Emmelmann v Thomson Geer Services Pty Ltd
[2020] VSC 801
•1 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02655
| ANNA-LOUISA EMMELMANN | Plaintiff |
| v | |
| THOMSON GEER SERVICES PTY LTD | First Defendant |
| and | |
| DR JACK OWCZAREK | Second Defendant |
| and | |
| DR ROY KARNA | Third Defendant |
| and | |
| ASSOCIATE PROFESSOR MICHAEL MURPHY | Fourth Defendant |
| and | |
| DR JOHN G KING | Fifth Defendant |
| and | |
| DR PETER BRAUN | Sixth Defendant |
| and | |
| CONVENOR OF MEDICAL PANELS | Seventh Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2020 |
DATE OF JUDGMENT: | 1 December 2020 |
CASE MAY BE CITED AS: | Emmelmann v Thomson Geer Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 801 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel failed to answer question asked – Where first question asked whether plaintiff suffered from any medical condition and second question asked whether the medical condition was related to the relevant injury – Where medical panel accepted that plaintiff suffered from pain – Where medical panel answered that plaintiff did not suffer from a medical condition – Medical panel failed to answer question asked – Workplace Injury Rehabilitation and Compensation Act2013, s 3 – Calleja v Franet Pty Ltd [2000] VSC 339, considered – Isuzu General Motors Australia v Jordon (2002) 2 VR 212, applied – Kakae v Wetspot Consolidated Pty Ltd [2016] VSC 271, distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | A G Uren QC with S Dawson | Zaparas Lawyers |
| For the First Defendant | M Fleming QC with R Kumar | Hall & Wilcox |
HIS HONOUR
The plaintiff, Anna-Louisa Emmelmann, commenced employment as a legal secretary with the first defendant, Thomson Geer Services Pty Ltd, on 30 September 2013.
On 4 September 2015, the plaintiff made a WorkCover injury claim alleging that she suffered a back injury throughout the course of her employment with the first defendant. Liability was accepted and the plaintiff commenced receiving payments for medical and like expenses.
On 23 May 2018, the plaintiff made an application to Worksafe Victoria under s 328(4) of the Workplace Injury Rehabilitation Compensation Act 2013 (WIRCA) for a certificate consenting to her bringing proceedings against the first defendant for permanent serious impairment or loss of a body function of her spine and a permanent severe mental or behavioural disturbance or disorder suffered in the course of her employment and caused by the first defendant’s negligence or breach of duty.
In support of her application, the plaintiff deposed that she began to experience pain in her low to mid back in about June 2015 when, as part of her work for the first defendant, she was required to engage in activities relating to the archiving of files associated with the first defendant moving offices. This work involved repetitive twisting, lifting, bending and carrying of files and heavy boxes full of archived files. The plaintiff deposed that she has continued to experience regular and daily pain in her mid to low back.
Worksafe Victoria rejected the plaintiff’s application on 24 September 2018 on the ground that it was not satisfied that the plaintiff’s injury was a serious injury.
On 27 September 2018, the plaintiff issued an originating motion in the County Court in which she sought the Court’s leave, pursuant to s 335 of the WIRCA, to commence a proceeding against the Victorian WorkCover Authority for pain and suffering damages for her injuries. On 31 January 2019, the County Court referred certain medical questions to a medical panel for determination pursuant to s 274(1)(b) of WIRCA (the referral). The second to sixth defendants comprise the medical panel which was convened to answer these questions (the Panel).
On 16 April 2019, the Panel delivered its opinion and written reasons for opinion (the reasons). The Panel determined that there was ‘no physical medical condition’ of the plaintiff’s spine and no psychiatric or abnormal psychological condition of the plaintiff’s mind.
The plaintiff now seeks judicial review to quash the Panel’s opinion.
The Panel’s opinion and reasons
The questions referred to the Panel and its opinion in respect of them were as follows:
Question 1. What is the nature of the medical condition/s of the Plaintiff’s:
(a) Spine;
(b) Mind?
Answer: In the Panel’s opinion:
(a) No physical medical condition;
(b) No psychiatric or abnormal psychological condition.
Question 2.Does any, and if so which, physical medical condition found in answer to Question 1(a) result from, or is it materially contributed to by, the spinal injury suffered in the course of [the plaintiff’s] employment with Thomson Geer Services Pty Ltd?
Answer:Not applicable.
Question 3.Does any, and if so which, medical condition of the Plaintiff’s mind found in answer to Question 2(b) (sic) result from, or is it materially contributed to by, the spinal injury suffered in the course of her employment with Thomson Geer Services Pty Ltd?
Answer:Not applicable.
