Jafari v Yong

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01360

HASAN ALI JAFARI	Plaintiff
v
Dr DOMINIC YONG AND OTHERS (according to the Schedule attached)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF JUDGMENT:	16 September 2020
CASE MAY BE CITED AS:	Jafari v Yong
MEDIUM NEUTRAL CITATION:	[2020] VSC 589

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ADMINISTRATIVE LAW – Application by the plaintiff seeking to quash the determination of a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Whether the panel failed to take into account relevant considerations – Finding that the panel did not fail to take into account relevant considerations to which it was bound to have regard – Khan v Romas [2017] VSC 731 referred to – Whether the panel made a material factual error such that there was a constructive failure to exercise its statutory function – Chang v Neill [2019] VSC 151 referred to – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms MA Schilling with Ms C Moore	Zaparas Lawyers
For the Sixth and Seven Defendants	Mr MF Fleming QC with Ms FC Spencer	Russell Kennedy Lawyers

HER HONOUR:

Introduction and Background

The plaintiff, Mr Hasan Ali Jafari, has applied to the Court to quash the opinion of the first to fifth defendants, the members of a medical panel (‘Panel’,) with respect to a spinal injury suffered by him during the course of his employment with the sixth defendant, Design Sheetmetal Pty Ltd (‘employer’). The seventh defendant, the Victorian WorkCover Authority (‘VWA’) had accepted liability to pay Mr Jafari compensation after Mr Jafari injured his back in the course of unloading sheet metal products from a truck on 27 October 2015. After two attempts to return to work in early 2016, he ceased work with the employer in May 2016.

From 2001 to 2015 Mr Jafari (who came to Australia from Afghanistan as a refugee in 2001) had worked variously as a machine operator, a welder, a tow truck driver and a truck driver, and had obtained a range of vocational qualifications. He had also been a talented professional and semi‑professional soccer player in Afghanistan, Pakistan, and Australia from his early teens. He commenced employment with the employer in August 2015 as a truck driver, delivering sheet metal products around Melbourne, which often involved repetitive, heavy and awkward manual handling when he loaded and unloaded his truck.

On 27 October 2015 Mr Jafari, whilst unloading guttering at a building site in Mooroolbark, suffered what he said was an acute onset of sharp lower back soreness. He visited a medical clinic, where he was assessed and sent for a CT scan, and prescribed treatment, including physiotherapy, analgesic medication and hydrotherapy. Attempts to return to work undertaking office duties were unsuccessful, and he ceased work permanently in May 2016. He is currently 35 years of age, has limited education and English language skills, and no information technology skills.

The Panel and its Reasons

On 30 November 2017, Mr Jafari sought leave from the County Court of Victoria for a significant injury certificate to enable him to commence a proceeding for damages at common law against the employer. On 1 November 2018, Judge Wischusen referred eight medical questions to the Convenor of Medical Panels, as follows:

1.What is the nature of the physical medical condition/s of the Plaintiff’s spine?
2.What is the nature of the medical condition/s of the Plaintiff’s mind?
3.Having regard to the physical medical condition/s of the Plaintiff’s spine and disregarding any psychiatric/psychological consequences of the spinal injury suffered by the Plaintiff in the course of his employment, does the Plaintiff have:
(a)a current work capacity;
(b)no current work capacity?

4.If:
(a)yes to Question 3(a), having regard to the physical medical condition/s of the Plaintiff’s spine and disregarding any psychiatric/psychological consequences of the spinal injury suffered by the Plaintiff in the course of his employment, does employment as:
(i)a Car Park Attendant;
(ii)a Quality Controller;
(iii)a Customer Service Officer;
(iv)a Radio Despatcher;
(v)a Trade Sales Assistant;
(vi)a Light Assembler;
(vii)a Security Gatehouse/Control Room Monitor
constitute suitable employment.

(b)yes to any part of Question 3, is the incapacity for work permanent (meaning likely to persist into the foreseeable future)?

5.Having regard to the medical conditions of the Plaintiff’s mind, does the Plaintiff have:
(a)a current work capacity;
(b)no current work capacity?

6.If:
(a)yes to Question 5(a), having regard to the medical condition/s of the Plaintiff’s mind does employment as:
(i)a Car Park Attendant;
(ii)a Quality Controller;
(iii)a Customer Service Officer;
(iv)a Radio Despatcher;
(v)a Trade Sales Assistant;
(vi)a Light Assembler;
(vii)a Security Gatehouse/Control Room Monitor
constitute suitable employment;

(b)yes to any part of Question 5, is the incapacity for work permanent (meaning likely to persist into the foreseeable future)?

7.In respect of any suitable employment identified in answer to: Question 4(a) and/or Question 6(a), how many hours per week does the Plaintiff have the capacity to work in such suitable employment?
8.In respect of the answer/s to Question 7, does the Plaintiff have such capacity to work on a permanent basis (meaning likely to persist into the foreseeable future)?

The Panel was constituted by the following medical practitioners:

(a) Dr Dominic Yong, Specialist Occupational and Environmental Physician, Specialist General Practitioner;

(b) Dr Stephen Hall, Specialist General Surgeon, Specialist Rheumatologist;

(c) Mr Geoffrey Klug, Specialist Neurosurgeon; and

(d) Drs Susan Brann and Dianne Neill, both Specialist Psychiatrists.

Both parties provided medical reports and written submissions (‘referral materials’) for the consideration of the Panel, which are in evidence in this proceeding. The solicitors for Mr Jafari submitted to the Panel, in summary, as follows:

(a) Mr Jafari is incapacitated for suitable employment, and his incapacity was caused by his workplace injury, having had no back pain prior to the injury of 27 October 2015;

(b) the medical evidence indicates that Mr Jafari would only have capacity for employment with significant restrictions, including, among other things, avoiding lifting more than five kilograms, avoiding repetitive movements of the back, and avoiding travel for more than fifteen minutes;

(c) Mr Jafari’s solicitors submitted as follows:

In consideration of the Plaintiff’s history of unskilled manual labour employment, limited schooling, lack of transferrable skills, and basic English language skills, it is submitted that alternative suitable employment is not identified in the short or long term future. It is submitted that the medical evidence supports an ongoing incapacity for suitable employment. The Plaintiff’s suitability for employment is to be determined now and for the foreseeable future. The Plaintiff’s present situation is that his communication skills in English are not appropriate for work with significant public contact and any other further English language courses do not necessarily increase the prospects of the Plaintiff’s successful performance of work for the foreseeable future.

(d) Mr Jafari’s incapacity was derived from the organic injury to his spine, and his prognosis is poor; and

(e) Mr Jafari’s solicitors submitted as follows:

[Mr Jafari’s] capacity for a return to graduated duties is restricted and it is submitted makes him an undesirable candidate for any employer, especially in consideration of his ongoing back pain, fluctuations in pain, and reliability to perform the inherent tasks of any identified role.

The employer and the VWA (‘defendants’) submitted to the Panel, in summary, as follows:

(a) having regard to Mr Jafari’s medical condition of the spine, Mr Jafari is fit to undertake suitable employment, including as a carpark attendant, quality controller, customer service officer, radio despatcher, trade sales assistant, light assembler, and security gatehouse/control room monitor;

(b) Mr Jafari’s adjustment disorder does not incapacitate him for any employment;

(c) some of the doctors who provided reports noted ‘substantial abnormal illness behaviour or symptom amplification’;

(d) when considering Mr Jafari’s capacity for work based upon the physical condition of his spine, the Panel must disregard any psychiatric/psychological consequences of that injury, such as ‘abnormal illness behaviour or symptom amplification of non-organic origin’;

(e) when considering whether Mr Jafari is not currently suited to perform any of the occupations referred to in (a) above, the Panel must consider whether he would be fit to perform those jobs after undergoing the necessary training, and whether he has the physical and mental capacity to undergo such training;

(f) the defendants submitted that there was no impediment to Mr Jafari undergoing retraining, as he has the mental aptitude for learning and training, having successfully completed certificate level training in the past; and

(g) the defendants submitted that if the Panel concludes that Mr Jafari should commence employment on a part‑time basis, it should also conclude that there is no impediment to Mr Jafari increasing his weekly working hours in a graduated fashion.

