Maimonis v Bourke
[2019] VSCA 302
•17 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0090
| THEO MAIMONIS | Applicant |
| v | |
| MR JOHN BOURKE & ORS (according to the Schedule attached) | Respondent |
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| JUDGES: | FERGUSON CJ, BEACH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 December 2019 |
| DATE OF JUDGMENT: | 17 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 302 |
| JUDGMENT APPEALED FROM: | [2019] VSC 456 (Quigley J) |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Whether medical panel failed to take into account full statutory definition of ‘injury’ – Whether panel erred in failing to consider issue of ‘significant contributing factor’ – Whether medical panel’s reasons were inadequate – Judicial review proceeding dismissed – No error by primary judge – Application for leave to appeal refused – Accident Compensation Act 1985, ss 5 and 82, Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 4, 39 and 40.
WORDS AND PHRASES – ‘Injury’ – ‘Aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’ – ‘Arising out of or in the course of any employment’ – ‘Significant contributing factor’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram QC with Mr N D Horner | Ellis Palmos & Co |
| For the First to Fourth Respondents | No appearance | DLA Piper Australia |
| For the Fifth Respondent | Mr J P Gorton QC with Ms F C Spencer | Lander & Rogers |
| For the Sixth Respondent | Mr J P Gorton QC with Ms F C Spencer | Wisewould Mahony |
FERGUSON CJ
BEACH JA
ASHLEY JA:
Between August 1999 and October 2015, Mr Theo Maimonis was a tram driver. Initially he was employed by Metrolink Victoria Pty Ltd (‘Metrolink’). On 30 November 2009,[1] however, his employment was transferred to KDR Victoria Pty Ltd (‘KDR’).
[1]At 3:00 am.
Mr Maimonis has a long history of neck and shoulder pain, first reported in the late 1980s or the early 1990s. His symptoms became worse over time and, on 28 October 2015, he ceased working. He had performed his full duties until then, but has not worked since that time.
Following the cessation of his employment with KDR, Mr Maimonis made claims for compensation in the form of weekly payments and medical and like expenses pursuant to the provisions of the Accident Compensation Act 1985 (‘the AC Act’) and its successor, the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’). These claims were rejected by Metrolink and KDR, resulting in Mr Maimonis commencing a proceeding in the Magistrates’ Court.
In the Magistrates’ Court proceeding, Mr Maimonis alleges that he has suffered injury as a result of driving C class trams throughout the course of his employment with Metrolink and KDR, and that this injury entitles him to compensation under the provisions of the AC Act and/or the WIRC Act. In his statement of claim in that proceeding, Mr Maimonis pleads the following injuries:
·injury to the cervical spine, requiring multiple surgical interventions, including C5–6/C6-7 anterior cervical discectomy and fusion and left C5–6 cervical foraminotomy and rhizolysis C6 nerve;
·aggravation of degenerative changes in the cervical spine;
·referred arm symptoms;
·injury to the left shoulder and arm;
·psychological injury secondary to physical injury; and
·anxiety and depression.
There is no dispute between the parties that Mr Maimonis suffers from a significant condition affecting his neck. The issue between the parties is whether Mr Maimonis suffered injury in the course of his employment with either of his employers (Metrolink or KDR, collectively ‘the employers’).
On 2 May 2018, a magistrate, pursuant to s 274 of the WIRC Act, referred ten medical questions to a medical panel. Subsequently, a medical panel was convened comprising Mr John Bourke, a specialist orthopaedic surgeon; Dr David Eaton, a specialist occupational and environmental physician; Mr Geoffrey Klug, a specialist neurosurgeon; and Dr Anthony Sheehan, a specialist psychiatrist.
On 23 July 2018, the medical panel provided a certificate of its opinion and a written statement of its reasons. The panel found that none of Mr Maimonis’ claimed injuries were work-related.
Following receipt of the medical panel’s opinion and reasons, Mr Maimonis commenced a proceeding in the Trial Division pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 seeking relief in the nature of certiorari to quash the medical panel’s opinion. The trial of this proceeding was heard on 20 June 2019. On 12 July 2019, the judge dismissed Mr Maimonis’ proceeding.[2]
[2]Maimonis v Bourke [2019] VSC 456 (‘Reasons’).
Mr Maimonis now seeks leave to appeal. His proposed grounds of appeal are as follows:
1.The trial Judge erred at [54]–[56] in holding that the word ‘worsening’ used by the Medical Panel was synonymous with ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’ appearing in the definition of ‘injury’ contained in s.5(1) of [the AC Act] and s 3 of [the WIRC Act].
