Kachoui Didani v Downes-Brydon
[2021] VSC 27
•2 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03946
| ALI KACHOUI DIDANI | Plaintiff |
| v | |
| DR JENNY DOWNES-BRYDON | First Defendant |
| DR MAJID RAHGOZAR | Second Defendant |
| MR KEVIN SIU | Third Defendant |
| ASSOCIATE PROFESSOR ABDUL KHALID | Fourth Defendant |
| TASMANIAN SEAFOODS PTY LTD | Fifth Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2020 |
DATE OF JUDGMENT: | 2 February 2021 |
CASE MAY BE CITED AS: | Kachoui Didani v Downes-Brydon & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 27 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Assessment of worker’s medical condition and work capacity – Termination of weekly compensation payments – Jurisdictional error – Adequacy of reasons – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | G Uren QC with C Hangay | Zaparas Lawyers |
| For the First to Fourth Defendants | No appearance | |
| For the Fifth Defendant | M Fleming QC with S Gold | Hall & Wilcox |
HIS HONOUR:
The plaintiff, Mr Ali Kachoui Didani, was employed by the fifth defendant, Tasmanian Seafoods Pty Ltd (‘fifth defendant’), as a labourer. In August 2016, the plaintiff experienced lower back pain which radiated to his left leg when he tried to turn over a cooker pot at work to empty it of water.
A claim for compensation made by the plaintiff under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) was accepted, and weekly compensation payments were made.
In 2019 the authorised insurer decided to terminate the plaintiff’s entitlement to weekly compensation payments on the grounds that he had work capacity. The plaintiff disputed the insurer’s decision. Medical questions relevant to the dispute were referred for opinion to a medical panel constituted by the first to fourth defendants (‘the Panel’). Consistent with the claim form, the referral document to the Panel described the injury as lower back pain which radiated to the left leg.
The plaintiff told the Panel that he continued to suffer back and left leg pain. However, the Panel found he was no longer suffering any physical medical condition relevant to the claimed injury, was suffering mild anxiety and depression secondary to his now resolved physical injury, and that he had no present inability arising from the injury such that he was not capable of performing his pre-injury work or any other suitable employment. The effect of the Panel’s opinion was that the plaintiff did not have an entitlement to continuing payments of weekly compensation.
The plaintiff seeks to review the Panel’s opinion on grounds of jurisdictional error and inadequacy of reasons. The first medical question required the Panel to consider the nature of the plaintiff’s medical condition relevant to the claimed injury. Central to the first two grounds of review is the plaintiff’s submission that the question of injury was resolved by the referral document and if question 1 were properly interpreted, the only answer that could be given by the Panel was that the medical condition relevant to the claimed injury was the low back and left leg pain from which he continued to suffer. Ground 3 alleged that the Panel failed to give consideration to the entirety of the plaintiff’s circumstances, which included the complaint of continuing pain, when assessing his work capacity, and misdirected itself in relation to suitable employment options. Ground 4 alleged the Panel’s reasons were inadequate because they did not set out the path of reasoning to a conclusion that the plaintiff was not still suffering from lower back and left leg pain, or that the pain was not a medical condition relevant to the claimed injury.
For the reasons that follow, the proceeding will be dismissed.
Background
The plaintiff began work for the fifth defendant as a full-time labourer in around February 2014.
He told the Panel that in the weeks leading up to the injury he experienced intermittent left sided low back pain, and that on the day of the incident he was trying to turn over a large cooking pot to empty it of water when he felt pain in his left lower back. He said he could not move due to the severity of the back pain and his supervisor transported him to hospital where medical imaging was undertaken. He has not returned to work since the incident.
The plaintiff signed a workers injury claim form on 7 August 2016. The claim form includes the following questions and answers:
What is your injury/condition, and which parts of your body are affected?
Lower back pain which radiated to left leg.
What happened and how were you injured?
I was trying to turn over cooker in order to empty water in it which I felt huge pain in my lower back.
What was the date and time the injury/condition occurred?