Mr Jafari was examined by Dr Yong, Dr Hall and Mr King (‘physical doctors’) on 17 December 2018, and Dr Brann and Dr Neill (‘psychiatrists’) on 18 December 2018. The notes of the examination of each of the Panel members (save for Dr Brann) are in evidence.

The Panel provided its opinion and reasons on 31 January 2019. In the reasons, the Panel described the issue before it as follows:

… the nature of Mr Jafari’s spine and psychiatric medical conditions, whether he has a current work capacity solely considering his spinal condition, whether he has a current work capacity solely considering his psychiatric condition, and whether any incapacity is likely to continue indefinitely.

The Panel concluded as follows:

(a) Mr Jafari has ‘no current intrinsic medical condition of the lumbosacral spine, related to injury, following resolution of a soft tissue injury of the lumbosacral spine’;

(b) Mr Jafari is ‘suffering from a mild Adjustment Disorder with anxious and depressed mood’; and

(c) Mr Jafari has a current work capacity, and that all of the employment options referred to in the medical questions (see paragraph 4 above) would be suitable for Mr Jafari, commencing at twenty hours per week, and building up to full time employment over a three month period.

The Panel provided comprehensive reasons for its opinion, covering the following matters:

(a) the history of the presenting complaint, being his lower back pain;

(b) his current physical condition and treatment;

(c) his occupational history;

(d) his past medical history;

(e) his social history and functional capacity;

(f) a report of the physical doctors’ physical examination;

(g) the physical doctors’ review of the radiological investigations carried out into Mr Jafari’s spine;

(h) a report of the psychiatrists’ assessment and mental state examination;

(i) the Panel’s conclusions and diagnoses;

(j) the Panel’s opinion concerning Mr Jafari’s work capacity; and

(k) the Panel’s consideration of the medical reports and submissions provided to it.

In relation to the history of Mr Jafari’s back complaint, the Panel noted that Mr Jafari was referred to a neurosurgeon, who recommended an epidural injection, but Mr Jafari did not proceed with this. He also did not proceed with a recommended pain management program, as the clinic was too far away from home. He undertook physiotherapy and hydrotherapy treatment, which has now ceased.

In relation to Mr Jafari’s current condition and treatment, the Panel stated that Mr Jafari reported constant, shooting severe pain in his lower back and both legs. The reasons record the following:

Mr Jafari said that his current symptoms include pain in his low back which radiates down his left leg to his foot which is noted in the front and back of the left leg, and radiating to his right leg to the knee which is noted in the front and the back of the upper leg. He said the pain is shooting in nature. He said there is numbness and pins and needles in his left leg if he sits for too long. He said he has trouble sleeping due to the pain. He said he has no incontinence symptoms.

Further, the Panel stated:

Mr Jafari said that his current treatment includes:
·Endone, averaging 6 tablets a week.
·Panadeine Forte, 6 tablets per week.
·Tramadol, slow release 200mg tablets, 2 tablets most days and 3‑4 tablets perhaps 2 days per week.
·Panadol, 8 tablets a day.
·Home exercises occasionally.

Later in the interview, when asked very specific questions about medication that he had taken on the day of interview or recently, Mr Jafari said that he took no Panadeine Forte on the day of interview or the previous day; one Panadol on the day of interview and two Panadol on the previous day and eight Panadol before that and had not taken more than one tablet of Tramadol per day for the past couple of weeks.

The reasons also referred to Mr Jafari’s work history, his qualifications, and his previous work related and other injuries.

The Panel went on to report upon its physical examination of Mr Jafari, as follows:

The Panel noted that Mr Jafari walked into the consulting room with an obvious limp which was slow and asymmetric. There was no obvious wasting of his lower limbs.
When doing a heel stand this was reported to lead to increased pain in both his back and legs.
There was general tenderness with palpation around the spine, and the palpation of the spine led to pain radiating down his left leg with associated numbness. There was severe reduction in range of movement of the lumbosacral spine when formally assessed and all movements were reported to lead to increased back pain. The straight leg raise was reduced bilaterally, and this manoeuvre was reported to increase the level of back pain.

The Panel also reviewed the radiological investigation reports, commenting as follows:

Mr Jafari brought an MRI lumbar spine dated 20 October 2016 which noted a mild broad based disc bulger at L4/5 without any neurocompression, and mild bilateral facet joint arthropathy at L5/S1.
The Panel reviewed the following radiological investigation reports:
·MRI thoracolumbar spine dated 3 February 2016 noted mild facet degeneration at L5/S1 with a degree of a small focal central posterior disc protrusion but the remaining lumbar disc spaces were unremarkable.
·MRI lumbosacral spine dated 26 November 2015 noted a mild disc bulge at L1/2 but no nerve root compression.
·CT thoracic and lumbosacral spine dated 27 October 2015 noted no significant central canal or foraminal narrowing with no definite neural impingement.

The Panel concluded as follows:

The Panel noted the reported pain symptoms in the low back but found no consistent clinical or radiological evidence of any significant organic pathology in the lumbosacral spine to explain his complaints of symptoms. The Panel considered that the medical imaging showed mild age appropriate changes in the lumbar spine.
The Panel considered that Mr Jafari injured the soft tissues of the lumbosacral spine from the reported injury on 27 October 2015, however this injury resolved after several months, and there is no current intrinsic medical condition of the lumbosacral spine related to injury.
The Panel therefore concluded that Mr Jafari has no current intrinsic medical condition of the lumbosacral spine, related to injury, following resolution of a soft tissue injury of the lumbosacral spine.

The reasons also included a detailed psychiatric assessment, which traversed his family background, his marital problems, his daily activities and social life, and his current mood and mental state. The Panel concluded as follows:

The Panel formed the opinion that Mr Jafari has developed a mild Adjustment Disorder with anxious and depressed mood, partly related to the pain and change in functioning from his initial physical injury at work and partly related to financial concerns and conflict in his marriage and is wider family circle.

This conclusion was consistent with the psychiatric reports included in the referral materials.

The reasons went on to discuss Mr Jafari’s capacity for work, forming the view that ‘Mr Jafari is not currently capable of returning to his pre-injury employment on a full-time basis with respect to his mild psychiatric condition injury’, and considered his current work capacity and suitable employment options from a psychiatric perspective alone, noting as follows:

·Mr Jafari’s psychiatric symptoms which includes reduced energy, memory and concentration;
·Mr Jafari lives in Narre Warren South which would not be a barrier to re‑entering the workforce;
·Mr Jafari was educated [and] previously worked in semi‑skilled professions;
·The treating doctors have certified Mr Jafari unfit to work any duties;
·The absence of a return to work plan or rehabilitation program;
·The reports of doctors who have treated or examined Mr Jafari; and
·Mr Jafari’s age of 33 which would not be a barrier to re‑enter the workforce.

The Panel reported that it had discussed the employment options identified by two Vocational Assessment Reports with Mr Jafari, who provided a (guardedly) positive response to being employed as a Customer Service Officer. The Panel went on to state as follows:

The Panel noted the nature of the psychiatric condition, and that it is mild in severity. The Panel was of the opinion that his psychiatric condition injury would not interfere with him fulfilling any of the proposed employment options, and eventually on a full‑time basis.
The Panel noted the period of time that Mr Jafari has spent out of the workforce, together with the nature of the condition. The Panel considered that a graduated return to work program would allow a work conditioning process to occur, and this would benefit Mr Jafari. The Panel concluded that he could initially work reduced weekly working hours such as 20 hours per week, and this could progressively increase, aiming to return back to working his pre‑injury weekly working hours over a three month period.
The Panel therefore concluded that his current incapacity for his pre‑injury hours of employment due to his psychiatric condition is not likely to continue indefinitely and therefore it is not permanent.

