Macdonald v Royal District Nursing Service (Ruling)
[2013] VCC 413
•11 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00037
| JILL MACDONALD | Plaintiff |
| v | |
| ROYAL DISTRICT NURSING SERVICE | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2013 | |
DATE OF RULING: | 11 April 2013 | |
CASE MAY BE CITED AS: | Macdonald v Royal District Nursing Service (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 413 | |
RULING
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Subject: ACCIDENT COMPENSATION
Catchwords: Application pursuant to s134AB Accident Compensation Act 1985 – referral to Medical Panel to answer medical questions
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; United Doormakers (Vic) Pty Ltd v Amendola (VSCA, 16 November 2012); Kocak v Wingfoot Australia Partners & Ors [2012] VSC 259; Adonis v Retirement Care Australia Operations (2) Pty Ltd [2013] VCC 171
Ruling: Application allowed in part.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Ms S Gold | Hall & Wilcox |
HIS HONOUR:
1 This is an application by the defendant for referral of certain questions, said to be “medical questions”, to a Medical Panel pursuant to the provisions of s45 of the Accident Compensation Act 1985 (as amended) (“the Act”). Notice of the application was given in accordance with s45(1)(b)(ii).
2 On 8 January 2013, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB of the Act to bring common law proceedings in relation to injuries she suffered to various areas of her body which she alleges arose in the course of her employment with the defendant.
3 I was provided with a copy of the plaintiff’s affidavit, sworn 20 August 2012, and lodged in support of her serious injury application. According to that affidavit:
· She worked for the defendant over periods from 1992.
· She alleges she suffered various injuries, in particular over two periods from 1999 to 2004, and from 2005 to 2006.
· Her work was as a palliative district care nurse and required her to go to houses of persons suffering terminal illnesses, and provide nursing assistance.
· That assistance included –
“… to lift, carry, bear the weight of, bend, twist and adopt stressful positions and postures while assisting the people, many of whom had reached a stage where they were unable to self-support and required considerable assistance, usually in a bedding setting or wheelchair or seated position. There were significant physical strains involved on my body. … .”[1]
[1]Paragraph 7 of the plaintiff’s affidavit sworn 20 August 2012
· On a regular basis the plaintiff was manually lifting and handling significant weights.
· As a result of her work, she sustained injury to a range of body functions, including:
§ musculoligamentous injury, including aggravation of existing degenerative changes at a range of levels in her lumbar spine with referred pain to her right and left legs;
§ musculoligamentous injury to her right hip;
§ musculoligamentous injury to her right shoulder;
§ musculoligamentous injury to her left shoulder;
§ Psychological injury, including anxiety and depression.
· As a result of these injuries, which she alleges were all work related, she has had a wide range of treatment, including operative treatment, medication and various conservative measures.
· Her major pain is in the lower back.
· She has suffered a loss or reduction in a range of domestic, recreational and social activities.
· Her sleep has been affected.
· She alleges her career has been destroyed, and despite a number of attempts to return to work, she has no work capacity.
4 I was not provided by either party with the medical reports which have been obtained both from treating and consultant practitioners. I was informed that there was a significant difference of opinion between the medical practitioners (both treating and retained) on behalf of the plaintiff and those retained by the defendant. In essence, the plaintiff’s practitioners opine that the plaintiff’s various injuries are work related. The defendant’s practitioners, on the other hand, say that the plaintiff’s various injuries and the symptoms and consequences that arise, are related to her underlying constitutional degenerative changes, in particular in her lumbar spine, and if the plaintiff suffered any work-related aggravation of those changes, it was short-lived and any symptoms from which she is now suffering relate to the underlying condition and not any work-related exacerbation.
5 Section 45 relevantly provides:
“(1) If the court exercises jurisdiction under this Part, the court—
…
(b)subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if—
(i)a party to the proceedings requests that a medical question or medical questions be referred; and
(ii)that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.
(1A)This section extends to, and applies in respect of, an application for leave under section 134AB(16)(b)—
(a)so as to enable in accordance with subsection (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of medical question in section 5(1)); or
(b)so as to require in accordance with subsection (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of medical question in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition)—
for the opinion of a Medical Panel.
(1B)…
(1C)…
(1D)The court must not refer a medical question if it appears to the court that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.
… .”
(emphasis added)
6 The “medical questions” which the defendant seeks to be referred to the Medical Panel are as set out in a Notice of Request pursuant to s45(1)(b) of the Act. Essentially, the questions fall into three categories:
(a) The first question asks as to the nature of the plaintiff’s medical condition in relation to the various injuries described in her affidavit;
(b) The second question asks as to whether the plaintiff’s employment over the period from 20 October 1999 to 10 July 2004, and/or between 4 April 2005 and 31 January 2006 was a significant contributing factor to those alleged injuries;
(c) The third question asks as to the extent that the conditions found in Question 1 are materially contributing to the alleged injuries.