2.The trial judge erred at [56] in holding that the use of the word ‘worsening’ by the Medical Panel in its reasons:
(a) was synonymous with the statutory definition of ‘injury’; and
(b)did not demonstrate a lack of understanding on the part of the Medical Panel of the statutory definition of ‘injury’.
3.The trial judge erred at [56] in holding that the Medical Panel correctly applied the statutory definition of ‘injury’ in the circumstances of the case when ‘it formed the view that constitutional factors caused the cervical spondylosis and then formed the view that this condition was not caused or worsened by [Mr Maimonis’] employment’.
4.The trial judge erred at [59]–[61] in holding that the Medical Panel had correctly applied the statutory definition of ‘injury’ in the circumstances of the case when it considered ‘some of the properties of the C class trams and the factors above could cause transient left arm and torso fatigue in drivers. It does not believe operating C class trams, or any of the factors above, contributed to the development of Mr Maimonis’ physical conditions described in the medical conditions section above, the development or worsening of the cervical spondylosis or the need for him to have surgical treatment in 2015 and 2016. The Medical Panel considers constitutional factors have caused Mr Maimonis’ cervical spondylosis’.
5.The trial judge erred at [62] in holding that there was no need to apply the test of significant contributing factor if, as the Medical Panel had done here, there was a finding that the underlying condition was caused wholly by non-work factors.
6.The trial judge erred at [63]–[64] in holding that if it was necessary to apply to the test of significant contributing factor in the present case, then the Medical Panel had in fact applied the correct test and had had regard to all of the mandatory factors set out in s 5(1B) of [the AC Act] and Schedule 1, Part 3, Clause 25 of [the WIRC Act].
7.The trial judge erred at [79] in holding that the reasons provided by the Medical Panel established a path of reasoning such that it was clear to see that the Medical Panel in correctly applying relevant legal principles had formed the view that the Plaintiff’s cervical spondylosis was caused by constitutional factors and had not been made worse in any relevant way by his employment.
The medical panel’s opinion
The medical panel’s opinion was formed following two examinations of Mr Maimonis. Mr Maimonis was examined by Dr Sheehan (the psychiatrist) on 21 June 2018; and jointly by Dr Eaton (the occupational and environmental physician), Mr Klug (the neurosurgeon) and Mr Bourke (the orthopaedic surgeon) on 2 July 2018.
While ten medical questions were referred to the panel for its opinion, having regard to the issues raised in this Court, it is only the panel’s answers to questions 1, 2 and 4 that are relevant. In its certificate of opinion, the medical panel set out those questions and answers as follows:
Question 1.What is the nature of Mr Maimonis’ medical condition relevant to the following alleged injuries:
(a)injury to the cervical spine, requiring multiple surgical interventions, including C5-6/C6-7 anterior cervical discectomy and fusion and left C5-6 cervical foraminotomy and rhizolysis C6 nerve;
(b)aggravation of degenerative changes in the cervical spine;
(c)referred arm symptoms;
(d)injury to the left shoulder and arm;
(e)psychological injury secondary to physical injury;
(f)anxiety and depression;
(g)neck pain;
(the said injuries)?
Answer:Mr Maimonis has no medical conditions relevant to the injuries alleged in points (a) to (g) above.
Question 2.Was Mr Maimonis’ employment with Metrolink from 29 August 1999 to 3.00am on 30 November 2009 in fact a significant contributing factor to any and, if so which, of the said injuries?
Answer: Mr Maimonis’ employment with Metrolink from 29 August 1999 to 3.00am on 30 November 2009 was not a significant contributing factor to any of the said injuries.
…
Question 4.Was Mr Maimonis’ employment with KDR after 3.00am on 30 November 2009 to 28 October 2015 in fact a significant contributing factor to any and, if so which, of the said injuries?
Answer:Mr Maimonis’ employment with KDR after 3.00am on 30 November 2009 to 28 October 2015 was not a significant contributing factor to any of the said injuries.