The Panel concluded its reasons with a summary of and commentary upon some of the medical reports provided by the parties, including, in summary, the following observations:

(a) the Panel noted the finding of Associate Professor Umberto Boffa, an occupational physician, who on 22 February 2018:

concluded that Mr Jafari has low back pain without radiculopathy and evidence of symptom; and that he is fit for a graduated return to quality control work provided duties allow a change in posture and avoid repetitive bending, twisting, lifting and carrying more than 2kg; and that he is fit for a graduated return to security gatehouse work;

(b) the Panel disagreed with the diagnosis of Professor Richard Bittar, a neurosurgeon who had prepared reports on 15 August 2016 and 23 June 2018, who concluded that Mr Jafari suffers from aggravation of thoracic and lumbar spondylosis with T12 and L1 superior end plate fractures;

(c) the Panel noted the report of Dr Ralph Poppenbeek, an occupational physician, dated 16 December 2015, who stated as follows:

Mr Jafari presents a rather difficult problem to assess, because he describes severe pain and impairment, but examination reveals no objective neurological deficit and CT and MRI scans are virtually normal for his age and build;

(d) the Panel disagreed with the diagnosis of Mr Craig Timms, Mr Jafari’s treating neurosurgeon, in his report dated 10 March 2016, where Mr Timms said that Mr Jafari has ‘thoracic and lumbar spine pain, bilateral sciatica and L2/3 and L3/4 disc injuries confirmed on MRI scan’;

(e) the Panel noted the report of Mr Roger White, a surgeon, dated 31 May 2017, who stated, among other things ‘The pain present has continued from the time of injury. It is materially contributed to by the claimed injury, however, these symptoms are out of proportion to the degree of changes revealed on imaging.’ The Panel stated that it ‘accepted that Mr Jafari suffered an initial soft tissue injury, but based on its own examination findings it concluded that injury has resolved’;

(f) the Panel noted the report from Dr Michael Duke, a psychiatrist, dated 27 April 2016, who concluded that Mr Jafari had an adjustment disorder with mixed anxiety and depressed mood, but that there was no impediment to him working his pre-injury duties and hours. The Panel said that it agreed with Dr Duke’s diagnosis, but disagreed with his conclusion that Mr Jafari could immediately return to full‑time duties; and

(g) the Panel agreed with the conclusions of a report by Dr Nicholas Ingram, a psychiatrist, dated 26 July 2018, that despite Mr Jafari’s chronic adjustment disorder with depressed mood, he could return to his pre‑injury duties as a delivery driver in a part-time position, adding that Mr Jafari could return to full‑time hours at the completion of a graduated return to work program.

The Panel also noted the parties’ submissions, but did not comment directly upon the matters raised in the written submissions, stating merely that:

The Panel considered its Reasons herein adequately and appropriately addresses the issues raised by the submissions.

Mr Jafari’s grounds of review and the evidence

Mr Jafari commenced this proceeding by way of originating motion on 1 April 2019. An amended originating motion was before the Court at the hearing, which included the following grounds of review:

1.The Medical Panel fell into jurisdictional error by failing to have regard to matters to which the Medical Panel was bound to have regard, namely, whether the Plaintiff suffered from an organic or psychological chronic pain injury.
2.The Medical Panel fell into jurisdictional error by failing to have regard to relevant factual material and/or taking into account factual material in a manner that misconstrued its nature or effect, thereby constructively failing to exercise its jurisdiction.
3.In determining its opinion the Medical Panel committed an error of law on the face of the record by failing to give an adequate statement of reasons.

In addition to the Panel’s opinion and reasons, and the referral materials, Mr Jafari relied upon the following evidence:

(a) an affidavit sworn by his solicitor, Mr Mark Mitchell, which exhibited the handwritten notes of each of the physical doctors and Dr Neill (Dr Brand’s notes having been accidentally destroyed), and the typed transcripts of the notes of Drs Yong, Klug, and Neill; and

(b) an affidavit sworn by Mr Jafari on 12 July 2019 regarding what transpired during the course of the examinations conducted by the Panel on 17 and 18 December 2018.

In his affidavit, Mr Jafari deposed as follows:

The first examination was on 17 December 2018. At this examination there were three medical doctors, Dr Yong, Dr Hall and Mr Klug. Dr Yong was the main person and asked most of the questions, although one of the other doctors asked me some questions during the physical examination. The medical examination took around 45 minutes to one hour.
Early on in the examination, Dr Yong asked me about my medications. I asked him whether he means what my medications are on a daily basis, or whether he means in the past? He told me to give him the list of my medications. From this, I understood that he wanted me to tell him what medications I take since my injury.
I told the Panel that when I injured myself and for a year and a half afterwards, I used Endone. Then I saw Dr Gassin who changed my tablets from Endone to Tramadol and Panadeine Forte. This was because the Endone was not strong enough for my pain. I told the Panel that I normally also took Panadol every day. This was ongoing from when I injured myself.
Dr Yong asked me how many pills I took? I told the Panel that it depended on my pain and that I couldn’t give them a figure. He asked me to try and give them a list.
I said that when I was taking Endone, I normally took about 6 in a week, depending on my pain. I told the Panel that sometimes I would take more than that, and that it would depend on my pain.
I told the Panel that the amount of Panadeine Forte and Tramadol that I take depends on my pain levels. If the weather is a little warmer and I feel a little better, I don’t take the Tramadol and I take 1 Panadeine Forte instead. I told the Panel that most days I take 2 Tramadol and a couple of days a week, I might take 3 to 4 Tramadol.
I also remember telling the Panel that I take 6 to 8 Panadol tablets per day depending on my pain.
I told the Panel that I had also taken Mobic, but that it was stopped because it was giving me a reaction in my stomach.
Immediately after asking me about my medications and dosages, Dr Yong asked me what medications I had taken on the day of the examination and whether I had taken any Panadeine Forte or Tramadol.
I told him that I had only taken two Panadol that morning, because the examination was in the morning and I can’t take either Panadeine Forte or Tramadol because they make me sleep and I wake up at 1pm or 2pm in the afternoon.
Dr Yong then asked me what I had taken the day before the examination. As I had taken a Tramadol the day before I believe that I told that I took one Tramadol.
I did not tell the Panel that I took two Panadols the day before the examination. It is impossible that I would have taken only two Panadols in a day. I never take such a low dosage and always take at least 6 Panadols in a day.
I did tell the Panel that I had taken one Tramadol per day for the past couple of weeks. The Panel did not ask me any further questions about why I had taken that amount of Tramadol. Had I been asked that question I would have told the Panel that I was taking less Tramadol because the weather at the time of the examination was warmer and this affected my pain. When the weather is cold, I sometimes take 3 to 4 Tramadol a day.
I told the Panel that my treatment had included physiotherapy and hydrotherapy, which I did for 1 ½ years. The Panel did not ask me why I had stopped that treatment. Had I been asked that question I would have told the Panel that the treatment stopped because CGU stopped funding it.
Other than the above questions, I do not remember being asked any further questions about my medication during the physical examination.
The following day I attended another examination by two psychiatrists.
At that examination I was asked again about what medication I was on. I remember telling them the same information that I told the doctors at the physical examination. That was that I first took Endone and then, after seeing Dr Gassin, I changed over to Tramadol and Panadeine Forte. I also told them that I used Panadol continuously.
I do not recall the psychiatric Panel asking me how many tablets I took, or what I had taken on the day of the examination. I do remember that they asked me about the dose of Endone that I had been taking. I remember saying in response words to the effect of ‘maybe 5 to 15mg, but I’m not sure’.
I was not asked any further questions by the psychiatric Panel about my medications.

