Jamali v Victorian WorkCover Authority

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03297

BETWEEN:

FAHIM JAMALI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2022
DATE OF JUDGMENT:	24 October 2022
CASE MAY BE CITED AS:	Jamali v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 634

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Determination by a medical panel of medical questions as referred under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Whether medical panel made a jurisdictional error and/or error of law on the face of the record – Medical panel determined that the plaintiff’s lower back injury caused by the workplace incident was resolved and referred to plaintiff’s earlier lower back pain – Plaintiff claim that the conclusion reached by the panel could not be reasonably anticipated by plaintiff – Conclusion alleged to have been made by the panel not made, but if it was, it was not unexpected.

JUDICIAL REVIEW – Whether medical panel failed to consider the question of whether in the alternative to the lower back injury being organically based that the symptoms of the plaintiff could be explained by any mental or behavioural disturbance or disorder or chronic pain disorder – Whether medical panel failed to take into account a mandatory relevant consideration – Relevance of reasons – Medical Panel failed to fulfill statutory function by not taking into account a mandatory relevant consideration – Opinion quashed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Kenneally	Zaparas Lawyers Pty Ltd
For the First Defendant	Ms F Spencer	Russell Kennedy Lawyers
No appearance for the Second to Seventh Defendants

HER HONOUR:

Mr Jamali is a 27-year-old man who until 25 September 2018 was engaged as a sub‑contractor truck driver and then as a storeman by Super Metal Recycling Pty Ltd (‘employer’). In his work as a storeman, he spent most of his time on the factory floor dealing with large shipping containers, and driving forklifts.

On 20 September 2018, Mr Jamali experienced a sudden onset of lower back pain whilst at work when closing some heavy doors of a shipping container (‘September 2018 incident’). He saw his general practitioner (‘GP’), and had three days off work. His attempt to return to work on 24 September 2018 was unsuccessful, owing to severe lower back pain, and he has suffered lower back pain and related symptoms ever since. Given his background (he is a refugee from Afghanistan, and migrated to Australia from Pakistan as a teenager) and lack of formal education, any inability to undertake heavy manual labour is a significant impediment to him finding regular employment. He also suffers from some psychological impairments associated with his back injury.

As well as being under the regular care of his GP and a psychologist, Mr Jamali has seen a raft of medical specialists and allied health professionals for the purpose of diagnosis and treatment, as well as for medico-legal purposes. The consensus of the physical doctors seems to be to the effect that the severity of Mr Jamali’s symptoms of pain is out of all proportion to the physical condition of his lumbar spine as revealed by the results of imaging and other medical investigations. However, while there are some references in the materials to there being a “non-organic” component of Mr Jamali’s symptoms of pain, it has not been squarely suggested that Mr Jamali is feigning his symptoms of pain, or is malingering.

On 10 October 2018, Mr Jamali lodged a claim with the Victorian WorkCover Authority (‘VWA’) with respect to “back bone pain” suffered as a consequence of the September 2018 incident. Liability for the claimed injury was accepted by the VWA.

On 19 May 2020, Mr Jamali issued a serious injury application proceeding in the County Court in respect of the physical injury/impairment of his lumbar spine and a consequential mental or behavioural disturbance or disorder. On 14 September 2020, he issued a proceeding in the County Court seeking leave to bring a claim for damages at common law.

The VWA accepts that Mr Jamali suffered a lower back injury as a result of the work performed by Mr Jamali as a storeman, including the September 2018 incident. The VWA also accepts that Mr Jamali developed a psychiatric and/or physiological condition consequent upon his injury. What remains in dispute are the following matters:

1. Whether the Plaintiff presently suffers from any physical medical condition of his lower back which results from, or is materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 (“the physical lower back injury”).
2.If ‘yes’ to 1, whether any such work-related physical medical condition of the Plaintiff’s lower back is permanent (meaning likely to persist into the foreseeable future).
3. If ‘yes’ to 2, whether the Plaintiff has any, and if so what, incapacity for work having regard to the physical lower back injury and whilst disregarding any psychiatric/psychological consequences.
4. If ’yes’ to 3, whether such incapacity for work is permanent (meaning likely to persist into the foreseeable future).
5. If ‘yes’ to 4, whether the Plaintiff has a capacity for work in respect of the listed work options (including the number of hours per week he can perform such work for) having regard to the physical lower back injury and whilst disregarding any psychiatric/psychological consequences.
6. Whether any present medical condition of the Plaintiff’s mind which is consequential to the physical lower back injury is permanent (meaning likely to persist into the foreseeable future).

The issues outlined above formed the basis for the questions referred to a medical panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) made by Judge Wischusen of the County Court in the serious injury application proceeding on 18 February 2021. The medical panel convened by the seventh defendant, the Convenor of Medical Panels (‘panel’) included a physician, a neurosurgeon, an orthopaedic surgeon (together, the ‘physical doctors’), and two psychiatrists. Mr Jamali was examined by the psychiatrists on 1 June 2021, and by the physical doctors on 3 June 2021.

Both Mr Jamali and the VWA made written submissions to the panel, and a significant volume of material was provided to the panel (‘referral materials’), including:

(a) reports from Mr Jamali’s treating practitioners and a number of medico-legal experts engaged by the parties;

(b) reports of imaging (x-rays, CT scans, and an MRI) of Mr Jamali’s spine carried out in 2015, 2018 and 2019;

(c) assessment and discharge reports from the Victorian Rehabilitation Centre’s Pain Management Unit; and

(d) vocational assessments reporting upon occupations which might be within the capabilities of Mr Jamali (‘vocational assessments’).

It is not necessary for present purposes to go into a great deal of detail regarding the contents of the various medical reports and the other referral materials, but Mr Jamali’s reporting of his pain symptoms has been quite consistent over time. They were summarised in Mr Jamali’s submissions to the panel as follows:

The Plaintiff suffers from constant pain in his lower back. He experiences electric type pain in his legs and a “cold” sensation in his feet. The Plaintiff’s lower back pain is aggravated by sitting or standing in a stationary position and by activities that require bending or twisting.

Mr Jamali’s submissions to the panel then went on to submit, referring to a number of medical reports in the referral materials, that he suffers from an organically based condition of his lumbar spine. Mr Jamali submitted that this conclusion was supported by the radiological findings. Mr Jamali submitted that little weight should be given to an opinion to the effect that there was a non-organic component to Mr Jamali’s symptoms. However, Mr Jamali also submitted:

If the Medical Panel does not accept that the Plaintiff suffers from an organic condition of his lumbar spine that accounts for his pain and restrictions, the Medical Panel is asked to consider whether the Plaintiff suffers from a chronic pain syndrome as suggested by Dr Thomas and Dr Doig, which accounts for the symptoms in his spine and/or whether the Plaintiff’s spinal symptoms can be explained by any mental or behavioural disturbance or disorder.

Mr Jamali submitted, in relation to the question of causation, that the medical evidence supported a conclusion that his medical condition results from or was materially contributed to by the lower back injury suffered in the course of the September 2018 incident, on the basis that the onset of symptoms occurred on that date, and there was no intervening event to break the chain of causation.

In its written submissions to the panel, the VWA stated as follows:

The Defendant submits that the Plaintiff does not presently suffer from any physical medical condition of his lower back which results from, or is materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 (“the physical lower back injury”). His present pain symptoms are attributable to postural factors in association with spinal degenerative changes and the influence of psychiatric/psychological consequences (including non-organic factors).

The VWA’s submissions also observed that Mr Jamali had suffered back pain in the past, and referred to a medical opinion to the effect that there was a non-organic component present, and another medical opinion to the effect that Mr Jamali’s psychological reaction to his situation had influenced his ongoing symptoms.

The panel provided its opinion and reasons on 12 July 2021. The opinion provided as follows:

Question 1.    What is the nature of the medical condition/s of the Plaintiff’s:
(a)       Lower back;
(b)      Mind?