The medical panel’s reasons
The panel commenced its reasons by referring to its two examinations of Mr Maimonis, to which we have already referred. It stated it formed its opinions with regards to the documents and information referred to in ‘Enclosure A’, the history provided by Mr Maimonis and the findings elicited by the panel at its examinations. Enclosure A was a list of documents provided to the panel, which included court documents, clinical and progress notes, medical reports, medical imaging, ergonomic reports, photographs, workplace documents, Worksafe documents, a document described as ‘Role description – tram driver’ and submissions made by the parties. The panel then described the issues to which the referral to it related. In the course of that description, the panel identified Mr Maimonis’ claimed injuries in the same terms as those pleaded in his Magistrates’ Court proceeding. It then described the questions referred to it, identifying them as relating to:
Mr Maimonis’ present medical condition relevant to those alleged injuries and the extent to which employment with [the employers] separately contributed to those injuries and (again separately) whether any of Mr Maimonis’ medical conditions resulted from or were materially contributed to (past tense) or result from or are materially contributed to (present tense) by the employment.
The panel then recorded Mr Maimonis’ submission that operating C class trams in the course of his employment with both employers contributed to his injury because it involved:
·Forceful and repetitive use of the left arm to push and pull the master controller.
·Sustained forward reaching when using the master controller.
·Repetitive neck movements greater than 30 degrees to do visual checks because of the inadequacy of the CCTV system and for other reasons.
·Whole-body vibration and swaying on certain sections of track accentuated by poor driver seat design.
·Regular emergency stops and occasional collisions with other vehicles.
·Poor seat design was preventing Mr Maimonis from placing his feet on the floor.
The panel then referred to various medical, ergonomic and engineering reports relied upon by Mr Maimonis which supported a causal connection between operating the C class trams and Mr Maimonis’ neck injury. Having identified those reports, the panel then went on to identify and refer to medical and ergonomic reports relied upon by the employers which disputed the existence of a causal connection between operating the C class trams and Mr Maimonis’ condition. Amongst these reports, the panel referred to a medical report from Dr Kostos that it said proposed an alternative view to the reports relied upon by Mr Maimonis, namely that:
Mr Maimonis had spinal disc degeneration and osteoarthritis with multiple foraminal stenosis that were largely constitutional and determined by hereditary factors and that ‘the so-called wear and tear concept has largely been discredited’.
The panel then set out the history Mr Maimonis gave it about the onset of symptoms and treatment in the late ‘80s to early ‘90s, with an increase in the severity of his neck pain and pain in his left arm shortly after he started driving C class trams in 2004 or 2005. The panel referred to Mr Maimonis’ estimate that he operated C class trams about 40 per cent of the time, with the remainder of his time being spent on other classes of trams. Further matters of medical history, culminating in the performance of surgery to Mr Maimonis’ neck in October 2015 and April 2016, were then set out by the panel. It also described Mr Maimonis’ present symptoms, function and treatment, before summarising his work, personal and psychiatric histories.
Next, the panel set out its findings on physical examination and the findings of a mental state examination conducted by it. In addition, it summarised the relevant radiological evidence (reports and films) that had been provided to it.
The panel then commenced its ‘analysis relevant to the medical questions’. In respect of Mr Maimonis’ physical conditions, the panel said:
The Medical Panel considers Mr Maimonis developed symptomatic cervical spondylosis in the late 1980s. He later also developed some left C6 nerve root symptoms and possibly signs. He had cervical spine surgery in 2015 and 2016. He has no current clinical or radiological evidence of cervical radiculopathy or myelopathy.
The Medical Panel considers Mr Maimonis’ current physical diagnosis is surgically treated symptomatic cervical spondylosis with persisting neck pain and radicular symptoms in the left arm but without radiculopathy or myelopathy.
The Medical Panel does not believe Mr Maimonis has any intrinsic medical condition of his left shoulder or left arm and his symptoms in his left upper extremity are referred from the cervical spine condition mentioned immediately above.
The Medical Panel considers the radiological findings of subacromial bursitis are incidental; they are common findings in people of Mr Maimonis’ age — with and without symptoms — he has no symptoms or clinical signs of subacromial bursitis, rotator cuff tendinopathy or any other condition of his left shoulder.
The panel then turned to Mr Maimonis’ psychiatric conditions, noting that he began seeing his treating psychiatrist ‘around 1995’. The panel agreed with the treating psychiatrist’s diagnosis that Mr Maimonis has a chronic obsessive-compulsive disorder and a major depressive disorder.
