Devaney v Crown Melbourne Ltd
[2021] VSCA 168
•17 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0103
| ROLAND DEVANEY | Applicant |
| v | |
| CROWN MELBOURNE LTD & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | BEACH, KAYE and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 June 2021 |
| DATE OF JUDGMENT: | 17 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 168 |
| JUDGMENT APPEALED FROM: | [2020] VSC 594 (Macaulay J) |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Applicant sought judicial review of medical panel opinion with respect to injuries to his neck, shoulders and hips allegedly incurred in the course of employment – Whether judge erred in construction of panel’s reasons – Whether panel’s conclusions not open on the evidence before it – Whether panel’s conclusions irrational or illogical – Whether panel failed to apply correct meaning of ‘injury’ as defined in the Workplace Injury Rehabilitation and Compensation Act 2013 – Whether panel’s reasons failed to adequately disclose reasoning – Leave to appeal refused – Wingfoot Australia Pty Ltd v Kocak (2013) 252 CLR 480 considered – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 303.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A G Uren QC with Mr E Makowski | Arnold Thomas & Becker |
| For the First Respondent | Mr M F Fleming QC with Mr R Kumar | Wisewould Mahony |
| For the Second to Seventh Respondents | No appearance | Victorian Government Solicitor |
BEACH JA
KAYE JA
OSBORN JA:
The applicant seeks leave to appeal against the decision of a judge of the Trial Division dismissing his claim for judicial review in respect of a Medical Panel Opinion dated 26 August 2019.[1]
[1]Devaney v Crown Melbourne Ltd [2020] VSC 594 (‘Reasons’).
The applicant was born in October 1964. He was employed by the first respondent as a chef from 1996 until February 2017. His daily tasks included pushing, pulling, lifting (including reaching above shoulder height), bending and squatting, on a repetitive basis. The items that he moved included heavy trolleys, heavy bags of produce, heavy cooking pots and trays of food.
In October 2017, the applicant commenced proceedings in the Magistrates’ Court at Melbourne against the first respondent pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’), claiming weekly payments of compensation and medical and like expenses arising out of a number of injuries that he claimed that he suffered as a result of his employment with the first respondent. Subsequently, in March 2019 the Magistrates’ Court referred certain medical opinions to a Medical Panel (‘the Panel’) for its opinion pursuant to s 274 of the Act.
The referral to the Panel listed some twelve separate physical injuries and a consequential psychological injury, all of which were claimed to have been related to the physically stressful work which the applicant had undertaken as a chef in the course of his employment with the first respondent. On 26 August 2019, the Panel provided its Certificate of Opinion in respect the questions, that were referred to it, in relation to each of those injuries. The applicant’s claim for judicial review was directed to the Panel’s opinion and conclusions in respect of three of the injuries, namely, the injuries to his neck, shoulders and hips.
The questions that were referred to the Panel, and the Panel’s answers in respect of those injuries, included the following:
Question 1. What is the nature of the Plaintiff’s medical condition relevant to the alleged injuries ... namely, the development of and/or the recurrence, aggravation, acceleration, exacerbation or deterioration of [the alleged injuries]?
Answer:In the Panel’s opinion Mr Devaney’s injuries were [omitting those not relevant to this proceeding]:
Constitutional cervical spondylosis;
Mild rotator cuff tendinitis in the left shoulder;
Mild rotator cuff tendinitis in the right shoulder;
Constitutional femoroacetabular impingement in the left and right hips;
Question 2. Was the Plaintiff’s employment in fact or could it possibly have been a significant contributing factor to be any, and if so, which of the alleged injuries?
Answer:The Panel is of the opinion that Mr Devaney’s employment could possibly have been and was in fact a significant contributing factor to the following alleged injuries [omitting those not relevant to this proceeding]:
the neck including cervical spondylosis;
mild left shoulder rotator cuff lesion with impingement and supraspinatus tendinitis;
severe right shoulder rotator cuff lesion with tendinitis and impingement;
bilateral femoroacetabular impingement with labral tears and associated trochanteric bursitis;
Question 3. Whether the Plaintiff’s employment is still a significant contributing factor to the alleged injuries and if so, which of the alleged injuries?
Answer:The Panel is of the opinion that Mr Devaney’s employment is no longer a significant contributing factor to any of the alleged injuries.
Question 4. Does the Plaintiff’s incapacity for work result from, or is it materially contributed to by any, and if so which, of the alleged injuries?
Answer:The Panel is of the opinion that any claimed incapacity for work does not result from and is not materially contributed to by any of the alleged injuries.
By his originating motion, and in submissions before the trial judge, the applicant relied on four grounds upon which he sought review in respect of the opinion of the Panel. In substance, he alleged that the Panel made the following errors in respect of each of the injuries, which were the subject of the review:
(a) The Panel made findings of fact which were not open on the evidence, or alternatively there was no evidence by reference to which the findings could be made;
(b) The conclusions and answers by the Panel to the questions in relation to the injuries were irrational, illogical and not based on findings or inferences of fact supported by logical grounds;
(c) The Panel failed to treat the particular conditions in question as constituting an ‘injury’ within the meaning of the Act;
(d) The Panel failed to disclose its actual path of reasoning in reaching its conclusion in respect of each of those injuries.
The Medical Panel
In view of the diverse range of injuries and medical conditions on which its opinion was sought, the Panel comprised a general practitioner, a rheumatologist, an orthopedic surgeon, an oral and maxillofacial surgeon (as a consultant) and two psychiatrists. A schedule of the documents, that were provided to the Panel, listed 225 documents, including 143 medical reports, 34 reports of radiological investigations, and five sets of clinical records. The applicant was examined on three separate occasions by members of the Panel. One examination was conducted jointly by the general practitioner, the rheumatologist and the orthopedic surgeon, the second examination was undertaken by the consultant facial surgeon, and the third was carried out by the two psychiatrists.
In a lengthy and detailed opinion, the Panel discussed and considered a number of matters including the following:
(1)The history of each of the applicant’s ten claims for compensation, the decisions made in respect of them, and a summary of each of the medical opinions upon which the applicant and the first respondent relied in respect of those claims.
(2)A detailed history provided by the applicant to the Panel concerning a number of matters including: his pre-injury employment; the development of his symptoms; the employment incidents that caused or contributed to his symptoms; the symptoms that he reported in respect of each of his medical conditions at the time of the examinations; his claimed limitations and functional capacity; the treatment that he had received and was receiving at the time of the examinations; his psychiatric history; and his general medical history.
(3)The Panel’s findings on examination, and its clinical observations of the applicant in respect of each of the claimed injuries, as well as his mental state examination.
(4)A summary of the medical imaging and reports in respect of each of the claimed injuries.
(5)The Panel’s analysis and conclusions in respect of each of those conditions that consisted of: a diagnosis of each condition, an analysis of whether the applicant’s employment had been a significant contributing factor to the claimed injuries, and a conclusion as to his current incapacity for work and the relationship of his employment to that incapacity.
(6)The response by the Panel to contrary medical opinions as to the contribution of the applicant’s employment to his incapacity for work.