7 The definition of “medical question” is set forth in s5 of the Act. In particular, sub-paragraphs (a), (b) and (c) of that definition refer to a worker’s medical condition, and the extent to which employment was a contributing factor. I am satisfied the medical questions posed by the defendant do fit within the definition of “medical question”. In fact, the posed questions almost precisely replicate the words of the definition.
8 I was referred to various authorities, including Amendola v United Doormakers (Vic) Pty Ltd (Ruling),[2] a ruling of mine in which I determined that various questions ought not be referred to the Medical Panel as their determination “will depend substantially on the resolution of factual issues which are more appropriately determined by the Court than by a Medical Panel”, in accordance with s45(1D). The facts, however, of that case were different in that the plaintiff’s claim as to serious injury related to injury to his lower spine. There were a number of incidents both before and after the work-related injury which did, or could have contributed to his impairment. In addition, there were three separate workplace incidents, all of which were said to be related to his then current symptoms. That decision was the subject of an application for leave to appeal.[3] The Court said:[4]
“To my mind, it was open to the judge to determine that the formation of an opinion by the Medical Panel as to the medical questions (which concerned the existence and extent of the respondent’s injuries and his capacity for gainful employment) would depend substantially on the resolution of factual issues, and that those factual issues were more appropriate for determination by a court. It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than with the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting – something which is not available to a Medical Panel. … .”
[2][2012] VCC 1038
[3]United Doormakers (Vic) Pty Ltd v Amendola – Leave application (VSCA, 16 November 2012, per Warren CJ and Priest JA)
[4]at paragraph 20
9 The Court went on to say that each case must be determined upon its own facts and noted:[5]
“There is much to be said for the proposition that this case turns on its own facts, and will thus be unlikely to be influential in other cases where it is sought to invoke s45(1). Moreover, if left to stand, the decision does not finally determine the ultimate controversy between the parties. Hence, in my opinion, there cannot be said to be the risk of substantial injustice to the applicant by leaving the decision undisturbed.”
[5]At paragraph 21
10 However, the Court at that time may not have been aware of the decision in Kocak v Wingfoot Australia Partners & Ors,[6] in which the Court of Appeal said the decision of a Medical Panel to decide an issue under the Act would create an issue estoppel in a serious injury application provided that the matter to be determined was the same precise issue of fact or law which would fall for determination in the subsequent proceeding.[7]
[6][2012] VSC 259
[7]Kocak v Wingfoot Australia Partners & Ors (supra) at paragraph 29
11 I was further taken to a decision by her Honour Judge Kings in Adonis v Retirement Care Australia Operations (2) Pty Ltd.[8] In that case, her Honour referred to a Medical Panel, various questions, including the nature of the plaintiff’s medical condition as to various injuries alleged in her serious injury application, whether the plaintiff’s employment could be a significant contributing factor, and the extent to which the various conditions resulted from or were materially contributed to by the alleged injuries. In other words, the questions sought to be referred were very similar to those in the present case. Her Honour referred to my decision in Amendola but distinguished it on the different facts. She concluded that she was not satisfied that the medical questions would depend substantially on the resolution of factual issues more appropriately determined by the Court.
[8][2013] VCC 171
12 Ms Gold, for the defendant, accepted the plaintiff carried out the work duties described in her affidavit at paragraphs 7, 8 and 16. At least before the Medical Panel, there would be no attempt to suggest the duties she was undertaking, and the symptoms which she alleged occurred in the course of those duties, were otherwise than as claimed.
13 Mr Ingram submitted that even accepting the defendant did not take issue with the nature of the plaintiff’s duties, the plaintiff’s evidence, tested in cross-examination, would still be relevant to the questions posed. In particular, it would be a significant issue to determine precisely when the plaintiff suffered the onset of symptoms in the various areas of her body, and the temporal link to any particular work duty. Further, he submitted that it was clear from this case that there were two distinct medical views as to the plaintiff’s injury: on the one hand, those of the plaintiff’s practitioners who were of the view that the plaintiff’s injuries were work related, and on the other hand, those of the defendant’s practitioners, who said the plaintiff’s injuries and the symptoms which arose were related to constitutional factors. He submitted that the best determination as to which camp to accept was in the adversarial setting where the opinions could be challenged in cross-examination.