Thus far, the panel had expressed conclusions as to the physical and psychiatric conditions from which the applicant suffered. Then it turned to the question of causation. It did so under the heading ‘The significant contributing factors to the said injuries’. Use of the term ‘significant contributing factors’ picked up the language of the second and third questions referred for the panel’s consideration, and in turn the definition of ‘significant contributing factor’ in the legislation and the deployment of that term in s 82(2C) of the AC Act and s 40(3) of the WIRC Act. Specifically, the panel said:
Mr Maimonis argues that properties of the C class trams he drove between around 2003 and 2015 (for around 40% of his working hours) significantly contributed to the injuries (particularly the neck and left upper extremity injuries). In particular, he identified properties of the (left-hand) master controller, driver’s seat and swaying of the trams.
Mr Maimonis and both defendants have supplied medical, ergonomic and engineering reports. The Medical Panel has reviewed all that information and summarised some of it in the issues section above.
The Medical Panel noted the ergonomic and engineering properties of the C class trams including:
·Low-frequency swaying (vibration), possibly compensated to some degree by a suspension system built into the driver’s seat.
·Driver’s seats that were at times difficult to adjust.
·Intermittent head and neck rotation more than 20 degrees to either side to watch passengers get on and off the tram and to see traffic.
·Exerting forces of around 1.5-2.2 kg push and 1.4-1.8 kg pull [to operate] the master controller.
·The absence of a left-side armrest until around 2010.
·Changes made to the master controller sometime between 2003 and 2015.
The Medical Panel considers some of the properties of the C class trams and the factors above could cause transient left arm and torso fatigue in drivers. It does not believe operating C class trams, or any of the factors above contributed to the development of Mr Maimonis’ physical conditions described in the medical conditions section above, the development or worsening of the cervical spondylosis or the need for him to have surgical treatment in 2015 and 2016. The Medical Panel considers constitutional factors have caused Mr Maimonis’ cervical spondylosis.
The panel then turned again to Mr Maimonis’ psychiatric conditions, stating that, as it
[did] not believe employment with [the employers] contributed to or caused the neck condition or the left arm pain, it also [did] not consider that employment caused, contributed to causing, or worsened Mr Maimonis’ psychiatric conditions.
Under the heading ‘Summary’, the panel said that in its opinion Mr Maimonis had no medical conditions relevant to his claimed injuries and, as such, the panel concluded that Mr Maimonis’ employment with each of the employers ‘was not a significant contributing factor to any of the said injuries’.
The relevant statutory provisions
To the extent that any injury suffered by Mr Maimonis arose out of, or in the course of, or due to the nature of, employment solely before 1 July 2014, his entitlement to compensation is governed by s 82 of the AC Act, which relevantly provides:
(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
…
(2C)There is no entitlement to compensation in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injury –
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
The word ‘injury’ is defined in s 5(1) of the AC Act to mean:
Injury means any physical or mental injury and, without limiting the generality of that definition, includes –
…
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
In relation to the expression ‘significant contributing factor’, contained in s 82(2C), s 5(1B) of the AC Act provides:
In determining for the purposes of this Act whether a worker’s employment was a significant contributing factor to an injury –
(a) the duration of the worker’s current employment; and
(b) the nature of the work performed; and
(c) the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e)the existence of any hereditary risks; and
(f)the life-style of the worker; and
(g)the activities of the worker outside the workplace –
must be taken into account.
To the extent that any injury suffered by Mr Maimonis arose out of, or in the course of, or due to the nature of, employment on or after 1 July 2014, or by ‘way of gradual process over a period beginning before, and continuing on or after 1 July 2014’ (but not arising out of, or in the course of, or due to the nature of, employment solely before 1 July 2014), his entitlement to compensation is governed by the provisions of the WIRC Act.
That said, for present purposes, there are no material differences between the statutory regimes: s 39(1) of the WIRC Act is relevantly identical to s 82(1) of the AC Act; s 40(3)(c) of the WIRC Act is relevantly identical to s 82(2C)(c) of the AC Act; and the definitions of ‘injury’ and ‘significant contributing factor’ in the WIRC Act[3] are relevantly identical to those in the AC Act.
[3]See ss 3, 4(5) and cl 25 of Part 3 of Schedule 1 of the WIRC Act.
The issues in dispute
Before the primary judge, Mr Maimonis made a number of complaints about the panel’s opinion and reasons — all of which were rejected by the judge. In this Court, he seeks to pursue only three of those complaints.
