Hatzigiakov v Cooney
[2022] VSC 308
•10 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00365
| KALIOPI HATZIGIAKOV | Plaintiff |
| v | |
| DR LAURA COONEY | First Defendant |
| -and- | |
| DR MATHEW TAGKALIDIS | Second Defendant |
| -and- | |
| DR DAVID FISH | Third Defendant |
| -and- | |
| DR ARMIN DRNDA | Fourth Defendant |
| -and- | |
| MR JOHN BOURKE | Fifth Defendant |
| -and- | |
| BROAD SPECTRUM (AUSTRALIA) PTY LTD | Sixth Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 May 2022 |
DATE OF JUDGMENT: | 10 June 2022 |
CASE MAY BE CITED AS: | Hatzigiakov v Cooney & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 308 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Extension of time – ‘Special circumstances’ – Circumstances including changes in counsel’s advice concerning whether to commence proceeding seeking judicial review – Re Norman (1886) 16 QBD 637, Mann v The Medical Practitioners Board of Victoria [2004] VSCA 148 and ReGreco [2018] VSC 175 considered – Whether panel committed jurisdictional error – Whether panel’s reasoning legally inadequate – Whether panel ignored, overlooked or did not ‘engage with’ elements of history, medical and radiological opinion – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 and Sidiqi v Kotsios [2021] VSCA 187 considered – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | KP Hanscombe QC with KA Bowshell | Zaparas Lawyers |
| For the First to Fifth Defendant | No appearance | DLA Piper Australia |
| For the Sixth Defendant | R Kumar | Thomson Geer |
HIS HONOUR:
A Introduction
On 19 February 2014, the plaintiff was washing a bathroom with a broom in the course of her employment with the sixth defendant when she experienced sudden low back pain which spread to involve numbness in her legs. There is no issue that the plaintiff suffered an injury to her spine at the L4/5 level.[1]
[1]Transcript ‘T’ 12.
The nature of the plaintiff’s medical condition relevant to the claimed injury, and whether right sacroiliac joint injections were ‘appropriate’, were the subject of a medical panel determination in December 2016.[2] Although there were moves to review that determination, it stands.
[2]Joint Court Book ‘JCB’ 118-125.
Subsequent disputes arose concerning the plaintiff’s entitlement to further medical and like expenses; specifically, whether a sequence of other treatments were ‘appropriate’. That resulted in proceedings being brought in the Magistrates’ Court and, ultimately, questions being referred to another medical panel.
A five member panel was assembled comprising two psychiatrists, an occupational and environmental physician, a neurosurgeon and an orthopaedic surgeon.
The ‘physical doctors’ – that is, the occupational and environmental physician, neurosurgeon and orthopaedic surgeon – examined the plaintiff with the assistance of a professional Greek language interpreter on 4 December 2019.
The panel was provided with a collection of documents and other information, including written submissions prepared on behalf of the plaintiff and sixth defendant respectively.[3]
[3]JCB72-96, see also, JCB993.
The panel answered five questions, including the following –
Question 1What is the nature of the plaintiff’s medical condition relevant to the claimed low back injury on 19 February 2014, with respect to;
(a) Injury to low back;
(b) Referred bilateral leg pain;
(c) Psychiatric sequelae;
(d)Secondary injury to the (right) hip, including greater trochanteric bursitis, small hip effusion with labral tear, delamination tear to the anterior gluteus medius tendon and small tear in the mid gluteal muscle?
Answer: The Panel is of the opinion that the worker is suffering from:
(a)-(b)A now largely resolved L4/5 disc injury relevant to the claimed low back injury on 19 February 2014.
The Panel is also of the opinion that Ms Hatzigiakov is suffering from a right L5/S1 disc prolapse with referred symptoms to the right leg but that this is not relevant to the claimed low back injury on 19 February 2014.
(b)A chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood relevant to the injury on 19 February 2014,
(c)A soft tissue injury of the right hip but that this is not relevant to the claimed injury on 19 February 2014.[4]
[4]JCB977-978.
In its reasons for opinion,[5] the panel recorded an agreed sequence of relevant events and then addressed the history given to the panel by the plaintiff, including her description of the circumstances of injury and subsequent course of treatment.
[5]JCB979-993.
Thereafter, the panel recorded as follows –
Subsequent injury
Ms Hatzigiakov told the Panel that:-
•Sometime in October 2016 she suffered a further incident. She was sitting on the couch at home when she experienced a sudden onset of more severe lower back pain which spread into the right buttock and leg. It spread down the entire right leg and into the foot.
•She consulted a 2nd neurosurgeon and was advised to undergo back surgery.
•She was seen by a 2nd pain management physician who advised a right sacral S1 nerve root injection.
•She underwent further imaging including a further MRI scan and a MRI scan of the right hip.[6]
[6]JCB983.
The panel recorded the plaintiff’s current situation and treatment, her past history, matters relating to her psychological condition and the results of physical and mental state examinations.
As to the medical tests and investigations, the panel stated –
The Panel examined no medical imaging, as none was available and considered none were necessary to complete the assessment. The Panel also concluded that no additional information was required from the worker’s treating practitioners to complete the assessment. The Panel however reviewed the reports of medical imaging in the supplied documents and in particular noted:-
•CT scan of the lumbar spine dated 24 February 2014. The Panel noted the conclusion “…some diffuse disc bulging tendency at L4-5, extending into the neural exit foramina. The disc bulge impresses the anterior aspect of the thecal sac”.
•Bone scan with SPECT dated 26 September 2014. The Panel noted the conclusion “No significant abnormality. Vert minor abnormality in relation to the right sacroiliac joint, best explained by mild osteoarthritis although, the differential diagnosis is a healed stress fracture given the patient di[d] have trauma in February 2014”.
•MRI scan of the lumbar spine dated 26 March 2015. The Panel noted the conclusion “There is a small central posterior disc protrusion at L4/5 with an associated annulus tear but there is no nerve root compression seen”. The Panel further noted the statement “At L5/S1: There is no disc pathology seen. No foraminal narrowing”.
