Kaur v Victorian WorkCover Authority
[2022] VSC 113
•25 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04785
| PERVINDER KAUR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY & ORS (according to the schedule) | Defendants |
---
JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2022 |
DATE OF JUDGMENT: | 25 March 2022 |
CASE MAY BE CITED AS: | Kaur v Victorian WorkCover Authority & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 113 |
---
ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Whether Medical Panel committed a jurisdictional error – Whether Medical Panel failed to have regard to a relevant factual matter – Adequacy of Panel’s reasons – Decision set aside - Chang v Neill [2019] VSCA 151.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Ms A Tate | Zaparas Lawyers |
| For the First Defendant | Ms F Ryan SC with Ms S Gold | Hall & Wilcox |
| For the Second to Sixth Defendants | No appearance | DLA Piper Australia |
HER HONOUR:
Preliminary
Ms Kaur is a 43 year old woman who suffered injury to the left side of her neck and left arm during the course of her employment with Rollspack Pty Ltd (‘Rollspack’). The injury occurred on 30 September 2014, when Ms Kaur was cleaning a jammed machine at the Rollspack factory. Ms Kaur claims that in addition to these physical injuries, she also suffers a consequential mental or behavioural disturbance. Ms Kaur now seeks to claim common law damages for these injuries.
In order to do so, Ms Kaur must first satisfy the ‘serious injury’ definition contained in s 325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (‘the Act’).
Ms Kaur presently has an Originating Motion on foot in the County Court of Victoria seeking leave to bring proceedings pursuant to s 335 of the Act. At the request of the first defendant, the County Court referred certain questions to a Medical Panel (‘the Panel’) relevant to the determination of her serious injury application.
On 12 November 2020, the Medical Panel delivered its Certificate of Opinion (‘Opinion’) and written statement of Reasons for that Opinion (‘Reasons’). Ms Kaur was unsuccessful before the Panel insofar as it determined that she had a current work capacity: there were several jobs that constituted suitable employment for Ms Kaur and she had capacity to perform such suitable employment on a full-time basis.
Ms Kaur now seeks judicial review of the Panel’s decision claiming that the Panel made jurisdictional errors. In particular, she alleges that the Panel made an incorrect factual finding regarding the circumstances of her ceasing employment with Rollspack, which amounted to an error on the face of the record. In the alternative, she submitted that the Panel failed to give ‘proper, genuine and realistic’ consideration to relevant matters, failed to correctly apply the statutory test and did not provide adequate reasons. If I am so satisfied, Ms Kaur seeks an order quashing the Panel’s Opinion, together with an order remitting the referred medical questions to a differently constituted Medical Panel.
For the reasons that follow, I am satisfied that there was a factual error made by the Panel, which was an essential and material feature of the Panel’s decision. As it constituted a jurisdictional error, I will make the orders sought by Ms Kaur.
Background facts
The following are background facts, which were either agreed between the parties[1] or do not appear to be in issue. I will briefly summarise them here to provide background to Ms Kaur’s claim and to give context to the issues that arise in this application.[2]
[1]Agreed Facts as detailed in the Statement Pursuant to Section 304(a) of the Act, submitted to the Panel on 2 July 2020.
[2]Although there was no formal tendering of documents, in the absence of any formal objection, I have proceeded on the basis that the material in the Joint Court Book is evidence before me.
Ms Kaur was born in India. After finishing secondary school she completed a Bachelor’s degree in Arts and a Master’s Degree in Information Technology. Ms Kaur then worked as a secondary school teacher for five years.
Ms Kaur migrated to Australia in 2008 and completed a Certificate IV in Commercial Cookery. She then obtained employment as an assistant cook and later worked in the packing area of a bakery.
From about February 2012, Ms Kaur commenced working for a labour hire agency, Addforce Personnel Services (‘Addforce’), and other employers, including Symmetry Human Resources. In mid-2012, Addforce placed Ms Kaur to work at the Rollspack factory as a machine operator. Ms Kaur operated two machines which produced security coin bags used in banks. Ms Kaur continued in such employment on a full-time casual basis (38 hours per week) until November 2013.
From July 2013 until mid-February 2015, Ms Kaur also worked as a casual catering assistant in a residential facility for an average of 13 hours per week.
On 24 January 2014, Ms Kaur was directly employed by Rollspack and she continued to work 38 hours per week.
On 7 November 2014, Ms Kaur lodged a Worker’s Injury Claim alleging an incident on 30 September 2014 in which she was clearing a jammed machine at work and consequently suffered left sided neck pain into her left arm. In addition, Ms Kaur stated that she had experienced neck and left arm pain on 22 July 2014. Her claim was subsequently accepted and she received weekly payments of compensation and reasonable medical and like expenses in respect of this claim.