First, Mr Maimonis contends that the panel fell into jurisdictional error when it failed to take into account or properly consider the full definition of the word ‘injury’, which includes the aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
In support of that contention, Mr Maimonis submitted that the panel’s conclusion that operating C class trams had not ‘contributed to the development of … [his] physical conditions … [or] the development or worsening of [his] cervical spondylosis or the need for him to have surgical treatment in 2015 and 2016’, demonstrated that the panel had a ‘poor grasp of the causal question that it was being asked to answer’.[4] He submitted that each of the words used in the definition (namely, ‘aggravation’, ‘acceleration’, ‘exacerbation’ and ‘deterioration’) were required to be considered, and that the term ‘worsening’ used by the panel in relation to his cervical spondylosis did not cover all of the matters required to be considered by the provisions of the legislation, and demonstrated that the panel had fallen into jurisdictional error.
[4]Reasons [50].
Secondly, Mr Maimonis contended that the panel fell into jurisdictional error by failing to consider the legislative definition of the factors that were required to be taken into account when determining whether employment was a significant contributing factor to an injury.
In support of that contention, Mr Maimonis submitted that, in answering the medical questions, the panel was required to take into account what he said were ‘the mandatory factors’ set out in the definition of ‘significant contributing factor’. He submitted that no explicit reference could be found in the panel’s reasons to these mandatory factors, showing that the panel had not taken any of them into account.
Thirdly, Mr Maimonis contended that the panel failed to give a statement of reasons sufficient to comply with s 313(2) of the WIRC Act. In support of this contention, Mr Maimonis submitted that the reasons were inadequate because they failed to specify why the panel considered that his neck condition was solely constitutional and had not been affected in any way by his employment.
The primary judge’s reasons
As we have already observed, the judge rejected each of Mr Maimonis’ complaints.
In rejecting the complaint that the panel had not applied the statutory language and considered whether any of Mr Maimonis’ conditions could be described as an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease, the judge accepted a submission made by the employers that the panel’s reference to ‘worsening’ was in effect a shorthand and inclusive way of referring to each of the individual words used in the relevant legislative provisions.
Specifically, the judge was not persuaded that the conclusion of the panel, where it used the word ‘worsening’, demonstrated any lack of understanding of the statutory test it was required to apply, or any lack of understanding of the elements of that test.[5] ‘Worsening’ was, she said, a commonly understood synonym of each of the words of the statutory test (‘aggravation’, ‘acceleration’, ‘exacerbation’ and ‘deterioration’).[6]
[5]Ibid [56].
[6]Ibid [55].
In relation to Mr Maimonis’ complaint about the judge’s alleged failure to engage with the statutory elements of the expression ‘significant contributing factor’, the judge said that it was not necessary for the panel to consider these matters once it concluded that Mr Maimonis had not suffered an injury arising out of or in the course of his employment with either of the employers.[7]
[7]Ibid [62].
In the alternative, the judge said that if, contrary to her analysis, the matters in the definition of significant contributing factor were required to be taken into account then, in her view, the panel ‘by necessary implication’ considered those matters in the definition that were relevant in the circumstances.[8]
[8]Ibid [63].
With respect to Mr Maimonis’ complaint about the panel’s reasons, the judge said that, on a fair reading of the reasons, the panel’s path of reasoning was ‘clear’.[9] The judge then said:
The Panel formed the view that his medical condition, cervical spondylosis, was caused by constitutional factors and they found that it was not made worse in any relevant way by his employment.
Further, there is no obligation on the Panel to provide extensive reasons for something that they did not find. Having formed the opinion that Mr Maimonis’ medical condition was constitutional, this excluded other work-related reasons for his condition.[10]
[9]Ibid [79].
[10]Ibid [79]–[80] (citation omitted).
Parties’ contentions
As we have already observed, Mr Maimonis’ argument in this Court concerned three issues:
·an issue concerning the panel’s use of the word ‘worsening’ instead of the statutory words ‘aggravation, acceleration, exacerbation or deterioration’[11] (‘the worsening grounds’);
·a contention that the panel failed to consider the issue of whether employment was a significant contributing factor to Mr Maimonis’ injuries[12] (‘the significant contributing factor grounds’); and
·a contention that the panel’s reasons were inadequate[13] (‘the reasons ground’).
[11]Grounds 1–4.
[12]Grounds 5 and 6.
[13]Ground 7.