•MRI scan of the lumbar spine dated 29 July 2015. The Panel noted the conclusion “1. Mild L4/5 lumbar canal stenosis secondary to central L4/5 disc prolapse on a background of an acute annular tear. Impingement of both L5 nerve roots within both lateral recesses is noted. 2. Minor L5/S1 lumbar canal stenosis secondary to central L5/S1 disc prolapse with subtle impingement of both S1 nerve roots within both lateral recesses. 3. Mild lower lumbar spondylosis and mild bilateral L4/5 and bilateral L5/S1 face joint osteoarthritis”.
•Weight bearing MRI scan of the lumbar spine dated 18 October 2016. The Panel noted the statement “At L4/5, there is a broad based disc bulge, minimally contacting both traversing nerve roots without compression” and “At L5/S1, there is a right paracentral disc protrusion, extending into the right subarticular recess, mildly contacting and compressing the traversing right S1 nerve root”.
•MRI scan of the lumbar spine dated 20 February 2018. The Panel noted the conclusion “Disc sequestration arising from the right S1 of the L5/S1 disc deforming the transiting right S1 nerve root”.
•MRI NR buttock right side dated 14 September 2018. The Panel noted the statements “Delamination tear of the anterior gluteus medius tendon and small tear of the mild gluteus medius muscle insertion. Moderate trochanteric bursitis” and “Small hip joint effusion, small, chronic anterosuperior labral tear and low grade inflammatory change at the foveal insertion of ligamentum teres. Articular cartilage preserved”.
The Panel noted that the medical imaging of the lumbar spine had identified an L4/5 disc lesion on and following 24 February 2014 and that specifically there was no disc pathology seen in the L5/S1 disc. The Panel noted that by 18 October 2016 there was reported L5/S1 disc prolapse resulting in a right sided paracentral disc protrusion compressing the right S1 nerve root. The Panel therefore concluded that the right S1 disc protrusion had arisen after the date of injury of October 2016 and was no[t] related to the claimed low back injury of 19 February 2014.[7]
[7]JCB989-990.
That passage – particularly the final sentence – came to be the focus of the plaintiff’s present contentions.
After the passage to which I have referred, the panel addressed the topic of video surveillance – which it considered to disclose actions inconsistent with the plaintiff’s current presentation, including upon examination by the panel – and thereafter stated its analysis and conclusions, including the following as to ‘physical diagnosis’ –
The Panel concluded that Ms Hatzigiakov is suffering from a now largely resolved L4/5 disc injury relevant to the claimed low back injury on 19 February 2014.
The Panel also concluded that Ms Hatzigiakov is suffering from a right L5/S1 disc prolapse with referred symptoms to the right leg but that this is not relevant to the claimed low back injury on 19 February 2019.[8]
[8]JCB991.
It followed from the above that the panel did not consider the proposed treatments in respect of the plaintiff’s physical complaints to be appropriate because ‘the L5/S1 disc injury … had arisen subsequent to and was not relevant to the claimed injury of 19 February 2014’.[9]
[9]Ibid.
For completeness, the panel referred to and discussed aspects of the opinions of, among others, Dr McCallum, Mr Timms and Professor Bittar.[10] It also noted the respective submissions of the plaintiff and sixth defendant.[11]
[10]JCB992.
[11]JCB993.
B The present proceeding
It is not in issue that the present proceeding was commenced outside the 60 day period prescribed by rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
There was a difference between the parties as to whether the period beyond the 60th day was 42 or 58 days, although each acknowledged that nothing of significance presently turns upon the difference.
The application for an extension of time was supported by two affidavits sworn by the plaintiff’s solicitor.[12] There was also an affidavit sworn by a law clerk employed by the solicitors for the sixth defendant.[13] The sixth defendant opposed the application.
[12]JCB48-1001. A more detailed explanation appears in the second of the two affidavits: JCB995-1001.
[13]JCB1002-1005.
The plaintiff’s originating motion came to be amended on more than one occasion. At some point, grounds 2 and 3 – which were directed to alleged legal unreasonableness and denial of procedural fairness in respect of the panel’s finding that the injury at L5/S1 occurred at home in October 2016 – were abandoned.[14] Ultimately, grounds 1 and 4 remained. By those grounds, in substance, the plaintiff contends that –
(a) the panel committed jurisdictional error by failing to have regard to relevant considerations when finding that the plaintiff had suffered a disc prolapse at the L5/S1 level that was not work related; and/or
(b) the reasons of the panel were legally inadequately in that, it is said, the panel failed to explain ‘a path of reasoning to the conclusion that the plaintiff’s employment did not cause the L5/S1 injury’.
[14]Amended originating motion for judicial review dated 16 February 2022, 9-10: JCB38-39.
It will be evident that there was a significant degree of overlap in the arguments directed to the two grounds. In each, the centrepiece was the report of an MRI scan of the plaintiff’s lumbar spine undertaken on 29 July 2015.[15]
[15]JCB191.
