Del Ben-Athanasaidis v RMIT
[2019] VSC 674
•18 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01647
| VILMA DEL BEN-ATHANASAIDIS | Plaintiff |
| v | |
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY AND ORS (according to the Schedule attached) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2019 |
DATE OF JUDGMENT: | 18 December 2019 |
CASE MAY BE CITED AS: | Del Ben-Athanasaidis v RMIT & ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 674 |
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JUDICIAL REVIEW AND APPEALS – Application by a worker to quash the opinion of a medical panel concerning the medical condition of the worker – Adequacy of reasons – Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, referred to – Whether the medical panel’s reasons showed the path of reasoning to its conclusion that the worker’s symptoms were solely related to her previously asymptomatic constitutional condition – Whether the medical panel’s conclusion open to it on the evidence – Wilson v Liquorland Australia Pty Ltd [2014] VSC 545, referred to – Whether factual error amounts to jurisdictional error – Chang v Neill [2019] VSCA 151, referred to – Reasons inadequate to enable the Court to determine whether the medical panel had fulfilled its statutory function – Remedy of certiorari granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Harper | Arnold Thomas & Becker |
| For the Defendants | Mr M Fleming QC | Minter Ellison |
HER HONOUR:
Introduction
This is an application for judicial review of an opinion of a medical panel (‘Panel’) concerning the medical condition and work capacity of the plaintiff, Ms Vilma Del Ben‑Athanasaidis (‘worker’). The finding of the Panel that the worker was not suffering from a work related injury which affected her capacity for work means that the worker is not entitled to weekly payments of compensation and the reimbursement of medical and like expenses pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’).
The worker was born on 23 September 1962. From 1981 until she was made redundant in October 2016, she worked as a finance officer with the first defendant (‘employer’).[1] Her duties as a finance officer involved general office administrative work, including invoicing, receipting, photocopying and filing, using a computer with a mouse, and handling heavy paper files and archive folders. Prior to 2011, she worked full time, dropping to two days a week after her return from maternity leave in 2011.[2] On 25 May 2016 the worker completed a Worker’s Injury claim form, referring to ‘tennis elbow – inflammation of the tendons of the elbow (epicondylitis)’, having first noticed symptoms in February 2016. She attributed her symptoms of right elbow pain to her ‘constant use of mouse at work’. Her claim for compensation was accepted by the employer. The worker was due to return to full time work in July 2016, but only returned for three days per week. At the time she was made redundant in October 2016, she was working two days per week.
[1]The remaining defendants are the members of the Panel, who have not taken an active part in this proceeding.
[2]There are some inconsistencies in the materials as to when the worker commenced working part‑time, and when she moved from working three days a week to two days a week, but little turns upon that for the purposes of this proceeding.
On 2 November 2016, the employer’s claims manager wrote to the worker to advise her of its decision that as from 23 November 2016 she was no longer entitled to weekly payments of compensation and reimbursement of medical and like expenses, on the basis that:
(a) she was not incapacitated for work;
(b) she no longer required medical treatment for her injury; and
(c) the medical and like expenses claimed by her were not reasonable and/or necessary.
The decision to cease payments of compensation was based upon a report prepared by an occupational physician, Dr David Barton, who examined the worker on 20 October 2016, and stated, among other things:
The worker may have a mild tear of the tendon near the lateral epicondyle but such a finding would be considered normal for her age. I’m not aware of using a mouse as being a cause of such a condition. I believe her current presentation points towards a non‑physically based condition related to the worker’s illness belief.
Following an unsuccessful conciliation process, on 25 September 2017 the worker issued a proceeding in the Magistrates’ Court at Melbourne seeking payments of weekly compensation pursuant to s 160 of the WIRCA from 23 November 2016, and payment of medical and like expenses pursuant to s 224 of the WIRCA. In its defence, the employer admitted that the worker was incapacitated for pre‑injury employment for various periods prior to 23 November 2016, but denied any liability to pay compensation beyond 23 November 2016, on the basis that:
(a) the worker was not incapacitated for work;
(b) the worker’s incapacity for work, if any, does not result from and is not materially contributed to by an injury arising out of or in the course of her employment;
(c) the worker no longer requires any medical treatment for her injury; and
(d) the medical and like expenses claimed are not reasonable and/or necessary.
On 4 May 2018, a magistrate referred a number of medical questions to the Panel for its opinion. The Panel was provided with a number of medical reports, including imaging reports, and written submissions made by the parties. The Panel examined the worker on 6 July 2018. In its Certificate of Opinion dated 5 August 2018, the Panel answered the referred questions as follows:
Question 1.What is the nature of the plaintiff’s medical condition/s relevant to the right elbow injury alleged in paragraph 6 of the Statement of Claim (the claimed injury)?
Answer:The Panel is of the opinion that the Plaintiff is suffering from symptomatic right common extensor origin tendinopathy.
Question 2.Does any condition found in answer to question 1 result from, or is it materially contributed to by the claimed injury?
Answer:The Plaintiff’s symptomatic right common extensor origin tendinopathy does not result from, and is not materially contributed to by the claimed injury.
Question 3.Does the plaintiff have any and if so what incapacity for her pre‑injury work?
Answer:The Plaintiff has no present inability arising from an injury such that she is not able return to her pre‑injury employment working her pre‑injury hours of work.
Question 4.If yes to question 3, does the plaintiff’s incapacity for work result from, or is it materially contributed to by, the claimed injury?
Answer:Not applicable.
Question 5.Is provision of osteopathy for the claimed injury adequate and appropriate?
Answer:Not applicable.
Question 6.If yes to question 5, with what frequency should osteopathy be provided for the claimed injury?
Answer:Not applicable.
Question 7.Is provision of hand therapy for the claimed injury adequate and appropriate?
Answer:Not applicable.
Question 8.If yes to question 7, with what frequency should hand therapy be provided for the claimed injury?
Answer:Not applicable.
The Panel delivered reasons for its opinion (‘reasons’). The material before the Panel and the reasons will be discussed in further detail later in these reasons.
