La'Brooy v Jensen
[2021] VSC 89
•3 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03253
| CARLYLE LA’BROOY | Plaintiff |
| v | |
| DR STEVEN JENSEN | First Defendant |
| and | |
| PETER WILDE | Second Defendant |
| and | |
| WOOLWORTHS GROUP LTD | Third Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July 2020 |
DATE OF JUDGMENT: | 3 March 2021 |
CASE MAY BE CITED AS: | La’Brooy v Jensen |
MEDIUM NEUTRAL CITATION: | [2021] VSC 89 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel has committed a jurisdictional error in determining whether the plaintiff has a pre-existing impairment – Where medical panel has failed to have regard to a relevant factual matter – Medical panel constructively failed to perform its function – Medical panel committed jurisdictional error – Decision quashed – Wrongs Act 1958, s 28LL(3) – Chang v Neill [2019] VSCA 151, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P Czarnota | LHD Lawyers |
| For the First and Second Defendants | No appearance | Russell Kennedy |
| For the Third Defendant | M Kenneally | HBA Legal |
HIS HONOUR:
The plaintiff, Carlyle La’Brooy, suffers from a hip and back injury which he alleges was caused when, on 10 May 2018, he fell after tripping on a writing pad which was on the ground at the Big W store at Pakenham (the May 2018 incident). The store was operated by Woolworths Group Ltd (Woolworths), the third defendant in the proceeding.
On 5 February 2019, Dr Thomas Kossmann, orthopaedic surgeon, certified pursuant to s 28LN of the Wrongs Act 1958 (the Act) that the degree of impairment resulting from Mr La’Brooy’s injury satisfied the ‘significant injury’ threshold level. In an earlier report dated 18 January 2019, Dr Kossmann had assessed Mr La’Brooy’s whole person impairment (which included assessments for the lumbar spine and left hip) at seven per cent.
On 27 March 2019, pursuant to Part VBA of the Act, Woolworths referred a question to a medical panel comprised of the first and second defendants (the Panel). After examining Mr La’Brooy on 13 May 2019, the Panel issued a Certificate of Determination with Reasons for Determination on 2 June 2019 (the reasons).
The question referred to the Panel and its answer were as follows:
Q.Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
A.The Panel determined that the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim does not satisfy the threshold level.
By originating motion dated 17 July 2019, Mr La’Brooy seeks judicial review of the Panel’s opinion. At hearing, Mr La’Brooy advanced the following five separate, albeit overlapping, grounds:
Ground 1The medical panel committed jurisdictional error by:
(i)failing to properly construe and apply s 28LL(3) of the Act; or
(ii)alternatively, improperly having regard to irrelevant considerations,
in finding and disregarding, the existence of a pre-existing, longstanding impairment to the lumbar spine from unrelated injuries or causes which required ongoing treatments, where no such impairment existed.
Ground 2:The medical panel committed jurisdictional error by making a fundamental mistake of fact as to a central issue in determining the answer to a referred medical question, namely the existence of pre-existing impairment to the lumbar spine from unrelated injuries or causes, when no such impairment existed.
Ground 3:The medical panel committed jurisdictional error by asking itself the wrong question, as to the appropriate ‘threshold level’ of ‘Significant Injury’ to apply, in assessing combined whole person impairment arising from multiple injuries, one of which was the spine, that is, it applied a ‘more than 5%’ threshold, when it was required to apply a ‘5% or more’ threshold;
Ground 4:The medical panel failed to accord natural justice or procedural fairness, failing and/or depriving the plaintiff of a further opportunity to comment on its view of the evidence before it, being the existence of pre-existing impairment to the lumbar spine from unrelated injuries or causes, before rendering its determination;
Ground 5:That the medical panel’s determination was tainted by legal unreasonableness, irrationality or illogicality, in that its determination was made in the absence of any medical evidence supportive of its finding as to the existence of pre-existing impairment to the lumbar spine from unrelated injuries or causes, and made where there was evidence any previous lumbar spine condition had long resolved.
Background
Under oath, Mr La’Brooy attested to the truth of the contents of two affidavits filed in the proceeding and was cross-examined by counsel for Woolworths. An affidavit sworn by Mr La’Brooy’s son, Yohan, was also received into evidence.
Mr La’Brooy is 76 years of age. In about 1992, he suffered a myocardial infarct and required triple bypass surgery. He also has a history of type II diabetes.
In about 1997, Mr La’Brooy injured his lower back when he fell down some stairs (the 1997 injury). As will become apparent, the consequences of the 1997 injury are central to the Panel’s identification of pre-existing lumbar spine impairment.
Mr La’Brooy started his own courier driving business in about 1999. He gave evidence that he worked as a courier delivery driver on a full-time, unrestricted basis and that he also employed two drivers to perform courier delivery services. As part of his day-to-day duties as a courier driver, Mr La’Brooy was required to sit and drive for prolonged periods each day, to stand and walk for prolonged periods, and to bend, squat and lift while manually handling, loading and unloading goods which weighed up to about 24 kg.
On about 31 July 2005, La’Brooy’s right leg was amputated following medical advice that he had had a cancerous tumour in his leg. As a consequence, he was unable to continue working as a courier delivery driver and he handed over control of his business to his son. Mr La’Brooy has not worked since. His evidence was that he ceased work as a result of the amputation, not because of any ongoing back injury, pain or impairment.
The Panel’s statutory task
Section 28LE of the Act precludes the recovery of damages for non-economic loss in respect of an injury to a person caused by the fault of another person, unless the person injured ‘has suffered significant injury’. The term ‘significant injury’ is defined in s 28LF of the Act.
Upon the referral to the Panel of a question pursuant to Division 5 of Part VBA of the Act, the Panel’s statutory task was to determine, if possible, Mr La’Brooy’s degree of ‘impairment’ and state if that impairment was above or below the ‘threshold level’.[1]
[1]Section 28LZG(4) of the Act.
The assessment of Mr La’Brooy’s degree of impairment was to be made in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (the AMA Guides).[2] ‘Impairment’ under the AMA Guides is defined to mean ‘the loss, loss of use, or derangement of any body part, system or function’.[3] The AMA Guides also state that impairments:[4]
… are defined as conditions that interfere with an individual’s “activities of daily living”, some of which are listed in the Glossary (p. 315). Activities of daily living include, but are not limited to, self-care and personal hygiene; eating and preparing food; communication, speaking, and writing; maintaining one’s posture, standing and sitting; caring for the home and personal finances; walking, travelling and moving about; recreational and social activities; and work activities.
[2]See ss 28LB and 28LH(1)(a) of the Act.