After summarising the various claims made by the applicant, the Panel summarised the applicant’s account as to the circumstances in which each of his injuries had developed.
In respect of the injury to the neck, the applicant told the Panel that on 17 October 2005 he had experienced pain in his neck, shoulder blades and upper back when lifting a heavy pot of soup with a co-worker, who had suddenly become distracted leaving the applicant holding the full weight of the burden. Four years later, on 21 September 2009, the applicant slipped on a wet and greasy floor, landing on his buttocks, as a result of which he experienced pain in his neck and lower back. He attended his general practitioner and was referred for physiotherapy. Subsequently, on 1 July 2016, the applicant suffered pain in his neck which radiated to his left shoulder and down his left arm to his hand, when lifting and moving a 15 kilogram pot of soup on a number of occasions. Six weeks later, on 11 August 2016, he again developed pain in his neck, lower back and upper limbs when lifting a big pot of soup several times.
In respect of his bilateral hip condition, the applicant explained that on 27 July 2014, he squatted down to extract a tray of rice out of a hot box, and experienced pain in both groins when he stood up. He attended his general practitioner who organised imaging investigations. They revealed abnormalities in both hips, including labral tears and cam lesions. The applicant was referred to an orthopedic surgeon, Mr Singh, who operated on both hips and injected cortisone into the left hip and the left trochanteric bursa. The operation reports of Mr Singh were available to the Panel. The applicant commenced physiotherapy for his bilateral hip condition (and also for problems with his feet) in March 2016, and he continued to undergo two sessions of physiotherapy each week until funding for that treatment was terminated in September 2017. The applicant stated that the physiotherapy did not reduce his level of symptoms, or improve his capacity to undertake his activities of daily living.
In describing his present symptoms, the applicant told the Panel that he had constant pain at the back of his neck which radiated down between the shoulder blades. He suffered bilateral pain in the pectoral areas, but there was no pain over his shoulders or arms. He was unable to lie on either side due to shoulder pain, and there was bilateral restriction in shoulder movement. The applicant stated that he continued to suffer discomfort in his groins and over the lateral aspect of both hips, and that both hips clicked when he was walking down a slope.
The applicant told the Panel that, because of his neck, shoulder and upper limb symptoms, he had difficulty lifting weights in excess of three kilograms, pushing and pulling, lifting his arms above shoulder height, and undertaking aspects of personal care and household activities. He said that because of his bilateral hip and heel symptoms, he had difficulty standing for more than 45 minutes at one time, walking for more than 20 minutes at a time, sitting in low chairs, driving for more than 15 minutes, running or squatting, and in performing aspects of personal care and household activities.
The Panel also noted the regime of medication prescribed for the applicant.
The Panel then set out its findings on examination and its clinical observations. On physical examination, the Panel noted that the applicant’s gait was normal, he was able to stand on his toes and heels, and there was no muscle wasting in the shoulder girdle. There was a full range of active movement in all planes, and no tenderness, in the cervical spine. In relation to his shoulders, the applicant was tender over the scapular muscles, there was no tenderness around the shoulders and over the acromioclavicular joints, there was mild reduction in the active range of movement bilaterally, there was no impingement, and rotator cuff power was preserved, although testing of the supraspinatus power produced a complaint of pain. In relation to the hips, the applicant was diffusely tender over the trochanteric and gluteal areas bilaterally, but there was a full range of active movement, and there was no evidence of any irritability.
The Panel then summarised, in some detail, the medical imaging that was viewed by the Panel and also medical imaging reports available to the Panel.
In relation to the applicant’s cervical spine, the Panel noted that an x-ray dated 1 March 2006 demonstrated marginal lipping at the C 5 and C 6 levels with no other abnormalities. An MRI dated 15 August 2006 revealed spondylitic changes with shallow central protrusions at C 3–4, C 4–5, C 5–6 and C 6–7 levels, and right sided facet joint arthropathy at C 4–5 and C 5–6 levels. A subsequent MRI dated 28 October 2011 revealed spondylitic changes in the neck. A CT scan dated 8 August 2015 demonstrated mild cervical spondylosis with posterior disc bulges at C 3–4, C 4–5 and C 6–7 levels with no neural compromise. An MRI scan of the cervical spine dated 6 July 2016 revealed mild multi-level degenerative changes affecting the discs and facet joints without neural compromise. An MRI scan taken three months later, on 27 September 2016, demonstrated multi-level degenerative changes again without neural compromise.
In respect of the applicant’s shoulders and upper limbs, an ultrasound of both shoulders dated 27 September 2016 revealed mild to moderate chronic tendinosis in the supraspinatus muscle with moderate overlying bursitis.
In respect of the hips, an ultrasound of the left hip dated 1 February 2014 demonstrated thickening of the trochanteric bursa in keeping with bursitis. An x-ray of the pelvis and right hip dated 8 August 2014 revealed mild osteoarthritic changes in both hips, with features suggestive of femoroacetabular impingement of the cam type. An ultrasound of the right hip dated 9 September 2014 demonstrated mild thickening of the trochanteric bursa suggestive of mild bursitis. Subsequently, an MRI and a CT scan of the left hip dated 2 December 2014 demonstrated moderate cam type deformity, degeneration of the superolateral cartilage and anterosuperior labral tear and mild gluteus minimus tendinopathy. Finally, an ultrasound of the left groin and both hips dated 10 July 2017 revealed mild adductor enthesopathy and mild greater trochanteric bursitis with gluteal tendinosis.
The Panel then expressed its analysis and conclusions.
In respect of the neck, the Panel concluded that the incidents in which the applicant developed neck pain constituted exacerbations of pre-existing asymptomatic cervical spondylosis. The Panel noted that, despite the current symptoms claimed by the applicant, the Panel on its own examination of him did not detect any current clinical evidence of an ongoing cervical condition or injury. The Panel considered that the exacerbations of cervical spondylosis, experienced by the applicant, were ‘minor, transient and quickly resolved without affecting the progress of the underlying condition’. It considered that the applicant had recovered from the exacerbations, and that his current neck related symptoms were attributed solely to his underlying constitutional cervical spondylosis.
In respect of questions 2 and 3, which related to the issue whether the applicant’s employment could have been, and still was, a significant contributing factor to his neck injury, the Panel concluded as follows:
The Panel therefore concluded that Mr Devaney’s employment could possibly have been and was a significant contributing factor to the alleged neck including cervical spondylosis injury.
As the Panel is of the opinion that Mr Devaney recovered from the exacerbations of cervical spondylosis and that his current neck related symptoms [are] attributable solely to his underlying constitutional cervical spondylosis, the Panel concluded that Mr Devaney’s employment is no longer a significant contributing factor to the alleged neck including cervical spondylosis injury.