The Legislative Framework
Section 160 of the WIRCA provides as follows:
If a worker’s incapacity for work results from, or is materially contributed by, an injury which entitled the worker to compensation, the compensation must be in the form of weekly payments, subject to and in accordance with this Act.
Section 39(1) of the WIRCA provides as follows:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.
Section 3 of the WIRCA provides the following definition:
… injury means any physical or mental injury and, without limiting the generality of that definition, includes –
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease;
Section 302(1) of the WIRCA provides that:
The function of a Medical Panel is to give its opinion on any question in respect of injuries arising out of, or in the course of, or due to the nature of employment referred by a ACCS [Accident Compensation Conciliation Service] Officer, the court, VCAT, the Authority or a self‑insurer.
A convenient summary of the functions and powers of medical panels, and the principles governing the operation of medical panels, is to be found in the recent decision of the Court of Appeal in Chang v Neill,[3] as follows (omitting footnotes):
[3][2019] VSCA 151.
Medical panels are constituted by medical practitioners who are selected from a list of members appointed by the Governor in Council. Under the Act, the function of a medical panel is to give its opinion on medical questions concerning employment related injuries that are referred to it. Medical questions may be referred to a medical panel by various bodies, including a conciliation officer, the Magistrates’ Court and the County Court.
A ‘medical question’ relevantly includes questions as to ‘the nature of a worker’s medical condition relevant to an injury’, the ‘existence, extent or permanency of any incapacity of a worker for work’ and ‘whether a worker’s incapacity for work … resulted from … or was materially contributed to by an injury’.
A medical panel is not bound by the rules of evidence and must act informally and expeditiously. It may inform itself of any matter relating to a referral of a medical question in any manner it sees fit.
In performing its functions, a medical panel may request that the worker: meet with the panel and answer questions, supply all documents relating to the medical question to the panel or submit to a medical examination by the panel. Generally, any attendance of a worker before a medical panel must be in private. With the worker’s consent, a medical panel may also request to meet with, and ask questions of, a medical service provider who has examined the worker or request relevant documents from that medical service provider.
Where a conciliation officer refers a medical question to a medical panel and it becomes apparent to the panel that the formation of an opinion will depend substantially on the resolution of factual issues which are more appropriately determined by a court, the panel may decline to given an opinion.
Where a medical panel considers that further information is required to enable it to form an opinion, the panel may request further information from the worker or the referring body. Where further information is provided, it must be considered by the medical panel.
In relation to a medical question referred to it, a medical panel has an obligation to give its opinion and a written statement of reasons for that opinion.
For the purposes of determining any question or matter, the opinion of a medical panel on a medical question referred to it is to be adopted and applied, and be accepted as final and conclusive, by any court, body or person.[4]
[4]Ibid [12]-[19].
The material before the Panel
As noted above, the Panel was provided with a number of medical and imaging reports. In addition to the report of Dr Barton referred to at paragraph 4 above, the Panel had before it reports from the following practitioners:
(a) Dr Beaver, an osteopath, who provided a diagnosis of right lateral epicondylitis;
(b) Dr Stokes, a general practitioner, who diagnosed the worker with right sided lateral epicondylitis;
(c) Dr Stockman, a rheumatologist, who said the worker
… is suffering from right lateral epicondylitis (tennis elbow). This seems to have commenced in early 2016 and in my opinion has not resolved.
(d) Mr Chehata, an upper limb orthopaedic surgeon, also provided a diagnosis of right lateral epicondylitis. In his report to the worker’s solicitors dated 16 March 2018, Mr Chehata stated as follows:
Ms De Ben Athanasidis (sic) is a 54 year old lady with severe lateral epicondylitis. This has been aggravated by her work load as a finance officer at RMIT. She has been made redundant and is currently struggling with the activities of normal daily living, coupled with failure of conservative treatment with osteopathy and exercises failing to improve her symptoms.
She has imaging confirming lateral epicondylitis and is current wearing an ‘off the shelf counterforce brace’.
…
There is a direct relationship between repetitive keyboard input and repetitive use of the mouse in the development of lateral epicondylitis, all related to her employment.
(e) Dr Porcino, a general practitioner, who stated:
These types of injuries are notorious for producing continuing symptoms of pain especially if the patients try any excessive or heavy work;
and
(f) Dr Karna, a rheumatologist retained by the employer to provide a medico‑legal report, who stated, in his report dated 11 May 2017, as follows:
This worker presents with persisting symptoms and minor dysfunction of the right elbow as a result of a soft tissue injury (right lateral epicondylitis), treated conservatively.
She attracts impairment on the premises that she has minor range of motion reduction as measured using a Goniometer in accordance with the specifications in the Guides.
On that basis she has 1% Upper Extremity Impairment (see Impairment Assessment Form) which using Table 3, Chapter Three of the Guides translates to 1% Whole Person Impairment.
·I believe for medicolegal definition purposes that impairment has stabilised.
·No further medical review is required.
·The notion of apportionment is not relevant.
·She has not suffered total loss.
The Panel was also provided with reports of ultrasound investigations carried out in 2016 and 2018. The report dated 19 August 2016 included the following findings:
The right common extensor origin is heterogeneous with 9x3x4mm partial thickness deep surface tear,
and further:
Mild to moderate right lateral epicondylitis with deep surface tear as described.
A further report dated 9 March 2018 stated as follows:
Moderate tendinopathy of the common extensor origin with small delamination insertional tear.
The solicitors for the worker and the employer provided written submissions to the Panel. The worker submitted, in summary, as follows:
(a) Dr Barton’s opinion is ‘uneasy for reason of oversight and want of reason or explanation’;
(b) the Panel should prefer and give greater weight to the reports relied upon by the worker;
(c) Dr Barton clearly did not believe the worker, and he ‘erred in placing too much weight to [sic] his subjective assessment that the [worker] has feigned her symptoms of weakness, without giving proper consideration to her reported symptoms; and
(d) the consensus of the medical practitioners supports a conclusion that the worker no longer has a work capacity for her pre‑injury duties.