The Panel’s reasons may be summarised as follows:
(a)In its introduction, the Panel identified ‘the dispute’ as being ‘about the relationship of Ms Emmelmann’s medical conditions of her spine and mind (if any) to her employment’ with the first defendant. The Panel summarised the position of the first defendant as follows:
The Defendant submits that Ms Emmelmann initially suffered a soft tissue injury to her lumbar spine in the course of her employment with Thomson Geer Lawyers, however this has since resolved, and any current physical condition of Ms Emmelmann’s lumbar spine is not related to employment. The Defendant also submits that there is no medical material which would confirm the presence of any psychiatric/psychological condition.
The Panel noted that the first defendant relied upon medical opinions of Dr Graham Brazenor, neurosurgeon and Dr Gale Curtis, orthopaedic surgeon.
(b)The Panel noted that the plaintiff disputed the defendant’s submission and relied upon the opinions of an orthopaedic surgeon, Associate Professor Miron Goldwasser who concluded that the plaintiff suffered a soft tissue injury to her lower back ‘and despite partial improvement in her condition she had some residual symptoms which included pain in her lower back and mild restriction of movement’. The Panel also noted that the plaintiff relied upon the opinion of her treating physiotherapist who stated that the plaintiff ‘was suffering from left-sided chronic lower back pain secondary to dysfunction in her left thoracic spinal muscles which was directly related to her initial workplace injury’.
(c)The Panel next set out the history provided by the plaintiff including in relation to pre-existing conditions, her pre-injury employment, the development of spine-related symptoms and treatment for the injury. The Panel referred to the plaintiff’s present symptoms including the existence of ‘localised, fluctuating pain in the left side of the upper lumbar area’, that she was occasionally woken up at night by the pain and that her pain was worse in the second half of the day.
(d)The Panel referred to the plaintiff’s reported limitations and functional capacity including various specific difficulties the plaintiff had because of lower back pain. The Panel set out the present treatment the plaintiff was receiving and her other medical history.
(e)The Panel then set out its examination findings and clinical observations, including by reference to medical imaging reports. The Panel concluded that no further investigations were required in order to assess the plaintiff’s physical condition and to answer the questions posed for consideration.
(f)The Panel’s analysis and conclusions were as follows (emphasis added):
Physical diagnosis
The Panel noted that Ms Emmelmann developed pain in her lumbar spine during the course of her employment with Thomson Geer Services in mid-2015 while undertaking physically demanding activities which included repetitive twisting, bending and heavy lifting. The Panel is of the opinion that Ms Emmelmann sustained a musculoligamentous strain injury to her lumbar spine while undertaking those activities.
While the Panel noted, that Ms Emmelmann has been complaining of ongoing and persisting symptoms related to her lower back since mid-2015, the Panel considered that its own examination of Ms Emmelmann did not reveal any clinical findings (such as dysmetria, muscle spasm or guarding or abnormal neurological findings in the lower extremities) which would support ongoing lumbar spine injury. … The Panel further considered that by its nature, any musculoligamentous strain injury to the lumbar spine, in the absence of any significant radiological findings, would be short lived and eventually resolve with or without treatment.
…
… The Panel further noted that its own examination of Ms Emmelmann did not reveal any clinical abnormalities in the cervical or thoracic spine or abnormal neurological findings in the upper and lower extremities. In addition, the Panel noted that imaging investigations of the cervical and lumbar spine did not reveal any significant abnormalities (except for loss of cervical lordosis and minor degenerative changes) and this did not support the existence of any ongoing cervical or thoracic spine injury.
The Medical Panel concluded that Ms Emmelmann suffered from a muscular ligamentous strain injury to her lumbar spine, however this injury has now resolved, and Ms Emmelmann is not currently suffering from any physical medical condition of her lumbar spine.
The Panel also concluded that Ms Emmelmann is not suffering from any physical medical condition of the cervical or thoracic spine.
(g)The Panel then set out its psychiatric assessment of the plaintiff, including her psychiatric history and mental state examination. The Panel concluded that the plaintiff:
… does not suffer from any psychiatric or abnormal psychological condition. From a psychiatric perspective alone, her response to the injury of 2015 is within the normal range.
Grounds of review
The plaintiff’s challenge was confined to the Panel’s opinion expressed in respect of question 1(a) by which the Panel was asked '[w]hat is the nature of the medical condition/s of the Plaintiff’s … [s]pine’? The Panel’s answer was ‘[n]o physical medical condition’.
The plaintiff relied on the following four grounds of review:
(a)On the findings and matters referred to in the reasons, it was not open to the Panel to be of the opinion that the plaintiff did not have:
(i)a medical condition of her spine; and/or
(ii)a physical medical condition of her spine,
on the ordinary meaning of those words, or on any other available meaning (ground one).
