Khan v Romas
[2017] VSC 731
•13 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00686
| BISMILLAH KHAN | Plaintiff |
| v | |
| ASSOCIATE PROFESSOR EVANGE ROMAS & ORS (as per the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 October 2017 |
DATE OF JUDGMENT: | 13 December 2017 |
CASE MAY BE CITED AS: | Khan v Romas & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 731 |
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JUDICIAL REVIEW – Medical Panel – Whether panel failed to take into account relevant considerations – Failure of the medical panel to refer to chronic pain syndrome in its reasons – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 applied, Omerasevic v Kotzman [2016] VSC 383 and Tan v Kotzman [2016] VSC 482 referred to – Adequacy of reasons – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Schilling | Zaparas Lawyers |
| For the First to Fifth Defendants | No appearance | |
| For the Sixth Defendant | Mr M Fleming QC with Ms R Kaye | Minter Ellison |
HER HONOUR:
On 13 December 2016, the first to fifth defendants (‘Panel’) issued a Certificate of Opinion in response to a referral of certain questions by a judge of the County Court concerning the medical condition of the plaintiff (‘Mr Khan’). The sixth defendant, Visy Paper Pty Ltd (‘Visy’), is Mr Khan’s former employer, and the active contradictor in this proceeding.[1] In summary, the Panel held that Mr Khan had no medical condition arising out of injuries suffered by him in the course of his employment with Visy (‘agreed injuries’), that Mr Khan has no present inability arising from an injury such that he is not able to return to his pre‑injury employment, and any claimed incapacity for work does not result from and was not materially contributed to by the agreed injuries.
[1]On 8 September 2017 the solicitors for the first to fifth defendants inclusive, being the members of the Panel, wrote to the Court stating that the Panel would abide by the decision of the Court.
Mr Khan seeks judicial review of the Panel’s opinion. Prior to turning to the grounds of review and the submissions of the parties in some detail, it is helpful to set out the background facts, the procedural history of the dispute between Mr Khan and Visy, and to summarise the material before the Panel, the contentions of the parties before the Panel, and the reasons of the Panel.
Khan is 40 years old, and a native of Afghanistan. He arrived in Australia in 2001, and spent three to four years in an immigration detention centre. He has limited education, and limited English language skills.[2]
[2]This background material is largely derived from Mr Khan’s submissions, both in this proceeding and before the Panel. I do not understand there to be any dispute about these factual matters.
Mr Khan was employed by Visy from about 2007 to 13 September 2011, although he actually ceased working at Visy on 14 January 2010. He was employed as a sorter/operator, and his main duties involved removing contaminants from recyclable material from a conveyor belt. On 9 November 2009 he fell and injured his left wrist, and, upon return to work, initially on light duties, suffered a right shoulder injury as a result of the overuse of his right arm as a consequence of his limited ability to use his left arm when carrying out manual work.
Subsequently, Mr Khan suffered a psychiatric injury due to the pain and restriction of his physical injuries. In 2013, his symptoms were sufficiently severe to warrant him being admitted as an involuntary patient to the Monash Medical Centre.[3]
[3]Visy does not dispute the fact of Mr Khan’s admission, but I doubt it would accept that Mr Khan’s psychiatric condition at that time was work related.
Visy accepted liability in relation to the left wrist and right shoulder injuries. However, Mr Khan’s entitlements to weekly payments and payments for medical and like expenses were terminated on 18 June 2010, on the stated grounds that:
(i) [he was] not incapacitated for work;
(ii)His incapacity for work is no longer materially contributed to by an injury arising out of or in the course of his employment;
(iii)His incapacity for work [is] no longer materially contributed to by an injury which entitles him to compensation;
(iv)The Plaintiff no longer requires any medical treatment for his injury;
(v)The medical and like expenses he is claiming are not for an injury which entitles him to compensation under the Act.
Mr Khan disputed the termination of compensation, and issued a proceeding in the Magistrates’ Court. Certain medical questions were referred to a medical panel (‘2012 Panel’) on or about 9 December 2011. In its reasons dated 17 February 2012, the 2012 Panel identified the following issues for its determination:
·What the nature of the Plaintiff’s medical condition is, relevant to the ‘Particulars of Injury’ as pleaded in Paragraph 4, 6 and 7 of the Plaintiff’s Further Amended Statement of Claim.
·Whether the Plaintiff’s employment with the Defendant was in fact, or could possibly have been, a significant contributing factor to the following alleged injuries or a similar injury:
· Reactive stress;
· Anxiety and depression;
· Synovitis due to fluid within the tendon sheath of the extensor hallux longus tendon;
· Psychological reaction with stress, anxiety, and depression.
· The extent to which any medical condition has resulted from or was materially contributed to by the claimed injuries.
· Whether the Plaintiff has an incapacity for work.
· If the Plaintiff has an incapacity, whether the incapacity results from or is materially contributed to by any, and if so, which of the said injuries.
The 2012 Panel found that Mr Khan had ‘no present inability’ to return to his pre‑injury employment arising from the claimed injuries. Relevantly, for the purposes of the current proceeding, the 2012 Panel found that while Mr Khan ‘may have suffered a soft tissue injury of the right shoulder that this has now resolved’, and that Mr Khan was suffering from:
a partially resolved Adjustment Disorder that is now of mild severity, which has developed as a consequence of his physical injuries
relevant to both the left wrist injury and the right shoulder injury.
Relevantly, the 2012 Panel found that, notwithstanding a medical report to the effect that Mr Khan ‘presents with features of a chronic pain syndrome’, Mr Khan ‘is not suffering from a chronic pain syndrome or a myofascial pain syndrome’. The 2012 Panel also reviewed surveillance footage showing Mr Khan going about various activities, and stated:
… the actions depicted by the plaintiff in the DVDs were not consistent with the plaintiff’s complaints and presentation on examination.
On 17 February 2015, Mr Khan issued a proceeding in the County Court seeking leave to commence common law proceedings pursuant to s 134AB of the Accident Compensation Act 1985 (Vic) (‘AC Act’). In his particulars of injury, Mr Khan alleged that he had suffered a serious injury within the meaning of the AC Act, as follows:
(a)Serious long term impairment and/or loss of function of his left upper limb, including but not limited to, an avulsion fracture of the trapezoid and tear of the extensor carpi radials; and/or
Serious long term impairment and/or loss of function of his right upper limb;
and/or sub-section [sic]
(b)Severe long term mental or behavioural disturbance or disorder including but not limited to development of anxiety and depression.
On 26 June 2015, a judge of the County Court referred five questions to the Convenor of Medical Panels pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’).[4]
[4]By reason of the date of his injury, Mr Khan’s entitlement to compensation is governed by the terms of the AC Act. However, the obligations and procedures of the medical panel are governed by the WIRC Act.
The referral to the Panel was lodged on 1 June 2016, and the members of the Panel included a rheumatologist, a general practitioner, an orthopaedic surgeon, and two psychiatrists. Mr Khan was examined on 9 August 2016 by who might be described as the ‘physical doctors’ in one session, and by the psychiatrists in another session. A further examination was conducted by Associate Professor Romas, a rheumatologist, on 18 November 2016.
The Panel was provided with a substantial number of documents. As well as the ‘formal’ claim and referral documents, draft pleadings, and the Certificate of Opinion and reasons of the 2012 Panel, the Panel was provided with seven medico‑legal reports prepared for Visy, a vast quantity of reports prepared by Mr Khan’s treating practitioners and medico‑legal experts, along with hospital notes and discharge reports, and imaging reports.
