Donevski v Hunter
[2019] VSC 163
•18 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00613
| NOVE DONEVSKI | Plaintiff |
| v | |
| DR ROBIN HUNTER | First Defendant |
| and | |
| MR KEITH ELSNER | Second Defendant |
| and | |
| WOOLWORTHS LIMITED | Third Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 March 2019 |
DATE OF JUDGMENT: | 18 March 2019 |
CASE MAY BE CITED AS: | Donevski v Hunter |
MEDIUM NEUTRAL CITATION: | [2019] VSC 163 |
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JUDICIAL REVIEW – Medical Panel – Determination that plaintiff’s degree of impairment did not satisfy ‘threshold level’ for a significant injury under Part VBA, Wrongs Act 1958 (Vic) – Whether Panel failed to consider current medical reports – Whether Panel failed to have regard to relevant information – Whether Panel’s determination inconsistent with opinion of a previous Medical Panel – Whether Panel had regard to irrelevant medical reports – Whether Panel’s determination procedurally unfair – Whether Panel’s determination unreasonable – No jurisdictional error in Panel’s determination.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Third Defendant | Ms R Kaye | Meridian Lawyers |
HER HONOUR:
On 18 January 2014, Nove Donevski went shopping with his wife and daughter at Sunshine Plaza. On the way out, Mr Donevski pushed a fully laden shopping trolley from Woolworths onto a downward travelator. The trolley’s wheels did not lock onto the travelator – in effect, the brakes failed. Mr Donevski says he ran several steps to catch the trolley, held it to stop it from running into the people in front of him, and then fell down when the trolley reached the end of the travelator. He claims to have suffered injuries to his back, legs and shoulders as a result of this incident, for which he seeks compensation from Woolworths.
Under Part VBA of the Wrongs Act 1958 (Vic), Mr Donevski can only recover damages for non-economic loss if he suffered a ‘significant injury’ due to the runaway trolley.[1] In his case, this requires a medical assessment that ‘the degree of impairment of the whole person resulting from the injury’ satisfies the ‘threshold level’.[2]
[1]Wrongs Act 1958 (Vic) (Wrongs Act), s 28LE.
[2]Wrongs Act, s 28LF(1). The ‘threshold level’ is defined in s 28LB to mean, in the case of injury (other than psychiatric or spinal injury), impairment of more than 5 per cent and, in the case of spinal injury, impairment of 5 per cent or more.
In February 2017, Professor Kenneth Myers, a consulting surgeon, certified that he was satisfied that the degree of impairment resulting from injuries to both of Mr Donevski’s knees and to his back was more than 5% – that is, it satisfied the threshold level.[3] Mr Donevski’s solicitors served the certificate of assessment on Woolworths, and later gave the following details of his claim:[4]
On or about 8 January 2014 Mr Donevski suffered injuries to both knees and lower back, which injuries were caused by substandard equipment owned by Woolworths. Mr Donevski was travelling down a travelator at the Sunshine Plaza Woolworths when the braking mechanism on the trolley failed to work and in his attempts to catch the rolling trolley he fell, landing on his back while the trolley toppled on him and injuring both his knees.
[3]Wrongs Act, s 28LN.
[4]Letter dated 18 July 2017 from Patrick Robinson & Co to Woolworths Group, providing information required by s 28LT(2) of the Wrongs Act.
In response to this certificate of assessment, Woolworths referred a medical question to a Medical Panel for determination.[5] The question was whether the degree of impairment resulting from the alleged physical injury to Mr Donevski satisfies the threshold level. Woolworths provided the Panel with information including the certificate of assessment, the details of the claim provided by Mr Donevski’s solicitors, Professor Myers’ report of 13 February 2017, two reports from Mr Donevski’s general practitioner, various radiology reports, and other medical reports and records.
[5]Wrongs Act, s 28LWE.
A Medical Panel constituted by Dr Robin Hunter, rehabilitation physician, and Mr Keith Elsner, orthopaedic surgeon, examined Mr Donevski on 10 October 2017. On 19 December 2017, the Panel gave its determination, as follows:
Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
Answer:The Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level.