06/08/16 0900
The plaintiff’s claim was accepted and weekly compensation payments were made.
In August 2018 the authorised insurer arranged for the plaintiff to be assessed by consultant psychiatrist Associate Professor Varma, who concluded he suffered a mild adjustment disorder caused by chronic lower back pain which was not improving and which was impacting his life, and that from a psychiatric perspective alone, he had a capacity for pre-injury duties and for suitable employment.
In October 2018 the authorised insurer referred the plaintiff for assessment by occupational physician Dr Graham, who concluded there was no evidence of any physical injury or medical condition and that on a purely physical basis the plaintiff had capacity for pre-injury duties and any employment option.
On 30 October 2018 the authorised insurer gave notice to the plaintiff of its decision to terminate his entitlement to weekly payments of compensation from 2 March 2019. It is evident that the plaintiff disputed that decision.
Treating GP Dr Navani referred the plaintiff for an MRI scan which was performed on 2 April 2019. The conclusion of the radiologist was:
1L5/S1 disc degeneration with mild to moderate disc bulge without neuroimpingement.
2Slight L4/5 disc desiccation without disc bulge or annular disruption.
Dr Navani’s diagnosis was L4/L5 lumbar disc desiccation, L5/S1 lumbar disc protrusion with abutment of S1 nerve root bilaterally with left leg radiculopathy, and associated secondary adjustment disorder and generalised anxiety and major depression. Dr Navani concluded the plaintiff was not fit for any work and remained totally incapacitated.
On 30 April 2019, a conciliation officer referred questions in relation to termination of the plaintiff’s weekly compensation payments to the medical panel pursuant to s 284 of the WIRC Act. The referral document read in part:
4. INJURIES INCLUDING DATE OF INJURY:
Lower back pain which radiated to left leg as cited on the worker’s injury claim form sustained on 6/8/2016.
Liability has subsequently been accepted for a secondary psychological condition.
…
6. AGREED FACTS RELEVANT TO THE MEDICAL QUESTIONS
I am satisfied that the following facts are agreed:•Mr Kachoui Didani’s date of birth is 14/6/1987
•Mr Kachoui Didani was employed as a labourer with Tasmanian Sea Food from 2014
•Mr Kachoui Didani injured his back and left leg on 6/8/2016. A WorkCover claim was lodged and accepted. Liability has subsequently been accepted for a secondary psychological condition.
•Mr Kachoui Didani moved to Adelaide in 2017 but has now relocated to Melbourne
•CGU issued a notice dated 30/10/2018 terminating Mr Kachoui Didani’s entitlement to weekly compensation payments from 2 March 2019.
FACTS IN DISPUTE RELEVANT TO THE MEDICAL QUESTIONS
I am satisfied that the following facts are in dispute:•There are no known facts in dispute.
Medical panel opinion and reasons
The questions referred to the medical panel, and its answers given on 16 July 2019, are as follows:
Question 1What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion the worker is no longer suffering from any physical medical condition relevant to any claimed lower back with radiation to left leg injury. The Panel is also of the opinion that the worker is suffering from a mild adjustment disorder with mixed anxiety and depressed mood, which is secondary to his physical injury
Question 2Does the worker have no current work capacity? If so is the situation likely to continue indefinitely?
Answer:In the Panel’s opinion the worker has no present inability arising from a physical or psychiatric injury such that he is not capable of performing his pre-injury employment or any other suitable employment.
The Panel’s reasons for opinion show that the plaintiff was examined jointly by the first, second and third defendants on 14 June 2019, and separately by the psychiatric member, the fourth defendant, on 24 June 2019. The reasons record:
Reason for referral
The Panel noted from the referral that Mr Didani made a claim for injury to his lower back with radiation to the left leg on 6 August 2016 and that liability was accepted for the physical injury and for a subsequent psychological condition.
The Panel recorded relevant aspects of the plaintiff’s background, medical history and employment tasks. Under ‘Progress and treatment’ the Panel recorded being told matters by the plaintiff which include:
(a) He could walk, but he could not stand straight or drive, and he experienced ‘pins and needles’ which extended to the sole of the left foot.
