Gjortsvang v Bayview Balustrading Australia Pty Ltd
[2022] VSC 751
•9 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04047
| DANIEL GJORTSVANG | Plaintiff |
| v | |
| BAYVIEW BALUSTRADING AUSTRALIA PTY LTD | First Defendant |
| and | |
| DR PETER MILLINGTON | Second Defendant |
| and | |
| DR CHRISTINE KOTSIOS | Third Defendant |
| and | |
| DR JOHN COLMAN | Fourth Defendant |
| and | |
| MR JOHN GRIFFITHS | Fifth Defendant |
| and | |
| ASSOCIATE PROFESSOR PETER GIBBONS | Sixth Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 November 2022 |
DATE OF JUDGMENT: | 9 December 2022 |
CASE MAY BE CITED AS: | Gjortsvang v Bayview Balustrading Australia Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 751 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Medical questions in respect of multiple medical conditions and related matters – Panel found symptomatic osteoarthritis of the left knee, operatively treated – Condition of the left knee not found to ‘result from’ nor be ‘materially contributed to’ by injury in workplace incident on 16 July 2018 – Claimed failure of the panel to apply the extended definition of ‘injury’ – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3, definition of ‘injury’ – Maimonis v Bourke & Ors [2019] VSCA 302 – Claimed legal unreasonableness or irrationality – Sidiqi v Kotsios & Ors [2021] VSCA 187 – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Kenneally | Zaparas Lawyers |
| For the First Defendant | R Kumar | TG Legal and Technology |
| For the Second to Sixth Defendants | No appearance | DLA Piper |
HIS HONOUR:
A Introduction
The plaintiff was born on 16 October 1981 and is now 41 years of age.
In March 2016, the plaintiff commenced employment with the defendant as a sheet metal worker. His job was to fabricate balustrades and install them on building sites.
Prior to July 2018, the plaintiff had a significant history of bilateral knee pain and investigation for which he had been prescribed opioid analgesics and also taken anti-inflammatories. In particular, in February 2018, Robert Steele, treating orthopaedic surgeon, reported that –
He has had MRI scans performed of both knees and they are consistent with significant degenerative disease of the medial and patellofemoral compartments.
The single most important thing Daniel can do for his knees is to reduce his weight. I would suggest that he see a bariatric surgeon for consideration of lap band or sleeve gastrectomy.[1]
[1]Joint Court Book (‘JCB’) 331.
In July 2018, the plaintiff had a few days holiday in New Zealand. After returning, on 13 July 2018, the plaintiff attended his general practitioner, who noted, among other things –
Had a jarring on the knee after missing a step on holiday, now L knee is painful and slightly swollen.[2]
[2]JCB400.
On 16 July 2018, in the course of his employment, the plaintiff hyperextended his left knee when stepping down at the front of a house (‘the incident’). Later that day, he attended a different general practitioner at the same clinic who noted, among other things –
Lt Knee pain
Cracking sound with Hyperextension
…
Examination:
Lt knee: Mildly tender– no swelling– no bruising– no scars– no wounds– no signs of inflammation
ROM: normal[3]
[3]JCB399.
On 27 July 2018, the plaintiff made a claim for workers’ compensation, which was accepted.
The plaintiff underwent surgery to his left knee on 22 August 2018 and subsequently made unsuccessful attempts to return to suitable duties.
On about 26 June 2020, the plaintiff lodged an application pursuant to s 328(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’) seeking consent to commence proceedings for common law damages. That application was rejected.
On 20 October 2020, the plaintiff commenced proceedings in the County Court of Victoria seeking leave to commence proceedings for common law damages.
On 10 June 2021, pursuant to s 274(1)(b) of the Act, his Honour Judge Wischusen referred seven questions to a medical panel.
The panel was constituted by two psychiatrists, a gastroenterologist, an orthopaedic surgeon and a musculoskeletal surgeon. The plaintiff attended for examinations on 9 August and 1 September 2021.
On 10 September 2021, the panel delivered its certificate of opinion and reasons.[4] Relevantly, the certificate of opinion states –
[4]JCB485-508.
Q.1 What is the nature of any medical condition of Plaintiff’s:
(a) Left knee?