The solicitors for both Visy and Mr Khan provided written submissions to the Panel. In its submissions dated 6 May 2016, Visy submitted, in summary, as follows:
(a) any injuries sustained by Mr Khan in the course of his employment have now resolved, and any current medical condition (including any psychiatric injury) is no longer causally related to his employment;
(b) Mr Khan has a current capacity to return to his pre‑injury work or suitable employment;
(c) there is a substantial ‘functional or non-organic overlay in [Mr Khan’s] presentation’;
(d) a number of doctors have noted ‘inconsistencies between restriction of movement on formal examination as compared with informal observation, diffuse pain, and a lack of any objective evidence of any significant physical injury’;
(e) Mr Khan’s complaint of worsening pain does not follow in circumstances where he claims not to have worked for over five years;
(f) Visy drew the Panel’s attention to the surveillance film, which it said ‘shows the plaintiff out and about with no apparent pain or impairment’;
(g) Visy referred to the findings of the 2012 Panel concerning Mr Khan’s physical injuries and claimed psychiatric injury, and submitted that, ‘at the very most the plaintiff suffers from a mild adjustment disorder’, and, in any event, were the Panel to find that Mr Khan has a current psychiatric condition, his employment with Visy was not the cause of any such condition;
(h) Visy submitted that Mr Khan has the capacity to return to his pre‑injury duties, referring to the opinion and reasons of the 2012 Panel, and no significant deterioration, or reason for any such deterioration between January 2012 and the present;
(i) alternatively, Visy submitted that Mr Khan has capacity for suitable employment, and identified a number of potential occupations; and
(j) in relation to the question of whether any incapacity of Mr Khan is permanent, Visy submitted that the Panel should not find that any such incapacity is permanent, given the potential for improvement with further surgery.
The solicitors for Mr Khan also prepared written submissions for the Panel, dated 25 May 2016. These submissions can be summarised as follows:
(a) Mr Khan submitted as follows:
…
The issue is whether the Plaintiff continues to suffer from any left wrist, right shoulder or psychological condition and, if yes, whether these conditions are causally related to his employment.
The Plaintiff submits that as a result of the left wrist and right shoulder injuries he sustained during his employment with the Defendant, he has developed a chronic pain syndrome (either organic or psychological). He submits that this chronic pain syndrome is responsible for his current bilateral upper limb symptoms. He submits that his chronic pain syndrome continues to result from the injuries sustained during his employment with the Defendant.
Further and alternatively, the Plaintiff submits that he suffers from a major depressive disorder, which continues to be causally related to his employment with the Defendant.
The Plaintiff submits that he has no capacity for any employment. He submits that such incapacity is materially contributed to by his work‑related chronic pain syndrome or, alternatively, his psychological injuries.
The Plaintiff submits that his incapacity for employment is permanent.
(b) in relation to the left wrist injury, the submissions refer to Mr Khan’s ongoing symptoms of pain, and contend that, based upon reports prepared in 2015 and 2016, Mr Khan has developed ‘an organically based chronic pain syndrome’;
(c) alternatively, the submissions refer to a number of reports prepared in 2015 which contend that the chronic pain syndrome affecting Mr Khan’s left upper limb is psychologically based;
(d) in relation to Mr Khan’s right shoulder injury, Mr Khan submitted that ‘at no time have his right shoulder symptoms resolved or improved’, but rather, have worsened over time, and have not improved following surgery;
(e) referring to a number of identified reports, Mr Khan submitted that he suffers from ‘an organic pain syndrome affecting his right upper limb, and that this chronic pain syndrome is a result of the right shoulder injury that [Visy] accepts he sustained at work’;
(f) alternatively, it was submitted that the chronic pain disorder affecting his right upper limb is psychologically based;
(g) Mr Khan’s lack of improvement following surgery is consistent with him suffering from a chronic pain syndrome;
(h) As for Mr Khan’s psychological condition, it was submitted as follows:
Prior to commencing work for the Defendant, he had been prescribed Endep and Efexor, and experienced some anxiety symptoms, but he had nevertheless managed to work full-time for the Defendant for more than 2 years.
However, following his left wrist, left elbow and right shoulder injuries, the Plaintiff’s symptoms significantly worsened. The Defendant accepts that the Plaintiff suffered psychological injury as a result of the physical injuries he sustained during his employment with the Defendant.
A previous Medical Panel opined that his work-related psychological symptoms were of such severity from July 2010 to July 2011 that he was incapacitated for his pre‑injury employment. In May 2011, Dr Nathar opined that the Plaintiff was suffering from a major depressive disorder.
The Plaintiff’s psychological state continued to deteriorate. In September 2013, he was admitted as an involuntary patient at Dandenong Hospital while experiencing auditory hallucinations and suicidal thoughts.
The Plaintiff is now under the care of a psychiatrist, Dr Hogan, who has diagnosed him with chronic pain and a major depressive disorder with psychotic features. He takes significant medication for his psychiatric condition. He has severe problems with memory and concentration. He is stressed and has difficulty sleeping. He hears noises. Sometimes he feels like he will lose control. He is tearful and feels hopeless. He has thoughts of self-harm.
The weight of the medical evidence is that the Plaintiff’s psychological condition continues to result from his employment with the Defendant.
(i) and further:
The Plaintiff submits that he has no capacity for his pre‑injury employment as a sorter/operator or for any suitable employment. The Plaintiff submits that is incapacity for work results from the chronic pain disorder affecting his upper limb, or, alternatively, his major depressive disorder.
(j) the submissions referred to the tasks engaged in by Mr Khan when he was employed by Visy, and stated that:
He clearly has no capacity to perform the duties involved in his pre‑injury job as a sorter/operator. The weight of the medical opinion supports this submission.
and
the severity of his psychological symptoms render him incapacitated for all employment, including his pre‑injury employment;
(k) the submissions canvassed at some length what amounts to ‘suitable employment’ and rejected the alternative employment options identified by Visy in its submissions; and
(l) the submissions concluded as follows:
The Plaintiff submits that the Panel ought conclude the following:
a.That the Plaintiff suffers from a chronic pain syndrome (either organic or psychological) which continues to result from the injuries to his left wrist and elbow and/or the injury to his right shoulder that he sustained while working for the Defendant.
b.That the Plaintiff suffers from a major depressive disorder with psychotic features which continues to be causally related to his employment with the Defendant;
c.That the Plaintiff has no capacity for his pre‑injury employment as a sorter/operator;
d.That the Plaintiff has no capacity for any suitable employment;
e.That the Plaintiff’s incapacity for work is materially contributed to by his chronic pain syndrome or, alternatively, his major depressive disorder;
f.That the Plaintiff’s incapacity for work is permanent.
No submissions in reply were provided by Visy to the Panel prior to their examination of Mr Khan on 9 August 2016, or at all.
On 15 December 2016, the Panel provided its Certificate of Opinion and reasons dated 13 December 2016 (‘reasons’). The questions and answers are reproduced below:
Question 1:
What is the nature of the Plaintiff’s current medical condition relevant to the accepted injuries referred to in the particulars of injury dated 11 March 2015, namely:
(a) the left upper limb, including but not limited to an avulsion fracture of the trapezoid and tear of the extensor carpi radialis brevis?
(b) the right upper limb?
(c) mental and behavioural disturbance or disorder including but not limited to development of anxiety and depression?
Answer:
(a) no medical condition
(b) no medical condition(c) no medical condition
Question 2:
Do any of the current physical or mental conditions identified in response to question one above result from or are they materially contributed to by any, and if so which, of the accepted injuries?
Answer:
Not applicable.
Question 3:
Does the Plaintiff have:
(a) a current capacity for his pre-injury duties?
(b) a current capacity for suitable employment?
Answer:
In the Panel’s opinion, the Plaintiff has no present inability arising from an injury such that the Plaintiff is not able to return to his pre-injury employment and any claimed incapacity for work does not result from and is not material contributed to by the alleged injuries.
Question 4:
If yes to question 3(a) or (b) above for how many hours per week can he perform such duties or employment?
