Del Ben-Athanasaidis v Royal Melbourne Institute of Technology
[2021] VMC 12
•9 September 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT
Case No. H12756812
| Vilma DEL BEN-ATHANASAIDIS | Plaintiff |
| v | |
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY | Defendant |
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MAGISTRATE: | M A Hoare |
WHERE HELD: | Melbourne (via WebEx) |
DATE OF HEARING: | 30 July 2021 |
DATE OF DECISION: | 9 September 2021 |
CASE MAY BE CITED AS: | Del Ben-Athanasaidis v Royal Melbourne Institute of Technology |
MEDIUM NEUTRAL CITATION: | [2021] VMC 012 |
REASONS FOR DECISION
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CATCHWORDS – Workers compensation – Finance officer performing work of a repetitive nature – Right elbow injury – Termination of weekly payments of compensation – Whether incapacitated for pre-injury employment – Medical panel opinions – Nature and effect of medical panel opinion – Whether panel reasons or any part thereof for a quashed medical panel opinion admissible as evidence – Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 313(4) – Evidence Act 2008 ss 55, 135.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr L Allan | Arnold Thomas & Becker |
| For the Defendant | Mr R Kumar | Minter Ellison |
HER HONOUR:
Introduction and Overview
From 1981, Ms Del Ben-Athanasaidis, the plaintiff in this proceeding, worked as a finance officer for about 35 years for the defendant, Royal Melbourne Institute of Technology (‘RMIT’). Her proceeding, commenced by complaint dated 25 September 2017, has a protracted and complicated history involving referrals to the Medical Panel and an initial Panel opinion being quashed upon judicial review.
Ms Del Ben-Athanasaidis claims weekly payments of compensation in respect of a right elbow condition for a period commencing 23 November 2016 (‘the proceeding’). Her claim is brought under the Workplace Injury Rehabilitation Act 2013 (Vic) (‘the Act’).
In May 2018, medical questions were referred to a Medical Panel by this Court pursuant to s.274 of the Act. The Panel’s certificate of opinion dated 5 August 2018 (‘the 2018 Panel opinion’) was the subject of judicial review and was quashed by Orders of her Honour Daly AsJ dated 18 December 2019[1]. In essence, her Honour found that the Panel’s reasons were inadequate[2]. However, the plaintiff, whilst accepting the 2018 Panel opinion was a nullity, sought to rely upon the 2018 Panel reasons (or at least part therefore) in the proceeding and submitted they should be admitted into evidence. That application was opposed by the defendant. Accordingly, I will return to the Panel’s 2018 reasons in more detail later in these reasons.
[1] [2019] VSC 674
[2] Ibid at [60] – [69]
On her Honour AsJ Daly’s Orders, the medical questions were remitted to a differently constituted Medical Panel. A certificate of opinion dated 6 August 2020 was then delivered by the Panel after examining Ms Del Ben-Athanasaidis on 8 May 2020 (‘the 2020 Panel opinion’). In relation to Question 1 (the diagnosis question), the Panel opined as follows:
‘The Panel is of the opinion that the plaintiff had symptoms and signs of lateral epicondylitis of the right elbow on a background of pre-existing but previously asymptomatic, constitutional pathology of the common extensor origin of the elbow, but the clinical signs of this condition have now resolved.
‘The Panel could not identify any diagnosable medical condition that would account for or explain, the Plaintiff’s description of persistent pain in her right elbow.’
In response to ‘Question 2: Does any condition found in answer to Question result from or is materially contributed to by the claimed injury?’, the 2020 Panel opined:
‘The Panel is of the opinion that the Plaintiff’s now resolved clinical signs of lateral epicondylitis of the right elbow, on the background of pre-existing, previously asymptomatic, constitutional pathology of the common extensor origin of the elbow resulted from, and were but no longer are materially contributed to by the claimed right elbow injury’.
Following the 2020 Panel opinion, a live dispute remained as to whether, in the period from 23 November 2016 to 8 May 2020, Ms Del Ben-Athanasaidis had suffered from any work-related injury of her right elbow. Further, if she had, whether it was for all, or some part, of that period.
Accordingly, in November 2020, further medical questions were referred to the Panel by this Court (‘the further medical questions’) as follows:
Question 1: In the period between 23 November 2016 and 8 May 2020 (or for some if so what part thereof), did the plaintiff have any and if so what medical condition which resulted from, or was materially contributed to by, the right elbow injury alleged in paragraph 6 of the Statement of Claim (the Claimed Injury)?
Question 2: If yes to question 2, during the relevant period (or for and if so what part thereof): (a) Did the plaintiff have any and if so what incapacity for her pre-injury employment which resulted from, or was materially contributed to by the Claimed Injury? …”[3]
[3] The further medical questions also concerned any entitlement to medical and like expenses, however that issue was the subject of agreement prior to the hearing commencing.
In response to the further medical questions, the Panel (which constituted the same members as for the 2020 Panel opinion) delivered a certificate of opinion dated 17 March 2021. The certificate contained the Panel’s response to each of the further questions which was:
‘The Panel is of the opinion that the available medical evidence does not provide sufficient information to accurately answer the retrospective question’.
The defendant then made application to this Court to have the proceeding dismissed. The application was on the grounds that, pursuant to s313(4) of the Act, the 2021 Panel had delivered an opinion to be adopted and applied by the parties and the Court as ‘final and conclusive’. That application was the subject of oral argument before Magistrate Wright on an earlier date and was refused.
The nature and effect of the 2021 Panel’s certificate of opinion remained contentious. I will therefore return to this issue later in these reasons.
The proceeding was listed for a one-day hearing. By agreement, limited viva voce evidence was adduced from Ms Del Ben-Athanasaidis and the medical and other material was tendered into evidence.
My determination was confined to the question of Ms Del Ben-Athanasaidis’ entitlement to weekly payments of compensation.
Facts and Matters Agreed or Not in Dispute
It is convenient to set out the common ground between the parties. In this regard, I was referred to the parties’ joint statement included in the November 2020 referral to the Panel pursuant to s304 of the Act. For present purposes, I now summarise matters about which there was agreement.