Ms Kaur was referred by Rollspack to general practitioner Dr Thuan Le and subsequently returned to work on restricted duties. Whilst still working, she received treatment for her injuries. Dr Le referred her to several orthopaedic surgeons for specialist opinions, including Mr Patrick Byrne and Mr Minoo Patel. In March 2015, on the referral of Mr Byrne, Ms Kaur received a cortisone injection to her left shoulder. Ms Kaur said this provided her with short-term pain relief.
In June 2015, Ms Kaur was referred to orthopaedic surgeon Mr Patel.
Ms Kaur subsequently underwent a hydrodilatation on her left shoulder. It was unclear from the material which was before the Panel on which date this procedure was performed. In her affidavit in support of her serious injury application on 22 July 2019 (‘the serious injury affidavit’), Ms Kaur stated that the procedure was performed in July 2015. The Panel recorded that Ms Kaur told them it was performed in about April/May 2015. The medical material which formed part of the records provided to the Panel in a schedule of attachments included a reference to a left shoulder hydrodilatation on 1 June 2015 and another reference to a right shoulder hydrodilatation on 1 July 2015. As there was no evidence Ms Kaur had suffered a right shoulder injury, this is likely to be an error, and it was intended to be a reference to the procedure being done on her left shoulder. Irrespective of the date it was performed, Ms Kaur consistently reported to her treating doctors, the medico-legal doctors, in her serious injury affidavit, and to the Panel, that her left shoulder pain worsened after the hydrodilatation.
The evidence as to what subsequently occurred in respect of Ms Kaur’s employment is in dispute. As this was a critical issue in this application, I will return to this in some detail in the latter part of this judgment.
On 3 September 2015, Ms Kaur attended Dandenong Hospital’s emergency department in respect of severe left shoulder and neck pain.
Later in September 2015, Ms Kaur was referred to neurosurgeon, Mr Chris Xenos, who arranged an MRI. On 20 October 2015, she returned for review with Mr Xenos who recommended conservative treatment.
On 29 October 2015, Ms Kaur was re-examined by Mr Patel who recommended that Ms Kaur undergo surgery to her left shoulder. However, Ms Kaur decided not to proceed with the surgery as she said there was no guarantee offered in respect of its outcome. In approximately November 2017, Ms Kaur fell pregnant and gave birth to a daughter in August 2018.
On 22 July 2019, Ms Kaur lodged a serious injury application pursuant to Division 2 of Part 7 of the Act in respect of impairments of her left shoulder and neck, as well as a consequential mental or behavioural disturbance or disorder. In her serious injury application Ms Kaur relied upon pecuniary loss, as well as pain and suffering consequences.
The first defendant rejected Ms Kaur’s serious injury application and she subsequently issued proceedings in the County Court seeking leave to commence common law damages against Rollspack. The first defendant defended the application and applied to the Court to have questions referred to a Medical Panel.
On 13 July 2020, pursuant to s 274 of the Act, the County Court referred questions to the Panel (‘the referral’).
In the referral to the Panel, the first defendant accepted that Ms Kaur:
(a) had suffered an aggravation of pre-existing degenerative changes in her neck, as well as her left shoulder injury as a result of her employment with Rollspack;
(b) had subsequently developed a psychiatric/psychological condition;
(c) continued to suffer from a compensable physical medical condition of her left shoulder as well as from a compensable medical condition of her mind.
The Panel comprised of orthopaedic surgeon Dr Anita Boecksteiner, rheumatologist Dr Jennifer Harmer, occupational and environmental physician Dr Susanne Homolka, and psychiatrists Dr Dennis Handrinos and Associate Professor Alexander Holmes. These medical practitioners are the second, third, fourth, fifth and sixth defendants in the proceedings, however, as is the usual arrangement pursuant to the principles in Hardiman,[3] they did not take an active role in the proceedings and indicated by way of correspondence that they would submit to such orders as made by the Court.
[3]R v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35.
The Panel examined Ms Kaur on 28 September and 20 October 2020.
The referral included a number of documents provided under a Schedule of Attachments. Such documents included the Agreed Facts, written submissions for both Ms Kaur and the first defendant, Ms Kaur’s injury claim forms, Ms Kaur’s serious injury affidavit, medical imaging, reports of treating practitioners, medico-legal opinion obtained by both Ms Kaur and the statutory insurer, workplace assessment report, Return to Work arrangement documents, together with some clinical records from Ms Kaur’s treating practitioners.
On 12 November 2020, the Medical Panel delivered Opinion and Reasons.
On 22 December 2020, Ms Kaur filed an Originating Motion seeking judicial review in the nature of certiorari quashing the opinion of the Panel, and an order in the nature of mandamus remitting the medical questions to a differently constituted panel. This Originating Motion was subsequently amended, and a Further Amended Originating Motion filed on 6 August 2021.
In support of her application, Ms Kaur relied upon her affidavit of 6 August 2021 (‘Judicial Review Affidavit’), together with an affidavit of her solicitor affirmed on 22 December 2020.