Answer:The Panel is of the opinion that the medical conditions of the Plaintiff are:
(a)A resolved soft tissue injury of the lower back and a non‑specific lower back pain with described lower extremity symptoms with no clinical or investigation evidence of structural pathology;
(b)an Adjustment Disorder with Anxiety and Associated Conduct Disturbance.

Question 2. Does any, and if so what, physical medical condition of the Plaintiff’s lower back as found in answer to Question 1(a) result from, or is it materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018? (“the physical lower back injury”)
Answer:Yes. The Panel is of the opinion that the physical medical condition of the Plaintiff’s resolved soft tissue injury of the lower back and nonspecific lower back pain with described lower limb extremity symptoms with no clinical or investigation evidence of structural pathology suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 resulted from but is no longer materially contributed to by the physical lower back injury.
Question 3. If 'yes' to Question 2, is any, and if so what, physical medical condition of the Plaintiff’s lower back as found in answer to Question 2 permanent (meaning likely to persist into the foreseeable future)?
Answer: No. The Panel is of the opinion that the physical medical condition of the Plaintiff’s lower back as found in answer to Question 2 is not permanent.
Question 4. If ‘yes’ to Question 3, having regard to the physical lower back injury and whilst disregarding any psychological/psychiatric consequences, does the Plaintiff have any, and if so what, incapacity for work?

Answer: Not applicable.
Question 5. If ‘yes’ to Question 4, is this incapacity for work permanent (meaning likely to persist into the foreseeable future)?

Answer:         Not applicable.
Question 6. (a) if ‘yes’ to Question 5, having regard to the physical lower back injury and whilst disregarding any psychological/psychiatric consequences, does the Plaintiff have a capacity for work as:
(i)       Assembler (light);
(ii)      Packer (light);
(iii)     Gatehouse attendant;
(iv)     Car park attendant;
(v)       Delivery driver (local)
and, if so, for how many hours per week;
(b) if ‘no’ to Question 6(a) in respect of any of the listed work options, is this incapacity for work permanent (meaning likely to persist into the foreseeable future);
(c) if ‘yes’ to Question 6(a) in respect of any of the listed work options, is the found work capacity (including hours per week) permanent (meaning likely to persist into the foreseeable future)?

Answer: Not applicable.
Question 7. Is any, and if so what, present medical condition of the Plaintiff’s mind which is consequential to the physical lower back injury permanent (meaning likely to persist into the foreseeable future)?
Answer: The Panel is of the opinion that the present medical condition of the Plaintiff’s mind is Adjustment Disorder with Anxiety and Associated Conduct disturbance. The Panel considered the condition is consequential to Mr Jamali’s physical lower back injury and is permanent (meaning likely to persist into the foreseeable future).
Question 8.If ‘yes’ to Question 7, having regard to the psychiatric/psychological injury which is consequential to the physical lower back injury, does the Plaintiff have any, and if so what, incapacity for work?
Answer: No. The Panel further concluded that having regard to the psychiatric/psychological injury which is consequential to the physical lower back injury, the Plaintiff has no incapacity for work.
Question 9. If ‘yes’ to Question 8, is this incapacity for work permanent (meaning likely to persist into the foreseeable future)?

Answer:         Not applicable.
Question 10. (a) If ‘yes’ to Question 9, having regard to the psychiatric/psychological injury which is consequential to the physical lower back injury, does the Plaintiff have a capacity for work as:
(i)       Assembler (light);
(ii)      Packer (light);
(iii)      Gatehouse attendant;
(iv)      Car park attendant;
(v)       Delivery driver (local)
and, if so, for how many hours per week;
(b) if ‘no’ to Question 10(a) in respect of any of the listed work options, is this incapacity for work permanent (meaning likely to persist into the foreseeable future);
(c) if ‘yes’ to Question 10(a) in respect of any of the listed work options, is the found work capacity (including hours per week) permanent (meaning likely to persist into the foreseeable future)?

Answer: Not applicable.
Question11. If ‘no’ to Question 6(c) and/or to Question 10(c) in respect of any of the listed work options, would the Plaintiff have the capacity to work a greater, and if so what, number of hours per week in the foreseeable future?

Answer: Not applicable.

The panel’s opinion is binding upon the County Court in the serious injury application proceeding and the common law proceeding by reason of s 313(4) of the WIRC Act.

The panel provided comprehensive reasons for its opinion (‘reasons’). The reasons commenced by noting that Mr Jamali was examined with the assistance of a professional interpreter by the psychiatrists on 1 June 2021 and by the physical doctors on 3 June 2021. Both examinations were conducted in person. While the reasons refer to the ‘the Panel’ conducting the examinations, and the conclusions made by ‘the Panel’, it is tolerably clear from the structure and the content of the reasons that the reasons are an amalgam of two sets of reasons: the reasons of the physical doctors at pages 5 to 11 of the reasons (‘physical doctors’ reasons’) and the reasons of the psychiatrists at pages 11 to 16 of the reasons (‘psychiatrists’ reasons’).

The reasons concluded as follows:

The Panel noted and considered the submissions received from the parties in relation to the referral and considers that the issues raised in the submissions have been addressed appropriately and adequately in the Panel’s Reasons for Opinion.

The reasons commence with the physical doctors’ reasons. The physical doctors’ reasons included a detailed medical history provided by Mr Jamali at the examination on 3 June 2021, as follows:

(a) Mr Jamali explained what occurred in the course of the September 2018 incident and in its immediate aftermath;

(b) Mr Jamali explained the nature and severity of his current symptoms, and said that there had been no significant change in his symptoms over the previous 12 months. The panel summarised Mr Jamali’s recounting of his current symptoms as follows:

Mr Jamali told the Panel that he currently suffers from bad lower back pain that goes down both legs, more down the right leg than the left leg and he suffers from numbness in both legs. He indicated his maximum lower back pain is in the entire lumbar spine area, equally to both paravertebral areas and the pain extends to the level to S1 and radiates to his right buttock. He said the pain goes to the back of his right thigh but also indicated it goes to the medial anterior aspect of his right thigh, which is intermittent, down the back of his right calf and to the back and to the top of his right foot indicating the dorsum of his right foot. He said the pain is worst in his back.
Mr Jamali told the Panel when sitting his lower back pain is 9 or 10 out of 10 in severity. He said it is best when he has been lying in bed for a short period of time when it is about 6 out of 10 in severity. He said after a short time in bed his lower back pain improves but after a long time in bed it gets worse. He said his pain mostly gets worse when sitting, which is after five or ten minutes. He said he has difficulty sitting for longer than 25 minutes because of increasing lower back pain. He said his lower back pain is very bad when he walks although sometimes his lower back pain feels better when he walks. He said standing often improves his lower back pain. He said coughing is associated with increased lower back pain.
He said he suffers lower back pain goes to his right leg on multiple occasions per day. He said he has days when he suffers no pain in his legs. He said his right foot ‘goes numb’ intermittently and every time the numbness is different although his right foot often “goes numb” for about 10 minutes, at some times on top of his right foot, and at other times on the bottom of his right foot.
He said he suffers right leg pain if he starts to exercise and said his right leg can feel bad for one to two hours after exercise, but it can be for as little as 30 minutes or as long as four hours, and is different every time.
He said he suffers leg and left foot numbness that his highly variable in duration but can be 10 to 20 minutes in duration and at time has a sudden or electric pain in his left leg. He also suffers some numbness at the back of his left thigh although his numbness symptoms are greater on the right side.

(c) the physical doctors noted that there was some variability in Mr Jamali’s description of his lower limb symptoms;

(d) Mr Jamali told the physical doctors that he first suffered lower back pain in 2014[1], which improved after treatment with physiotherapy and massage;

(e) Mr Jamali told the physical doctors about his medications and other treatment, which includes taking Panadeine Forte and Endone on a daily basis; and

(f) Mr Jamali told the physical doctors about his education and qualifications, and discussed with the physical doctors some of the employment options identified in the vocational assessments.

[1]However, in his affidavit in the serious injury application proceeding, which was filed on or about 16 April 2020, Mr Jamali said he attended his GP in 2015 having suffered intermittent back pain for two years, but his symptoms then went away. He was also prescribed pain relief medication for back pain in August 2016.