[3]Glossary, page 315.
[4]Chapter 1, Section 1.1, page 1.
The ‘threshold level’ is defined in s 28LB of the Act. Relevantly, the threshold level is more than five per cent for an injury, and five per cent or more for spinal injuries.
In making its assessment of Mr La’Brooy’s degree of ‘impairment’ and stating whether that impairment was above or below the ‘threshold level’, s 28LL(3) of the Act requires that ‘impairments from unrelated injuries or causes … be disregarded in making an assessment’.
The Panel’s reasons
The Panel’s reasons for concluding that the degree of Mr La’Brooy’s whole person impairment resulting from his injuries caused by the May 2018 incident did not satisfy the threshold level may be summarised as follows:
(a) After a brief introduction, the Panel set out the history of Mr La’Brooy’s injury as apparently outlined by Mr La’Brooy and from what appeared in the clinical records. In relation to the latter the Panel stated:
The Panel noted from the enclosed clinical records that he attended his general practitioner on 18 May 2018 complaining of low back pain radiating to the left buttock, left hip and thigh. Mr. La’Brooy stated that in fact the pain also radiated down towards his ankle. He said he was referred to physiotherapy on an extended care plan funded by Medicare. He said he attended for a few sessions and was ultimately advised to undertake water based exercises instead. He said he performed these exercises in his son’s spa. He said he derived some benefit from those exercises.
He also stated that some time later he underwent a corticosteroid injection to his back under CT guidance that he said provided about 30% improvement for a short time.
The Panel noted further from the clinical records that he was trialled on various opioid medications but Mr. La’Brooy stated that these did not help him.
He was also commenced on Pregabalin (Lyrica) and he continues to take 300mg morning and night of this agent, which the Panel noted from its knowledge, education and experience is used for neuropathic type pain.
(b) The Panel then set out Mr La’Brooy’s current symptoms as follows:
He told the Panel that he continues to suffer predominantly left sided back pain radiating through his left buttock to his posterolateral aspect of his thigh and into the lateral aspect of his calf onto the dorsum of his foot. The pain does occasionally radiate across to the right side of his lower back.
When specifically asked to describe the nature of his pain he said the back and buttock pain was neither dull nor sharp. He said the leg pain was like a sharp needle going right through his leg. There is associated left groin pain that he said comes and goes somewhat. He also described a tingling like sensation in his leg. He said the leg pain was generally worse than the back and buttock pain. He rated the leg pain as 7-8/10 in severity, and the buttock and back pain as about 6/10 in severity.
He described that as a result of his back and leg symptoms he has a walking tolerance of 80 metres before he is stopped by both leg and buttock pain and also a tingling sensation in his leg. He described no left leg weakness or heaviness with walking. He said he is able to sit in his favourite chair at home for about 20-30 minutes and then becomes fidgety, although he could remain sitting for a prolonged period. He said when he tries to sleep at night his left leg tingles and he has great difficulty getting comfortable. He told the Panel that he wakes every two hours or so and has to sit on the edge of the bed for a short time to alleviate his leg symptoms. He told the Panel that he is independent in activities of personal care, apart from the fact that his wife helps him to put on the below knee prosthesis he has had to use since having his right leg amputated through the knee in 2004. He described a positive sneeze impulse for his back pain.
He said he spends most of his time now sitting around at home. He said he can undertake light cooking. He does not undertake any cleaning activities as his wife takes care of these, apart from heavier cleaning activities, that a cleaner comes to perform for them every two weeks.
He said his back, left leg and left hip condition has not changed to any great extent over the last several months.
He also told the Panel that no other treatment is currently being offered to him.
(c) The Panel then referred to Mr La’Brooy’s past medical history. It noted ‘a past history of a back injury in 1997’ when he fell down some stairs and that Mr La’Brooy had said that ‘ultimately, after four to five years, his pain largely subsided’. The Panel continued:
To specific questioning he told the Panel that his back has continued to ‘play up’ from time to time following that 1997 injury. He told the Panel that since that injury, he has continued to require treatment every two months or so whereby he attended a physiotherapist and also undertook water based exercises. He told the Panel that the water based exercises ceased in about 2012 because he said he was much better at that stage. He told the Panel that when he attends the physiotherapy sessions every two months or so he is treated with massage to his back, and the exercises he had been prescribed previously would be checked and at times revised. He told the Panel that after the session of physiotherapy and revision of exercises, his pain was improved, but not completely resolved, although he was again able to cope reasonably well with his various activities, until an escalation in his persistent back related symptoms would require a further physiotherapy session or two.
The Panel noted an entry in the clinical notes of the Koo We Rup clinic dated 16 October 2015 an entry of severe low back pain referring to both legs, resulting in a referral to physiotherapy, that would tend to confirm this history.
(d) After referring to other aspects of Mr La’Brooy’s medical history which are not presently relevant and to his family history, the Panel then addressed his social history. It recorded that:
He said prior to the fall on May 2018 he was reasonably active. He said he would play gold approximately once per month with his sons. He would also regularly go fishing. He claimed he was a ‘good gardener’ and would enjoy pottering in his garden. He told the Panel that all of these activities have virtually ceased since his fall on 10 May 2018.
(e) The Panel then summarised its physical examination of Mr La’Brooy. It noted a CT scan of his lumbar spine which showed mild degenerative change and a CT scan of the left hip which showed changes consistent with mild osteoarthritis.
(f) The Panel then provided its diagnosis and conclusions. They:
… concluded that Mr La’Brooy is suffering from an aggravation of a previous dysfunction of the lumbar spine with referred radicular quality pain into the left lower limb, in the absence of objective evidence of radiculopathy on a background of a longstanding symptomatic lumbar spine dysfunction, with imaging evidence of bilateral L5 pars interarticularis defects causing the grade I anterolisthesis and L4-5 and L5-S1 degenerative changes resulting in severe bilateral L5, and moderate bilateral L4 foraminal stenosis.
The Panel also concluded that Mr La’Brooy is suffering from an aggravation of osteoarthritis of the left hip.
(g) The Panel then provided its evaluation of Mr La’Brooy’s permanent impairment in accordance with the AMA Guides.
(i) As to its assessment of his back injury, the Panel noted that the assessment was carried out in accordance with the Specific Procedures and Directions in section 3.3f on page 101 of the AMA Guides and that it assessed the appropriate whole person impairment for Mr La’Brooy’s lumbosacral spine in accordance with Tables 70 and 72 of Chapter 3. The Panel stated that, because the impairment attributable to the back could be assessed in accordance with the diagnosis-related estimates model (DRE), the range of motion model was not appropriate.
