2013.  This is because the panels answering those questions are the finders of fact.  In my view, if a medical panel has formed the view that a claimant is unreliable, and that finding is relevant to the diagnosis that it has reached or an opinion it has formed, then it ought to state as much in its reasons.  On a matter as central as whether or not a claimant is feigning symptoms, the parties and the Court should not, ideally, be left in a position where they are required to draw inferences or to reason backwards from the diagnosis reached.  

[7]Ibid.

[8]Ibid 501–2 [56].

[9]See, eg, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.

1. The decision of the Panel should be set aside.  I will hear the parties on the form of orders.

1. Finally, I wish to record that counsel appearing for Mr Ayana was doing so pursuant to the Victorian Bar’s Pro Bono Scheme, and express the Court’s gratitude for the assistance that was provided.

SCHEDULE OF PARTIES

S ECI 2020 00663

BELEMA AYANA	Plaintiff
-and-
QANTAS AIRWAYS LTD (ACN 009 661 901)	First defendant
-and-
MICHAEL EPSTEIN	Second defendant
-and-
ALEXANDER HOLMES	Third defendant
-and-
DAVID KOTZMAN	Fourth defendant
-and-
JOHN BOURKE	Fifth defendant
-and-
JANE TRINCA	Sixth defendant