Gulifa v Kotsios
[2023] VSC 546
•13 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 00779
| ADAM GULIFA | Plaintiff |
| v | |
| DR CHRISTINE KOTSIOS & ORS | Defendants |
| (according to the attached Schedule) |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 September 2023 |
DATE OF JUDGMENT: | 13 September 2023 |
CASE MAY BE CITED AS: | Gulifa v Kotsios & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 546 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – ‘Medical condition’ of the plaintiff’s lumbar spine – ‘Non-specific low back pain’ – Panel’s observations for ‘non-expert reader’ – Whether panel erred in failing to provide adequate reasons – Whether panel erred in failing to give genuine consideration to a fundamental issue – Wingfoot Australia Partners v Kocak (2013) 252 CLR 480 and Victorian Workcover Authority v Putrus [2023] VSCA 28 considered – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | PA Czarnota R Heffernan | Maurice Blackburn Lawyers |
| For the First to Fifth Defendants | No appearance | DLA Piper |
| For the Sixth Defendant | RD Kumar | Minter Ellison |
HIS HONOUR:
A. Introduction
The plaintiff was born on 30 June 1981 and is presently 42 years old.
After completing year 11 of secondary school, the plaintiff commenced working in the building and construction industry as a sub-contractor. He worked in various roles including as a plasterer, labourer, renderer, concreter and graffiti removalist.
In November 2009, the plaintiff sustained a low back injury while using a jackhammer. He had back pain and pain radiating down his right leg, but recovered quickly with no specific treatment.
In April 2016, the plaintiff commenced employment with Better Scaffolding & Truck Hire Company Pty Ltd as a full-time labourer. His duties included setting up scaffolding, steel fixing, concreting and plastering, as well as moving panels, frames, cement sheet, doors and windows.
For the purposes of the referral of ‘medical questions’ for the determination of a medical panel, it was agreed that the plaintiff suffered injury to the lumbar spine in the course of his employment ‘up to and including 22 August 2017’.[1] The following account of events was later recorded –
The plaintiff … attributed his low back injury to unloading a container of heavy double-glazed windows. About two weeks later he was moving heavy panes of glass up a staircase at a school jobsite in Donvale. He said there was no mobile crane to get the windows up the stairs. The glaziers showed up and two windows were required on Level 1. During the lift he had to do a 180º turn. That night he had severe low back pain.[2]
[1]Court Book (‘CB’) 54.
[2]CB26.
The plaintiff ceased work on 23 August 2017. He recounted back and right leg pain and had an MRI scan of his low back. He consulted a spinal surgeon who identified L4/5 disc injury, but recommended non-operative treatment.
The plaintiff was given pain medication and underwent supervised rehabilitation and pain management. He reported that in the first year his back and leg pain had been ‘very bad, on average 6-7/10 intensity’, but that it had subsequently ‘diminished in severity but never gone away.’[3]
[3]CB26.
On 12 October 2017, the plaintiff made a claim for workers’ compensation, which was accepted.[4]
[4]CB55.
In June 2018, the plaintiff attempted a return to work on light duties; two hours per day, three days per week. He ceased work about two weeks later due to the severity of his back pain and has not worked since.
On 11 September 2018, the plaintiff submitted an impairment benefits claim in respect of his ‘back injury, psychological/psychiatric condition’. By notice dated 18 December 2018, liability was accepted for the plaintiff’s back injury, but rejected for the claimed psychological injury.
On 14 November 2019, the plaintiff submitted a ‘serious injury’ application relying upon the following stated injuries –
Injury to the lumbar spine including injury at the L4/5 level;
Aggravation of degenerative changes in the lumbar spine;
Referred leg symptoms;
Anxiety and depression;
Pain and suffering.[5]
[5]CB93.
The application was rejected and the plaintiff later filed an originating motion with the County Court seeking leave to commence common law proceedings.
On 19 December 2019, the agent terminated the plaintiff’s entitlements to weekly payments of compensation on the basis that, among other things, his compensable injury had resolved and he was not incapacitated for work.[6]
[6]CB55.
On 30 July 2021, pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘Act’), Judge Wischusen referred 11 medical questions to a medical panel for determination.
The joint statement to the panel identified the following alleged injuries –
• Lumbar spine.
• Right leg.
• Left leg.
• Mind.[7]
[7]CB53.
A medical panel was assembled comprising two psychiatrists, a rheumatologist, an orthopaedic surgeon and a neurologist.
The plaintiff was examined by –
(a) the psychiatrists jointly on 13 September 2021; and
(b) the rheumatologist, orthopaedic surgeon and neurologist jointly on 28 September 2021.
The panel was provided with a significant collection of relevant documents, including medical reports, radiology reports, clinical records, rehabilitation and vocational material as well as written submissions from the plaintiff and sixth defendant.