Mrs Ben, now 58 years, had worked full-time, and continuously, in the role of finance officer for RMIT until 2011 when she went on parental leave. In October 2012, by arrangement with RMIT, she resumed work on a part-time basis working two days per week. Another employee was appointed by RMIT to work three days a week in Ms Del Ben-Athanasaidis’ former full-time position.
On 25 May 2016, Ms Del Ben-Athanasaidis completed a Worker’s Injury Claim Form for ‘tennis elbow – inflammation of the tendons of the elbow (epicondylitis)’. The injury was stated to have occurred due to ‘constant use of mouse at work’. The injury was first noticed in February 2016 and was reported on 20 May 2016.
Her claim for compensation was accepted.
Following an ergonomic assessment of her work-station by RMIT, alterations were made including an upright mouse, a smaller key-board and so on.
Ms Del Ben-Athanasaidis continued to work two days per week and did not lose any time from work following lodgement of the claim.
Ms Del Ben-Athanasaidis and RMIT had previously agreed that she would resume full-time hours (as performed before her parental leave) from 1 July 2016. However, also by agreement, that arrangement was altered so that she increased to only three days a week which she did for a period of time. However, from 24 August 2016, she submitted WorkCover corticates of capacity under the accepted claim which certified that she was fit to work only two days per week.
Effective as of 14 October 2016, whilst continuing to work two days per week, Ms Del Ben-Athanasaidis’ role with RMIT was made redundant. That was her last day of work with RMIT.
By notice dated 2 November 2016, the WorkCover agent terminated her weekly payments of compensation from 23 November 2016 (‘the termination notice’). The grounds were that: she was not incapacitated for work; she no longer required any medical treatment for her injury; and the medical and like expenses were not reasonable and/or necessary. The termination notice followed an independent medical examination by Dr David Barton, occupational physician, on 20 October 2016. Dr Barton opined as follows (in a passage also set out in the reasons of her Honour AsJ Daly)[4]:
‘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.’
[4] [2019] VSC 674 at [4]
In 2019, Ms Del Ben-Athanasaidis worked as a part-time retail assistant for a different employer for a limited period. She has not worked since that time.
It was also common ground, of course, that this Court must adopt and apply the 2020 Panel opinion (including as to diagnosis) in accordance with s313(4) of the Act.
I now turn to the evidence.
Examination-in-chief of Ms Del Ben-Athanasaidis
In her role as finance officer with RMIT, Ms Del Ben-Athanasaidis’ usual hours were from 8:30 am to 5:30 or 6:00 pm on Tuesdays and Fridays. Ms Del Ben-Athanasaidis, who was right-hand dominant, used a computer mouse ‘most of the day’ in the performance of her duties as a finance officer. It was the ‘main way’ of doing much of the finance work. When asked whether she believed she could have gone back to her pre-injury role using the mouse most of the day, she did not think she could.
In the period from November 2016 to May 2020, there had been no significant change in her right elbow condition. Ms Del Ben-Athanasaidis had continued to experience pain in her right elbow region at ‘the top’ of her forearm. The pain was always there. When asked whether she had restrictions, she said she wore a supportive strap most of the time. She had difficulty with some household tasks such as sweeping, vacuuming and lifting heavy pots off the stove. If she did those things, that would trigger ‘sharp and really shocking pain’ that would shoot up her arm.
In 2019, Ms Del Ben-Athanasaidis did some casual part-time work as a retail assistant with OPSM for two days per week. This was for about two to three months. It was mainly cashier work processing customer transactions. The work was easier than with RMIT. She stopped work because OPSM had wanted her to embark on optometry studies. She had not otherwise been employed since that time.
Cross-examination of Ms Del Ben-Athanasaidis
Regarding her OPSM employment, Ms Del Ben-Athanasaidis was asked about apparent inconsistencies between her evidence in examination-in-chief and the history obtained by the 2020 Panel on 8 May 2020 (as recorded in the 2020 reasons). Ms Del Ben-Athanasaidis denied having told the Panel that:
(a) In 2019, over a period of six or seven months, she worked effectively full-time hours for OPSM, being three days a week at one store and, concurrently, two days a week at another store. The work at the second store then ended after it went into receivership and she reverted to three days for a time;
(b) She stopped working for OPSM because they wanted her to increase her hours and it was too much with her family commitments.
On further questioning, Ms Del Ben-Athanasaidis said she didn’t recall what she had told the Panel.
Ms Del Ben-Athanasaidis agreed that, after lodging her WorkCover claim in May 2016, she continued, until the redundancy, performing her normal duties two days a week. She conceded she was ‘upset’ when the redundancy occurred. She agreed that, had her role not been made redundant, she would have continued work for RMIT on the same basis (two days per week).
Re-examination of Ms Del Ben-Athanasaidis
Whilst she kept working two days a week up until the redundancy, the workload was demanding as she was effectively performing five days’ work over just two days which was due to lack of staff.
Medical Evidence up until 8 May 2020
I now turn to the medical evidence which I will summarise in chronological sequence. This was the same material forwarded to the 2020 Panel and also to the 2021 Panel.
Ms Lynly Beaver, osteopath, in a report of 17 November 2016, stated that she first treated Ms Del Ben-Athanasaidis on 18 May 2016 for right elbow pain with the pain being aggravated by computer work and typing.
Dr Jon Stokes, GP, in a report of 22 November 2016, stated that Ms Del Ben-Athanasaidis was first seen on 19 August 2016 for right elbow pain experienced over the past 3-4 months. An increase in hours to three days had been too difficult to cope with, so she reverted to two days a week with restrictions on use of the right arm. She was last seen on 10 November 2016. His diagnosis was of right-sided lateral epicondylitis both clinically and radiologically. He opined that it was clear that her activities at work were aggravating her pain and that restricting activities resulted in a decrease in symptoms.