The Panel’s determination means that Mr Donevski does not have a ‘significant injury’ for the purposes of Part VBA of the Wrongs Act, and cannot recover damages for the injuries he claims to have suffered.[6] In this judicial review proceeding,[7] Mr Donevski seeks orders quashing the Panel’s determination and remitting the question to be reconsidered by a differently constituted Panel. As is the usual practice, the Panel members did not participate in the proceeding and will abide the Court’s decision.[8] Woolworths appeared by counsel, seeking to uphold the Panel’s determination.
[6]Wrongs Act, s 28LZH(2).
[7]The proceeding is brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), by originating motion filed 16 February 2018.
[8]In a letter to the Court dated 12 October 2018, the solicitors for Dr Hunter and Mr Elsner advised that the Panel adopted the position described in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35, and would submit to such orders as the Court might make in the proceeding.
For the reasons that follow I have decided that there was no legal error in the Panel’s determination, and therefore no basis to make the orders sought by Mr Donevski.
The grounds for review are expressed in the originating motion to be:
(a) Unreasonable hypothesis – The Panel’s hypothesis is unreasonable administratively as medical records on which the Panel have relied do not support the hypothesis and findings of the Panel;
(b) Irrelevant considerations – The Panel’s determination is unreasonable because the Panel relied on irrelevant considerations in forming its opinion.
(c) Procedural fairness – Further, in determining its opinion the Panel failed to afford the Plaintiff procedural fairness.
Mr Donevski elaborated on these grounds in his written submission as follows:
8.The medical panel failed to give consideration to current medical reports;
9.The medical panel failed to give consideration to my answers that I provided to their questions during medical examination and in my opinion my answers to every question was dismissed.
10.The medical panel decision and certificate and reason of opinion which was performed on the 9th of April 2014 was dismissed by current medical panel doctors 2018. This document stated that all injuries sustained have been resolved and that total impairment was 0. This document is also included in this letter.
11.In the incident which occurred on the 18th of January 201[4], I also injured my shoulders while holding the trolley on the escalator. However for some reason this was missed to be included and documented by my previous lawyers that was also to be examined by the medical panel.
12.To explain further to you about questions you asked at the direction hearing on Wednesday the 22nd of August 2018[9] about the hypothesis are as follows
13.The medical panel in their reasons for their determination they mention numerous reports by Dr Alex Stockman. They used opinion that were located on page 4 paragraph 1 and paragraph 2 and on page 8 in paragraph 3. They discuss his reports written on 1st of April 2012 and 1st of April 2018. They mention a previous report written on 28th of June 2001.
They failed to consider current reports from my general practitioner Dr Louis Glowinski, whom I have seen for more than forty years on a regular basis. They also failed to mention the report of Professor Kenneth Myers which is dated on the 13th of February 2017 which is current.
14.For Procedural fairness, the panel failed to have a reasonable and a fair opinion to the plaintiff. They did not consider medical reports, MRI scans, treatment, operations and any of my answers, they used material that is out of date and applied reports that do not relate to the injuries sustained.
[9]A reference to the directions hearing conducted by Clayton JR on 22 August 2018, at which Mr Donevski was given leave to file and serve further written submissions, and Woolworths was given more time to file and serve its written submissions.
The Panel’s Reasons
The Panel provided written reasons for its determination, dated 19 December 2017 (Reasons), in which it set out the history given by Mr Donevski and its findings on examination, and noted the material it had considered in forming its opinion. The Panel stated that it had formed its opinion with regard to the documents and information listed in the enclosures.[10] In addition to the documents provided by Woolworths,[11] the Panel noted a letter from Mr Donevski’s solicitors dated 28 September 2017, a CT scan of Mr Donevski’s lumbar spine dated 22 September 2017, and X-rays of both knees dated 12 October 2017.[12] The Panel also noted the opinion of an earlier Medical Panel, dated 9 April 2014.
[10]Reasons, 2, paragraph 3(a).
[11]Summarised at [4] above. These materials were listed in Enclosure A to the Reasons.
[12]Listed in Enclosure B to the Reasons.