On 11 January 2022, the panel issued a certificate of determination stating and answering the 11 medical questions, including as follows –
Question 1. What is the nature of the medical condition of the Plaintiff’s:
(a) lumbar spine;
(b) right leg;
(c) left leg; and
(d) mind?Answer:(a) non-specific low back pain;
(b) no intrinsic medical condition;
(c) no intrinsic medical condition; and
(d)no diagnosable (i.e.: no DSM-classifiable) psychiatric condition.
Question 2. (a) Does any medical condition of the lumbar spine identified by the Medical Panel in answer to Question 1(a) continue to result from or be materially contributed to by the injury in employment with Better Scaffolding & Truck Hire Pty Ltd (“the employer”) in the period up to and including 22 August 2017?
…
Answer:(a) yes;
…
Question 3.Is any medical condition of the Plaintiff’s:
(a)lumbar spine;
(b) right leg;
(c) left leg; or
(d) mind –as identified by the Medical Panel “permanent” meaning likely to last for, during or through the foreseeable future?
Answer:(a) yes;
…[8]
[8]CB20-21.
The panel’s certificate of opinion was accompanied by detailed written reasons.
B. The panel’s reasons
The panel relevantly commenced by stating that it formed its opinion with regard to the documents listed in enclosures to the reasons, as well as the history provided by the plaintiff and its own examination findings.[9]
[9]CB25.
The panel described the history given by the plaintiff, including with respect to injury in November 2009 and, later, in August 2017, as well as the subsequent course of treatment. Among other things, the panel recorded the plaintiff as having said that –
(a) his back and leg pain diminished in severity a year after the incident, but that it had never fully gone away;
(b) he always has pain radiating down his right leg, and never the left leg; and
(c) pain medications were not really effective for his back pain, although he has taken Endone and Mersyndol Forte sparingly to assist with sleep.[10]
[10]CB26.
The panel then addressed the plaintiff’s current condition, noting as follows –
The plaintiff indicated that now, he has right sided low back pain which spreads down the front of the right leg and into the foot. His back pain is proportionate to physical activity; however, the Panel notes it does not have characteristics typical of discogenic back pain. The back pain is present at rest and also with movement and not specifically exacerbated by lengthy sitting or leaning forward. His problem is that he “can’t get comfortable”. He also describes his pain being susceptible to ambient temperature change and worse in the cold. He does not describe impulse pain provoked by coughing, sneezing or straining. He does have intermittent pain and tingling perceived in the right foot (sometimes in both feet) when lying down. The left leg is okay. There is no bladder or bowel dysfunction. Self-care is satisfactory, but he perceives he is slower. Around the house, he assists his wife with duties such as cooking and vacuuming but is wary of mopping or sweeping. He also told how, in “a perfect chair” he can sit for 45 minutes or more. He told how his standing tolerance is 30 minutes. He can walk perhaps about 2 km but after that he has an ache in his right calf. He avoids outdoor activity. He does mow lawns. He can drive 30 to 45 minutes. He does not ride his bike. The plaintiff also told how he can’t get comfortable at night. He has to reposition his pillows. He says that about twice a week he “knocks (himself)” out with a tablet of Endone and/or Mersyndol Forte. The plaintiff does not require regular opioid medication to control his pain by day. The plaintiff also estimated that he takes Endone and Mersyndol Forte, perhaps once a week at most, twice. He indicated that he can do his exercises every second day. He describes stretches, “core work” and using a foam roller. Sometimes he “hangs” by his own arms to get some traction using his body weight. The Panel understood the plaintiff’s description being essentially, of normal abilities for sitting, standing, walking, bending, kneeling, squatting or lifting, despite the plaintiff’s perception of limitation. He lifts many items around the home weighing more than 5 kg and sometimes more than 10 kg although these are held closer to his core. He has no supervised physiotherapy. Before the pandemic lockdown he was receiving deep tissue massage and acupuncture from an osteopath. He has not worked since mid-2018.[11]
[11]CB26-27 (emphasis added).
The panel later turned to its physical examination findings and made the following observations –
… The plaintiff presented as a short, muscular man. His gait is not antalgic or Trendelenburg. He can walk on his heels and toes. Spinal posture is normal. Pelvis is level. Lordosis is retained. There is no resting paraspinal muscle spasm. His lumbar spine actually moves normally in flexion, extension and rotation. There is at most minimal and uniform restriction. There is no involuntary guarding, muscle spasm or localised tenderness. There are no neurological signs of neurogenic weakness, muscle atrophy, fasciculation, loss of reflexes or dermatomal sensory loss. In contrast, the plaintiff exhibits numerous non-organic signs including, non-anatomical tenderness, he reports pain on simulated axial loading, has pain on simulated axial rotation, back pain on passive straight leg raise but absent on forward flexion or distracted straight leg raise and has regional pseudo-weakness (“collapse”). Overreaction and abnormal regional allodynia are absent. The plaintiff has no objective physical abnormality of either leg and has no signs of lumbosacral radiculopathy.[12]
[12]CB27-28 (emphasis added).