The employer submitted, in summary, as follows:
(a) the worker had no persisting compensable injury, there being no physical basis for her complaints;
(b) alternatively, if the worker did suffer any ongoing injury, that injury is minor, she remains able to perform her pre‑injury duties, and she does not require any treatment;
(c) on the basis of the reports of Dr Barton and Dr Karna (who reported only a minor range of motion reduction), the Panel should be satisfied that there is no organic basis for the worker’s reported symptoms; and
(d) alternatively, the Panel should consider whether the worker:
suffered from an underlying constitution problem of her right elbow which was exacerbated by her work with [the employer] (in that use of her computer mouse caused her to experience symptoms); however, with the cessation of employment her ongoing symptoms are due to the underlying condition, rather than her work duties.
Accordingly, the primary position advanced by the employer to the Panel was that the worker was either feigning her symptoms of pain, or her reports of pain were psychogenic in origin. The employer’s alternative position, as outlined in paragraph 17(d) above, was ultimately adopted by the Panel. The legal representatives for the worker contend that this finding is perverse, querying how the Panel could find that a previously asymptomatic underlying condition, rendered symptomatic by the worker’s employment duties, is the sole cause of the worker’s ongoing symptoms of pain.
The question in this application is not whether the Panel’s findings are improbable, or wrong, but rather whether the Panel’s determination, or the decision making process underlying the Panel’s determination, is tainted by legal error. The worker says the Panel’s determination is so tainted, and should be quashed. The employer says that the worker is impermissibly seeking to review the merits of the Panel’s determination.
The Panel provided reasonably detailed reasons for its opinion. In the reasons, the Panel:
(a) referred to the materials before it, the agreed facts, and the disputed facts;
(b) reported upon the history provided to it by the worker;
(c) reported upon its physical examination of the worker;
(d) referred to the imaging reports;
(e) concluded that the worker is suffering from ‘symptomatic right common extensor tendinopathy’; and
(f) the Panel stated as follows:
The Panel notes that common extensor origin tendinopathy is a highly prevalent constitutional condition which is characterised pathologically by ‘angiofibroblastic tendinosis’ resulting in an abnormally vascularised, abnormally innervated tendon which is painful (often extremely painful) when the common extensor tendon is activated during ordinary physical activities. Those activities involve gripping and activation of extensor carpi radialis brevis muscle. The Panel is of the opinion that occupational activities involving forceful gripping and heavy loads particularly when these are repetitive and involving high physical strain or heavy hand‑held tools may produce common extensor origin tearing in the absence of tendinosis or such activity may worsen pre‑existing angiofibroblastic tendinosis, resulting in variable exacerbation or aggravation of the underlying condition. The Panel is of the opinion that routine office duties and tasks including keyboarding may elicit symptoms of common extensor origin tendinopathy (elbow pain and dysfunction) but these tasks are unlikely to affect the underlying constitutional condition. The constitutional angiofibroblastic tendinosis condition also typically has a protracted clinical course, often spanning several years and therefore persistence of symptoms does not always indicate persistence of injury.
The Panel noted the Plaintiffs [sic] symptoms of gradual onset of right elbow pain whilst performing repetitive office duties, including a considerable amount of keyboard duties, lifting heavy archive boxes, writing invoices, filing and performing general administrative work. The Panel considers her duties were repetitive but involved relatively minor isometric and isotonic loads in wrist extension that would not have been sufficient to permanently disturb or injure a normal common extensor origin tendon (or even an extensor tendon diseased by angiofibroblastic tedinopathy).
The Panel noted the persistence of the Plaintiffs [sic] right elbow pain and noted that since she ceased working, the right elbow pain has improved by about 20%. The Panel noted that the Plaintiff has not worked since October 2016 (almost 2 years) when her administrative position was made redundant, and that her right elbow symptoms persisted and have not fully resolved.
The Panel took into consideration the nature and intensity of the Plaintiff’s employment duties, the persistence of right elbow pain (now 20% lower intensity) since she ceased her employment duties, the ultrasound imaging which reported mild delamination surface tear (which the Panel considers does not indicate any evidence of injury to the constitutional condition, since such tears are part of the constitutional angiofibroblastic tedinopathy pathology) and similar quality of right elbow pain, since the Plaintiff’s elbow problem emerged in 2016.
Based on these considerations, the Panel concluded that it is most likely that the Plaintiff sustained an exacerbation of symptoms while performing her pre‑injury duties however any exacerbation of symptoms on [sic] the underlying angiofibroblastic pain and dysfunction is due entirely to her constitutional common extensor origin tendinopathy.
The Panel therefore concluded that the Plaintiff’s current symptomatic right common extensor origin tendinopathy does not result from, and is not materially contributed to by the claimed injury.
Put simply, the Panel found:
(a) the worker’s angiofibroblastic tendinosis condition could not have been caused by her employment duties, because of the relatively minor isometric and isotonic loads associated with those duties;
(b) accordingly, the worker’s angiofibroblastic tendinosis must have been a constitutional pre‑existing condition;
(c) the worker’s employment duties may have elicited symptoms of common extensor origin tendinopathy (elbow pain and dysfunction), but did not affect her underlying constitutional condition;
(d) the worker’s right elbow symptoms have persisted, albeit less severely, since she ceased her employment nearly two years prior to the Panel’s examination;
(e) the ultrasound imaging shows a mild delamination surface tear consistent with the worker’s constitutional condition;
(f) it is likely that the worker sustained an exacerbation of symptoms while performing her employment duties, but any remaining symptoms are entirely due to her constitutional condition; and
(g) accordingly, the worker’s current symptoms do not result from, and are not materially contributed to by the claimed injury (the claimed injury being the right elbow injury referred to in the worker’s statement of claim).
The focus of the worker’s complaints in this proceeding is the Panel’s finding at (f) above, being that the worker’s ongoing symptoms of right elbow pain and dysfunction are solely referable to her underlying constitutional condition, notwithstanding that prior to February 2016 that constitutional condition was asymptomatic.
Significantly, the Panel did not accept the employer’s submission (based upon the opinion of Dr Barton) that there was no organic basis for the worker’s reported symptoms.
Application for judicial review
In her originating motion filed on 5 October 2018,[5] the worker sought an order in the nature of certiorari to quash the Panel’s opinion on the following grounds:
[5]The employer submitted that the application was out of time by one day, but did not oppose an extension of time.