(b)In finding that the plaintiff did not have a physical medical condition of her spine, the Panel failed to have regard to the plaintiff’s spinal pain (ground two).
(c)The Panel asked itself the wrong question, and/or has not carried out the statutory task given to it by s 302 of WIRCA in that:
(i)it has mistaken, and not applied, the true meaning of the words ‘medical condition’ in the referral, or of the words ‘physical medical condition’ in its answer to question 1(a);
(ii)it has not answered the question put to it in the referral (ground three).
(d)The reasons failed to adequately disclose the Panel’s path of reasoning in concluding that there was no physical medical condition of the plaintiff’s spine at the time of its examination, or (if it did), in concluding that there was no medical condition of the plaintiff’s spine at the time of its examination (ground four).
The central controversy
The main controversy at the hearing of the plaintiff’s application concerned the merit of the first defendant’s principal response to the plaintiff’s case as to why the Panel’s opinion should be quashed. The gravamen of the first defendant’s response was that the plaintiff’s case rested on a fundamental misunderstanding about the Panel’s findings. The merit or otherwise of this contention is central to the resolution of all of the grounds of review relied on by the plaintiff.
The first defendant’s submissions
The proposition advanced by the first defendant was that the plaintiff’s grounds for review proceed from the false premise that the Panel was not just making a finding that there was ‘no physical medical condition’ relating to the plaintiff’s spinal injury, but that there was no physical or medical condition of the spine whatsoever. The first defendant submitted that the reasons in fact make clear that the Panel’s answer to question 1(a) was directed only to the identification of any spinal condition relevant to the plaintiff’s claimed injury.
This was said to be consistent with the definition of ‘medical question’ in s 3 of the WIRCA which includes ‘a question as to the nature of a worker’s medical condition relevant to an injury or alleged injury’. The first defendant also referred to the observations by Phillips JA in Isuzu General Motors Australia v Jordon that a question referred to a medical panel must be relevant to the litigation before the Court.[1] His Honour continued:[2]
In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the Court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the courts, but nevertheless it is the court which, in the end, must adopt and apply the opinion in the determination of the litigation before it.
[1]Isuzu General Motors Australia v Jordon (2002) 2 VR 212, 218 [13].
[2]Ibid (citations omitted).
It was submitted that the relevant dispute in the present case was whether the plaintiff’s compensable injury and all its consequences, including pain, had resolved. This was submitted to be evident from the parties’ submissions to the Panel. The WorkCover Authority’s submissions to the Panel commenced with the proposition that:
…[t]he Plaintiff initially suffered a soft tissue injury to her lumbar spine in the course of her employment with Thomson Geer Lawyers, which has since resolved with the passage of time. As such, any current physical condition of the Plaintiff’s lumbar spine is not related to this employment.
The Authority then acknowledged that the plaintiff ‘presently suffers from pain symptoms in her thoracic spine’ and submitted that the Panel would form its own opinion ‘as to whether these symptoms in any way relate to the Plaintiff’s employment … and whether any current physical condition of the Plaintiff’s spine is work-related’. The plaintiff’s submissions to the Panel likewise described the first defendant’s defence as being that the ‘plaintiff’s work-related injuries have resolved and that any ongoing symptoms are not work-related’.
The first defendant submitted that the manner in which the Panel introduced and framed the dispute in its reasons indicated that its understanding of the dispute was the same as the parties had formulated in their submissions.[3]
[3]See [10](a)-(b)] above.
The first defendant emphasised the following three findings made by the Panel:
(a) that the plaintiff ‘sustained a musculoligamentous strain injury to her lumbar spine while undertaking’ physically demanding activities of work;[4]
(b) that ‘by its nature, any musculoligamentous strain injury to the lumbar spine, in the absence of any significant radiological findings, would be short lived and eventually resolve with or without treatment’;[5] and
(c) that the plaintiff ‘suffered from a muscular ligamentous strain injury to the lumbar spine, however this injury has now resolved, and Ms Emmelmann is not currently suffering from any physical medical condition of her lumbar spine’.[6]
[4]See [10(f)] above.
[5]See [10(f)] above.
[6]See [10(f)] above.
The first defendant submitted that these findings were determinative of the dispute which had been referred to the Panel as described above. In substance, the Panel decided that, although the plaintiff had suffered a work-related physical injury, that injury had resolved, in that the pain and phenomena associated with it were no longer present. In light of the above findings and given the way in which the dispute had been framed, the Panel was entitled to answer question 1(a) by stating that the plaintiff had no physical medical condition. This answer must be understood as being directed only at whether the plaintiff had any compensable physical medical condition.