Answer:
In the Panel’s opinion the Plaintiff has no present inability arising from an injury such that the Plaintiff is not able to return to his pre-injury employment working his pre-injury hours of work.
Question 5:
If no to question 3(a) or (b) above: does the Plaintiff’s incapacity for work result from or was it materially contributed to by an accepted injury?
Answer:
Not applicable.
The outline of submissions filed and served on behalf of Mr Khan in this proceeding contain a fair and helpful summary of the reasons, and extracts of this summary are reproduced below:
The Reasons of the Medical Panel record the agreed facts that the Plaintiff had suffered a left wrist injury, a subsequent right shoulder injury due to overuse when compensating for the left wrist and a subsequent psychiatric injury due the pain and restrictions of his physical injury.
…
On page 5 of the Reasons, the Panel recorded the Plaintiff’s subjective account of his left and right upper limb pain:
….He said currently, the right shoulder is more painful than the left and pain also extends from the tip of his right fingers through to the neck. He also indicated he has pain in the left arm which is worse when he moves the arm and pain around the outer aspect of the left elbow. He has pain extending from his fingertips through to the left shoulder. He told the Panel that his entire left arm ‘feels heavy’. He feels that he has lost strength in both arms. He was despairing of the continuous right shoulder pain and states…. ‘if [doctors] would cut off my right arm I would agree’ ….The Plaintiff also described neck pain extending from ‘my ears…..down’ and said that he has pins and needles in his hands. He also has pain in his left wrist which goes up to his left elbow and through to the shoulder.
At page 8 of the Reasons, the Panel made further findings as to the Plaintiff subjective experience of pain:
The Plaintiff told the Panel he continues to experience problems in his right shoulder and arm down into his hand. He said is [sic] unable to put his arm behind his back, raise it or move it out. He said that if he is in lots of pain then the arm gets numb and he puts it in a sling….
The Panel also recorded that the Plaintiff stated that he suffered severe limitations in the activities of daily living and required help from his wife with basic functions such as showering and dressing.
The Panel conducted a physical examination of the Plaintiff, making the following findings:
The Plaintiff’s neck moved normally, with no dysmetria or muscle spasm noted. There were three arthroscopy portals around the right shoulder and wasting of the right suprapinatus and infraspinatus muscles. There was mild diffuse restriction of active right shoulder movements consistent with mild post-operative adhesive capsulitis. Right shoulder strength was intact. The left shoulder was considered normal. The left elbow joint and left wrist and hand were normal. There was no evidence of any persisting soft tissue injury of the left extensor muscles, or in the common extensor origin and no lateral epicondylitis. There was no evidence of localised tenderness or fracture of the left carpal bones. There was no evidence of scapholunate instability. There was no evidence of any radial, ulnar or medial nerve lesions. There was non‑anatomical sensory loss throughout the right upper extremity including the right hand. Muscle testing was accompanied by collapsing responses however there was no muscle wasting and reflexes were present and symmetrical. Upper limb muscle strength was considered normal. There were no signs of complex regional pain syndrome in either upper extremity. There were also no clinical signs of cervical radiculopathy.
The Panel then set out the findings [of] the relevant radiological investigations.
Next, the Panel recorded its observations of the DVD surveillance footage from 2010 and 2011 and the Plaintiff’s responses to that material. Importantly, unlike the 2012 Medical Panel, the Panel simply observed that the ‘surveillance did not usefully extend its own clinical observations’.
Turning to the Panel’s conclusion on the Plaintiff’s physical injuries:
in respect of the left wrist injury, the Panel concluded:
The Panel noted a previous, differently constituted Medical Panel (‘the previous Panel’) examined the Plaintiff in January 2012 and concluded he was suffering from ‘the residual effects of an avulsion fracture of the left trapezoid and tear of the extensor carpi radialis longus muscle at the level of the left elbow with bruising.
The Panel took into consideration its own history and contemporaneous physical examination findings and results of the radiological investigations and concluded that the plaintiff sustained a soft tissue injury of the extensor carpi radialis longus and a left triquetral fracture, however these injuries are now fully resolved without any residual sequelae. The Plaintiff therefore currently has no medical condition of the left upper limb.
in respect of the right shoulder injury, the Panel concluded:
The Panel also concluded the Plaintiff is suffering from right shoulder dysfunction following symptomatic rotator cuff degeneration (surgically treated). The previous Panel had concluded that the Plaintiff may have suffered from a soft tissue injury of the right shoulder (and the parties now do agree that a soft tissue injury of the shoulder was sustained) but the previous Panel considered the injury had fully resolved by 2012 and the plaintiff was by then not suffering no [sic] intrinsic medical condition of the right shoulder.
Based on its own assessment, the Panel reached a not dissimilar conclusion and considered the Plaintiff’s right shoulder dysfunction following symptomatic rotator cuff degeneration (surgically treated) is not causally linked to any of the accepted left wrist or left elbow injuries; or to the accepted subsequent right shoulder injury (attributed to overuse when compensating for his left wrist), either by way of an aggravation, an exacerbation, deterioration or an acceleration of the underlying constitutional rotator cuff degeneration.
The Panel therefore concluded the Plaintiff’s right shoulder dysfunction following symptomatic rotator cuff degeneration (surgically treated) does not result from and is not materially contributed to by any of the accepted physical injuries.
The Panel then carried out a psychiatric examination.
…
The Panel’s conclusion on the Plaintiff’s psychiatric condition was as follows:
The Plaintiff mood [sic] was angry and defensive but he did not appear anxious or depressed. He described perceptual abnormalities of hearing voices but these were not evident during the interview and the Panel did not consider he was psychotic. Whilst often saying he ‘did not remember’ historical details he did not appear to have any significant cognitive impairment.
The Panel noted the diagnosis made by the previous Panel in 2012 of ‘a partially resolved Adjustment Disorder that is now of mild severity’. The panel considered the information in the reports of the Dandenong hospital dated 9 September 2013 noting the Plaintiff was at that time, considered to exhibit psychotic features. The Panel detected no current evidence of psychosis. Based on its own assessment almost five years after the previous Panel’s examination, the Panel concluded that the Plaintiff’s Adjustment Disorder (AD) is now fully resolved.
The Panel therefore concluded the Plaintiff is suffering from no current psychiatric or abnormal psychological condition.
On 27 February 2017, Mr Khan filed and served an originating motion seeking an order to quash the Certificate of Opinion, and a further order seeking that the Court remit the medical questions to a differently constituted medical panel. The grounds of review are as follows:
The Medical Panel fell into jurisdictional error by failing to have regard to matters to which the Medical Panel was bound to have regard, namely, whether the Plaintiff suffered from an organic or psychological chronic pain syndrome (the chronic pain syndrome issue);
The Medical Panel fell into jurisdictional error by ignoring relevant material in a way that affected the exercise of its power, namely the Plaintiff’s submissions to the medical panel and the medical reports contained in the referral materials which clearly raised the chronic pain syndrome issue.
In determining its opinion the Medical Panel committed an error of law on the face of the record by failing to give an adequate statement of reasons.
While Mr Khan relies upon a number of grounds of review, Mr Khan’s submissions ultimately boil down to one question: whether the Panel was in error by failing to specifically avert to, and make findings upon the question of whether Mr Khan was suffering from chronic pain syndrome (‘chronic pain issue’). Put simply, Mr Khan asserts that the question of whether Mr Khan suffered from chronic pain syndrome was raised squarely by his solicitors in their submissions to the Panel, and was referred to in a number of medical reports provided to the Panel. By failing to expressly deal with these submissions and expert reports, the Court can infer that the Panel failed to have regard to a mandatory relevant consideration, such that it fell into jurisdictional error. Alternatively, if the Panel had considered whether Mr Khan suffered from chronic pain syndrome, then this consideration was not disclosed in the reasons, and thus the Panel committed an error of law on the face of the record, as the reasons did not reveal its path of reasoning with respect to that issue, as required by the authoritative statement of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’).[5]
[5](2013) 252 CLR 480, [55].