(a)there was no evidence that the Plaintiff suffered from any symptoms of right common extensor origin tendinopathy or other condition affecting the right elbow prior to the performance of her employment duties with the First Defendant, and accordingly the condition suffered by the Plaintiff as a result of her employment duties with the First Defendant could not have been an exacerbation and it was not open to the Panel to so conclude;
(b)there was no evidence, given the history of onset of symptoms as a result of performance of employment duties in employment with the First Defendant and continuance of symptoms thereafter, that the symptoms of compensable injury had fully resolved and it was not open to the Panel to so conclude;
(c)the reasons of the Medical Panel do not demonstrate a path of reasoning from the history, which the Medical Panel accepted, of ‘gradual onset of right elbow pain whilst performing repetitive office duties’ in employment with the First Defendant, to a finding that ‘the Plaintiff sustained an exacerbation of symptoms while performing her pre‑injury duties’;
(d)the reasons of the Medical Panel do not demonstrate a path of reasoning leading to the conclusion that ‘any exacerbation of symptoms on the underlying angiofibroblastic tenodesis are now fully resolved in circumstances where the Plaintiff had been asymptomatic before suffering symptoms of injury in her employment with the First Defendant and such symptoms persisted continuously thereafter;
(e)the reasons of the Medical Panel do not demonstrate a path of reasoning to refute the Plaintiff’s submission to it that there was a direct relationship between the Plaintiff’s employment duties with the First Defendant and the development and persistence of symptoms in the right elbow thereafter;
(f)the Medical Panel took into account an irrelevant consideration, namely that the Plaintiff’s right elbow condition was ‘an exacerbation of symptoms’, in circumstances where the history and evidence disclosed that the Plaintiff was asymptomatic in her right shoulder before developing symptoms while performing her employment duties for the First Defendant, in determining that ‘the Plaintiff’s current symptomatic right common extensor origin tendinopathy does not result from, and is not materially contributed to by the claimed injury’.
Accordingly, the Panel’s opinion is challenged on three distinct grounds with respect to the Panel’s findings that the worker’s ‘exacerbation of symptoms’ was sustained while performing her pre‑injury employment duties, but that her compensable injury had resolved, being that :
(a) there was no evidence to support its findings;
(b) the reasons failed to adequately expose the Panel’s path of reasoning; and
(c) the Panel took into account an irrelevant consideration, being its mistaken finding that the worker’s elbow condition was an exacerbation of symptoms which has now resolved.
Essentially, the worker complains that the Panel’s conclusion that the worker’s symptoms of elbow pain were an exacerbation of an underlying condition, such symptoms having now resolved, at least insofar as they were ‘exacerbated’ by the worker’s employment duties, ignores the fact that the Panel itself found that the worker’s condition was rendered symptomatic by the duties of her employment, and that those symptoms, while diminished in severity, are persisting.
If the worker is successful on one or more of the above grounds of review, then, subject to the residual discretion of the Court, the Panel’s opinion will be tainted by jurisdictional error and thus be liable to being set aside. It was not contended that there was any relevant discretionary matter which would cause the Court to uphold the Panel’s determination in the event that the Panel’s determination was tainted by legal error.
Submissions
General
Put simply, the worker contends that:
(a) the Panel diagnosed the plaintiff with symptomatic right common extensor origin tendinopathy;
(b) on the Panel’s own analysis and findings, the worker’s condition was rendered symptomatic by her work duties;
(c) that conclusion was derived from the only evidence identified as relevant by the Panel; and
(d) the Panel identified no other matter causing the worker’s condition becoming symptomatic.
The worker submitted, in relation to the Panel’s finding that the plaintiff sustained an exacerbation of symptoms whilst performing her pre‑injury duties:
The Plaintiff did not sustain, and could not have sustained, an exacerbation of symptoms because her condition was asymptomatic. The Plaintiff may have sustained an ‘exacerbation … of any pre‑existing injury’ so as to fall within the statutory definition but that is not what the Medical Panel said.
Further, there was no evidence that anything else rendered the worker’s underlying condition symptomatic, and once that is appreciated, the jurisdictional error made by the Panel become apparent.
Alternatively, the worker submitted that if the Panel did consider and conclude the worker’s symptoms were not triggered by her employment duties but by some other cause, then that conclusion was not disclosed in the reasons. Further, the Panel’s finding that the worker’s employment related symptoms were now ‘fully resolved’ was erroneous, and thus amounted to an irrelevant consideration.
Counsel for the worker relied upon the decision of Rush J in Wilson v Liquorland Australia Pty Ltd (‘Wilson’),[6] where his Honour quashed a determination to the effect that the worker’s impairment was caused by a pre‑existing, non‑work related impairment, without explaining the basis upon which it found that there was a pre‑existing impairment, in circumstances where there was no evidence from which ‘the Panel could derive a positive satisfaction of a pre‑existing impairment’.[7] His Honour stated:
The Panel concluded the Incident was productive of cervical spondylosis without radiculopathy, and that the Incident resulted in the spondylosis producing a level of impairment. These findings do not permit a conclusion that some part of the impairment is due to [an] unrelated cause and should be discarded. The impairment is due to the Incident activating an otherwise quiescent pathology.[8] (emphasis added)
[6][2014] VSC 545.
[7]Ibid [29].
[8]Ibid [34].
His Honour went on to conclude that as the Panel had fallen into jurisdictional error in that,in disregarding a level of impairment the Panel determined was due to a pre‑existing asymptomatic constitutional condition without any evidentiary basis for doing so, the Panel had taken into account an irrelevant consideration.
The employer submitted that the worker essentially seeks to impugn the opinion of the Panel, being an expert tribunal of fact, with respect to the diagnosis of the worker’s alleged injury and the onset of her symptoms, and with respect to whether her injury has resolved or is persisting, and it is not open to this Court to find that the Panel’s opinion was based upon no evidence.
