Boynes v Brown Group Personnel
[2015] VSC 702
•24 DECEMBER 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 01595
IN THE MATTER of the Accident Compensation Act 1985
| PHILIP BOYNES | Plaintiff |
| v | |
| BROWN GROUP PERSONNEL PTY LTD & ORS | Defendants |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 1 DECEMBER 2015 |
DATE OF JUDGMENT: | 24 DECEMBER 2015 |
CASE MAY BE CITED AS: | BOYNES v BROWN GROUP PERSONNEL |
MEDIUM NEUTRAL CITATION: | [2015] VSC 702 |
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ADMINISTRATIVE LAW — Judicial review — Medical Panel — Jurisdictional error.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr M Fleming QC with Mr R Kumar | Thomson Geer |
HIS HONOUR:
By originating motion filed 10 April 2015, the plaintiff seeks an order in the nature of certiorari quashing the Certificate of Opinion of the Medical Panel (‘the Panel’) dated 11 February 2015 to which a number of questions had been referred by Magistrate Wright under s 275(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of the plaintiff’s claim for worker’s compensation.
The relevant facts
The plaintiff was born on 2 February 1959.
At the age of 12 or 13 he suffered a left sided slipped femoral epiphysis, which was surgically treated with the insertion of pins. After about a year, there was a failed attempt to remove the pins.
After leaving secondary school, he completed a plant nursery apprenticeship and worked for the Sandringham Council tending parks and street trees for 14 years. During this time, he completed courses as an arborist and a landscaper.
In the mid to late 1990’s, he worked as a tree inspector for the City of Whitehorse and also provided some services to other city councils.
Between 2006 and 2011, he worked for Brown Group Personnel Pty Ltd (‘the defendant’) as a truck driver at a landfill site in Clayton. The work was described in the plaintiff’s submissions to the Panel as follows:
5.The plaintiff worked six days per week and he was required to transport large bins full of landfill from the public transfer station by truck to the municipal landfill.
6.The plaintiff’s duties required him to get in and out of his truck repeatedly.
7.When picking up a full bin, the plaintiff was required to climb out of his truck and hitch a bin onto the back of the truck. The plaintiff would then climb back into the cabin of his truck and drive to the landfill site where he would again alight from the cabin of the truck to unlock the door of the bin. It was then necessary for the plaintiff to climb back into the cabin of his truck and raise the tray of the truck so the rubbish would fall out. He would then alight from the truck again to lock the door of the bin, and then would take the bin back to the public transfer station where he would again alight from the cabin and unhitch the bin. He would return to the cabin of his truck in order to move his truck to pick up another full bin and repeat this process. The plaintiff was required to empty 30 bins per day and he would enter and exit the cabin around six or seven times per bin. This process placed considerable strain on the plaintiff's left hip.
8.The floor of the driver's cabin was at approximately between one to two metres above the ground. The plaintiff was required to change the tyres of the truck that would often be damaged by material around the tip.
The plaintiff told the Panel that in about 2010 he noticed that his left hip was ‘clicking a bit’ and soon after he began to limp, especially after work. During this time, he was still able to get into and out of his truck as he relied on his right leg to get himself into and out of the truck cabin. However, by the end of 2011 the plaintiff had rapidly deteriorated and developed a painful limp in his left leg. He ceased work for the defendant in December 2011 and in March 2012 he resigned from employment because he was physically unable to continue working due to his left hip condition. On 19 September 2012, he underwent a total hip replacement.
By a Worker’s Injury Claim Form dated 25 February 2013, the plaintiff claimed that he had suffered ‘injury to both wrists, shoulders, feet, toes, knees and hip[,] [a]rthritis [and] [t]otal left hip replacement.’ He attributed the injuries to the requirement of his employment for the defendant to climb up and down the truck, manoeuvre the 30 square metre bins and repeatedly open damaged locks on the bins.
By letter dated 19 April 2013, the authorised agent of the Victorian WorkCover Authority, Allianz Australia Workers’ Compensation (Victoria) Limited (‘Allianz’), rejected the plaintiff’s primary claim for weekly payments and medical and like expenses. The letter stated:
You lodged a claim for injuries to both wrists, shoulders, feet, toes, knees and hips, arthritis and a total left hip replacement due to climbing, pushing and pulling during the course of your employment as a Bin Truck Driver with Brown Group Personnel P/L. You state that these injuries occurred from 2006 to 2011. It is noted that you last worked for Brown Group Personnel P/L in December 2011 and have not returned to work since this date. You resigned from employment in March 2012 due to ill health.