(ii) As to its assessment of the left hip injury, the Panel stated that the assessment was undertaken in accordance with the instructions in section 3.2 of Chapter 3 of the AMA Guides, with the active joint ranges of movement being measured using a goniometer in accordance with the instructions in the AMA Guides. The Panel stated that it considered that the most appropriate method to evaluate the degree of permanent impairment of the left hip was to use section 3.2e (range of motion) and Table 40. The Panel stated that it assessed the appropriate whole person impairment pursuant to this section and Table 40 of Chapter 3.
(h) The Panel then addressed the issue of apportionment. The Panel stated that it took into account Mr La’Brooy’s history and the referral material to determine a level of impairment, if any, that may have been present prior to and/or after the alleged injury ‘which the Panel ought to disregard in accordance with Section 28LL(3) of the [Act as] impairment from unrelated causes or injuries’. The Panel continued:
The Panel understands that, in performing the task of assessing any pre-existing impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which is to be disregarded.
The Panel noted the well -documented and extensive past history of persistent lumbar spine problems dating back to 1997, including the need for on-going periodic physiotherapy treatment on a regular basis since that time.
The Panel also noted the degenerative changes in the lumbar spine on the various imaging studies, which, in the Panel’s opinion, may have contributed, at least in part, to the pre-existing back symptoms reported by Mr La’Brooy.
The Panel considered that on the basis of the information available, that there is evidence of a pre-existing impairment of the back from unrelated causes or injuries, which is playing a part in Mr La’Brooy’s current impairment of the lumbosacral spine and which ought to be disregarded pursuant to Section 28LL(3) of the Act.
(i) The Panel then referred to the radiological evidence of mild degenerative changes in the left hip and recorded its conclusion that it was not satisfied that it constituted a pre-existing impairment.
(j) The Panel then set out its ‘impairment conclusions’:
The Panel disregarded the estimate of Mr La’Brooys unrelated pre-existing impairment of the lumbosacral spine and concluded that the degree of whole person impairment resulting from the spinal injury to Mr La’Brooy alleged in the claim is permanent, but it is not 5% or more, which does not satisfy the threshold level as required by s 28LB of the Act as amended.
The Panel also concluded that the degree of whole person impairment from all the physical injuries to the claimant alleged in the claim is not more than 5% and is permanent, which does not satisfy the threshold level as prescribed by s 28LB of the Act.
Grounds 1, 2 and 5
It is convenient to deal with these grounds together as they raise the same essential issue being whether the Panel committed jurisdictional error by finding a pre-existing impairment of Mr La’Brooy’s lumbar spine. By grounds 1 and 2, the central contention advanced is that the Panel did not fulfil its statutory function because it failed to properly construe and apply s 28LL(3) of the Act which required it to have sufficient evidence of impairment from unrelated causes. Mr La’Brooy submits that there was no such evidence and the evidence which was before the Panel was in fact the contrary. Similarly, in respect of ground 5 (the irrationality or illogicality ground), Mr La’Brooy submits that there was no medical evidence of ongoing, persisting, well documented extensive lumbar back impairment from the 1997 incident.
In advancing these submissions, counsel for Mr La’Brooy referred to the line of authorities which establish the need to find ‘impairment’, not merely the existence of an unrelated injury or cause.[5] Further:[6]
… any assessment of pre-existing impairment must be evidence based. It cannot simply be speculative. The Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which it then disregards. The Panel is not bound by rules or practices as to evidence but it must act on the basis of evidence of some sort.
[5]See Alcoa Holdings v Lowthian [2011] VSC 245, [73]–[76] in relation to s 91(7) of the Accident Compensation Act 1985 applied by Osborn J in Chua v Lowthian [2011] VSC 468; St Luke’s Anglicare v Handrinos [2018] VSC 356, [34]–[40] in relation to s 91(7) of the Accident Compensation Act; and Bazouni v State of Victoria [2019] VSC 407, [13]–[20].
[6]Chua v Lowthian [2011] VSC 468, [135] (Osborn J).
On the basis of these authorities and the provisions of the Act to which I have earlier referred, Mr La’Brooy submitted that, in performing its function, the Panel was required to:
(a) assess whether there existed impairment from unrelated injuries or causes, and not merely unrelated injuries or causes;
(b) consider the extent to which any such unrelated condition interfered with his ‘activities of daily living’;
(c) assess whether any such impairment was permanent; and
(d) ensure that any assessment which results in a finding that there was ‘impairment from unrelated injuries or causes’, is not speculative but based on ‘sufficient evidence’ or an ‘evidentiary basis on which it can be positively satisfied’ of pre-existing impairment
It is apparent from the reasons that the Panel found a pre-existing impairment of Mr La’Brooy’s lumbar spine on two broad bases: (a) by reference to what it described as ‘the well documented and extensive past history of persistent lumbar spine problems dating back to 1997’; and (b) from the history apparently provided to it by Mr La’Brooy.
In challenging this analysis and conclusion, Mr La’Brooy contended that the Panel erred in three critical ways: first, the documents before the Panel did not establish a ‘well documented and extensive past history of persistent lumbar spine problems dating back to 1997’; secondly, the information before the Panel was in fact inconsistent with the conclusion that Mr La’Brooy had a pre-existing impairment; and, thirdly, important elements of the history which the Panel recorded as being provided by Mr La’Brooy were not in fact given by him. Below, I will separately outline how each of these asserted errors were advanced on behalf of Mr La’Brooy.
A well-documented and extensive past history of persistent lumbar spine problems dating back to 1997?
Counsel for Woolworths conceded that the documents before the Panel were not sufficient, of themselves, to establish that Mr La’Brooy had a pre-existing impairment.
However, Woolworths submitted that the Panel had before it three documents which together suggested that Mr La’Brooy had a previous injury and a history of persistent lumbar spine problems. The documents were:
(a) Dr Kossmann’s report dated 18 January 2019 in which he diagnosed Mr La’Brooy’s injury as being an ‘aggravation of pre-existing lumbar spondylosis’.[7]
[7]Emphasis added.
(b) An undated report prepared by a general practitioner, Dr Akter, who Mr La’Brooy attended, for the first time, the day after the May 2018 incident and again a week later on 18 May 2018. The section of Dr Akter’s report which deals with Mr La’Brooy’s history includes the statement that ‘he has long standing back pain’. Woolworths submitted that this language does not naturally refer to the 1997 injury which resolved a year later, but instead describes a person having some ongoing difficulties with their back.