In respect of the applicant’s shoulders, the Panel was of the opinion that the applicant had suffered soft tissue injuries to the scapular muscles in the incidents on 17 October 2005 and April 2009, but that on each occasion he did not suffer any condition or injury to either shoulder. The Panel considered that the discomfort, that the applicant experienced in his neck and which radiated into his left shoulder and down his left upper limb following the incident on 1 July 2016, constituted referred pain from the neck condition, and did not relate to any intrinsic shoulder condition or injury. The Panel considered that the chronic tendinosis of the supraspinatus muscle, and the bursitis detected on ultrasound examination on 27 September 2016, constituted imaging findings that are common in individuals of the applicant’s age, and even more so in people such as the applicant who suffer from diabetes. The Panel considered that the history obtained from the applicant, of pain in the pectoral areas bilaterally, was not typical of any intrinsic shoulder condition. However, it also noted that its own examination of the applicant revealed mild reduction in the active range of movement in both shoulders and discomfort on supraspinatus testing. It concluded that the applicant was suffering from mild rotator cuff tendinitis in the left and right shoulders.
In respect of questions 2 and 3, the Panel considered that the applicant’s duties of heavy lifting and raising his arms above shoulder height had affected the applicant’s mild constitutional rotator cuff tendinitis in his left and right shoulders leading to temporary exacerbation of that condition. It therefore concluded that the applicant’s employment could have been and was a significant contributing factor to the mild left rotator cuff lesion with impingement and supraspinatus tendinitis injury, and the severe right shoulder rotator cuff lesion with tendinitis and impingement injuries. The Panel, however, noted that the applicant’s symptoms had persisted after he had ceased employment in 2017. The Panel was of the opinion that unrelated factors, such as the applicant’s age, diabetes and underlying degenerative changes in the shoulders, were the primary factors responsible for his ongoing symptoms. It considered that the exacerbation of the applicant’s mild constitutional rotator cuff tendinitis in both shoulders have resolved since he ceased employment, and that his current bilateral shoulder condition was related to degenerative changes only. It therefore concluded that the applicant’s employment was no longer a significant contributing factor to the applicant’s shoulder condition.
In relation to the applicant’s hips, the Panel concluded that the applicant had sustained labral tears in the setting of congenital femoroacetabular impingement in the squatting incident on 27 July 2014. The labral tears were repaired surgically. The Panel, on examination, noted that the applicant had a normal range of movement in both hips without any irritability, and it concluded that the labral tears had been successfully repaired. The Panel also noted, from its own examination, that the applicant revealed diffuse tenderness over the trochanteric and gluteal areas bilaterally, which in the opinion of the Panel was inconsistent with trochanteric bursitis. The Panel was of the opinion that the applicant had recovered from any hip injury that he sustained in the incident of 27 July 2014, and that any current residual symptoms related to constitutional fermoracetabular impingement in the left and right hips.
In respect of questions 2 and 3, the Panel concluded that the applicant’s employment could have been, and was, a significant contributing factor to the bilateral femoracetabular impingement with labral tears and the associated trochanteric bursitis injury. The labral tears had been surgically repaired with a good result, and any ongoing symptoms affecting his hips arose from constitutional femoracetabular impingement. Accordingly, the Panel considered that the applicant’s hip condition may have been temporarily affected by his employment, but any ongoing exacerbation of his underlying degenerative condition had ceased. Accordingly, the Panel concluded that the applicant’s employment was no longer a significant contributing factor to his condition.
The judge’s reasons
In his thorough and detailed reasons, the judge addressed each of the grounds, contained in the originating motion, in respect of the three injuries that were the subject of the proceeding, namely, the cervical spine injury, the shoulder injuries, and the hip injuries.
In considering the neck injury, the judge noted that the Panel, in concluding that the applicant had recovered from exacerbations of his pre-existing asymptomatic condition, had drawn on two pieces of evidence. The first piece of evidence was that there was no current clinical evidence of any ongoing cervical condition or injury. The second piece of evidence was that the previous exacerbations of cervical spondylosis (in 2005, 2009 and 2016) were ‘minor, transient and quickly resolved without affecting the progress of his underlying condition’.[2]
[2]Ibid [43].
The judge considered that the applicant’s criticism, that the Panel’s opinion lacked discernible reasoning, involved a number of mistaken assumptions. First, the applicant’s submission assumed that the Panel was of the view that the constitutional cervical spondylosis was ‘progressing’. His Honour noted that the Panel had expressed the view that the exacerbation of the underlying condition had occurred without affecting (or altering) the progress of the applicant’s condition. In other words, the work incidents had only exacerbated the condition so that it became transiently symptomatic, and that those exacerbations had not aggravated the effect of the progress of the underlying spondylosis.[3] The judge noted that, in making that distinction, the Panel had available to it the medical imaging reports, and accordingly the Panel had an appropriate medical basis upon which to reach its opinion.[4]
[3]Ibid [46].
[4]Ibid [47].
The judge considered that the second assumption underlying the applicant’s contention — that the Panel had been informed that the pain symptoms in the applicant’s neck which emerged in 2005 had been ‘constant’ — was erroneous. The applicant had told the Panel that he had experienced neck pain as a result of the 2005 incident, and that ever since that time he had experienced fluctuating and intermittent discomfort in the neck. When asked about his symptoms at the time of examination in 2019, the applicant told the Panel that at that time he had ‘constant’ pain at the back of the neck.[5]
[5]Ibid [48].
The judge considered that the third erroneous assumption, underlying the applicant’s submissions, was to attribute to the Panel an ‘unstated’ proposition that the non-symptomatic cervical spondylosis had become symptomatic ‘of its own motion’ in 2005 coincidentally with the 2005 incident. The judge observed that the Panel did not express that proposition in its opinion. Rather, the Panel had accepted that the 2005 incident, and the subsequent incidents, had caused the applicant’s underlying spondylosis to become symptomatic on a transient basis.[6]
[6]Ibid [49].
Accordingly, the judge concluded that, properly construed, the Panel’s reasons properly exposed its path of reasoning, and that there was nothing illogical or irrational about the reasoning, and there was evidence upon which the Panel could have reached each of its findings that led to its ultimate opinion concerning the applicant’s cervical spine condition.[7]
[7]Ibid [50]–[60].
In respect of the applicant’s shoulder injuries, the applicant took issue with the conclusion by the Panel that the mild rotator cuff tendinitis, diagnosed by it, was a constitutional condition, which was only exacerbated by his work activities, rather than a condition that was caused or initiated by his work activities. The applicant submitted that the Panel had not explained how it reached that conclusion, and further submitted that the conclusion was made without evidence.
The judge rejected those submissions. First, he noted that the Panel was constituted by expert medical practitioners whose expertise included the diagnoses made by it.[8] Secondly, the judge noted that there was a significant body of evidence supporting the Panel’s opinion, namely: the medical imaging in 2016 revealed the tendinitis to be of a chronic nature; the condition was of a degenerative nature, it was a condition that was common among persons of the applicant’s age, and was even more common among diabetics; the body of medical reports available to the Panel enabled it to form a view about the behaviour and progress of the applicant’s shoulder condition over time; and at least one orthopaedic surgeon (Mr Ian Jones) had formed the same conclusion as the Panel. Accordingly, the judge concluded that the opinion formed by the Panel, that the applicant’s rotator cuff tendinitis was constitutional, was open to the Panel on the evidence. That conclusion was neither irrational nor illogical, and the Panel had adequately explained its reasons for reaching that conclusion.[9]
[8]Ibid [74].