Your employer has indicated that throughout your employment with them, you have not reported any work related injuries.
The letter then went on to state a number of grounds for the rejection of the plaintiff’s claim based on Allianz’s review of the relevant information. For present purposes, Allianz determined that the plaintiff had not sustained an injury arising out of or in the course of his employment for the defendant.
On 21 March 2013, the plaintiff submitted an additional claim, a Worker’s Claim for Impairment Benefits Form, in which he stated that he had suffered injuries to his shoulders, knees, feet, hands, hips and arthritis ‘due to heavy and repetitive lifting, pushing, bending, twisting and repetitive climbing into & out of truck’.
By letter dated 24 April 2013, Allianz rejected the plaintiff’s claim in respect of all claimed injuries on the following grounds:
•You did not sustain an injury with Brown Group Personnel Pty Ltd within the meaning of the Accident Compensation Act 1985
•Your claimed injury did not arise out of or in the course of employment with Brown Group Personnel Pty Ltd
•Your employment with Brown Group Personnel Pty Ltd was not a significant contributing factor to the claimed injury
By a complaint filed in the Magistrates’ Court on 13 December 2013, the plaintiff sought orders that the defendant pay weekly payments of compensation to the plaintiff, reasonable medical and like expenses in respect of the treatment that the plaintiff had had in respect to the claimed injuries; and impairment benefits. The basis of the claim was that the employment with the defendant was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury being osteoarthritis in the left hip.
By an order of the Magistrates’ Court made on 23 October 2014, ten questions were referred to the Panel; and by Certificate of Opinion dated 11 February 2015 the Panel, constituted by Associate Professor Evange Romas (Rheumatologist), Dr Matthew Tagkalidis (Psychiatrist) and Mr Garry Grossbard (Orthopaedic Surgeon), provided its answers. The following two answers are relevant for present purposes:
Question 1:What is the nature of the Plaintiff's medical condition relevant to the injury alleged in paragraphs 4 and 5 of the Statement of Claim?
Answer:The Panel is of the opinion that the Plaintiff is suffering from residual dysfunction following surgical treatment of left hip osteoarthritis.
The Panel is also of the opinion that the Plaintiff is suffering from no abnormal psychological or psychiatric condition.
Question 2:Was the Plaintiff's employment with the Defendant in fact, or could it possibly have been, a significant contributing factor to any, and which, injury or condition referred to in answer to question 1?
Answer: No.
In the submissions to the Panel filed on behalf of the plaintiff, it was contended as follows:
(a)The plaintiff made a complete recovery from the surgery to his femoral epiphysis which he suffered as a teenager and had no problems until the onset of pain in 2011.
(b)It was only the medical condition in his left hip that prevented him from continuing to work for the defendant.
(c)The injury was the result of the repetitive nature of having to climb in and out of the high cabin in his truck and being required to move about 30 bins per day, which meant that he had to alight from his truck up to 100 times per day. He also was required to change tyres on the truck.
In the submissions to the Panel filed on behalf of the defendant, it was contended that the plaintiff’s left hip condition was not work related, or if it was found to be work-related, it was not or no longer productive of any incapacity for work. In particular, it was submitted as follows:
(a)The left hip condition was the result of the slipped upper femoral epiphysis and the presence of the Knowles pins in situ predisposed the plaintiff to osteoarthritis of the left hip.
(b)The rheumatoid arthritis suffered by the plaintiff was the cause of further degeneration of his left hip which was rendered vulnerable to degeneration by the childhood condition and the failure to remove the Knowles pins.
(c)The plaintiff did not complain at any time about his work with the defendant aggravating his symptoms.
In its Reasons for Opinion (‘Reasons’), the Panel described its examination of the plaintiff on 16 January 2015 and in particular noted the history as follows:
The Plaintiff said that between 2006 and 2011 he worked for the Defendant as a truck driver at the Clayton 'landfill'. The Plaintiff explained that he was employed full-time and required to transport large bins full of landfill from the public transfer station by truck, to the municipal landfill.
The Plaintiff described his job as being "very manual" and said that he was picking up bins of hard domestic waste. He emptied as many as 30 bins (each 30 meters square) per day using a Kenworth 'hook truck' with a specialised locking system. He said that he was 'in and out of my truck' multiple times each day, and 'out to the weighbridge' (where the bins were located), taking the waste down to 'the bottom' of the tip, and turning the truck around. He said he was jumping ‘in and out’ (of his truck), ‘six or seven times’ for each bin. The Panel noted the submissions on behalf of the Plaintiff wherein it is asserted that "this process placed considerable strain on the plaintiff's left hip." The Plaintiff also said he did maintenance such as tyre changing and on average, had to change about six tyres per week. He also 'got under the truck' to 'grease the gears' as the workplace was dusty.