(b) Within days of the incident the pain was getting worse and worse and started to radiate to the left leg.
(c) In the last year, he has experienced a feeling of weakness in the left leg.
(d) He had two injections to the back which were of ‘no help at all’, and physiotherapy and hydrotherapy are ‘no good’.
(e) He takes the narcotic analgesic, Tramadol, which helps him to sleep, but the relief is only temporary. He also takes Lyrica and Endep.
(f) He has seen two neurosurgeons. Dr Yau suggested conservative treatment with injections, and Dr Nair felt that conservative management was appropriate, and surgery was not indicated.
(g) He was referred to a pain management specialist for an epidural injection.
(h) He has had discussions with neurosurgeons about the possibility of an operation on his back to manage the radiated left leg pain, but he was worried about whether his fertility could be compromised by this procedure, and he is not contemplating surgery.
Under ‘Current symptoms and capacity’ the Panel recorded the plaintiff saying:
(a) he had frequent exacerbations of low back pain for ‘no reason’;
(b) sometimes walking could ‘set it off’ and he reported a walking tolerance of 30 minutes;
(c) sitting and standing are limited by his back pain;
(d) engaging in intimacy with his girlfriend is restricted by pain in his back;
(e) every morning he would prefer to die rather than manage the pain.
The Panel recorded the following finding on physical examination:
Physical examination
Mr Didani had above ideal body mass index and appeared deconditioned. He demonstrated normal gait and was able to heel toe walk and squat. He was able to single-leg stand.
He had normal spinal contours and posture. There was no obvious muscle bulk asymmetry of the upper or lower limbs and this was confirmed on comparative measurement.
On application of axial pressure to the spine he did not describe any increase in symptoms. He described some tenderness to palpation at the level of L4/5 in the left paraspinal region and the Panel detected no paraspinal muscle spasm. Neural tension testing of the lower limbs did not alter his symptoms.
On active range of motion of the lumbosacral spine he flexed with fingertips able to touch the knees. He demonstrated poor range of extension and active resistance on passive extension of the spine. He demonstrated symmetrical range of lumbosacral rotation and lateral flexion though with poor effort completing the task.
On power testing of the major muscle groups of the lower limbs he demonstrated a generally collapsing pattern but with no myotomal muscle weakness. Deep tendon reflexes of the lower limbs including the medial hamstring reflexes were bilaterally present and equivalent. On sensory examination of his lower limbs he described reduced sensitivity to light touch and pinprick involving the entire left lower leg which the Panel considered was non-dermatomal in nature. The Panel considered that there was no evidence of left leg radiculopathy on clinical examination.
The Panel reviewed an MRI of the lumbosacral spine taken on 2 April 2019.
In relation to physical diagnosis the Panel recorded:
Physical diagnosis
The Panel noted the description given by Mr Didani of the incident of injury which occurred in 2016 with the onset of low back pain with referred symptoms to his left leg. The Panel noted Mr Didani describes progressive worsening of his symptoms since the incident of injury despite a range of treatments including spinal injections.
The Panel noted its findings on examination of Mr Didani which were not indicative of any ongoing physical medical condition of his lower back. The Panel noted medical imaging and considers the changes are consistent with a mild age-related presentation and are not indicative of any acute or ongoing significant pathology of the low back.
Based on its physical assessment of Mr Didani on 14 June 2019, the Panel concluded that Mr Didani is no longer suffering from any physical medical condition of the low back relevant to any accepted physical condition.
On examination of mental status the Panel found that objectively the plaintiff’s affect was slightly depressed with restricted range. The Panel recorded that the plaintiff was preoccupied with his perception of pain. The Panel reached the following psychiatric diagnosis:
The Panel concluded that Mr Didani is suffering from a mild adjustment disorder with mixed anxiety and depressed mood, which is secondary to his (now resolved) physical injury. From a psychiatric point of view, Mr Didani’s symptoms are mild in severity and do not affect his work capacity.