(b) Right knee?
(c) Spine?
(d) Gastrointestinal system?
(e) Mind?
Answer: (a) The Panel is of the opinion that the Plaintiff is suffering from symptomatic osteoarthritis in an operatively treated left knee.
(b) The Panel is of the opinion that the Plaintiff is suffering from symptomatic osteoarthritis in the right knee.
(c) The Panel is of the opinion that the Plaintiff is suffering from symptomatic lower lumbar degenerative changes without radiculopathy.
(d) The Panel is [of] the opinion that the Plaintiff is suffering from minimal symptoms of gastro-oesophageal reflux.
(e) The Panel is of the opinion that the Plaintiff is suffering from a major depressive disorder with features of anxiety.
Q.2 Was the incident on 16 July 2018 a significant contributing factor to any aggravation, acceleration, exacerbation or deterioration of any pre-existing medical condition to the Plaintiff’s left knee?
Answer: No.
Q.3 Does any medical condition of the Plaintiff’s left knee as identified by the Medical Panel continue to result from, or is it materially contributed to by, any injury to the left knee sustained in the incident on 16 July 2018?
Answer: No.[5]
[5]JCB485-486.
In substance, the panel was of the opinion that the plaintiff was suffering from symptomatic osteoarthritis of the left knee, treated operatively, but that the incident had not been a significant contributing factor to any aggravation, acceleration, exacerbation or deterioration of his condition.
B The panel’s reasons
As I have noted, the panel’s certificate of opinion was accompanied by detailed written reasons.
The panel noted the agreed facts, which included the following –
Prior to 16 July 2018, the Plaintiff has seen his local general practitioners at the Officer Medical Centre for knee pain and symptoms on several occasions, including but not limited to:
a.Left knee discomfort whilst working in a security role on 16 January 2010. It is noted that the Plaintiff had two months off his security work.
b.On 8 March 2016 (shortly before he commenced employment with the employer) the Plaintiff was referred for x-rays of both knees.
c. On 26 July 2017 he visited Dr Van Rheede who recorded “R knee old trauma, now gets locked at times, cannot bend past 90deg at times”. The Plaintiff underwent an x-ray and ultrasound, the results of which are included in the Panel’s material. Referral to weight loss and physiotherapy was made on 5 August by Dr Van Rheede. Norspan patches were prescribed.
d. On 23 September 2017, the Plaintiff attended his GP as he had fractured bones in his left foot at work and was in a moon boot.
e. On 7 December 2017 the Plaintiff saw GP Dr Van Rheede, giving a history that he “Tripped and fell heavily at work skipping last step carrying heavy load hyperextending both knees”. Dr Van Rheede suspected meniscal damage in both knees. The Plaintiff had an MRI in December of 2017 a copy of which is included in the Panel’s material. He was given Endone, Voltaren and Duromine and again referred to Mr Steele. GP Dr Van Rheede noted in early March 2018 that Mr Steele had provided feedback that:
both knees are excessively worn in their medial and lateral compartments and due to body weight of 170kg and BMI of 47 signifying morbid obesity, any surgical procedure to knees has excessive risks and unlikely to have a favorable outcome. Due to his asthma, NSAIDS are not feasible and cannot be used for their likely therapeutic benefit. The only approach likely to help is significant weight loss through bariatric surgery. Health is at risk and may weigh enough to have this done through the public system.
f. On 18 April 2018 Dr Van Rheede noted that the right knee was the most “problematic”.
g. The Plaintiff continued to be prescribed various pain medications for his knees in late 2017 and early 2018 including Celebrex, Targin, Palexia, Voltaren, Endone, and Norspan.
h.From 9 July 2018 to 12 July 2018 the Plaintiff had annual leave and went to New Zealand. On 13 July 2018 the Plaintiff called in sick to work and went to the Officer Medical Centre where GP Dr Wil Van Rheede noted that the Plaintiff “had a jarring on the knee after missing a step on holiday, now L knee is painful and slightly swollen”. The Plaintiff was given a standard medical certificate for time off work, was prescribed Duromine for weight loss and was also given referrals to exercise physiotherapy and a dietician. The Plaintiff took sick leave on 13 July 2018 and was absent from work on 14 and 15 July 2018. The Plaintiff returned to work on 16 July 2018, when he attended the Portarlington site.[6]
[6]JCB489-490.