The notes of Dr Yong concerning Mr Jafari’s medication intake refer to the following:

- endone – 6 prn
- tramadol SR 200 x 2
- p forte – 6 pw
- Panadol – Sx

Dr Hall’s notes record the following:

Tramadol SR250 2/d
Endone pm (6/week)
P. Forte.
Panadol.

Dr Klug’s notes record the following:

- Endone – varies – say 6/w
- Tramadol 200 x 2/D
- P. Forte occas at midnight x 5/w
- Panadol x 8/D

Dr Neill’s notes record the following:

Tramadol + Endone (15mg at night at 27/4/16)
Back now – physio stopped.
Endone 5mg 2 yrs stopped – Tramadol 2018 (addiction)
Tramadol daily – at least 2-4 > 2/7
PF x 2 daily
Panadol about 8 a day
Mobic – stopped (due to ) stomach not good
long time ago.
How many today.
…..
Tramal
PF
Panadol 0-10 ? 8-10/10
Today Tr – didn’t take it didn’t sleep yesterday x 1
PF 0 today, not yesterday
P x 1, yesterday 2
Most recently 8 – 2/7 ago.

The notes of the physical doctors are inconsistent with Mr Jafari’s evidence that Dr Yong questioned him about what medication he had taken that day, and the previous day, as well as which medication he usually took. However, Dr Neill’s notes suggest that the psychiatrists asked him about this matter. Dr Neill’s notes also accurately record that Mr Jafari previously took, but does not currently take Endone for pain relief. The physical doctors’ notes suggest that they mistakenly believed that Mr Jafari was taking Endone at the time of the examination.

Reviewing the Panel’s notes alongside the panel’s reasons, there is a possibility that the passage of the reasons commencing ‘Later in the interview … ‘ (see paragraph 14 above) was not prepared by the physical doctors (or one of them) as a consequence of what Mr Jafari told them during the examination, but was based upon the section of the reasons prepared by the psychiatrists. However, it is difficult to reach any firm conclusions on that issue from the available evidence.

Submissions

Mr Jafari’s written outline of submissions summarised the relevant legal principles concerning when a decision-maker’s alleged failure to have regard to relevant considerations may amount to jurisdictional error such as to invalidate the impugned decision, which I do not understand to be in dispute. In particular, Mr Jafari’s submissions referred to the following passage of the decision of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd (‘Ryan’):[1]

Under s 65(5), a Medical Panel may ask a Plaintiff to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the Plaintiff’s answers to questions and the documents submitted by the Plaintiff and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the Plaintiff’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[2](footnotes omitted; emphasis added)

[1][2015] VSCA 17.

[2]Ibid [60].

Mr Jafari’s submissions also referred to the following passage of the decision of the Court of Appeal in Chang v Neill (‘Chang’):[3]

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material – properly construed – is an essential feature of a valid exercise of the function.[4] (footnotes omitted)

[3][2019] VSCA 151.

[4]Ibid [92].

Further, referring again to Chang,[5] along with the decision of the High Court in Minister for Immigration and Border Protection v SZMTA,[6] Mr Jafari submitted that:

A failure to have regard to, or misconstruing, a factual matter of the character identified in Chang will amount to jurisdictional error where the error is material is the sense that the outcome of the exercise of the power could have been different if the factual error had not been made.

[5]Ibid.

[6](2019) 363 ALR 599.

Mr Jafari’s submissions also referred to the legal principles applicable when determining whether the reasons provided by a medical panel are of an adequate standard. Mr Jafari’s submissions referred to, among other things, the following summary of the applicable principles by the Court of Appeal in the decision of Dundar v Bas (citations omitted):[7]
[7][2019] VSCA 315.

First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel’s path of reasoning, and to enable a court to see whether the Panel’s opinion involved any error of law.
Second, the standard of reasons required of a medical panel is not to be equated with the standards of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.
Third, as a corollary —
a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed 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.

Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.
Fifth, a panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.
Sixth, …..if a conclusion was to be reached that the worker had an ability to engage in employment which required one or more duties which had been generically described in a computer print-out, the Panel was ‘required to give some practical content to the job involved, in order that its conclusion was capable of being examined’. That was no more than Wingfoot required.
Seventh, it is a commonplace for panels to state that they have considered ‘all aspects’ of the definitions of ‘suitable employment’, ‘current work capacity’, and ‘no current work capacity’. Such a ritual incantation, however, could be no answer to demonstrable deficiencies in a panel’s understanding of the content of those terms or exposition of its path of reasoning in a particular case.

Mr Jafari submitted, in respect of the first and third grounds (the asserted failure of the Panel to have regard to mandatory relevant considerations and the alleged inadequacy of the Panel’s reasons) in summary, as follows:

(a) the issue of whether Mr Jafari suffered from a chronic pain condition was a central issue, and was squarely raised by the referral materials, including:

(i) the serious injury application and the particulars of injury, which included ‘pain’ as a discrete head of injury; and

(ii) by the medical reports included in the referral materials;

(b) it is evident that the defendants’ submissions invited the Panel to disbelieve Mr Jafari’s account of his symptoms, and to find that he was deliberately amplifying his symptoms;

(c) referring to my decision in Khan v Romas (‘Khan’),[8] Mr Jafari submitted that:
[8][2017] VSC 731.

… it was incumbent upon [the Panel] to deal with the chronic pain issue, and for its Reasons to sufficiently reveal its reasoning on that issue in circumstances where the plaintiff’s severe pain symptoms had continued unabated since the date of the accepted injury;

(d) as in Khan,[9] the Panel did not expressly reject Mr Jafari’s account of his symptoms of pain, rather, it simply opined on his physical condition based upon its review of the imaging reports;
[9]Ibid.

(e) it is apparent from the reasons that the Panel did not consider Mr Jafari’s pain symptoms as having a psychiatric origin;

(f) referring again to Khan,[10] Mr Jafari submitted as follows:
[10]Ibid.

[t]he Panel’s finding that there was an absence of objective or organic cause of the pain cannot be taken to reveal the Panel’s conclusions on whether the plaintiff suffered from a chronic pain syndrome or disorder;

(g) the Panel’s finding of an apparent inconsistency between Mr Jafari’s report of what medications he usually took, and what medication he told the Panel on or before the date of examination (‘inconsistency finding’) is insufficient to amount to an express or implied rejection of Mr Jafari’s subjective perception of pain;

(h) the reasons do not explain why the Panel did not consider why Mr Jafari’s symptoms of pain did not arise out of a compensable injury, namely a chronic pain syndrome; and

(i) alternatively, if the Panel did in fact consider the issue of whether Mr Jafari suffered from a chronic pain syndrome, the Panel’s reasons do not reveal, or sufficiently reveal, its path of reasoning in relation to that issue.

Mr Jafari also relied upon the inconsistency finding to support his contention in relation to the second ground of review that it can be inferred that the Panel did not consider whether a diagnosis of a pain condition or disorder was available because the Panel disbelieved Mr Jafari’s account of his symptoms. Mr Jafari submitted that:

… the inconsistency finding is vitiated by jurisdictional error because, in making it, the Panel made significant factual errors and/or misconstrued the factual material available to it.

Mr Jafari’s submissions referred to the Panel’s expression of the inconsistency finding (see paragraph 14 above), and Mr Jafari’s evidence regarding what he told the physical doctors about the medication he was taking (see paragraph 26 above), and his evidence that he did not recall the psychiatrists asking him about how many tablets he had taken on that day or the previous day during the course of their examination.

Mr Jafari submitted that the Panel’s notes (see paragraphs 27 to 31 above) suggest that his recollection of the precise sequence of events at the examination may be inaccurate, but are:

… consistent with [Mr Jafari’s] account that:
(a)when asked to list his medications, his answer to the [physical] doctors, and his initial answer to the psychiatrists, was to list the medications taken throughout the journey of his illness; and
(b)he was asked a specific question regarding the medication taken ‘today’ separately (although it appears this question may have been asked only at the psychiatric interview).