Dr A J Porcino, GP, provided a report dated 16 April 2018. Ms Del Ben-Athanasaidis was seen several times between 15 June 2017 and 9 March 2018 complaining of a right elbow injury, consistent with right elbow epicondylitis or inflammation or tennis elbow. Multiple ultrasounds were taken over this time. The main problem was continued pain and stiffness especially if she tried to use the elbow.
Dr Roy Karna, rheumatologist, in a medico-legal report (for the defendant) of 11 May 2017, considered there were persisting symptoms and minor dysfunction of the right elbow as a result of a right elbow injury (diagnosed as right lateral epicondylitis). Examination findings included that: provocation manoeuvres for right lateral epicondylitis were positive with restricted wrist and finger extension producing pain at the right lateral elbow; there was no swelling at the elbow but there was localised tenderness; there was restriction in right elbow flexion although only minor; grip strength was preserved with no difference in forearm circumference between right and left arms.
Dr Alex Stockman, rheumatologist, in a medico-legal report (for the plaintiff) of 6 June 2017, opined that the diagnosis was of unresolved right lateral epicondylitis. On examination, there was tenderness over the lateral aspect of the right elbow and pain on resisted extension of the wrist strongly suggestive of lateral epicondylitis. Grip strength was reduced. Capacity for work was somewhat limited but she could perform duties with less keying and less use of the mouse. He noted that most patients with lateral epicondylitis do eventually settle with the passage of time.
Mr Ash Chehata, orthopaedic upper limb surgeon, provided an initial medico-legal report (for the plaintiff) dated 16 March 2018. He obtained a history that even after reducing from three days to two days with RMIT her symptoms worsened. Diffuse and widespread pain was reported in the classic areas of the lateral epicondylar region. On clinical examination, there was tenderness and pain. Activities of daily living involving any lifting (such as shopping or a kettle) almost impossible. A diagnosis of right lateral epicondylitis was confirmed by imaging. Her current work capacity was clearly hampered and she would need treatment.
Dr Barton, provided a second medico-legal report (for the defendant) dated 18 March 2020. An updated history was taken of Ms Del Ben-Athanasaidis not having returned to work since his October 2016 examination of her, that she had looked for work and it was ‘absolutely zero’. His impression was that Ms Del Ben-Athanasaidis was strongly symptom and disability focused with a strong sense of injury and incapacity. On examination, there was mild tenderness in the region of the right lateral epicondyle and provocation testing for tennis elbow was positive. There was a full range of elbow movements and normal reflexes. Dr Barton accepted there were radiological findings of a tear and tendon changes however, consistent with his view in 2016, he did not believe these findings had any connection with her work. Any mild discomfort that may have been related to work had long since ceased to be clinically relevant. He believed she was fit and capable of normal work.
The 2021 Panel
At this point, it is useful to refer to the 2021 Panel’s observations regarding the medical material before it. The Panel stated:
The Panel noted that Dr Porcino, Dr Stokes and Lynly Beaver all referred to the Plaintiff’s medical imaging and stated that she was suffering from lateral epicondylitis (aka “tennis elbow”) of the right elbow. However, the Panel also noted that none of reports from these three treatment providers contained any mention of any clinical findings in support of their diagnosis. Consequently, the Panel considered that the information in these reports was of no assistance in answering the retrospective medical questions.
The Panel also noted that: Dr Karna, who examined the Plaintiff … on 11 May 2017, described “localising tenderness on direct palpation of the right lateral epicondyle and in the proximal part of the extensor muscle belly mass ... (and) … minor restriction in right elbow flexion”. Dr Karna stated that “Provocation manoeuvres for right lateral epicondylitis were positive with resisted wrist and finger extension producing pain at the right lateral elbow” however, he made no mention of any testing of resisted flexion of the wrist or to resisted flexion of the fingers.
Dr Stockman … on 6 June 2017, described clinical findings of diffuse “tenderness over the lateral aspect of the elbow and several cm distal and proximal to the lateral epicondyle ... (and) ... pain on the lateral aspect of the elbow on resisted extension of the wrist”, which he considered to be “strongly suggestive of lateral epicondylitis”. However, he made no reference to the Plaintiff’s response to testing with resisted extension of the fingers (if any) and, like Dr Karna, also made no mention of testing the Plaintiff’s response to resisted flexion of the wrist, or to resisted flexion of the fingers.
Mr Chehata, on 16 March 2018 found the Plaintiff to be “acutely (tender) across the ECRB and EDC origin on the distal humerus, as well as severely painful along the common extensor wad” and documented a restriction of 10° on both active and passive extension of the right elbow. The Panel noted that the ECRB (extensor carpi radialis brevis) and EDC (extensor digiti communis), along with other tendons, are a part of the common extensor origin wad, and the Panel also noted that Mr Chehata he did not describe any other relevant clinical findings in relation to a complete clinical examination of the right elbow.
Dr Barton, in his report dated 21 October 2016, described “quite marked tenderness diffusely around the lateral side of the elbow … (and) ... slight limitation of extension of the elbow”, but also noted that “There was a normal keratinisation pattern in both hands, ... no wasting in the small muscles in either hand, ... (that) ... measurement of arm circumference showed the right and dominant arm to be of slightly greater muscle bulk than the left, ... (and that) ... Provocation testing for tennis elbow was negative.” Dr Barton did not provide a detailed description of the provocation tests which he had implements, but noted that “muscle power was grossly reduced throughout the right arm with poor effort … (and) … Sensation to light touch was also reduced throughout the right arm … (and that the Plaintiff) … was strongly symptom and disability focused. In his report dated 13 March 2020, Dr Barton described some alteration in his clinical findings in that there was now normal sensation of the right upper limb, “some mild tenderness about 5 cm below the lateral epicondyle ... a full range of elbow movements ... (and) … Provocation testing for tennis elbow was positive”. However, the description of the remainder of Dr Barton’s clinical examination was unchanged and he again noted that the Plaintiff was “strongly symptom and disability focused.”