The panel noted that the dispute which was the subject of the medical questions concerned issues of diagnosis, causation and work capacity.[7]
[7]JCB491.
The panel also noted that the plaintiff had said that he was unable to recall exact dates, but that if the agreed facts alluded to entries in the clinical notes of his treating doctors he would have no reason to dispute them.[8]
[8]Ibid.
The panel thereafter noted the nature of the plaintiff’s employment duties together with his ‘relevant past medical history’. In the connection with the latter, the panel stated –
The Panel again noted the Agreed Facts relating to knee injuries and symptoms prior to 16 July 2018 which the Plaintiff confirmed, to the best of his recollection, to be correct. The Plaintiff also confirmed to the Panel that he sustained an injury to his low back in 2008 for which he was off work for a period of time. The Plaintiff told the Panel that notwithstanding symptoms in both his knees and prior attendance for orthopaedic review no operative intervention had been undertaken to either knee and that he was able to continue at work. He said that prior to the injury on 16 July 2018 he was able to work his full-time normal work duties.
The Panel enquired as to use of medication for his knees prior to 16 July 2018 noting prescription of Voltaren (nonsteroidal anti-inflammatory medication) for the Plaintiff’s knees prior to this date. The Panel also noted the medical entry of Dr Wil Van Rheede (treating general practitioner) dated 18 April 2018 where notation is made that the Plaintiff’s right knee is the most problematic and the Plaintiff finds the Voltaren (nonsteroidal anti-inflammatory) the most useful for pain. Notation is made that the “stomach OK so far”. The Plaintiff was prescribed Nexium and Celebrex at this visit. The Panel noted that the first prescription of Nexium was prior to the injury date of 16 July 2018. The Plaintiff told the Panel that he was not aware of any indigestion, heartburn or reflux prior to 16 July 2018.
The Panel enquired of the Plaintiff to the entry of Dr Wil Van Rheede (treating general practitioner) dated 13 July 2018 which records “Had a jarring on the knee after missing a step on holiday, now left knee is painful and slightly swollen”. He was provided with a medical certificate on that date. The Plaintiff told the Panel that he did travel to New Zealand on holiday but has no recollection whatsoever of having any injury to his left knee whilst in New Zealand or attending his general practitioner on 13 July 2018. The Panel read the practice entry to the Plaintiff who said that, whilst he has no recollection, if it’s in the medical notes then he did attend. He told the Panel that he had no left knee symptoms on attending for work in Port Arlington on 16 July 2018.[9]
[9]JCB491-492.
The panel then addressed the plaintiff’s occupational history, history of his claimed injury in the incident, the subsequent surgical and other treatment, the current treatment and physical symptoms, the results of the physical examination and its consideration of the imaging reports.[10]
[10]JCB492-497.
As to physical diagnosis, the panel stated –
Based upon the Plaintiff’s history and the Panel’s findings on examination and review of available imaging reports the Panel concluded that the Plaintiff is suffering from symptomatic osteoarthritis in an operatively treated left knee; symptomatic osteoarthritis in the right knee and symptomatic lower lumbar degenerative changes without radiculopathy. The Panel further concluded that the Plaintiff is suffering with minimal symptoms of gastro-oesophageal reflux.
There were no findings consistent with a complex regional pain syndrome affecting the Plaintiff’s left lower extremity/leg with the Panel considering that the Plaintiff’s complaint of left lower extremity symptoms are entirely consistent with symptomatic osteoarthritis of the left knee.[11]
[11]JCB497.
The panel then turned specifically to the issue of the left knee and stated –
The Panel noted from the medical records and imaging reports that the Plaintiff had pre-existing degenerative changes in both knees with substantive meniscal and ligamentous changes identified on MRI scans performed prior to 16 July 2018 and he was prescribed both analgesic and anti-inflammatory medication prior to 16 July 2018.