Medical Panel Opinion
The parts of the Opinion relevant to this application were as follows:
Question 1. What is the nature of the medical condition/s of the Plaintiff’s:
(a) left shoulder;
(b) neck;
(c) mind?
Answer: (a) In the Panel’s opinion the Plaintiff is currently suffering from a chronic pain syndrome, following a soft tissue injury to the left posterior shoulder girdle.
(b) In the Panel’s opinion the Plaintiff is not currently suffering from any intrinsic physical medical condition of the neck.
(c) In the Panel’s opinion the Plaintiff is currently suffering from an adjustment disorder with mixed anxiety and depressed mood.
…
Question 3. Having regards to:
(a) the physical medical condition of the Plaintiff’s left shoulder as found in answer to question 1(a); …
… does the Plaintiff have:
(i) a ‘current work capacity’;
(ii) ‘no current work capacity’?
Answer: (a) (i) Yes.
(ii) No.
…
Question 4. (a) If ‘yes’ to any part of question 3(a)(i) – 3(b)(i), having regard to:
(i) the physical medical condition of the Plaintiff’s left shoulder as found in answer to question 1(a); …
… does employment as:
(v) stock clerk;
(vi) general clerk;
(vii) inquiry clerk/information officer
(viii) customer service officer;
(ix) warehouse clerk;
(x) receptionist;
constitute suitable employment for the Plaintiff?
(b) If ‘no’ to any part of question 4(a), is this incapacity for work permanent (meaning likely to persist into the foreseeable future)?
Answer: (a)(i)(v) – (x) the Panel is of the opinion that having regard to the Plaintiff’s current physical medical condition of chronic pain syndrome following a soft tissue injury to the left posterior shoulder girdle, the duties of a stock clerk, a general clerk, an inquiry clerk / information officer, a customer service officer, a warehouse clerk and a receptionist constitute suitable employment for her.
…
(b)(i) The Panel is of the opinion that the Plaintiff has an incapacity for work in the duties of her pre-injury employment, and this incapacity is likely to persist into the foreseeable future, and is therefore permanent.
…
…
Question 7. In respect of any ‘suitable employment’ identified in answer to any part of question 4(a) and/or question 6(a) how many hours per week does the Plaintiff have the capacity to work in such ‘suitable employment’?
Answer:The Panel is of the opinion that the Plaintiff has a current work capacity for full-time employment in the duties of a stock clerk, a general clerk, an inquiry clerk/information officer, a customer service officer, a warehouse clerk and a receptionist, working for 38 hours per week.
Question 8.If the number of hours per week as stated in answer to question 7 is less than full-time (ie 38 hours per week), would the Plaintiff have the capacity to work greater, and if so what, number of hours per week in the foreseeable future?
Answer: Not applicable.
Medical Panel Reasons
In its ‘Introduction’, the Panel noted the documents it had been provided and the facts agreed between the parties. It then detailed Ms Kaur’s occupational history, her pre-injury employment and the history of the incident, including that Ms Kaur stated that her pain became ’much worse’ after the hydrodilatation procedure.
The Panel recorded the following ‘Subsequent History’:
The Plaintiff told the Panel that despite the ongoing problems with her neck and left shoulder she continued to work full-time, performing restricted duties which she described to have involved ’packing bags and assisting with machine operation’. She told the Panel that in June 2015 she sought further treatment from her own general practitioner, and she said that she was referred to a third orthopaedic surgeon, in whose care she subsequently remained for the next couple of years.
She told the Panel that she was also referred to a neurosurgeon, an she said that after having another MRI scan of her neck she was advised to continue conservative treatment with medication and physiotherapy.
The Plaintiff told the Panel that on 30 September 2015 she advised by her employer that ’we don’t have a job for you anymore’ and sent home from work. She told the Panel, however, that despite no longer working, her symptoms did not improve, and she said that she required ongoing treatment. She told the Panel that in September 2016 she had another ultrasound-guided cortisone injection to her left shoulder which, however, was of no benefit and she said that her surgeon advised her to consider an arthroscopy. She told the Panel, however, that liability for funding of this treatment was rejected and the operation did not proceed.
She told the Panel she had continued to work until 30 September 2015, and she said that the Agreed Facts were incorrect in stating that she stopped work in July 2015.
The Panel went on to detail Ms Kaur’s subsequent pregnancy, and that she was referred to another orthopaedic surgeon who again advised her to undergo an arthroscopy. The Panel noted that Ms Kaur declined the option of undergoing an arthroscopy as she understood that it may not help her pain. The Panel noted that Ms Kaur reported that she had not returned to the workforce, in any capacity, since 30 September 2015 and that she considered ‘her pain to have remained unchanged since that time’.