In relation to work capacity the Panel recorded:
Work capacity assessment
In consideration of Mr Didani’s capacity for work, the Panel noted the following:• Studied to year 9 in Iran
• He speaks fluent Farsi
• He understands English but is not fluent in speaking or reading of English
• He has a current driving licence
• He describes himself as having basic computer skills but no computer at home
• His work experience in Iran included work as a taxi driver, tailoring and ironing. In Australia he undertook work packing seafood as a labourer.
• He has undertaken no specific courses or certificates in Australia
• In Australia he worked as an Uber driver for a period of time and reported to the Panel that he managed that without difficulty
The Panel noted from referral material work capacity assessment by Rehab Management dated 29 January 2018 which identified the following suitable employment options for Mr Didani:
• Packer
• Product assembly worker
• Service station attendant
• Delivery driver
• Taxi/Uber driver
The Panel noted the history given by Mr Didani of the nature of his pre-injury work as a labourer with a seafood company and of concomitant work as an Uber driver for a brief period of time. The Panel noted that the work tasks of the job as a labourer were of a physical nature and that he ceased work at the time of the accepted injury due to physical symptoms and some physical restrictions and dysfunction.
The Panel concluded that at the time of its own examination of Mr Didani, any soft tissue injuries arising from the incident of injury in 2016 have resolved and he is no longer suffering from any physical medical condition of his low back.
The Panel, based on its psychiatric examination of Mr Didani at the time of its assessment considers that any mild adjustment disorder with mixed anxiety and depressed mood, which is secondary to his (now resolved) physical injury does not affect his work capacity.
The Panel concluded that Mr Didani has no present inability arising from a physical or psychiatric injury such that he is not capable of performing his pre-injury employment or any other suitable employment.
Grounds 1 and 2
Grounds 1 and 2, each of which alleged jurisdictional error, are summarised as follows:
(a) Ground 1: The medical panel has not answered question 1, or has misunderstood the question, or has misunderstood or misapplied the meaning of medical condition in the question.
(b) Ground 2: The Panel has not taken relevant matters into account, namely, the plaintiff’s lower back and left leg pain and its effects.
Submissions
Plaintiff
The Panel was entirely bound by the question referred to it.
In relation to the question 1, the issue of injury was resolved by the referral document. The question was not addressed to anything other than what is the nature of the plaintiff’s medical condition, including any sequelae, relevant to the identified injury. The injury set out in the referral document is ‘lower back pain which radiated to left leg’. It has never been denied that the lower back pain has continued since the date of injury, and the referral notes that there are no factual issues in dispute. It is therefore undisputed that the worker continues to suffer lower back pain relevant to the claimed injury.
When it is genuine the complaint of pain is based on the actual experience of pain. In this case, the genuineness of the plaintiff’s experience of pain was not called into question. The pain now experienced by the plaintiff is the pain he experienced when injured in 2016.
The continuing low back pain, with consequent restrictions, is a condition relating to health, and thus a medical condition. If the Panel had properly interpreted and answered question one, then its answer could only be that the medical condition from which the worker was suffering was the pain which he had been suffering since the date of the incident. The first question was simply ‘What is the nature of the worker’s medical condition relevant to his claimed back and leg pain?’. Because the worker was still suffering from the pain, which is itself a medical condition, only one answer could be given to that question.
This is a case of falling between the cracks. The Panel agreed with and accepted the opinions of two of the doctors whose reports were provided in the referral material, Associate Professor Varma and Dr Graham. Like the Panel, Associate Professor Varma concluded the plaintiff was suffering from a mild adjustment disorder secondary to the claimed back pain, and on that basis, from a purely psychiatric perspective, he had capacity for work. However, an examination of his report shows that Associate Professor Varma came to this conclusion on the basis that he accepted that there was a physical cause for the plaintiff’s continuing lower back pain. Dr Graham, whose opinion was also accepted by the Panel, concluded that there was no physical cause for the plaintiff’s pain. The Panel approached analysis of the plaintiff’s medical condition in the same way as Dr Graham, with the effect that it failed to consider the plaintiff’s continuing low back pain as a sequelae of the injury, as it was obliged to do by the medical question put to it.