The Plaintiff was asked to describe the specific actions involved in his getting into and out of his truck. The Plaintiff said that he would always lead with his right leg, placing his right foot (indicating flexion of his right hip and knee) on to a 'little step' (which accommodated only one foot), he placed his left hand on a rail, and right hand on the truck's steering wheel, pulling himself up into the cabin (between 1 to 2 m above the ground), by pivoting on his right leg and then hauling his body and left leg into the relatively small cabin. He said that he would then have to get out of the truck to secure the bin onto the truck and open the back of the truck and then get back in to use switches and levers to empty the bin before again having to get out of the truck and secure the emptied bin, and get back into the truck and drive back to the transfer station. Normally he emptied 15 to 20 bins on any given day working six days a week.[1]
[1]Emphasis in original.
The Panel concluded that the plaintiff’s employment with the defendant ‘was not in fact, nor could it possibly have been, a significant contributing factor to his left hip arthropathy or his residual dysfunction following surgical treatment of his left hip arthritis, in any way.’ The Panel stated:
The Panel took into account the Plaintiff’s history of childhood slipped capital femoral epiphysis, the history of failed removal of the hip fixation pins, the X-ray appearances (which showed, in the Panel's opinion, characteristic features of osteoarthritis consistent with unreduced (traumatic) slipped capital epiphysis, the absence of any clinical or X-ray evidence of femoro acetabular impingement syndrome, the specific work duties of the Plaintiff (noting that the Plaintiff relied mainly on his right hip in order to climb to and from his truck cabin) with his left lower limb following passively, the history of development of rheumatoid arthritis most likely for several years before his presentation to rheumatologist Dr Mark Patrick, the duration of the Plaintiffs employment with the Defendant, and natural history of slipped capital (femoral) epiphysis leading to premature joint failure. The Panel formed the view that the Plaintiff's left hip arthropathy was entirely constitutional in nature and origin and has not been affected by the Plaintiff's employment activities, in any way.[2]
[2]Emphasis added.
By originating motion, the plaintiff claims that the Certificate of Opinion and the Reasons of the Panel are in error on the following grounds:
(a)The Medical Panel erred in failing to take into account adequately or at all the explanation and demonstration given in evidence to it by the Plaintiff as to the weight borne by and strain imposed upon his left hip when:
(i) climbing into the cabin of the truck;
(ii)moving sideways to the left on the seat in the cabin of the truck;
(iii) climbing down from the cabin of the truck.
(b)The Medical Panel erred in relying upon its own summary of the weight borne by and the strain imposed upon the Plaintiff's left hip when that summary of evidence did not fully and accurately record the evidence given to it by the Plaintiff nor the demonstration given by the Plaintiff and in consequence failed to assess fully or adequately the weight borne by and strain imposed upon his left hip when:
(i) climbing into the cabin of the truck;
(ii)moving sideways to the left on the seat in the cabin of the truck;
(iii) climbing down from the cabin of the truck.
(c)The Medical Panel erred in failing to take into account a relevant consideration, namely the explanation and demonstration given in evidence to it by the Plaintiff as to the weight borne by and strain imposed upon his left hip when:
(i) climbing into the cabin of the truck;
(ii)moving sideways to the left on the seat in the cabin of the truck;
(iii) climbing down from the cabin of the truck.
(d)The Medical Panel erred having regard to the whole of the evidence available to it including the:
(i)explanation and demonstration given in evidence to it by the Plaintiff as to:
(x) climbing into the cabin of the truck;
(y)moving sideways to the left on the seat in the cabin of the truck;
(z) climbing down from the cabin of the truck.
(ii) report of Dr Patrick rheumatologist dated 20 May 2013;
(iii) report of Dr Stockman rheumatologist dated 24 June 2013;
(iv) report of Dr Karna rheumatologist dated 30 June 2014;
(v)report of Mr Kossmann orthopaedic surgeon dated 24 June 2014-
in finding that the Plaintiff’s employment with the First Defendant was not in fact and could not possibly have been a significant contributing factor to compensable injury.