The physical doctors reported upon their examination of Mr Jamali, and commented upon the imaging reports provided to them. In relation to the latter, the physical doctors stated as follows:

The Panel reviewed all available imaging and reports which included:
•Report of lumbosacral spine x-rays dated 23 July 2015 for the indication of “longstanding low back pain” described a developmental variant of incomplete fusion of the spinous process of S1 but was otherwise described as normal;
•Report of a CT lumbar spine dated 1 October 2016 and reported 2 October 2016 performed for the indication of “Low back pain” described minor degenerative disease with minimal to mild disc bulging, some mild to moderate facet joint disease, moderate facet and flavum hypertrophy with potential for mild transiting L5 impingement on both sides;
•Films and report a CT lumbar spine dated 1 October 2018 showed mild changes consistent with Mr Jamali’s age with no evidence of neurocompression. The Panel noted minimal or mild disc bulging at L2/3, L3/4, L4/5 and L5/S1. Mild to moderate facet joint disease was seen at the same levels with mild degenerative changes of the sacroiliac joints;
•Report of an x-ray lumbar spine dated 13 February 2019 described no abnormality;
•Report of an MRI lumbar spine dated 13 February 2019 and reported 14 February 2019 described a disc bulge, more to the right at L4/5 with mild right neuroforaminal narrowing and contact of the right exiting nerve but no other significant abnormality.

The Panel did not consider any additional medical reports or diagnostic imaging necessary in order for it to be able to complete its assessment of Mr Jamali’s medical condition and to answer the questions.

The physical doctors’ reasons concluded as follows:

Medical Diagnosis
The Panel concluded that Mr Jamali is suffering from a resolved soft tissue injury of the lower back and non-specific lower back pain with described lower extremity symptoms.
Medical Discussion
The Panel considered there is no clinical or investigational evidence of structural pathology to explain Mr Jamali’s current lower back and lower extremity symptoms. The Panel noted Mr Jamali has no clinical signs consistent with structural disease of the lumbosacral spine and imaging showed age-related degenerative changes only of the lumbosacral spine.
The Panel further concluded that the physical medical conditions of a resolved soft tissue injury of the lower back and non-specific lower back pain with described lower limb extremity symptoms of Mr Jamali’s lower back results from and was materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 but that the effects of the injury have now resolved.
The Panel noted that Mr Jamali suffered mild lower back symptoms prior to the incident which incrementally and persistently increased in severity the day following the incident.
The Panel further concluded that the physical medical condition of a soft tissue injury has resolved, but the non-specific lower back pain with described lower limb extremity symptoms with no clinical or investigation evidence of structural pathology of Mr Jamali’s lower back is permanent or likely to persist into the foreseeable future.
The Panel noted the report of Dr Alex Mogilevski dated 5 November 2019 in which he opined that Mr Jamali was suffering, “NONSPECIFIC NONORGANIC LOWER BACKACHE and NONVERIFIABLE RIGHT SCIATICA”.
The Panel noted the report of Dr Graeme Doig dated 4 February 2020 in which he opined that Mr Jamali is suffering from “a soft-tissue injury to the lumbo‑sacral spine with an inter-vertebral disc injury at the L4/5 level”. The Panel agreed with Dr Doig that there were minor disc changes at L4/5 but based on the Panel’s examination of Mr Jamali, and the Panel’s experience and expertise, the Panel considered the described disc bulge does not explain his persisting lower back symptoms.
The Panel noted that Mr Jamali’s overall symptoms have not improved in the 2.5 years since the incident.

The psychiatrists’ reasons commenced by recording the history provided to them by Mr Jamali during the examination on 1 June 2021, including what occurred during the September 2018 incident, how he responded in the aftermath of the September 2018 incident, and the anti-depressant medication he has been prescribed and other treatment he has received. The psychiatrists also reported upon Mr Jamali’s account of his current social circumstances and activities of daily living, and Mr Jamali’s description of his current psychiatric symptoms.

The psychiatrists undertook a mental status examination, and made the following diagnosis:

The Panel concluded that Mr Jamali is suffering from an Adjustment Disorder with Anxiety and Associated Conduct disturbance, which is mild to moderate in severity in the setting of pre-existing developmental trauma and psychological vulnerability, including persistent pain. The Panel further considered the condition is permanent or likely to persist into the foreseeable future.
The Panel further concluded that the Mr Jamali has a capacity for work despite his psychiatric/psychological injury.
The Panel noted that the opinion of his treating psychiatrist, Dr Srirekha Vadasseri dated 26 November 2020. Dr Vadasseri opined that by late 2019 his adjustment disorder had been supplanted by a major depressive disorder. The Panel further noted the opinions of medical examiners in Dr Chris Grant dated 26 March 2020, Dr Leon Turnbull dated 30 November 2020 and Dr Vadasseri dated 26 November 2020 that Mr Jamali was suffering from a major depressive disorder or from depressive disorder due to another medical condition. The Panel came to a different conclusion with respect to the dominant mood disturbance and the psychiatric condition, based upon its own history and examination, review of various reports and the Panel’s experience and expertise.
The Panel noted the nature of the psychiatric condition, the mild to moderate spectrum of emotional, behavioural and cognitive symptoms, and the type, intensity and stability of mental health treatment, and concluded that Mr Jamali’s psychiatric condition does not preclude him from performing work for which he is suitably qualified in training, skills and experience, and has physical capacity.

This proceeding

This proceeding was commenced by an originating motion filed on 9 September 2021. Originally, Mr Jamali relied upon four grounds of review. In an amended originating motion filed on 7 September 2022[2], Mr Jamali pressed only two grounds of review,[3] as follows:
[2]But dated 11 July 2022.
[3]Grounds of review to the effect the medical panel made a finding of fact for which there was no evidence, and a differently formulated procedural fairness ground were abandoned prior to the hearing.

Ground 1
The Medical Panel denied the plaintiff procedural fairness and thereby made a jurisdictional error and or an error of law on its record in failing to put him on notice that it would find that:
(a)his current lower back pain and lower extremity symptoms were caused by whatever caused the plaintiff’s prior back pain;
(b)he had relevant pre-existing back symptoms, and that these symptoms which increased the day after the incident;
(c)the cause of these pre-existing back pain symptoms was the cause of his current lower back pain and lower extremity symptoms.
(d)he had a back condition prior to the incident such as was capable of producing, after the incident, his ensuing lower back pain and lower extremity symptoms.

…
Ground 2
The Medical Panel failed to afford the plaintiff procedural fairness and/or failed to consider a mandatory relevant consideration by failing to consider or give proper genuine and realistic consideration to whether the plaintiff’s non-specific back pain and lower extremity symptoms were medical conditions of his mind, and thereby made a jurisdictional error and or an error of law on its record.

Essentially, Mr Jamali contends that:

(a) the panel’s finding that his ongoing symptoms of back pain were related to an earlier back injury was unexpected, and accordingly, the panel was obliged to put him on notice of its intention to make that finding, and to provide him with the opportunity to make further submissions regarding the issue; and/or

(b) given its findings that there was no organic explanation for Ms Jamali’s ongoing symptoms of pain, the panel should have considered whether those symptoms are a medical condition of the mind, such as a chronic pain syndrome.[4]

[4]A chronic pain syndrome may be organic (physical) or psychiatric in origin. In Khan v Romas [2017] VSC 731 I referred to the fact that in the fifth edition of the ‘Diagnostic and Statistical Manual of Mental Disorders’ (‘DSM-5’) the authors explain the new category of mental disorders entitled ‘Somatic Symptom and Related Disorders’, which in effected replaced the condition of ‘Chronic Pain Disorder’. However, despite DSM-5 having been in force since 2013, the term ‘chronic pain syndrome’ still appears to be in widespread use in the medical profession.

In sub-paragraph (a) above, the panel is said to have failed to afford Mr Jamali procedural fairness (‘procedural fairness issue’). In sub-paragraph (b) above, the panel is said to have failed to considered or have had regard to a mandatory relevant consideration (‘chronic pain syndrome issue’). Either way, Mr Jamali says that the panel made a jurisdictional error, such that the panel’s opinion should be quashed, and the medical questions should be remitted to a differently constituted medical panel.