As to the radiology, the panel stated –
The Panel noted that a pre-incident CT reported a small disc protrusion at L4/5.
The Panel noted MRI lumbar spine dated 28 August 2017, 16 July 2018, and 14 November 2018 and 4 October 2020. These disclosed a single level abnormality involving the L4/5 disc comprising disc desiccation and mild height loss, a small left paracentral disc protrusion, Modic change in the adjacent vertebral endplates, mild subarticular narrowing with effacement but no anatomic neurocompression of the left L5 nerve root, and no right sided neurocompression. Overall, the Panel’s opinion is that the most recent radiology indicates a substantially healed, chronic lumbar L4/5 disc injury.[13]
[13]CB28 (emphasis added).
The panel expressed its opinion in respect of the plaintiff’s lumbar spine and legs as follows –
The Panel relies on its clinical findings and the material contained in the referral to make the assessment. The Panel also considered the opinions of the plaintiff’s treating health care practitioners and consultants who have assessed the plaintiff prior to reaching its conclusions.
The Panel regards the plaintiff’s history of low back pain as non-specific, there is no specific restriction pattern to his movement-related pain, there are no objective examination indicators of a persisting physical injury (i.e.: no local tenderness, no resting muscle spasm, no involuntary guarding/nonuniform restriction of motion) and he has substantially resolved L4/5 disc pathology shown by the radiology. The Panel finds that there are no signs of central pain sensitisation (allodynia, dermographia). Accepting the plaintiff’s self-reported symptoms are factual, and notwithstanding the radiological indicators of a previous L4/5 disc injury (which the Panel considers now substantially resolved) the Panel therefore concludes that the plaintiff has non-specific low back pain.
The plaintiff reports no right leg symptoms (although he did have right leg pain in 2010) and has no objective abnormality of the left leg on physical examination nor radiology, despite also complaining of left leg pain. The Panel therefore concludes that the plaintiff has no intrinsic medical condition … of the left (or right) leg.[14]
[14]Ibid (emphasis added).
The panel went on to explain its diagnosis of ‘non-specific low back pain’ in a passage that, in argument, counsel for the plaintiff referred to as the ‘relevant passage’ –
The Panel makes the following clinical observations for the non-expert reader. Non-specific low back pain can be understood from many perspectives including in terms of 1) unresolved physical injury (for which there is little clinical evidence, however, as a tool to ascertain the extent of a physical injury, clinical examination lacks sensitivity to detect a very subtle persisting injury and cannot exclude minor, physical injury at a biological level), 2) “central sensitisation” (referring to pain amplification, with or without a persisting physical injury), 3) psychological factors (if not an actual classifiable psychiatric pain disorder) and 4) social environment. For the purpose of assessing the plaintiff’s capacity, the Panel does not believe it is fruitful to speculate as to the objective accuracy of the plaintiff’s perceptions, and considers the clinical designation of “non-specific low back pain” as the most appropriate descriptor. It is important to note that despite the plaintiff’s contrary perception, the Panel’s use of the descriptor “non-specific low back pain”, also indicates the plaintiff is considered to have a normally functioning lumbar spine. Thus, the Panel considers the plaintiff has no objective lumbar spine dysfunction.
The Panel notes that since the injury occurred in 2017, the underlying disc injury is substantially resolved, however non-specific low back pain persists although has improved. The Panel therefore concludes, the plaintiff’s current non-specific low back pain continues to result from and is materially contributed to by the injury in employment with “Better scaffolding and Truck hire” (the employer) in the period up to and including 22 August 2017.[15]
[15]CB28-29. Cf., Transcript (‘T’) 1-2 and CB633-634, [14].