The ‘no evidence’ ground
In her written outline of submissions regarding the ‘no evidence’ ground, the worker submitted, in summary, as follows:
(a) the authorities provide that where a tribunal decides a question of fact when there is no evidence in support of the finding, that tribunal makes an error of law;[9]
[9]See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; S v Crimes Compensation Tribunal [1998] 1 VR 83; and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390. The employer does not dispute this proposition.
(b) in the current case, there was no evidence that the worker suffered any symptoms of right common extensor origin tendinopathy prior to her employment, such that there was no evidence that the Panel could find that the worker suffered ‘an exacerbation of symptoms’;
(c) given the Panel’s apparent acceptance of the worker’s history of the onset and continuance of symptoms as a result of the performance of her work duties, there was no evidence enabling the Panel to conclude that ‘any exacerbation of symptoms on the underlying angiofibroblastic tendinosis are now fully resolved’; and
(d) the submissions referred to the decisions of the High Court in Federal Broom Co Pty Ltd v Semlitch,[10] and Asioty v Canberra Abattoir Pty Ltd (‘Asioty’),[11] and submitted that this line of authority:
… stands in the path of a statement, without an evidentiary basis, that an underlying pre‑disposition to an angiofibroblastic tendinosis which has become symptomatic and remained symptomatic thereafter can, without further explanation, be said to be ‘now fully resolved’ and that ‘the [worker’s] persisting pain and dysfunction is due entirely to her constitutional common extensor origin tendinopathy’.
[10](1964) 110 CLR 626.
[11](1989) 167 CLR 533.
Counsel for the worker submitted that there was no evidence upon which the Panel could base its finding that the worker’s current persisting symptoms of common extensor origin tendinopathy was not caused or materially contributed to by the claimed right elbow injury, and was not a compensable medication condition, given its own findings that it was the worker’s employment duties that rendered the worker’s underlying condition symptomatic. The Panel identified as relevant, and appears to have accepted, the following history given by the worker at the examination:
(a) the nature of the worker’s employment duties;
(b) the onset of the worker’s symptoms of pain in the lateral aspect of her right elbow in February 2016;
(c) that the onset of symptoms was work related;
(d) the persistence of the worker’s right elbow pain; and
(e) the persistence of the symptoms after the worker ceased employment.
Counsel for the worker submitted that, as in Wilson,[12] the impairment to be assessed is the rendering of the underlying condition symptomatic. If there was another cause of the worker’s elbow pain and dysfunction, it is not apparent from the reasons. The only evidence that the Panel referred to in its reasons pointed to the worker’s symptoms being related to her employment duties.
[12]Ibid.
The worker also relied upon the recent decision of Richards J in Morrison v Melbourne Pathology Pty Ltd,[13] (‘Morrison’) where her Honour quashed a decision of a medical panel on the basis that the panel’s factual findings that the plaintiff’s incapacity for work was no longer related to her work were not open on the evidence.
[13][2018] VSC 477.
In its written outline of submissions, the employer submitted that the worker’s contentions are misconceived, as it is evident from the reasons that the Panel accepted the employer’s submission that the worker suffered from an underlying constitutional problem of her right elbow which was exacerbated by her employment duties, but with the cessation of employment, her ongoing symptoms are due to the underlying condition rather than her employment duties. The Panel’s reference to an ‘exacerbation of symptoms while performing her pre‑injury duties’ was consistent with the medical reports relied upon by both the worker and the employer. The Panel identified a number of factors relevant to the question of whether the worker’s compensable injury had resolved, including:
(a) the nature of the condition;
(b) the onset of symptoms at work;
(c) the nature of the worker’s employment duties, which were not capable of affecting the worker’s underlying constitutional condition;
(d) the improvement in the worker’s symptoms since she ceased work; and
(e) the ultrasound findings.
The employer submitted that it is and should be extremely difficult to impugn a determination of a medical panel, being an expert tribunal, on the grounds that the Panel’s finding was not open to it, referring to the reasons of Phillips JA in S v Crimes Compensation Tribunal,[14] where his Honour said:
… where the tribunal is authorised to obtain information otherwise or to act upon its own expertise, it may be more difficult to show that the finding was not open … [15]
[14][1998] 1 VR 83.
[15]Ibid, 90.
Senior counsel for the employer referred to the decision of Weinberg J in Australian Retailers Association v Reserve Bank of Australia,[16] where his Honour stated:
In dealing with the no evidence ground, it must first be noted that there are differences, in respect of findings of fact, between judicial review under the common law, and review under the ADJR Act.
Under s 39B of the Judiciary Act (which reflects the common law), the ‘no evidence’ ground requires that there be simply no evidence, or other material, to justify the findings of fact made. Aronson suggests, at 249, that ‘no evidence’ means ‘not a skerrick of evidence’. If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in Bond, at 356:
So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[17]
[16][2005] FCA 1707.
[17]Ibid [574]-[575]. See also SZNKV v Minister for Immigration and Citizenship [2010] FCA 56 per Kenny J.
Senior counsel also submitted that the decision of Richards J in Morrison[18] was a very rare case of this Court finding that a conclusion of a medical panel was not open on the evidence, and in any event, turns on its own facts.
[18][2018] VSC 477.
Senior counsel observed that, in the current case, there were essentially three options open to the Panel:
(a) first, that the worker had an underlying constitutional condition, which had been aggravated by her employment duties, and the aggravation had permanently altered the underlying condition, such that the underlying condition became more severe (as was contended for by the worker’s doctors); or
(b) secondly, that there was no organic cause of the worker’s symptoms (in accordance with Dr Barton’s report); or
(c) thirdly, that the worker had an underlying condition, which was exacerbated by her employment duties, but with the cessation of employment, the compensable symptoms receded, and the worker’s ongoing symptoms are as a result of her underlying position (which was ultimately accepted by the Panel).
Ultimately, the Panel’s conclusion with respect to the above options is a question of fact, and the Panel is entitled to have regard to its own experience. The reasoning in the current case is consistent with the reasoning of the medical panel in McVey v LJ Smith Pty Ltd (‘McVey’),[19] where the medical panel found that a worker who had a pre‑existing diagnosis as a schizophrenic was found not to have a compensable psychiatric injury, notwithstanding the fact that he had suffered an exacerbation of symptoms following an incident at work. In that case, the medical panel found:
[19][2014] VSC 236; [2014] VSCA 293.