14 Ms Gold submitted that a medical opinion was not a matter which required a resolution of factual issues. The Medical Panel was an expert Panel and that the questions asked were exactly medical questions which the legislation saw fit to be referred to Medical Panels.
15 I have concluded that the proper approach to applications of this nature is as follows:
(i) Section 45 is mandatory and medical questions which comply with the definition in s5, must be referred to a Medical Panel at the request of one or other party, providing the notice requirements of the section are met;
(ii) The only exceptions are if the referral:
§ Is an abuse of process; or
§ The formation of an opinion by the Medical Panel as to the medical questions will depend substantially (although not wholly) on factual issues which are more appropriately determined by a court;
(iii) The onus is on the party opposing the referral to satisfy the Court on balance that one of the exceptions applies;
(iv) The factual issues upon which the answers to the medical questions depend, must be identified. It is relevant to have regard to the materials which each party proposes to place before the Panel;
(v) The process which the Medical Panel utilises in assessing and answering the questions; that is:
§ the Panel assessment occurs on usually one, but sometimes two occasions over a short period of usually several hours;
§ is usually undertaken by a number of experienced medical practitioners with specialities aligned to the plaintiff’s injuries;
§ those specialists undertake a clinical assessment of the plaintiff;
§ is not an adversarial process, and cannot be the subject of challenge under cross-examination;
should be borne in mind.
(vi) An assessment should then be made as to whether those factual issues, which underly the determination of the medical questions, are more appropriately determined by a court.
16 The defendant provided details of the matters which it proposes to place before the Medical Panel in a document entitled “Statement pursuant to s65(6A)(b) of the Act”. Most of the material contained is not particularly controversial and appears to accept much of the detail contained in the plaintiff’s affidavit in support. However, paragraph 6 is as follows:
“On 31st August 2012, CGU (the WorkCover insurer) wrote to the plaintiff and advised her of its decision to reject her claim for weekly payments and medical and like expenses, because:
(a)she had not sustained an injury arising out of or in the course of her employment;
(b)she did not notify her employer of her injury within thirty days of becoming aware of her injury;
(c)her claim was deemed not to have been made as it was made after she ceased to be employed with her employer, and she had not provided a satisfactory explanation as to why she could not have made the claim while employed;
(d)she did not lodge her claim for weekly payments as soon as practicable after the incapacity arising from her claimed injury became known.”
17 All of these matters may well be the subject of contention by the plaintiff. By placing this material before the Panel, the defendant seeks to rely on information which, at least in part, alleges the plaintiff’s injuries are not work related. That material cannot be the subject of challenge by cross-examination.
18 The documents which the defendant submits will be placed before the Medical Panel are set out in a “Schedule of Attachments”. The documents include:
· The plaintiff’s affidavit in support of the serious injury application
· Submissions of each party to the Medical Panel
· Proposed Statement of Claim and Defence
· Various Claim Forms
· Various radiological investigations
· Operative notes
· Medical reports of a range of treating doctors obtained by the plaintiff
· Reports of the defendant’s practitioners, Mr McArthur and Mr Simm
· Clinical progress notes of treating practitioners
· Statements of employees of the defendant, Brown and Wilkinson.
19 Thus, the material which the defendant proposes be submitted to the Medical Panel is extensive and includes not only the opinion of other practitioners, but also affidavits and statements of the plaintiff and co-workers.
20 I was provided with a copy of the submissions which the defendant proposes to place before the Panel. Included in the submissions are the following:
· The defendant’s primary submission is that the plaintiff’s employment was not a significant contributing factor to injury.
· If the plaintiff suffered injury in the course of her employment, the injury resolved (wholly or substantially) with appropriate treatment.
· While the plaintiff’s duties involved manual handling of patients, nightshift nurses worked with personal care attendants and the defendant had in place policies, aides and supports relating to patient handling.
· The report of Mr McArthur, orthopaedic surgeon, who examined the plaintiff in August 2012, disclosed the following:
§ the plaintiff’s hip and shoulder movements were full and pain free;
§ the plaintiff suffered a further disc prolapse at L4-5 subsequent to her resignation in 2006 and that prolapse was not related to her employment;
§ the plaintiff’s back pain was well controlled with medication;
§ the surgical procedures undertaken to the plaintiff’s shoulders had been successful.
· The report of Mr Rodney Simm, orthopaedic surgeon, of November 2012, said:
§ the plaintiff’s symptoms were mostly under control;
§ she had no symptoms in her right hip or right shoulder;
§ there was mild restriction of movement in her thoracolumbar spine;
§ she suffered a chronic spinal pain syndrome which was related to underlying degenerative pathology, and not to her employment;
§ her hip injury was constitutional and age-related;
§ her shoulder problem, such as it was, was constitutional in origin and to the extent there were right-sided problems, these had resolved with surgery.
