Hines v Broadspectrum (Australia) Pty Ltd
[2019] VSC 573
•27 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01910
| MARYSIA HINES | Plaintiff |
| v | |
| BROADSPECTRUM (AUSTRALIA) PTY LTD | First Defendant |
| and | |
| PROFESSOR PETER DISLER MR DAVID DE LA HARPE MR RONDHIR JITHOO | Second to Fourth Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 August 2019 |
DATE OF JUDGMENT: | 27 August 2019 |
CASE MAY BE CITED AS: | Hines v Broadspectrum (Australia) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 573 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Whether Panel had regard to irrelevant consideration – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 224, 303, 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr ADB Ingram QC with Mr YC Chen | Maurice Blackburn |
| For the First Defendant | Mr R Kumar | Thomson Geer |
HER HONOUR:
From about September 2010, Marysia Hines worked for Broadspectrum (Australia) Pty Ltd as a hospitality worker in the Army mess at Puckapunyal. Her duties included waiting on tables, assisting with food preparation, and setting up and cleaning the mess. To perform her cleaning duties, she wore a backpack vacuum cleaner, or ‘back-vac’.
In August 2015, Ms Hines developed pain in her right shoulder. She submitted a workers’ compensation claim on 16 February 2016 for ‘bursitis located in right shoulder causing pain and restriction’, which she attributed to continued use of the back-vac. Broadspectrum accepted Ms Hines’ claim.
In mid-2017, Ms Hines’ general practitioner referred her to a neurosurgeon, Mr Yagnesh Vellore, to investigate whether her ongoing shoulder and neck pain might be due to a neck injury. Mr Vellore diagnosed disc osteophyte compression and offered the option of surgery. Ms Hines wished to proceed, and so Mr Vellore wrote to Broadspectrum seeking approval for a C5-C6 and C6-C7 anterior cervical discectomy and fusion with plate fixation.
Broadspectrum refused to fund the surgery, on the basis that it did not relate to the accepted work injury of bursitis in the right shoulder. Ms Hines disputed this decision, and referred the dispute for conciliation by the Accident Compensation Conciliation Service (ACCS). On 27 June 2018, the conciliator referred three medical questions for the opinion of a Medical Panel, pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).
A Medical Panel, constituted by Professor Peter Disler, specialist general physician, geriatrician and rehabilitation physician, and Mr David de la Harpe, orthopaedic surgeon, examined Ms Hines on 21 August 2018. A consultant neurosurgeon, Mr Rondhir Jithoo, assisted the Panel in its deliberations. The Panel’s opinion was that Ms Hines is suffering from mild, multilevel age-related degenerative changes to the cervical spine, which did not result from and was not materially contributed to by the accepted right shoulder injury.
In this proceeding, Ms Hines seeks judicial review of the Panel’s opinion. She contends that the Panel took into account an irrelevant consideration and gave inadequate reasons for its opinion. Ms Hines seeks orders quashing the Panel’s opinion, and remitting the medical questions for consideration by a differently constituted Medical Panel.
For the reasons that follow, the proceeding must be dismissed.
The Panel’s opinion and reasons
Three medical questions were referred to the Panel for its opinion. Those questions, and the Panel’s opinion in relation to each question, were set out in the Panel’s certificate of opinion dated 29 August 2018:
Question 1:What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer: In the Panel’s opinion the worker has right shoulder dysfunction resulting from an unresolved soft tissue injury of the right shoulder.
In the Panel’s opinion the worker also has mild, multilevel age-related degenerative changes in the cervical spine.
Question 2:What is the extent to which any medical condition of the worker results from or is materially contributed to by any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion the worker’s current right shoulder dysfunction is materially contributed to by the claimed right shoulder injury.
In the Panel’s opinion the mild, multilevel age-related degenerative changes in the worker’s cervical spine do not result from and are not materially contributed to by the right shoulder injury.
Question 3:Do you consider the following medical or proposed medical service appropriate for the worker’s injury and/or condition:
(i)C5-C6 and C6-C7 anterior cervical discectomy and fusion with plate fixation
Specify service, duration and frequency if necessary.
Answer:Not applicable.
The Panel provided a written statement of reasons for its opinion, as required by s 313(2) of the WIRC Act. It noted at the outset that it had formed its opinion with regard to documents and information enclosed with the referral, the history provided by Ms Hines, the findings elicited by the Panel at the examination, and the guidance of Mr Jithoo. The Panel indicated that it was aware that the dispute had arisen from Broadspectrum’s refusal to approve the proposed surgery, on the ground that it was not liable because Ms Hines had not submitted a claim for a work-related cervical spine injury.
After recording the history provided by Ms Hines about her right shoulder injury, the Panel noted her explanation as to why she had not submitted a separate claim for her cervical spine:
The worker told the Panel that she had in fact experienced pain in the posterior aspect and right side of her neck since she initially developed shoulder pain, but said that she had considered these symptoms to form part of her shoulder symptoms, and had not reported this separately. She said that this is also the reason why she had not submitted a claim for neck injury, and only for right shoulder injury.
Later in its reasons, the Panel noted its observations on physical examination and its findings drawn from the reports and radiological investigations provided with the referral. It looked at an MRI scan of Ms Hines’ cervical spine dated 22 May 2017. The Panel considered that this scan ‘showed relatively mild multilevel degenerative changes in keeping with the worker’s age, and with no evidence of neuro compression.’ Based on the history provided, its physical examination and review of the reports provided, the Panel concluded that Ms Hines has ‘right shoulder dysfunction resulting from an unresolved soft tissue injury relevant to the claimed right shoulder injury.’ It considered that her persistent right shoulder dysfunction was still materially contributed to by her claimed right shoulder injury.