Mr Jamali relied upon an affidavit sworn by his solicitor, Mr Nathan Maniatis, on 9 September 2021. In addition to putting before the Court the referral materials and the panel’s opinion and reasons, Mr Maniatis deposed, relevantly, as follows:

The Medical Panel did not, before delivering its Certificate of Opinion and its Reasons, inform the plaintiff or his solicitors that it would or might form its opinion on any of the bases referred to in paragraph 17 of the Notice of Motion[5], or indeed communicate to the plaintiff or his solicitors the basis on which it proposed to form its Opinions.
[5]See ground 1 extracted in paragraph 23 above.

Mr Jamali’s submissions

Mr Jamali’s written submissions accepted that he bears the onus of establishing that the error complained of was a material error in order to amount to jurisdictional error: that is, that any error caused Mr Jamali to be denied the realistic possibility of a more favourable outcome.

In relation to the procedural fairness issue, Mr Jamali submitted, referring to the decision of the Court of Appeal in Wagstaff Cranbourne Pty Ltd v Hashimi,[6] that the panel’s finding that Mr Jamali’s ongoing symptoms were attributable to a back condition which pre-dated the September 2018 incident (‘prior back pain’) was unexpected, as neither party had addressed the issue in their submissions to the panel, and none of the medical reports in the referral materials referred to this possibility.
[6][2020] VSCA 33.

Mr Jamali submitted that the physical doctors’ reasons include a finding that Mr Jamali’s ongoing symptoms of back pain (which the panel appears to accept were genuine) must have been caused by or associated with the prior back pain. The reference to the prior back pain in the part of the physical doctors’ reasons concerning the diagnosis of Mr Jamali’s medical condition supports Mr Jamali’s contention that the panel concluded that there was a causal connection between the prior back pain and Mr Jamali’s current symptoms.

Mr Jamali submitted that, while there were references to his prior back pain symptoms and treatment in the referral materials, none of the medical opinions in the referral materials concluded that there was a relationship between the prior back pain and his current symptoms, and the VWA did not put forward that contention in its submissions to the panel. Accordingly, while the prior back pain was known to the parties and the panel, the diagnosis that the prior back pain was the cause of the current symptoms was unexpected.

Mr Jamali submitted as follows:

The [plaintiff] suffered practical injustice as a result of not being on notice of the issue. Had the plaintiff been on notice he could have provided written submissions arguing that his previous symptoms had resolved or obtained a report from a medical practitioner to expressly address the Panel’s conclusion. The plaintiff could have persuaded the Panel that his symptoms were either caused by the soft tissue injury from the injury or an associated condition of the mind.

Turning now to the chronic pain syndrome issue, Mr Jamali submitted that the possibility that Mr Jamali’s symptoms of pain were psychiatric in origin only arose if the panel found (as it in fact did) that Mr Jamali had no organic condition of the lumbar spine. While it was an assertion, rather than a diagnosis, it was an assertion founded upon the opinions expressed by Dr Doig and Dr Thomas in their reports.

Mr Jamali referred to the decision of the New South Wales Court of Appeal in J&K Clothing Pty Limited v Mahmoud,[7] where the Court made statements to the effect that if there was some doubt as to the extent of a claimant’s physical injuries, but the claimant was accepted as a truthful witness, it was ‘almost inevitable’ that the claimant would be found to be suffering from a psychiatric or psychological condition.[8]
[7][2004] NSWCA 207.
[8]Ibid [21].

As for the question of whether the question of whether Mr Jamali suffered from a psychiatric chronic pain syndrome was a mandatory relevant consideration, Mr Jamali referred to the observations of the Court of Appeal in Chang v Neill[9] to the effect that a mandatory relevant consideration is usually expressed at a higher level of generality than a specific submission or a particular piece of evidence. However, while the potential diagnosis of a chronic pain syndrome was referred to in Mr Jamali’s submissions to the panel as an alternative diagnosis, Mr Jamali submitted that an alternative diagnosis meets the threshold of a mandatory relevant consideration. Further, given that a diagnosis of a chronic pain syndrome was a potential answer to question 1 of the referred questions, and was potentially dispositive of the matter, the chronic pain syndrome issue was a matter that the panel was bound to consider in order to fulfil its statutory function and properly answer the referred questions.
[9](2019) 62 VR 174.

Mr Jamali submitted that while neither Dr Doig or Dr Thomas made an express diagnosis of a psychiatric chronic pain syndrome, Mr Jamali submitted that the absence of a positive diagnosis did not mean that the panel was not required to consider that alternative diagnosis in order to fulfil its statutory function. The panel is a specialist tribunal capable of forming its own opinion, and the alternative diagnosis was a matter put forward by Mr Jamali as an alternative diagnosis that the panel could consider and form an opinion relying upon its own experience and expertise.

Mr Jamali accepted that the panel was not bound to reach a conclusion that Mr Jamali’s symptoms of pain were caused by a condition of the mind, but once the panel had accepted that Mr Jamali’s symptoms were genuine, but that it could not identify an organic cause of those symptoms, then it was bound to at least consider whether those symptoms were caused by a condition of the mind, particularly given that Mr Jamali’s submissions specifically raised the issue.

Mr Jamali accepted that, given the statement of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[10] to the effect that a medical panel is not required to explain why it did not form an opinion that it did not form, a party challenging a medical panel opinion cannot necessarily rely upon a medical panel’s reasons to support an argument that a clearly articulated argument had not been considered by a medical panel. However, in the current case, both the physical doctors and the psychiatrists expressly referred to alternative diagnoses in their reasons, and that they rejected certain alternative diagnoses. Given that no reference was made in the reasons to a possible diagnosis of chronic pain syndrome, an inference can safely be drawn that this possible diagnosis was not considered by the panel.
[10](2013) 252 CLR 480.

Mr Jamali submitted further that:

(a) the reports of the psychiatrists and psychologists in the referral materials do not exclude the potential diagnosis of a psychiatric chronic pain syndrome, they simply do not raise or address that possibility;

(b) there is no evidence that the psychiatrists investigated whether the back pain was caused by or evidenced a psychiatric condition during the course of their examination, rather, their focus was Mr Jamali’s depression and anxiety; and

(c) Mr Jamali submitted as follows (omitting citations):

The Panel’s general reference to the plaintiff’s written submissions is not indicative of a consideration of every submission therein. The Panel’s reasons do not even refer to the alternative diagnosis of a condition of the mind specifically, let alone expressly reject, or at least reveal investigations directed to the diagnosis. While the Panel is not required to refer to a diagnosis not reached, given the clarity with which the submission was expressed, the medical evidence that supported it, and that such a diagnosis was open on the Panel’s reasons, the failure to refer to the alternative diagnosis at all, is a ‘glaring’ omission that reveals it was not considered.

Mr Jamali’s written submissions concluded as follows:

The Panel’s error was material to the outcome. Had the Panel considered the alternative it may have found the plaintiff’s symptoms were a condition of the mind, and were materially contributed to by the plaintiff’s workplace injury on 20 September 2018. Therefore, the error is jurisdictional. Alternatively, the Panel made an error of law on the face of the record by denying the plaintiff natural justice or failing to identify a relevant issue.

The VWA’s submissions

The VWA submitted that the Court should not be persuaded that the panel’s opinion was attended by any jurisdictional error or error of law on the face of the record. The VWA’s submissions made the general observation that the reasons show that the panel reached its conclusions after a careful analysis of its interview and examination findings and the referral materials.

The VWA noted that the function of the panel, as an expert body, was to form and give its own opinion as to the diagnosis and aetiology of Mr Jamali’s condition(s). It was a matter for the panel to determine what weight it gave to the opinions of other medical practitioners, and the panel was not required to explain which medical opinions it agreed or disagreed with.[11]
[11]See Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

The VWA submitted that the reasons show the panel’s reasoning process to its conclusions, which were formed using its own professional medical judgment. Those conclusions were consistent with other medical opinions included in the referral materials to the effect that the imaging evidence showed only minimal changes to Mr Jamali’s lumbar spine, and that no abnormalities were revealed by their physical examinations.