[9]Ibid [73]–[82].
In respect of the Panel’s conclusions concerning the applicant’s hip condition, the judge noted that the applicant’s main contention was that the Panel had failed to deal with the (asserted) fact that there were no symptoms before the July 2014 event, and that his condition only became symptomatic as a result of it. Accordingly, he submitted that there was no evidence before the Panel that the applicant’s condition of femoroacetabular impingement on the applicant’s hips was constitutional, that the Panel’s conclusions were illogical and irrational, and that the Panel had failed to disclose its actual path of reasoning.
The judge rejected those submissions. He noted, first, that there was evidence that the applicant’s condition had been symptomatic before the incident of 27 July 2014. In particular, the applicant had undergone an ultrasound examination of his left hip on 1 February 2014, which revealed a possible condition of bursitis. There was evidence, in the form of a report of Mr Thomas Kossman (an orthopaedic surgeon), that that ultrasound had been preceded by the applicant experiencing pain in his left hip. The judge considered that the Panel’s reasons involved a number of steps, which included the following: the applicant had an underlying condition of congenital femoroacetabular impingement before any workplace aggravation occurred; in February 2014, an ultrasound of his left hip demonstrated features consistent with trochanteric bursitis; the squatting incident of July 2014 caused tears in the labrum of each hip which, with associated trochanteric bursitis, were subsequently repaired; the successful repair of the tears was confirmed by the Panel’s own examination of the applicant, which revealed a normal range of movement and without any irritability or tenderness of the kind that would indicate trochanteric bursitis; and with the cessation of the squatting movements that had previously exacerbated the applicant’s congenital hip condition, any ongoing symptoms or limitations of movement were best explained by the effects of his underlying degenerative congenital condition.[10]
[10]Ibid [107].
The judge considered that, understood in that way, there was nothing illogical or irrational about the reasoning of the Panel. The reasons disclosed that the Panel did take into account the fact that the applicant’s symptoms continued after the July 2014 squatting event. Further, the Panel by its reasons disclosed that it did understand and apply the principle that an exacerbation of an underlying condition may amount to a compensable injury. For those reasons, the judge rejected the submissions on behalf of the applicant that the conclusions reached by the Panel, concerning his hip injuries, were not based on evidence, were irrational or illogical, and failed to reveal an appropriate path of reasoning.[11]
[11]Ibid [108]–[118].
Proposed grounds of appeal
In his application for leave to appeal, the applicant relies on the following proposed grounds of appeal:
A.The trial judge was wrong in his construction of the Reasons of the Medical Panel regarding the Applicant’s neck condition, at [44]–[53].
B.In respect of the Applicant’s neck, shoulders and hip condition, the trial judge was wrong in holding (at [56]–[61], [79]–[83] and [114]–[118]) that
1.The femoroacetabular impingement of Mr Devaney’s hips was to be identified as his constitutional condition of cam deformity of the heads of his femurs, and was not the effect of the workplace incident in connection with that deformity;
2.There was evidence to support the Medical Panel’s Opinions expressed regarding each of those conditions, and ought to have found that its Opinions in respect of each of those condition[s] was not founded on material probative material of its Opinions.
3.The Panel’s conclusions regarding each of those conditions were based upon reasoning that was open to it on the evidence before it, and no different conclusions were mandated, and ought to have found that the Medical Panel’s Opinions in that regard were, were irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.
4.The Panel did not fail to understand that an exacerbation of a non-symptomatic pre-existing medical condition such that it became painful (and thus symptomatic) was itself an injury, and should have found that the Medical Panel did not treat the exacerbation of the Applicant’s pre-existing asymptomatic cervical spondylosis and hip condition as being an injury.
5.The Panel’s reasons for its opinion regarding each of the Applicant’s conditions adequately informs the reader of those reasons, discloses an actual path of reasoning sufficient to enable the court to see whether the opinion involves an error of law, and that upon its reasoning, no error of law is disclosed, and should have found that the Medical Panel has not provided the path of reasoning required by Wingfoot Australia Pty Ltd v Kocak (2013) 252 CLR 480 at [55].
Submissions
In the written case, and the oral submissions, presented on behalf of the applicant, counsel did not address the proposed grounds of appeal individually. Instead, the submissions were directed to the conclusions of the Panel, and the judge’s findings concerning those conclusions, with respect to each of the three relevant medical conditions that were the subject of the application for judicial review, namely, the neck condition, the shoulders condition, and the hip condition.
In respect of the neck condition, counsel noted that although the applicant had pre-existing asymptomatic cervical spondylosis, it first became symptomatic as a result of pain experienced by him in the lifting incident on 17 October 2005. Counsel contended that, contrary to the conclusion of the judge, the Panel’s finding did not mean that the 2005 exacerbation had ceased. Counsel further noted that the Panel recorded that, since that incident, the applicant had been experiencing fluctuating and intermittent symptoms related to his cervical spine, which were further exacerbated by incidents on 21 September 2009, 1 July 2016 and 11 August 2016. It was submitted that the Panel’s acceptance, that the symptoms were ‘further exacerbated’ by those events, clearly inferred that the exacerbation of the applicant’s spondylosis, that occurred in 2005, was ‘added to’ by the subsequent exacerbations in 2009 and 2016. Counsel further submitted that the fact that the applicant’s symptoms were transient and quickly resolved, after each of the incidents in 2009 and 2016, did not logically lead to the conclusion that the injury, that was caused by each of those incidents, and by the 2005 incident, had recovered.
Counsel for the applicant submitted that, in concluding that the applicant had recovered from the exacerbations of cervical spondylosis and that his current neck condition was attributable solely to his underlying constitutional cervical spondylosis, the Panel failed to explain why it concluded that the exacerbations experienced by the applicant were ‘minor, transient and quickly resolved’ without affecting the progress of his underlying condition. Counsel contended that that finding by the Panel was inconsistent with its conclusions that the applicant had exacerbated his previously asymptomatic cervical spondylosis in the incidents of 2005, 2009 and 2016.
Counsel further contended that the conclusion by the Panel, that the applicant’s current neck symptoms were attributable solely to his underlying constitutional condition of cervical spondylosis, is inconsistent with the applicant’s history of neck pain ever since the 2005 incident. In effect, it was submitted, the Panel’s conclusion amounted to the proposition that the applicant’s condition of spondylosis had become symptomatic and progressed of its own nature, and that it did so as a matter of coincidence with the 2005 incident. In that way, it was submitted, the findings by the Panel were unsupported by the evidence, and were irrational.
We interpolate that those submissions advanced by counsel for the applicant, in respect of the neck condition, appear to have engaged Grounds A and B2, B3 and B5 of the proposed grounds of appeal.