· The defendant also referred to various aspects of the reports of the plaintiff’s own practitioners.
· The plaintiff made no complaint that her symptoms were related to employment before her Claim for Compensation was lodged in 2012. Neither Ms Brown nor Ms Wilkinson were aware of any work-related injury being reported.
· The clinical notes do not refer to any association between her symptoms and employment.
21 Presumably, the defendant has made the above submissions because it believes the matters raised are relevant to the factual matrix from which the answers to the medical questions will be determined. Were it otherwise, why would the submissions be made?
22 It is further clear that many of the submissions involve matters upon which it would be relevant for the plaintiff to be examined and cross-examined. For example, it would be necessary for evidence to be adduced from the plaintiff as to the following:
· Whether she accepted the histories or findings provided to Mr McArthur and Mr Simm.
· Whether she did complain to co-workers that her symptoms were employment-related.
· The temporal link between the onset of symptoms and any particular work activity which she was conducting.
· Whether, in relation to her back injury, she suffered any symptoms after her resignation in 2006.
· Whether she had the full movement and lack of symptoms in the various injury-related areas as Mr McArthur and Mr Simm appeared to find.
· Whether she made complaints to her doctors or others as to whether her symptoms were related to employment tasks.
· The extent to which she suffered symptoms in any of the areas of injury before the relevant periods of employment.
23 All of these matters are relevant to determining the extent to which the plaintiff’s employment was causatively related to her various injuries. The issue of causation is a matter which requires not only medical opinion, but an assessment of relevant evidence, in particular of the plaintiff.
Conclusions
24 Having considered the above issues, I have concluded that the first question is a medical question proper for determination by the Medical Panel. As stated, a medical question asking as to the nature of a worker’s medical condition would usually be unobjectionable. Although the phrase “Medical condition” is somewhat inexact and vague, I presume it means a diagnosis of the plaintiff’s injuries; in other words, from what medical condition is the plaintiff suffering?
25 That question is in reality an issue for medical opinion. The Panel would examine the plaintiff, obtain a history from her, view the various radiological investigations and have regard to the opinions of the other practitioners who have examined her. That would appear an entirely appropriate process by which to determine the plaintiff’s medical condition, and the Medical Panel, the appropriate body to do so.
26 However, in my view, Questions 2 and 3 are in a different category. They each enquire as to the causative relationship between the plaintiff’s various injuries or conditions, and her employment with the defendant. The answers to those questions depend upon facts, including:
· Whether the plaintiff had any and what symptoms in the various areas of injury before the relevant employment.
· The temporal link between the onset of symptoms and a particular work duty or event.
· The credibility of the plaintiff generally.
· Whether she made complaints to co-workers and supervisors that her pain arose in the course of her work duties.
· Whether she made complaints to doctors that the symptoms were work-related.
· The evidence of the co-workers referred to.
In my view, these are all issues of fact more appropriately determined through the Court adversarial process. It will be necessary for the plaintiff, and possibly the defendant’s witnesses to give evidence about these matters and be challenged in cross-examination. Further the opinions of the various medical practitioners could be the subject of challenge in cross-examination. That process is not available to a Medical Panel. The relationship between injury and work is in part dependent upon medical opinion, and in part depended upon factual issues, in particular the evidence of the plaintiff.
27 The key issue, according to the defendant’s submissions, is whether the medical condition from which the plaintiff currently suffers in the various areas of injury, is related to her work duties, or to some underlying constitutional or degenerative condition. In my experience, the law on the one hand, and medicine on the other hand, approach this issue from different points of view. The law is more concerned with the temporal onset of symptoms in the work context, whether those symptoms continued unabated and the impact of any extraneous events. If a person has an underlying asymptomatic spine, for example, and a workplace incident causes that to become symptomatic, then the law regards responsibility to fall at the foot of the employer.
28 Medicine approaches the issue from a different point of view. While a temporal link is still significant, medicine has regard to a worker’s physiological structures, the effect upon those structures of some work-related incident and the capacity of the body to recover from it. It is not uncommon in courts to hear doctors give evidence that even although a worker may suffer symptoms from a work injury which continue over time, the work-related component has recovered and any ongoing symptoms are related to an underlying degenerative process. Medicine has regard to the physical recovery process of the body.
29 In all of these circumstances, I am of the view that Questions 2 and 3 have underlying issues of fact which are better determined by a court than by a Medical Panel.
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