The VWA submitted that (omitting citations):

In circumstances where the Panel could not correlate the described symptoms to any persisting organic injury, its conclusion that they were of non-specific origin, and that it could not attribute them to the since resolved initial soft tissue injury, was unremarkable. The Panel did not, and did not need to, determine the cause of the plaintiff’s reported symptoms, and in particular, it did not make any finding that they were ‘the continuance of a pain condition pre-dating the injury’…

In relation to the procedural fairness issue, the VWA submitted that Mr Jamali’s submissions with respect to this issue were founded on a false premise: the false premise being that the panel had found that Mr Jamali’s current symptoms were ‘a continuation of lower back symptoms he was experiencing immediately prior to the [September 2018 incident], and that those symptoms had persisted and incrementally increased in severity up to the time of the panel’s examination without any causal connection to the work incident’.

Accordingly, the finding that Mr Jamali seeks to attribute to the panel was simply not made by the panel. Rather, the panel was simply unable to explain why Mr Jamali continued to suffer lower back pain. The panel was not obliged to find an alternative explanation for these ongoing symptoms in order to fulfil its statutory function given all it had to do was opine upon whether the compensable injury persisted or whether it had resolved.

The VWA submitted as follows (citations omitted):

The matters noted by the Panel in the impugned passage were also supported by the history given to the Panel by the plaintiff about his prior low back pain recorded on page 8 of the Panel’s reasons and the history given about his low back pain increasing after the work incident recorded on page 6 of the Panel’s reasons. The plaintiff had the opportunity to set out what he wanted to tell the Panel about his prior low back symptoms in his affidavit and in his written submissions to the Panel. He was also expressly asked by the Panel about his prior symptoms during the interview and told the Panel that those symptoms ‘improved’ prior to the work incident. There is accordingly no merit in the complaint that he was denied a fair opportunity to address his prior symptoms with the Panel.

In relation to the chronic pain syndrome issue, the VWA noted, uncontroversially, that ‘[a] ground of review alleging a failure to take into account a relevant consideration can only be made out if a medical panel has failed to take into account a consideration it was bound to take into account’.

The VWA referred to a number of authorities which discussed the legal principles relevant to when a Court would interfere with the decision of a medical panel, observing that ‘…[a] court must exercise caution not to exceed its “supervisory role” and engage in any merits-style reasoning in assessing the findings of the Panel’.

The VWA noted that:

(a) the psychiatrists carried out a comprehensive psychiatric examination, where they took a detailed history from Mr Jamali and undertook a mental state examination , noting that Mr Jamali presented with somatised anxiety, but did not identify any other somatised behaviours;

(b) the panel expressly stated that it had regard to the referral materials and the parties’ submissions, and in the reasons the panel referred to numerous matters referred to in the referral materials;

(c) it was not necessary for the panel to refer to all of the evidence before it, or to explain why its diagnosis differed from those of other medical practitioners. As such, its failure to explain why it did not reach an opinion it did not form does not establish that panel failed to consider any alternative diagnoses;

(d) none of the treating psychiatrists or similarly qualified medico-legal experts who examined Mr Jamali diagnosed him as suffering from a psychiatric pain disorder. Dr Doig and Dr Thomas are not psychiatrists, and their references to a chronic pain disorder did not, contrary to Mr Jamali’s submissions, establish that Mr Jamali’s symptoms constituted a condition of the mind; and

(e) the panel did not expressly say whether it had accepted the veracity of Mr Jamali’s reporting of symptoms, but even if it had accepted his complaints, the panel was not ‘bound to include that his symptoms engaged the diagnostic criteria for a psychiatric chronic pain disorder’.

The VWA submitted that it is not correct to say that just because a submission is made to a medical panel, or material is given to a medical panel, then the issue raised by the submission or the evidence automatically becomes a mandatory relevant consideration.[12] Mr Jamali’s primary submission to the panel was that he was suffering from an organic injury of the spine, with a consequential psychiatric injury, which was consistent with the referral materials. Mr Jamali’s submission to the effect that the panel ought to consider that Mr Jamali was suffering from a chronic pain syndrome was ambiguous, and not supported by the medical opinions in the referral material.
[12]Referring to Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 [78].

Further, even if the panel was required to consider whether Mr Jamali suffered from a psychiatric pain disorder, the VWA submitted that the panel did not fail to take into account that issue, as follows:

… the plaintiff has identified no proper basis upon which it should be concluded that the Panel, when it undertook the process of identifying the most appropriate diagnosis for his psychiatric condition and determined that it was an adjustment disorder with anxiety and conduct disturbance, did not consider other potential diagnoses including a psychiatric pain disorder.

The VWA submitted that the panel expressly considered whether Mr Jamali’s symptoms of pain were physical or psychiatric in origin, and considered that they were physical in origin. They found that Mr Jamali had suffered a soft tissue injury as a consequence of the September 2018 incident, which had now resolved.

The VWA submitted further that Mr Jamali had identified no proper basis for concluding that the psychiatrists did not consider whether Mr Jamali was suffering from a psychiatrically based chronic pain syndrome. The psychiatrists took a detailed history from Mr Jamali, and the psychiatrists’ reasons were very detailed, and referred to his symptoms of pain and functional restrictions. The psychiatrists’ reasons made it clear that they were alert to whether Mr Jamali exhibited any pain behaviours, or whether there any somatised symptoms, which could only have been for the purpose of considering whether Mr Jamali was suffering from a psychiatrically based pain condition. Rather, the psychiatrists concluded that Mr Jamali’s symptoms of persistent pain were the setting for his psychiatric condition: they were not caused by any psychiatric condition.

Relevant legal principles

The approach to be taken in applications of the current kind was recently discussed by the Court of Appeal in Sidiqi v Kotsios.[13] A summary of the relevant principles derived from the Court’s reasons in Sidiqi[14] is to be found in the following extract from the decision of O’Meara J in Moutray v The Union Pastoral Co Pty Ltd[15] (omitting citations):
[13][2021] VSCA 187.
[14]Ibid.
[15][2021] VSC 723.

(a) judicial review proceedings are not concerned with merits review;
(b) such a review must commence with a consideration of the statutory function of such a panel, which is to form an opinion with respect to the questions referred to it and state the reasons for the answers given;
(c) the parties to the underlying questions or matter may supply a panel with material relevant to the opinion sought, including making submissions on the basis of the material provided;
(d) the function of a panel is, however, not adjudicative or arbitral – its function is to form its own opinion on the medical questions referred to it applying its own medical experience and expertise;
(e) for these reasons, it will be difficult to conclude that an opinion was not open to a medical panel if its opinion was materially informed by its expertise;
(f)a medical panel is not bound by the rules of evidence and may inform itself on any matter relevant to the issues referred to it and in any manner it sees fit;
(g)it follows that a panel has a ‘broad discretion as to the manner in which it evaluates the facts in a particular case’ and, ‘in a fundamental sense’ it is for the panel to determine what information is sufficient to found an opinion with respect to a medical question; and
(h)a panel is not required to arrive at scientific certainty but to arrive at its opinion on the balance of probabilities.[16]

[16]Ibid [55].