Whilst the Plaintiff said he had no recollection of injuring his left knee whilst on holiday in New Zealand or attending his general practice on 13 July 2018 the Plaintiff advised that if there was a medical entry for that date then he did attend on that date. The Panel has no reason to not accept the medical entries of the Plaintiff’s general practice. The Panel again noted the medical entry of Dr Wil Van Rheede (treating general practitioner) dated 13 July 2018 which records “Had a jarring on the knee after missing a step on holiday, now left knee is painful and slightly swollen”. The Panel considered that the clinical findings with swelling are consistent with an injury occurring prior to 13 July 2018 and identified on examination by Dr Rheede.
The Panel considered in detail the Plaintiff’s description of the mechanism of injury occurring on the morning of 16 July 2018 with report of severe pain following the incident but an ability to continue working before attending his general practice on the same date. The Panel further noted the medical entry of Dr Peter Louis (general practitioner) dated 16 July 2018 with notation of left knee pain and cracking sound with hyperextension and examination findings of a mildly tender left knee without swelling, bruising, scars, wounds or signs of inflammation. A normal range of motion was reported. Dr Louis maintained the Plaintiff’s regular pain medication as prescribed. The Plaintiff was sent for MRI scans of the left knee which were undertaken the next day.
In considering the chronology of events, the Panel noted that the recorded clinical findings of Dr Rheede from 13 July 2018 are consistent with an injury to the Plaintiff’s already degenerate left knee occurring prior to 13 July 2018 and prior to 16 July 2018. Notwithstanding the Plaintiff’s account of an incident of injury at work with severe pain the Panel considered that the ability to complete the day’s work and the clinical findings recorded by Dr Louis later that day did not represent those of an injury occurring at work on 16 July 2018 with the Panel noting no swelling, bruising and no signs of inflammation on examination on the same day.
The Panel further noted that MRI scans taken the next day on 17 July 2018 did not, in the Panel’s opinion, show evidence of any acute injury but reaffirmed previously noted findings in MRI scans of the left knee dated 11 December 2017 with a previously noted tear of the posterior horn of the medial meniscus and substantive degenerative changes entirely consistent with MRI changes noted in heavily overweight individuals. The Panel also noted that Dr Louis, on 16 July 2018, did not alter the Plaintiff’s pre-existing analgesic and anti-inflammatory medication and that the Plaintiff’s pre-existing prescription of Voltaren, Palexia and Targin dated 14 June 2018 did not change after 16 July 2018 and on 13 August 2018 he was prescribed the same dosages as that prescribed on 14 June 2018.
The Panel considered that, notwithstanding the WorkSafe Agent’s acceptance of liability for a left knee injury, the findings of Dr Peter Louis on 16 July 2018 and the report of MRI scans dated 17 July 2018 do not indicate, from a medical perspective, that there was any focal injury to the left knee occurring as a result of any incident occurring at work on 16 July 2018 but rather persistence of symptoms recorded on 13 July 2018 and changes noted on imaging that would have been present prior to 16 July 2018. Whilst the Plaintiff may have experienced pain in his left knee at work on 16 July 2018 there is, in the Panel’s opinion, no medical indication of any injury occurring on that date and no clinical evidence that there was any new injury nor any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or condition of the left knee. The Panel is of the opinion that the Plaintiff did not sustain any left knee torn ligament injury on 16 July 2018 and there was no evidence of any injury to the left knee cap.
The Panel therefore concluded that the incident on 16 July 2018 was not, and could not possibly have been, a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing medical condition of the Plaintiff’s left knee in any way.
As a consequence, the Panel is also of the opinion that there is no medical condition of the Plaintiff’s left knee that results from or is materially contributed to by any injury to the left knee sustained in the incident described to have occurred on 16 July 2018.[12]
[12]CB497-498.
The panel then turned to the other claimed injuries and its psychiatric assessment.