That said, in connection with the allegation of jurisdictional error, the plaintiff also contends that the panel failed to ‘give real and genuine consideration’ to a sequence of aspects of the material before it, particularly –
c)the history recorded by the treating general practitioner, Dr Andrianakis, that the Plaintiff reported experiencing severe and persistent pain radiating down the right leg in the days shortly after the incident on 19 February 2014;
d)the history recorded by Mr Robin Williams, an expert orthopaedic surgeon, on 19 March 2014 that the Plaintiff was experiencing persisting pain and pins and needles in both thighs and the soles of both feet and her reporting having experienced intermittent pain and pins and needles in the right lower limb;
e)the history recorded by Professor Richard Bittar, treating neurosurgeon, that the Plaintiff presented on 11 July 2014 reporting lower back pain radiating into both thighs;
…
h)the history recorded by Dr Symon McCallum that on 24 November 2014 the Plaintiff had some pain in her legs at the time of examination but this time it was worse on the right than the left;[16]
[16]The expression of this particular was amended in the course of argument: T18.
ha)the Plaintiff’s medical history that she had felt pain going down her legs since 14 February 2014, increasing in 2015;
i)the radiological evidence of the MRI scan taken on 29 July 2015 which was reported as showing minor L5/S1 lumbar canal stenosis secondary to central L5/S1 disc prolapse with subtle impingement of both S1 nerve roots within both lateral recesses;
j)the opinion of Mr Rodney Simm, expert orthopaedic surgeon, that the radiological film of the MRI scan dated 29 July 2015 showed no evidence of compression of either of the adjacent sending nerve roots at the L4/5 level, but it did however show impingement of both S1 nerve roots;
k)the opinion of Mr Rodney Simm that the radiological film of the weightbearing MRI scan performed on 18 October 2016 showed the protrusion of the L5/S1 disc to the right contacting the right S1 nerve root, which he considered would be consistent with her right lower leg symptoms;
l)the opinion of Professor Richard Bittar that the Plaintiff’s L5/S1 disc prolapse was not visible on previous non-weight-bearing MRI scan but is visible on weight-bearing MRI scan, and further this is consistent with her symptoms which are worse on weight-bearing. The Panel had before it Professor Bittar’s opinion that the L5/S1 disc injury is related to her employment, specifically the injury which occurred on 19 February 2014;
m)the statement of Professor Peter Teddy, that on 5 March 2015 the Plaintiff reported to him she was experiencing pain which was shooting into both legs and sometimes feet. She reported occasional pins and needles and numbness bilaterally;
…
p)the radiological evidence that the Plaintiff’s injury at the L4/5 level did not cause nerve root compression.[17]
[17]Amended originating motion for judicial review dated 16 February 2022, 7-8: JCB36-37.
The sequence of material to which I have referred is by no means the whole of the relevant medical or other material that was before the panel.
By the further amended originating motion,[18] the plaintiff seeks that the opinion of the panel be quashed and an order in the nature of mandamus remitting the medical questions to a differently constituted panel to be determined in accordance with law.
[18]JCB30-42.
The first to fifth defendants – being the members of the panel – adopted the Hardiman position.
C Extension of time
As I have noted, the plaintiff commenced the present proceeding out of time and seeks an extension.
Rule 56.02 of the Supreme Court Rules provides, relevantly, as follows –
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief of remedy claimed first arose.
…
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
The words ‘special circumstances’ are ‘wide, comprehensive, and flexible’ and what is ‘special’ is that which appears to be ‘exceptional’.[19] In Mann v Medical Practitioners Board of Victoria, Hansen AJA (with whom Chernov and Nettle JJA agreed) identified that which is ‘special’ as that which is ‘not general in character’.[20]
[19]Re Norman (1886) 16 QBD 673, 675 and 677.
[20][2004] VSCA 148 [68].
In considering the issue, the Court has in recent times identified several particular considerations, including some that are familiar in connection with the extension of periods of limitation in personal injury actions.[21]
[21]Lazarevic v Victoria Police [2014] VSC 497 [29]-[36]; ReGreco [2018] VSC 175 [18].
As I have noted, the plaintiff relies upon two affidavits of the plaintiff’s solicitor and the sixth defendant relies upon the affidavit of the law clerk handling the matter.
The substance of the position is that the plaintiff’s solicitor, who was quite junior at the time and inexperienced in matters involving judicial review, sought the advice of counsel concerning whether an application should be made for judicial review of the determination of the panel. That advice was sought well within the 60 day period. In that connection –
(a) on 17 October 2019 the solicitor was advised by the barrister who had prepared the plaintiff’s written submissions to the panel that she did not think that there were grounds for review;
(b) subsequently, the solicitor briefed junior and senior counsel to provide a second opinion and, on 18 November 2019, she received advice from junior counsel, expressed to be shared by very experienced senior counsel, that there were no grounds for review; and
(c) consequently, the 60th day, being 25 November 2019, passed without any application for judicial review being commenced.
A matter of days later, the same junior counsel, having apparently spoken with a different member of senior counsel, emailed the solicitor to the effect that he had changed his mind and that ‘the better course’ would be to issue a judicial review proceeding and seek an extension of time.
The solicitor sought permission and then briefed new senior counsel – leading the same junior counsel – to prepare the Court documents. Time passed while draft documents were with senior counsel. On 23 December 2019, a draft affidavit of the plaintiff and settled originating motion was emailed to the solicitor, but not to any other solicitor at the firm. An advice was emailed the following day. By that point, the solicitor was overseas on leave and her assistant was also on leave. It seems that the firm was closed for a period, which is not unusual. Later, the assistant did not forward the documents to another solicitor at the firm because she thought that they had been received by the solicitor. But the solicitor did not have international roaming, does not recollect seeing the emails and, in any event, the suite of documents relating to the proposed proceeding or proceedings was not then complete.
The solicitor returned on 14 January 2020 and there was further communication with counsel relating to the Court documents. The documents came to be finalised on 21 January 2020.
It seems that two proceedings were commenced the following day – the present proceeding as well a separate proceeding directed to the determination of the earlier medical panel in December 2016. During the period to which I have referred, the solicitor did not communicate with the solicitors for the sixth defendant.
The separate proceeding directed to the medical panel determination in December 2016 (S ECI 2020 00296) was later dismissed by consent.
Albeit that the sixth defendant acknowledges that there is no specific prejudice, it contends, in substance, that the circumstances are not ‘special’. In particular, it submits that when the ‘merits of the judicial review grounds are taken into account’ there are ‘no real prospects of success’. It also criticises the circumstances by which time passed without the Court documents being finalised. It is said that there is an insufficiency of explanation.[22]
[22]Sixth defendant’s outline of submissions dated 11 November 2021, [21]-[24]: JCB18-19.