Regarding Ms Hines’ neck injury:
The Panel considered the worker’s report of neck pain, and noted that she had not submitted a claim for injury of her cervical spine. The Panel also considered that the worker currently has a full range of motion of the cervical spine, and that radiological investigation showed relatively mild, multilevel age-related degenerative changes in the cervical spine. The Panel took all of the above into account in forming the opinion that the worker’s cervical spine condition did not result from and was not materially contributed to by the accepted right shoulder injury.
The Panel thus formed no opinion on whether it was appropriate for the worker to undergo interior cervical discectomy and fusion at the C5/6 and C6/7 levels.
The Panel specifically referred to the report of Mr Kevin Siu (Neurosurgeon and Independent Medical Examiner) dated 4 October 2017. It noted Mr Siu’s opinion:
… that the worker had cervical spondylosis, but there was “no relationship between the bursitis of the shoulder and the incidental finding of cervical spondylosis”.
The Panel expressed its agreement with this opinion.
Irrelevant consideration
Ms Hines contended that the Panel took into account an irrelevant consideration that materially affected its decision, which was the fact that she had not made a separate claim for injury to her cervical spine. She submitted that the Panel’s function, under s 302 of the WIRC Act, was confined to giving its opinion on the medical questions referred to it by the ACCS. The Panel was not permitted, she argued, to have regard to ‘the mechanics of the WorkCover process’. She submitted that this was a consideration that had no medical relevance, and was extraneous to the proper exercise of the Panel’s power.[1]
[1]Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239, [113] (Basten JA). See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), 39-40 (Mason J).
The WIRC Act does not expressly forbid a Medical Panel from having regard to the claim that gave rise to the medical questions referred to it. Ms Hines did not develop any submission that this was an implied limitation on the matters to which the Panel could legitimately have regard, found in ‘the subject-matter, scope and purpose’ of the WIRC Act.[2] I do not consider that the WIRC Act precludes a Panel from considering the subject matter of a worker’s claim for compensation, where that is otherwise relevant to the medical questions it has to determine.
[2]Peko-Wallsend, 39-40 (Mason J).
In the circumstances of this referral, the Panel was entitled to have regard to the claim made, and not made, by Ms Hines. That is because the medical questions referred to it were concerned with whether the proposed neck surgery was appropriate treatment for the right shoulder injury for which she had claimed compensation.
Ms Hines’ claim for compensation was made in quite specific terms. In her claim form, she described her injury as ‘bursitis located in right shoulder causing pain and restriction’. Broadspectrum accepted liability for this claim. As a result, under s 224 of the WIRC Act, Broadspectrum was liable to pay reasonable costs of medical and like services received because of the injury. In order to answer the questions referred to it, the Panel had to understand what ‘the claimed injury’ was. Its reference to the fact that Ms Hines had not made a claim for injury to her cervical spine was relevant for that reason. It was entirely appropriate for the Panel to pay attention to the subject matter of her claim, and to the fact that it was not a claim for injury of her cervical spine.
The Panel noted Ms Hines’ explanation for not having made a claim for a neck injury, without comment. Had the Panel been concerned with whether her employment was a significant contributing factor to her neck injury, this explanation would have been material. But it was not concerned with that question, because she had not claimed compensation for a neck injury. Before me, Broadspectrum acknowledged that the Panel’s opinion did not preclude Ms Hines from making a claim for injury of her cervical spine.
I do not consider that the Panel had regard to an irrelevant consideration.
Adequacy of reasons
Ms Hines’ second ground of review concerned the adequacy of reasons given by the Panel for its opinion. She submitted that the Panel’s reasons were inadequate, in two ways.
First, she argued that the Panel had not disclosed its path of reasoning to the conclusion that she has ‘mild, multilevel age-related degenerative changes in the cervical spine’. She said that the Panel did not explain why its conclusion differed markedly from that of Mr Vellore, in his reports of 22 May 2017 and 8 March 2018, the report of the CT scan dated 5 June 2017, and the MRI scan dated 22 May 2017.
I cannot accept this argument. A Medical Panel’s reasons must explain its actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.[3] Its function is to form and give its opinion on the medical questions referred to it. This function is neither arbitral nor adjudicative, and does not involve deciding a dispute or choosing between competing medical opinions.[4] The Panel’s reasons must explain how it arrived at the opinion it actually formed for itself.[5] It need not explain why it did not reach an opinion it did not form.[6]
[3]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [55] (Wingfoot).
[4]Wingfoot, [47].
[5]Wingfoot, [48].
[6]Wingfoot, [56].
The Panel’s reasons explained, in the paragraph extracted at [12] above, how it reached the conclusion that Ms Hines had ‘relatively mild multilevel age-related degenerative changes in the cervical spine’. It was not obliged to explain why it did not reach the same opinion as Mr Vellore, or why it did not adopt the language of the radiological reports. Moreover, the issue for the Panel was not the severity of Ms Hines’ neck injury. It was whether her neck injury was a sequela of her claimed right shoulder injury.
The second argument was advanced for Ms Hines for the first time at the hearing. It was that the Panel’s reasons did not deal with her explanation as to why she had made a claim only for her shoulder injury, and not also for a neck injury.[7] As I already noted, it was not necessary for the Panel to form any view about why Ms Hines had not made a claim in respect of her neck, in order to understand the nature of her claimed injury. The explanation was simply not material to the medical questions that the Panel had to determine, and there was no need for the Panel to deal with it in order to answer those questions.
[7]Relying on Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60].
In my view, the Panel’s reasons were adequate.
Disposition
I will order that the proceeding is dismissed. I will hear the parties on the question of costs.
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