The first defendant emphasised that the dispute as framed by the parties before the Panel was whether the plaintiff had a compensable workplace injury which continued to have pain consequences, that is, whether the current pain consequences were a feature of or could be traced back to the admitted workplace injury. The Panel clearly answered that question by concluding that the plaintiff ‘suffered from a muscular ligamentous strain injury to her lumbar spine, however this injury has now resolved’ and that she was ‘not currently suffering from any physical medical condition of her lumbar spine’. It was therefore apparent that, although the Panel can be taken to have accepted the history and continuing experience of pain given by the plaintiff, it considered that the compensable injury which was the focus of the referral had resolved and that there were no contemporary consequences associated with it, such that any pain experienced by the plaintiff was not attributable to the injury.
The first defendant submitted that this analysis was consistent with and reflected the context in which the referral was made, namely, a statutory framework directed at compensable injuries. Essentially, the Panel was asked whether the plaintiff’s admitted compensable workplace injury and its symptoms had resolved. The Panel’s task was not to examine the pain experienced by the plaintiff which arose from non-compensable circumstances; it was not required to provide any explanation for non-compensable phenomena. Given its view that the plaintiff’s compensable injury had resolved and that there were no contemporary consequences such as pain associated with it, it was unnecessary for the Panel to seek to provide an explanation for the plaintiff’s ongoing complaints of pain. Although it would have been open to the Panel to have made observations about that matter, it was not required to do so in undertaking its statutory function.
The first defendant submitted that, given the Panel’s findings in relation to the dispute which the parties had framed for its consideration, it was apparent that the Panel would have come to a different conclusion in relation to question 1(a) if it believed that the pain experienced by the plaintiff was a continuing consequence of the injury she had suffered in her employment. In that scenario, the Panel would have found that the plaintiff continued to have pain symptoms referrable to the original musculoligamentous strain and that, as a consequence, that injury had not resolved and was continuing to have pain consequences.
Although question 1(a) did not refer to the plaintiff’s injuries or alleged injuries, the first defendant submitted that the Panel’s reasons and the way in which the dispute was framed made clear that the answer was to be understood as being directed to the identification of any spinal condition relevant to the claimed injury. If the Panel had understood that it was being asked to go beyond compensable injuries, it would have likely referred to the radiological abnormalities in the plaintiff’s lumbar spine as well any pre-existing injury.
The first defendant also noted that there was no suggestion in any of the submissions to the Panel, or in in the Panel’s reasons, that the plaintiff was suffering from any separately diagnosable pain condition, such as chronic pain disorder. Thus, although senior counsel for the first defendant accepted that pain was capable of being a physical condition, or alternatively a psychiatric condition, neither was proposed by the plaintiff before the Panel. What was contended for on behalf of the plaintiff in her submissions to the Panel, was that she was suffering from continuing pain symptoms of the original physical workplace injury. This was the essential context in which the Panel’s opinion that the plaintiff had ‘no physical medical condition’ was to be understood.
The first defendant relied on the judgments of Dixon and Starke JJ in Smith v Mann[7] which concerned the validity of a certificate issued by a medical board in relation to certain questions about the condition of a worker submitted under s 51 of the Workers’ Compensation Act 1926 (NSW). In its certificate, the board answered the questions posed, but also expressed its opinion on the question of causation. The Supreme Court of New South Wales held that the question of the cause of the worker’s condition did not come within the scope of the referred questions and therefore the Workers’ Compensation Commission was not bound by that part of the certificate. That holding was overturned by the High Court on appeal.
[7](1932) 47 CLR 426.
Justice Dixon (as he then was) observed that ‘the so-called “causes” of the man’s present state may form an inseverable part of the description of his “condition”’ and that:[8]
… it was intended to leave medical questions to the determination of medical men. The “condition” of a patient cannot be described except by reference to the character of his disease, and the character of his disease may be and perhaps more often than not is, determined or conditioned by its origin.
The medical certificate issued by the medical board ‘should be read in relation to the question which has arisen and the circumstances of the case together with such evidence as may be needed in an explanation of technical expressions’.[9]
[8]Ibid 451.
[9]Smith v Mann (n 7) 452.
To similar effect, Starke J stated:[10]
Now it seems to me that ‘it is impossible,’ to use the language of Farwell L.J. in Haylett v Vigor & Co[11] ‘to have the consequence without the cause, which is the gist of the liability.’ The Medical Board is not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act.
[10]Smith v Mann (n 7) 444.
[11](1908) 2 KB 837, 841.
Smith v Mann was applied by Incerti J in Kakae v Wetspot Consolidated Pty Ltd.[12] Her Honour considered a complaint that a medical panel had impermissibly given consideration to causation. In answer to the question, ‘What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed neck, back, shoulder injuries?’ the medical panel relevantly stated:[13]
In the Panel’s opinion, the worker is suffering from mild persisting cervical degenerative disc disease, with referred pain to the shoulders, but without radiculopathy, which is not attributable to any claimed neck injury….