As I have noted, the words ‘special circumstances’ are ‘wide and flexible’. I acknowledge that the words are discouraging rather than encouraging. However, what is ‘special’ in any particular case (or not) must ultimately come down to a matter of impression. It is not possible to say that particular circumstances in one case will necessarily appear to be ‘special’ in another. Even minor differences could change the overall character of the impression conveyed.
In the present case, while I do not accept that the circumstances by which advice came to be and was given by a sequence of different counsel is ‘unforeseeable’, the circumstances remain somewhat unusual. What is particularly unusual are the circumstances by which the time limit came to expire in circumstances in which the very same junior counsel advised the solicitor one way shortly prior to the deadline and the opposite way shortly after it (albeit said to be with the benefit of the differing but even now largely unspecified views of a different senior counsel).
I accept that, in the circumstances of this case, whether or not such proceedings would come to be commenced was appropriately to be determined by whether or not counsel gave approving advice. The solicitor was junior and properly reliant upon counsel. Judicial review is a technical area in which many solicitors are not expert. Even if she had previously mused about grounds of review concerning the 2016 determination of the earlier medical panel, it does not seem to me to follow that it was inappropriate for her to approach the question of the commencement of any proceedings and the content of the documents required with a considerable degree of caution. In this case, what grounds might be open in respect of what particular panel determinations seem to me to have raised issues of considerable complexity. It follows that I do not accept that the solicitor should have acted without the approving advice of counsel (especially in circumstances where earlier counsel familiar with the matter had advised against proceeding).
As to the period after expiry of the 60th day, the solicitor has been frank in her explanation. Those events are also somewhat unusual – in that practically everything that could go wrong did go wrong in the period in and surrounding the Christmas vacation; all of which conspired to see the proceeding not be commenced until 22 January 2020.
It is possible to say – particularly with the benefit of hindsight – that the solicitor or perhaps the firm that employed her should have put in place backup systems or pathways in order to ensure that the Court documents were prepared, finalised and filed at an earlier time. However, nothing specific seems to turn upon that effluxion of time, as there is no specific prejudice. Further, the solicitor did not do nothing before and after the period that she was away, was junior and seems to have conducted herself on the basis that things would be progressed in her absence, albeit that they were not. After she got back from overseas, she seems to have moved as swiftly as she could.
For these reasons, I do not regard the sixth defendant’s criticisms concerning the period after the expiry of the 60th day as significantly affecting any assessment of the character of those events. In my view, the solicitor’s explanation is sufficient.
As I have noted, the sixth defendant otherwise points to the merits. The merits are arguable. It is not appropriate to say more than that in respect of the present question.
I accept that the circumstances are ‘special’ and would extend time in order to allow the proceeding to have been commenced on 22 January 2020.
D Jurisdictional error – relevant considerations
As I have noted, the plaintiff’s ground 1 seeks to advance the contention that the panel ignored relevant material and therefore fell into jurisdictional error.[23]
[23]Craig v South Australia (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 [82]. Cf., Chang v Neill (2019) 62 VR 174 [92].
In that connection, senior counsel for the plaintiff submitted that the MRI scan report dated 29 July 2015 as well as other aspects of the evidence had not been taken into account by the panel ‘other than in the trivial sense of writing them down’. She submitted that the panel had not –
… given real and genuine consideration to the radiologist’s report of that lumbar scan of July 2015 and they haven’t given an explanation of their reasoning that allows them to jump over, in this conclusion, the clinical findings in July 2015, and that’s the nub of our complaint.[24]
[24]T17.
More generally, senior counsel for the plaintiff submitted that –
… the nub of the case that we seek to advance is really quite simply put and that is that the objective evidence such as it was available showed that this injury at L5/S1 was already well present and generating clinical symptoms in July 2015. If that’s right, the panel’s reasoning that that injury was caused on the couch in some way in October 2016 can’t be justified. Sorry, I withdraw ‘justified’, can’t be understood in any sensible way - the path of comprehensible, that’s what Wingfoot v Kocak requires and that’s what we haven’t got.[25]
[25]T19.
I have earlier referred to the particularised aspects of the evidence presently emphasised by the plaintiff. In substance, that boils down to –
(a) the plaintiff’s history of pain and referred symptoms since the incident on 19 February 2014;
(b) the report of the MRI scan of the plaintiff’s lumbar spine dated 26 March 2014;[26]
(c) the report of the MRI scan of the plaintiff’s lumbar spine dated 29 July 2015;[27] and
(d) aspects of the histories given to and/or opinions expressed by Dr Andrianakis, Mr Williams, Professor Bittar, Dr McCallum, Mr Simm and Professor Teddy.
[26]JCB189.
[27]JCB191.
It may be doubted that the present argument amounts to a complaint that the panel failed to take into account a relevant consideration as opposed to a failure to take into account evidence or facts concerning a relevant consideration or, perhaps, the making by the panel of a factual error that constitutes constructive failure to exercise jurisdiction.[28] Whatever might be said to be its correct characterisation, ‘the nub’ of the argument is clear enough.
[28]Chang v Neill (2019) 62 VR 174 [67]-[92].
In response, the sixth defendant emphasised various relevant principles, particularly the following passages from the decision of the Court of Appeal in Sidiqi v Kotsios –
34The character of the Panel’s function means that opinions on medical questions of fact raised by the questions asked of it will necessarily be informed by expertise which the Court does not possess and which will potentially govern the relevance and weight which is to be accorded to any particular aspect of the circumstantial evidence.
…
36The nature of the Panel’s functions means that this Court cannot approach judicial review in the same way which it would with respect to the decision of a body exercising an adjudicative function and it cannot approach judicial review in the way in which it would if the Panel did not possess expertise which the Court does not.
…
41In a fundamental sense, it is for the Panel itself to determine what information is sufficient to found an opinion with respect to a medical question.