(c) The notes of a consultation Mr La’Brooy had with a physiotherapist, Tom Wallace, on 26 May 2018, which appear in a set of 116 pages of clinical notes from the Koo Wee Rup Medical Centre and Blackfish Medical Centre for the period from 2011 to 2018 (the Koo Wee Rup notes). In the history of present consultation, reference is made in the notes to the May 2018 incident and the words ‘exacerbation of LBP’ appear.[8] The note goes on to provide:
History of severe LBP with LL symptoms ~20 yrs ago, advised to have surgery but it self resolved 2 yrs later.
[8]Emphasis added.
In referring to the ‘well documented and extensive past history of persistent lumbar spine problems dating back to 1997’, the Panel stated that this included ‘the need for on-going periodic physiotherapy treatment on a regular basis since that time’.
Counsel for Mr La’Brooy advanced a number of criticisms of this aspect of the reasons. Reference was made to the earlier part of the reasons dealing with Mr La’Brooy’s past medical history and the statement that ‘[h]e told the Panel that since that [1997] injury, he has continued to require treatment every two months or so whereby he attended a physiotherapist …’. It was submitted that, if this was correct, in the period between the 1997 injury and the May 2018 incident, Mr La’Brooy would have had at least 100 physiotherapy attendances. However, none of the Koo Wee Rup notes recorded any physiotherapy attendances in that period, except for Mr La’Brooy’s attendance on Mr Wallace on 25 May 2018 which appeared as a first consultation.
Further, in their consideration of Mr La’Brooy’s past medical history, the Panel then states that an entry in the notes of the Koo Wee Rup clinic for 16 October 2015 of severe low back pain referring to both legs, resulting in a referral to physiotherapy, would tend to confirm this ‘history’. However, the note of that attendance only relevantly records Mr La’Brooy as ‘having a severe back pain for 2 days after a sudden brake while driving’ and:
PHx-had a fall nearly 20yrs ago
said had problem with lower lumbar spinebut pain free for a long years.
It was submitted that it could not be said that this note confirmed a long-standing, persistent history of physiotherapy every two months over a period of nearly 20 years.
It was therefore submitted on behalf of Mr La’Brooy that the Panel erred in anchoring its conclusion that Mr La’Brooy had a ‘well documented and extensive past history of persistent lumbar spine problems dating back to 1997’on the proposition that he had a ‘need for on-going periodic physiotherapy treatment on a regular basis’ since 1997.
In response, Woolworths submitted that no definitive significance attached to the absence of documents recording physiotherapy treatment. First, it was submitted that a person does not necessarily need to consult a general practitioner (for example, in Mr La’Brooy’s case, a general practitioner at the Koo Wee Rup Clinic) in order to see a physiotherapist. Secondly, the Koo Wee Rup notes only cover the period from 2011. Thirdly, the Panel only had the records of the physiotherapist, Mr Wallace, who Mr La’Brooy consulted in 2015, leaving open the possibility that there were appointments between 2015 and 2018. The broader submission advanced by Woolworths was that the absence of physiotherapy records in relation to Mr La’Brooy was not definitive because the Panel was entitled to ask him whether he had regularly seen a physiotherapist and the Panel was entitled to accept his answer that he had.
The history given by Mr La’Brooy
The following are the critical paragraphs of the reasons which appear in the Panel’s consideration of Mr La’Brooy’s past medical history which, in light of Mr La’Brooy’s evidence to the Court, are submitted to demonstrate that the Panel acted on the basis of a mistaken medical history:
The Panel noted a past history of a back injury in 1997 when he fell down some stairs. At the time this resulted in severe low back pain with referred lower limb symptoms. He said at that time he was offered surgical intervention for his back and leg pain but he declined that. He said that ultimately, after four to five years, his pain largely subsided.
To specific questioning he told the Panel that his back has continued to ‘play up’ from time to time following that 1997 injury. He told the Panel that since that injury, he has continued to require treatment every two months or so whereby he attended a physiotherapist and also undertook water based exercises. He told the Panel that the water based exercises ceased in about 2012 because he said he was much better at that stage. He told the Panel that when he attends the physiotherapy sessions every two months or so he is treated with massage to his back, and the exercises he had been prescribed previously would be checked and at times revised. He told the Panel that after the session of physiotherapy and revision of exercises, his pain was improved, but not completely resolved, although he was again able to cope reasonably well with his various activities, until an escalation in his persistent back related symptoms would require a further physiotherapy session or two.
In his evidence to the Court, Mr La’Brooy identified that, contrary to what appears in the above paragraphs:
(a) He did not tell the Panel that, at the time of the 1997 injury, he was offered surgery for his back and leg pain, but declined it.
(b) He did not tell the Panel that ‘after four to five years, his pain [in relation to the 1997 injury] largely subsided’.
· In his initial affidavit filed with the Court, Mr La’Brooy stated that he ‘fully recovered’ from the 1997 injury ‘within [a] few years’. In his evidence to the Court, he said this was a mistake and corrected it to be ‘by about 1998’.
· Mr La’Brooy’s evidence was that he was able to engage in full-time, unrestricted work and otherwise lead a full life from about 1999 until July 2005. He deposed that, even with his amputation, prior to the 2018 incident, he was able to play golf, fish and engage in regular travel without restrictions from any back impairment or injury.
(c) He did not tell the Panel that ‘his back has continued to ‘play up’ from time to time following that 1997 injury’.
· His evidence to the Court was that, between about 1999 and the date on the 2018 incident, except for a brief period in about late 2015, his back was ‘normal, pain free and did not affect [his] ability to work or live a normal life’.
(d) Contrary to what appears in the first sentence of the second paragraph of the reasons referred to above, Mr La’Brooy denied that the Panel asked him any specific questions about the 1997 injury. His evidence was that the Panel did not ask him any questions about whether he needed physiotherapy or aqua aerobics for the 1997 injury, or about any documents which indicated that he needed physiotherapy for the 1997 injury.
(e) He did not tell the Panel that he had received regular physiotherapy for the 1997 injury.
· His evidence to the Court was that, although he has had physiotherapy treatments since the 2018 incident, he did not have any regular or periodic physiotherapy treatments between 1999 and 2018.
(f) Although Mr La’Brooy did not initially identify any inaccuracy in the reference in the above paragraphs of the reasons to him having told that Panel that since the 1997 injury he undertook water based exercises which ceased in about 2012 because he was much better, his later evidence was that it was not correct that he undertook water-based exercises. His evidence continued:
Are you now saying that you did not attend the water-based exercises at all?---No. No.
And that they did not cease in 2012?---Correct. No.
And that you did not say that to the medical panel?---No.