Mr Jafari submitted that the inconsistency finding was critical to the way in which the Panel dealt with the question of whether Mr Jafari suffered from a chronic pain syndrome. The Panel erred because it proceeded on a misunderstanding that Mr Jafari had given an inconsistent account of his medication use, which caused the Panel to discount Mr Jafari’s account of his symptoms of pain, which led the Panel to fail to consider whether he suffered from a chronic pain syndrome. Accordingly, there was a constructive failure on the part of the Panel to exercise its statutory function, as it proceeded on the basis of a fundamentally incorrect factual premise.

Mr Jafari also submitted that the Panel’s findings regarding his use of Endone, Tramadol, Panadeine Forte, and Panadol were incorrect, and inconsistent with Dr Neill’s notes and the referral materials. He submitted as follows:

In any event, even if there was an apparent inconsistency in relation to the plaintiff’s use of Panadol, the factual errors underlying the Panel’s inferences of inconsistency in relation to each of Endone, Panadeine Forte and Tramadol infected the Inconsistency Finding as a whole.
The seriousness of the error in relation to the Inconsistency Finding is revealed by the apparent significance of that finding within the Panel’s Reasons. The error was jurisdictional because a valid exercise of the Panel’s function required it to form an opinion on whether the plaintiff suffered from a pain condition (whether described as a chronic pain, or some other somatic condition). As a consequence of the factual errors underpinning the Inconsistency Finding, the Panel constructively failed to exercise that jurisdiction.

In response, the defendants rejected Mr Jafari’s contention that the Panel’s opinion was tainted by jurisdictional error. The defendants submitted as follows:

The Panel as an expert body was required to form its own opinion using its own expertise and professional judgment, having met and examined and spoken to the plaintiff for themselves. The Panel’s function was not to decide a dispute or to choose between competing medial opinions before it, and the Panel was under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion had been formed by someone else.
The Panel clearly turned its mind to the issue as to whether or not the plaintiff had any ongoing organic injury as a result of the October 2015 work incident and to the nature of any psychiatric injury. Its decision involved evaluative judgments on the basis of its combined medical expertise and experience, and was well open to it. An adjustment disorder had also been diagnosed by all of the psychiatrists who had examined the plaintiff (Drs Ingram, Duke and Entwisle), and many doctors had also noted the impact of nonwork psychosocial factors on the plaintiff’s presentation including being the carer for his dying stepfather, separation from his wife and children in the context of marital and family conflict and an Intervention Order, conflict with his stepfamily with whom he lived and his mother being very unwell and possibly dying in Pakistan.

The defendants submitted that in Chang[11], the Court of Appeal made it quite clear that the test for establishing that the opinion of a medical panel is invalid merely because it made a factual error is quite stringent. The defendants referred to the following observation of Keogh J in Blacker v Boss Trailers.[12]

In assessing whether a panel has failed to take into account a relevant consideration there must be particular care to avoid crossing the line between judicial review and merits review to ‘misconstrue dubious findings of fact or questionable weight being given to particular evidence ‘as jurisdictional error.[13]

[11][2019] VSCA 151

[12][2017] VSC 538.

[13]Ibid [17], referring to Milwain v Sim [2009] VSC 75.

The defendants referred to the settled legal principles regarding the standard of reasons required to be provided by a medical panel, and noted that the Panel’s reasons must be read fairly and as a whole in the context of the medical questions and the referral material.

The defendants submitted that Mr Jafari’s contention that the Panel was bound to have regard to the possibility that he suffered from a chronic pain condition should be rejected. The defendants submitted as follows (citation omitted):

In his serious injury application, the body function relied upon by the plaintiff under his subparagraph (a) claim was the spine. The injury relied upon under the subparagraph (c) claim was particularised as anxiety and depression and an adjustment disorder with depressed mood. Although ‘pain or interference of sensation in the buttocks, left leg and left foot’ were listed amongst the injuries relied upon, the plaintiff’s particulars of injury filed in the proceeding made it clear that these matters were relied upon not as standalone alleged injuries, but as aspects of the alleged subparagraph (a) injury to the spine.

Further, the medical reports relied upon by Mr Jafari, and the submissions provided to the Panel on behalf of Mr Jafari referred to an organic spinal injury which was said to have incapacitated him for employment. Other reports amongst the referral materials referred to there being a psychosocial basis for his reported pain and abnormal illness behaviour.

The defendants referred to the observations of Quigley J in Hashimi v Yong and ors,[14] where her Honour said:

Persistent pain is not a diagnosis of itself, but a symptom. The enquiry before the Panel as to Mr Hashimi’s medical condition required the Panel to form a view about is condition relevant to the alleged lumbar spine injury. The Panel formed the view that his medical condition relative to that injury was a soft tissue injury, now resolved. It is clear that the Panel was concerned to deal with the issue of persistent pain. They did not say that they did not believe Mr Hashimi, and they considered other diagnoses. Having rejected a pain disorder they expressed the opinion that he was suffering from an adjustment disorder. This was the diagnosis they made as to his psychiatric condition.[15]

[14][2019] VSC 496.

[15]Ibid [46].

The defendants submitted that the only reference to Mr Jafari having developed a chronic pain condition was Professor Bittar, but it was unclear as to whether Professor Bittar had diagnosed chronic pain syndrome as a separate injury to the injury to Mr Jafari’s spine. Rather, Professor Bittar diagnosed Mr Jafari as suffering from an ‘aggravation of thoracic and lumbar spondylosis’ and as having superior end plate fractures at T12 and L1. Further, the consensus of psychiatric opinion was that Mr Jafari suffered from an adjustment disorder. The defendants submitted as follows:

In these circumstances, it may be doubted whether the alleged mandatory consideration was indeed a matter that the Panel was bound to take into account. But even if it was, there is no proper basis to conclude that he Panel did not, as it stated it had, take into account the array of medical material provided to it, including the reports said to raise ‘the possibility’ that the plaintiff was suffering from a chronic pain condition described in [47] of the plaintiff’s submissions.

The defendants submitted that it cannot be the case that whenever a claimant presents to a medical panel with symptoms of pain, it is necessary for the medical panel to consider whether the claimant suffers from a chronic pain disorder.

The defendants submitted further that the Panel’s detailed and comprehensive reasons support the Panel’s statement that it had carefully reviewed all of the referral materials, and in any event, the Panel was under no obligation to give reasons for an opinion it did not form. The appropriate diagnosis of Mr Jafari’s condition was a matter for the Panel.

In relation to Mr Jafari’s second ground of review, being that the Panel had made a factual error which invalidated its opinion, the defendants submitted that the decision of the Court of Appeal in Chang[16] makes it clear that, in order to establish jurisdictional error, Mr Jafari must establish, first, that the Panel had made a factual error, and secondly, that the error was of sufficient importance to its decision making process such that it amounted to a constructive failure to exercise its jurisdiction.
[16][2019] VSCA 151.

The defendants submitted that Mr Jafari’s contention that the inconsistency finding amounted to a constructive failure on the part of the Panel to perform its decision making function was founded upon an unsound premise, being that the Panel did not expressly consider whether a diagnosis of a pain condition was warranted because the Panel disbelieved Mr Jafari‘s account of his symptoms. The defendants submitted:

It was not a necessary condition of the [Panel’s] conclusions that it disbelieved the plaintiff’s account of his symptoms, and there is no proper basis to infer that it did so based upon the ‘Inconsistency Finding’.