(e) The Medical Panel failed to provide adequate reasons, failed to disclose an adequate path of reasoning, in particular having regard to the whole of the evidence before it to demonstrate that the Plaintiff's employment with the Defendant was not in fact and could not possibly have been a significant contributing factor to compensable injury.
(f)The Medical Panel failed to provide adequate reasons, and failed to disclose an adequate path of reasoning, in particular having regard to the explanation and demonstration given in evidence to it by the Plaintiff as to the weight borne by and strain imposed upon his left hip when:
(i) climbing into the cabin of the truck;
(ii)moving sideways to the left on the seat in the cabin of the truck;
(iii) climbing down from the cabin of the truck.
Statutory regime
The plaintiff claims compensation by way of weekly payments and medical expenses under s 82 of the Accident Compensation Act 1985 and compensation for impairment benefits under s 98C of the same Act.
Section 82(2C)(c) of the Accident Compensation Act 1985 provides that there is no entitlement to compensation in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury unless the worker’s employment was a significant contributing factor to the injury. In determining whether a worker’s employment was a significant contributing factor to an injury the following matters 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.[3]
[3]Section 4(2)(a) of the Act adopts the definition of ‘significant contributing factor’ found in sch 1 pt 3 cl 25 of the Workplace Injury Rehabilitation and Compensation Act 2013.
Section 98C(1) of the Accident Compensation Act 1985 provides that a worker who suffers a compensable injury is entitled to weekly compensation payments if the injury results in a permanent impairment.
The compensation provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 do not apply to the plaintiff’s claim because the injury occurred prior to 1 July 2014.[4] However, the dispute resolution provisions in Part 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 do apply to disputes and claims under the Accident Compensation Act 1985 whether made before or after 1 July 2014.[5]
[4]Workplace Injury Rehabilitation and Compensation Act2013 s 5.
[5]Workplace Injury Rehabilitation and Compensation Act 2013 s 6(6)(b).
Pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013, the Magistrates’ Court may refer a medical question to a Medical Panel for an opinion under Division 3 of that Act.
Under Division 3, the function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment.[6] A Medical Panel is not bound by rules or practices as to evidence, but may inform itself of any matter relating to a reference in any manner it thinks fit; and must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.[7] The Medical Panel is entitled to require any worker to submit for examination by the Medical Panel.[8] The Medical Panel must give a certificate as to its opinion and a written statement of reasons for that opinion.[9] The opinion of a Medical Panel must be accepted as final and conclusive.[10]
[6]Workplace Injury Rehabilitation and Compensation Act 2013 s 302.
[7]Workplace Injury Rehabilitation and Compensation Act 2013 s 303.
[8]Workplace Injury Rehabilitation and Compensation Act 2013 s 308.
[9]Workplace Injury Rehabilitation and Compensation Act 2013 s 313(2).
[10]Workplace Injury Rehabilitation and Compensation Act 2013 s 313(4)(b).
Submissions
Before this Court, the plaintiff’s submissions were reduced to relying on the following defects in the Panel’s Reasons:
(a) In his affidavit sworn 10 April 2015, the plaintiff had deposed of a demonstration at the examination by the Panel members as follows:
What the Panel has failed to record is that when I demonstrated the manner of entering the cabin, I demonstrated that the weight of my body was borne by my left hip and there was a significant strain borne by my left hip at that point in time.
Also, the Panel does not appear to have appreciated from my demonstration that when I was getting out of the cabin, the reverse procedure was followed in that after lowering my right foot onto the step it was again my left foot which hit the ground first and it was my left hip which took the weight of my body as my right foot was lowered off the step and came down to ground level.
(b) The Reasons failed to refer to this demonstration; and, if the Panel had had regard to the demonstration, it was not open for it to conclude, as it did, that ‘(… the plaintiff relied mainly on his right hip in order to climb to and from his truck cabin) with his left lower limb following passively’.[11]
[11]Page 10 of 12 of the Reasons.
(c) It should be inferred from the failure to refer to the demonstration that the Panel had failed to take the demonstration into consideration. It was submitted that the Panel was bound to take the demonstration into consideration and therefore its failure to do so was a jurisdictional error. The plaintiff relied upon the decisions of Tralongo v Malios[12] and Abbott v Eptec Victoria Pty Ltd.[13]
(d)Further, this also resulted in a deficiency in the Reasons in that the Panel had failed to identify that they were given the demonstration of getting into and out of the truck.
(e)As a result of the failure to refer to the demonstration, the analysis of the evidence was inadequate and led the Panel to take an erroneous view as to the physical strains which underpinned its rejection of the plaintiff’s claims. It was submitted that this failure meant that the reasoning process, as disclosed, was inadequate.