The Panel noted that Dr Barton’s clinical findings, as described in his report dated 13 March 2020 were inconsistent with the statement that provocation tests at that time were positive, and the Panel also noted that the exact nature of the provocation tests performed by Dr Barton had not been described in either of his two reports. The Panel noted that, aside from the statement that “Provocation testing for tennis elbow was positive”, Dr Barton’s clinical findings in March 2020 were otherwise essentially identical to those which he elicited in October 2016, as well as to those elicited by the Panel two months later, in the course of its own assessment on 8 May 2020. However, in view of this statement, and given that the limited clinical information provided in the reports of Drs Karna and Stockman and Mr Chehata did not allow for either a definitive confirmation or a definitive exclusion of a clinically active lateral epicondylitis of the Plaintiff’s right elbow at the time of their respective examinations, the Panel considered that the available medical information was insufficient to provide a basis on which the Panel could accurately formulate a definitive answer to the retrospective medical questions[5].
Subsequent Medical Evidence
[5] Ibid at pgs. [5] to [6]
I now turn to the two medico-legal reports obtained following the 2021 Panel’s certificate of opinion.
Mr Chehata provided a second medico-legal report dated 19 May 2021. He refers to Ms Del Ben-Athanasaidis having last worked on 16 October 2016. He obtained a history of ongoing flare-ups of the right lateral epicondylitis for which she took Panadol and, intermittently, Nurofen. When assisting her children with remote learning during COVID-19 lockdowns, she was unable to use the mouse because of ongoing and severe pain. On examination, there were similar findings to those in his first report. His diagnosis was of ongoing common extensor origin lateral epicondylitis in the right elbow. It was very likely that due to the severity of her symptoms she was unable to return to her pre-injury employment.
Mr David Slattery, orthopaedic surgeon, provided a medico-legal opinion (for the plaintiff) dated 2 June 2021. Materials provided to Mr Slattery included the 2020 Panel opinion (but not the 2020 Panel reasons) and the 2018 Panel reasons (but not the quashed 2018 Panel opinion). A history was obtained of Ms Del Ben-Athanasaidis not having returned to work since the redundancy in October 2016, of some ongoing limitations of activities of daily living including household tasks such as lifting a heavy pot of water and recreation such as bike-riding. Driving aggravated her elbow. On examination, there was focal tenderness over the lateral epicondyle region exacerbated by resisted wrist extension. There was weakness of wrist extension and flexion when compared to the left side. The diagnosis was of right lateral epicondylitis that was unresolved. He opined it was likely this condition had persisted for the entire period from 23 November 2016 to 8 May 2020. His opinion as to the persisting nature of the condition was based on Ms Del Ben-Athanasaidis having clinical evidence of lateral epicondylitis, as documented by the Medical Panel and her ultrasounds as well as her reporting of ‘unremitting symptoms during this period’. He stated there was a guarded prognosis due to the chronicity of symptoms.
Analysis and Findings
Before turning to the substantive questions, it is necessary to address two preliminary issues. The first was whether the 2021 Panel’s certificate of opinion was a binding ‘opinion’ in accordance with s.313 of the Act. The second was whether the 2018 Panel reasons (or any part thereof) constituted admissible evidence.
Whether the 2021 Panel’s certificate of opinion was a binding ‘opinion’ in accordance with s313 of the Act
It was uncontroversial, as I have stated previously, that the Court must adopt and apply the 2020 Panel opinion in accordance with s313(4)(a) of the Act.
However, the nature and effect of the 2021 certificate of opinion was a matter of contention. The defendant maintained that the 2021 Panel had formed an opinion in answer to the further medical questions as contained in the ‘Further Certificate of Opinion’. Accordingly, the 2021 Panel opinion as to the further medical questions must be considered ‘final and conclusive’ by the parties and by the Court pursuant to s313(4)(b) of the Act.
The 2021 Panel, it was submitted, had not declined to answer the further medical questions. Rather, it delivered its ‘final and conclusive’ opinion that, on the available medical material, there was insufficient medical information to answer the retrospective questions. It followed that it was not open to this Court to go behind the Panel opinion and achieve a different conclusion in accordance with well-established principles of Ajinvan Pty Ltd v Fry[6].
[6] (2001) 3 VR 644
In effect, it was submitted, the 2021 Panel had opined that the evidence fell short of the applicable standard of proof, which was the civil standard of proof, on the balance of probabilities, informed by the Briginshaw principle. That was the standard of proof that applied to matters in which there is no onus of proof according to the Court of Appeal in NOM v DPP[7]
[7] (2012) 38 VR 618 at [89]
The plaintiff submitted, to the contrary, that the 2021 Panel had either declined or failed to form an opinion by stating that, on the basis of available medical evidence, it had insufficient information to answer questions relating to a period of time prior to its own clinical examination. Given that circumstance, the possibility for adducing of additional evidence was left open and, further, matters that had been left unresolved could be determined by this Court. The Court would approach the task of weighing the evidence against the applicable civil standard, the balance of probabilities, and determine matters accordingly. Whereas the 2021 Panel (according to its reasons) had not formed an opinion having assessed that the ‘limited clinical information’ did not provide a ‘definitive confirmation’ or a ‘definitive exclusion’ of clinically active lateral epicondylitis.
The legislative framework in relation to medical panels is set out in Division 3 of Part 6 of the Act. The nature and effect of opinions is governed by s313. In particular, s313(4) provides:
For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a) is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
With the words ‘For the purposes of determining any question or matter…’, the intention of s313(4) in mandating that Panel opinions be ‘adopted and applied’ and that opinions ‘must be accepted as final and conclusive’ is clearly articulated. Of course, authorities such as Ajinvan Pty Ltd v Fry[8] establish clearly the binding nature of the Panel opinions.
[8] (2001) 3 VR 644
However, I do not accept the defendant’s submissions that the 2021 Panel formed an opinion in the sense contemplated in s313(4). If that submission was correct, it would follow that, effectively, any utterance or statement of a Panel contained in a ‘Certificate of Opinion’, no matter how unclear or ambiguous, would be binding on parties and courts. In my view, this would not only be unsatisfactory but contrary to the provision’s stated over-arching purpose as to opinions being final and binding, which is for ‘the purposes of determining any question or matter.’