The defendants went on to submit as follows:

The Panel’s reasons disclose a clear path to the Panel’s conclusion that the plaintiff was no longer suffering from any ongoing physical medical condition of the low back by reference to the Panel’s findings on physical examination and the medical imaging which the Panel found showed ‘mild age appropriate changes in the lumbar spine’. In addition, the Panel’s reasons disclose the Panel’s findings upon mental state examination, its conclusion as to psychiatric diagnosis and the causation of that condition being partly referable to his initial physical injury and partly related to conflict in his marriage and other concerns, and the reasons why the Panel did not consider that the plaintiff’s mild adjustment disorder prevented him from engaging in employment. There is no proper basis to infer that the Medical Panel in fact reasoned to its conclusions via an unexpressed path of reasoning that centred on the Inconsistency Finding.
In any event, the plaintiff has not established that the Inconsistency Finding involved any factual error, or that even if it did, that error amounted to a jurisdictional error.
The Panel was entitled to conclude on the evidence before it as recorded in its reasons that the plaintiff gave inconsistent accounts about his medications. The Panel members’ handwritten notes are very difficult to decipher, and at least the translated version of Dr Neill’s notes appears to be incomplete and not entirely accurate. The plaintiff’s submissions furthermore do not appear to acknowledge that the plaintiff was examined on two different occasions and, from the Panel’s reasons and comparing the Panel members’ notes, it appears that he gave different accounts of his medications (and particularly Endone) at each examination.
However, even if the Court is persuaded that the Panel’s finding that the plaintiff gave different accounts of his medications was not open to it, the error does not amount to a jurisdictional error. The plaintiff does not explain how the Inconsistency Finding was allegedly significant in the Panel’s reasoning process. It cannot be said that the error (if found by the Court) was so serious that it resulted in constructive failure by the Panel to perform its statutory function.

In his reply submissions, Mr Jafari submitted that the question of whether he suffered from a standalone chronic pain injury was squarely raised for consideration by the referral materials, given that ‘pain’ was referred to in the particulars of injury as a discrete head of injury. Further, Mr Jafari’s claim in respect of his psychiatric injury was described non‑exhaustively. Mr Jafari referred to the decision in Khan,[17] which in turn referred to the discussion by Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis[18] concerning the complexity of the task of disentangling the physical and psychological causes of reported pain, the difficulties involved in the clinical assessment of pain, and the use of interchangeable and imprecise terms used by medical practitioners.
[17][2017] VSC 731.
[18](2007) 15 VR 649.

Mr Jafari submitted as follows:

Importantly, this was not a case where the issue of a discrete pain condition was ‘buried deep within the hundreds of pages of referral material’. Rather, it was squarely raised on the materials. An absence of precision in the description given to the condition does not detract from its significance.

Mr Jafari submitted the distinction between his claim and the claim with which the decision in Khan[19] was concerned was a false one, submitting that:

First, the Plaintiff does not contend that the Panel failed to consider a psychiatric diagnosis per se. Secondly, there is nothing in the Panel’s reasons to support the view that, in carrying out that psychiatric diagnosis, the Panel gave consideration to whether the Plaintiff suffered a psychological disorder relating to his pain condition (noting that the Panel listed the Plaintiff’s psychiatric symptoms from his Adjustment Disorder to be ‘reduced energy, memory and concentration’).

[19][2017] VSC 731.

Finally, in relation to the second ground of review, Mr Jafari submitted that the inconsistency finding was tantamount to a rejection of Mr Jafari’s account of his symptoms of pain.

Discussion

Accordingly, the issues in this application for review are whether:

(a) the Panel failed to consider whether Mr Jafari suffered from a chronic pain syndrome, which the Panel was required to consider in order to properly fulfil its statutory function;

(b) the Panel made a factual error regarding Mr Jafari’s current use of analgesic medication which led to a finding that Mr Jafari had given an inconsistent account of his use of medication; and

(c) if yes to (b), the making of that factual error amounted to a constructive failure to exercise the statutory function conferred upon the Panel (in the sense referred to in Chang[20]); and/or

(d) the making of the inconsistency finding could lead one to infer that the Panel erroneously inferred that Mr Jafari was fabricating or embellishing his symptoms of pain, and as such, causing the Panel to fail to consider (or, alternatively, to consider and reject) the possibility that Mr Jafari suffered from a chronic pain syndrome.

[20][2019] VSCA 151.

While Mr Jafari’s grounds of review include his contention that the Panel failed to give adequate reasons for its opinion, it is not necessary to consider that ground in any detail. The Panel’s reasons include no reference to chronic pain syndrome. Accordingly, if I were to hold that the question of whether Mr Jafari suffers from a chronic pain syndrome was a mandatory relevant consideration, then if the Panel had considered such a diagnosis, and rejected it, then it probably follows that the Panel’s reasons were inadequate, even according to the Wingfoot[21] standard. In other words, this ground of review rises or falls with the first ground.
[21]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’).

The grounds upon which a decision-maker or tribunal (such as the Panel) may have fallen into jurisdictional error are (non‑exhaustively) set out in the following passage of the decision of the High Court in Craig v South Australia:[22]

If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.[23]

[22](1995) 184 CLR 163.

[23]Ibid, 179.

In the current case, the Panel is said to have ignored the question of whether Mr Jafari suffered from a chronic pain syndrome, which was an available inference from the materials before the Panel, and made an erroneous finding, being the inconsistency finding, which affected its ultimate finding that Mr Jafari had a current work capacity.

Turning now to the first ground of review relied upon by Mr Jafari, the authorities make it clear that it is necessary to consider the function of the Panel in providing its opinion on the questions put before it. The Panel’s duty is not at large: the boundaries are set by the medical questions, the agreed facts, and the particulars of injury, and informed by the remainder of the referral materials and its own examination of Mr Jafari. In the current case, the Panel’s function was to determine:

(a) the physical condition of Mr Jafari’s spine;

(b) the medical condition of Mr Jafari’s mind;

(c) Mr Jafari’s capacity for work based upon the medical conditions of his spine and his mind; and

(d) having regard to his medical conditions, whether one or more of a number of specified occupations constituted suitable employment.

The particulars of injury prepared by Mr Jafari’s solicitors provided as follows:

As a result of the incident at work on or about 27 October 2015 and/or the work processes during the course of his employment from in or about August 2015, the Plaintiff has suffered pursuant to section 335(1) – “serious injury” in particular sub-sections:
(a)Serious long term impairment and/or loss of function of his spine, including but not limited to injury to the spine; aggravation of thoracic and lumbar spondylosis; T12 and L1 superior end plate fractures; disc bulges at L3/4 and L4/5 levels resulting in indentation upon the anterior thecal sac; disc bulge at L4/5 contacting bilateral L5 nerve roots; L5 radiculopathy; facet joint arthropathy at L5/S1; pain and limitation of movement of lower back, buttocks, left leg and left foot; pain or interference of sensation in the buttocks, left leg and left foot;
and/or sub-section
(c)Severe long term mental or behavioural disturbance or disorder including but not limited to development of anxiety and depression, adjustment disorder with depressed mood.

In order to establish that he had suffered ‘serious injury’ under Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), thus entitling him to bring a proceeding for common law damages, Mr Jafari had to establish that he had:

(a) a permanent serious impairment or loss of a body function; and/or

(b) a permanent severe mental or permanent severe behavioural disturbance or disorder.

Accordingly, the Panel was required not only to determine the nature of Mr Jafari’s physical and mental conditions, but opine on their severity, whether the condition or conditions were permanent, and the impact of those conditions upon his capacity for certain types of employment.

Significantly, the reference to ‘pain’ in the particulars of injury is made in the context of the description of Mr Jafari’s asserted spinal injury: no reference is made to ‘pain’ in the context of the psychiatric injuries claimed, although I accept that Mr Jafari’s psychiatric injuries are described in a non‑exhaustive fashion.

In my view, the Panel was not bound to consider whether Mr Jafari had a chronic pain syndrome (or ‘somatic pain disorder’, as it is sometimes known). The medical questions, the particulars of injury, the medical reports and, significantly, Mr Jafari’s solicitors’ submissions to the Panel, focussed upon the physical condition of Mr Jafari’s spine, and whether he was incapacitated for work by reason of the physical condition of his spine.