To those passages, I would add the following, also from Sidiqi v Kotsios –
49When an inference is to be drawn by way of the opinion of a medical panel as to the nature, extent and severity of a medical condition, it follows from what we have said concerning the panel’s function that it will be for the panel to identify the relevant facts and evaluate the weight to be given to particular circumstances in the light of its medical knowledge and experience.
50In some cases, different facts or combinations of facts may support opposing inferences. The medical panel is not required to arrive at scientific certainty but to arrive at an opinion on the balance of probabilities. In some cases, such an opinion may be one on which rational minds might differ.
In respect of the finding to which the plaintiff directs particular attention,[29] the sixth defendant submits that it should be read as having been to the effect that the right S1 disc protrusion arose on or after 19 February 2014.[30] In substance, it is submitted that the panel’s reference to ‘October 2016’ must be taken to have been in error.
[29]‘The Panel therefore concluded that the right S1 disc protrusion had arisen after the date of injury of October 2016 and was no[t] related to the claimed low back injury of 19 February 2014’: JCB990.
[30]Sixth defendant’s outline of submissions dated 11 November 2021, [33]-[34]: JCB21-22. See also, T26-27.
It may be that this submission came to be advanced with a view to sidestepping the grounds of the plaintiff directed to the contention that the panel erred in finding that the injury at L5/S1 had been suffered in an incident at home in October 2016. As I have noted, the plaintiff’s grounds 2 and 3 were abandoned prior to trial and, in argument, senior counsel to did not go to either of the two affidavits that the plaintiff appears to have sworn.[31]
[31]JCB43-47 and JCB1609-1612. Albeit that both affidavits are sworn the same date, and cover some of the same subject matter, they are not the same. It may also be said that some of the language in the affidavits is both indirect and unusual.
The manner in which the plaintiff’s argument was presently advanced is identified above, particularly at [47]. It seemed at least implicit in that argument that the plaintiff was endeavouring to displace the panel’s finding concerning the injury at home in October 2016 without having to come at it directly.[32]
[32]That the plaintiff might have been wary of seeking to approach that finding directly is, perhaps, unsurprising in light of the content of the history recorded by the earlier medical panel concerning injury whilst sitting on a couch at home: JCB121. See also, the report of Dr Hwang dated 19 June 2017: JCB292. It will also be evident that the form of the plaintiff’s subsequent affidavits may be thought to have raised considerably more questions than they might evidently have been intended to answer. For example, in both it is sworn that the plaintiff told the panel that the pain that she felt after the incident on 19 February 2014 was ‘different from what I had felt before’: JCB45, JCB1611. However, the panel evidently asked the plaintiff about recorded ‘episodes’ of back pain some years before the incident on 19 February 2014 and she is recorded as having been unable to recall them: JCB984. Further, she is recorded by Professor Bittar and Dr Hwang as having no prior back pain or symptoms: JCB197, JCB256. Albeit that Mr Simm recorded a ‘history of soreness… over a year or two’ prior to 19 February 2014: JCB312.
Whatever might be the proper interpretation of events and the motivations behind them, I do not accept the submission of the sixth defendant that the passage to which I have referred should be read as if it did not include reference to ‘October 2016’. It is evident from the earlier reasoning of the panel that it found that the plaintiff had suffered injury in an incident at home ‘in October 2016’.[33] It seems to me to be highly improbable that the panel was not intending to refer to that finding when later using exactly the same date in connection with a conclusion that the plaintiff had suffered an injury unrelated to that suffered at work on 19 February 2014.[34]
[33]JCB983.
[34]JCB990.
Further, the construction proffered by the sixth defendant would require either that the words ‘of October 2016’ be deleted entirely or that the sentence be re-interpreted as if to read –
The Panel therefore concluded that the right S1 disc protrusion had arisen after the date of injury of 19 February 2014 and was no[t] related to the claimed low back injury of 19 February 2014.
The awkwardness of expression compelled by either re-interpretation tells against it.
I should add that I do not consider any of the above to be altered by what the panel said shortly thereafter concerning ‘physical diagnosis’.[35] That is simply a shorthand way of referring to what has earlier been determined. It does not purport to stand in substitution for it.
[35]‘The Panel also concluded that Ms Hatzigiakov is suffering from a right L5/S1 disc prolapse with referred symptoms to the right leg but that this is not relevant to the claimed low back injury on 19 February 2014.’: JCB991.
As to the elements of material said by the plaintiff to have been ignored or overlooked by the panel, I do not accept that it ignored or overlooked the plaintiff’s claim that she had suffered low back pain and referred symptoms since the incident at work on 19 February 2014.
The plaintiff is recorded as having given such a history to several medical practitioners, the reports of whom were before the panel. It was also the effect of the plaintiff’s written submissions, which the panel said that it had read.[36]
[36]Submissions of the plaintiff dated 11 April 2019, 1-2: JCB72-73. See also, JCB993.
More particularly, the panel’s reasons are consistent with such a proposition having been given to it by the plaintiff, including in respect of what the panel records as having been told by the plaintiff when describing the injury[37] and in respect of the ‘current situation’.[38] It is also a claim noted by the panel when referring to ‘other reports’, particularly in respect of the opinions of Dr McCallum and Mr Timms.[39]
[37]’On 19 February 2014 … she experienced a sudden onset of lower back pain which spread to involve numbness in the legs…’: JCB982-983.
[38]‘She now suffers no symptoms in the left leg but has right hip soreness and that her right leg goes numb.’: JCB983.
[39]Dr McCallum: ‘… I am under the impression that Kaliopi did not have problems with her right buttock pain until the workplace incident on 19 February 2014 …’ and Dr Timms: ‘Since her workplace injury she has had back pain and right leg sciatica with leg weakness and a sensory deficit.’: JCB992.
It follows that I do not accept that the panel overlooked the plaintiff’s histories of back pain and referred symptoms apparently given to Dr Andrianakis, Mr Williams, Professor Bittar, Dr McCallum and Professor Teddy.[40] The Panel said that it formed its opinion with regard to the documents and information provided, and that included the reports of those practitioners. It was unnecessary for the Panel to spell out every possible source of a history that it plainly received and acknowledged sufficiently in its reasons.