In respect of the applicant’s shoulder condition, counsel for the applicant noted that the Panel gave two reasons for concluding that the condition consisted of rotator cuff tendinitis that was constitutional, and that his work with the first respondent had temporarily exacerbated that condition. First, the Panel considered that the imaging findings were common in individuals of the applicant’s age, and even more so in diabetics. However, it was submitted, that fact did not support a conclusion that the applicant’s work was not a cause of the tendinitis, particularly in view of the opinion expressed by Mr Peter Scott, senior consultant surgeon, that it was a cause, which opinion the Panel noted in its reasons. Counsel further submitted that the fact, that the applicant is a member of a class of persons, in which tendinitis is common, meant that he was vulnerable to exacerbation of that condition by the kind of work that he performed with the first respondent. The second reason given by the Panel, counsel noted, was that the applicant’s symptoms had persisted since he ceased employment in 2017. Counsel submitted that the persistence of those symptoms was probative of the continuance of the applicant’s condition of rotator cuff tendinitis, but it was not probative of a constitutional condition. In those circumstances, it was submitted, the judge erred in concluding that there was evidence capable of supporting the opinion of the Panel concerning the applicant’s shoulder condition.
We interpolate that the submissions advanced by counsel for the applicant, in respect of the applicant’s shoulder condition, engaged Grounds B2, B3 and B5 of the proposed grounds of appeal.
In respect of the applicant’s hip condition, counsel submitted that the Panel concluded that the constitutional deformity of the head of the femur of both of the applicant’s legs caused a cam type impingement and other injuries as a result of the squatting incident in July 2014. It was submitted that the ultrasound examination of the left hip, which the applicant underwent on 1 February 2014, provided no support for a conclusion that the applicant, at that time, had femoroacetabular impingements of both hips. Indeed, it was submitted, the Panel did not infer, from the ultrasound, that at that time the applicant had such a condition. In those circumstances, it was submitted, the judge erred in concluding that the impingement was an aspect of the applicant’s constitutional condition, rather than the result of the effect of his work duties on his constitutional deformity. Counsel contended that the judge’s reasoning, in that respect, did not reflect that of the Panel, and, further, it failed to take into account that the applicant suffered continuing pain as and from the date of the squatting incident on 27 July 2014. In those circumstances, it was submitted, the Panel’s conclusion, that the applicant’s ongoing symptoms were due to his constitutional condition, failed to take into account that the applicant did not suffer any symptoms before the 2014 event, and it also failed to take into account the nature of the injuries sustained by the applicant as a result of that incident.
We interpolate that those submissions, concerning the applicant’s hip condition, engaged Grounds B1, B2, B3 and B5 of the proposed grounds of appeal.
In response, in the written case prepared on behalf of the first respondent, counsel addressed the submissions advanced by the applicant in the context of the specific grounds contained in the application for leave to appeal. In oral submissions, counsel addressed the submissions advanced on behalf of the applicant in respect of each of the three relevant conditions. It is, however, helpful to summarise the oral submissions in the same format as the written case, so that they can be related to each of the proposed grounds of appeal.
In response to Ground A, counsel for the first respondent submitted that the judge was correct to conclude that the Panel did not find that the applicant’s neck pain was constant as and from 2005. Rather, the judge correctly found that the Panel made a finding that the pain had been ‘fluctuating and intermittent’ since that date. Counsel further submitted that the judge was correct to conclude that the Panel did not find that the 2005 incident had caused the applicant’s underlying cervical spondylosis to progress; it found that the exacerbation of that condition in 2005 had occurred without affecting or altering the progress of that condition. Accordingly, it was submitted, Ground A of the application for leave to appeal should be rejected.
In response to Ground B1, counsel for the first respondent submitted that the judge was correct to conclude that the Panel’s opinion was that the femoroacetabular impingement of the applicant’s hips constituted a constitutional condition, and that it was not the effect of the incident in 2014 in which the applicant sustained labral tears when he squatted to extract a tray out of a hot box. Counsel further submitted that the judge was correct to conclude that there was evidence to support that opinion formed by the Panel and that the Panel’s conclusions, concerning the applicant’s hip condition, were based on reasoning that was open to it.
In response to Ground B2, counsel for the first respondent submitted that the contention by the applicant, that there was no evidence to support the findings of the Panel, failed to take into account that the Panel was constituted by medical practitioners, each of whom had relevant expertise in respect of the injuries claimed by the applicant. Counsel further submitted that the position taken on behalf of the applicant is tantamount to a proposition that there was no proper defence of the claim in the Magistrates’ Court, and that the only available conclusion is that each of the applicant’s conditions relating to his neck, shoulders and hips related to his employment.
In response to Ground B3, counsel for the first respondent noted that the submissions advanced by the applicant, under this ground, are tantamount to a ground based on legal unreasonableness, which was not a ground of review raised before the primary judge, nor does it form part of any of the proposed grounds of appeal. Counsel further noted that there is some debate as to whether the ground of unreasonableness, that applies to the formation of the discretionary conclusion by an administrative body, is also applicable to a conclusion of fact made by such a body. In any event, it was submitted, each of the conclusions of the Panel were rationally and logically open to it, and were based on logical and rational reasoning.
In response to Ground B4, counsel for the first respondent noted that the applicant has not explained why or how it is maintained that the Panel did not understand that an exacerbation of a pre-existing medical condition is itself an injury. Counsel submitted that it is clear, from the answer by the Panel to question 2, that the Panel properly understood that such an exacerbation could constitute a compensable injury.
Finally, in response to Ground B5, counsel for the first respondent submitted that while the Panel was required to explain the path of reasoning by which it reached its opinion, it was not required to explain why it did not reach some alternative opinion. Counsel contended that the Panel complied with that requirement, by explaining, in respect of each of the three injuries in contention, the reason why it reached the conclusions contained in its opinion.
Legal principles
The proceeding before the trial judge was by way of judicial review of the conclusions formed by the Panel, and the process of reasoning by which it reached those conclusions. A number of the arguments, pressed by the applicant in support of the proposed grounds of appeal, were more akin to those which would be addressed on a merits review, or, possibly, on an appeal to this Court against a finding of fact by a trial judge. Accordingly, before considering those grounds, it is, first, convenient to outline some of the principles that applied to the case before the primary judge, and which are relevant to this application.
In considering the proposed grounds of appeal, the starting point is to identify the nature and scope of the functions of a medical panel. They were described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[12] in the following terms:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[13]
[12](2013) 252 CLR 480; [2013] HCA 43 (‘Wingfoot’).
[13]Ibid 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (citation omitted).
In that context, it needs also to be borne in mind that a medical panel is not bound by the rules of evidence, and it may inform itself on any matter, relating to the issue referred to it, in any manner it thinks fit.[14] Further, a panel is required to act informally, without regard to technicalities of legal forms, and as speedily as a proper consideration of the reference permits.[15]
[14]Workplace Injury Rehabilitation and Compensation Act 2013 s 303(1).
[15]Ibid s 303(2).
The grounds upon which the applicant sought judicial review, and some of the proposed grounds of appeal, contend that the Panel reached conclusions that were not open to it.