The Panel detailed Ms Kaur’s current physical status and her report of constant pain, of variable severity which involved the left side of her neck, the posterior aspect of her left shoulder, and her upper back. It was also noted that Ms Kaur described intermittent associated swelling over the back of her left shoulder, in the region of her left trapezius muscle, and that her left shoulder movement was restricted by pain, particularly when reaching upwards, sideways and behind her.
The Panel noted Ms Kaur was unable to lie on her left side without discomfort and that she was woken up almost every night by the pain. It was also noted by the Panel that Ms Kaur reported that her pain was increased by excessive use of her left upper ilium, that her left hand was weak, and that she dropped things at times.
In respect of her activities of daily living, the Panel noted that Ms Kaur stated that she required assistance with her personal care, and that her husband and sister washed and styled her long hair. In addition, the Panel noted that Ms Kaur depended upon her sister to assist her with grocery shopping, cleaning and most of the cooking. It was noted that Ms Kaur occupied herself with the care of her two year old daughter and that, save for assisting her sister with some cooking and caring for her daughter, Ms Kaur’s pain prevented her from doing much else within the home. It was also noted that Ms Kaur was able to drive her automatic car but her pain prevented her from driving for more than half an hour.
The Panel noted that Ms Kaur had not been offered any retraining or any kind of occupational rehabilitation. It noted that she was fluent in English and reported that she had good English literacy and numeracy skills, good computer skills, and occasionally used her own computer in her home.
In relation to her current treatment, the Panel noted that Ms Kaur remained under the care of her general practitioner, whom she saw once or twice a month. It was noted that she had not continued to attend on her neurosurgeon or any of the previous orthopaedic surgeons she had consulted. It was also noted that Ms Kaur was no longer receiving physiotherapy and that she did not do any exercises at home for her neck or left shoulder.
The Panel noted that at the time of the examination Ms Kaur said that she took between 7-10 Tramal tablets per week (the dose was unknown), and 2-3 Panadol per day. In addition, the Panel noted that Ms Kaur regularly used heat packs for pain relief whilst breastfeeding her daughter as she tried to avoid taking any analgesia during that time.
The Panel’s findings on examination relevant to her left shoulder were as follows:
… Examination of the left shoulder and left upper limb was unremarkable. Range of active motion of the left shoulder was globally and variably limited by pain, but there was a full range of passive glenohumeral movement demonstrated. There was no clinical evidence of impingement and no crepitus was elicited. Ranges of active movement of the left elbow, wrist, and small joints of the left fingers and thumb were unrestricted, and neurological examination of the upper limbs was normal. In particular, here was no evidence of any muscle wasting or atrophy and no organic loss of power demonstrated. Deep tendon reflexes were present and symmetrical, and neural tension signs were negative. Sensory testing revealed altered sensation to light touch in a non-anatomical distribution involving the ulnar aspect of the volar left forearm and the left index, ring and little fingers. Tinel’s sign was negative on the left, both at the wrist and at the elbow and Phalen’s test at the left wrist elicited complaints of pain in the left shoulder. Skin colour, texture, temperature, hair growth/distribution and sudomotor activity were normal and equal in both upper limbs, and keratinisation patterns in the hands were symmetrical.
The Panel reviewed numerous radiological reports to which it had been referred, but did not review any medical imaging.
In its ‘Discussion and Conclusions’, the Panel stated that in making its determination it had considered Ms Kaur’s history, its clinical examination findings, radiological evidence and the opinions of the medical examiners who had examined and/or treated Ms Kaur. The Panel then specifically noted that following the incident on 30 September 2014, Ms Kaur was ‘able to continue at work, albeit in restricted duties, until she was ”sent home” by her employer on 30 September 2015; and that despite expensive treatments she reports persisting pain, which has remained unchanged since she ceased work.’.
The Panel went on to discuss its findings on examination, together with the radiological findings, and ultimately expressed its conclusion that as a consequence of the incident at work Ms Kaur had developed a chronic pain syndrome following a soft tissue injury to the left posterior shoulder girdle. It also found that Ms Kaur was suffering from an adjustment disorder with mixed anxiety and depressed mood. However, the Panel was of the opinion that Ms Kaur was not suffering from any intrinsic physical medical condition of the neck.
The Panel considered Ms Kaur’s physical work capacity in respect of her left shoulder. The Panel formed the view that:
the sustained repetitive and fast-paced use of her left hand, which had formed a part of [Ms Kaur’s pre-injury] duties, would expose her to an unacceptably high risk of an exacerbation/aggravation of her chronic pain syndrome.
Therefore, the Panel considered that Ms Kaur’s current physical medical condition of her left shoulder alone precluded her from performing the full duties of her pre-injury employment.
The Panel noted the chronic nature of Ms Kaur’s current physical medical condition in her left shoulder, as well as the duration of her symptoms, and opined that her incapacity would continue into the foreseeable future.