[12][2016] VSC 271 (‘Kakae’).
[13]Ibid [13].
Justice Incerti rejected the complaint that the medical panel had impermissibly given consideration to causation. Her Honour’s analysis and conclusion, which the first defendant submitted was of significance to the present matter, was as follows:[14]
[14]Kakae (n 12) [51]–[53] (citations omitted).
In reaching its decision, the Panel could not consider the medical questions in isolation. Rather, as per the approach in Masters, the Panel had to take into account the statutory definitions of the relevant terms, such as current work capacity, incapacity, injury and suitable employment.
The Panel’s response to the first medical question addressed the issue of whether there was any medical condition relevant to the injury of 16 August 2013. It did so by identifying the nature of the plaintiff’s medical condition which in its opinion was not attributable to any claimed injury. The Panel would have quite simply said that there was no medical condition that was relevant to the claimed injuries. However, for the reasons set out below, I do not consider the Panel’s more fulsome response to the first medical question to have constituted an error of law.
The Panel was not responding to the first medical question in a vacuum. As Starke J observed in Smith, a medical panel is ‘not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act’, and it is therefore impossible ‘to have the consequence without the cause’.
The Panel’s Reasons demonstrate that the Panel formed the view that the plaintiff had a pre-existing cervical degenerative disc disease, which had been exacerbated by the incident on 16 August 2013, but that the exacerbation had resolved.
The first defendant submitted that the last paragraph above showed that the factual setting of Kakae was very similar to the present case. Although the question referred to the medical panel was different, the approach adopted by Incerti J was submitted to be instructive of the principle that questions referred to a medical panel must be construed in light of the context of a particular dispute and that a medical panel does not certify its opinion in a vacuum, but in connection with contested claims to compensation. Thus, in an appropriate case, it was proper for a medical panel to restrict its response to referred questions to compensable injuries and their consequences. In this matter, it was therefore not inappropriate for the Panel to interpret and answer question 1(a) in the way it did.
In her judgment in Kakae, Incerti J also relied on the judgment of Beach J (as he then was) in Ventrice v Riva Plaster Pty Ltd.[15]k In that case, a medical panel was asked to answer the following question: ‘What is the nature of the plaintiff’s medical condition relevant to the back injury…alleged in paragraph 6 of the statement of claim (and excluding any mental or behavioural disturbance)?’[16] The medical panel concluded that the worker was ‘suffering from widespread but mild, constitutional degenerative disc disease of the whole spine, with referred symptoms to the right leg and to the right shoulder girdle and arm’.[17] The Panel also found that ‘on balance, the nature of the worker’s constitutional degenerative condition of the whole spine has not been affected by his employment after 20.10.1999 in any way’.[18] The plaintiff’s counsel submitted that the medical panel’s opinion that the plaintiff was not suffering from any medical condition relevant to the alleged injuries could not be correct ‘as a matter of plain English’.[19] Justice Beach rejected this submission, explaining that:[20]
… Counsel’s submission fails to take account of the fact that the reasons are those of a tribunal and not a judicial body and fails to take account of the requirement to read the reasons in context. Properly understood, the Medical Panel’s conclusion that ‘the plaintiff is not suffering from any medical condition relevant to the alleged injuries’ is no more than a statement that the degenerative condition from which the plaintiff suffers was not caused by post 20 October 1999 work; nor was the plaintiff suffering from a work related injury which was a recurrence, aggravation, acceleration, exacerbation or deterioration of that degenerative condition.
The first defendant submitted that these observations underlined the importance of properly analysing the reasons of a medical panel and the need to construe questions referred to a medical panel in context. So much may readily be accepted.
[15][2008] VSC 415 (‘Ventrice’).
[16]Ventrice (n 15) [3].
[17]Ventrice (n 15) [11].
[18]Ventrice (n 15) [11].
[19]Ventrice (n 15) [15].
[20]Ventrice (n 15) [15].
The first defendant further submitted that, even if the Panel had interpreted question 1(a) in the way presumed by the plaintiff, the Panel made clear in its opinion in respect of question 2 that the plaintiff no longer suffered from any compensable injury to her spine. It was submitted that none of the plaintiff’s grounds of review directly impugn the Panel’s central finding that she suffered from a work-related injury to her lumbar spine which had now resolved. The plaintiff’s complaints were therefore submitted to be a collateral attack on the Panel’s opinion in order for a differently constituted medical panel to be convened and to reconsider that central issue.
Consideration
The ‘function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion’.[21] In considering the first defendant’s submissions outlined above and more generally the plaintiff’s grounds of review, it is therefore essential to focus on the terms of the questions which the Panel was actually asked to consider.