Contrary to the submissions advanced on behalf of Mr Jafari, the current case was not on ‘all fours’ with Khan.[24] Apart from the need for there to be some caution in relying upon the facts in one proceeding in forming a conclusion in another proceeding that a medical panel’s decision was tainted by jurisdictional error, there is a material difference between the referral materials before the medical panel convened in Khan[25] and the referral materials in the current case. As observed by senior counsel for the defendants, the referral materials in Khan[26] were replete with references to a chronic pain syndrome.
[24][2017] VSC 731.
[25]Ibid.
[26]Ibid.

In particular, Mr Khan’s submissions (and the medical reports relied upon by him) directly contended that he had an organically based, or alternatively, psychologically based, chronic pain syndrome. I held that:

in circumstances where the chronic pain issue was squarely raised by Mr Khan’s submissions, and the Panel did not expressly state that they disbelieved Mr Khan’s account of his symptoms, it was incumbent upon the Panel to explore more fully whether Mr Khan’s submissions had a psychological basis. That the Panel did do so was not evident from the reasons, and I am entitled to draw the inference that the Panel did not actively or meaningfully consider the matter.[27]

[27]Ibid [54].

The decision and reasons in Khan[28] were delivered almost exactly a year prior to the Panel’s examination of Mr Jafari. Mr Khan and Mr Jafari were represented by the same firm of solicitors. Dr Neill was a member of both medical panels. Accordingly, while this is by no means conclusive of the matter, it is likely that if the medical evidence regarding Mr Jafari’s symptoms and presentation supported a conclusion that a diagnosis of chronic pain syndrome was available, submissions to the Panel to that effect would have been made. However, the medical reports included in the referral materials did not support such a conclusion, and no such submission was made to the Panel. Mr Jafari certainly reported, and presented with symptoms of pain, and this is referred to throughout the medical reports, and indeed the Panel’s reasons, but, with the possible exception of Professor Bittar, none of the treating practitioners or medico-legal experts referred to the possibility that Mr Jafari’s symptoms of pain arose from, or reflected an underlying psychological or psychiatric disorder.
[28]Ibid.

Mr Jafari relied upon the following medical reports to support his contention that the issue of whether Mr Jafari suffered from a chronic pain syndrome was squarely put before the Panel:

(a) Dr Khan, a general practitioner, who identified ‘persistent pain inspite [sic] of physiotherapy and pain medications’;

(b) Asminta Yadav, a physiotherapist, who recorded that the plaintiff presented ‘with the chief complaint of pain …’ Ms Yadav recorded the plaintiff’s ‘Quebec back pain disability scale’ findings as “Nov 2015 – 67/80, July 2016 – 89/100 and April 2017 – 81/100’;

(c) Professor Bittar, a consultant neurosurgeon, who opined ‘There is an organic basis for his pain. He sustained a physical injury to his lumbar spine and has gone on to develop a significant chronic pain condition’;

(d) Dr Robert Gassin, a pain management specialist, who opined ‘Mr Jafari suffers from chronic low back and left leg pain’ and recommended Mr Jafari receive pain management treatment; and

47.5Dr Gavin Weekes, a pain specialist, who opined that the plaintiff was suffering from ‘chronic refractory lower back pain’.

However, the above statements, read in the context of each of these reports as a whole, lead to the conclusion that the medical practitioners relied upon by Mr Jafari invariably considered that his reported pain was a symptom of his spinal injury, rather than being a symptom of or associated with a standalone psychological or psychiatric condition. By way of example:

(a) Dr Khan’s report referred to the injuries to Mr Jafari’s spine said to have been evidenced by the CT scan, and went on to say:

I believe [Mr Jafari’s] back pain is contributed [sic] by the injury he suffered at his workplace on 27/10/2015,

and
He has developed reactive anxiety due to his back pain however he is still managing to cope with it;

(b) the reports of Ms Yadav (Mr Jafari’s physiotherapist) of 26 February 2016 and 26 April 2017 do refer to Mr Jafari’s complaint being that of pain, but her reports also referred to the results of the MRI report, which suggested that she considered Mr Jafari’s pain to have an organic cause;

(c) while Professor Bittar does refer to a ‘significant chronic pain condition’, he maintained his diagnosis of an organic spinal injury, and went on to opine that:

Putting aside any mental or behavioural aspect which might be said to be contributing to the perception of the symptoms and looking at the organic effects of the back injury only, it is my opinion that his pain restriction, disability and incapacity derive substantially from the physical or organic injury to the back;

(d) Dr Glassin did refer to Mr Jafari’s suffering chronic lower back and left leg pain in his report dated 24 April 2017, but went on to state:

His symptoms are most likely arising from one or more of the lower lumbar discs or facet joints however his presentation suggests involvement of significant psychological distress related to his ongoing pain.

(e) Dr Glassin’s report of 23 May 2017 also refers to Mr Jafari reporting ‘good relief of pain’ by reason of an increased dose of Tramadol. Accordingly, what can be gleaned from Dr Glassin’s reports is that Mr Jafari suffers from pain arising out of a spinal injury, which is partially relieved by analgesic medication, and which is the cause of (not a symptom of) considerable psychological distress; and

(f) the report of Dr Weekes dated 8 November 2016 refers to ‘chronic refractory lower back pain’, but also makes reference to a diagnosis of ‘… lumbar and thoracic spondylosis with evidence of T12 and L1 superior endplate changes suggestive of minor stable fractures at those levels.’ Dr Weekes’ report also referred to possible treatment options being diagnostic medial branch blocks followed by radiofrequency denervation, or a trial of neuromodulation, which indicates that Dr Weekes held the view that Mr Jafari’s reported pain had an organic cause.

Similarly, as observed by senior counsel for the defendants, the consensus of the psychiatric opinion was that Mr Jafari was suffering an adjustment disorder with depression, and that this disorder was as a consequence of, at least in part, his injury and symptoms of pain. Put another way, while Mr Jafari’s psychiatric condition was said to be related to his symptoms of pain, the relationship was a causal relationship, and his pain symptoms, of themselves, did not themselves amount to a disorder.

Accordingly, this is not a case where, using the language of Neave JA in Ryan,[29] where ‘ … [Mr Jafari’s] answers or the documents provided raise an issue which the Reasons do not address … ‘ such that it could be said that the Panel failed to have regard to a relevant consideration that it was bound to have regard in order to fulfil the function conferred upon it by statute.
[29][2015] VSCA 17 [60].

Mr Jafari has failed to establish the first ground of review. Consequently, he has failed to establish that the Panel’s reasons were inadequate. Given that the Panel was not required to consider the question of whether Mr Jafari suffered from a chronic pain syndrome, the absence of any reference to this issue in the Panel’s reasons is unremarkable. If the Panel had in fact considered whether Mr Jafari suffered from a chronic pain syndrome, but rejected such a diagnosis, then in any event the decision of the High Court in Wingfoot[30] makes it clear that a medical panel is required to give reasons for an opinion it did form, not to give reasons for an opinion it did not form. While, practically speaking, depending upon the materials before a medical panel, the provision of adequate reasons may, in certain circumstances, involve providing a cogent explanation of why it rejected a particular conclusion or did not make a particular finding, in order to avoid the need for a reviewing court to engage in ‘gap filling’, this is not such a case.
[30](2013) 252 CLR 480.

As for the second ground of review, Mr Jafari takes issue with the factual findings of the Panel, submitting that the Panel was in error in:

(a) making the inconsistency finding; and

(b) finding that Mr Jafari continued to use Endone, when in fact he had ceased using Endone two years prior to his examination by the Panel.