(a)[the plaintiff] suffered from an exacerbation of a pre-existing chronic schizophrenia;
(b)the exacerbation of this condition had since resolved relevant to the accepted psychiatric injury;
(c)the entirety of the current psychiatric condition resulted from the pre-existing chronic schizophrenia;
(d)the psychiatric condition had substantially stabilised and was unlikely to remit for further treatment;
(e)the psychiatric condition was stable and permanent;
(f) the degree of psychiatric impairment was 35% and was permanent;
(g)all of the psychiatric impairment was due to the pre-existing chronic schizophrenia;
(h)all of the psychiatric impairment must be excluded from the psychiatric impairment assessment in accordance with s 91(7)(c) of the Act; and
(i)as a result, there was a 0% psychiatric impairment resulting from the accepted psychiatric schizophrenia injury when assessed in accordance with s 91 of the Act.[20]
[20][2014] VSC 236 [23].
Senior counsel for the employer submitted that the Panel in this case adopted a similar reasoning process to that set out above, and is thus unremarkable.
Senior counsel for the employer submitted that the fact that the worker suffered persistent symptoms does not necessarily indicate a persistence of injury. In the current case, the Panel has provided a very comprehensive explanation as to why the worker’s underlying constitutional condition has not been permanently aggravated.
The employer submitted that there is a material distinction between the facts of the current case and those in Asioty,[21] where the evidence supported a finding that there had been a work-related permanent aggravation of an underlying condition, unlike the current case, where the Panel found, and was entitled to find, that the compensable injury had fully resolved.
[21](1989) 167 CLR 533.
Adequacy of reasons
In her written outline of submissions, the worker submitted, in summary, as follows:
(a) the Panel’s reasons do not demonstrate a path of reasoning from the history taken by the Panel to its conclusion that ‘the [worker] sustained an exacerbation of symptoms whilst performing her pre‑injury duties’;
(b) in circumstances where the worker had been asymptomatic before suffering symptoms of injury in the course of her employment, and those symptoms have persisted, the reasons do not show a path of reasoning to the Panel’s conclusion that ‘any exacerbation of symptoms on the underlying angiofibroplastic tenodesis are now fully resolved’; and
(c) the reasons do not explain why the Panel did not accept that there was a direct relationship between the worker’s employment duties and the development and persistence of right elbow symptoms, given that the underlying constitutional condition was an asymptomatic condition rendered symptomatic by the worker’s employment duties. If there was another cause of the worker’s symptoms, it was not referred to or explained in the reasons.
The worker, relying upon the decision in Morrison,[22] submitted as follows:
It is submitted that the reasons of the Medical Panel do not demonstrate a path of reasoning from the history, which the Medical Panel accepted or alternatively did not say that it did not accept, of ‘gradual onset of right elbow pain whilst performing repetitive office duties’ in employment with the First Defendant, and a continuance of symptoms thereafter, to a finding that ‘the Plaintiff sustained an exacerbation of symptoms whilst performing her pre‑injury duties’. The Plaintiff did not sustain, and could not have sustained, an exacerbation of symptoms because her condition was asymptomatic. The Plaintiff may have sustained an ‘exacerbation … of any pre‑existing injury’ so as to fall within the statutory definition but that is not what the Medical Panel said.
It is further submitted that the reasons of the Medical Panel do not demonstrate a path of reasoning to the conclusion that ‘any exacerbation of symptoms on the underlying angiofibroblastic tenodesis are now fully resolved’ in circumstances where the Plaintiff had been asymptomatic before suffering symptoms of injury in her employment with the First Defendant, and such symptoms persisted continuously thereafter. See again the statutory definition of ‘injury’.
Finally, it is submitted that the reasons of the Medical Panel do not demonstrate a path of reasoning to refute the Plaintiff’s submission to it that there was a direct relationship between the Plaintiff’s employment duties with the First Defendant and the development and persistence of symptoms in the right elbow thereafter. The Panel accepted that the Plaintiff’s work duties ‘may produce common extensor origin tearing in the absence of tendinosis’, and further that ‘such activity may worsen pre‑existing angiofibroblastic tendinosis’ (noting that in this case the constitutional condition was asymptomatic), and further that such duties ‘may elicit symptoms of common extensor origin tendinopathy’. It was not to the point that ‘these tasks are unlikely to affect the underlying constitutional condition’. The point, it is submitted, is that the underlying constitutional condition was an asymptomatic condition rendered symptomatic through employment duties performed in employment with the First Defendant.
[22][2018] VSC 477.
The employer submitted that the reasons are clear. In any event, the reasons are entitled to receive a beneficial, and not over‑zealous construction. The employer adopted the language of the Court of Appeal in Karabinis v Bendrups,[23] where the Court rejected a submission that the medical panel’s reasons were inadequate, stating that:
The reasons disclose the significance of the Panel’s findings on examination, the diagnostic imaging and the applicant’s history, to the Panel’s ultimate conclusion.[24]
[23][2018] VSCA 124.
[24]Ibid [39].
Further, the authorities make it clear that the Panel was under no obligation to explain why it rejected the worker’s submissions, or the opinions of other medical practitioners.[25]
[25]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501.
Senior counsel for the employer submitted that ‘the reasons make it clear that the worker had a constitutional condition which was productive of symptoms while she performed her work duties. Those work duties did not affect the constitutional condition, other than by the elicitation of symptoms.’
Finally, senior counsel for the employer submitted that the reasons are sufficient for a reviewing court to see that there has been no error of law. Significantly, the worker has not shown what error would have been disclosed if the reasons were more fulsome.
Irrelevant considerations
In her written outline of submissions, the worker submitted as follows:
It is submitted in the present case, the irrelevant consideration which the Medical Panel took into account was that the Plaintiff’s right elbow condition was ‘an exacerbation of symptoms’ in circumstances where the history and evidence disclosed that the Plaintiff was [a]symptomatic in her right elbow before developing symptoms while performing her employment duties for the First Defendant. In circumstances where, the underlying constitutional condition had been rendered symptomatic performing employment duties for the First Defendant, and remained symptomatic thereafter, it was not a relevant consideration for the Medical Panel to regard the Plaintiff’s right elbow condition as ‘an exacerbation of symptoms’.