[12][2007] VSC 239 (Williams J).
[13][2011] VSC 267 (Beach J).
The plaintiff did not press any contention that, apart from the failure to record the demonstration, there was any relevant part of the history which had not been recorded in the Panel reasons.
On behalf of the defendant, it was submitted as follows:
(a)The Panel did refer to the demonstration in its Reasons when it noted:
The plaintiff said that he would always lead with his right leg, placing his right foot (indicating flexion of his right hip and knee) on to a ‘little step’ (which accommodated only one foot), he placed his left hand on a rail, and right hand on the truck’s steering wheel, pulling himself up into the cabin (between 1 to 2 m above the ground), by pivoting on his right leg and then hauling his body and left leg into the relatively small cabin.’[14]
[14]Emphasis added.
The defendant submitted that the reference to ‘placing his right foot (indicating flexion of his right hip and knee) on to a “little step”’ was a reference to the demonstration and the notes were an ‘admirably complete and full description’ and it could not be said that the Panel had ‘slipped by or glossed over’ or otherwise failed to have regard to the history provided by the plaintiff.
(b)The assertion of the plaintiff that the jumping in and out of the truck placed strain on his left hip was specifically noted by the Panel, which had quoted from paragraph 7 the plaintiff’s written submissions where the Panel stated:
The Panel noted the submissions on behalf of the Plaintiff wherein it is asserted that ‘this process placed considerable strain on the plaintiff’s left hip’.[15]
(c)The plaintiff having demonstrated the flexion of his right hip and knee in placing his right foot on the step, it was for the Panel to conclude what the demonstration showed; and not for the plaintiff in his affidavit to reach conclusions as to what it showed.
(d)To the extent that there was any failure to refer to the demonstration, it should not be inferred that the Panel failed to take the demonstration into account. Further, a failure to take the demonstration into account would only be a jurisdictional error if the Panel was bound to take it into account. It was submitted that the demonstration was not a matter that the Panel was bound to take into account; therefore no jurisdictional error had been demonstrated.
(e)The plaintiff did not depose to the fact that the demonstration included his attempts to slide across the seat. Accordingly, the only demonstration was how he got into the cabin, which is consistent with the Panel recording about his right knee and hip flexion.
(f)The demonstration involving the placing of his right leg on the step and pulling himself up into the cabin was consistent with the Panel’s conclusion that the plaintiff relied mainly on his right hip in climbing into and out of the cabin and that the left leg was a trailing leg.
[15]Emphasis in original.
In reply, Mr Ingram, lead counsel for the plaintiff, refocussed his submissions and conceded that the Panel did refer to the demonstration but contended as follows:
(a) The Panel’s function was not to assess strain on the right hip but rather to assess the strain that his employment duties put on the left hip. The Panel erred in considering the weight that was borne on the right hip, rather than the left hip, during the process of getting into and out of the cabin, as had been demonstrated. In particular, it failed to consider the weight that was placed on the left hip prior to the plaintiff lifting himself into the cabin and the weight that was placed on the left leg as the plaintiff alighted from the cabin.
(b) The Panel did not disclose its path of reasoning because they concentrated on the issue about the strain on the right hip.
Accordingly, the plaintiff contended that the two errors both related to the Panel’s failure to consider the proper question, which was the amount of stress on the left hip.
Medical Panel’s Reasons
I summarise the Reasons as follows:
(a) The Panel noted the plaintiff’s history, prior to his employment with the defendant, including:
(i) the slipped femoral epiphysis when the plaintiff was 12 or 13 years of age and the failed attempt to remove the pins approximately a year later,
(ii) the fact that he had recovered and was able to walk normally and engage in recreations such as fishing and shooting trips (despite not being able to participate in shooting activity); and
(iii) his ability to work for many years with the Sandringham Council and later the City of Whitehorse.
(b)The Panel noted the plaintiff’s history with respect to his employment with the defendant as noted in paragraph [6] above and, in particular, the assertion that the constant getting into and out of the cabin placed considerable strain on his left hip.
(c)The Panel noted that, in about 2010, the plaintiff’s left hip was ‘clicking a bit’ and soon after he was limping, especially after work. He was still able to get into and out of the truck because he relied upon his right hip and knee. By the end of 2011, he had a painful limp and ceased working.
(d)The Panel noted various medical imaging investigations and specifically referred to the opinions in the following reports:
(i)The reports of Dr Mark Patrick, treating Rheumatologist, dated 17 February 2012, 16 March 2012 and 20 May 2013 and that he had come to a different conclusion.