[21]WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [47] (‘Wingfoot’).
By question 1(a), the Panel was asked ‘What is the nature of the medical condition/s of the plaintiff’s spine?’ By question 2, the Panel was asked whether any physical medical condition found in answer to question 1(a) resulted from, or is materially contributed to by, the spinal injuries suffered by the plaintiff in the course of her employment with the first defendant. It is apparent that, whereas question 1(a) is cast in broad terms and invites a description of the nature of the medical condition of the plaintiff’s spine, question 2 is directed to the question of causation. Because the Panel considered that the plaintiff had ‘no physical medical condition’ in answering question 1(a), there was no occasion for it to answer the question of causation posited by question 2.
The first defendant’s contention that the plaintiff’s application is based on a fundamental misunderstanding about the Panel’s findings mischaracterises the plaintiff’s case. The grounds of review advanced by the plaintiff are not premised upon the proposition that, in answering question 1(a), the Panel was required to identify or describe every possible medical condition of the plaintiff’s spine. Senior counsel for the plaintiff accepted that, in answering question 1(a), the Panel was required to only direct itself to ‘relevant matters’.
As stated by Phillips JA in Isuzu General Motors Australia v Jordon,[22] what is relevant is determined by the nature of the litigation and the matters in issue in that litigation. In this case, the litigation in which the referral occurred was the plaintiff’s application for leave to commence a proceeding for damages for pain and suffering as a result of her injuries. It was this application for approval which was the context in which the Panel was requested to give its opinion about the nature of the medical condition of the plaintiff’s spine. It was that matter – not whether the plaintiff’s injury had resolved – which, properly directed, ought to have framed the Panel’s approach in answering question 1(a). This analysis is not altered when regard is had to the parties’ submission to the Panel. It is evident from those submissions that one of the matters which the parties considered was to be ascertained by the Panel was the ‘current physical condition of the Plaintiff’s lumbar spine’.
[22]See [15] above.
The application brought by the plaintiff for leave to commence a proceeding for pain and suffering damages was commenced after the rejection of the plaintiff’s application under s 328(4) of WIRCA for a certificate consenting to her bringing proceedings for permanent serious impairment or loss of a body function of her spine. In that application, the plaintiff relied solely upon consequences with respect to pain and suffering. As such, it is clear that pain was the essence of her case for serious injury approval. Further, as senior counsel for the first defendant acknowledged, it is clear from the reasons that the Panel received and accepted a history of pain from the plaintiff, including that the pain was continuing.
Despite this, in answer to question 1(a), the Panel opined that the plaintiff had no physical medical condition. As the first defendant submitted, the reasons make clear that the Panel reached this conclusion because it considered that the plaintiff’s musculoligamentous strain injury to her lumbar spine had resolved. In approaching the question in this way, the Panel proceeded from an unduly narrow conception of the meaning of the term ‘medical condition’ of the plaintiff’s spine in question 1(a).
The term ‘medical condition’ is not defined in the relevant legislative provisions. In Calleja vFranet Pty Ltd,[23] Ashley J observed that, in the context of paragraph (a) of the definition of ‘medical question’ in s 5 of the Accident Compensation Act 1985,[24] it should be understood as extending to physical and mental conditions.[25] No different approach should apply when the term is used in a general way in a question submitted to a medical panel. In that context, it bears its ordinary meaning, subject to a limitation of relevance of the type referred to by Phillips JA in Isuzu General Motors Australia v Jordon.[26] A person’s continuing experience of pain is capable of being described as a ‘medical condition’ within the ordinary meaning of that term.
[23]Calleja v Franet Pty Ltd [2000] VSC 339.
[24]This paragraph of the definition of ‘medical question’ now appears, in the same terms, in s 3 of WIRCA.
[25]Calleja v Franet Pty Ltd (n 23) [28].
[26](n 1).
That the Panel erred in adopting an unduly narrow approach to the meaning of the term ‘medical condition’ is also underlined by the fact that, in answer to question 1(b), the Panel found that the plaintiff had no psychiatric or abnormal psychological condition. It is apparent from this conclusion that the Panel did not consider the plaintiff’s accepted history of pain to be a manifestation of her mind. Presumably then, it would follow that the plaintiff’s experience and history of pain was a physical condition. In not so concluding, it is apparent that the Panel misdirected itself by in substance determining if there was an anatomical cause for the plaintiff’s accepted pain. That the Panel approached question 1(a) in this way is indicated by the following paragraph of the reasons which immediately preceded its conclusion that the plaintiff had suffered from a muscular ligamentous strain injury to her lumbar spine which had resolved and that she was not currently suffering from any physical medical condition of her lumbar spine:
[The Panel’s] own examination of Ms Emmelmann did not reveal any clinical abnormalities in the cervical or thoracic spine or abnormal neurological findings in the upper and lower extremities. In addition, the Panel noted that imaging investigations of the cervical and lumbar spine did not reveal any significant abnormalities (except for loss of cervical lordosis and minor degenerative changes) and this did not support the existence of any ongoing cervical or thoracic spine injury.