The panel noted that it had considered the submissions of the plaintiff and defendant together with the opinions of other medical practitioners. In respect of the opinion of Mr Simm, orthopaedic surgeon, the panel stated that it had noted –
the medical report of Mr R Simm (independent medical examiner) dated 19 October 2020 in which he concluded that the Plaintiff’s osteoarthritis of his left knee was constitutional advanced pre-existing pathology and that missing a step whilst on holidays was sufficient to cause significant pain from the left knee, which led to him attending his doctor and subsequently having further investigations and surgical treatment. The contribution from the alleged work incident on 16 July 2018 could not be determined on the basis of the file material, as there were no contemporaneous details of the injury. He expressed his opinion that stepping off a step and jarring his knee in July 2018 could cause quite severe pain from his pre-existing osteoarthritis, but was unlikely to alter the pathology. The Panel came to a similar conclusion to that of Mr Simm noting an ability to continue working following the incident, no contemporaneous clinical evidence that is consistent with an injury to the left knee occurring on that date and no MRI findings, in the Panel’s opinion, indicative of any acute injury occurring on 16 July 2018.[13]
[13]JCB504-5.
Finally, the panel emphasised that while it had informed itself as to the views of other practitioners it had come to its ‘own conclusions’.[14]
[14]JCB505.
C The present proceeding
The plaintiff brings the present proceeding by amended originating motion stating two grounds of judicial review.
Ground 1 states –
[The] Medical Panel erred in law or made a jurisdictional error in that it answered the Questions on the basis that that the incident on 16 July 2018 did not cause any anatomical or physical injury to the plaintiff’s left knee, and not on the basis that the plaintiff’s left knee symptoms on and after the incident were a medical condition of his left knee, or were an injury to his left knee in the extended meaning of injury, by which injury may be constituted by the onset or progression of symptoms, in the absence of any deleterious effect having been caused upon an underlying left knee condition.
Ground 2 states –
The Medical Panel erred in law or made a jurisdictional error in that it answered the Questions on the basis that the left knee symptoms experienced by the plaintiff on and after 16 July (apart from the pain experienced in the incident on 16 July) were the “persistence of symptoms recorded on 13 July 2018” (page 14, Opinion), when:
a)there was no evidence that the plaintiff’s left knee symptoms on 16 July 2018, were the “persistence of symptoms recorded on 13 July 2018”;
b)there was no evidence that the plaintiff’s left knee symptoms recorded on 13 July 2018 persisted on 16 July 2018, or thereafter;
c) it was not open to the Medical Panel to make the finding;
d) the finding was legally unreasonable;
e) in making the finding, the Medical Panel did not have regard to or take into account in its reasoning the following material evidence or matters:
i. the plaintiff was able to work his full-time normal duties on 16 July 2018 until after he experienced a significant incident of left knee pain at work, in the incident.
ii. There was no evidence that the plaintiff experienced left knee symptoms after 13 July 2018 which persisted until 16 July 2018 and thereafter;
iii. The left knee symptoms which the plaintiff experienced on and after 16 July 2018 were different in intensity, nature and effect than those which he had experienced in the 13 July incident;
iv. The plaintiff’s evidence that on 16 July 2018 he was able to work with no problems until he injured himself and experienced a significant incident of left knee pain at work;
v. The hyperextension incident on 16 July 2018 caused the plaintiff to experience pain and to seek medical attention, and shortly thereafter he was unable to cope with his work.
In the course of a refreshingly clear and concise address, counsel for the plaintiff confirmed that ground 2(e) was not pressed.[15]
[15]Transcript (‘T’) 2.
In a written outline of submissions, the plaintiff identified the grounds as being directed to what was there described as the findings of ‘no injury’ and the ‘cause of symptoms’.
As to ‘no injury’, the plaintiff submitted that the panel had failed to apply the extended definition of ‘injury’ as provided in the Act, in that it had failed to consider whether there had been an increase or progression in symptoms of the plaintiff’s pre-existing knee condition.[16]
[16]Maimonis v Bourke [2019] VSCA 302 (‘Maimonis’), [60]. Cf., s 3 of the Act, para (c) of the definition of ‘injury’.
As to the ‘cause of symptoms’, the plaintiff submitted that the opinion of the panel was unreasonable in that it was not reached via a ‘rationally defensible path of reasoning’.[17]
[17]Sidiqi v Kotsios & Ors [2021] VSCA 187 (‘Sidiqi’), [58].
In response, the first defendant emphasised various applicable principles[18] together with aspects of the panel’s reasons and submitted that the panel had made no error.