The Panel’s key findings were as follows:
The Panel on the basis of the claimant’s history, the materials provided with the referral, its examination findings and collective expertise and experience, concluding the claimant is suffering from widespread pain symptoms on a background of mild multi-level age-related degenerative changes of the lumbar spine with no evidence of radiculopathy. The Panel could find no symptoms or signs of injury to the thoracic spine. The Panel concluded the claimant is suffering from an aggravation of degenerative changes in the left knee treated surgically with residual left knee dysfunction and an aggravation of degenerative changes in the right knee treated surgically with residual right knee dysfunction.
…
The Panel considered that there is evidence of impairment from an unrelated injury or cause that is playing a part in the claimant’s current lumbosacral and left knee impairment and which the Panel is obliged to disregard in accordance with Section 28LL(3) of the Act.
…
The Panel disregarded unrelated impairment and concluded that:
·The degree of whole person impairment resulting from the spinal injury to the Claimant alleged in the claim is permanent, but is not 5% or more and therefore does not satisfy the threshold level as prescribed by Section 28LB of the Act as amended.
·After combining the whole person impairments attributable to all of the physical injuries to the claimant alleged in the claim according to the formula prescribed at page 322 of the Guides, the degree of whole person impairment resulting from the spinal and/or the physical injuries to the Claimant alleged in the claim is permanent, but is not more than 5%.
Did the Panel fail to consider current medical reports?
Mr Donevski’s first complaint about the Panel’s determination was that it did not consider current medical reports relating to the injuries he suffered in the trolley incident. At the hearing, he identified those reports as:
(a) the reports of his long term general practitioner, Dr Louis Glowinski, dated 21 July 2014 and 5 December 2016;
(b) the report of Professor Myers, dated 13 February 2017;
(c) MRI of his lumbar spine dated 30 January 2014;
(d) MRIs of his knees dated 1 May 2014 and 27 January 2016;
(e) CT of his lumbar spine dated 22 September 2017; and
(f) X-rays of both knees dated 12 October 2017.
The Panel stated in its Reasons that it had reviewed all of the available radiology reports, and listed each of them, together with a brief summary of each report’s findings.[13] It is apparent from the Reasons that the Panel also viewed the most recent images for itself – being an MRI of Mr Donevski’s right knee dated 11 October 2016,[14] the CT of his lumbar spine taken on 22 September 2017,[15] and the X-rays of his knees dated 12 October 2017.[16]
[13]Reasons, 5–6.
[14]Not included in Enclosures A or B, but nevertheless described in the Reasons, 5.
[15]Reasons, 5.
[16]Reasons, 6.
It is the case that the Panel did not refer specifically in its Reasons to Dr Glowinski’s reports or to the report of Professor Myers. However, at the beginning of the Reasons the Panel stated that it had formed its opinion with regard to the information referred to in Enclosure A to the Reasons, which included those reports.[17] Later on, it said that it had considered the radiological and medical reports.[18] Then, in relation to the issue of unrelated impairment, the Panel said that it had considered the materials provided with the referral and the reports of Mr Donevski’s treating doctors prior to the incident.[19] I accept these statements at face value.[20] I do not infer from the fact that the Panel did not refer to Dr Glowinski or Professor Myers by name that it did not consider their reports.[21] To the contrary, I am satisfied that the Panel did have regard to those reports.
[17]Reasons, 2, paragraph 3(a).
[18]Reasons, 6.
[19]Reasons, 8.
[20]Vellios Electrical Contractors Pty Ltd v Allianz Workers Compensation (Victoria) Ltd [2014] VSC 664, [81]–[83].
[21]Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [65].
The Panel did not fail to consider current medical reports.
Did the Panel fail to consider Mr Donevski’s answers?
Mr Donevski submitted that the Panel had failed to consider the answers he gave during the examination ‘in every respect’.
In his written submission, Mr Donevski gave no details of his complaint that his answers were not considered by the Panel. He said only that, in his opinion, his answers to every question were dismissed. Although he was given leave to file further submissions,[22] he did not take the opportunity to elaborate on this ground of review. Woolworths objected to Mr Donevski relying on this ground, given the lack of particularisation.[23]
[22]Order 1 of the orders of Judicial Registrar Clayton made on 22 August 2018.