Counsel for the worker submitted that by taking into account its erroneous finding that there had been an exacerbation of the worker’s symptoms while performing her employment duties, which had fully resolved since ceasing work, the Panel took into account an irrelevant consideration, which resulted in the Panel reaching a number of fundamental, but erroneous conclusions. Counsel submitted as follows:
In particular, and while it may have been open to the Panel to conclude that the Plaintiff’s ‘persisting pain and dysfunction is due entirely to her constitutional common extensor tendinopathy’ and that the Plaintiff has a ‘current symptomatic right common extensor origin tendinopathy’, the Panel erred by:
(a)considering as relevant that 20% of the symptoms had resolved upon the Plaintiff ceasing work (ie the exacerbation now resolved);
And because it took that consideration into account, the Panel proceeded to make a series of further fundamental erroneous conclusions including that:
(b)the current and persisting symptomatology (ie the remaining 80%):
· was not caused or materially contributed to by the Plaintiff’s employment/’the claimed injury’;
· was not a compensable medical condition;
What I understand counsel for the worker to be saying here is that the Panel had formed the erroneous view that the worker’s employment duties were only responsible for twenty per cent of the worker’s symptoms. I am not sure that this contention is correct, and I doubt the current case calls for a quantitative analysis of that nature, but that does not alter the primary thrust of the worker’s contention that the Panel took into account an irrelevant consideration.
The employer submitted in relation to this ground of review that, if the Panel did make a mistake of fact (which was not conceded) it was of limited significance, having regard to the condition diagnosed by the Panel (supported by the ultrasound findings), and the Panel’s finding that the worker’s employment duties were not capable of affecting the underlying constitutional condition.
Senior counsel for the employer acknowledged that the fact that the worker’s symptoms diminished by twenty per cent after she ceased work is a relevant consideration, and the Panel had regard to that matter. It is relevant to the question of whether the worker’s employment duties permanently aggravated the worker’s condition, or only temporarily. The ultrasound imaging did not indicate any injury to the worker’s underlying condition.
Discussion
As noted by the employer in its written outline of submissions, the worker focuses upon two critical findings of the Panel, being:
(a) the Panel’s finding that the worker’s employment duties caused ‘The exacerbation of symptoms of an underlying constitutional condition’, in circumstances where the worker was asymptomatic prior to complaining of elbow pain and dysfunction owing to her work duties; and
(b) the Panel’s finding that the worker’s compensable injury had fully resolved, and that the remaining symptoms related only to her underlying constitutional condition.
In my view, the Panel’s reasons are inadequate. The reasons do not adequately explain why, in circumstances where the Panel appears to have accepted the history provided by the worker (including the absence of any symptoms of pain and dysfunction prior to February 2016, noting that the Panel referred to the worker’s elbow problem as having ‘emerged’ in 2016), the Panel found that there had been an exacerbation of symptoms, which on a literal and grammatical reading of the reasons carries with it the implicit assumption that she was in fact symptomatic prior to that time. Further, it is difficult to comprehend how the Panel reached its conclusion that the worker’s ongoing symptoms were not in any way connected with her employment duties, given the Panel’s findings that these symptoms were ‘elicited’ by her employment duties. It may well be that there was evidence to support the conclusion that it reached, being there was no current compensable injury, but the Panel’s reasoning is not only opaque, but is also internally inconsistent. For example, it is difficult to reconcile the Panel’s reference to the worker’s elbow pain and dysfunction having improved since she ceased work, but that her symptoms have not yet fully resolved, with its conclusion that her current symptoms are due entirely to her constitutional common extensor origin tendinopathy.
The legal principles concerning the standard of reasons, which I do not understand to be in dispute, are conveniently summarised by Richards J in Morrison,[26] as follows (citations omitted):
Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law. If a statement of reasons given under the WIRC Act does not meet that standard, there is an error of law that is amenable to correction on judicial review by an order in the nature of certiorari.
However, an error of law involves something more than ‘looseness in the language of the tribunal’ or ‘unhappy phrasing of the tribunal’s thoughts’. A reviewing court should not construe a Panel’s reasons ‘minutely and finely with an eye keenly attuned to the perception of error’. Rather, the reasons of a non-legal, expert tribunal such as a Medical Panel should be given a beneficial construction. A balance must be struck between requiring too much, or too little, of Medical Panels.
A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions. Reasons may be able to be understood combining what is expressly stated with inferences necessarily arising. However, a reviewing court must not speculate about a Panel’s path of reasoning in order to fill the gaps. The court should avoid drawing inferences that lack a ‘proper evidential foundation disclosed in the reasons’. Ambiguity in a Panel’s reasons may render those reasons inadequate, where its conclusions are open to more than one interpretation.
Notably, a Panel is under no obligation to explain why it did not reach an opinion it did not form.[27]
[26][2018] VSC 477.
[27]Ibid [26]-[29].
In my view, by reason of the matters referred to above, the reasons are ambiguous, and do not explain the Panel’s actual path of reasoning to enable me to discern whether the Panel has made an error of law.
Further, there are aspects of the reasons which are difficult to follow. The Panel states:
The Panel is of the opinion that routine office duties and tasks … may elicit symptoms of common extensor origin tendinopathy … but these tasks are unlikely to affect the underlying constitutional condition.
Here, I understand the Panel to be saying that the worker’s employment duties are capable of rendering her constitutional condition symptomatic, without affecting the severity of the underlying condition (that is, no material changes are caused to the physical structure of the tendon itself). I have no cause (or expertise) to doubt the correctness of that statement. However, the Panel’s finding that the worker’s employment duties may ‘elicit’ (that is ‘to draw or bring out or forth’[28]) symptoms of pain and dysfunction is difficult to reconcile with the Panel’s findings that the worker has no compensable medical condition, in circumstances where the worker’s symptoms were ‘elicited’ by her employment duties. It is one thing to say that, in circumstances where a worker has a constitutional condition, with some pre‑existing symptoms, if his or her condition reverts back to the pre‑existing level of symptoms, that the worker’s persisting symptoms are not work related. This is the conclusion reached by the medical panel in the opinion considered by the Court of Appeal in McVey,[29] and such a conclusion is readily understood. However, that is not the current case. Here, the worker became symptomatic during the course of her employment, and has not yet returned to the condition of being asymptomatic, in circumstances where her symptoms were said by the Panel to have been ‘elicited’ by her employment duties.