In any case in which judicial review is sought, the task of establishing such a ground is particularly difficult. The relevant principles were conveniently stated by Phillips JA in S v Crimes Compensation Tribunal:[16]
To perceive an error of law in the ultimate conclusion by reason of a totally unsubstantiated finding which is critical to it can rest, I think, on the recognition of an unstated premise in the legislation that the tribunal will proceed only according to the evidence and not arbitrarily, according to some frolic of its own … Again I say ‘evidence’ only for the sake of simplicity; in a case 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, in view of the possibly uncertain nature of the material upon which the finding could be based, but the principle is unchanged.[17]
[16][1998] 1 VR 83.
[17]Ibid 90. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356; [1990] HCA 33 (Mason CJ).
In the case of a medical panel, which is not bound by the rules of evidence, and which may inform itself on a matter in any manner it thinks fit, the establishment of a ground, based on ‘no evidence,’ is particularly problematic. It has been fairly said that in such a case the ‘no evidence bar is set very high’.[18]
[18]North v Homolka [2014] VSC 478, [63] (Ashley JA); Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [89] (Cavanough J).
The applicant also relied on a ground that contends that the conclusions by the Panel were irrational, illogical and not based on findings or logical inferences of fact. That proposed ground of appeal derives from decisions of the High Court involving judicial review of decisions of the Minister for Immigration.[19] In Ryan v The Grange at Wodonga Pty Ltd,[20] Neave JA (with whom Santamaria JA and Ginnane AJA agreed) noted that there is ‘still considerable debate about the extent to which irrationality or the related claims of illogicality or unreasonableness, are grounds for review of an administrative decision’.[21]
[19]See, eg, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 620–1 [23]–[24] (Gummow ACJ and Kiefel J), 636 [96] (Crennan and Bell JJ); [2010] HCA 16; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76]; [2013] HCA 18 (Hayne, Kiefel and Bell JJ) (‘Li’).
[20][2015] VSCA 17.
[21]Ibid [82]. See also Rees v County Court [2011] VSC 67, [21] (Cavanough J); Barro Group Pty Ltd v Brimbank City Council (2012) 36 VR 281, 303 [108]; [2012] VSC 154 (Emerton J). Cf Moore v Barton [2014] VSC 78, [67]–[70] (Dixon J).
In the present case, we do not consider it necessary to determine that issue. The submissions advanced on behalf of the applicant, under the ground of irrationality, were primarily based on the proposition that there was no ‘evidence’ to support the conclusions of the Panel. In any event, for the reasons that follow, we are not persuaded that there was no evidence to support the conclusions of the Panel, nor are we persuaded that the conclusions of the Panel, which are sought to be impugned, have been demonstrated to be unreasonable or irrational in the sense discussed in some of the authorities.[22]
[22]Cf Li (2013) 249 CLR 332, 367 [76]; [2013] HCA 18 (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 572–5 [78]–[87]; [2018] HCA 30 (Nettle and Gordon JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 136 [34]; [2018] HCA 34 (Kiefel CJ, Gageler and Keane JJ).
It is also contended, in the proposed grounds of appeal, that the Panel failed to properly disclose its path of reasoning to the conclusions reached by it.
The principles, relating to the adequacy of reasons of a panel, have been discussed in a number of decisions, including the decision of the High Court in Wingfoot[23] and decisions of this Court in Gamble v Emerald Hill Electrical Pty Ltd[24] and Maimonis v Bourke.[25] They were conveniently summarised in Dundar v Bas:[26]
[23](2013) 252 CLR 480, 498–9 [47], 501–2 [55]–[56]; [2013] HCA 43 (French CJ, Crennan, Bell, Gageler and Keane JJ).
[24](2012) 38 VR 45; [2012] VSCA 322. See also Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252.
[25][2019] VSCA 302, [51] (Ferguson CJ, Beach and Ashley JJA).
[26][2019] VSCA 315.
It is worthwhile stating principles to do with a Panel’s reasons.
First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel’s path of reasoning, and to enable a court to see whether the Panel’s opinion involved any error of law.
Second, the standard of reasons required of a medical panel is not to be equated with the standards of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.
Third, as a corollary —
a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.
Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.
Fifth, a panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.[27]
[27]Ibid [46]–[51] (Beach, McLeish and Ashley JJA) (citations omitted).
Analysis and conclusions — neck injury
The submissions advanced on behalf of the applicant, in respect of the neck injury, are directed to the finding by the Panel that the applicant had suffered exacerbations of pre-existing asymptomatic cervical spondylosis in the course of his employment, that he had recovered from those exacerbations, and that his current neck-related symptoms were attributable solely to his underlying constitutional cervical spondylosis. Accordingly, the Panel concluded that the applicant’s employment was no longer a significant contributing factor to his neck injury.
In addressing the submissions made on behalf of the applicant in respect of that conclusion, it is important to note, first, that the Panel obtained a history from the applicant that, since the lifting incident on 17 October 2005, he had experienced ‘fluctuating and intermittent’ discomfort in his neck (and back). That description by the applicant, of his symptoms, encompassed and included the initial incident on 17 October 2005, and the further incidents on 21 September 2009, 1 July 2016 and 11 August 2016, in which he told the Panel he had sustained further bouts of pain in his neck. That is, the description given by the applicant to the Panel was that during the period since 2005, the exacerbations of pain which he had experienced as a result of those incidents (and otherwise) had been intermittent. Based on that history, the Panel concluded that those exacerbations were ‘minor, transient and quickly resolved’. In the judicial review proceeding, the applicant did not challenge that description of the history of his neck that he had given to the Panel.
In submissions before the primary judge, and to this Court, counsel for the applicant placed particular emphasis on the fact that, until 17 October 2005, the applicant had not experienced any pain to his neck. Accordingly, it was submitted, the Panel could not reasonably or logically conclude that the exacerbation he experienced on that occasion, and that further exacerbations that he experienced during the course of his work, did not occasion any additional lasting injury to his cervical spine.
As the primary judge has correctly noted, that submission erroneously equated the concept of an ‘exacerbation’ with the process by which the underlying cervical spondylosis was made worse or ‘added to’. It is quite clear, from the analysis undertaken by the Panel, that its use of that term did not convey, nor was intended to convey, that such an ‘exacerbation’ constituted or necessarily involved a further lasting injury to the cervical spine. Rather, it is clear that, by its use of that terminology, the Panel was conscious of the definition of an ‘injury’ in the Act, which is defined to include (inter alia):
A recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.[28]
[28]Workplace Injury and Rehabilitation Act 2013 s 3(1)(c) (definition of ‘injury’).
In that way the Panel, by describing the bouts of symptoms suffered by the applicant as ‘exacerbations’, expressed its finding that the bouts of symptoms, experienced by the applicant were transient, and did not involve any additional injury to, or aggravation of, his constitutional cervical spondylosis.
The fact that the applicant first suffered symptoms in the cervical spine as a result of an incident at work did not, and could not, logically, compel a conclusion that it was that incident that caused the underlying condition, which was exacerbated in the further incidents that occurred in 2009 and 2016, and which has been intermittently symptomatic since. Rather, the conclusion by the Panel was that in the incident of October 2005 (as well as in the subsequent incidents) the applicant ‘exacerbated’ (that is, temporarily made symptomatic) ‘his previously asymptomatic cervical spondylosis’. In reaching that conclusion, the Panel had available to it a significant amount of radiological evidence undertaken between March 2006 and September 2016. Its conclusions concerning the nature of the applicant’s condition were informed by its own examination and clinical observations of the applicant, and by a number of medical reports of other practitioners that were provided to it.