Finally, in respect of the lumbar spine, the panel discussed the diversity of opinions apparent in the referral material –
As regards the diagnosis of the plaintiff’s lumbar spine, the Panel notes there was a diversity of opinion. Early treaters (allied health practitioner Dr Charitra, spine surgeon Mr Michael Johnson and sports and exercise physician Dr Dan Bates) recognised a relatively mild lumbar disc injury with no neurocompression and recommended nonsurgical, expectant management. Prof Richard Bittar (his reports dated 27 April 2020 and 17 February 2021) assessed the clinical situation on the assumption that the plaintiff’s L4/5 intervertebral disc injury was inexorable, ongoing and persistent and he even recommended spine surgery. This is contrary to the expected physiological response following this type of lumbar disc injury or the radiological findings. There are many potential outcomes of a lumbar annular disc tear including resolution, protrusion or extrusion but the outcome in this case, was the eventual resolution, forming a scar (“high-intensity zone” visible on the MRI). The Panel did not replicate Prof Bittar’s examination findings of “paravertebral muscle spasm and tenderness, particularly right-hand side”. The Panel does not agree with Prof Bittar’s interpretation that the MRI scans demonstrate “ongoing pathology affecting the L4/5 intervertebral disc which could certainly account for lower back pain radiating proximally into the right leg”. The Panel notes Dr James Rowe (his reports dated 25 August 2020, 25 March 2021) mischaracterised the plaintiff’s back pain as requiring substantial opioid medication. This is not the case, since the plaintiff consumes only occasional opioid medication at most twice a week and then, purely as a hypnotic. The Panel notes Mr Graeme Brazenor interpreted the radiology in the same way as the Panel, however did not have the advantage of examining the plaintiff’s lumbar spine to confirm that the plaintiff’s lumbar spine in fact, is now normally functioning. The Panel has reached its own conclusions, for the reasons explained.[16]
[16]CB29 (emphasis added). I note that the plaintiff’s written submissions to the panel emphasised, in particular, the reports and opinions of Dr Charitra, Professor Bittar and Dr Rowe (CB61-62) and the written submissions of the sixth defendant emphasised the reports and opinions of Dr Brazenor, particularly his opinion that the plaintiff was ‘now perpetrating a ruse with respect to his pain and disability’ (CB67-70). In its reasons, the panel confirmed that it had ‘considered the respective defendant and plaintiff submissions and the issues raised’ (CB36).
In relation to any psychiatric condition, the panel recorded its detailed psychiatric assessment. Among other things, the panel noted that –
The Panel asked the plaintiff about his views regarding his current ability to work. The plaintiff perceived the limitation in terms of his physical injury. He said that he does not believe he would be restricted from a psychiatric perspective.[17]
[17]CB32 (emphasis added).
After recording the results of its mental state examination, the panel concluded that –
On the basis of the plaintiff’s history and the mental state examination … the plaintiff is not suffering from any diagnosable condition of the “mind” which has arisen secondary to his physical injury and its consequences. The Panel considered that there is no condition of the “mind” that would preclude the plaintiff from being able to work.
The Panel therefore concluded that the plaintiff currently has no classifiable psychiatric or psychological condition.
The Panel considered the reports of independent psychiatrists, Dr Richard Prytula (19 November 2018), Dr Michael Duke (21 October 2019) and A/Professor Peter Doherty (23 October 2020), which also concluded the plaintiff has no psychiatric diagnosis and that he has a current work capacity from a psychiatric perspective.[18]
[18]CB34 (emphasis added). I note that the panel emphasised the word ‘mind’, which links to the form of medical question 1(d).
The panel turned to the issue of work capacity and stated –
The Panel also considered whether, disregarding any psychiatric consequences of physical injury (which are in fact, not present), the plaintiff has a current work capacity or has no current work capacity.
The Panel noted the plaintiff’s preinjury duties as a labourer which require heavy lifting. The plaintiff’s non-specific low back pain has persisted despite a now substantially resolved L4/5 disc injury, which is inevitably, susceptible to a reinjury (indeed, the back injury he incurred in 2017 is properly regarded as a reinjury of the first L4/5 disc injury in 2010). Notwithstanding his normally functioning lumbar spine (currently), the plaintiff is susceptible to reinjury of the largely healed L4/5 disc and the Panel therefore concludes he is not capable of performing his pre-injury duties. The Panel therefore concluded the plaintiff has an incapacity for his pre-injury employment as a builder’s labourer working on a full-time basis.
With regard only to the identified persisting physical injury of the lower back, the Panel considered all aspects of the definitions of ‘no current work capacity’, ‘current work capacity’ and ‘suitable employment’ contained in the Act. …[19]
[19]CB34 (emphasis added).
The panel returned to the subject of the plaintiff’s lumbar spine and stated –
The Panel notes a complete absence of objective physical signs of lumbar spine dysfunction despite his self-report of chronic pain. The Panel noted that the level of pain flowing from the plaintiff’s non-specific low back pain is manageable with postural changes. The plaintiff is not, in fact, dependent on opioids for pain control (although chooses to take them as hypnotic agents).[20]
[20]CB35 (emphasis added).
The panel then considered certain identified suitable employments and stated –
The Panel considers the suggested job options of forklift operator, site supervisor, painter, bicycle mechanic, small engine mechanic/technician or maintenance coordinator/administrator are unsuitable either because the plaintiff lacks any relevant experience, necessary leadership skills, or they are excessively physical or entail a material risk of lumbar spine reinjury.