There is no dispute between the parties concerning the applicable legal principles relevant to the grounds of review advanced by Mr Khan, which will be referred to in more detail later in these reasons. Rather, Visy’s key contentions can be summarised as follows:
(a) the question of whether Mr Khan suffered from chronic pain syndrome was not a mandatory relevant consideration;
(b) chronic pain syndrome is not a term of art in physical medicine, or a widely accepted injury or disease for the purposes of determining whether Mr Khan suffered a compensable injury;
(c) notwithstanding the above, the reasons show that the Panel considered whether, by reason of Mr Khan’s subjective complaints and symptoms of pain, Mr Khan was suffering any physical or psychological conditions, and concluded that he did not;
(d) the Panel was obliged to provide reasons as to why it formed the opinion that it did, but not why it rejected alternative opinions; and
(e) in any event, even if the Panel was required to consider whether Mr Khan suffered from chronic pain syndrome, the Panel explained how it considered this issue through ‘different prisms’: that is, the Panel identified and considered the constellation of pain symptoms reported to them by Mr Khan.
Visy relied upon an affidavit sworn by its solicitor, Mr Stephen Scully, on 8 June 2017. In his affidavit, Mr Scully:
(a) referred to the findings of the 2012 Panel;
(b) noted that at the time the Panel delivered its Certificate of Opinion on 13 December 2016, the fifth edition of the ‘Diagnostic and Statistical Manual of Mental Disorders’ (‘DSM-5’) was in force;[6]
[6]DSM-5 replaced the fourth edition (‘DSM-IV’) in 2013.
(c) referred to the diagnostic criteria for Adjustment Disorders set out in DSM‑5;
(d) exhibited an extract from DSM‑5 titled ‘Cautionary Statement for Forensic Use of DSM‑5’, which specifically referred to the use that might be made of diagnostic information by legal decision‑makers;
(e) stated:
The condition of Chronic Pain Disorder was contained in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV), but it is not in DSM-5’,
and set out the diagnostic criteria for pain disorder in DSM-IV;
(f) noted that DSM-5 established a new category of mental disorders entitled ‘Somatic Symptom and Related Disorders’, and quoted the following statement from the American Psychiatric Association explaining the changes between DSM-IV and DSM-5:
DSM-5 takes a different approach to the important clinical realm of individuals with pain. In DSM-IV, the pain disorder diagnoses assume that some pains are associated solely with psychological factors, some with medical diseases or injuries, and some with both. There is a lack of evidence that such distinctions can be made with reliability and validity, and a large body of research has demonstrated that psychological factors influence all forms of pain. Most individuals with chronic pain attribute their pain to a combination of factors, including somatic, psychological, and environmental influences. In DSM-5, some individuals with chronic pain would be appropriately diagnosed as having somatic symptom disorder, with predominant pain. For others, psychological factors affecting other medical conditions or an adjustment disorder would be more appropriate.
(g) exhibited a copy of the guide published by the American Psychiatric Association titled ‘Highlights of Changes from DSM-IV-TR to DSM-5’, which included the following statements:
Somatic Symptom Disorder
DSM-5 better recognizes the complexity of the interface between psychiatry and medicine. Individuals with somatic symptoms plus abnormal thoughts, feelings, and behaviours may or may not have a diagnosed medical condition. The relationship between somatic symptoms and psychopathology exists along a spectrum, and the arbitrarily high symptom count required for DSM-IV somatization disorder did not accommodate this spectrum. The diagnosis of somatization disorder was essentially based on a long and complex symptom count of medically unexplained symptoms. Individuals previously diagnosed with somatization disorder will usually meet DSM‑5 criteria for somatic symptom disorder, but only if they have the maladaptive thoughts, feelings, and behaviours that define the disorder, in addition to their somatic symptoms.
…
Pain Disorder
DSM-5 takes a different approach to the important clinical realm of individuals with pain. In DSM-IV, the pain disorder diagnoses assume that some pains are associated solely with psychological factors, some with medical diseases or injuries, and some with both. There is a lack of evidence that such distinctions can be made with reliability and validity, and a large body of research has demonstrated that psychological factors influence all forms of pain. Most individuals with chronic pain attribute their pain to a combination of factors, including somatic, psychological, and environmental influences. In DSM‑5, some individuals with chronic pain would be appropriately diagnosed as having somatic symptom disorder, with predominant pain. For others, psychological factors affecting other medical conditions or an adjustment disorder would be more appropriate.
(h) referred to the diagnostic criteria for Somatic Symptom Disorder in DSM‑5, as follows:
A.One or more somatic symptoms that are distressing or result in significant disruption of daily life.
B.Excessive thoughts, feelings or behaviours related to the somatic symptoms or associated health concerns manifested by at least one of the following:
1.Disproportionate and persistent thoughts about the seriousness of one’s symptoms.
2.Persistently high level of anxiety about health or symptoms.
3.Excessive time and energy devoted to these symptoms or health concerns.
C.Although any one somatic symptom may not be continuously present, the state of being symptomatic is persistent (typically more than 6 months).
As noted above, there is no disagreement between the parties concerning the legal principles applicable to the current proceeding: the dispute between the parties is as to their application. By way of illustration: counsel for Mr Khan submitted that the question of whether Mr Khan suffered from chronic pain syndrome was a mandatory relevant consideration, while senior counsel for Visy submitted that it was not. Counsel for Mr Khan submitted that, in circumstances where the Panel had not expressly rejected Mr Khan’s account of his symptoms, the Panel in its reasons was required to reconcile Mr Khan’s presentation with its conclusion that he suffered no physical or psychological injury. Senior counsel for Visy disagreed, submitting that the Panel was not obliged, in its reasons, to specifically address alternative hypotheses with which it disagreed.
It is not necessary for the purpose of these reasons to refer to each of the authorities referred to by the parties in their written submissions. Rather, a summary of the key principles follows.
In relation to the question of whether an administrative decision maker such as the Panel has failed to take into account a mandatory relevant consideration such as to amount to ultra vires administrative action,[7] the key principles of relevance to the current application are as follows:
[7]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39.
(a) the factors which must be taken into account must be determined by reference to the relevant statute;
(b) a decision maker is only obliged to take into account a relevant consideration if the outcome is materially affected;[8]
[8]Ibid, [40].
(c) the plaintiff carries the burden of establishing that there was a failure to consider a relevant consideration;[9]
[9]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18.
(d) the Panel’s reasons must be given a beneficial construction;[10]
[10]Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271.
(e) in Ryan v The Grange at Wodonga Pty Ltd (‘Ryan’),[11] which is accepted to be the leading Victorian authority concerning what do and do not amount to mandatory relevant considerations, the Court of Appeal held that:
[11][2015] VSCA 17, [60].
[The] Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration;
(f) the Panel must give ‘meaningful consideration’ to a relevant matter;[12] and
[12]Ibid [71].
(g) in Moyston Court Fisheries Pty Ltd v Dr John Malios,[13] J Forrest J stated:
[13][2007] VSC 518 [47]. While this decision pre-dates the decision of the Court of Appeal in Ryan, this summary is regularly referred to in single judge decisions in this Court.
In my view, the statutory framework established by the Act in respect of medical questions leads to it being impliedly necessary for a medical panel to take into account the following considerations:
(a)Its own examination of the worker (including any history provided and evidence as to any investigations, test, studies or the like) and its opinion.
(b)The document required under s 65(6A) of the Act identifying the alleged injury and the agreed facts and disputed facts.
(c)The “material” provided by the referring body or person, including the documents relating to the medical question as provided: s 65(6B).
(d)The medical question or questions asked.