For those reasons, contrary to Ground A, the judge was correct in the manner in which he construed the reasons of the Panel in relation to the applicant’s neck condition. Further, (contrary to Ground B2) there was evidence to support the Panel’s opinion concerning the neck condition. The conclusions by the Panel were not irrational or illogical, and were not ‘unreasonable’ in the sense discussed in the authorities relied on by the applicant (Ground B3). As we have noted, the Panel clearly understood that an exacerbation of an asymptomatic previous medical condition constituted an injury under the Act (Ground B4). Finally, the Panel’s reasons for its opinion, in respect of the neck, were sufficient to enable the Court to determine whether that opinion involved an error of law, and the Panel’s reasons adequately and properly disclosed its path of reasoning in respect of the applicant’s neck condition (Ground B5).
Analysis and conclusions — shoulder injury
As we have noted, counsel for the applicant made two interrelated submissions in respect of the conclusions of the Panel relating to the applicant’s shoulder condition. First, it was submitted, the fact that the imaging findings in respect of the applicant’s shoulders were common in individuals of his age, and even more so in diabetics, did not support a conclusion that his work was not a cause of his rotator cuff tendinitis. Secondly, it was submitted, the Panel erred in concluding that the fact, that the applicant’s symptoms had persisted since he ceased employment in 2017, militated against a conclusion that his work had caused that condition.
It may be observed, by way of preliminary observation, that the points raised by the applicant, in respect of the Panel’s conclusions relating to his shoulder injury, are more akin to those which would be addressed on a merits review. In any event, they do not persuade us that the judge erred in concluding that the applicant had not demonstrated any relevant error in respect of the opinion formed by the Panel relating to that injury.
In considering the submissions advanced on behalf of the applicant, it is important to note, first, that the opinion formulated by the Panel in relation to the applicant’s shoulder injury (and indeed his other injuries) was based, among other matters, on the history which the applicant gave to the Panel as to the development of the injury, the account that the applicant gave to the Panel as to his current limitations and complaints in relation to the injury, the Panel’s examination findings and clinical observations, and the radiological evidence that was available to the Panel. The Panel’s conclusions were the product of its assessment of those materials based on its own medical expertise.
In its reasons, the Panel recorded the history of the complaints made by the applicant relating to his shoulder injury. In particular, it recorded that in the lifting incident on 17 October 2005, in which the applicant first experienced pain to his neck, he also experienced pain in his shoulder blades and upper back. The applicant told the Panel that subsequently, in April 2009, he experienced discomfort in his left ‘shoulder blade’ after he lifted a roast awkwardly. He informed the Panel that after he had attended his general practitioner, and he had been treated with ice, deep heat and anti-inflammatories, his symptoms then settled.
Pausing there, based on the account given to it by the applicant, the radiological evidence and its own examination, the Panel formed the conclusion that, on each of those two occasions, the applicant suffered soft tissue injury to the scapular muscles, but did not sustain any injury to either shoulder. Plainly, that conclusion, by the Panel, was logical, and based on the material available to the Panel, including the account given to it by the applicant. The Panel’s conclusion, concerning those two episodes, adequately reveals its path of reasoning.
The Panel further recorded that the applicant told it that subsequently, on 1 July 2016, he developed discomfort in his neck, which radiated into his shoulder and down his left arm to his hand, when he lifted and moved a pot of soup on a number of occasions. The Panel formed the conclusion that the applicant’s symptoms on that occasion represented referred pain from his neck condition, and did not relate to any intrinsic shoulder condition or injury. Again, that conclusion is plainly based on the account that the applicant gave to the Panel of the incident in the context of the Panel’s consideration of his neck condition.
In recording the applicant’s present symptoms, the Panel noted that the applicant had told it (amongst other matters) that he had constant bilateral pain in the pectoral area. In doing so, he indicated to the Panel the point where he felt that pain. He also told the Panel that he did not suffer pain over the shoulders or the upper arms. Unsurprisingly, in its conclusion, the Panel noted that that history was not typical of any intrinsic shoulder condition.
The Panel noted that the ultrasound examination, of both of the applicant’s shoulders on 27 September 2016, revealed imaging findings that were consistent with chronic tendinosis of the supraspinatus tendons together with bursitis. The Panel concluded, from that finding, and from its examination of the applicant’s shoulders, that he suffered mild rotator cuff tendinitis in the left and right shoulders. It expressed the view, based on its expertise, that the imaging findings in September 2016 are common in individuals of the applicant’s age, and in particular individuals who, like the applicant, also suffer with diabetes.
Pausing there, those observations and findings were central to the conclusions by the Panel in relation to the issue whether the applicant’s work duties were a contributing factor in his ongoing complaint of shoulder injury. In summary, the Panel did not consider that the applicant had suffered injury to either shoulder arising from the incidents that had occurred in October 2005, April 2009 and July 2016. However, the Panel noted, both from radiology and from its own examination, that there was mild chronic tendinosis of the supraspinatus tendon and bursitis. It also noted that those findings are quite consistent with the applicant’s age, and the fact that he had diabetes.
On the other hand, the Panel did consider that the applicant’s pre-injury duties, which included heavy lifting and lifting his arms above shoulder height, were such as to have affected his constitutional rotator cuff tendinitis by temporarily exacerbating that condition. Again, the use by the Panel of the terminology ‘temporary exacerbation’ is significant. It denotes a conclusion by the Panel that each bout of discomfort, reported by the applicant, amounted to no more than a temporary increase in pain which was transient. To that extent, the Panel concluded that the applicant’s employment had been a significant contributing factor to those exacerbations.
Those findings of the Panel were patently based on the history given to it by the applicant, the radiological imaging and reports, and the Panel’s examination of the applicant. Contrary to the submission advanced on behalf of the applicant, the fact that he had an underlying condition, which might have led to him being vulnerable to bouts of temporary exacerbation, did not mean that the Panel was bound to conclude that his work had thus permanently caused an aggravation of, as distinct from temporarily exacerbated, his underlying shoulder condition.
It was in that context that the Panel then turned to consider the question of whether the applicant’s work was a contributing factor in the continuation of his symptoms after he ceased employment in February 2017.
The Panel expressed the opinion that the applicant’s ‘exacerbation’ of his mild constitutional rotator cuff tendinitis in both shoulders had resolved since he ceased employment. That conclusion was consistent with, and based on, the Panel’s diagnosis and conclusions concerning the temporary exacerbations of the applicant’s condition while he was working. The Panel then explained that the fact, that the applicant’s symptoms had persisted, was due to unrelated factors such as his age, diabetes and underlying degenerative changes. Again, that explanation was consistent with and based on the Panel’s conclusions as to the nature and cause of the applicant’s condition. It also provided a logical explanation for the continuation of the applicant’s symptoms after he had ceased employment, mainly, his age, his diabetic condition, and the underlying constitutional degenerative changes. Contrary to the submission advanced on behalf of the applicant, the persistence of the applicant’s symptoms was not probative of some injury sustained by him in the course of his employment.