The plaintiff’s pain symptoms and conditions are also ‘physical medical’ conditions, because they have a physical effect and are experienced physically and are experienced as bodily conditions and bodily consequences. Accordingly, the Panel should not have answered question 1 ‘no physical medical condition’, even if it was proper for it to limit the answer to ‘physical’ medical conditions, as the Panel has done.
While it was not a relevant question for the Panel, or on this application for review, it should be concluded that pain satisfies the definition of injury in the WIRC Act.[1]
[1]Ivill and Comcare (Compensation) [2020] AATA 36; Howard v Comcare [2019] FCA 1031.
Fifth defendant
The plaintiff’s approach to the task the Panel had in understanding question 1 involves an over-technical and pedantic attachment to the precise words used by the plaintiff in a claim form. Those words focus on the outward manifestation of whatever injury was in fact suffered by the plaintiff at work on 6 August 2016. What was being alleged in the claim form was lower back pain associated with an incident involving traumatic insult to the back resulting in injury. It is not the practice that in making a claim it is necessary to insist that the plaintiff make explicit the injury they are relying on. It is completely understood that there is an injury that was causative of the lower back pain, and that the pain is not itself the injury. The notion that the language used in a claim form should be exposed to a close textual analysis with the result that lower back pain was the injury and not anything else, is unviable and inconsistent with the way accident compensation administration occurs.
The medical panel was engaged in a practical activity connected with entitlement to compensation under the WIRC Act. In forming its opinion the Panel could not consider the medical questions in isolation, but had to take into account statutory definitions of relevant terms, including injury.[2]
[2]Kakae v Wetspot Consolidated Pty Ltd [2016] VSC 271, [51] (‘Kakae’); Smith v Mann (1932) 47 CLR 426.
Question 1 was about diagnosis. It required the Panel to consider the physical and mental injury claimed by the plaintiff, and identify any medical condition associated with that claimed injury. The Panel was not obliged to repeat the formulation of injury in the referral material, nor did it need to find a medical condition explicitly associated with the plaintiff’s experience of pain, or to explain the complaints of pain. It was within the Panel’s expertise and jurisdiction to characterise as it saw fit the medical condition it found relevant to the alleged injury.
Pain may be a symptom of a compensable physical or psychological condition, but the existence of a symptom or functional consequence is not itself the condition. Although symptomatic worsening of an existing injury or condition may be compensable, symptoms (such as pain) or functional impairment without associated adverse physiological or psychiatric change do not themselves amount to injury.[3]
[3]Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 448, 484; Linfox Transport (Aust) Pty Ltd v Toohey [2004] VSCA 233, [16]–[17].
Reading the reasons as a whole it is plain the Panel was well aware of and genuinely engaged with the mandatory consideration of the plaintiff’s complaints of pain. The finding on psychiatric examination that the plaintiff was preoccupied with his perception of pain, taken together with findings on physical examination from which it might be inferred the Panel questioned the genuineness of the plaintiff’s complaints, demonstrate the Panel was non-committal about whether the pain was veridical. The Panel was not obliged to treat the reported lower back and left leg pain in itself as a medical condition, and still less to treat complaints of pain as being ipso facto a medical condition.
The plaintiff’s submissions conflate the concepts of injury, medical condition and what may be a symptom or manifestation of that medical condition or injury.
Further, question 1 directed the attention of the Panel to the question of injury, and required that it consider the features of that injury, including the nature and extent of any physical or psychological change, and whether that change persisted at the time of assessment such that there was a medical condition relevant to the claimed injury. Question 1 raised considerations of injury and medical condition which were inevitably interrelated.
Analysis
A medical panel will make a jurisdictional error if it identifies the wrong issue, asks itself the wrong question, or fails to take into account relevant material.[4] A medical panel is bound to consider a worker’s answers to questions and referral documents submitted to it, and to engage in an active intellectual consideration of mandatory matters.[5]
[4]Craig v South Australia (1995) 184 CLR 163, 179.