A helpful summary of the implications of the Court of Appeal’s decision in Ryan[14] is to be found in the decision of Riordan J in Omerasevic v Kotzman (‘Omerasevic’)[15] as follows (omitting citations):
[14][2015] VSCA 17.
[15][2016] VSC 383. This analysis was, while judgment in this proceeding was reserved, referred to with approval by J Forrest J in Karabinis v Bendrups & Ors [2017] VSC 648, [55]-[56].
In my opinion, a proper reading of the decision of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd, discloses Neave JA’s analysis as follows:
(a)A medical panel is bound to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred questions.
(b)The fundamental issue arising from the referral material, in the circumstances of that case, was whether the worker, by returning to her work duties, would aggravate her pre‑existing shoulder injury.
(c)The reasons of the medical panel did not deal with the fundamental issue of ‘whether the appellant’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition’.
(d)Her Honour inferred that the medical panel ‘did not take account of the fundamental issue – presumably on the basis that:
(i)it was not expressly referred to in the reasons; and
(ii)if such a fundamental issue had been considered, one would expect that it would have been referred to.
(e)The medical panel, by failing to deal with the fundamental issue, for the purpose of answering Question 2, had failed to fulfil its statutory function of forming its opinion on the medical question referred to it. Speaking colloquially, I infer her Honour as concluding that, given its significance to the referred question, the medical panel had failed to have regard to the elephant in the room. This constituted jurisdictional error.
The following should also be noted:
(a)Although the Court of Appeal overturned the decision of Kyrou J below, this was not because Kyrou J considered that a failure to consider this fundamental issue was not a jurisdictional error. Rather Kyrou J did not draw the inference that the medical panel failed to consider this fundamental issue.
(b)It is apparent that Neave JA considered the medical panel would not have made a jurisdictional error if, after considering the matter, it had reached its own conclusion even if it had not resolved the differences between the views of the various practitioners.
As for the question of whether the Panel’s reasons are adequate, the starting point is the statement of the High Court in Wingfoot, as follows:
The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[16]
[16](2013) 252 CLR 480, [55].
Further, the High Court stated that the standard of reasons required to be given by a medical panel is less onerous than that imposed upon a judicial decision maker, as follows:
A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[17]
[17]Wingfoot, [56].
Other principles relevant to the current proceeding include:
(a) the contents of the reasons may provide a basis to conclude that a medical panel has erred in law in forming its opinion, based upon what it did say, and what it did not say;[18]
[18]Wingfoot, [54].
(b) ‘pro-forma’ statements as to what a medical panel says it has taken into account will not be determinative;[19] and
(c) as stated by the Court of Appeal in Gruma Oceania Pty Ltd v Bakar:[20]
If the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply with [the WIRC Act].
[19]Milwain v Sim [2009] VSC 75, [53], cf Maribyrnong City Council & Anor v Malios & Ors [2014] VSC 452, [48], and Vellios Electrical Contractors Pty Ltd & Anor v Barlowe & Ors [2014] VSC 664, [83]..
[20][2014] VSCA 252, [47].
The key contentions advanced on behalf of Mr Khan and Visy were summarised briefly in paragraphs 20 and 21 above. Further details concerning the submissions made by the parties follow.
The gravamen of the submissions made on behalf of Mr Khan is that the reasons do not refer to chronic pain syndrome, or deal with the possibility that Mr Khan may have suffered from that condition, notwithstanding the fact that the issue was squarely raised in many of the medical reports provided to the Panel (including a report prepared by Dr Entwisle, a psychiatrist engaged by Visy to conduct a medico-legal examination of Mr Khan), and the submissions provided to the Panel on behalf of Mr Khan. Mr Khan’s submissions dated 25 May 2016 (summarised at paragraph 15 above) ‘dealt expressly, and repeatedly, with the issue of a ‘chronic pain syndrome’ (either organic or psychological) consequential on the Plaintiff’s accepted left wrist and right shoulder injuries’.
Mr Khan’s written submissions identified the following reports as supporting a diagnosis that Mr Khan suffered an organically based pain syndrome:
(a) Mr Charles Flanc (Vascular and General Surgeon) dated 1 February 2016; and
(b) Dr Joseph Slesenger (Specialist Occupational Physician) dated 28 July 2015;
(c) Mr Stephen Tham (surgeon) dated 27 November 2009.
Further, the following psychiatrists diagnosed Mr Khan as suffering from a psychologically based chronic pain syndrome (albeit not always expressly described as such):
(a) Dr Geoffrey Hogan in his report dated 27 July 2015;
(b) Dr Paul Korman in his report dated 7 July 2015;
(c) Dr Sirekha Vadasseri in his report dated 4 September 2013; and
(d) Dr Nathar in his report dated 15 May 2011.
Mr Khan’s submissions noted that references to ‘chronic pain’ or ‘chronic pain syndrome’ were also made by Ms Emma Bastic (physiotherapist), Dr Mirranay (general practitioner), Dr Hamimi, and Dr Mark Patrick (rheumatologist). Counsel for Mr Khan noted that the statements of Neave JA in Ryan[21] did not limit the materials which might identify mandatory relevant considerations to a party’s pleading or particulars of injury.
[21][2015] VSCA 17, [60].
Mr Khan submitted that the submissions made by Visy to the Panel invited the Panel to find that Mr Khan’s reporting of his symptoms should be disbelieved. However, no finding one way or another was made by the Panel.
The written submissions filed and served on behalf of Mr Khan stated further, as follows (omitting citations):
The Panel’s Reasons, however, do not contain any finding that the actions of the Plaintiff in the DVDs cast doubt on the veracity of the Plaintiff’s subjective account of his pain or disability, or that he should be disbelieved for some other reason.
Rather, the Panel stated in the paragraph immediately following its consideration of the DVD material that:
The Panel is of the opinion that the mere continuation of subjective complaints or symptoms in the absence of a consistent history and concordant objective signs does not equate to any continuing physical (or psychiatric) conditions.
This statement assumes the veracity of the Plaintiff’s experience of his ‘subjective complaints or symptoms’, but suggests that ‘a consistent history and concordant objective signs’ were necessary for the Panel to conclude the Plaintiff to have any ‘continuing physical (or psychiatric condition)’. The statement is perplexing for two reasons.
1.First, the essence of a chronic pain syndrome condition is that the sufferer experiences ‘subjective complaints or symptoms’ in the absence of an objective, or organic, cause.
2.Secondly, in the context of the Plaintiff’s traumatic personal history, personality and his lack of fluency in the English language, the absence of a ‘consistent history’ could not rationally support a conclusion that the Plaintiff had no ‘continuing physical (or psychiatric) condition’, at least in the absence of a finding that the Plaintiff’s account of his symptoms should not be believed.
In short, it was incumbent on the Medical Panel to deal with the chronic pain syndrome issue, and for its Reasons to sufficiently reveal its reasoning on that issue in circumstances where the Plaintiff’s experience of his severe symptoms of pain was not discounted by the Panel and those symptoms had continued unabated since the dates of the accepted injuries.
Counsel for Mr Khan submitted that Visy’s reliance upon extensive evidence concerning certain psychological conditions described in DSM-IV and DSM-5 demonstrates the inadequacy of the Panel’s reasons, as the additional material was considered to be necessary to fill the gaps in the Panel’s reasoning process.
Counsel relied upon the decision of John Dixon J in Tan v Kotzman & Ors (‘Tan’)[22] in support of the proposition that, in failing to reconcile its description (and apparent acceptance) of Mr Khan’s subjective symptoms of pain with its unexplained findings that he suffered from no physical or psychological condition, the Panel had failed to take into account a mandatory relevant consideration, or, alternatively, had not provided adequate reasons.
[22][2016] VSC 482.