The Panel noted that it had asked Ms Kaur about her own understanding of the reason for her persistent pain and about her own perception of her work capacity. It noted the following:
The Plaintiff told the Panel that, as she understands it, she has a ’subacromial bursitis problem’, but she was unable to provide any explanation of what she understands this condition to involve. She told the Panel that the impediments to her work capacity are pain and the resultant restriction to the movement of her left arm, and she said that she considers herself unable to sit and apply herself to any task for more than three hours at a time. She told the Panel that the pain is distracting, so that she is forgetful and cannot concentrate. However, the Panel also noted the Plaintiff’s previous statements that until 30 September 2015, when she was ’sent home’ by her pre-injury employer, she had continued to work full-time in restricted duties, and that her pain and associated limitations have remained unchanged since that time.
The Panel then considered the definitions of ‘current work capacity’ and ‘suitable employment’ as contained within the Act. The Panel stated it considered the following:
·The nature, extent and severity of the Plaintiff’s current physical medical condition including the severity of her chronic pain syndrome and her current medications, which the Panel considered to limit her employment options to duties not involving excessive use of her left upper limb, but which do not preclude a capacity for full-time work;
·Her tertiary education in India, which includes a Bachelor of Art degree and a Master’s degree in Information Technology, her qualifications in Australia, which included a Certificate III in commercial cookery, and her occupational experience as a high school teacher of computer science in India and as a catering assistant and a process worker in Australia, which the Panel considered to allow for a range of employment options;
·Her transferable skills, which include fluent spoken English, good English literacy and numeracy skills, and good computer skills, as well as the above qualifications, a high level of intellect and a pleasing personal presentation, which the Panel considered to allow for a range of employment opportunities;
·Her age of 41 years, which the Panel considered does not limit her employment options;
·Her place of residence in outer Melbourne suburbia, which the Panel considered to allow for a range of employment options;
·Her possession of a driver’s licence but reported inability to drive for longer than half an hour, which the Panel considered does not preclude a range of employment options given her place of residence;
·The occupational rehabilitation services which have been provided to the Plaintiff, which are limited to a return-to-work assistance while she was still working with her pre-injury employer and a Vocational Assessment; and
·The opinion of the Plaintiff’s treating general practitioner, Dr Sanjay Saluja, expressed in a report dated 6 May 2019, that the Plaintiff ’is only capable of doing any desk job for a short period of time of about 2 hours a day’.
The Panel also considered the vocational assessment report of 30 September 2019 which identified alternative employment options of a stock clerk, a general clerk, an enquiry clerk/information officer, a customer service officer, a warehouse clerk and receptionist as potentially suitable for Ms Kaur. It also noted the work site assessments of four existing job roles of customer service officer, warehouse clerk, stock clerk and receptionist. It was noted that such jobs involved self-paced work with the opportunity to change postures as needed and that none required extensive use of Ms Kaur’s non-dominant left hand or reaching with her left arm.
The Panel then stated that the above four roles would be within Ms Kaur’s current physical, intellectual, and qualification capabilities and would be consistent with her previous occupational experience having regard to the physical and intellectual, requirements and required qualifications of the four roles. It concluded that Ms Kaur had a physical capacity for working full-time in any of these four employment options and that none of those jobs would exacerbate, aggravate, accelerate or cause a deterioration of the current medical condition of her shoulder.
The Panel also went on to consider the employment options of a general clerk and an enquiry clerk/information officer. It noted that neither work site assessments nor detailed information were available in respect of such jobs, but noted that such jobs involved office based and/or store based duties and had similar physical, intellectual, functional, and qualification requirements as the other four options detailed above. Consequently, the Panel concluded that those two occupational options also constituted suitable alternative employment for Ms Kaur.
The Panel concluded that Ms Kaur was capable of working in those alternative employment options on a full-time basis, for 38 hours per week.
The Panel also explained its Opinion in respect of Ms Kaur’s claim regarding her neck and psychological condition. However, as those injuries were not the subject of this review, there is no need to detail the Panel’s opinion in respect of such injuries.
Relevant statutory provisions
In reaching its Opinion, the Panel was required to consider the following definitions : ‘current work capacity’, ‘no work capacity’, and ‘suitable employment’.
These definitions have recently been considered by Gorton J in Bainbridge v Westside Meats Pty Ltd,[4] and subsequently approved by the Court of Appeal in Sidiqi v Kotsios[5] and need not be repeated.
[4][2021] VSC 320.
[5][2021] VSCA 187, [87].
General principles
In considering this application, I am bound by the following principles relevant to judicial review of a decision of a medical panel:
(a) this is a matter of judicial review, and not merits review;[6]
[6]Ibid [30].
(b) the statutory function of the Panel is an essential consideration in conducting the review;[7]
[7]Ibid [32].
(c) I should not be overly zealous in considering the Panel’s Reasons;[8]
(d) I should be mindful that the Panel is comprised of medically qualified professionals, not lawyers or judges;[9] and
(e) the Reasons of the Panel should be given a beneficial construction.[10]
[8]Dunbar v Bas [2019] VSCA 315, [51].