The Panel also noted that the suitable employment options of traffic controller; sales representative (building industry) and retail sales assistant (hardware/trade supplies/tools) have in common predominantly sedentary work, freedom to briefly sit, stand and walk at will, and minimal bending, twisting or lifting requirements. These options also align with the plaintiff’s expressed preference to work in the building sector. The work does not require additional training or qualifications, and the Panel considers that the physical demands of these options lie well within the plaintiff’s transferable skill set, and, having regard only to his current lumbar spine condition (with a lumbar spine that physiologically, functions normally), he does have a functional capacity to perform any of these jobs. In the Panel’s opinion, the plaintiff’s functional limitations (which are purely subjective, rather than objective limitations) resulting from his current lower back condition, in conjunction with the suitable employment criteria, are such that, currently the suitable employment options of a “traffic controller”; “sales representative (building industry)”, or “retail sales assistant (hardware/trade supplies/tools)” constitute suitable employment which the plaintiff could perform on a reliable and consistent basis as a stable member of the wage-earning workforce.[21]
[21]Ibid (emphasis added).
Consequently, the panel concluded that the plaintiff has a current work capacity for the suitable employments identified and discussed.
Finally, the panel stated –
In forming its opinion, the Panel considered the respective defendant and plaintiff submissions and issues raised. The plaintiff submission relies on the presence of continuing lumbar spine dysfunction, which is not present. Whilst the plaintiff does have chronic non-specific low back pain, the pain is not truly opioid-dependent, and does not preclude suitable employment on a consistent, sustained, reliable and permanent basis within the foreseeable future.[22]
[22]CB36.
C. The proceeding
The plaintiff commenced proceedings by originating motion dated 10 March 2022, seeking judicial review of the panel’s opinion on the following stated grounds –
1. The Medical Panel failed to provide adequate reasons to demonstrate its actual path of reasoning explaining how it arrived at its opinion in answer to medical questions 1(a), 2(a) and 3(a) that the Plaintiff is suffering from the medical condition of “non-specific low back pain” which is permanent and compensable, in circumstances where the reasons do not reveal the basis of the medical condition, having found, inter alia, the underlying L4/5 disc injury had substantially resolved, no signs of central sensitisation, and no diagnosable psychiatric condition.
2. The Medical Panel committed error of law on the face of the record or jurisdictional error by failing to properly consider and address a central issue raised on the materials whether the “non-specific low back pain” was organic or psychologically based.
3. The Medical Panel’s determination lacked an evident or intelligible justification and/or was irrational and/or illogical and/or unreasonable in that it determined that the Plaintiff was suffering “non-specific low back pain” as a medical condition, in circumstances where the reasons reveal that it considered the underlying L4/5 disc injury had substantially resolved, no signs of central sensitisation, and no diagnosable psychiatric condition.[23]
[23]CB9.
The plaintiff seeks orders in the nature of certiorari quashing the panel’s opinion and mandamus remitting the medical questions to a differently constituted panel in order to be reconsidered in accordance with law.
The plaintiff and sixth defendant each filed and served detailed written outlines of submissions.[24]
[24]CB630-653.
The plaintiff’s written outlines of submissions are directed to grounds 1 and 2 only.
In oral argument, counsel for the plaintiff identified the two grounds as overlapping and explained that –
… it is a narrowly-focussed argument, and to an extent there is a degree of overlap. The two bases, effectively, are inadequacy of reasons in the sense that we say … we’re left to speculate as to the basis on which the panel found the plaintiff to have the condition answered in response to the referred medical questions. … no doubt your Honour has read the relevant passage where the panel engages in some discourse as to the possible bases on which – or the possible lenses through which to view this non-specific low back pain diagnosis that’s provided.
And then the second base, which is an overlap with the reasons ground, is that we say the panel hasn’t properly engaged with or actively engaged with the fundamental issue, that is, whether the non-specific low back pain as was found has an organic or a psychological basis. Again, it comes back to that relevant passage in the panel’s reasons …[25]
[25]T1-2.
Particularly in respect of what was described as the ‘relevant passage’ of the panel’s reasons,[26] counsel submitted –
... what the panel’s done here is they’ve raised the possible explanations, but then refrained from providing a specialist medical explanation for both the genuineness of the complaints [of pain], and assuming they do accept the plaintiff to be genuine, the basis of those complaints [of pain].
So we say … you’re left to speculate as to whether there is an unresolved physical injury or whether there’s some psychological factor in play, and either way, … it’s unhelpful, and they haven’t set out their path of reasoning …[27]
[26]See above at [27]. Cf., CB633-634, [14].
[27]T5. In the course of argument, counsel referred to Ayana v Qantas Airways Ltd [2021] VSC 500, [18](a) and (c).
By reference to various aspects of the panel’s reasons, as well as relevant authorities, the sixth defendant submitted that, properly understood, there was no reviewable error.
The first to fifth defendants – comprising the members of the panel – did not participate in the hearing and had earlier advised the Court that they would abide by the result.