[5]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60].
The foundation of entitlement to compensation under the WIRC Act is injury caused to a worker arising out of or in the course of employment.[6] A worker may have an entitlement to compensation in the form of weekly payments if incapacity for work results from or is materially contributed to by an injury.[7]
[6]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 39(1) (‘WIRC Act’).
[7]Ibid s 160.
Injury is defined in the WIRC Act as follows:
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a)industrial deafness; and
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); and
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
Injury involves physiological or psychiatric change, which can include an existing injury or condition being rendered symptomatic. To establish injury there must be more than a mere complaint of symptoms or functional consequences.[8]
[8]Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 448, 482, 484; Linfox Transport (Aust.) Pty Ltd v Toohey [2004] VSCA 233, [16]–[17]; Transport Accident Commission v Katanas (2017) 262 CLR 550, 564.
The function of a medical panel is to give its opinion in relation to referred medical questions in respect of injuries arising out of, or in the course of, or due to the nature of employment.[9] When carrying out that function in response to a referral a medical panel is engaged in a practical exercise which requires it to consider the factual matrix with which it is presented and take into account relevant statutory definitions.[10]
[9]WIRC Act (n 6) s 302(1).
[10]Smith v Mann (1932) 47 CLR 426, 444; Masters v McCubbery [1996] 1 VR 635, 642–3.
Question 1 required the Panel to consider the injury sustained by the plaintiff in order to determine the nature of his medical condition relevant to that injury. As Incerti J said in Kakae v Wetspot Consolidated Pty Ltd:[11]
The Panel was not responding to the first medical question in a vacuum. As Starke J observed in Smith, a medical panel is ‘not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act’, and it is therefore impossible ‘to have the consequence without the cause’.[12]
[11]Kakae (n 2).
[12]Ibid [53] (citations omitted).
I reject the plaintiff’s submission that the Panel was bound by the description of injury in the referral document. That description was simply the adoption of a form of words used by the plaintiff to answer a question on the claim form which was in two parts, enquiring as to both injury and the parts of the plaintiff’s body which were affected. As was submitted by the fifth defendant it is unviable that injury suffered by a worker is confined by a fine textual analysis of words used in answer to a question on the initial claim form. In this case the general description of the injury in the claim form and the referral document did not bind the Panel to accept the injury described in those terms.[13]
[13]Calleja v Franet Pty Ltd [2000] VSC 271, [27] (Ashley J).
I reject the plaintiff’s submission that the notation by the conciliation officer that there are no known facts in dispute meant that the issue of injury was resolved by the description in the referral document. The conciliation officer set out as agreed facts that the plaintiff injured his back and left leg on 6 August 2016, a WorkCover claim was lodged and accepted, and liability subsequently accepted for a secondary psychological condition. That agreement left open the nature and extent of the injury sustained in the incident at work, and what was the plaintiff’s medical condition relevant to that injury. Further, the referral materials included the report of Dr Graham, on which the authorised insurer relied to terminate the plaintiff’s entitlement to weekly compensation payments. Dr Graham’s opinion to the effect that at the time of his examination of the plaintiff there was no evidence of any physical injury or medical condition put those matters squarely in issue.
I accept the submission of the fifth defendant that question 1 required the Panel to consider the diagnosis of the claimed injury and any relevant medical condition. In undertaking that function it was necessary for the Panel to apply its own medical experience and expertise.[14]
[14]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498–9 [47] (‘Wingfoot’).
The Panel recorded the detailed history it obtained from the plaintiff, which included the complaints of back and leg pain, and resulting functional restrictions. However, the complaints of pain and functional restriction were not themselves the injury and the Panel was not bound to accept the complaints, or to conclude they represented or were a consequence of the plaintiff’s medical condition relevant to the injury. On the facts of this case, it was open to the Panel to conclude as it did, that any soft tissue injury arising from the work incident in August 2016 had resolved, the plaintiff was no longer suffering any physical medical condition relevant to the injury, and that he was suffering a mild adjustment disorder secondary to the resolved physical injury.