In the written outline of submissions filed on behalf of Visy, Visy made the following submissions with respect to the issue of whether the Panel had failed to take into account relevant considerations:
(a) once again, the chronic pain syndrome issue was not a mandatory relevant consideration, and as such, the Panel was not bound to take it into account. Chronic pain syndrome was not referred to in either the medical questions referred to the Panel, Mr Khan’s draft Statement of Claim, Mr Khan’s particulars of injury, or the joint ‘notice of particulars’ provided to the Panel pursuant to s 304 of the WIRC Act;
(b) Visy submitted that:
In any event, it is apparent from the Panel’s reasons that it did consider generally whether the Plaintiff had a pain disorder which did not fit within the other medical terminology. Specifically, the Panel:
(a)Obviously considered, and then concluded, that there were no signs of complex reginal pain syndrome in either upper extremity: page 6 of the Reasons;
(b)Opined that the mere continuation of subjective complaints or symptoms in the absence of a consistent history and concordant signs does not equate to any continuing physical (or psychiatric) conditions: page 7 of the Reasons. The Panel was entitled to come to this view in its expert opinion, notwithstanding the Plaintiff’s subjective complaints of ongoing pain;
(c)Found that the Plaintiff’s adjustment disorder had resolved. The document ‘Highlights of Changes from DSM-IV TR to DSM‑5’ (exhibits SCS3 to the affidavit of Stephen Charles Scully, at page 11) states that:
In DMS-5, some individuals with chronic pain would be appropriately diagnosed as having symptom disorder, with predominant pain. For others, psychological factors affecting other medical conditions or an adjustment disorder would be more appropriate;
(c) Visy referred to the statement of Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis[23] (‘Stamboulakis’) to the effect that chronic pain is not amenable to a hard edged diagnosis;
[23][2007] VSCA 46.
(d) Visy noted that ‘chronic pain disorder’ does not appear in DSM‑5, as it did in DSM‑IV, having been replaced by a new category of mental disorders titled ‘somatic symptom and related disorders’;
(e) the Panel stated that it had considered the issues raised in both parties’ submissions, as well as the reports provided to the Panel. The Panel noted, correctly, that it was not required to select from, or adjudicate between the expert opinions before it;
(f) Mr Khan’s submission that ‘the essence of chronic pain syndrome is subjective complaints without objective or organic cause is asserted without any medical support for the proposition’;
(g) Visy rejected Mr Khan’s contention that the Panel was wrong, given Mr Khan’s personal circumstances, to rely upon the absence of a consistent history in forming its view that Mr Khan suffered no physical or psychological medical condition; and
(h) Visy rejected Mr Khan’s contention that the Panel incorporated the reasoning of the 2012 Panel and did not provide its own opinion.
In relation to Mr Khan’s contention that the Panel’s reasons were inadequate, Visy submitted, briefly, as follows:
(a) no explanation was provided in Mr Khan’s submissions as to how the reasons are adequate, in circumstances where the Panel was not obliged to consider the chronic pain issue;
(b) even if the Panel was required to consider the chronic pain issue, the Panel explained how it had considered the issue ‘through different prisms’; and
(c) the reasons of a medical panel should not be read ‘pedantically’.
In his oral submissions at the hearing, senior counsel for Visy emphasised the importance of there being some degree of precision in the language used by a medical panel given its function under the relevant legislative scheme: if the Panel specifies a condition, whether physical or psychiatric, it must be a compensable injury.[24] Accordingly, a medical panel must be able to reach a formal and accepted diagnosis: and not simply refer to a vague label such as chronic pain syndrome, or a ‘lawyers’ label’, as senior counsel for Visy described it. In any event, the Panel did have regard to Mr Khan’s complaints of pain.
[24]See Kakae v Wetspot Consolidated Pty Ltd& Ors [2016] VSC 271, [52]-[53].
Senior counsel submitted that not everything that is contained in a party’s submissions rises to the level of a mandatory relevant consideration. He rejected Mr Khan’s contention that the chronic pain issue was a central issue between the parties: many of the medical reports focussed upon whether Mr Khan suffered from a major depressive disorder, or an adjustment disorder with anxiety and depression. It could not be said that all of the doctors were united in a diagnosis of a chronic pain disorder.
Senior counsel for Visy referred to the decision of Cavanough J in Vellios Electrical Contractors Pty Ltd & Anor v Barton & ors[25] in support of his contention that the Panel was not required to address every matter referred to in a party’s submission: the submissions in toto are a mandatory relevant consideration, but not every matter contained within them.
[25][2014] VSC 664, [79].
In relation to the question of whether the Panel had provided adequate reasons, senior counsel for Visy rejected the contention advanced by counsel for Mr Khan that the Panel was obliged to explain or ‘reconcile’ Mr Khan’s symptoms or presentation with ultimate findings: the current case is not on all fours with Tan,[26] as in that case, the medical panel was specifically asked to consider whether the worker suffered from a chronic pain disorder. He referred to the decision of the High Court in Wingfoot,[27] which expressly rejected the proposition that a medical panel was obliged to produce reasons to the ‘judicial standard’, that is, to explain to the losing party why it lost.
[26][2016] VSC 482.
[27](2013) 252 CLR 480, [55]-[56].
Finally, senior counsel for Visy submitted that:
the Panel has gone about its task in an absolutely conventional fashion, and reasoned in an absolutely conventional fashion.
In Mr Khan’s written outline of submissions in reply, counsel for Mr Khan addressed the following contentions advanced on behalf of Visy:
(a) the chronic pain issue was not a mandatory relevant consideration;
(b) the Panel did in fact consider the chronic pain issue; and
(c) the reasons provided by the Panel were adequate.
In relation to (a) above, counsel for Mr Khan submitted:
(a) given that a significant number of the reports provided to the Panel contained such a diagnosis, and Mr Khan’s submissions raised the issue ‘expressly and repeatedly’, the issue was ‘fundamental’ in the sense identified by Neave JA in Ryan; [28]
(b) referring to Riordan J’s analysis of Neave JA’s statements in Ryan[29] in Omerasevic,[30] the issues required to be considered by a medical panel are not limited to those referred to in the medical questions, the statement of claim and/or the particulars of injury and agreed facts; and
(c) a medical panel must give genuine consideration to the fundamental or substantial issues raised by the referral material relevant to the medical questions.
[28][2015] VSCA 17.
[29]Ibid.
[30][2016] VSC 383, [95].
As for the issue of whether the Panel in fact considered the chronic pain issue, counsel for Mr Khan submitted as follows:
(a) the fact that the Panel referred to the absence of any signs of complex regional pain syndrome does not assist Visy, as this is a distinct condition of the nervous system from chronic pain syndrome;
(b) the Court cannot infer from the Panel’s finding that Mr Khan’s adjustment disorder had resolved that the Panel considered, and rejected, any diagnosis of chronic pain syndrome; and
(c) the Panel’s statement that:
… the mere continuation of subjective complaints or symptoms in the absence of a consistent history and concordant objective signs does not equate to any continuing physical (or psychiatric) conditions
remains unexplained, given that implicit in this statement is an acceptance of Mr Khan’s subjective perception of pain.
In relation to the question of whether the Panel had provided adequate reasons for reaching the conclusions that it did, Mr Khan’s written outline of submissions stated as follows (omitting citations):
The Defendant complains that the Plaintiff has failed to explain how the Panel’s reasons were inadequate. The explanation is to be found in the gaps identified by the Plaintiff in the Medical Panel’s reasons and its failure to adequately explain how it addressed the chronic pain syndrome issue.
At paragraph 39, the Defendant asserts that the Panel “explained how it had considered the issue of chronic pain through different prisms”.
The Panel gave no such “explanation”.
The Defendant’s submission amounts, in substance, to an invitation to the Court to make good the gaps in the Panel’s reasons and/or to assume that the Panel’s references to CRPS and “adjustment disorder” should be read as encompassing the Panel’s findings on the chronic pain syndrome issue.