[23]Submissions on behalf of the Third Defendant dated 24 September 2018, [15].
Aside from the Panel’s Reasons, there was no evidence before me about the questions asked and answers given during the Panel’s examination. However, at the hearing Mr Donevski gave a fairly detailed account of what was said, and identified a number of matters on which he said the Panel disregarded his answers. He gave this account from the Bar table, not by way of evidence.
Woolworths reserved its position, given the lack of notice of these matters and the absence of evidence about them. Under cover of that objection, Woolworths submitted that none of the matters raised by Mr Donevski was capable of amounting to a jurisdictional error on the part of the Panel.
I do not need to rule on Woolworths’ objections to this ground of review, because I have come to the view that none of the matters raised by Mr Donevski could amount to a jurisdictional error in the Panel’s determination.
A Medical Panel will fall into jurisdictional error if it fails to have regard to a ‘fundamental issue’ arising from the medical question referred to it.[24] Similarly, there is jurisdictional error if a Medical Panel makes a ‘fundamental mistake of fact which goes to a central issue in determining the answer to a medical question’.[25] A minor, or even a moderate, error of fact does not amount to jurisdictional error.[26] Whether an identified mistake of fact is minor or fundamental is a question of fact and degree in each case.
[24]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60] (Neave JA, Santamaria JA and Ginnane AJA agreeing); Omerasevic v Kotzman [2016] VSC 383, [97].
[25]Karabinis v Bendrups [2017] VSC 648, [62] (Karabinis), affirmed on appeal in Karabinis v Bendrups [2018] VSCA 124.
[26]Karabinis, [62]; see also City of Melbourne v Neppessen [2019] VSC 84, [148].
The obligation to have regard to the history given by a claimant on a fundamental issue does not mean that a Medical Panel must accept that history in all respects. While a Medical Panel is not an adjudicative body, it may need to make findings of fact in order to form an opinion on a medical question. If a finding of fact is reasonably open on the material before the Panel, it will generally not involve an error of law.[27]
[27]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [132]–[135] (Crennan and Bell JJ).
At the hearing, Mr Donevski made the following complaints about the questioning by the Panel during the examination:
(a) He said that the first question the Panel asked him was about his diagnosis of prostate cancer in 2010, and that they had pressed him for a description of his symptoms although he told them it was not appropriate to answer because it was private. He recalled the Panel laughing at his answers, which he did not like.
(b) Next, Mr Donevski said that the Panel had dismissed his attempt to give an accurate description of his fall at the bottom of the travelator. Although his solicitors had advised that ‘in his attempts to catch the rolling trolley he fell, landing on his back while the trolley toppled on him and injuring both his knees’, Mr Donevski said he told the Panel that he had fallen flat on his face. He clarified that he was injured while holding onto the trolley on the way down the travelator; the fall was not the problem.
(c) He also said that the Panel was incorrect to say that the brakes of the trolley failed. He explained at the hearing that the trolley ‘had no wheels to be on the travelator’. I understood him to be saying that the trolley did not have the kind of wheels that lock onto the surface of a travelator, and stop the trolley from rolling downwards.
(d) Mr Donevski took issue with the Panel’s statement that he did not feel it was necessary to use the Macedonian language interpreter who was present throughout the interview.
(e) He said that he had told the Panel that he had pain in both knees, and pointed out that the Panel had recorded him as saying ‘he has pain on both sides of his [right] knee which is constant and radiates to both legs’.
(f) There was then a complaint about this paragraph in the Reasons:[28]
[28]Reasons, 4.
The claimant told the Panel that prior to the incident he was walking up to 10 km every day. The Panel considered that this is inconsistent with his reported function in documents from his general practitioner and rheumatologist.
Mr Donevski said that he had been walking every day, and told me that there was surveillance video footage, taken for the Transport Accident Commission, that proves that he was doing his exercise.
(g) Mr Donevski said that the Panel was wrong to record his bladder and bowel function as normal, and pointed out that he had been treated for bladder cancer since 2016.