I infer the Panel concluded that the plaintiff’s complaints of pain and functional restriction were not symptoms of his medical condition relevant to the injury. Findings by the Panel on comprehensive physical examination which included active resistance on passive extension of the spine, poor effort demonstrating lumbosacral movements, a generally collapsing pattern with no myotomal muscle weakness on examination of major muscle groups of the lower limb, and reduced sensitivity to light touch and pin prick involving the entire left lower leg which it considered non-dermatomal in nature, and on psychiatric examination that he was preoccupied with his perception of pain, viewed in the context of the reasons as a whole, support an inference that the Panel did not accept the plaintiff’s complaints as genuine or accurate.
There is no reason to infer that the Panel did not take into account and actively engage with the complaints made by the plaintiff. To answer question 1 it was sufficient for the Panel to give its opinion as to the plaintiff’s medical condition relevant to the claimed injury, without being required to go on and explain complaints of pain and functional restriction that it plainly considered not to represent or be a consequence of any relevant medical condition it found.[15]
[15]Kakae (n 2) [52].
I conclude there was no jurisdictional error by the Panel as set out in grounds 1 and 2.
Ground 3
Ground 3 alleged that the Panel:
(a) failed to consider whether there was an inability to perform work flowing from the pain which the plaintiff was suffering;
(b) misdirected itself by considering suitable employment options expressed in generic terms, and did not consider the demands of those jobs in the context of the plaintiff’s pain; and
(c) failed to consider the entirety of the plaintiff’s circumstances which would affect his attractiveness to a potential employer —
resulting in jurisdictional error.
Submissions
Plaintiff
The plaintiff’s lower back and left leg pain and his consequent functional restrictions were relevant considerations with respect to his incapacity for work, which the Panel did not refer to, or take into account. Having accepted that the plaintiff was suffering from pain in his lumbar spine and left leg the Panel ought to have, but did not, consider whether there was an inability to perform his work flowing from those symptoms.
The focus of inquiry in relation to suitable employment is the ability to engage in employment, which means returning to work as a settled or established member of the workforce in a meaningful way.[16] Suitable employment is more than the physical capacity to perform a series of tasks having regard to relevant matters such as pre-injury employment, age, education, skills, work experience and place of residence.
[16]Richter v Driscoll (2016) 51 VR 95, 114-5 [74]–[78].
The Panel misdirected itself in relation to the employment options identified by the vocational assessment report by considering only descriptions of duties in generic terms, and the computer search characterisation of the physical demands of the jobs. The options identified in the vocational assessment report provided to the Panel did not contain information as to the specific tasks or duties the plaintiff would be required to perform and the Panel failed to give proper consideration to the actual demands of tasks involved in each of the employment options. Further, the Panel did not consider the demands of those jobs in the context of the plaintiff’s pain, or give proper consideration to the entirety of the plaintiff’s personal circumstances which would affect his attractiveness to a potential employer.
Fifth defendant
The Panel was required to consider whether the plaintiff had a present inability to return to work in pre-injury employment or suitable employment arising from an injury. Having found the plaintiff suffered no persisting physical condition relevant to the claimed injuries, and only a mild psychological condition which did not affect his work capacity, it naturally flowed that the Panel would not identify any incapacity for his pre-injury duties arising from the claimed injuries. In making that assessment the Panel correctly considered the plaintiff’s personal circumstances, none of which compelled the conclusion that he would not realistically be able to return to work in employment or perform his pre-injury duties.
The Panel identified no ongoing restrictions at all associated with the claimed injuries or any pre-existing condition, and on that basis concluded the plaintiff could return to work performing his pre-injury duties. Given that conclusion the Panel was not required in its reasons to descend into a detailed analysis of what each proposed suitable employment job option involved. Alternatively if the Panel was in error in failing to make a detailed analysis of the specific tasks associated with each job option then in the light of its conclusion that the plaintiff was able to return to his pre-injury work that error could not be material.