Mr La’Brooy also identified errors in the Panel’s recording of what he said about his current symptoms. His evidence was that he did not say to the Panel that the ‘back and buttock pain was neither dull nor sharp’.[9] His evidence was that he told the Panel that he was in pain at that time and that the pain was sharp. Mr La’Brooy also stated that, although the Panel was correct to say that he was able to sit in his favourite chair for about 20 to 30 minutes before becoming fidgety, it was not correct that he could remain sitting for a prolonged period.
[9]See [16(b)] above.
Facts and documents said to be inconsistent with the existence of pre-existing impairment
Counsel for Mr La’Brooy referred to two particular matters which it was submitted were inconsistent with Mr La’Brooy having a pre-existing impairment: (a) that he had worked as a courier delivery driver on a full-time, unrestricted basis for about six years between 1999 and 2005; and (b) that the documents before the Panel showed that he had no history of ongoing medical problems.
Work as courier driver
Mr La’Brooy’s unchallenged evidence to the Court was that he worked as a courier driver on a full-time, unrestricted basis in his own courier driving business for about six years between 1999 and 2005. In that role, he was required, on a daily basis, to sit and drive for prolonged periods, to stand and walk for prolonged periods, and to bend, squat and lift while manually handling, loading and unloading goods weighing up to about 24 kg.
It was submitted on behalf of Mr La’Brooy that the performance of these duties was irreconcilable with the proposition that he had a pre-existing impairment of the back.
It is significant that the Panel’s reasons contain no reference at all to Mr La’Brooy’s work as a courier driver. I will return to this issue later in these reasons.
No history of ongoing medical problems?
Counsel for Mr La’Brooy submitted that the documents before the Panel showed that he had no history of ongoing medical problems. To the contrary, it was submitted that there was evidence before the Panel that his back pain had resolved long before the May 2018 incident.
The Koo Wee Rup notes, which were before the Panel, revealed many and varied medical attendances by Mr La’Brooy, but none showing regular treatment of back pain, except for a two week period in October 2015. In the period between 27 June 2011 and 16 October 2015, the Koo Wee Rup notes record 42 attendances at the clinic by Mr La’Brooy; none of them involved any complaint of back pain. It was submitted that these notes are consistent with Mr La’Brooy being pain free for many years.
The Koo Wee Rup notes for 16 October 2015 record Mr La’Brooy ‘having a severe back pain for 2 days after a sudden brake while driving’. The notes for the same consultation continue:[10]
PHx-had a fall nearly 20yrs ago
said had problem with lower lumbar spine
but pain free for a long years
[10]Emphasis added.
In response, Woolworths submitted that it was clear that the Panel had considered this record because they referred to the 1997 injury in the reasons and asked Mr La’Brooy about it. Further and in any event, it was submitted that this record could sit with the Panel’s reasons that Mr La’Brooy sustained the 1997 injury, had severe pain which resolved on its own without surgery, but that some ongoing symptoms remained. It was therefore unnecessary for the Panel to refer to this and other related records because they were not inconsistent with the view it had adopted in its reasons.
The next consultation referred to in the notes occurred on 23 October 2015 and recorded Mr La’Brooy as presenting with a number of apparently minor symptoms such as fever and headache. They include the description ‘back ache – mild better’. The following consultation occurred on 2 November 2015. On that date the notes include the entries ‘also having back pain – manage with panadol’ and ‘would like to have GPMP next yr for physiotherapy’.
Counsel for Mr La’Brooy also relied on the reference in the notes of the consultation with the physiotherapist, Mr Wallace, on 26 May 2018 to Mr La’Brooy having a ‘[h]istory of severe LBP with LL symptoms ~20 yrs ago, advised to have surgery but it self resolved 2yrs later’.[11]
[11]See [23(c)] above.
In response, Woolworths submitted that this record was ambiguous in that it was not apparent whether the severe back pain, or the pain in its entirety, resolved. As such, it was submitted that this record did not contradict the Panel’s conclusions, but rather was a record which properly prompted the Panel to ask clarifying questions of Mr La’Brooy about his history.
Reliance was also placed on the nature and extent of the pain relief treatment which Dr Akter prescribed Mr La’Brooy between June and August 2018. The notes of their consultations which were before the Panel record that:
(a) On 1 June 2018 Mr La’Brooy was prescribed an Endep tablet and a Norspan patch for the pain he was experiencing. The Norspan prescription was increased on 16 June 2018.
(b) On 30 June 2018, Mr La’Brooy reported that ‘endep and norspan did not have any impact of [sic] his pain’ and those treatments were ceased. On 9 July 2018, he was then prescribed Targin, which dosage was increased a week later.
(c) On 3 August 2018, Mr La’Brooy reported to Dr Akter ‘ongoing pain mostly across lower back /affecting sleep’. Dr Akter referred Mr La’Brooy for a cortisone injection which appears to have been administered shortly thereafter.
(d) On 15 August 2018, Mr La’Brooy consulted with the physiotherapist, Mr Wallace, and a ‘30% reduction in pain after CSI’ is recorded in the notes. The notes also record a discussion about trialling the use of a TENS machine.
According to counsel for Mr La’Brooy, the significance of the above material lay in the absence of any similar history before the Panel showing the prescription of strong pain relief to Mr La’Brooy prior to the May 2018 incident. This supported the proposition that the documents before the Panel did not show that Mr La’Brooy had a history of ongoing medical problems.
In support of that contention, Mr La’Brooy also relied on the following presenting complaints recorded by Dr Kossmann in his report of 18 January 2019:
Mr La’Brooy told me that he has pain in his back, which radiates into his left leg. He has difficulty sleeping. He has difficulty putting on socks and shoes, and his wife has to cut his toenails. He cannot sit or stand for too long.
It was submitted that no similar complaints appear in any of the documents which were before the Panel in relation to the period prior to the May 2018 incident. Further, it was submitted that Mr Kossmann’s set out a history which was largely consistent with Mr La’Brooy’s evidence to the Court.
Consideration
As Woolworths submitted, the assessment of impairment under the Act is a function of medical panels convened under the Act and is not to be undertaken by the Court on review. I reject the submission advanced on behalf of Mr La’Brooy that the existence of impairment is a jurisdictional fact because, absent sufficient evidence of impairment, the task required by s 28LL(3) of the Act is not enlivened. None of the authorities referred to by Mr La’Brooy support that proposition.