[18]Particularly, ibid [30]-[42].
The second to sixth defendants comprise the members of the panel. Prior to the hearing, the Court was advised that the panel members would adopt the Hardiman position.
DGround 1: the finding of ‘no injury’
Counsel for the plaintiff directed argument to the following paragraph within the panel’s sequence of reasoning concerning the plaintiff’s left knee –
The Panel considered that, notwithstanding the WorkSafe Agent’s acceptance of liability for a left knee injury, the findings of Dr Peter Louis on 16 July 2018 and the report of MRI scans dated 17 July 2018 do not indicate, from a medical perspective, that there was any focal injury to the left knee occurring as a result of any incident occurring at work on 16 July 2018 but rather persistence of symptoms recorded on 13 July 2018 and changes noted on imaging that would have been present prior to 16 July 2018. Whilst the Plaintiff may have experienced pain in his left knee at work on 16 July 2018 there is, in the Panel’s opinion, no medical indication of any injury occurring on that date and no clinical evidence that there was any new injury nor any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or condition of the left knee. The Panel is of the opinion that the Plaintiff did not sustain any left knee torn ligament injury on 16 July 2018 and there was no evidence of any injury to the left knee cap.[19]
[19]Plaintiff’s written outline of submissions dated 22 April 2022, [22].
It was relevantly submitted that[20] –
[20]T3-4.
(a) the findings early in the paragraph concerned ‘whether there had been a physical or anatomical change as a result of the incident’;
(b) the remainder of the paragraph should be read as ‘merely extrapolating’ from those findings; and
(c) therefore, the panel had been guided by ‘an unduly narrow definition of injury’ in that it had failed to consider the ‘extended definition’ of injury, particularly whether the incident had caused ‘an increase or progression in symptoms’.
Further elements of the argument were responsive to points made in the written submissions of the first defendant.
The ‘extended definition’ of injury in the Act reads as follows –
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
The plaintiff directed attention to Maimonis v Bourke & Ors,[21] in which Ferguson CJ, Beach and Ashley JJA relevantly stated –
… The legal conception that the extended definition of ‘injury’ can be satisfied by the onset or progression of symptoms, in the absence of any deleterious effect having been caused upon an underlying condition, is one which we think that some but not all medical practitioners would be likely to understand. We think that it would be wise, if such a case is to be advanced by a worker in the context of referral of medical questions to a panel, that the panel’s attention should be drawn to the principle.[22]
[21]Maimonis (n 16).
[22]Ibid [60].
In Maimonis, the panel relevantly found that the appellant had ‘surgically treated symptomatic cervical spondylosis with persisting neck pain and radicular symptoms in the left arm’,[23] but that employment had not been a ‘significant contributing factor’.[24]
[23]Ibid [17].
[24]Ibid [21].
The appellant had contended that the panel’s reference to ‘worsening’ constituted error, in that the panel was said to have overlooked the question whether employment provoked an ‘aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’. The Court of Appeal rejected that submission and noted, among other things, that the reasons of the panel had addressed the appellant’s condition and symptoms.[25]
[25]Maimonis (n 16) [53].
In the present instance, as the Court of Appeal emphasised in Maimonis,[26] the reasons of the panel must be read fairly and as a whole.
[26]Ibid.
I have earlier extracted the whole of the relevant reasoning of the panel, including the paragraph presently emphasised by the plaintiff.
The panel diagnosed the plaintiff as ‘suffering from symptomatic osteoarthritis in an operatively treated left knee’.[27] As Maimonis tends to highlight, such a diagnosis contemplates the pathological condition (osteoarthritis) and the fact that it is ‘symptomatic’. So much is evident in the following further observation of the panel –
the Plaintiff’s complaint of left lower extremity symptoms are entirely consistent with symptomatic osteoarthritis of the left knee.[28]
[27]JCB497.
[28]Ibid.
I should say that in so observing, the panel also addressed, and implicitly rejected, the plaintiff’s contention that his pain was to be explained by a complex regional pain syndrome.[29]
[29]Ibid. Cf, Plaintiff’s submissions to the medical panel dated 27 May 2021, [4]-[6] (JCB124-125).