[40]Cf., Amended originating motion for judicial review dated 16 February 2022, [14] particulars (c), (d), (e), (h) and (m): JCB36-37.
More broadly, however, I am mindful that –
(a) the panel found that the plaintiff suffered an injury at L4/5 in the incident at work on 19 February 2014 that, at the time of the panel’s determination, was ‘now largely resolved’;[41]
[41]JCB977.
(b) nowhere in the panel’s reasons is it suggested that there was a period in which the plaintiff had not complained of pain and some degree of referred symptoms;
(c) the panel recorded being told that the plaintiff had suffered ‘a further incident’ on the couch at home in October 2016 which involved ‘a sudden onset of more severe lower back pain which spread into the right buttock and leg’;[42] and
(d) the panel was plainly of the view that those ‘more severe’ symptoms came on in October 2016 and were precipitated by a ‘right S1 disc prolapse’ in or following the couch incident.[43]
[42]JCB983.
[43]JCB992.
In these circumstances, it seems to me to be explicable that the panel would not have engaged further with the plaintiff’s other histories of pain and symptoms prior to the couch incident as –
(a) it was accepted that there was a L4/5 injury arising out of the incident on 19 February 2014, so it may be accepted that the plaintiff would subsequently have claimed back and even some degree of referred symptoms;
(b) there was, however, a history given by the plaintiff of a further incident in October 2016 which brought on ‘more severe’ symptoms;
(c) those symptoms may be and were considered by the panel to correlate with contemporaneous radiological investigation;[44] and
(d) therefore the panel – using its own expertise and experience – was well entitled to form the view that there was a difference in both the plaintiff’s symptoms and the pathology of her spine at L5/S1 after the couch incident.[45]
[44]Particularly, the weight bearing MRI scan dated 18 October 2016: see, JCB990.
[45]In this, I am conscious that the plaintiff contends that the panel, in effect, erred in not giving ‘real and genuine consideration’ to the opinion of Mr Bittar to the effect that the pathology at L5/S1 had become visible in the weight bearing MRI scan of 18 October 2016. It will be evident that I am of the view that the panel was entitled to form its own view in respect of that issue in light of the material before it and the history that it received – particularly about the ‘couch incident’. In that context, it stated why it disagreed with the view of Professor Bittar concerning treatment – it did not consider the pathology at L5/S1 to be related to the incident of 19 February 2014: JCB992.
In that sense, while the plaintiff tended to treat the present argument as ‘upstream’ from and distinct to the findings of the panel concerning the couch incident, in my view they are not so easily separable. In particular, the latter explain the approach of the panel to the former, especially in circumstances when the history received in respect of the couch incident was evidently one of symptoms that are ‘more severe’ than those that preceded it.
In any event, it is presently sufficient to observe that I do not accept that the panel failed to take account of the plaintiff’s various histories of pain and referred symptoms prior to the couch incident.
That brings me to the plaintiff’s contentions concerning the radiology reports of 26 March 2014 and 29 July 2015.
In that connection, the plaintiff relied upon the MRI scan report dated 26 March 2014[46] in support of a contention that the injury at L4/5 did not cause nerve root compression and so could not thereafter stand as an explanation for the plaintiff’s claims of referred symptoms. The plaintiff, of course, sought to implicate injury at L5/S1 as an early source of those claimed symptoms.
[46]JCB189. The plaintiff’s oral argument was directed to the MRI scan report of 26 March 2014: see, T19. The plaintiff’s written argument also sought to call in aid the CT scan report of 24 February 2014: see, JCB5. Among other things, however, the CT scan report of 24 February 2014 does not identify any relevant pathology at L5/S1: see, JCB188-189. Much of the reasoning that follows applies equally to the CT scan report of 24 February 2014.
The MRI scan report dated 26 March 2014 records the plaintiff’s complaint of ‘left leg radicular pain’. It refers to pathology at L4/5, including ‘a broad based central posterior disc bulge and annulus tear’, but does not record any evidence of nerve root compression.
It is, however, not obvious how that report can be used to implicate an injury at L5/S1. In respect of L5/S1, the report states the impression of the radiologist that –
At L5/S1: There is no disc pathology seen. No foraminal narrowing. There is no spinal cord stenosis. The nerve roots of the cauda equina appear normal. The paravertebral soft tissues are normal.[47]
[47]JCB189.
Equally, it is not clear how that report – which is directed to a clinical presentation of ‘left leg radicular pain’ – could be said to highlight jurisdictional error of the panel in finding a subsequent ‘right S1 disc protrusion’ [emphases added].[48]
[48]Ibid. See also, JCB990-991. Noting, of course, that by the time that she attended the panel the plaintiff did not complain of any symptoms in her left leg, but of a right leg that ‘goes numb’: JCB983.
In any event, it must steadily be borne in mind that such a report records no more than the impression of the radiologist, and that the opinions of medical practitioners can vary considerably concerning what is shown on radiological investigation and whether any and if so what clinical significance should be attributed to it.[49] To speak of the impressions of a medical practitioner concerning radiological images as ‘objective evidence’ can be significantly to overstate both the opinion concerned and what it actually purports to comprise.
[49]Cf., Dordev v Cowan [2006] VSCA 254 [17].
In the material before the panel there are, in fact, examples of differences in the reported content of images taken at similar times as well as in the opinions concerning what is shown.
For example, on 11 July 2014, Professor Bittar examined the plaintiff and recorded her complaint of ‘lower back pain radiating into both thighs’. He examined the MRI of 26 March 2014, referred to pathology at L4/5 and, seemingly unlike the reporting radiologist, considered the MRI images to show ‘mild subarticular stenosis, worse on the left’. He made no mention of L5/S1. In that context, he concluded the plaintiff to present ‘with a fairly clear-cut work related back injury which is causing fairly severe disability’.[50]
[50]JCB200.