[28]Macquarie Dictionary (7th Edition).
[29][2014] VSCA 293.
Similarly, it is difficult to understand what is meant by the statement of the Panel that:
The constitutional angiofibroblastic tendinosis condition also typically has a protracted clinical course, often spanning several years and therefore persistence of symptoms does not always indicate persistence of injury.
The worker’s condition may well have a ‘protracted clinical course’: indeed, that would be consistent with the worker’s presentation to the Panel. However, the Panel’s reference to the ‘protracted clinical course’ sits uncomfortably with the immediately following conclusion that ‘persistence of symptoms does not always indicate persistence of injury.’
The Panel also fails to explain why, given that the worker was asymptomatic prior to 2016, and given its findings that the worker’s employment duties ‘elicited’ the worker’s symptoms of pain and dysfunction (or alternatively ‘exacerbated’ the symptoms of the underlying condition), the worker had not suffered an injury within the extended definition of injury in s 3 of the WIRCA, that is:
a recurrence, aggravation, acceleration exacerbation or deterioration of any pre‑existing injury or disease.
The reasons give cause for concern that the Panel has not performed its statutory function to determine whether the worker has suffered an injury which resulted from, or was materially contributed by, her pre‑injury employment duties (within the extended definition of ‘injury’), but the reasons do not allow such a conclusion to be drawn or rebutted.
This is not merely a case of ‘unhappy phrasing’ or ‘looseness in the language’ on the part of the Panel. Rather, the reasons give rise to real doubt as to whether the Panel performed its statutory function, including whether the Panel had given proper consideration to whether the worker had suffered an aggravation or exacerbation of a pre‑existing injury. It may well have done so, given the reference to the worker’s pre‑injury employment duties not being capable of affecting the worker’s underlying constitutional condition. However, given the inconsistencies evident on the face of the reasons, it is not possible to be comfortably satisfied that it had done so.
Given my findings with respect to the adequacy of the Panel’s reasons, strictly speaking, it is not necessary to consider the remaining grounds of review. However, since the parties have advanced argument on the remaining grounds, I shall consider those grounds, briefly.
Turning first to the ‘no evidence’ ground, I agree that it is very difficult, especially in the case of an expert tribunal such as the Panel, to impugn a fact finding tribunal’s findings on the grounds that there was no evidence upon which that tribunal could reach the conclusion that it did. Setting aside the difficulties that I have in following the Panel’s reasoning process, I do not accept there was no evidence upon which the Panel had reached its ultimate conclusion that the worker no longer suffered a compensable injury. After all, the Panel had taken a detailed history from the worker, had conducted a physical examination, and had the benefit of ultrasound imaging reports. While the worker may criticise the use to which the evidence was put, it could not be said that there was no evidence upon which the Panel could make its findings. This ground of review is not made out.
Turning now to the worker’s contention that the Panel had taken into account an irrelevant consideration, being that the worker had suffered ‘an exacerbation of symptoms’ of her underlying condition by reason of her employment duties, the Court of Appeal has recently considered the question of what amounts to an irrelevant consideration, and the question of whether an asserted error of fact amounts to jurisdictional error. In Chang v Neill,[30] the Court embarked upon a reasonably extensive discussion as to when making a factual error may constitute jurisdictional error. The Court stated as follows (omitting citations):
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.[31]
[30][2019] VSCA 151.
[31]Ibid [92].
Further, in relation to the question of whether an error of fact must be material in order for it to constitute jurisdictional error, the Court undertook a survey of relevant High Court authorities, and concluded, pending express clarification by the High Court to the contrary, that to constitute jurisdictional error, any factual error by a decision maker, or failure to have regard to a factual matter, must be material in the sense that, if the error had not been made, or if the relevant factual matter had been considered, a different result would have followed.[32]
[32]Ibid [100]. In CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, a decision delivered while judgment in this matter was reserved, Edelman J endorsed the proposition that in order to constitute jurisdictional error, the error on the part of a decision maker must be ‘material’, but that question was not considered by the other members of the Court.
The statement by the Panel that the worker’s employment duties had ‘exacerbated’ the symptoms of her underlying constitutional condition does seem to be an error, in that the worker reported that she had suffered no symptoms prior to February 2016. The question is whether that error was material to the Panel’s conclusion that there was no persisting compensable injury. In my view, having regard to the Panel’s finding that any ongoing symptoms were solely related to the worker’s constitutional condition, it must have been a material factor. As a matter of logic, if the worker’s employment duties rendered a previous asymptomatic condition symptomatic, and there had been a reduction, but not a cessation of symptoms upon ceasing employment, then any misapprehension on the part of the Panel that the worker had suffered symptoms associated with her constitutional condition in the past may well have contributed to the Panel’s conclusion that the worker’s ongoing symptoms of elbow pain and dysfunction were caused by her constitutional condition. However, if the Panel had formed the view that the worker’s condition had been asymptomatic in the past, it may well have formed the view that, in the words of Rush J in Wilson,[33] the worker’s employment duties were ‘activating an otherwise quiescent pathology’.[34] This ground of review is made out.
[33][2014] VSC 545.
[34]Ibid [34].
Accordingly, for the foregoing reasons, the Panel’s opinion should be quashed.
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SCHEDULE OF PARTIES
S ECI 2018 01647
VILMA DEL BEN-ATHANASAIDIS Plaintiff ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY First Defendant ASSOCIATE PROFESSOR EVANGE ROMAS Second Defendant DR DAVID EATON Third Defendant ASSOCIATE PROFESSOR ANDREW HARDIDGE Fourth Defendant
3
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0