In relation to the worsening grounds, Mr Maimonis took the Court to a number of decisions that dealt with the meaning of the words ‘aggravation’, ‘acceleration’, ‘exacerbation’, and ‘deterioration’ to show the breadth and extent of each of those words and to support his submission that the word ‘worsening’, ‘does not garner the breadth conveyed in the statutory definition’. So the Court was taken to Federal Broom Co Pty Ltd v Semlitch,[14] Darling Island Stevedoring & Lighterage Co Ltd v Hankinson,[15] Commonwealth of Australia v Beattie,[16] Casarotto v Australian Postal Commission,[17] Tippett v Australian Postal Corporation,[18] and Long v Kmart Australia Limited.[19]
[14](1964) 110 CLR 626 (‘Semlitch’).
[15](1967) 117 CLR 19 (‘Darling Island’).
[16](1981) 35 ALR 369 (‘Beattie’).
[17](1989) 86 ALR 399 (‘Casarotto’).
[18](1998) 27 AAR 40 (‘Tippett’).
[19][2016] TASSC 6 (‘Long’).
Mr Maimonis then referred to extracts from clinical notes and medical reports which contained histories he provided of aggravations and exacerbations of neck, shoulder and arm pain, and expressions of opinion that work as a tram driver ‘may well re-aggravate him in the future’. Mr Maimonis submitted that if the panel had understood and applied the proper statutory test then ‘it would not have looked at [Mr Maimonis’] underlying cervical spondylosis, but rather to [his] symptomatic history including analysing for that purpose at least the clinical notes identified, medical reports upon which [he] relied and the history which [he] provided to the panel’. Such an approach on the evidence, it was submitted
would likely have warranted a medical panel assessing a ‘recurrence, aggravation, acceleration, exacerbation or deterioration’ of pre-existing cervical spondylosis.
In respect of the significant contributing factor grounds, Mr Maimonis submitted in writing that the significant contributing factor test had to be applied ‘because it clearly fell within the ambit of … the referred medical questions’, and it ‘is a component of establishing compensable injury’. But in oral argument, senior counsel for Mr Maimonis accepted that if his submissions with respect to grounds 1 to 4 failed, then the significant contributing factor grounds would fall away.
In relation to the reasons ground, Mr Maimonis submitted that the primary judge erred in holding that the panel’s reasons disclosed a path of reasoning sufficient to show that the panel had complied with its statutory function. Specifically, he submitted that the reasons provided by the panel do not show that the panel correctly applied the statutory definition of ‘injury’ or the significant contributing factor test.
The employers submitted that leave to appeal should be refused on the basis that Mr Maimonis’ appeal has no real prospect of success.[20]
[20]Supreme Court Act 1986, s 14C.
In relation to the worsening grounds, the employers submitted that the judge was correct to conclude that the panel did have in mind the extended statutory definition of injury when it came to perform its task. It could not have been otherwise. Mr Maimonis had pitched his case to the panel by reference to the extended definition. Moreover, medical reports provided to the panel by the parties had variously used the language of ‘aggravation, ‘acceleration’, ‘exacerbation’ as well as language removed from the legislation — for instance ‘worsening of the symptomatology’, ‘progression of the symptoms’ and ‘increase’.
The employers also submitted that a fair reading of the panel’s reasons leaves no doubt that the panel well understood its task, and correctly carried out its statutory function.
In relation to the significant contributing factor grounds, the employers submitted in writing that, the panel having concluded that Mr Maimonis did not suffer an injury arising out of or in the course of his employment,[21] the issue of significant contributing factor[22] did not arise.
[21]Section 82(1) of the AC Act and s 39(1) of the WIRC Act.
[22]Section 82(2C)(c) of the AC Act and s 40(3)(c) of the WIRC Act.
In the alternative, the employers submitted in writing that the primary judge was correct in her alternative conclusion that if the issue of significant contributing factor was required to be considered by the panel, then its reasons disclosed that it did so in the performance of its statutory function.
The submissions referred to in the preceding two paragraphs were not developed orally having regard to the concession mentioned at [42] above.
With respect to the reasons ground, the employers supported the primary judge’s conclusion for the reasons she gave. The employers described the panel’s reasons as ‘well-reasoned and carefully expressed’. There was, they submitted, no basis for contending that the reasons were in any way inadequate.
Consideration
When considering each of Mr Maimonis’ grounds of appeal, it is necessary to bear in mind the following principles, which were referred to specifically by the primary judge:
(1) The function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise. It is not its role to make up its mind by reference to competing contentions or competing medical opinions, but to form its own opinion.[23]
[23]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498–9 [47] (‘Wingfoot’); Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281, [59]; Reasons [47].