Notwithstanding the above, a bone scan ordered by Professor Bittar a few months later was reported as revealing ‘no significant abnormality’.[51] Subsequently, Professor Bittar reviewed the plaintiff, noted her complaints of ‘predominantly left-sided’ low back pain, confirmed that the bone scan had not demonstrated ‘any relevant abnormalities’, reassured the plaintiff and suggested that she undertake a pain management programme.[52]
[51]JCB190.
[52]JCB201.
In the same period, the plaintiff was examined by Mr Hwang, consultant occupational physician.[53] In a report dated 15 August 2014, Mr Hwang recorded the plaintiff’s complaint of pain radiating into the left leg, although it was said previously to have radiated into both legs. Mr Hwang did not see the report of MRI scan of 26 March 2014, but considered the earlier CT scan of 24 February 2014 to disclose ‘normal degenerative changes without a specific focal pathology’. In his view, there was ‘probably a physical organic source of pain’, although he considered the plaintiff’s pain perception to be amplified by ‘psychosocial factors’.
[53]JCB255-263.
By June 2015, however, Dr Hwang considered the plaintiff’s physical findings to be ‘dominated by non-organic features’. He could not ‘determine with any certainty the presence of any ongoing pathology or structural injury’.[54]
[54]JCB268.
In July 2015, the plaintiff underwent further MRI scanning in respect of which a radiologist different to that who had interpreted the March 2014 images considered, among other things, ‘impingement of both L5 nerve roots within both lateral recesses’ to be shown.[55]
[55]JCB191.
As I have noted, the material before the panel also contained opinions expressed by other medical practitioners.
In this context, it seems to me very much to have been a case in which the panel was required to use its combined expertise in order to form its own opinions in respect of the medical questions.
In that connection, in the passage leading up to the finding now sought to be impugned, the panel referred to the imaging reports in the ‘supplied material’ and from that ‘noted’ certain identified imaging reports. The noted reports included the report of the MRI scan dated 26 March 2014, albeit that the panel identified it as ’26 March 2015’. Nothing turns on the typographical error. The panel noted that ‘no nerve root compression’ was seen at L4/5 and that ‘no disc pathology’ or ‘foraminal narrowing’ was seen at L5/S1.[56]
[56]JCB989-990. I should note, for completeness, that the panel also there noted the CT scan report dated 24 February 2014.
In light of what I have said, I cannot accept that the panel overlooked or ignored the report of MRI scan dated 26 March 2014 in the conclusions which it subsequently expressed. What the panel said about the MRI scan of 26 March 2014 was consistent with and specifically embraced by the panel’s reference to the effect of imaging ‘on and following 24 February 2014’.
Further, for the reasons which I have endeavoured to explain, I do not consider that the report of MRI scan dated 26 March 2014 compelled the panel to express any particular conclusion concerning the plaintiff’s claims of referred symptoms, particularly insofar as she claims to have experienced right sided symptoms.
In this context, it seems to me to be pretty apparent that the panel understood the position prior to the couch incident in October 2016 to be more complicated than simply the interpretation of one scan by one radiologist in March 2014.
In that regard, in the passage of reasoning concerned, the panel referred to each of the radiological reports to which I have referred – 24 February 2014, 26 March 2014, 26 September 2014, 29 July 2015 and 18 October 2016; as well as those of 20 February 2018 and 14 September 2018 – and thereafter expressed its interpretation of the significance of the overall sequence.
In my view, the plaintiff has not demonstrated any jurisdictional error of the panel in so reasoning and, as I have indicated, I do not accept that the panel ignored or overlooked the MRI scan report of 26 March 2014 which, after all, it specifically mentioned.
Much of the above applies equally to the ‘centrepiece’ of the plaintiff’s argument, directed to the MRI scan report dated 29 July 2015.
Counsel for the plaintiff emphasised the following passage in that MRI scan report –
Minor L5/S1 lumbar canal stenosis secondary to central L5/S1 disc prolapse with subtle impingement of both S1 nerve roots within both lateral recesses.[57]
[57]JCB191. Cf., T13.
As earlier noted, counsel submitted that this ‘objective information’ contradicts the finding of the panel that the ‘right S1 disc protrusion’ arose after October 2016 and was unrelated to the incident of 19 February 2014. It followed, it was submitted, that the information must have been overlooked or ignored.
It is not clear how the MRI scan report of 29 June 2015 could be said to demonstrate that the right disc pathology was related to the incident on 19 February 2014 in light of the reports of investigations which preceded it and to which the panel referred.
In any event, as I have indicated, the relevant reasoning of the panel referred to the sequence of radiological investigations, including the MRI scan report dated 29 July 2015, and specifically noted the impression of the radiologist concerning pathology at L5/S1 including ‘subtle impingement of both S1 nerve roots’.[58]
[58]JCB990.
Thereafter, however, the panel referred specifically to the report of the weight bearing MRI scan dated 18 October 2016 which referred to compression of ‘the traversing right S1 nerve root’ [emphasis added].[59]
[59]Ibid.
As I have earlier indicated, the panel’s consideration of that element of the radiological impressions cannot be considered independently of the history earlier recorded by it that the plaintiff had suffered a further incident on the couch at home ‘in October 2016’ in which she had experienced sudden and ‘more severe’ back pain and right sided symptoms.[60]
[60]JCB983.
Once that is acknowledged, the subsequent reasoning of the panel seems to me to be perfectly explicable, including the finding now sought to be impugned by the plaintiff. In particular –
The Panel noted that by 18 October 2016 there was reported L5/S1 disc prolapse resulting in a right sided paracentral disc protrusion compressing the right S1 nerve root. The Panel therefore concluded that the right S1 disc protrusion has arisen after the date of injury of October 2016 and was no[t] related to the claimed low back injury of 19 February 2014.[61]
[Emphases added]
[61]JCB990.