D. Relevant principles
In relation to the function of a medical panel and the standard required of a medical panel’s written statement of reasons under s 313(2) of the Act, in Wingfoot Australia Partners v Kocak (‘Wingfoot’)[28] the High Court confirmed that –
[28](2013) 252 CLR 480 (‘Wingfoot’). See also, Sidiqi v Kotsios [2021] VSCA 187 (‘Sidiqi’).
(a) the function of a medical panel is to ‘form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’;[29]
(b) the medical panel’s statement of reasons must explain the actual path of reasoning by which it formed its opinion and in detail sufficient to enable a court to see whether the opinion does or does not involve any error of law;[30] and
(c) a medical panel is ‘under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else’.[31]
[29]Wingfoot (n 28) [47].
[30]Ibid [55].
[31]Ibid [56].
In that connection –
(a) the reasons of a panel must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review;[32]
(b) the opinion of a panel on medical questions of fact will necessarily be informed by expertise which the Court does not possess;[33] and
(c) reasons will not be adequate if there is real doubt about whether the panel performed its statutory function, although reasons may be understood by combining what is expressly stated with inferences necessarily arising.[34]
[32]Grujovska v Brand & Ors [2023] VSCA 59, [23]-[24].
[33]Sidiqi (n 28) [34].
[34]Haidari v Victorian WorkCover Authority [2023] VSC 522, [43]-[46].
Separately, a panel will fall into jurisdictional error if it fails to give ‘genuine consideration to … fundamental issues raised by the facts of the case.’[35]
[35]Sidiqi (n 28) [61]. See also, Swidryk Investments Pty Ltd v El-Najjar [2023] VSCA 11, [46] and Victorian Workcover Authority v Putrus [2023] VSCA 28, [37] (‘Putrus’).
In that regard, in Victorian Workcover Authority v Putrus (‘Putrus’), the Court of Appeal determined that a panel had erred in failing to give consideration to whether the respondent had a chronic pain condition of psychiatric origin. It noted that the issue had been ‘squarely raised’ on a ‘fair reading of all of the material provided’[36] and stated –
As in all cases, it is an examination of all of the facts and circumstances of the individual case which reveals whether a particular matter must be considered and intellectually engaged with by the relevant panel.[37]
[36]Putrus (n 35) [43].
[37]Ibid [42].
E. Ground 1: the panel’s reasons
It will be evident that the plaintiff’s contentions were essentially directed to the parts of the panel’s reasons relevant to its determination, in answer to question 1(a), that the ‘medical condition’ of the plaintiff’s lumbar spine was ‘non-specific low back pain’.[38]
[38]That is, the panel’s answer to ‘medical question’ 1(a).
In that regard, as I have noted, the plaintiff directed attention to what was described as the ‘relevant passage’, and submitted that the court was left to engage in impermissible and speculative ‘gap filling’ in order to understand the panel’s determination and whether or not it had accepted that the plaintiff’s complaints of back pain were ‘genuine’.[39]
[39]See also, CB634-635, [16]-[17].
To a significant extent, the issue of the plaintiff’s ‘genuineness’ arose from the emphasis placed by the sixth defendant upon the opinion of Dr Brazenor that the plaintiff was ‘now perpetrating a ruse’ as well as the opinion of Dr Barton that the plaintiff had ‘recovered from any work injury that may have occurred two or three years ago’.[40]
[40]CB67-72.
As I have also noted, the reasons of a panel must be read fairly, as a whole and in context.
In that regard, the reasons of the present panel were detailed and relate to its answers to the 11 medical questions posed by the County Court.
The plaintiff directed particular attention to medical question 1(a); however the whole of question 1, and the whole of the panel’s answer, is of present significance.
I have earlier extracted the whole question, and answer, although it is convenient to repeat it –
Question 1. What is the nature of the medical condition of the Plaintiff’s:
(a) lumbar spine;
(b) right leg;
(c) left leg; and
(d) mind?Answer:(a) non-specific low back pain;
(b) no intrinsic medical condition;
(c) no intrinsic medical condition; and
(d) no diagnosable (i.e.: no DSM-classifiable) psychiatric condition.
The form of question 1 was plainly influenced by sub-paragraph (a) of the definition of ‘medical question’ in the Act. It is also similar to the question considered by the Court of Appeal in Didani v Dr Downes-Brydon & Ors.[41] In that connection, the Court of Appeal stated –
It [the medical question] is entirely open-ended, first, as to whether there is any present medical condition relevant to the past pain injury and, secondly, if so, what that medical condition might be.[42]
[41][2021] VSCA 281.
[42]Ibid [51].
In that context, it is evident from the answers given to question 1 that, in the opinion of an expert medical panel comprising a rheumatologist, orthopaedic surgeon, neurologist and two psychiatrists –
(a) ‘non-specific low back pain’ was the relevant ‘medical condition’ of the plaintiff’s lumbar spine;
(b) there were, by contrast, no intrinsic medical conditions of the plaintiff’s right and left legs; and
(c) there was no ‘diagnosable’ (meaning ‘DSM classifiable’) psychiatric condition.