In Richter v Driscoll [2016] VSCA 142 at [129]–[132], Ashley and Kaye JJA (with whom Osborn JA agreed) indicated that a court reviewing the reasons of a Medical Panel should eschew speculative ‘gap-filling’ and inferences lacking a proper evidential foundation as disclosed in the reasons. Those observations were subsequently applied by Dixon J in Tan v Kotzman [2016] VSC 482 at [77] and reflect the limited nature of the Court’s jurisdiction on judicial review. As Mortimer J stated in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 at [110]:
Where there are reasons given by a repository of the power, which are not sufficient to provide an intelligible justification, for a supervising court to engage in finding and applying facts and reaching its own conclusions about how and why, through a different reasoning process, the exercise of power could be justified is tantamount to a re-exercise of the power by the supervising court and in my opinion crosses the line, well established in Australian law, between a review of the exercise of a power and the exercise of it, …
In the present case it is not clear from the Panel’s reasons whether the Panel:
considered the chronic pain syndrome issue at all;
considered the chronic pain syndrome issue and rejected it;
subsumed its consideration of the chronic pain syndrome issue within its consideration of adjustment disorder (as the Defendant speculates);
alternatively, considered the chronic pain syndrome under the “somatic disorder” and rejected it; or
reasoned in some other manner.
Ultimately the Court is left with the Panel’s acceptance of Plaintiff’s subjective experience of symptoms of pain and its conclusion that the Plaintiff is not suffering from any compensable injury.
To reach that conclusion the Panel’s path of reasoning must have included one or more of the steps identified in paragraph 22 above.[31] Consistently with the principles set out in Wingfoot, those steps ought to have been disclosed in the Panel’s Reasons.
[31]See Denham v Consolidated Herd Improvement [2014] VSC 520 at [38], [41]–[42] (Forrest J) and the application of Forrest J’s analysis in Mui Tan at [50]–[53].
In her oral submissions, counsel for Mr Khan rejected Visy’s contention that chronic pain syndrome was just a ‘lawyers’ label’, it having been referred to in a number of the medical opinions. One could speculate as to whether the Panel considered that chronic pain syndrome was not an available diagnosis, or a compensable condition, but engaging in such speculation is inconsistent with the reasoning in Richter v Driscoll.[32]
[32][2016] VSCA 142, [129]-[132].
In my view, while the matter is finely balanced, the Panel, in failing to squarely address the submissions and evidence advanced by Mr Khan to contend that he is suffering from chronic pain syndrome, or, alternatively, using the language of DSM‑5, some somatic symptom disorder or related disorder, has failed to take into account a mandatory relevant consideration. I accept that the Panel has concluded a careful review of the medical evidence, and reported upon a thorough examination of Mr Khan’s physical and psychological conditions, including Mr Khan’s recounting of his subjective symptoms of pain. It is possible to infer from the Panel’s statement that ‘the mere continuation of subjective complaints or symptoms in the absence of a consistent history and concordant objective signs does not equate to any continuing physical (or psychiatric) conditions’ that the Panel believed that Mr Khan was fabricating or exaggerating his symptoms of pain: however, nowhere in the reasons does the Panel say that it did not accept Mr Khan’s account of his symptoms. As noted by counsel for Mr Khan in her submissions, if I were to infer that the Panel disbelieved Mr Khan’s reporting of his symptoms of pain, I would be engaging in impermissible ‘gap filling’.
Further, while I note the caution expressed in DSM‑5 regarding the use which should be made of DSM‑5 by non‑medically qualified people, including legal practitioners and courts, my review of the extracts of DSM‑IV and DSM‑5 exhibited to Mr Scully’s affidavits supports the statements made by Maxwell P in Stamboulakis[33] to the effect that disentangling the physical and psychological causes of reported pain is quite complex. It is apparent from the commentary in both DSM‑IV and DSM‑5 that the absence of any objective symptom or organic causes of pain, in circumstances where the Panel has not expressly rejected Mr Khan’s account of his symptoms is not the end of the matter, and the Panel was bound to consider whether Mr Khan’s symptoms reflected a recognised psychiatric disorder, whether labelled as chronic pain syndrome, or by some other descriptor.
[33][2007] VSCA 46.
The observations of Maxwell P in Stamboulakis,[34] while made in a different context, being the need to separate the psychological or psychiatric consequences of an injury from the physical consequences of an injury, illustrate the difficulties facing a medical panel in making an assessment of Mr Khan’s medical condition, and whether he suffers from a compensable injury. Maxwell P stated as follows:
Much of the difficulty for the Court lies in the imprecision of clinical assessments. Rarely does a medical opinion attempt to apportion pain and suffering between organic and psychological causes. This suggests that any such apportionment, let alone a precise apportionment, is a difficult clinical exercise in itself. That the clinical assessment of pain is a complex task is well-documented:
“Despite recent advances in the understanding of the neurophysiology of the human pain response, clinical pain remains one of the greatest challenges to the efficacy and ethics of medical practice. Clinicians confronted with patients who claim to suffer from pain must differentiate those who need analgesia from malingerers, drug-seekers, or those in need of some form of therapy. Because deception is logically possible and because pain can often lack a readily apparent cause, many clinicians routinely face doubt about the pain status of a patient.”[35]
Part of the difficulty also lies in the use – often interchangeably – of imprecise terms such as “chronic pain syndrome”, “chronic pain adjustment disorder”, “chronic illness behaviour”, “learned pain behaviour”, “psychological embellishment” and “functional overlay”. …[36]
[34][2007] VSCA 46. Of course, this matter was decided many years before the publication of DSM-5.
[35]Ibid, [3], quoting Ruth J Cronje and Owen D Williamson, ‘Is Pain Ever Normal?’ (2006) 22 Clinical Journal of Pain 692.
[36]Ibid, [4].
Of course, in the current case, the Panel was not required to undertake the task of separating the physical consequences of an injury from the psychological consequences of an injury. It merely had to determine whether there were any physical and/or psychological consequences of the agreed injuries, and if there were, they amounted to a compensable condition. The Panel’s determination that Mr Khan suffered from no physical medical condition as a result of his injuries was unequivocal, and difficult to quibble with. However, in circumstances where the chronic pain issue was squarely raised by Mr Khan’s submissions, and the Panel did not expressly state that they disbelieved Mr Khan’s account of his symptoms, it was incumbent upon the Panel to explore more fully whether Mr Khan’s symptoms had a psychological basis. That the Panel did so was not evident from the reasons, and I am entitled to draw the inference that the Panel did not actively or meaningfully consider the matter.
In my view, that chronic pain syndrome is not, or at least is no longer, a recognised disorder according to DSM-5 is not fatal to Mr Khan’s application. Having reviewed the voluminous medical material put before the Panel, it appears that Maxwell P’s lament about the looseness of language used in such reports has not been made redundant by the passage of time since the decision in Stamboulakis.[37] In that regard, I also note the observations of Ginnane J in St Joseph’s Regional College v Longham & Ors[38] regarding the adequacy of reasons provided by a medical panel:
There is then the question of whether the second Panel in its reasons explained its diagnosis, which was ‘dissociative disorder not otherwise specified and dissociative fugues’. Although this diagnosis does not exactly adopt the title of any combined condition described in the DSM-IV or DSM-5, it clearly is related to those diagnoses discussed by Dr Nathar and Dr Serry and is similar to those described in the DSMs. In my opinion, the second Panel did not err or fail to explain how it reached its diagnosis as the Panel failed to do in Clarke’s Case. In the paragraph of its reasons that I have set out above and in other paragraphs to which I have previously referred, it concluded that Mr Longham was suffering from a dissociative disorder not otherwise specified and dissociative fugues. It gave reasons for that conclusion, which brought the disorder within the DSMs’ descriptions of the particular disorders to which it referred. As previously stated, it also considered, but rejected, the differential diagnosis of malingering.