Turning, then, to the proposed grounds of appeal, the following conclusions follow from the foregoing discussion. First, the judge was correct to conclude that there was evidence to support the Panel’s opinion relating to the applicant’s shoulder condition (Ground B2). The judge was correct to conclude that the Panel’s conclusions relating to his shoulder condition were based on reasoning open to it, and were not illogical or irrational (Ground B3). Secondly, as the judge noted, the Panel correctly understood that a temporary exacerbation of a non-symptomatic pre-existing medical condition was itself an injury for the purposes of the Act (Ground B4). Thirdly, the Panel’s reasons for its opinion, relating to the applicant’s shoulder condition, disclosed its path of reasoning in a manner that was sufficient to enable this Court to detect whether the opinion involved an error of law (Ground B5).
Analysis and conclusion — the hip injury
In essence, counsel for the applicant made two alternative submissions in respect of the findings by the Panel relating to the applicant’s hip condition. First, it was submitted, the Panel concluded that the squatting incident in July 2014 was the cause of the cam type femoroacetabular impingement disclosed by the radiology. It was contended that that finding by the Panel was inconsistent with its conclusion that the applicant’s employment was no longer a significant contributing factor to that injury. Alternatively, it was submitted, the Panel’s conclusion was inconsistent with, and failed to take into account, the fact that the applicant first experienced hip pain and discomfort as a result of the squatting incident in July 2014, and that it has persisted since that date.
Those submissions mirror the arguments that were put on behalf of the applicant to the primary judge. For the reasons that follow, the judge was correct to conclude that the applicant’s submissions should be rejected, and that the applicant had failed to demonstrate any reviewable error by the Panel in respect of the findings concerning the applicant’s hip condition.
As we will discuss, it is quite plain, from the reasons provided by the Panel, that it reached the following conclusions. First, the applicant had a pre-existing congenital femoroacetabular impingement in his left and right hips. Secondly, in the squatting incident in July 2014, the applicant sustained labral tears in the setting of that impingement in each of his hips. Thirdly, the injuries that he sustained at that time, the labral tears, were successfully repaired by corrective surgery and his bursitis was treated. Fourthly, the applicant’s ongoing symptoms are caused by his constitutional femoroacetabular impingement, so that it could not be concluded that his employment was a significant contributing factor to his condition.
As we have noted, the Panel in its reasons recorded that as a result of the squatting incident, the applicant had been diagnosed to have abnormalities in both hips with labral tears and lesions. The Panel had access to the operation reports which described the surgery undertaken in respect of the labral tears. The Panel further noted that the applicant’s present symptoms, as related to it by the applicant, consisted of discomfort in his groins and over the lateral aspect of both hips, and a clicking in both hips when he walked down a slope. On examination, the Panel noted that the applicant’s gait was normal, he was able to stand on his toes and heels, and that the Trendelenburg test was negative bilaterally. On specific examination of the hips, the applicant was found to be diffusely tender over the trochanteric and gluteal areas bilaterally, there was a full range of active movement, and there was no evidence of any irritability. As mentioned, the Panel had available to it radiological reports between 1 February 2014 (an ultrasound that demonstrated thickening of the trochanteric bursa in keeping with bursitis) and July 2017.
Based on that information, and on its own examination, the Panel expressed the conclusion that the applicant had ‘sustained labral tears in the setting of pre-existing congenital femoroacetabular impingement in his left and right hips.’ Pausing there, that finding by the Panel, quite specifically, was that the impingement was a congenital pre-existing condition, and not the result of the July 2014 incident. The Panel further noted that the labral tears had been successfully repaired by surgery. That conclusion was based on the examination of the applicant by the Panel which revealed a normal range of movement in both hips without irritability. Relevantly, the Panel also noted from its own examination that the complaint of diffuse tenderness was inconsistent with trochanteric bursitis.
For those reasons, it was evident from a reading of the Panel’s opinion, that the Panel concluded that the injury, sustained by the applicant in the July 2014 incident, had been the subject of successful surgery with a ‘good result’. It was for that reason, and based on those considerations, the Panel considered that the applicant’s hip condition may have been temporarily affected by his employment duties (which includes squatting), but that the injury that he sustained, in July 2014, had been repaired, so that any ongoing exacerbation of his underlying congenital condition, arising from that incident, had ceased.
In the course of oral submissions, counsel for the applicant placed particular emphasis on a contention that the Panel failed to take into account that the applicant’s symptoms of pain and discomfort had commenced in connection with the squatting incident in July 2014, and that they had persisted since that time. It was therefore submitted that the conclusion by the Panel, that the consequences of the injury sustained by the applicant at that time had entirely subsided, was inconsistent and illogical.
That submission may be rejected for two reasons. First, as discussed, the Panel identified the injury that was sustained from the July 2014 incident, and explained why it formed the conclusion that that specific injury — the labral tears — had been successfully repaired. Secondly, as the judge noted, some five months before the incident, the applicant underwent an ultrasound examination of his left hip on 1 February 2014, that demonstrated thickening of the trochanteric bursa that was consistent with bursitis. It might be inferred that the applicant underwent that investigation because he was suffering symptoms of pain and the like. As noted by the judge,[29] a radiological finding of trochanteric bursitis revealed some underlying inflammatory pathology.
[29]Reasons [107].
Based on those considerations, we turn to the proposed grounds of appeal relating to the hip condition. In respect of Ground B1, the judge was correct to hold that the Panel concluded that the femoroacetabular impingement of the applicant’s hips was to be identified as a constitutional condition and was not a consequence of the workplace incident. In respect of Ground B2, as we have discussed, there was evidence to support the Panel’s opinion relating to the hip condition. Accordingly, contrary to Ground B3, the Panel’s conclusions were based on reasons open to it and were not irrational or illogical. As discussed, it is clear that the Panel understood that an exacerbation of a non-symptomatic pre-existing medical condition (such as the constitutional femoroacetabular impingement in both hips) was itself an injury under the Act. Thus Ground B4 must be rejected. Finally, in respect of Ground B5, the Panel’s reasons for its opinion sufficiently disclosed its actual path of reasoning to enable this Court to detect whether the opinion involved any error of law.
Summary of conclusions
For the foregoing reasons, the applicant has failed to sustain any of the proposed grounds of appeal in respect of his neck, shoulder and hip conditions. Accordingly, the application for leave to appeal must be refused.
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SCHEDULE OF PARTIES
ROLAND DEVANEY Applicant and CROWN MELBOURNE LTD First Respondent DR JACK OWCZAREK Second Respondent DR JENNIFER HARMER Third Respondent JOHN BOURKE Fourth Respondent ASSOCIATE PROFESSOR ROWAN STOREY Fifth Respondent DR BRENDAN HAYMAN Sixth Respondent DR EDMOND VAN AMMERS Seventh Respondent
3
19
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