Whether a criterion is a jurisdictional fact is a question of statutory interpretation.[12] Support for the view that the existence of impairment is not a jurisdictional fact is provided by Ginnane J’s consideration in Deitrich v Pulse Pharmacy Northcote Pty Ltd of whether the ‘stability’ or otherwise of an injury within the meaning of the Act is a jurisdictional fact.[13] Justice Ginnane concluded that it is not a jurisdictional fact for reasons including that a determination regarding whether an injury is stable involves an evaluative exercise by a specialist medical panel; the avenues of statutory appeal are limited; and because, if ‘stability’ is a jurisdictional fact, then a determination of the degree of impairment by a medical panel may not be final and would lack certainty because it could be challenged on the basis of events occurring after it had been made.
[12]Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, 710 [6] (Spigelman CJ).
[13][2014] VSC 307 (‘Deitrich’).
I respectfully agree with Ginnane J’s analysis in Deitrich. The abovementioned factors apply analogously in relation to s 28LL(3) and lead to the conclusion that the existence of impairment is not a jurisdictional fact. In the context of the regime established by the Act, it would be anomalous if the existence of an impairment was a fact which this Court was required to determine as a jurisdictional fact on review.
The arguments raised by Mr La’Brooy under grounds 1, 2 and 5 require consideration of the principles to be applied in determining when a factual error by an administrative decision maker, if established, constitutes jurisdictional error. In Chang v Neill,[14] the Court of Appeal, after analysing the relevant authorities, clarified and re-stated the principles for determining whether a factual error constitutes jurisdictional error. The Court stated:[15]
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,[16] 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.[17]
[14]Chang v Neill [2019] VSCA 151.
[15]Ibid [92].
[16](2013) 230 FCR 431, 451 [68].
[17]The phrase ‘essential feature’ was used by the Full Court of the Federal Court in MZYTS.
The Court of Appeal also concluded that, to constitute jurisdictional error, an error of fact must also be ‘material’, in the sense that the outcome of the exercise of the relevant power could have been different if the factual error had not been made.[18] This additional requirement was, however, unlikely to make much difference in practice ‘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’.[19]
[18]Chang v Neill (n 14) [93], [100].
[19]Chang v Neill (n 14) [100].
One of the authorities considered by the Court of Appeal in Chang v Neill was the decision of J Forrest J in Karabinis v Bendrups[20] upon which Mr La’Brooy placed significant reliance in his submissions before me. In that matter, J Forrest J stated that ‘a medical panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question’.[21] In relation to that observation, the Court of Appeal in Chang v Neill stated:[22]
We are not aware of any authority prior to J Forrest J’s decision in Karabinis which adopted the concept of a ‘fundamental error’ as the test for determining whether a factual error constitutes jurisdictional error. Omerasevic introduced the concept of a fundamental issue, and incorrectly attributed support for the concept to Ryan, but that was in the context of the ground of failure to take into account a relevant consideration.
However, the fact that there is no support for J Forrest J’s test of ‘fundamental error’ in any of the authorities which preceded Karabinis does not mean that his decision is necessarily inconsistent with the underlying principles to which we have referred. His analysis of what constitutes a fundamental error is consistent with those principles. Indeed, he referred to Robertson J’s decision in SZRKT which has strongly influenced the development of those principles. Nevertheless, as the label of ‘fundamental error’ which J Forrest J adopted was not derived from any relevant authority, it is best avoided.
[20][2017] VSC 648.
[21]Ibid [62].
[22]Chang v Neill (n 14) [104]–[105].
A critical issue in considering grounds 1, 2 and 5 is whether the Panel recorded and acted upon an erroneous medical history in relation to Mr La’Brooy.
Counsel for Woolworths accepted that, if I found that Mr La’Brooy did not give the history attributed to him by the Panel in respect of having undertaken physiotherapy and water-based treatment for his back and his alleged statement that his back continued to ‘play up’ from time to time following that 1997 injury,[23] jurisdictional error would be made out as the Panel would not have completed its statutory task.
[23]As referred to in [30(c) above.
Counsel for Mr La’Brooy submitted that I should accept him as a witness of truth. It was submitted that, if I accepted his evidence and if I accepted that, on the balance of the documentary evidence as a whole, he did not have a back problem before the May 2018 incident, common sense dictated that he did not tell the Panel this, or that the Panel was mistaken in recording the history it did. The notion that Mr La’Brooy in substance told the Panel that he had a long-standing, persistent back problem for which he was receiving treatment made no sense because he had had no complaints of back pain for many years and there were no medical records to that effect.
Relatedly, it was submitted on behalf of Mr La’Brooy that it could be inferred that the Panel fundamentally mistook the history he provided, such that it mistakenly understood his attendance for physiotherapy treatments from 2018 onwards, as being a form of treatment required after the 1997 injury. This mistake was able to be inferred, so it was submitted, having regard to what was described as the ‘not-insubstantial body of evidence’ before the Panel that Mr La’Brooy had recovered a long time before the 2018 incident.
In the absence of cogent evidence to the contrary, a reviewing court is entitled to rely on the facts in a medical panel’s reasons.[24] In this matter, I have a number of significant reservations about the evidence given by Mr La’Brooy to the Court. As a consequence, Mr La’Brooy’s evidence does not provide a cogent basis for me to reject the history as recorded in the Panel’s reasons.
[24]Karabinis v Bendrups (n 20) [69].
Even allowing for Mr La’Brooy’s age and the fact that his evidence was given remotely by video, his answers to questions were sometimes confusing and unclear. For example, in relation to whether the Panel asked him any questions about whether he needed physiotherapy or aqua aerobics for the 1997 injury, his evidence was that the first defendant told him during the Panel’s examination ‘that he had documents in front of him that showed I had required ongoing, regular physiotherapy treatment for a prior back injury since the late 1990’s’. He initially said in evidence that he ‘indicated to the Medical Panel that this was not correct’, but later stated in evidence that he said nothing in response to the first defendant. Not only is this contradictory, the latter version seems improbable.
The first defendant’s notes of the examination of Mr La’Brooy were in evidence. Those notes corroborate the reasons in important respects and are inconsistent with Mr La’Brooy’s evidence to the Court. Contrary to Mr La’Brooy’s evidence that the Panel did not ask him any specific questions about the 1997 injury, the notes indicate that that injury was discussed. Importantly, they also include notations that Mr La’Brooy’s back ‘played up from time to time’ and ‘would have 2/12 – physio, – hydro’. This is directly inconsistent with Mr La’Brooy’s evidence that he did not tell the Panel that his back has continued to ‘play up’ from time to time following that 1997 injury and at odds with his evidence that the Panel did not ask him any questions about whether he needed physiotherapy or aqua aerobics for the 1997 injury.