[9]Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109].
[10]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271; Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109].
In considering this application, I am assisted by the High Court’s description of the Medical Panel’s statutory function in Wingfoot Australia Partners v Kocak:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[11]
[11](2013) 252 CLR 480, 498–9 [47] (citation omitted).
Did the Panel commit a Jurisdictional error?
The passages identified in paragraphs 33, 43 and 47 above are those parts of the Panel’s Opinion, which Ms Kaur complains contain factual error.
Ms Kaur submitted those paragraphs demonstrate the Panel found the following to be facts (‘the factual findings’):
(a) she continued working full-time on modified/restricted duties; and
(b) she did so until those duties were withdrawn by Rollspack; and
(c) as a result of Rollspack’s withdrawal of duties, she ceased work.
Ms Kaur submitted that based upon these factual findings the Panel drew an inference that she was fit for full-time work at the time she ceased her employment (on whatever date that was), and that her cessation of such employment was brought about by her employer withdrawing her duties and sending her home, and not because of any difficulty caused by her work related injury or condition.
Ms Kaur submitted that these factual findings were material to the Panel’s ultimate conclusion that she was fit to work in the six suitable employment options on a full-time basis. Ms Kaur submitted that these factual findings were wrong and contrary to the evidence which was before the Panel.
The first defendant denied that there was any such factual error, but submitted that even if there was such an error, it was not a material one, and therefore did not constitute a jurisdictional error.
The first defendant submitted that in order for Ms Kaur to demonstrate that the Panel took an incorrect history, she must produce cogent evidence.[12] Indeed, the Court is entitled to assume that the contents of the Panel’s Reasons are correct unless persuaded otherwise.[13]
[12]Karabinis v Bendrups [2017] VSC 648, [69].
[13]Ibid.
Ms Kaur submitted that the Panel failed to take into account multiple pieces of documentary evidence, which were before it and which she claimed were inconsistent with the Panel’s factual findings. This included reference to Ms Kaur’s serious injury affidavit, as well as numerous medical reports which referenced Ms Kaur’s reports of worsening pain after the hydrodilitation. In addition, reference was made to clinical records of Ms Kaur’s general practitioners at the GPG Medical Clinic, which included reference to her symptoms, as well as the following contemporaneous evidence relevant to her working arrangements:
·8 July 2015 — she did not attend work that day and had left shoulder pain after five hours;
·18 September 2015 — Ms Kaur attended upon her GP together with an occupational rehabilitation consultant. At that time, return to work arrangements were discussed and Ms Kaur’s general practitioner noted that she was unable to sit for 15 to 20 minutes and needed to lie down. On that occasion the records show that Ms Kaur requested a medical certificate for that day as she was unfit for work.
·22 October 2015 — it was noted that Ms Kaur had previously seen neurosurgeon Mr Xenos on 22 September 2015 and she had been given a clearance to undergo an arthroscopy for her left shoulder. At that time it was noted that Ms Kaur was agreeable to try two hours of work, three days a week, on Mondays, Wednesdays and Fridays.
·11 November 2015 — it was noted that Ms Kaur suffered persisting shoulder pain and that she was unable to attend administrative work. Her general practitioner suggested ‘going back to work once seen at pain management clinic’. Also on this day, a letter from Mr Patel was noted which referred to her pain worsening after the hydrodilatation and there being a diagnosis of complex regional pain syndrome.
In addition, Ms Kaur’s counsel also relied upon the following documents, which had been included under the Schedule of Attachments provided to the Panel:
(a) In a Return to Work plan prepared by Accelerait, dated 3 September 2015, it was noted that:
Ms Kaur reports she has not been at work since the 13 July 2015 as a result of sustaining her compensable left shoulder and neck injury on the 22 July 2014.
Ms Kaur is currently certified unfit for any duties from the 31 August 2015 to 25 September 2015.
Accelerait will liaise with Ms Kaur’s treating practitioners… to discuss her prognosis and ongoing work capacity. A medical case conference will be scheduled in the ensuing week;
Mr Taylor (Employer) advised that there are limited suitable duties that can currently be offered as part of a Return to Work arrangement.
This document also notes Ms Kaur ceased work after undergoing a hydrodilatation on 9 February 2015 and that she had worked reduced hours and performed modified duties, due to the associated pain, until 13 July 2015 when she reported that the ‘limited suitable duties’ that she was performing further exacerbated her injury.
(b) In a further Return to Work plan prepared by Accelerait, dated 9 September 2015, it was noted that, at that time, Ms Kaur was not working at all. The plan proposed that, subject to her specialist’s opinion, Ms Kaur would return to work on 14 September 2015 at a reduced rate of 12 hours per week, with a view to gradually increasing her hours in the weeks thereafter.