Thus, on the face of the panel’s answers to the whole of question 1 –
(a) ‘non-specific low back pain’ was the ‘medical condition’ relevant to the plaintiff’s lumbar spine;
(b) the panel found no diagnosable psychiatric condition;
(c) it follows that ‘non-specific low back pain’ was not considered by the panel to be a diagnosable psychiatric condition; and
(d) to say that there was no ‘diagnosable’ psychiatric condition was, of course, not to say that the panel observed no behaviours or symptoms that might broadly be described as psychological.
The content of the whole of the panel’s answers to question 1, in particular, should be borne in mind when considering the panel’s written reasons.
I have earlier extracted significant parts of the panel’s reasoning and, in so doing, highlighted particular parts, as well as extracting the whole of what counsel for the plaintiff described as the ‘relevant passage’.
From various aspects of the panel’s reasoning expressed prior to the ‘relevant passage’, it is evident that –
(a) the panel understood that the plaintiff’s principal complaint was of ‘right sided low back pain which spreads down the front of the right leg and into the foot’ – although, in the opinion of the panel, it did not have ‘characteristics typical of discogenic back pain’;[43]
[43]CB26.
(b) the plaintiff had described what the panel considered to be ‘essentially, … normal abilities for sitting, standing, walking, bending, kneeling, squatting or lifting’, despite his ‘perception of limitation’;[44]
[44]CB27.
(c) in respect of work in light duties, the plaintiff had ‘expressed lack of confidence, and even pessimism, in sweeping tones, [such as] “my body won’t allow it”’;[45]
[45]Ibid.
(d) on physical examination, the panel had observed, among other things, the plaintiff’s lumbar spine to move ‘normally in flexion, extension and rotation’;[46]
[46]Ibid.
(e) the panel had observed ‘numerous non-organic signs’, although, with reference to identified aspects of its findings on examination, the panel confirmed that there were ‘no signs of central pain sensitisation’;[47]
(f) the panel noted a series of investigations by MRI, the most recent of which it considered to indicate ‘a substantially healed, chronic lumbar L4/5 disc injury’;[48] and
(g) consequently, having regard to the history given by the plaintiff, the panel’s findings on examination, the presentation of the plaintiff (as fit and muscular but protesting redeployment), the absence of signs of central sensitisation, the acceptance by the panel that ‘the plaintiff’s self-reported symptoms are factual’ and the radiological indications, the expert opinion of the panel was that the plaintiff had ‘non-specific low back pain’.[49]
[47]CB27-28.
[48]CB28.
[49]Ibid.
At that point in the reasons, it is evident that, among other things, the panel considered there to be –
(a) radiology indicating ‘a substantially healed, chronic lumbar L4/5 disc injury’ in an otherwise normally moving lumbar spine;
(b) accordingly, some minor degree of ‘chronic’ physical injury at L4/5 (albeit that there were no objective examination indicators of a persisting physical injury);
(c) some behavioural or psychological features in the plaintiff’s presentation (‘numerous non-organic signs’; protestation; lack of confidence); and
(d) no signs of central pain sensitisation.
In those circumstances, the panel stated that the plaintiff’s self-reported symptoms could be accepted ‘as factual’.
The features of the panel’s reasoning to which I have referred explain much about the form of the ‘relevant passage’, which followed. I have extracted that passage earlier, although it is convenient here to repeat it –
The Panel makes the following clinical observations for the non-expert reader. Non-specific low back pain can be understood from many perspectives including in terms of 1) unresolved physical injury (for which there is little clinical evidence, however, as a tool to ascertain the extent of a physical injury, clinical examination lacks sensitivity to detect a very subtle persisting injury and cannot exclude minor, physical injury at a biological level), 2) “central sensitisation” (referring to pain amplification, with or without a persisting physical injury), 3) psychological factors (if not an actual classifiable psychiatric pain disorder) and 4) social environment. For the purpose of assessing the plaintiff’s capacity, the Panel does not believe it is fruitful to speculate as to the objective accuracy of the plaintiff’s perceptions, and considers the clinical designation of “non-specific low back pain” as the most appropriate descriptor. It is important to note that despite the plaintiff’s contrary perception, the Panel’s use of the descriptor “non-specific low back pain”, also indicates the plaintiff is considered to have a normally functioning lumbar spine. Thus, the Panel considers the plaintiff has no objective lumbar spine dysfunction.
The Panel notes that since the injury occurred in 2017, the underlying disc injury is substantially resolved, however non-specific low back pain persists although has improved. The Panel therefore concludes, the plaintiff’s current non-specific low back pain continues to result from and is materially contributed to by the injury in employment with “Better Scaffolding and Truck hire” (the employer) in the period up to and including 22 August 2017.