A practical example might arise in this way. For example, a defined ‘medical question’ in s3(h) of the Act asks ‘whether a worker’s employment was in fact, or could possibly have been, a significant contributing factor…” [my emphasis added]. If a Panel responded to that medical question by opining that a worker’s employment ‘could possibly have been’ a significant contributing factor, then it is hard to see how such a such a statement could be considered ‘final and conclusive’ in the sense contemplated by s313(4). It would not further ‘the purposes of determining any question or matter.’ I refer also to the commentary in the current ‘Accident Compensation Vic + Cases’ Guide at [s68.9] under the heading ‘Uncertainty, ambiguity and doubt’ in relation to the predecessor provision in the Accident Compensation Act 1985.
Accordingly, I find that the 2021 Panel left the ‘further medical questions’ unanswered and did not form an opinion in the sense contemplated by s313 of the Act. I accept the plaintiff’s submissions that the nature of the Panel’s responses did leave open (as Magistrate Wright had also found when the matter was fixed for hearing) the possibility for the adducing of further evidence and for this Court to determine the matters that remain in dispute.
Whether the 2018 Panel Reasons (or any Part Thereof) were Admissible Evidence
The plaintiff submitted that the 2018 Panel reasons contained evidence that was admissible in this proceeding, in particular the 2018 Panel’s findings upon clinical examination of Ms Del Ben-Athanasaidis. This included provocation tests for lateral epicondylitis (such as testing with resisted extension of the fingers and so on).
The defendant objected strenuously to that evidence being admitted. Counsel pointed out that, at the time of the further medical questions being referred to the Panel, Magistrate Wright had refused to allow inclusion of the 2018 Panel reasons in materials forwarded to the 2021 Panel.
The defendant submitted that the sole purpose for the 2018 reasons was to support a Panel opinion that had been quashed. The 2018 Panel reasons were accordingly tainted and could not be admitted into evidence. Just as the 2018 Panel opinion was rendered a nullity, so it followed the 2018 Panel reasons could have no forensic weight. Indeed, the very grounds on which the 2018 Panel opinion was quashed related to the inadequacy of the 2018 Panel reasons. It followed that to admit into evidence even an extract of the 2018 Panel reasons would be problematic and prejudicial.
Whilst the plaintiff, as I stated at the outset, did not dispute that the quashed 2018 Panel opinion was a nullity, Counsel argued, however, that the 2018 Panel reasons were admissible on two bases.
Primarily, the 2018 Panel reasons contained evidence that, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceeding. This accorded with established principles of evidence, in particular s. 55 of the Evidence Act 2008. The plaintiff relied upon the authority of Yirga-Denbu v Victorian WorkCover Authority.[9]
[9] [2018] VSCA 35
In Yirga-Denbu v Victorian WorkCover Authority, the Court of Appeal held that to the extent that the Panel reasons contained admissible evidence about a fact in issue, the reasons were capable of being admitted in accordance with ss. 55 and 79 of the Evidence Act 2008. The Court of Appeal decided that the Panel reasons (which had been admitted by the trial judge in a serious injury application) were admissible because they contained evidence, the probative value of which was not outweighed by the danger that the evidence might be unfairly prejudicial to the applicant, or misleading or confusing, or cause or result in some undue waste of time[10].
[10] Ibid at [62]
Certainly, there could be little doubt as to the potential probative value of clinical findings as to the presence (or otherwise) of right lateral epicondylitis on a date falling within the period in question (23 November 2018 to 8 May 2020). In this respect, I agree with the plaintiff.
However, relevance is, of course, not of itself determinative of admissibility of evidence. As the Court of Appeal observed in Yirga-Denbu, courts have a discretion under s135 of the Evidence Act to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) unfairly prejudicial to a party; or (b) be misleading or confusing; (c) cause or result in undue waste of time ....[11]
[11] S.135(d) relates to criminal proceedings.
I accept the entirety of the defendant’s submission on this matter. In my view, it would indeed be misleading or confusing (and probably also unfairly prejudicial to the defendant) to admit into evidence the 2018 Panel reasons. In reaching this conclusion, I have had the benefit of reading her Honour AsJ Daly’s very detailed analysis as to the inadequacy and defective nature of the 2018 Panel reasons[12]. I therefore rule against the admissibility of the 2018 Panel reasons (or any part thereof) in this proceeding.
[12] [2019] VSC 674 at [60] to [69]
Counsel for the plaintiff also submitted that the 2018 Panel reasons (or at least the clinical findings) were admissible because they had been relied upon by Mr Slattery in forming his opinion in June 2021. It therefore followed that the 2018 Panel reasons (or at least the clinical findings) were necessary to understand Mr Slattery’s opinion. This was in accordance with the principles as to admissibility of reasons stated by Ashley JA in Grech v Orica Australia Pty Ltd[13] .
[13] (2006) 14 VR 602 at [41]
I also reject the plaintiffs’ submission on this ground. Even if the clinical findings were necessary to understand Mr Slattery’s opinion, I still consider that any probative value in that regard is outweighed by the considerations referred to previously set out in s135 of the Evidence Act. Neither Yirga-Denbu nor Grech were concerned with Panel reasons for a quashed medical opinion. The plaintiff could point to no authority that had considered that question. I agree with the defendant’s submission that it could not sensibly be contended that otherwise inadmissible evidence could be rendered admissible simply by reason of that material being provided to a medico-legal witness.
Accordingly, for these reasons, I refuse to admit the 2018 Panel reasons or any part thereof into evidence.
I now turn to the other evidence and the substantive issues for determination.
Whether, and for what period or periods, from 23 November 2016 to 8 May 2020 Ms Del Ben-Athanasaidis continued to suffer from ‘symptoms and signs’ of the right lateral epicondylitis condition
The legal and evidentiary onus of proof rested with Ms Del Ben-Athanasaidis to establish, on the balance of probabilities, an entitlement to compensation for injury in accordance with the Act.