The Panel’s task in relation to question 1(a) was not to opine on the anatomical cause of the plaintiff’s pain. Furthermore and critically, unlike the question referred to the medical panel in Kakae,[27] question 1(a) contains no reference whatsoever to the plaintiff’s injury. Self-evidently, that is because the issue of material contribution of the plaintiff’s injury is separately addressed in question 2. This feature distinguishes Kakae from the present matter. Properly addressed, the two-stage way in which the questions in the referral were formulated made clear that the Panel was not being invited to ‘certify in the air’.
[27]See [28] above.
The Panel’s unduly narrow interpretation of the term ‘medical condition’ had significant consequences. In a report which was before the Panel and on which the first defendant relied, Dr Brazenor expressed the following opinion after reviewing the course of the plaintiff’s medical treatment and the various medical reports which had been obtained (emphasis added):
[The plaintiff] had pain in upper lumbar/left lower thoracic region when she first presented in June 2015, hence that pain, if it continues as Ms Emmelmann alleges, is directly related to her lifting and carrying duties in June 2015.
As submitted on behalf of the plaintiff, this opinion would clearly have warranted careful consideration by the Panel in considering the issue of material contribution raised by question 2. However, because of the unduly narrow interpretation given by the Panel to the term ‘medical condition’ which led the Panel to conclude that the plaintiff had ‘no physical medical condition’ of the spine, the question did not arise.
The submission that the dispute which the Panel properly addressed in answering question 1(a) was whether the plaintiff’s compensable injury and all its consequences, including pain, had resolved, wrongly conflates the different subject matters with which question 1(a) and 2 are concerned. Whereas the apparent object of question 1(a) was to invite the Panel to identify the relevant condition of the plaintiff’s spine, question 2 sought the Panel’s opinion about whether that condition was caused by the spinal injury suffered by the plaintiff in the course of her employment. On the approach urged on the Court by the first defendant, question 2 would appear to have little, if any, utility. The Panel’s function was to give its opinion in relation to each of the separate questions submitted to it, not to, in effect, respond to its own blended conception of the underlying dispute.
For the above reasons, I reject the first defendant’s principal response to the plaintiff’s case.
Conclusion and grounds of review
It follows from the above analysis that the plaintiff must succeed in relation to ground 3. In purporting to answer question 1(a), the Panel erred by asking itself the wrong question and by mistaking and not applying the true meaning of the words ‘medical condition’ in the referral. To the extent that a medical panel answers a question not asked of it, it acts outside its jurisdiction.[28]
[28]Silver Top Taxi Service Ltd v Fish [2006] VSC 448, [25]. See also Johnston v Department of Health and Human Services [2019] VSC 431, [36]–[46].
Although the Panel was plainly aware of the plaintiff’s spinal pain, by misdirecting itself in the way just described, it failed to have regard to that matter in answering question 1(a), being a matter to which it was required to have regard in the context of the referral. The plaintiff therefore must also succeed in relation to ground 2.
By ground 1, the plaintiff contends that it was not open to the Panel on the material before it to have formed the opinion that the plaintiff did not have a medical condition of the spine, or a physical medical condition of her spine. It was submitted that a medical panel which decides a question of fact when there is no evidence in support of the finding makes an error of law. There will be such an error if a decision maker’s conclusion depends on a finding of fact that was simply not open to it on the evidence, or other relevant material, in which case the conclusion was not open to it. In support of these propositions, the plaintiff referred to a number of authorities dealing with the ‘no evidence’ ground including Morrison v Melbourne Pathology Pty Ltd[29] in the context of an opinion of a medical panel and the recent restatement of principle by the Court of Appeal of the Supreme Court of New South Wales in Ballina Shire Council v Knapp.[30]
[29][2018] VSC 477, [42]–[48]
[30][2019] NSWCA 146, [38].
The first defendant placed emphasis on Phillips JA’s statement in S v Crimes Compensation Tribunal that, ‘in a case where a tribunal is authorised…to act upon its own expertise, it may be more difficult to show that the finding was not open’.[31] Because the identification or diagnosis of a medical condition is a matter wholly within the expertise of the Panel, it was submitted that the Court should not easily accept that a finding on such matters was not open. The first defendant also referred to the following summary of principle by Kenny J in SZNKV v Minister for Immigration and Citizenship:[32]
… a no evidence ground for jurisdictional error cannot succeed unless there is no evidentiary basis at all for the challenged finding. A no evidence challenge will fail where there is even a slight evidentiary basis to support the Tribunal’s finding: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19] and WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]–[12].