In Wagstaff Cranbourne Pty Ltd v Hashimi,[17] the Court of Appeal considered the question of when a medical panel may be found to have failed to afford a party procedural fairness, stating as follows:

The questions that were referred to the Panel required it to decide the nature of any injury suffered by Mr Hashimi and whether the requisite causal relationship existed between the injury and his employment with Wagstaff. The Panel was required to reach its own decision on these issues and was not bound by the opinions in the medical reports that were provided to it. However, the Panel was not free of all constraints in performing its task. Rather, it had to perform its task in accordance with the provisions of the WIRC Act and applicable legal principles. In particular, the Panel had to take into account the material provided to it, including the parties’ pleadings, submissions and medical reports.
The parties’ pleadings, submissions and medical reports established the parameters of their dispute. Procedural fairness required that the Panel form its opinion within those parameters and that, if it intended to treat as determinative a matter falling outside those parameters, it had to give the parties notice of its intention to do so and an opportunity to address the Panel on that matter.[18]

And further:
A medical panel does not afford a party a reasonable opportunity to be heard where it reaches an adverse opinion on a matter which the party did not address because it could not reasonably have been anticipated that the medical panel might reach that opinion. For the purposes of the present proceeding, it is not necessary for us to canvas all the circumstances in which it may be found that an opinion of a medical panel could not reasonably have been anticipated. It suffices to say that, depending on the facts, those circumstances may include a situation where, without prior notice, a medical panel treats as determinative a fact or evidence that is known to be before the medical panel but upon which the parties placed no reliance.[19]

[17][2020] VSCA 33.

[18]Ibid [57]-[58].

[19]Ibid [40].

Finally, a helpful summary of the approach to be taken where a decision of a medical panel is sought to be impugned on the grounds that the medical panel has failed to take into account a relevant consideration is to be found in the following extract of the decision of Keogh J in Combined Enterprises Pty Ltd v Brister[20] (omitting citations):

A ‘relevant consideration’, for the purposes of this ground of review, is one which the medical panel was bound to take into account in making the relevant decision. Relevant and irrelevant considerations are identified by reference to the statute which empowers the decision-maker to act, and in circumstances where no explicit provision is made in the Act for the considerations in question they are to be determined by implication from the subject-matter, scope, and purpose of the Act. If the factor which the decision-maker failed to take into account was so insignificant that the failure could not have materially affected the decision, the court will not be justified in setting aside the impugned decision and ordering that the discretion be re-exercised according to law. The court must be careful, when deciding whether an inferior court or tribunal has failed to take into account relevant considerations, not to cross the line between judicial review and merits review, and ‘misconstrue dubious findings of fact or questionable weight being given to particular evidence’ as jurisdictional errors.
It is established that the ‘material’ provided by the referring body or person to the Panel, including the documents relating to the medical question as provided pursuant to what is now s 304 of the Act, constitutes a consideration which the Panel is required to take into account. However, as is made clear by Cavanough J in Vellios Electrical Contractors Pty Ltd v Barton, this does not mean that every submission, much less every part of every submission provided to the Panel must be ‘dealt with in the...statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part’. That requirement applies only to mandatorily relevant matters, factors or considerations, which are to be determined by reference to the terms of the relevant statute, not to whatever submission happens to be made to the decision-maker.
Although it is generally for the decision-maker to determine what weight ought to be given to a mandatory matter, taking a relevant consideration into account calls for much more than ‘mere advertence or lip service’. The failure to expressly refer to a relevant consideration, or to give it any weight, can provide the basis for an inference that it was not taken into account. Similarly, a bare reference to a document, or a mere assertion that a decision-maker has had regard to a matter, may not provide an adequate foundation upon which the conclude that the substance of the material referred to has been taken into account.[21]
[20][2016] VSC 807.
[21]Ibid [25]-[27]. See also Moyston Court Fisheries Ltd v Malios [2007] VSC 518 at [7].

The procedural fairness issue

There was no dispute between the parties that a medical panel may fall into jurisdictional error if it makes a finding which was unexpected, or “out of the blue”[22] such that the medical panel concerned was obliged to inform the parties that it was considering making such a finding, and to provide them with an opportunity to submit further evidence and/or make any further submissions regarding the issue concerned.
[22]See Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248 [48].

However, the parties are in dispute with respect to the following issues:

(a)whether the panel in fact made a finding that Mr Jamali’s symptoms were caused by a medical condition which caused the prior back pain; and
(b)if the panel did make such a finding, did the panel’s failure to inform Mr Jamali of its intention to make such a finding a breach of its obligation to afford Mr Jamali procedural fairness?

In my view, this ground of review can be dealt with quite briefly, in that I accept the VWA’s submission to the effect that this ground of review is premised upon a misreading of the reasons. The physical doctors’ reasons make only a brief reference to Mr Jamali’s symptoms of and treatment for back pain prior to the September 2018 incident, as follows:

Mr Jamali told the Panel the first time he suffered lower back pain was in about the year 2014. He said he was treated with physiotherapy, massage and said the symptoms improved.

The only reference to the prior back pain in the part of the physical doctors’ reasons concerning their diagnosis (also extracted at paragraph 20 of these reasons) is in the following statement:

The Panel noted that Mr Jamali suffered mild lower back pain symptoms prior to [the September 2018 incident] which incrementally and persistently increased in severity the day following the incident.

The Panel then went on to opine that “..the physical medical condition of a soft tissue injury has resolved, but the non-specific lower back pain with described lower limb extremity symptoms with no clinical or investigation evidence of structural pathology…is persistent or likely to persist into the foreseeable future.”

I can see how a critical reader might characterise the panel’s reference to the prior back pain as amounting to a finding that Mr Jamali had an underlying lower back condition, which was symptomatic in 2014, and was again rendered symptomatic by the September 2018 incident. However, ultimately I do not agree with that characterisation of the reasons. Read as a whole, I understand the panel to be saying that Mr Jamali did suffer a soft tissue injury as a consequence of the September 2018 incident, which has now resolved, but that there is no structural condition of his lower back evident which could be considered to be the cause of his ongoing symptoms of back and lower extremity pain. It seems to me that if the panel had concluded that Mr Jamali’s symptoms were caused by a pre-September 2018 incident, injury or condition, it would have expressly said so. What it did in fact say was that there was no clinical or investigation evidence of any structural condition or injury of Mr Jamali’s lower back which provides an explanation for Mr Jamali’s ongoing symptoms of lower back pain, whether as a consequence of the September 2018 incident, or otherwise. Indeed, the physical doctors’ reference to the prior back pain seems to me to go nowhere, or at the very least is nowhere near as consequential as Mr Jamali contends.

Accordingly, because I do not consider that the panel made the finding complained of by Mr Jamali, strictly speaking, it is not necessary for me to consider whether the finding, if it had been made, was so unexpected or “out of the blue” to have required the panel to seek input on the issue prior to forming its opinion and answering the medical questions. However, I will make the following observations regarding this issue:

(a)I agree with the submissions of the VWA to the effect that the issue of the prior back pain was apparent from the referral materials, and I note that Mr Jamali addressed the issue of the prior back pain in his affidavit in the serious injury application proceeding; and
(b)Mr Jamali has been represented at all stages during this process by very experienced specialist personal injury solicitors, who would be well aware of the task before the panel in answering the medical questions, including issues of causation. That is, given that the task of the panel was to identify whether Mr Jamali suffered an ongoing medical condition as a consequence of the September 2018 incident, it would be readily appreciated that Mr Jamali’s past medical history could well have been a relevant matter. Accordingly, I can infer that they would have been alert to the issue of the prior back pain episode, and they had ample opportunities to address this matter in their submissions and the medico-legal reports they commissioned to provide to the panel.

Accordingly, this ground of review is not made out.

Chronic pain syndrome issue

I now turn to the question of whether, in failing to make express reference to and form an opinion on the question of whether Mr Jamali’s ongoing symptoms of lower back pain were caused by, or otherwise associated with a chronic pain syndrome which was psychiatric in origin, the panel failed to consider a matter which it was required to consider in order to fulfill its statutory function.

As noted earlier in these reasons, Mr Jamali submitted that the question of whether Mr Jamali’s ongoing symptoms of pain were associated with a psychiatrically based chronic pain syndrome was expressly raised by Mr Jamali’s submissions to the panel. This submission was put in the alternative, in that Mr Jamali’s primary contention was that he was suffering from an organically based lumbar spine injury. However, the alternative diagnosis was expressly and clearly put by Mr Jamali.