Of course, Ms Del Ben-Athanasaidis’ credit was an important consideration in accordance with established authorities such as Johns v Oaktech Pty Ltd.[14] A plaintiff’s credit is always integral and it was particularly so in the circumstances of this case. The 2021 Panel stated in its reasons that, the Panel members[15] having examined Ms Del Ben-Athanasaidis on 8 May 2020, another medical examination was not necessary. Whereas, of course, at the hearing, evidence was adduced from Ms Del Ben-Athanasaidis on the matters in contention (essentially the further medical questions). Other than Ms Del Ben-Athanasaidis’ viva voce evidence (and the two additional medico-legal opinions of Mr Chehata and Mr Slattery about which I will say more later), the Court had the same material as the 2021 Panel. Accordingly, Ms Del Ben-Athanasaidis’ credit was most important and she needed to persuade the Court that her evidence was credible and reliable. She also needed to establish the reliability of the histories she gave to the medical witnesses, whose opinions were premised on the accuracy of her accounts to them.
[14] [2020] VSCA 10 at [76].
[15] As noted previously, the 2021 Panel constituted the same three members as the 2020 Panel.
In essence, the defendant submitted, that in so far as there are any discrepancies, the Court should prefer the contemporaneous accounts or facts agreed between the parties. The defendant made a similar submission (in writing) to the 2021 Panel as follows: ‘It is evident from the reasons of the [2020] Panel that the plaintiff is not an entirely reliable historian’ and referred to inconsistencies as to pre-injury hours, her account of her symptoms and other matters.
Ms Del Ben-Athanasaidis’ credit was attacked in cross-examination. For the most part, this was based on inconsistencies in her accounts of her OPSM employment between examination-in-chief and cross-examination. This concerned her evidence that she was effectively full-time across two stores, the length of that employment and the reasons for her stopping (whether because OPSM wanted her to increase her hours or to undertake studies). Further, Mr Barton (in March 2020) obtained an inaccurate or incomplete history from Ms Del Ben-Athanasaidis of her not having worked since October 2016, of having looked for work of which there was ‘absolute zero’. Mr Chehata (in May 2021) and Mr Slattery (in June 2021) also obtained histories that Ms Del Ben-Athanasaidis had not returned to work since the October 2016 redundancy. These histories are, of course, incorrect and, it must be said, somewhat perplexing.
In relation to credit, the defendant also placed heavy reliance on Dr Barton’s impressions and opinion of Ms Del Ben-Athanasaidis as displaying ‘a degree of illness behaviour’ with a ‘significant non-physical basis for her complaints’ including global weakness of the right upper limb that was ‘clearly feigned’.
Overall, and not without some reservations given the various inconsistencies and inaccuracies referred to by the defendant, I consider Ms Del Ben-Athanasaidis to be a generally credible witness. She gave her evidence in a largely measured way with a somewhat flat effect (although at one point she described the pain with certain activities as being ‘sharp and really shocking’). Weighing the whole of the evidence, and her own evidence in particular, I did not form the impression Ms Del Ben-Athanasaidis was attempting to deliberately mislead the court. I have taken into account her admissions against interest such as her concession that she was ‘upset’ when the redundancy occurred (an unsurprising reaction after 35 years of service). She also agreed that, had her role not been made redundant, she would have continued in her role with RMIT on the same basis (two days per week). Her length of service with RMIT suggests she was a conscientious and loyal person and I accept that, whilst she was of her ‘job-sharing’ with an employee working three days, I also consider she had a genuinely held belief that she was effectively performing full-time duties within her two days. I consider that she demonstrated a degree of stoicism in continuing to work even after lodging her WorkCover claim in May 2016.
As for Dr Barton’s impressions of her, he alone of the medico-legal witnesses considered she was ‘feigning her symptoms’ or was displaying abnormal illness behaviour. I consider his opinion therefore to be of limited weight as contrary to the balance of the medical evidence when considered as a whole. Importantly, Ms Del Ben-Athanasaidis provided the 2020 Panel with a full and accurate account of her work with OPSM (although it is also true that under cross-examination she disputed or didn’t recall giving this account to the Panel).
Whilst, as I have observed, there were incomplete histories regarding the OPSM employment, in an assessment of the medical evidence, I am guided by the well-known principles set out by his Honour Justice Bell in Pulling v Yarra Ranges Shire Council.[16] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[17]
[16] [2018] VSC 248 at [50] to [55]
[17] Ibid at [50]
On the whole, therefore, whilst I find the plaintiff was a credible witness, given the reservations referred to previously, I agree with the defendant that to the extent there are any discrepancies I should prefer the contemporaneous accounts, or facts agreed between the parties.
I now turn to submissions.
Submissions for the Defendant
Firstly, it was submitted, the medico-legal reports that post-dated the Panel’s examination of 8 May 2020 (Mr Chehata’s second report and Mr Slattery’s report), do not assist the plaintiff in discharging the burden of proof. Indeed, relying on the authority of Yirga-Denbu v Victorian WorkCover Authority[18], their opinions must be disregarded as, in key respects, they ‘cut across’ the 2020 Panel opinion in a way that is impermissible. That is because the 2020 Panel opinion was that whilst there had been ‘symptoms and signs’ of right lateral epicondylitis, the clinical signs of the condition had resolved by 8 May 2020. By contrast, both Mr Chehata and Mr Slattery had opined that the condition had persisted up to and beyond 8 May 2020 to the dates of their examinations (respectively in May and June of 2021).
[18] Ibid at [
In essence, the defendant’s position was that at least from 23 November 2016, there has not been any persisting compensable injury on, broadly, any of three alternate scenarios. These were:
a. There was no physical basis at all for her complaints (as Dr Barton found in October 2016);
b. There was only ‘minor dysfunction’ (as Dr Karna found in May 2017) which had since resolved;
c. The condition was as now wholly constitutional (in that any work-related exacerbation had resolved).
The Court, like the 2021 Panel, simply could not be satisfied that any work-related injury (i.e. an exacerbation, or even the initiation of symptoms, but without affecting the underlying constitutional pathology) persisted after 23 November 2016.