Finally, Ms Kaur relied upon the affidavit she affirmed in support of this application (‘judicial review affidavit’) and in which she stated the following:
(a) Ms Kaur agreed that she told the Panel that her pain was much worse after the hydrodilatation. Ms Kaur stated that ‘they didn’t ask me anymore after this. If they had, I would have told them that I was struggling to work after that. I tried to tell them that I was not able to continue working after that’.
(b) Ms Kaur stated that the Panel asked her about her work after the injury, she said that after the hydrodilatation, ‘I had trouble working due to the increase in pain. I told them I needed time off work to rest’.
(c) In respect of the aspect of the Panel’s Reasons, that stated Ms Kaur was told she by her employer ’we don’t have a job for you anymore’ and she was sent home from work, Ms Kaur deposed as follows:
I tried to tell the Medical Panel that I kept working until I couldn’t cope with the pain anymore… shortly before I stopped work, I went to my doctor and sought medical advice. I was advised to reduce my hours and given a certificate to that effect. I gave that certificate to my employer. It was after that that my employer told me ’we don’t have a job for you anymore’. They didn’t listen to me. I tried to tell them but they cut me off and asked me a different question.
In oral submissions, Ms Kaur’s counsel urged me to accept this evidence, in circumstances where the first defendant did not seek to cross-examine Ms Kaur as to the contents of this affidavit, nor did it tender any affidavit material from the employer to rebut Ms Kaur’s assertion that in response to her being certified by her doctor to work reduced hours, she was informed there was no job for her.
In reply the first defendant submitted that Ms Kaur’s judicial review affidavit was far from cogent. Specifically, it was noted that Ms Kaur did not deny that she told the Panel the history it had recorded under the heading ‘Subsequent History’. Further, she did not deny the history recorded by the Panel as to the circumstances of her ceasing work. It was submitted that Ms Kaur’s assertions that she ‘tried to tell’ the Panel that she ‘kept working until [she] couldn’t cope with pain anymore’ were inconsistent with Ms Kaur otherwise providing a full and detailed history to the Panel, including her correction of the date she ceased work outlined in the Agreed Facts.
To further advance its submission that there was no factual error, the first defendant relied upon the following material which was before the Panel:
(a) Ms Kaur’s serious injury affidavit merely stated that she ceased work in July 2015, but was silent as to the circumstances of her ceasing work or what is now said to be a reduced capacity for modified duties prior to the cessation of such work.
(b) In Dr Doig’s report dated 20 November 2019, he noted that Ms Kaur stopped work on 30 June 2015, as ‘her position was terminated due to her inability to upgrade to pre-injury status’.
(c) In Dr Hayman’s report dated 16 April 2019, he noted that by July 2014 Ms Kaur’s pain was such that she had to go on light duties until June 2015 when she ceased work. Dr Hayman noted that at that time Ms Kaur was told there were no further suitable duties and she has not worked since.
(d) There was no contemporaneous material from any treating doctors to the effect that Ms Kaur was unable to perform modified duties shortly prior to the cessation of her employment.
Analysis of the alleged factual error
The majority of the documents which Ms Kaur’s counsel referred me to did not support his submission that the Panel had made a factual error. Save for the documents identified above at [65] (a) and (b) (the ‘Return to Work documents’), the importance of which I will discuss immediately below, the other documents were only relevant to what may be described as the merits of Ms Kaur’s application. As this is a judicial review and not a merits review, I have had no regard to such documents.
However, the Return to Work documents clearly stated that Ms Kaur only had a capacity to work reduced hours. That is, these documents demonstrate that she was not working full time and did not have the capacity to work full-time. These were important contemporaneous documents which were not referred to in the Panel’s Reasons. These documents are inconsistent with the Panel’s findings that Ms Kaur was working full-time duties at the time she was sent home.
Of course a Medical Panel is not expected to explicitly refer to all of the material it has before it.[14] However, as important contemporaneous documents, I consider the Return to Work documents should have been expressly referred to and considered by the Panel.
[14]Vellios Electrical Contractors v Barton [2014] VSC 664 at [79].
Ms Kaur’s claim in her judicial review affidavit, that she was let go when she provided a certificate of capacity to her employer requiring her to work reduced hours, was not challenged and I accept Ms Kaur’s evidence on this.
Therefore, in considering the Return to Work documents and Ms Kaur’s evidence on the circumstances of her leaving work, I am satisfied the Panel’s findings as to Ms Kaur’s work capacity at the time she ceased work was incorrect. That is, she was not sent home whilst working full-time hours in restricted duties. Instead, she was sent home when her capacity for work was limited to reduced hours in restricted duties. There is a marked difference between the two scenarios.
For those reasons, I am satisfied that there is a cogent basis for me to find that the Panel’s factual findings amount to an error.
Consequences of the factual error
It does not necessarily follow that a factual error will constitute jurisdictional error. In this case, Ms Kaur urged me to find that it did; the first defendant urged me to find that it did not.