I have noted that counsel for the plaintiff was critical of that passage, particularly for, it was said, refraining from providing a ‘specialist medical explanation’ of the plaintiff’s ‘genuineness’ as well as any medical basis in the plaintiff’s complaints.
In my view, however, it is plain that the panel specifically sought to explain what it meant by ‘non-specific low back pain’ for the benefit of the ‘non-expert reader’.
In particular, the panel explained that ‘non-specific low back pain’ is a ‘clinical designation’ encompassing a number of ‘perspectives’ in respect of a ‘normally functioning lumbar spine’, including –
(a) ‘unresolved physical injury’ in the nature of ‘very subtle persisting injury’ that clinical examination is insufficiently sensitive to detect – which, as I have noted, the panel evidently considered to be consistent with the plaintiff’s most recent radiology;
(b) central sensitisation – which the panel did not detect on examination;
(c) psychological factors but not a ‘classifiable psychiatric pain disorder’ – in respect to which, as I have noted, the panel noted behavioural or psychological features in the plaintiff’s presentation; however, in light of its reasons and answer to question 1(d), plainly not of a kind that could amount to a ‘classifiable psychiatric pain disorder’; and
(d) social environment.
In those circumstances, the panel specifically referred to and considered the issue of the ‘genuineness’ of the plaintiff’s ‘self-reported symptoms’. However, it did not consider it to be ‘fruitful’ to speculate as to the ‘objective accuracy of the plaintiff’s perceptions’ and simply accepted the plaintiff’s claims as ‘factual’. Plainly enough, the panel reached that view because the plaintiff’s claimed symptoms were consistent with its diagnosis of ‘non-specific low back pain’.
In short –
(a) the panel accepted that there was persisting minor physical injury of the plaintiff’s lumbar spine – which it diagnosed by reference to the ‘clinical designation’ of ‘non-specific low back pain’;
(b) the panel observed psychological or behavioural features that did not, however, amount to a ‘classifiable psychiatric pain disorder’; and
(c) the panel’s diagnosis made it unnecessary to determine whether or not the plaintiff’s complaints of symptoms were ‘genuine’.
I should say that various features of the subsequent reasoning of the panel are consistent with that analysis. Particularly, the later references of the panel to –
(a) the ‘outcome in this case’ of the resolution of a lumbar annular disc tear, ‘forming a scar (“high-intensity zone” visible on the MRI)’;[50]
[50]CB29.
(b) the plaintiff’s ‘perceived limitation in terms of his physical injury’;[51]
(c) any psychiatric consequences of physical injury not, in fact, being present;[52] and
(d) ‘persisting physical injury of the lower back’.[53]
[51]CB32.
[52]CB34.
[53]Ibid.
In the circumstances, I do not consider the reasons of the panel to be defective or otherwise marked by any need for impermissible speculation or ‘gap filling’. Read fairly, as a whole and in context, it is plain why it was that the panel answered the whole of question 1 as it did.
Further, the stated objective of what counsel for the plaintiff described as being the ‘relevant passage’ of the panel’s reasons was to provide clinical observations for the benefit of the non-expert reader. Read in proper context, it plainly did so.
Indeed, as an exercise in an expert medical panel explaining why it formed its opinion by applying its own medical experience and expertise,[54] the ‘relevant passage’ and the present panel’s reasons more generally were, in my view, exemplary.
[54]Cf., Wingfoot (n 28).
It follows that ground 1 must be rejected.
F. Ground 2: the panel failed properly to consider and address a fundamental issue
It will be plain that, in my view, the panel considered and did not fail to address the issues of whether –
(a) the plaintiff’s complaints of symptoms were ‘genuine’; and
(b) whether the plaintiff’s pain had an ‘organic or psychological basis’.
In particular, as explained, the expert panel’s diagnosis meant that –
(a) it could accept the plaintiff’s self-reported symptoms ‘as factual’ without any need to determine their ‘objective accuracy’; and
(b) the plaintiff’s condition involved a persisting physical injury to the lumbar spine and no diagnosable psychiatric condition.
More generally, the panel addressed all 11 of the questions posed by the County Court and explained its answers in written reasons that, in my view, were exemplary. It was certainly not required to do any more.
It follows that ground 2 must be rejected.
G. Conclusion
The proceeding must be dismissed. I will hear counsel concerning the form of final orders.
SCHEDULE OF PARTIES
S ECI 2022 00779
BETWEEN:
| ADAM GULIFA | Plaintiff |
| - and - | |
| DR CHRISTINE KOTSIOS | First Defendant |
| DR CECELIA ETULAIN | Second Defendant |
| ASSOCIATE PROFESSOR EVANGE ROMAS | Third Defendant |
| MR ROY CAREY | Fourth Defendant |
| DR ANITA VINTON | Fifth Defendant |
| VICTORIAN WORKCOVER AUTHORITY | Sixth Defendant |
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