(h) Finally, he focused on the Panel’s assessment of his left and right lower extremities,[29] which he interpreted as a conclusion that there was nothing wrong with his knees.
[29]Reasons, 7.
I have reread the Panel’s Reasons carefully in light of each of these matters. It appears from the Reasons that the Panel took a thorough history from Mr Donevski and set that history out at some length. Overall, I cannot conclude that the Panel disregarded Mr Donevski’s answers to the questions asked of him during the examination. There were some aspects of his history that the Panel did not accept, because they were inconsistent with other information available to it, but this is not the same as disregarding his answers.
In relation to Mr Donevski’s specific complaints:
(a) It is regrettable that Mr Donevski feels that the Panel’s questioning about his prostate cancer was intrusive, and that his answers were not listened to with respect. However, these questions and answers did not concern a fundamental issue. There is no mention of a diagnosis of prostate cancer in the Reasons and it clearly formed no part of the Panel’s impairment assessment.
(b) The Panel based its account of the trolley incident on the description given by Mr Donevski’s solicitors in the particulars of claim provided to Woolworths. This description conflicts with Mr Donevski’s, in that it has him falling on his back rather than on his face. However, as Mr Donevski said, it was not the fall that was the problem, but the fact that he had to hold onto the trolley to stop it rolling down the travelator. If the Panel was mistaken about how he fell, that mistake was not about a fundamental issue.
(c) Similarly, the reason why the trolley did not stop on the travelator had no bearing on the Panel’s assessment of Mr Donevski’s degree of impairment.
(d) As to the use of an interpreter, Mr Donevski confirmed that an interpreter had been present during the whole examination. He did not make any complaint that he could not understand the questions asked of him or make himself understood, or that he was prevented from seeking the interpreter’s assistance at any point. I do not consider that the fact that the Panel conducted the examination in English, with an interpreter present and available to assist, could amount to jurisdictional error in this case.
(e) The description of the pain in Mr Donevski’s right knee, radiating to both legs, appears in a paragraph that deals in detail with his right knee. The next paragraph deals with his left knee. Reading both paragraphs, it is plain that the Panel understood that Mr Donevski had pain in both knees.
(f) The Panel referred and had regard to Mr Donevski’s claim that he had been walking up to 10 km daily at the time of the trolley incident. It was open to the Panel to express doubt about the claim, in light of the reports of Mr Donevski’s treating doctors. The Panel’s conclusion that there were unrelated left knee and lower back injuries was based on ‘the materials provided with the referral and the claimant’s long standing history of low back pain’.[30] This conclusion was open on the material before the Panel.
(g) If the Panel was mistaken about Mr Donevski’s bowel and bladder function, the mistake was not about a fundamental issue, and had no impact on its assessment of the degree of impairment arising from his back and knee injuries.
(h) The Panel assessed Mr Donevski’s right and left lower extremities in accordance with the AMA Guides, as it was required to do by s 28LH of the Wrongs Act. The Panel did not find that there was nothing wrong with Mr Donevski’s knees. It found that he had suffered an aggravation of degenerative changes in each knee, with residual knee dysfunction after surgery. Accordingly, the Panel’s assessment in accordance with the AMA Guides included an assessment of ‘the appropriate whole person impairment attributable to’, in the right knee, ‘a partial right medial meniscectomy’ and, in the left knee, ‘a partial medial and lateral meniscectomy’. The Panel accepted that Mr Donevski injured his knees in the trolley incident, and took those injuries into account in assessing his degree of impairment.
[30]Reasons, 8.
I do not accept that the Panel disregarded Mr Donevski’s answers during the examination in any material respect, or made a mistake of fact about any fundamental issue.
Was the Panel’s determination inconsistent with the previous Panel’s opinion?
Coincidentally, a differently constituted Medical Panel examined Mr Donevski within a few months of the trolley incident, in relation to medical questions referred for opinion under s 45(1)(b) of the Accident Compensation Act 1985 (Vic). That referral concerned a claim for compensation for injuries Mr Donevski suffered in accidents at work in 1988 and 1989, when he was employed as a machine operator by Fibre Containers Pty Ltd. The first Panel found that those injuries had all resolved, and that Mr Donevski no longer had any physical medical conditions relevant to his employment with Fibre Containers.