It was a matter of concern to me that the errors in the Panel’s history asserted by Mr La’Brooy had a creeping quality: see for example the error referred to in [30(f)] above and the errors referred to in [31] which only emerged in Mr La’Brooy’s oral evidence. The late identification of these claimed errors is not only surprising given the importance of this aspect of Mr La’Brooy’s case and the fact that he was legally represented at all times, but because he swore an affidavit in the proceeding which identified claimed errors in the history recorded by Panel, which evidence he then corrected in specific respects in a subsequent affidavit. None of the claimed errors just mentioned were identified in either of Mr La’Brooy’s affidavits.
The matters to which I have so far referred leave real doubt in my mind about the reliability of Mr La’Brooy’s recollections about what specifically was said and not said when the Panel was convened nearly two years ago. They also suggest to me that Mr La’Brooy’s evidence to the Court may have been significantly coloured by his understanding or perception of the nature of the legal challenge brought against the Panel’s reasons and by a desire to buttress that challenge.
By contrast, the Panel’s reasons are reasonably detailed and extensive and were published within three weeks of the examination of Mr La’Brooy. The Panel is comprised of independent professionals and, unlike Mr La’Brooy, its members have no interest in the outcome of the proceeding.
The scope and nature of the errors asserted by Mr La’Brooy in his evidence is also significant. Other than in respect of the two asserted errors referred to in [31] above, all the other asserted errors in the reasons were confined to that part of the reasons which related to Mr La’Brooy’s history. Of greater significance is the fact that, if all of Mr La’Brooy’s complaints about the errors in its history taking were accepted, the result would be that, in effect, the entirety of both of the two paragraphs of the reasons set out in [29] would be erroneous. It is inherently unlikely that a medical panel would err in such a profound way. It is also at odds with the particularity and specificity of some of the information recorded in those paragraphs relating to Mr La’Brooy’s attendances for physiotherapy and water-based exercises. It is implausible that the members of the Panel invented such a detailed and bespoke history.
I accordingly do not consider that Mr La’Brooy’s evidence is a cogent basis for me to reject his history as recorded by the Panel in the reasons.
My conclusion in this regard is unaltered by a consideration of the documentary evidence and Mr La’Brooy’s submission that that evidence as a whole indicated that he did not have a back problem before the May 2018 incident such that, as a matter of common sense, he would not have told the Panel as much. Although I accept, as counsel for Mr La’Brooy submitted, that the Panel had before it some documents which indicated that his back pain had resolved before the May 2018 incident, it is clear that there were other documents before the Panel which indicated that Mr La’Brooy had a previous injury and a history of persistent lumbar spine problems.[25]
[25]See the documents referred to in [23] above.
As Woolworths submitted, it is immaterial whether or not this history was accurately described as being ‘well’ documented; the key point is that there was a history of injury revealed by the documents before the Panel which, as indicated by the reasons,[26] properly led the Panel to ask questions of Mr La’Brooy to determine whether he had a prior impairment.
[26]See [16(c)] above.
As recorded in the reasons, in answer to the Panel’s questions, Mr La’Brooy relevantly said that his back has ‘continued to ‘play up’ from time to time’ since the 1997 injury; that, since that time, he continued to have physiotherapy treatment every two months or so; and that after physiotherapy sessions, his pain was improved, but not completely resolved, ‘although he was again able to cope reasonably well with his various activities, until an escalation in his persistent back related symptoms would require a further physiotherapy session or two’.
Subject to one important matter, these answers in conjunction with the documentary material before the Panel which indicated that Mr La’Brooy had a history of persistent lumbar spine problems, constituted a sufficient evidentiary basis for the Panel to find that Mr La’Brooy had a pre-existing impairment which was required to be disregarded under the Act.
The qualification to which I refer and the obstacle to concluding that it was reasonably open to the Panel to find that Mr La’Brooy had an impairment from an unrelated injury is the failure of the Panel to advert at all in the reasons to Mr La’Brooy’s work as a courier driver.
Three matters are known in relation to the information that was before the Panel in respect of Mr La’Brooy’s work as a courier driver. First, Mr La’Brooy’s unchallenged evidence to the Court was that the Panel did not ask him about his work as a courier driver. Secondly, notwithstanding this, the handwritten notes of the first defendant include the following reference: ‘Own courier bu – 2001–06’. Thirdly, it would appear that the only reference to Mr La’Brooy’s work as a courier driver in the documents before the Panel was the following statement in a section of Dr Kossmann’s report dated 18 January 2019 headed ‘Work description’ which set out his work history:
In 2001, he started his own courier business and he continued to work until he had to undergo an amputation of his right lower leg. He has been on a pension since 2006.
It may be noted that Dr Kossmann’s report was the only medico legal report which was before the Panel.
I infer from these matters and the absence of any reference in the reasons to Mr La’Brooy’s work as a courier driver that, although the Panel was aware from Dr Kossmann’s report that Mr La’Brooy operated his own courier driving business for a period of five years between 2001 and 2006,[27] the Panel made no enquires of Mr La’Brooy about the nature of the work he undertook in conducting that business.
[27]This is broadly in line with Mr La’Brooy’s evidence that he worked in his own courier driving business between 1999 and 2005.
This was a significant omission. The Panel’s task was to determine Mr La’Brooy’s degree of impairment and state if that impairment was above or below the ‘threshold level’. The assessment of impairment was required to be made in accordance with the AMA Guides which have the force of law and have been described as a legislative document.[28] As stated by Kyrou J (as he then was) in H J Heinz v Kotzman, ‘[i]t is of paramount importance to be faithful to the Guides’ plain words’.[29]
[28]H J Heinz Company Australia Ltd v Kotzman [2009] VSC 311 (‘Heinz v Kotzman’).
[29]Ibid [26] (citations omitted). A medical panel is not, however, required to apply the Guides in identifying any unrelated impairment, and in estimating its extent (for example using tests set out in the Guides): City of Melbourne v Neppessen [2019] VSC 84, [123]; Alcoa Holdings Ltd v Lowthian (n 5) [67]. A medical panel ‘is obliged to evaluate the unrelated impairment on the material presented to it and do its best to evaluate the extent to which that impairment is playing a part in the person’s current impairment’: City of Melbourne v Neppessen [2019] VSC 84, [123].
The Guides define ‘impairments’ as conditions that interfere with an individual’s ‘activities of daily living’, which in turn are defined to include a range of different activities including ‘work activities’.[30]
[30]See [13] above.