The inconsistency finding was said to have invalidated the Panel’s opinion, because:

(a) the inconsistency finding was not borne out by the evidence of Mr Jafari as to what transpired during the course of the Panel’s examinations, and the Panel’s notes;

(b) accordingly, the Panel made a material factual error, or alternatively, the Panel (materially) misconstrued the information provided to it, such that there was a constructive failure on the part of the Panel to exercise its jurisdiction;

(c) the error was significant, as it can be inferred from the inconsistency finding that the Panel formed the view that Mr Jafari was fabricating or embellishing his symptoms of pain, and if the Panel had not formed that erroneous view, there was a real prospect that it would have reached a different conclusion regarding whether Mr Jafari suffers from a compensable condition, and whether he had a capacity for suitable employment.

In my view, while it is arguable that the Panel may not have appreciated why Mr Jafari took less analgesic medication than usual on the days of the examinations, and in the previous days, I am not satisfied that Mr Jafari’s credit was a substantial concern to the Panel. The reasons did no more than observe that there was a difference between the type and dosage of medication that Mr Jafari was prescribed, and what he actually took at around the time of the examination. The fact that Mr Jafari’s treating practitioners prescribed significant amounts of analgesic medication was, of itself, relevant evidence. Accordingly, I am not satisfied that the inconsistency finding necessarily gives rise to the inference that the Panel did not believe Mr Jafari’s account of his symptoms.

In any event, even if the Panel’s observations regarding what Mr Jafari told the Panel about his medication use amounted to a finding that Mr Jafari had given inconsistent evidence, as contended for by Mr Jafari, Mr Jafari has not established that the inconsistency finding was so significant to the Panel’s decision making process that it gave rise to jurisdictional error. In particular, I am not satisfied that the Panel’s belief or otherwise of Mr Jafari’s account of his symptoms was particularly material to the Panel’s finding that Mr Jafari had suffered a soft tissue injury to the lumbosacral spine which resolved after several months, and that the only psychiatric disorder that Mr Jafari suffered from was an adjustment disorder.

In the absence of any express statement in the Panel’s reasons to the effect that the medication taken by Mr Jafari on the days of the examination and immediately beforehand was inconsistent with his reports of his regular medication, and the symptoms of pain he reported, I cannot be satisfied that:

(a) the inconsistency finding was made;

(b) as a result, the Panel disbelieved Mr Jafari’s account of his symptoms; and

(c) as a result, the Panel’s disbelief of Mr Jafari’s symptoms caused the Panel to ignore, or discount, the possibility that Mr Jafari suffered from a chronic pain syndrome.

The onus of establishing that any erroneous factual finding was made by the Panel, and that if that error had not been made, that the Panel may have reached a different conclusion, lays with Mr Jafari. However, it is apparent from a fair reading of the reasons that the Panel’s physical examination of Mr Jafari and the imaging reports were central to the conclusion that the Panel reached regarding the physical condition of Mr Jafari’s spine, and, to the extent that it considered the medical opinions in the referral materials, it preferred the opinions of the experts relied upon by the defendants to those of the experts and treating practitioners relied upon by Mr Jafari. Further, the psychiatrists, who conducted a thorough examination of Mr Jafari, agreed with the broad consensus of opinion regarding Mr Jafari’s psychiatric condition and its origin, at least in part, in the initial injury, his symptoms of pain and change in functioning after the injury.

The Panel’s observations regarding the information provided to them by Mr Jafari about his medication use have to be viewed in the context of the voluminous medical reports provided to them, some of which referred to ‘symptom amplification’ (for example, Associate Professor Boffa’s report and Dr Poppenbeek’s report), or his symptoms of pain being ‘materially contributed to by the claimed injury [but] out of proportion to the degree of changes revealed on imaging (see Mr White’s report). There can be no doubt that the Panel was aware that Mr Jafari consistently complained of severe pain, and was regularly taking analgesic medication. The Panel simply formed the view that the injury to his lower spine in August 2015 was not the proximate cause of Mr Jafari’s pain.

I agree with the defendants’ submissions that Mr Jafari has not established that the Panel ‘reasoned to its conclusions via an unexpressed path of reasoning that centred on the inconsistency finding.’ The Panel’s reference to the difference between the amount of medication Mr Jafari had been currently prescribed and the medication he had taken immediately prior to being examined by the Panel is arguably as consistent with the Panel finding that his symptoms of pain were variable, as opposed to the Panel disbelieving his account of his symptoms. Further, even if the Panel had made the inconsistency finding, Mr Jafari has not established that if the Panel had not made the inconsistency finding, that there was a real possibility that the Panel would have reached a diagnosis that Mr Jafari suffered from a chronic pain syndrome. As I observed in the section of these reasons concerning the first ground of review, this was not a diagnosis made by any of the treating doctors or medico-legal experts relied upon by the parties. Indeed, had the Panel made such a diagnosis, the defendants would well have complained that such a diagnosis was made ‘out of the blue’, and as such, the Panel had fallen into error.

Finally, it does appear that the physical doctors on the Panel mistakenly believed that Mr Jafari continued to take Endone for pain relief. However, it is difficult to see how this error amounted to jurisdictional error, in the sense that it amounted to a constructive failure on the part of the Panel to exercise its jurisdiction. I cannot see that if the Panel correctly described Mr Jafari’s medication regime so as not to include any reference to Endone, the Panel would have, or may have, reached a conclusion that he continued to suffer from a compensable injury, including, possibly, a chronic pain syndrome. After all, Endone is an analgesic: the Panel’s mistaken belief that he regularly used Endone would have been more likely to lead the Panel to conclude that Mr Jafari’s symptoms of pain were more severe, rather than less severe. This argument does not assist Mr Jafari in impugning the Panel’s opinion.

In reaching the view that any misunderstanding on the part of the Panel concerning the nature and dosage of medication used by Mr Jafari did not amount to jurisdictional error on the part of the Panel, I have kept in mind the distinction between non‑jurisdictional facts and relevant considerations referred to in Chang.[31] The Court of Appeal observed that the two concepts are quite different, and a relevant consideration ‘is usually expressed at a significantly higher level of generality than a factual matter.[32] Further, the Court observed:

… there is an important distinction between evidence or facts that concern a relevant consideration and the relevant consideration itself.[33]

[31][2019] VSCA 151.

[32]Ibid [71].

[33]Ibid [73].

Applying the observations above to the current application, when assessing the nature of Mr Jafari’s physical and psychological condition for the purposes of making a relevant diagnosis and assessing his capacity for suitable employment, his treatment is clearly a relevant consideration. The Panel was informed by what his treating doctors say about his treatment in their reports, along with what Mr Jafari told the Panel about his medication use and other treatment. It could not be said that, in possibly misinterpreting one aspect of what Mr Jafari told the Panel, the Panel failed to take into account his treatment in forming its opinion about Mr Jafari’s condition.

Accordingly, I will dismiss the proceeding, and, in the absence of any compelling argument to the contrary, order that Mr Jafari pay the sixth and seventh defendants’ costs of the proceeding on a standard basis.

SCHEDULE OF PARTIES

S ECI 2019 01360

HASAN ALI JAFARI Plaintiff

Dr DOMINIC YONG First Defendant

Dr STEPHEN HALL Second Defendant

GEOFFREY KLUG Third Defendant

Dr SUSAN BRANN Fourth Defendant

Dr DIANE NEILL Fifth Defendant

DESIGN SHEETMETAL PTY LTD Sixth Defendant

VICTORIAN WORKCOVER AUTHORITY Seventh Defendant

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Citations

Jafari v Yong [2020] VSC 589

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Dundar v Bas [2019] VSCA 315

Chang v Neill [2019] VSCA 151

Khan v Romas [2017] VSC 731

HASAN ALI JAFARI	Plaintiff
Dr DOMINIC YONG	First Defendant
Dr STEPHEN HALL	Second Defendant
GEOFFREY KLUG	Third Defendant
Dr SUSAN BRANN	Fourth Defendant
Dr DIANE NEILL	Fifth Defendant
DESIGN SHEETMETAL PTY LTD	Sixth Defendant
VICTORIAN WORKCOVER AUTHORITY	Seventh Defendant

[2020] VSC 589

16 September 2020