Analysis
‘No current work capacity’ is defined in s 3 of the WIRC Act:
in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre injury employment or in suitable employment;
The definition requires there to be an injury caused inability to return to pre-injury employment or suitable employment.[17]
[17]Ibid 114 [74].
The Panel, having considered the diagnosis, was of the opinion the plaintiff could actually perform his pre-injury employment. In the Panel’s view, the plaintiff’s capacity for work was essentially unchanged from his position pre-injury. The Panel concluded the plaintiff’s physical restrictions and dysfunction from the injury had resolved, and the mild adjustment disorder which it found did not affect his work capacity.
The premise on which the plaintiff’s submissions proceed is that the plaintiff’s complaints of pain resulted in an inability to return to work in employment which was injury caused. For reasons already stated I do not accept that the Panel was obliged to accept and proceed on the basis of that premise.
I accept the fifth defendant’s submission that the Panel’s conclusion that the plaintiff had no incapacity for his pre-injury duties flowed naturally from the findings it made that he had no persisting physical condition, and only a mild psychological condition which did not affect his work capacity, relevant to the claimed injuries. The conclusion that the plaintiff had no incapacity for his pre-injury duties arising from the claimed injuries determined the answer to question 2.
Ground 4
Ground 4 alleged that the Panel’s reasons were inadequate in that the Panel failed to explain a path of reasoning to the conclusion that:
(a) the plaintiff had the physical and psychiatric capacity to engage in both pre-injury employment and suitable employment;
(b) the plaintiff had the capacity to engage in both pre-injury employment and suitable employment, with the pain he was experiencing and with its effects.
Submissions
Plaintiff
The plaintiff has low back pain. That pain was the subject of the referral to the Panel. The pain is a medical condition, or must have a cause which is a medical condition. The Panel did not provide a path of reasoning which dealt with the plaintiff’s low back pain. If the Panel properly interpreted and answered question 1, then it has not given reasons for saying that the plaintiff’s continual experience of debilitating pain is not a medical condition relevant to the claimed injury.
Fifth defendant
The Panel did not find that the plaintiff’s reported pain arose from any compensable injury, be it physical or psychological. Nor were the reports of pain attributed to any pre-existing condition. It should not be assumed that the Panel accepted the reliability of the worker’s account of functionally disabling symptoms. In relation to capacity the Panel set out a readily ascertainable path of reasoning to a conclusion that the plaintiff had no incapacity from a medical condition relevant to the claimed injuries. The Panel’s reasons demonstrate how it answered the questions which were referred to it. It was not necessary that the Panel give reasons to explain the plaintiff’s complaints of pain because there was no question of that type referred to it.
Analysis
The Panel was obliged to explain its path of reasoning in sufficient detail to show whether the opinion it formed on the questions referred to it involved an error of law.[18]
[18]Wingfoot (n 14) 501, [55].
Contrary to the plaintiff’s submissions, the referral material and the proper interpretation of question 1 did not oblige the Panel to conclude that the medical condition relevant to the claimed injury was the low back and left leg pain of which he continued to complain.
The reasons of the Panel demonstrate how it came to the conclusion about the nature of the plaintiff’s medical condition relevant to the claimed injury. Applying its medical expertise and experience the Panel concluded, on the basis of matters including the referral materials, history, examination findings and radiology, that the plaintiff was not suffering any physical medical condition relevant to the claimed injury, and his psychological condition was a mild adjustment disorder with mixed anxiety and depressed mood, which was secondary to the now resolved physical injury. On the basis of that opinion, the Panel concluded that the plaintiff had no present inability such that he was not capable of performing his pre-injury employment or any other suitable employment.
In the circumstances of this case it was unnecessary for the Panel to go further and explain the plaintiff’s continuing complaints of pain.
Ground 4 will be dismissed.
Conclusion
I reject each of the grounds for review on which the plaintiff relied. The proceeding will be dismissed. I will hear from the parties as to any consequential orders.
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