True it is that the second Panel did not refer specifically to the criteria in the DSM-IV or DSM-5 but neither did the psychiatrists, Dr Nathar or Dr Serry, both independent psychiatric examiners, who made a diagnosis of dissociative fugue or recurring episodes of fugues. Rather, they referred to features of Mr Longham’s condition that brought it within those diagnoses. I do not understand the passage in Clarke’s Case, which I have set out above, to require anything more than a statement of matters that would satisfy the diagnosis reached and the basis for the Panel’s conclusion. The second Panel did that.[39]
[37][2007] VSCA 46.
[38][2017] VSC 657 (delivered while judgment in this proceeding was reserved).
[39]Ibid, [103]–[104] (citations omitted).
What is apparent from the above is that it is not necessary for a medical panel to adhere precisely to the diagnostic criteria and diagnostic descriptors set out in DSM-5 or its predecessors. However, it was required, given the submissions on behalf of Mr Khan, to assess whether Mr Khan, given his symptoms and presentation, suffered from some kind of somatic pain disorder, whether described as chronic pain syndrome or in some other way. It was not sufficient, as contended for on behalf of Visy, to simply recite Mr Khan’s ‘constellation of symptoms’ and conclude he was suffering from no psychological or psychiatric condition. Notwithstanding the changes made between DSM-IV and DSM-5, it is tolerably clear, even to a layperson, that DSM-5 recognises that people experiencing and reporting chronic pain may have a psychological disorder. The fact that Mr Khan’s submissions and the expert reports relied upon by him use a now defunct descriptor does not detract from the requirement for the Panel to consider whether his symptoms reflect an underlying psychological (and possibly compensable) disorder.
Further, I agree that the submissions made on behalf of Mr Khan to the Panel squarely raised the chronic pain issue. The authorities make it clear that if the materials relied upon by a party, which would ordinarily include their written submissions, clearly raise a material issue, a medical panel must take those matters into account. This is not a case where the chronic pain issue was ‘buried deep within the hundreds of pages of the referral material’.[40] I accept that it is not incumbent upon a medical panel to take into account all matters in the referral materials, but the chronic pain issue was front and centre in Mr Khan’s submissions. I note that Visy did not reply to Mr Khan’s submissions, as no doubt they would have taken the opportunity to do if it contested whether chronic pain syndrome was a compensable injury, or whether Mr Khan’s reporting of his symptoms and his contention that he was suffering from chronic pain syndrome was not available or supported by the evidence.
[40]Omerasevic v Kotzman [2016] VSC 383, [105], where an issue said to have been a mandatory relevant condition was not the subject of any express submission to the medical panel.
Finally, I agree with the submissions of counsel for Mr Khan that there are significant similarities between the current case and the decision in Tan.[41] In that case, the plaintiff had commenced a proceeding in the Magistrates’ Court alleging she had suffered, among other things, ‘chronic pain and consequential psychological injuries’ caused by a fall at work. The medical questions referred to the medical panel also referred specifically to ‘chronic pain syndrome’, notwithstanding the fact that the referral was made in 2015 (that is, after the publication of DSM-5). John Dixon J held that the medical panel failed to provide adequate reasons because it was unclear as to whether the medical panel:
(a)accepted that the plaintiff suffered pain as she described, concluded that the plaintiff suffered from the alleged injuries to the neck and/or shoulders, but found such pain to be unrelated to her work duties and thus warranted no further consideration; or
(b)did not accept that the plaintiff was in fact suffering pain in her neck and shoulders, and accordingly, concluded that she did not suffer from the alleged injuries at all.
[41][2016] VSC 482.
His Honour went on to say:
Identification of the alternative chosen by the Panel would be an exercise in ‘speculative gap filling.’ It is not readily apparent why, if the Panel reasoned by the former course, it found such pain to be unrelated to the plaintiff’s work duties. Equally it is not apparent why, if the Panel reasoned by the latter course, it was selective in its assessment of the examination of the plaintiff’s pain, both by itself and by others. The generic dismissal of all injuries other than that to the lower back cannot be determinative in showing in these circumstances that the Panel properly considered all relevant considerations that it was required to consider. … [42]
[42]Ibid, [42].
Further, in response to the plaintiff’s contention that the medical panel had failed to address a question referred to it, his Honour stated:
The Panel’s failure to reason to an express conclusion from its findings implies that it did not consider the question that it was asked to determine. In the circumstances, the panel’s conclusion in respect of a chronic pain syndrome required reasoning. In turn, the failure to express a path of reasoning leaves unanswered, possibly unconsidered, whether the reported pain was not caused, even in part, by her employment and/or by the compensable lower back injury, which is discussed further in due course.[43]
[43]Ibid, [52].
Of course, each case must be determined on its particular facts and circumstances, but the following matters arise out of the decision in Tan: [44] first, notwithstanding the submissions advanced on behalf of Visy to the effect that chronic pain syndrome is not a recognised compensable injury, as recently as 2015 it was accepted as a disorder that required an opinion from a medical panel, and secondly, the failure of a medical panel to specifically address a question referred to it amounted to an error of law. I accept that, in the current case, there was no reference to chronic pain syndrome in the questions referred to the Panel, the particulars of injury provided pursuant to s 304 of the WIRC Act, or Mr Khan’s draft statement of claim. However, the questions referred to the Panel were, in contrast with the questions which were the subject of the decision in Tan, expressed in relatively broad terms, and in any event, the chronic pain issue was referred to quite frequently in Mr Khan’s submissions, such that, consistent with the statements in Ryan,[45] the Panel was bound to deal with it.
[44][2016] VSC 482.
[45][2015] VSCA 17.
Having found that the Panel has failed to take into account a mandatory relevant consideration, it is not necessary for me to deal in any detail with Mr Khan’s contention that the Panel failed to provide adequate reasons. In any event, this question is essentially bound up with the chronic pain issue: given that the Panel was bound to consider and make findings concerning that issue, if it in fact did so, that consideration, and any conclusion of the Panel concerning that issue was not disclosed in the reasons.
I note that the grant of certiorari is at the discretion of the Court. However, Visy did not submit that in the event that an error on the part of the Panel was established, there is some other reason why relief ought not be granted, and no such reason is discernible from the materials. This is not a case where the medical evidence all points in one inevitable direction such that any remitter would serve no useful purpose: indeed, as noted by senior counsel for Visy, ‘the doctors are all over the place’.
Finally, there remains the question of whether the questions ought to be remitted to a differently constituted medical panel. No submissions were made on this matter. The position was summarised by Riordan J in Omerasevic[46] as follows:
An order for remittal to another medical panel requires that good reason for doing so be established. Good reason can arise from strongly expressed views, adverse findings such as credit or apprehended bias.
[46][2016] VSC 383, [113].
Once again, the matter is finely balanced. This is not a case where I have found that the Panel had acted unreasonably, or that its decision was irrational or illogical. The reasons disclose that the Panel approached its task in a thorough and professional manner. However, the reasons also disclose that at least some members of the Panel took an understandably dim view of the disrespectful manner in which Mr Khan conducted himself during the course of the examination. While I will seek further submissions on the matter, my tentative view is that the questions ought to be referred to a differently constituted medical panel.[47]
[47] Following delivery of these reasons, the parties agreed that the matter should be referred to a differently constituted medical panel.
SCHEDULE OF PARTIES
S CI 2017 00686
BISMILLAH KHAN Plaintiff - and - ASSOCIATE PROFESSOR EVANGE ROMAS Firstnamed Defendant DR MARCUS WATSON Secondnamed Defendant MR JOHN BOURKE Thirdnamed Defendant DR JOHN CRONIN Fourthnamed Defendant DR DIANE NEILL Fifthnamed Defendant VISY PAPER PTY LTD Sixthnamed Defendant
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