Mr Donevski pointed out that the first Panel had assessed his impairment relevant to his claimed neck, back and right leg injuries to be 0%. He argued that this was inconsistent with the second Panel’s finding that he had impairment from an unrelated injury. I understood this argument to be that, since the first Panel had found that there was nothing wrong with him before the trolley incident, it was illogical and unreasonable for the second Panel to have found that he had a pre-existing impairment.
The first Panel did not, in fact, find that there was nothing wrong with Mr Donevski before January 2014. To the contrary, the first Panel considered that Mr Donevski was ‘suffering from wide spread pain symptoms in the setting of age related degenerative changes of the cervical and lumbosacral spines’. It also noted long standing shoulder symptoms following a motor vehicle accident in 2001, for which Mr Donevski had had a series of injections over the previous several years that provided only short term relief. Its assessment that he had no impairment was confined to impairment resulting from the soft tissue injuries he suffered at work in 1988 and 1989, which the first Panel found had resolved by the time it examined him in March 2014.
There was no inconsistency between the first Panel’s opinion in 2014 and the determination of the second Panel in December 2017.
Did the Panel wrongly disregard the claimed shoulder injuries?
Mr Donevski said that he also hurt his shoulders while holding the trolley on the travelator on 18 January 2014. He said at the hearing that he told the Panel he had shoulder injuries, but the Panel said they were not going to look at his shoulders. He submitted that the Panel should have taken his shoulder injuries into account in assessing his degree of impairment.
I accept that Mr Donevski complained about pain in his shoulders immediately following the trolley incident. He wrote to Woolworths on 10 February 2014 about the incident. In that letter he said:
I was in pain and I went to see the doctor. I got examined and had some tests done such as an MRI. The results confirmed that I did sustain injuries to my legs, back and shoulder which are currently being investigated. At the moment I am seeing my general practitioner and a specialist.
In addition, the Medical Panel that examined Mr Donevski in March 2014 noted that he said his left shoulder symptoms had worsened since the trolley incident. It appears from the first Panel’s reasons that Mr Donevski had been treated for pain in his shoulders since his motor vehicle accident in 2001. This is consistent with Dr Stockman’s report of 28 June 2001, and with Mr Donevski’s statement at the hearing that he had a cortisone injection in his shoulder on 9 January 2014.
All this may be accepted, but the question is whether the Panel was wrong to disregard Mr Donevski’s claimed shoulder injuries in assessing his level of impairment. I do not think that it was. The Panel was asked, in the referral from Woolworths, whether the degree of impairment resulting from the physical injury to Mr Donevski alleged in the claim satisfied the threshold level. The details of the alleged injury given in the referral form were:
Injury to both knees.
Injury to back.
The details of injury that Woolworths set out in the referral form reflect both the certificate of assessment given by Professor Myers in February 2017 and the particulars of injury that were provided by Mr Donevski’s solicitors in their letter to Woolworths of 18 July 2017. That letter alleged injuries to ‘both knees and lower back’. It did not mention any shoulder injury.
The Panel assessed the degree of impairment arising from the injuries that Mr Donevski, through his solicitors, claimed to have suffered to his knees and lower back. For whatever reason, the pain that Mr Donevski suffered in his shoulders soon after the trolley incident did not feature in the injuries he claimed to be suffering three years later.
The Panel addressed the question it was asked, in relation to the injuries claimed. It was right to exclude Mr Donevski’s claimed shoulder injuries from its consideration.
Were Dr Stockman’s reports irrelevant?
The Panel was provided with three reports of Dr Alex Stockman, rheumatologist, dated 28 June 2001, 1 April 2008 and 12 April 2012. It referred to Dr Stockman’s reports in its Reasons.[31]
[31]Reasons, 8.