To the extent that the contemporaneous medical evidence and medico-legal opinions appeared, on its face, to support a finding of ‘symptoms and signs of lateral epicondylitis of the right elbow’, that evidence was wholly undermined by the absence of documented rigorous and objective clinical findings of epicondylitis. That would require, as the 2021 Panel stated in its reasons, testing of resisted flexion on the wrist or resisted flexion of the fingers.
On the evidence, the plaintiff had failed to discharge the onus of proof, on the balance of probabilities, and could not succeed.
bmissions for the Plaintiff Su
The weight of evidence supported a finding that Ms Del Ben-Athanasaidis continued to suffer from ‘symptoms and signs of lateral epicondylitis of the right elbow on a background of pre-existing, but previously asymptomatic, constitutional pathology of the common extensor origin of the elbow’ at least until the date of Dr Barton’s second medical examination on 12 March 2020.
As for the 2021 Panel having concluded that the medical material was of ‘no assistance in answering the retrospective medical questions’, the task of the Court was not, as the 2021 Panel had described it in the 2021 reasons, to provide a ‘definitive confirmation’ or a ‘definitive exclusion’ in the present matter.
It was submitted there was essentially consensus amongst the medical practitioners (other than Dr Barton) as to Ms Del Ben-Athanasaidis suffering from ‘symptoms and signs of lateral epicondylitis of the right elbow’ from 2016 onwards, namely: Ms Beaver, Dr Stokes, Dr Porcino, Dr Karna, Dr A Stockman and Mr Chehata. Dr Barton alone had a contrary opinion. Moreover, Dr Barton’s opinion was not only against the weight of the medical evidence, but impermissibly cuts across the 2020 Panel opinion. That was because, in contrast to the 2020 Panel opinion, Dr Barton considered that the plaintiff never suffered from any condition related to her work.
Further, Mr Slattery was the only medical practitioner who has specifically been asked to address the question before the Court (whether, and for what period, from 23 November 2016 to 8 May 2020 Ms Del Ben-Athanasaidis suffered from ‘symptoms and signs’ of the right lateral epicondylitis condition). His opinion should be given appropriate weight accordingly. It was conceded by Counsel for the plaintiff that to the extent that Mr Slattery and Mr Chehata opined that Ms Del Ben-Athanasaidis’ condition persisted beyond 8 May 2020, those opinions were impermissible as they ‘cut across’ the 2020 Panel’s opinion that the condition had resolved by that date.
I now turn to my findings.
As the trier of fact, I must consider the totality of the evidence in weighing whether or not, on the balance of probabilities, the plaintiff has discharged the legal and evidentiary burden proof on the question issue.
The viva voce evidence of Ms Del Ben-Athanasaidis was that, from November 2016 onwards, she had persisting symptoms in her right elbow condition with no significant change. I consider that her evidence in this regard is consistent with the contemporaneous complaints made to, and histories taken by, the medical practitioners as well as their clinical opinions from 2016 onwards. In particular, I have taken account of the following:
a. Ms Beaver, the treating osteopath, had treated Ms Del Ben-Athanasaidis between May and November of 2016 for lateral right elbow pain and a diagnosis was made of right lateral epicondylitis from ‘the complaint, symptoms and tests’.
b. Dr Stokes, the initial GP, treated Ms Del Ben-Athanasaidis between August and November of 2016 for right elbow pain in respect of which he had made a diagnosis of right-sided lateral epicondylitis ‘both clinically and radiologically’.
c. Both Dr Stokes and Ms Beaver referred to the ultrasound report of 18 August 2016 which referred to demonstrated ‘mild to moderate epicondylitis with deep surface tear’.
d. Dr Porcino, the subsequent GP, treated Ms Del Ben-Athanasaidis between June 2017 and March 2018 for complaints of a right elbow injury, consistent with right elbow epicondylitis or inflammation or tennis elbow. He referred to and relied upon multiple ultrasounds taken over this time.
e. Dr Karna, in conducting an impairment assessment in May 2017, concluded that Ms Del Ben-Athanasaidis had persisting symptoms and minor dysfunction of the right elbow as a result of a right elbow injury (diagnosed as right lateral epicondylitis). His examination findings included provocation manoeuvres for right lateral epicondylitis which were positive including restricted wrist and finger extension producing pain at the right lateral elbow.
d. A month later, Dr Stockman, (in June 2017) found, on examination, tenderness over the lateral aspect of the right elbow and pain on resisted extension of the wrist strongly suggestive of lateral epicondylitis. He considered there was then unresolved right lateral epicondylitis
e. Mr Chehata, in March 2018, noted complaints of diffuse and widespread pain in the classic areas of the lateral epicondylar region. On clinical examination, there was tenderness and pain. He opined that a diagnosis of right lateral epicondylitis was confirmed by imaging.
f. Some two years later, Dr Barton, in March 2020, found on examination mild tenderness in the region of the right lateral epicondyle and provocation testing for tennis elbow was positive. On the other hand, there were several findings that did not fit with a physical problem. He accepted there were radiological findings of a tear and tendon changes (which he did not believe had any connection with her work).
I find, having evaluated the whole of the evidence in this matter, on the balance of probabilities, that Ms Del Ben-Athanasaidis continued to suffer from ‘symptoms and signs’ of the right lateral epicondylitis condition from 23 November 2016 to 14 March 2018 (the date of Mr Chehata’s first examination). It is true that the 2021 Panel, in its reasons, referred to its 2020 reasons and reiterated its view that:
‘although medical imaging demonstrating concordant pathology was of assistance in supporting a diagnosis, a definitive (and accurate) diagnosis should be established on clinical grounds (involving the correlation of symptoms and signs), and that any pathology demonstrated radiologically needed to be considered in the context of the clinical findings’[19].
[19] 2021 Panel reasons at pg. [4]
However, in my view, the plaintiff has discharged the burden of proof particularly given the consensus of the treating practitioners early in the history of Ms Del Ben-Athanasaidis’ condition, and their opinion as to ‘signs and symptoms’ at each of the points in time indicated in the opinions set out at paragraphs (a) to (e). Whilst it maybe so that those opinions do not record or document findings as to resisted flexion of the wrist and fingers, I am nevertheless persuaded by the references of those practitioners, at successive points in time to there being symptoms, clinical findings and radiology that verify the presence of ‘symptoms and signs’ of right lateral epicondylitis.