(ii)The report of Mr Thomas Kossman, independent Orthopaedic Surgeon, dated 24 June 2014 and indicated the reason it had reached a different conclusion.
(iii)The report of Dr Alex Stockman, independent Rheumatologist, dated 6 August 2014 and indicated the reason that it had reached a different conclusion.
(iv)The report of Dr Roy Karna, independent Rheumatologist, dated 30 June 2014 and indicated the reason it had reached a different conclusion.
(e)On the basis of the history, physical examination and radiological findings, the Panel concluded that the plaintiff was suffering from residual dysfunction following surgical treatment of left hip osteoarthritis.
(f)The Panel further concluded that the plaintiff’s employment with the defendant was not a significant contributing factor to the osteoarthritis in the left hip and formed this opinion after taking into account:
(i)the childhood slipped capital femoral epiphysis;
(ii)failed removal of the hip fixation pins;
(iii)x-ray appearances consistent with unreduced (traumatic) slipped capital epiphysis in the absence of clinical or x-ray evidence of femoro acetabular impingement syndrome;
(iv)specific work duties of the plaintiff;
(v)the history of development of rheumatoid arthritis;
(vi)the duration of the plaintiff’s employment with the defendant; and
(vii)the natural history of slipped capital (femoral) epiphysis leading to premature joint failure.
Conclusion
The principles to be applied when assessing the reasons of a Medical Panel are well established.
(a)The statutory function of the Medical Panel is that it is to form its own opinion.
(b)The statement of reasons which a Medical Panel is obliged to provide under legislation must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion it formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.
(c)It is not incumbent on a Medical Panel to provide a comprehensible explanation for rejecting any expert medical opinion nor to explain why it did not reach an opinion it did not form. The function of a Medical Panel is neither arbitral nor adjudicative.
(d)The reasons of a Medical Panel are entitled to a beneficial construction in the sense that they should not be scrutinised over-zealously.[16]
[16]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [23]-[30] (Neave, Santamaria and Kyrou JJA) referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 and Gamble v Emerald Hill Electrical Pty Ltd [2012] 38 VR 45.
In my opinion, the reading of the Reasons of the Panel in this case disclose a perfectly clear path to its conclusion. Its opinion was based on:
(a) the plaintiff’s history;
(b) the clinical examinations performed by the Panel;
(c) a review of the medical imaging; and
(d) consideration of the other medical reports.
After the concession of leading counsel for the plaintiff (in my opinion properly made) that the Panel had not failed to record any relevant matter of the history given to it; and, in particular, had not failed to record the demonstration by the plaintiff, the residual complaint was that the Panel had failed to properly have regard to the strain that was imposed on the left hip in the frequent getting into and out of the cabin. The plaintiff submitted that this was demonstrated by the statement in the Reasons that ‘(… the Plaintiff relied mainly on his right hip in order to climb to and from his truck cabin) with his left lower limb following passively’.[17]
[17]Page 10 of 12 of the Reasons.
In my opinion:
(a)The propositions noted by the Panel were opinions which the Panel was entitled to form on the basis of the history provided by the plaintiff.
(b)It would be impermissible for this Court, on judicial review, to reconsider the merits of the Panel forming the opinion on the basis of the history as noted.[18]
(c)I do not consider that the reference by the Panel to the strain on the right limb in lifting the plaintiff into the truck cabin indicates that the Panel:
(i)did not have regard to the fact that the left limb would have been weight bearing at times both when getting into and out of the cabin; or
(ii)misunderstood its function as assessing the strain the plaintiff’s employment duties put on on the right hip rather than his left hip.
(d)The Panel properly considered it relevant when assessing the activity, which was principally relied upon by the plaintiff as the cause of aggravation to the pre-existing injury, that such activity mainly relied upon the right lower limb. Further, it is noted that in neither the plaintiff’s submissions to the Panel nor the plaintiff’s history given on examination, was the weight bearing on the left lower limb prior to taking a step to the cabin, or on alighting from the cabin, identified as being the parts of the process that ‘placed considerable strain on the plaintiff’s left hip’.[19]
[18]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 [61] (Neave JA with whom Santamaria JA & Ginnane AJA agreed) citing Milwain v Sim [2009] VSC 75, [22] (Kyrou J).
[19]Page 5 of 12 of the Reasons.
Accordingly, I propose to order that the plaintiff’s motion be dismissed.
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