The Court of Appeal in Chang v Neill (‘Chang’)[15] stated that:
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.
The question arises whether, in addition to satisfying the test at [92] above, an error of fact must be material in order for it to constitute jurisdictional error. By ‘material’ we mean that the outcome of the exercise of the relevant power could have been different if the factual error had not been made.
…
The observations of the plurality in both Hossain and SZMTA as to the role of materiality in informing whether an error is jurisdictional were not confined to any particular type of jurisdictional error. Accordingly, pending further clarification by the High Court, we will proceed on the basis that those observations apply to a jurisdictional error constituted by a decision-maker failing to have regard to, or misconstruing, a factual matter. However, the additional requirement of materiality is unlikely to make much difference in practice in relation to such an error. That is because an error in relation to a factual matter, consideration of which is an essential feature of a valid exercise of the relevant statutory function, will usually satisfy the materiality requirement.
[15]Chang v Neill [2019] VSCA 151, [92]–[93], [100] (‘Chang’) (citations omitted).
Ms Kaur submitted that the erroneous factual finding was both important and material to the Panel’s conclusion that Ms Kaur had the capacity for full-time suitable employment. It was put that this was most evident in the following paragraph of the Reasons:
She told the Panel that the impediments to her work capacity are pain and the resultant restriction to the movement of her left arm, and she said that she considers herself unable to sit and apply herself to any task for more than three hours at a time. She told the Panel that the pain is distracting, so that she is forgetful and cannot concentrate. However, the Panel also noted the Plaintiff’s previous statements that until 30 September 2015, when she was ’sent home’ by her pre-injury employer, she had continued to work full-time in restricted duties, and that her pain and associated limitations have remained unchanged since that time.
Ms Kaur submitted that the clear inference from this paragraph is that if the employer had not sent her home, she would still be working full-time in restricted duties.
However, the first defendant submitted that a factual finding as to events and circumstances of five years ago was merely historical and did not go to a central issue which the Panel was required to determine — whether or not Ms Kaur had a current work capacity.
I consider that such a submission may have been compelling had there been a change in Ms Kaur’s symptoms and complaints since that time — be it an improvement or deterioration. However, it is apparent from the Panel’s Reasons that Ms Kaur’s report that her pain and limitations had been unchanged since ceasing work was a significant basis for the Panel being satisfied that she could therefore still work full-time in restricted duties.
As evidenced by the above extract, the Panel’s reasoning relied on an apparent inconsistency between the two claims of Ms Kaur - that she was ‘sent home’ by her employer when she had the capacity to work full-time and that she could not do any task for more than three hours. The Panel considered the former to rebut the possibility of the latter. However, the Panel’s reasoning was based upon a factual error, which undermines its conclusions in respect of Ms Kaur's capacity for suitable employment.
The first defendant reminded me that in the case of Chang, the worker claimed the Medical Panel had made an error in relation to the nature of the jobs she had applied for after being made redundant. The Medical Panel had recorded that the worker had applied for full-time work, whereas in fact the worker claimed that she had initially only applied for part time work. The Court of Appeal did not consider this fact to be critical to the Medical Panel’s ultimate conclusion, but was merely one relevant fact within a myriad of others. Therefore, any such non-material factual error did not constitute jurisdictional error. It was put that this was comparable to the error that Ms Kaur alleged the Panel had committed in respect of her.
I do not agree. I consider the factual error in Chang distinguishable from Ms Kaur’s situation. In Chang, it was a theoretical and untested capacity for work — the worker had merely applied for part-time work. Here, however, the Panel had regard to a material matter — a tested work capacity by Ms Kaur — in the context of her reporting a consistency in her medical condition since that time.
For those reasons, I am satisfied that without the factual error the Panel may well have reached a different Opinion and that Ms Kaur was denied the very real possibility of a favourable outcome. As such, I am satisfied that the materiality requirement set out in Chang has been made out, and that the Panel failed to exercise its statutory authority.
For the foregoing reasons, I make the following orders:
1. The decision of the Panel made 12 November 2020 be set aside.
2. The questions that were referred to the Panel be remitted to a differently constituted Medical Panel.
Concluding remarks
Given my conclusions in respect of Ground One of the Further Amended Originating Motion, it is unnecessary for me to consider the remaining grounds.
I will hear from the parties as to whether this should be relevant in any cost order that I may ultimately make in this matter.
SCHEDULE OF PARTIES
| PERVINDER KAUR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| DR ANITA BOECKSTEINER | Second Defendant |
| and | |
| DR JENNIFER HARMER | Third Defendant |
| and | |
| MR SUSANNE HOMOLKA | Fourth Defendant |
| and | |
| DR DENNIS HANDRINOS | Fifth Defendant |
| and | |
| ASSOC PROFESSOR ALEXANDER HOLMES | Sixth Defendant |
5
0