Mr Jamali’s submissions to the panel referred to opinions provided by two doctors, Dr Doig and Dr Thomas, which were included in the referral materials. Dr Doig, an orthopaedic surgeon, examined Mr Jamali on 29 January 2020, having had access to a number of medical reports and clinical notes. Dr Doig’s report was reasonably brief, but to the point. He stated as follows:

The diagnosis was of a soft-tissue injury to the lumbo-sacral spine with an inter-vertebral disc injury at the L4/5 level. The worker continues to suffer from chronic pain with secondary psychological issues.

Dr Doig then went on to say as follows:

The clinical presentation is now consistent with a chronic pain disorder with secondary psychological problems.

A number of reports from Dr Thomas, a specialist in pain management, were included in the referral materials.[23] In his first report, dated 14 February 2019, Dr Thomas stated:

Hard not to draw the conclusion that there was a non-organic component here but let’s review him again with the MRI before working out the next step.

[23]On 14 February 2019, 1 March 2019, 30 April 2019, 30 June 2019, 9 August 2019, and 4 December 2020.

However, while later reports referred to concerns held by Dr Thomas for Mr Jamali’s mental state, and Dr Thomas recommended that he be referred to a psychiatrist, no further comments were made by Dr Thomas in his reports to the effect that there was a non-organic component or cause of Mr Jamali’s symptoms of pain.

Accordingly, this is not a case where the referral materials were replete with references to a possible diagnosis of chronic pain syndrome.[24] On the other hand, the possibility that Mr Jamali’s symptoms of pain could be explained by a psychiatrically based chronic pain syndrome (in the event that the panel found that those symptoms were not organically based) was raised squarely by Mr Jamali’s submissions to the panel.[25] There was also a reference to ‘Chronic Pain Syndrome’ under the heading ‘injuries and body function alleged to be impaired…’ in the standard form accompanying his application in the serious injury application proceeding.
[24]As was the case in Khan v Romas [2017] VSC 731.
[25]The VWA’s submissions to the panel did not respond to this submission, but those submissions were provided to the panel the day after Mr Jamali’s submissions were provided to the panel, so I can infer that the VWA’s submissions were not directly responsive to Mr Jamali’s submissions to the panel.

There was no reference to a chronic pain syndrome in the panel’s reasons. The physical doctors’ reasons make no reference to any non-organic component to Mr Jamali’s symptoms of pain save for a reference (without comment) to a report prepared by Dr Alex Magilevski, the general practitioner who treated Mr Jamali in the immediate aftermath of the September 2018 incident, of 5 November 2019, in which Dr Magilevski opined that Mr Jamali was suffering “NON SPECIFIC NON ORGANIC LOWER BACKACHE and NONVERIFIABLE RIGHT SCIATICA”.

There is also no reference to chronic pain syndrome in the psychiatrists’ reasons (which were comprehensive), although the psychiatrists, when reporting upon their interview with Mr Jamali, stated as follows:

He stood for about half of the examination, often clutching his right buttock, but not with evident other pain behaviours.

The reference to “other pain behaviours”, and elsewhere in the reasons “somatised anxiety” were the only references which might possibly be considered to touch on matters relevant to a diagnosis of a chronic pain syndrome.

Two questions arise in relation to the chronic pain syndrome issue:

(a) was the question of whether Mr Jamali’s symptoms of pain were caused by or associated with a chronic pain syndrome of psychiatric origin was a matter that the panel was required to consider in order to fulfil its statutory function when providing its opinion; and

(b) if so, did the panel consider this question when forming its opinion?

The question of whether the panel was required to consider whether Mr Jamali was suffering from a psychiatric chronic pain syndrome is finely balanced. On the one hand, there are only fleeting references in the referral materials to any possible non-organic cause of Mr Jamali’s pain symptoms. Accordingly, while Mr Jamali’s submissions to the panel refer to a possible diagnosis of a chronic pain syndrome (and the VWA’s submissions to the panel referred to ‘non-organic’ factors as being relevant to Mr Jamali’s symptoms of pain), it is at least arguable, as contended for by the VWA, that the submission was not founded on a sound factual basis.

I also accept that the panel is not obliged to have regard to and refer to each and every submission advanced by a party. However, on balance, given the nature of the issue, given that the panel found that there was no clinical explanation for Mr Jamali’s reporting of his symptoms of pain, and given that the issue was expressly raised by Mr Jamali’s submissions, I consider that the possibility that Mr Jamali might suffer from a chronic pain syndrome was a matter that the panel was required to have regard to in order to fulfill its statutory function.

It is well established that what amounts to a mandatory relevant consideration to which an administrative decision maker or tribunal must have regard to is governed by the relevant statutory framework. The function of a medical panel is said by s 302(1) of the WIRC Act to be ‘to give its opinion on any medical question in respect of injuries arising out of, or in the course or, or due to the nature of, employment…’

In the current case, the purpose of the reference of the medical questions to the panel was to obtain an opinion as to whether, among other things, Mr Jamali suffered an injury, which was caused or contributed to by his employment, and whether any such injury was permanent. The opinion, given that it is binding upon the County Court in the serious injury application, and given the terms of s 327 of the WIRC Act[26], would be determinative, in a practical sense, of Mr Jamali’s entitlement to claim damages in the common law proceeding. Accordingly, the question of whether Mr Jamali suffered a permanent injury in connection with his employment (or, more precisely, in connection with the September 2018 incident) was a ‘fundamental issue’, in that the panel’s opinion on that question was determinative of Mr Jamali’s entitlement to damages if it determined, as it did, that Mr Jamali suffered no permanent injury as a consequence of the September 2018 incident.
[26]Section 327 of the WIRC Act provides that ‘…a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury’.

The question of whether a ‘fundamental issue’ should be equated to a mandatory relevant consideration was recently considered by Walker JA (sitting in the Trial Division) in La Rosa v Patrick[27]. Her Honour observed that in Chang v Neill[28] the Court of Appeal said, in the context of determining whether an error of fact made by a medical panel could amount to jurisdictional error, that the language of ‘fundamental error’ is best avoided. However, her Honour referred to the observation of the Court of Appeal in Sidiqi v Kotsios[29] that ‘a medical panel will commit jurisdictional error if it fails to give genuine consideration to … fundamental issues raised by the facts of the case’[30], before concluding that:

…[the] submission that the panel was required to give genuine consideration to fundamental issues raised by the materials before it was correct.[31]

[27][2022] VSC 404.

[28](2019) 62 VR 174.

[29][2021] VSCA 187.

[30]Ibid [61].

[31]La Rosa v Patrick [2022] VSC 404 [58].

It seems to me that it is difficult to contend that the existence of and nature of a medical condition and its connection with Mr Jamali’s employment could be anything but a fundamental issue.

It should not be forgotten that what might be described as the medical panel regime, being the process of referring medical questions to medical panels for determination, is a critical gateway for workers and other injured parties to claim statutory compensation and/or common law damages. As was observed by Winneke P in Masters v McCubbery[32]:

Although these critical issues are referred to the medical panel couched in terms of “medical questions” and the responses of the panel to them are couched in terms of “opinions”, such legislative terminology cannot obscure the fact that the panel is being called upon to decide matters of mixed law and fact which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination.[33]

[32](1996) 1 VR 635, quoted in Moyston Court Fisheries Ltd v Dr John Malios [2007] VSC 518.

[33](1996) 1 VR 635, 642.

In the current case, the possibility that Mr Jamali suffers a chronic pain syndrome which is psychiatric in origin was raised in his submissions to the panel and was put as an alternative diagnosis in the event that the panel found (as it did) that Mr Jamali’s symptoms of lower back pain were not referable to an organic condition of the lumbar spine. While there was only limited support for such a diagnosis in the referral materials, there was some support. Further, as observed by Mr Jamali’s submissions in this proceeding, the panel was entitled to rely upon (and, arguably, the parties were entitled to call upon) the panel’s own experience and expertise when forming its opinion regarding Mr Jamali’s medical condition.