In substance, it seems to me to be quite clear that having considered the other aspects of the plaintiff’s presentation, together with the sequence of radiological impressions, the panel did not regard the radiology prior to 18 October 2016 as correlating with or explaining the plaintiff’s complaints of ‘more severe’ and right sided symptoms on and after that date. In that, the panel seems to have been calling upon its experience and expertise consistently with the statements of principle to which I have earlier referred.
What I have said so far should be sufficient to demonstrate that the plaintiff’s contention that the MRI scan report of 29 July 2015 was overlooked or ignored must be rejected. However, for completeness, the relevant reasoning of the panel is, if anything, even more apparent and explicable if regard is had to further aspects of the material before it.
In that regard, in a report dated 18 August 2015, Dr Hwang, consultant occupational physician, considered the MRI scan report dated 29 July 2015 and stated –
Looking at the MRI report it is difficult to form a clear impression with regards to the morphology of the reported “disc prolapse” and, whether this is focal or broad-based. Looking at the scan report in isolation such report can be noted in people with acute injuries or it can be present in asymptomatic people and may reflect naturally occurring degenerative change. Considering Ms Hatzigiakov’s condition and correlating it with the radiological finding, and noting my previous assessment findings with regards to the widespread pain of non-anatomical nature one would certainly have difficulty correlating these findings with her widespread symptoms.
I remain of the opinion that her condition (as assessed on my last assessment) reflects a presentation dominated by influences of psychosocial factors. Overall my opinion remains unchanged. The findings noted on the MRI could potentially represent the presence of acute injury, although this can also represent normal degenerative changes. I reiterate that her presentation on examination was entirely disproportionate to an acute lower back injury.[62]
[62]JCB275.
Further, in a report dated 15 December 2016, Mr Simm, orthopaedic surgeon, stated –
I was provided with reports and I reviewed two MRI scans. The first report of an MRI scan was dated 26 March 2014. This MRI scan reported reduced disc signal at L4/5, consistent with disc degeneration with a broadbased central posterior disc bulge and associated annulus tear, with no associated foraminal narrowing or evidence of nerve root compression.
I reviewed a CD of the MRI scan dated 29 July 2015, There was established degenerative disc desiccation due to disc degeneration at the L4/5 level. At this level there was some posterior disc bulging, which did not compress the adjacent descending nerve roots. The Radiologist reported this pathology as a disc “prolapse” with “impingement” of both L5 nerve roots. It is important to note that on this investigation at L5/S1 there were minor changes of annular degeneration posteriorly, but there was no significant L5/S1 disc prolapse. The Radiologist reported “subtle impingement” of both S1 nerve roots. In my opinion there was no clinically relevant pathology at the L5/S1 level.
I reviewed the most recent MRI of the lumbar spine dated 18 October 2016. This was a weightbearing MRI scan of the lumbar spine. The degenerative changes at L4/5 were again noted, with a mild posterior bulging, which contacted the nerve roots. This Radiologist reported the changes as nerve root contact without compression. At L5/S1 there is now a moderate but obvious right-sided paracentral disc protrusion contacting the right S1 nerve root.[63]
[63]JCB314-315.
It will be evident that Mr Simm considered the MRI scan dated 29 July 2015 to disclose ‘no clinically relevant pathology at the L5/S1 level’ as compared with the weight bearing scan of 18 October 2016 which ‘now’ disclosed ‘a moderate but obvious right-sided paracentral disc protrusion contacting the right S1 nerve root’.
Indeed, in a subsequent report dated 19 September 2017, Mr Simm confirmed his view as follows –
I remain of the opinion that the L5/S1 lumbar disc protrusion has no relationship to the work injury and is due to the natural progression of constitutional L5/S1 lumbar disc degeneration.[64]
[64]JCB320-321. For his part, Mr Simm considered there to have been a ‘spontaneous L5/S1 disc prolapse’ in ‘about 2015’.
It follows from the above that I cannot accept that the panel ignored or overlooked the opinions of Mr Simm and Professor Bittar concerning the radiology of 29 July 2015 and/or 18 October 2016.[65] As I have earlier indicated, the panel stated that it had formed its opinion with regard to the documents and information provided. In that regard –
(a) the opinions of Mr Simm – particularly concerning the radiology – were essentially consistent with and may be considered to be partly explanatory of the conclusion reached by the panel;[66] and
(b) the panel referred specifically to the opinion of Professor Bittar and noted that it had a different view about the relevance of the incident of 19 February 2014 to the plaintiff’s ‘right leg symptoms’.[67]
[65]Amended originating motion for judicial review dated 16 February 2022, [14] particulars (j), (k) and (l): JCB36-37.
[66]I am conscious that in oral argument the plaintiff called in aid the opinion of Mr Simm as demonstrating that ‘whatever had happened at L5/S1, it’s pretty clear that it happened well before October 2016’: T14. It will be evident that I do not accept the submission that the substance of the opinion of Mr Simm is inconsistent with the determination of the panel.
[67]JCB992.
It follows, in my view, that ground 1 must be rejected.
E Reasons
As I have earlier noted, the plaintiff’s ground 4 is directed to the reasons of the panel and the argument in respect of it expressly overlapped with that advanced in connection with ground 1.
The care which must be exercised in respect of arguments directed to the allegedly ‘legally inadequate reasoning’ of medical panels is well established.[68]
[68]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [47], [55]-[56]. See also, Karabinis v Bendrups [2018] VSCA 124, [39]-[40] and Dundar v Bas [2019] VSCA 315 [46]-[51].
In any event, it will be apparent from what I have earlier said that the passage of reasoning of the panel to which the plaintiff directs particular attention is readily explicable and, in my view, not in any sense inadequate.
It follows that ground 4 must be rejected.
F Conclusions
In light of the above, while I would grant the plaintiff an extension of time in order to allow the proceeding to be brought, the plaintiff’s two grounds must be rejected.
It follows that the proceeding must be dismissed.
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