The panel then turned specifically to the ‘left knee’ and considered –
(a) the presence of pre-existing degenerative changes in both knees, for which the plaintiff had been prescribed ‘both analgesic and anti-inflammatory medication prior to 16 July 2018’;
(b) the fact that the plaintiff had no recollection of what had relevantly occurred in New Zealand and had expressed no reason not to accept the entries in the clinical records;
(c) that the entries in the clinical records were ‘consistent with an injury occurring … prior to 13 July 2018’;
(d) the mechanism of the incident together with the plaintiff’s subjective report of severe pain;
(e) the clinical entry of 16 July 2018; and
(f) the fact that an MRI scan was conducted the next day.[30]
[30]JCB497-8.
The panel expressly considered the chronology of events and concluded that –
(a) the recorded clinical findings on 13 July 2018 were ‘consistent with an injury to the Plaintiff’s already degenerate left knee’; and
(b) notwithstanding the plaintiff’s oral account of the incident and ‘severe pain’ on 16 July 2018, his ability to complete the day’s work and the later clinical findings ‘did not represent … an injury occurring at work’.[31]
[31]JCB498.
Those conclusions were based on a combination of the clinical findings recorded on 13 July 2018 (which included reference to ‘L knee is painful and slightly swollen’), the plaintiff’s account of his pain on 16 July 2018, what he could nonetheless do on that day (ie, complete his work) and the clinical findings later recorded. All of those features were relevant to the assessment by the panel of both the nature of any injury to the plaintiff’s left knee and the quality of the associated symptoms.[32]
[32]Cf., Didani v Downes-Brydon [2021] VSCA 281, [41].
The panel thereafter referred to the results of subsequent MRI scanning and the fact that the dosages of analgesic and anti-inflammatory medication had not been altered. The latter, in particular, was relevant to the pain on 16 July 2018 and whether it could really have been any different to what had gone before.
It will be evident that, to that point, the panel had repeatedly given consideration to the interrelated issues of the pathology of the plaintiff’s ‘degenerate’ left knee (osteoarthritis) and the associated symptoms (ie, pain and swelling).
The paragraph emphasised by the plaintiff then appears. I accept that the first four lines of that paragraph are directed to ‘focal injury’, which is plainly a consideration of any physiological change. However, the panel goes on to express its conclusion that the plaintiff’s symptoms on 16 July 2018 represented a ‘persistence of symptoms recorded on 13 July 2018’.[33]
[33]JCB498.
The latter is plainly based in the earlier passages of reasoning that, as I have noted, address the interrelated issues of physiological change and any associated symptoms.
In my view, that remains so in the balance of the emphasised paragraph –
Whilst the Plaintiff may have experienced pain in his left knee at work on 16 July 2018 there is, in the Panel’s opinion, no medical indication of any injury occurring on that date and no clinical evidence that there was any new injury nor any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or condition of the left knee. The Panel is of the opinion that the Plaintiff did not sustain any left knee torn ligament injury on 16 July 2018 and there was no evidence of any injury to the left knee cap.[34]
[Emphases added]
[34]Ibid.
It will be evident that the extracted passage again incorporates a combination of observations concerning physiological change (‘medical indication’; ‘injury’) and associated symptoms (‘pain’; ‘clinical evidence’). The passage also directly considered the extended definition of ‘injury’.[35]
[35]As did the paragraph that follows: JCB498.
In so doing, the panel should be taken to be doing exactly what it says it was doing, namely, addressing the extended definition of ‘injury’ and concluding that there had been no aggravation, acceleration, exacerbation or deterioration of either the physiology of the plaintiff’s left knee or the associated symptoms. In context, the words ‘injury or condition’ are plainly wide enough to embrace both.
The last sentence of the passage addresses the manner in which the plaintiff evidently had described the injury in his claim form; which had come to be expressed in the ‘joint statement’ provided to the panel upon the referral.[36] In my view, the fact that the panel specifically addressed the manner in which the plaintiff had sought to characterise and describe his knee injury in the incident – both in the joint statement and in his written submissions to the panel – speaks to the diligence exercised by the panel when performing its task.