This is not to say that on all occasions when a party’s submissions raise the possibility of an alternative diagnosis that a medical panel must consider or have regard to that diagnosis. The inquiry is necessarily highly fact dependent, and there may be occasions where an alternative diagnosis is clearly spurious, or completely unavailable on the materials, or where a medical panel had formed the view that a claimant was clearly feigning their symptoms, such that it is not necessary for a medical panel to consider alternative diagnoses. But that is not the current case. There was nothing in reasons to suggest that Mr Jamali’s reports of his symptoms of pain was not accepted by either the physical doctors or the psychiatrists, indeed, the panel’s response to the medical questions refer to those ongoing symptoms of pain. Having found no organic explanation of these symptoms, and in the face of a direct request that the question of whether Mr Jamali suffered a pain disorder of psychiatric origin be considered by the panel, it seems to me that it was incumbent upon the panel to give active intellectual consideration to whether Mr Jamali suffered from a pain disorder of that nature.

As for the question of whether the panel did in fact consider whether Mr Jamali suffered from a psychiatrically based chronic pain syndrome, again, the matter is finely balanced, but, on balance, I am persuaded that it did not.

First, while this is not determinative, there is no express reference in the reasons to the question of whether Mr Jamali’s symptoms of pain were caused by a pain disorder of psychiatric origin, or the term ‘chronic pain syndrome’. One would not have expected the physical doctors to opine on the matter, although conversely, it would not have been surprising if, having reached the conclusion that Mr Jamali’s symptoms had no apparent organic cause, the physical doctors had at least speculated whether those symptoms were associated with a psychiatric disorder.

There is nothing in the reasons or in the answers to the questions to suggest that either the physical doctors or the psychiatrists disbelieved Mr Jamali’s reports of his symptoms of pain. Further, the reasons are replete with references to other medical opinions contained in the referral materials, including Dr Doig’s opinion, which expressly raised the possibility that Mr Jamali’s report symptoms of pain were non-organic in origin.

However, and more significantly, the psychiatrists’ reasons made no mention of a chronic pain syndrome or like disorder. The only potentially relevant references referred to by the VWA in its submissions were, compared with the detail and analysis in the psychiatrists’ reasons as a whole, minimal and fleeting in nature.

I accept Mr Jamali’s submissions to the effect that the psychiatrists’ reasons focussed upon whether Mr Jamali suffered from depression and/or anxiety, or, as it found, an adjustment disorder consequent upon his physical injuries. The psychiatrists’ reasons did not evidence any active intellectual engagement on their part with the question of whether Mr Jamali was suffering from a psychiatric condition which caused his symptoms of pain. While the absence of any reference to such an analysis in the reasons is not necessarily determinative of the matter, the absence of any such discussion is to be contrasted with the thorough and careful reasoning the psychiatrists undertook and articulated with respect to the diagnoses they did reach, and their careful consideration of the other medical opinions in the referral materials, including those they did not agree with.

Another matter which reinforces my view that the panel did not consider the alternative diagnosis of a chronic pain syndrome with a psychiatric origin is the manner in which the panel carried out its examinations of Mr Jamali. The psychiatrists carried out their examination two days before the physical doctors carried out their examination, such that I can infer that the psychiatrists did not have the benefit of the physical doctors’ finding that there was no clinical basis for Mr Jamali’s symptoms of pain at the time they conducted their examination. Of course, practically speaking, the question of whether a psychiatrically based chronic pain syndrome only really arises if there is no identifiable organic cause of any symptoms of pain. The psychiatrists seemed to proceed upon the basis that Mr Jamali’s symptoms of pain were genuine. As observed by the VWA in its submissions, the psychiatrists referred to Mr Jamali’s psychological disorders, and his emotional, behavioural and cognitive symptoms as arising in the setting of persistent pain. With respect, that submission helps make good the argument that the psychiatrists failed to consider whether Mr Jamali’s persistent pain had a psychiatric origin, rather than being merely the setting for his psychological symptoms.

While I said earlier in these reasons that the question of whether an issue rises to the status of a mandatory relevant consideration is necessarily quite fact dependent, there are some parallels between the circumstances and the issues in the current proceeding and the proceeding of Ayana v Quantas Airways Ltd[34], where Gorton J held that the opinion of a medical panel ought to be quashed on the grounds that the medical panel concerned had failed to have regard to whether the plaintiff, who ‘presented to the Panel as somebody in significant pain and with considerable disability’[35], was suffering from a psychiatrically based chronic pain syndrome, or, as described by his Honour, a ’genuine non-organic pain condition’.[36]
[34][2021] VSC 500 (‘Ayana’).
[35]Ibid [3].
[36]Ibid [8].

In Ayana[37], the employer conceded that the medical panel was required to consider whether the plaintiff had a genuine non-organic pain condition, which the judge described as a ‘sensible concession’. The plaintiff had made an express submission of a kind made by Mr Jamali to the panel in the current case, and there was also some supportive medical opinions to that effect. The employer relied upon video surveillance and submitted that the plaintiff’s presentation was not genuine, and noted the finding of a previous medical panel to the effect that the plaintiff did not have clinical features consistent with a somatic symptom disorder or a chronic pain syndrome.
[37]Ibid.

Gorton J carefully analysed the medical panel’s reasons, and was unable to reach a positive conclusion one way or another as to whether the medical panel had in fact taken into account or failed to have regard to the relevant consideration. Given that the plaintiff bore the onus of establishing jurisdictional error, the plaintiff failed to make good that ground of review. However, his Honour quashed the medical panel’s opinion on the ground of inadequate reasons, as the medical panel’s reasons failed to explain its path of reasoning to enable him to assess whether the medical panel had regard to the agreed mandatory consideration.

His Honour concluded his reasons with the following remarks, which have some relevance to the current inquiry (omitting citations):

A tension can arise between the principle that a panel must set out its reasoning process in sufficient detail to allow the court to ascertain whether that process involved an error or law, and the principle that a panel is not obliged to give reasons to explain why it did not reach an opinion it did not form. The tension arises in a case like this, where the parties agree that the Panel was required to consider a possible diagnosis, but the Panel did not reach that diagnosis. The tension is resolved, in my view, by giving priority to the former principle. If a panel is required to consider a diagnosis, then in ordinary circumstances the reasons ought to reveal whether or not it considered that diagnosis, even if it did not ultimately form that diagnosis. Otherwise, the Court would be unable to detect and correct error. [38]

[38]Ibid [18].

Ultimately, I suspect that the tension referred to by Gorton J above will have to be resolved at the appellate level. However, it seems to me that where a ground of review is squarely directed towards a medical panel’s reasoning process, then the best evidence of that reasoning process is that medical panel’s reasons. In the current case, I am satisfied that the reasons evidence a failure on the part of the panel to have regard to the possibility that Mr Jamali’s symptoms of pain were referable to a pain disorder which was psychiatric in origin.

While the panel was not bound to conclude that Mr Jamali had a chronic pain disorder, the nature and severity of Mr Jamali’s medical condition, and its connection to his employment was a fundamental issue in the County Court proceedings in which the panel’s opinion would be determinative. Accordingly, even if there was no more than real possibility that the panel may have formed a different opinion had it considered the alternative diagnosis raised by Mr Jamali’s submissions, the panel’s opinion was affected by jurisdictional error.

Accordingly, the opinion of the panel should be quashed. I will hear further from the parties on the appropriate form of orders and the question of costs.

SCHEDULE OF PARTIES

S ECI 2021 03297
BETWEEN:
FAHIM JAMALI	Plaintiff
- v -
VICTORIAN WORKCOVER AUTHORITY	First Defendant
DR DIANE NEILL	Second Defendant
ASSOC PROFESSOR ALEXANDER HOLMES	Third Defendant
ASSOC PROFESSOR PAUL CHAMPION DE CRESPIGNY	Fourth Defendant
PROFESSOR GAVIN DAVID	Fifth Defendant
MR GARY SPECK	Sixth Defendant
CONVENOR OF MEDICAL PANELS	Seventh Defendant

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Citations

Jamali v Victorian WorkCover Authority [2022] VSC 634

Most Recent Citation

VWA v Jamali [2023] VSCA 240

Cases Citing This Decision

1

Victorian Workcover Authority v Jamali [2023] VSCA 240

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[2022] VSC 634

24 October 2022