Mr Donevski argued that Dr Stockman’s reports were not about the injuries he suffered as a result of his mishap with the shopping trolley in 2014. He said that Dr Stockman had ‘no idea about this accident’, unlike the two doctors who had seen him after 2014, Dr Glowinski and Professor Myers. Mr Donevski submitted that, if the Panel had wanted a report from Dr Stockman, they should have arranged for Dr Stockman to see him and provide an up to date report. He submitted that the reports from Dr Stockman had nothing to do with his 2014 injuries.
Obviously, each of Dr Stockman’s reports was written before the trolley incident in January 2014, and contained no information about the nature and extent of injuries sustained as a result of that incident. However, the Panel did not refer to the reports for that purpose. It referred to Dr Stockman’s reports in the context of considering whether Mr Donevski had an unrelated impairment. This is plain from the Panel’s Reasons, in which the paragraph about Dr Stockman’s reports appears in the middle of the Panel’s discussion of unrelated impairment.
The Panel was obliged, under s 28LL(3) of the Wrongs Act, to disregard ‘impairments from unrelated injuries or causes’ in making an assessment. In determining whether there was any such impairment, it could have regard to reports of a rheumatologist who saw Mr Donevski in 2001 in relation to ‘longstanding neck, left shoulder and low back pain’ and in 2012 for ‘pain in the medial aspect of the left thigh, knee and lower leg’.
Dr Stockman’s reports were relevant to the Panel’s assessment.
Was the Panel procedurally unfair?
As already noted, Mr Donevski’s submission in relation to his procedural fairness ground was that ‘the panel failed to have a reasonable and a fair opinion to the plaintiff. They did not consider medical reports, MRI scans, treatment, operations and any of my answers, they used material that is out of date and applied reports that do not relate to the injuries sustained.’ He did not add to that in the submissions he made at the hearing, other than to emphasise that his general practitioner’s notes contained ‘everything about me’.
This was not really a complaint that the Panel had been procedurally unfair in the legal sense.[32] It was mainly a reiteration of Mr Donevski’s complaints that the Panel had made its determination without considering relevant material and with regard to irrelevant material. I have already considered these complaints, and have found that the Panel considered current medical reports from Mr Donevski’s treating doctors,[33] did not disregard Mr Donevski’s answers,[34] and did not have regard to irrelevant material in relation to Dr Stockman’s reports.[35] I deal with the complaint that the Panel’s opinion was not reasonable under the next heading.
[32]Kioa v West (1985) 159 CLR 550, 584–5 (Mason J).
[33]See [12]–[15] above.
[34]See [16]–[26] above.
[35]See [38]–[42] above.
Was the Panel’s determination legally unreasonable?
That leaves the ground of legal unreasonableness raised in the originating motion. Mr Donevski did not address this ground in his written submission, and did not say anything further about it at the hearing. For the reasons I have already given, there is no basis to conclude that the Panel’s determination was legally unreasonable.[36]
[36]Assuming this ground of review is available in relation to a determination by a Medical Panel: see Ryan v The Grange at Wodonga [2015] VSCA 17, [82]–[100] (Neave JA, Santamaria JA and Ginnane AJA agreeing).
I understand that Mr Donevski thinks that the Panel’s determination was unreasonable because he does, in fact, have problems with his knees. In circumstances where he has had three surgeries on his knees, and his doctors are recommending further surgery,[37] he asks how the Panel could find that there is nothing wrong there.
[37]Noted at Reasons, 4: ‘The claimant told the Panel he was seen by Mr John Clifford, orthopaedic surgeon, who suggested partial right knee replacement.’
As I have said, the Panel did not find that there is nothing wrong with his knees. It accepted that he had injured his knees in the trolley incident and that he had residual dysfunction after surgery in both knees. It also found impairment resulting from an unrelated injury to Mr Donevski’s left knee in 2012. Disregarding that impairment, as it had to do,[38] the Panel’s assessment was that the impairment resulting from his injuries was below the threshold level. That assessment was open on the information it had, and was within the scope of the Panel’s authority to determine medical questions under Part VBA of the Wrongs Act.
[38]Wrongs Act, s 28LL(3).
Disposition
The proceeding must be dismissed. I will hear the parties on the question of costs.
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