The central controversy which confronted the Panel in determining Mr La’Brooy’s degree of impairment was the existence of a pre-existing impairment of his lumbar spine. In those circumstances, given the meaning of ‘impairments’, it was incumbent on the Panel to actively engage with the work undertaken by Mr La’Brooy in what was referred to in Dr Kossmann’s report as his ‘own courier business’. Although the documents before the Panel did not provide any detailed information about the nature of the work performed by Mr La’Brooy, it was apparent from the information in Dr Kossmann’s report that this work was for a period of some five years commencing four years after the 1997 incident. The operation of a courier business implies work as a driver. The suggestion from the materials before the Panel that, after the 1997 incident, Mr La’Brooy undertook physical work for a prolonged period as a courier driver was a matter of self-evident importance in determining whether Mr La’Brooy had a pre-existing impairment to the lumbar spine. It was therefore a matter in relation to which the Panel was obliged to engage in an ‘active intellectual process’.[31]
[31]Sensis Pty Ltd v Jones [2018] VSC 754, citing Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, [44], citing Tickner v Chapman (1995) 57 FCR 451, 462; Minister for Immigration & multicultural Affairs v Jia (2001) 205 CLR 507, [105].
The fact that the occasion for Mr La’Brooy to tell the Panel about the nature of his work as a courier driver did not arise because the Panel did not ask any questions directed at that issue is no answer to the above error. Neither is the suggestion, based on the medical history, that Mr La’Brooy’s impairment from the 1997 injury may not have been consistently acute throughout all of the period from 1997 until the May 2018 incident. For the reasons I have explained, in the circumstances before it, it was incumbent upon the Panel to have made such enquiries of Mr La’Brooy.
Woolworths also submitted that the reasons indicate that the Panel accepted that, before the May 2018 incident, Mr La’Brooy led an active life despite his impairment.[32] The fact that he was reasonably active before the incident including by working and by engaging in various activities was not inconsistent with him having some impairment.
[32]As described in pages 4 and 5 of the medical panel’s reasons.
The difficulty with this submission is that it ignores the fact that the Panel appeared to apportion all of the impairment it identified in Mr La’Brooy’s lumbar spine as being a pre-existing impairment to be disregarded in making its assessment of Mr La’Brooy’s degree of impairment.
(a) The Panel diagnosed Mr La’Brooy as suffering an aggravation of the previous dysfunction of the lumbar spine with referred radicular quality pain in to the left lower limb, in the absence of objective evidence of radiculopathy on a background of longstanding systematic lumbar spine dysfunction.[33]
(b) The Panel assessed his back in accordance with the AMA Guides and indicated that a DRE model was preferred over a range of motion model.[34]
(c) Reference was made in the reasons to particular passages in the AMA Guides relating to assessments of the lumbosacral spine and the criteria for DRE impairment categories. Section 3.3g of the AMA Guides deals with assessments of the lumbosacral spine, and sets out the criteria for DRE impairment categories:
[33]See [16(f)] above.
[34]See [16(g)(i)] above.
Tables 70 and 72 (pp.108 and 110) list commonly encountered impairments of the lumbosacral spine, and the paragraphs below described as diagnosis-related estimates (DREs) and are in categories. The whole-person impairment percents based on the categories designated I through VII may be used in conjunction with impairment estimates for other organ systems.
…
DRE Lumbosacral Category II: Minor Impairment
Description and Verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings may include… nonverifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity.
(d) It was submitted that, given the Panel’s finding that there was an ‘aggravation of a previous dysfunction of the lumbar spine with referred radicular quality pain into the left lower limb, in the absence of objective evidence of radiculopathy’, it can be inferred that the Medical Panel attributed to Mr La’Brooy an impairment rating of DRE II lumbosacral spine impairment. This impairment rating provides that, where there are ‘clinical signs of lumbar injury … without radiculopathy or less of motion segment integrity’, this equates to 5% whole person impairment.
A conclusion that the Panel attributed to Mr La’Brooy an impairment rating of DRE II is also supported by the following extract from the handwritten notes of the first defendant:
DRE II
* Apportion DRE II
à Tx every 2/12 or so.[35]
The reference to ‘Apportion DRE II’ supports an inference that the Panel assessed Mr La’Brooy’s impairment from unrelated injuries or causes at the DRE II, being at 5%.
[35]It was uncontroversial that the reference to ‘Tx’ is a commonly used and understood medical abbreviation for ‘treatment’. It was submitted by Mr La’Brooy and I accept that the reference in the above note to ‘every 2/12 or so’ means ’every two months’: see the reference in the reasons to Mr La’Brooy continuing to ‘require treatment every two months or so whereby he attended a physiotherapist’.
The Panel erred in failing to have regard to Mr La’Brooy’s work in operating his own courier business. Given the terms of s 28LL(3) of the Act and the provisions of the Guides to which I have referred, in circumstances where the existence of a pre-existing impairment of Mr La’Brooy’s lumbar spine was the central controversy before this Panel, consideration of Mr La’Brooy’s work in operating his own courier business was essential to the Panel’s statutory task. The Panel’s error of fact accordingly amounted to a constructive failure by it to perform its function under the Act. Mr La’Brooy’s evidence about the nature of his work and duties when he operated his own courier business,[36] as well as the matters referred to in [76] above, leave no doubt that the error was material. In light of this conclusion, it is unnecessary for me to address the other complaints made by Mr La’Brooy about the Panel’s reasons in relation to grounds 1, 2 and 5.
[36]See [9] above.
Mr La’Brooy must succeed in relation to ground 1 because, in erring in the manner set out above, the Panel committed jurisdictional error by failing to properly apply s 28LL(3) of the Act in finding and disregarding the existence of a pre-existing, longstanding impairment to his lumbar spine. Ground 2, understood in light of the Court of Appeal’s observations in Chang v Neill,[37] is, in substance, simply a different way of expressing ground 1, but it is one to be avoided for the reasons given in that case.[38]
[37]See [51] above.
[38]Chang v Neill (n 14) [104]–[106].
The complaint of legal unreasonableness made under ground 5 is not made out. For the reasons I have explained, the Panel’s determination was not made in the absence of any medical evidence supportive of its finding as to the existence of pre-existing impairment to Mr La’Brooy’s lumbar spine. Nor can it be said that there was no evident or intelligible justification for concluding that there was impairment from unrelated injuries or causes pursuant to s 28LL(3) of the Act.
Given my conclusions in respect of grounds 1 and 2, it is unnecessary to consider the remaining complaints raised by grounds 3 and 4.
I will accordingly order that the Panel’s opinion dated 2 June 2019 be quashed and that the question the subject of the Panel’s opinion be remitted to a differently constituted medical panel to be reconsidered in accordance with law.
The parties are to confer as to the form of orders to be made giving effect to these reasons and any order as to costs. Within 14 days, the parties are to submit a minute of proposed orders and, in the absence of agreement, short submissions on costs.
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