[31](1998) 1 VR 83, 90.
[32][2010] FCA 56.
The above principles are not in dispute, however, they do not assist the first defendant in light of the Panel’s findings and my analysis and conclusions in respect of the principal controversy in the proceeding. In particular, given that the Panel:
(a) must be taken to have accepted the plaintiff’s history and contemporary experience of spinal pain; and
(b) found that the plaintiff did not suffer from any psychiatric or abnormal psychological condition,
once it is acknowledged that ongoing complaints of spinal pain are within the ordinary meaning of the term ‘medical condition’ referred to in question 1(a) of the referral as I have found, it was not possible, on the evidence before the Panel, for the Panel to conclude that the plaintiff had no physical medical condition of the spine. In other words, once the question of interpretation of the words ‘medical condition’ is resolved in this way, there is nothing in the reasons or in the material before the Panel supportive of the proposition that the plaintiff had no physical medical condition of the spine.
Ground 1 is made out.
As to ground 4 (inadequacy of reasons), the Panel was required to ‘explain the actual path of reasoning by which [it] in fact arrived at the opinion [it] in fact formed on the medical question referred to it’.[33] It was required to ‘explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law’.[34]
[33]Wingfoot (n 21) 501 [55].
[34]Wingfoot (n 21) 501 [55].
As I have explained, the actual path of reasoning followed by the Panel in reaching its opinion was sufficiently clear from the reasons to enable me to identify the errors of law to which I have referred above. Ground 4 is accordingly not made out.
Disposition
The errors I have found in the opinion of the Panel may be corrected by an order in the nature of certiorari. The first defendant submits, however that, in the event jurisdictional error is found, I should decline relief on discretionary grounds because a grant of relief would not make any difference to the plaintiff’s serious injury application on the basis that the plaintiff’s complaints were a collateral attack on the opinion.[35] In particular, the first defendant submitted that there was no direct challenge to the Panel’s central finding that there had been muscular ligamentous strain injury to her lumbar spine which had resolved.
[35]See [32] above.
I do not accept this submission. The Panel’s findings in relation to the resolution of the plaintiff’s muscular ligamentous strain injury were made in circumstances where it conflated the issues raised by question 1(a) and 2 and erred in its interpretation of the term ‘medical condition’. Further, the Panel did not explicitly state that the pain experienced by the plaintiff was not connected to her workplace injury. As I have noted,[36] in Dr Brazenor’s opinion, there was a direct relationship between the plaintiff’s injury and her pain if it continued as she alleged.
[36]See [42] above.
The plaintiff submitted that the questions should be remitted to a new panel for two reasons. First, the nature and significance of the error was said to militate against remitting the questions to the Panel that made the error; the Panel had not ‘merely left something out’. Secondly, it was submitted that remitting the questions to the Panel may be attended with administrative problems, as its members may be busy with other work, on holiday, or not currently contracted to undertake medical panel work.
The first defendant submitted that the questions should be remitted to the Panel, or alternatively, I should not specify that the questions be referred to a differently constituted panel.
Where a medical panel is found to have erred, there is no universal rule as to whether the matter should be remitted to the original panel, a differently constituted panel, or the Convenor of Medical Panels, with or without a recommendation as to which panel should reconsider the matter.[37] The relief that is appropriate in any particular case must depend on all the circumstances of the case.[38] However, it is generally accepted that a matter should be remitted to a differently constituted decision-maker where there is some feature of the conduct, or reasons of the primary decision-maker, which would render it unfair to the successful party, or give the appearance of unfairness to that party, if the matter was remitted to the same decision-maker.[39] There is no such feature in this matter. Further, any administrative difficulties or restrictions on availability will be able to be accommodated by ordering that the matter be remitted to the Convenor with a recommendation that, if practicable, the questions be determined by the original Panel.
[37]Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718, [54].
[38]Davidson v Fish [2008] VSC 32, [17].
[39]Vegco Pty Ltd v Gibbons [2008] VSC 383, [33] (Kyrou JA). See also Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [52]–[56].
The Court will make the following orders:
(a) An order in the nature of certiorari quashing the opinion of the medical panel comprising the second, third, fourth, fifth and sixth defendants certified in writing and dated 18 April 2019.
(b) An order that the questions contained in the referral made on 31 January 2019 be remitted to the Convenor of the Medical Panels for redetermination according to law, with a recommendation that, if practicable, they be determined by the original Panel.
I will hear the parties on costs.
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