[36]Joint statement pursuant to s 304(a) of the Workplace Injury Rehabilitation and Compensation Act 2013, [6] (JCB116).
It follows that both in context and upon a fair reading of the emphasised paragraph, the panel did not focus only or inappropriately upon ‘physiological change’. The panel repeatedly considered the plaintiff’s symptoms and, indeed, ultimately made a finding about them (that is, there was a ‘persistence of symptoms’).
Consequently, I cannot accept that the panel focussed only on ‘the physical aspect’ of the injury[37] and that the various references to pain and symptoms should be read as referring only to that ‘aspect’.
[37]T6.
In light of the above, it is unnecessary to address the elements of the plaintiff’s argument responsive to particular submissions advanced by the first defendant. The panel did not err in the manner submitted.[38] Accordingly, ground 1 must be rejected.
EGround 2: the ‘cause of symptoms’
[38]Cf., Maimonis (n 16) [51](2).
As I have noted, ground 2 claimed error in the panel’s finding that the plaintiff’s symptoms had persisted. That claim was advanced on a sequence of bases, particularly that there was ‘no evidence’ for the finding, the finding was ‘not open’, the finding was ‘legally unreasonable’ and the panel ‘did not have regard’ to certain ‘material evidence’.[39]
[39]Plaintiff’s written outline of submissions dated 22 April 2022, [35].
In argument, the final element of the contention was specifically disclaimed and it was also acknowledged that the finding had been ‘open’.[40] The real complaint, as I have earlier noted, was said to be that the reasoning ‘was not rational or supported by evidence’.[41] In that connection, counsel submitted that there was ‘no positive evidence’ that between 13 July 2018 and 16 July 2018 the plaintiff’s symptoms had persisted and not varied.[42]
[40]T10.
[41]T8. Cf., Sidiqi (n 17) [58]-[60].
[42]T10.
The plaintiff’s account of his pain at that time was not the only relevant evidence and was not itself reliable.[43] The condition of the plaintiff’s knee and his associated symptoms in that time were matters for the panel to consider and determine by reference to its knowledge and expertise.[44]
[43]As counsel for the plaintiff correctly acknowledged, the plaintiff’s recollection was not clear: T10.
[44]Sidiqi (n 17) [49]-[50].
In my view, the reasoning of the panel in respect of the finding that the plaintiff’s symptoms persisted was both logical and rational.[45] In particular –
[45]JCB497-498.
(a) the plaintiff had pre-existing degenerative changes in the knees for which he had previously been prescribed both analgesic and anti-inflammatory medication;
(b) the plaintiff had no recollection of the injury in New Zealand, but accepted that he must have attended his general practitioner on 13 July 2018 and had no reason not to accept the clinical note made on that occasion;
(c) that note recorded both pain and swelling which the panel considered to be consistent with an injury having occurred prior to 13 July 2018;
(d) the panel considered the plaintiff’s description of the mechanism of the incident on 16 July 2018 together with his description of ‘severe pain’, but also noted that he had continued working after the incident; and
(e) the panel also noted that on 16 July 2018 the general practitioner had recorded that the knee was ‘mildly tender’, but that there had been no swelling nor any signs of inflammation, there had been a normal range of motion and the ‘regular’ pain medication had been maintained.
In my view, it is plain that the panel considered the condition of the plaintiff’s left knee on 16 July 2018 (ie, ‘mildly tender’, ‘no swelling’) to be a reflection of (and thus persistence of) the earlier observed condition of the knee (ie, ‘painful’, ‘slightly swollen’) rather than any new element in the presentation. That seems to me to have been an evaluation well within the expertise of the panel and I do not accept that it was expressed in a manner that was either illogical or unreasonable.
Further, I do not read the reasoning of the panel as necessarily saying anything specific about ‘variations’ in symptoms between 13 and 16 July 2018, other than that the intervening incident did not make the symptoms worse. That seems to have been both open and apparent upon a consideration of the clinical notes of the general practitioners. It follows that the panel’s conclusion reached by reference to those notes, among other things, is neither illogical nor unreasonable.
It follows that ground 2 must also be rejected.
F Conclusion
The proceeding must be dismissed.
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