Also, in this regard, on the question of how the Court ought to deal with expert opinions as to the ‘possibility’, I also take some guidance from Dahl v Grice, a decision of the Full Court of the Supreme Court.[20] His Honour Young CJ there stated that the Jury (or the trier of fact) ‘must say on all the evidence whether the conclusion contended for was more probable than not. The fact that the experts … may have said the word possible to describe the causation, however, itself obscures the true position. The expert evidence should give the medical or scientific basis and if appropriate the statistical basis of the requisite connection but it is then for the jury to say whether the connection is established to their satisfaction’.
[20] [1981] VR 513
In regard to the duration of the period, I find, on the balance of probabilities, that ‘symptoms and signs’ persisted up until 16 March 2018 but not beyond that date. On the evidence of the treating practitioners, Ms Del Ben-Athanasaidis was under the care of, and treated for, the condition of right lateral epicondylitis as follows:
(a) Ms Beaver: from May to November of 2016;
(b) Dr Stokes: from August to November of 2016;
(c) Dr Porcino: from June 2017 to March 2018.
There were also clinical examinations and assessments during that period of Dr Karna (May 2017), Dr Stockman (June 2017) and Mr Chehata (May 2018) that I consider verified ‘symptoms and signs’.
Beyond that time, however, I am not persuaded that the weight of evidence, when considered as a whole, supports a finding, on the balance of probabilities, of the condition persisting after 14 March 2018 (the date of Mr Chehata’s first examination). There is then, apparently, a two-year gap of no treatment and no documentation of ‘symptoms and signs’ before the assessment in May 2020 of Dr Barton. I have already observed that Dr Barton’s impressions were at odds with the other practitioners and I set out previously the 2021’s Panels observations of Dr Barton’s opinions: of him recording being negative provocation tests in 2016 but then, somewhat inexplicably, positive provocation tests in 2020 despite also stating there was a ‘significant non-physical basis’. I do not accept Dr Barton’s opinion which appears to be inherently flawed. I also agree with the plaintiff’s submission that his opinion of there never being a work-related condition did cut across the 2020 Panel opinion.
For the sake of completeness, I also agree with the defendant that the further opinion of Dr Chehata (of May 2021) and Mr Slattery (of June 2021) do, in significant respects, in an impermissible way, ‘cut across’ the 2020 Panel opinion that the condition had resolved as at 8 May 2020. Even if I am wrong about that, I consider their views in 2021, given the very substantial lapse of time, have less weight than the opinions that were contemporaneous with the opinions of the treating practitioners (namely, Dr Karna, Dr Stockman and the first assessment of Dr Chehata). Finally, Mr Slattery’s opinion is undermined upon his reliance at least in part upon evidence ruled inadmissible (that is the 2018 Panel opinion).
In respect of any such period, did the condition result from, or was materially contributed to, by Ms Del Ben-Athanasaidis’ employment with RMIT?
Essentially for the same reasons referred to in respect of the previous question, I find that the weight of evidence supports a finding that the condition of ‘symptoms and signs of lateral epicondylitis of the right elbow on a background of pre-existing, but previously asymptomatic, constitutional pathology of the common extensor origin of the elbow’ resulted from and was materially contributed to by her employment for the period from 23 November 2016 to 14 March 2018.
I rely upon the consensus of the treating and medico-legal opinions (save again for Dr Barton) over that period was that her condition was work-related. I accept the evidence of Ms Del Ben-Athanasaidis, who was right-hand dominant, that she used a computer mouse ‘most of the day’ in the performance of her duties and it was the ‘main way’ of doing much of the finance work.
In respect of any such period was Ms Del Ben-Athanasaidis incapacitated for her pre-injury employment as a finance officer and did such incapacity result from or was materially contributed to by her employment with RMIT?
The plaintiff submitted that the Court need only consider that Ms Del Ben-Athanasaidis is unfit for one aspect of her pre-injury employment in order for it to find that she has, or had an incapacity for work within the meaning of the Act. This is in accordance with authorities such as Arnott’s Snack Products Pty Ltd v Yacob[21] and Chelberg v Urban Maintenance Systems Pty Ltd[22]. Ms Del Ben-Athanasaidis’ incapacity was established by her own evidence that: (a) she could not do that work without pain; (b) her inability to return to full-time work as planned in July of 2016 (in fact, she had to drop from 3 days to 2 days on the advice of her doctor); (c) the need for alterations to her work-station.
[21] (1985) 155 CLR 171
[22] [2011] VCC 973
There is a subtle but critical distinction, it was submitted, between an incapacity for work and an incapacity to work. The plaintiff also referred to Magistrate Wright’s decision of Stebbing v State of Victoria[23] and cases as Ball v Hunt[24] and Nash v Sunshine Potteries[25] .
[23] [2017] VMC 14 at [86]
[24] [1912] AC 496
[25] (1960) 101 CLR 353)
The defendant challenged the plaintiff’s case in respect of incapacity for pre-injury employment on the basis that at least from 23 November 2016, there had not been any persisting compensable injury. The defendant also submitted that on the plaintiff’s own evidence she had continued to perform her pre-injury employment and would have continued to do so.
I accept the evidence was that Ms Del Ben-Athanasaidis persisted in continuing to work in pain, or being willing to work with pain, and with significant workstation modifications until she was made redundant. In my view she did indeed have an incapacity for her pre-injury duties (as opposed to an incapacity to work). I find on that basis that Ms Del Ben-Athanasaidis was incapacitated for her pre-injury employment as a finance officer and such incapacity resulted from or was materially contributed to by her employment with RMIT for the period of her compensable injury, that is from 23 November 2016 to 14 March 2018.
Conclusion
The matter is adjourned to a date to be fixed to allow parties to consider the form of appropriate final orders including as to costs.
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