(2) It is not enough for a party challenging a medical panel’s opinion to show that the panel’s reasons for its decision are so expressed as to suggest the possibility that it preceded upon a wrong view of the law. A court is not entitled to interfere with a medical panel’s decisions unless it is satisfied that there was in fact a vitiating error of law.[24]
[24]Body Corporate Strata Plan No 4166 v Stirling Properties Ltd [No 2] [1984] VR 903, 913; Dixon v Hacker [2007] VSC 342, [41]–[42]; Ventrice v Riva Plaster Pty Ltd [2008] VSC 415, [12]; Reasons [47].
(3) A medical panel is an expert tribunal and not a judicial body. Its findings need to be viewed in that light. A medical panel’s reasons are meant to inform. Overzealous judicial review is to be eschewed.[25]
(4) A medical panel’s statement of reasons must explain the actual path of reasoning by which it arrived at the opinion it in fact formed on the medical questions 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. A medical panel 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.[26]
[25]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2; Dixon v Hacker [2007] VSC 342, [44]; Reasons [47].
[26]Wingfoot (2013) 252 CLR 480, 501–2 [55]–[56].
When all of these matters are carefully borne in mind, it can be seen that there is no substance in any of Mr Maimonis’ grounds of appeal.
With respect to the worsening grounds, we accept the employers’ submission that a fair reading of the panel’s reasons as a whole, and in the context of the issues and material before the panel, leaves no doubt that the panel well understood its task and that it correctly carried out its statutory function of determining for itself whether Mr Maimonis’ work caused any recurrence, aggravation, acceleration, exacerbation or deterioration of his pre-existing neck condition. As counsel submitted, the extended definition of ‘injury’ was at the forefront of the debate, referred questions 2 and 4 focussed upon the extended definition by addressing the issue of ‘significant contributing factor’, the medical reports made use of a variety of language to affirm or deny compensable injury, the language which was used included the conception of increase in symptomatology without any effect upon the underlying condition, the panel’s reasons recognised that Mr Maimonis’ medical opinion addressed both the condition and the worsening of symptoms of it, and the panel addressed both condition and symptoms in its causation conclusions.
In the event, we accept that the use of the word ‘worsening’ was a convenient shorthand for the statutory words ‘aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.
The panel was not the first body to use the word ‘worsening’ in this context. In St Mary’s School v Askwith,[27] the judgment of the primary judge contained a number of repetitions of the word ‘worsening’ in a case involving the same statutory provisions as are here under consideration.
[27][2011] VSCA 90 (‘Askwith’).
In Askwith, it was submitted, amongst other submissions, that a problem with the approach taken by the primary judge in that case:
was exacerbated because his Honour has not adhered to the language of paragraph (c) of the definition of injury, but had instead used the imprecise term ‘worsening’.[28]
[28]Ibid [48].
That complaint was rejected by the Court of Appeal.[29] The Court noted that at an early stage in his reasons the primary judge explained what he meant by ‘worsening’. The Court then said that ‘it [worsening] was a contraction used by the parties, and adopted by the judge, as a shorthand for paragraph (c) of the definition of injury’.[30]
[29]Ashley JA, with whom Warren CJ and Kyrou AJA agreed.
[30]Ibid [50].
It is true, as Mr Maimonis’ counsel submitted in reply, that the primary judge in Askwith, having referred to the ‘worsening’ of the worker’s mental disease, added ‘and so to the aggravation, acceleration, exacerbation and deterioration of’ the mental disorder. But according to counsel’s submission, it will always be a mistake to enquire whether a condition was made worse, because, as Kitto J said in Semlitch,[31] the words of extension ‘are not all given their true force’. Askwith shows, however, that the use of shorthand for the extended definition will not necessarily connote error. The circumstances of that matter showed that the substantive enquiry was in fact complete, despite use of the word ‘worsen’ or ‘worsening’. More broadly, whilst enquiry whether a statutory test has been satisfied is best made by reference to the relevant statutory language, use of a shorthand expression for the statutory language will not reveal error ‘so long as the short hand does not displace or obscure the correct test’.[32]
[31](1964) 110 CLR 626, 634.
[32]Attanayake v Simplot Australia Pty Ltd [2019] VSC 387.
None of the authorities relied upon by Mr Maimonis assist him in respect of the worsening grounds. While it may be accepted that Semlitch, Darling Island, Beattie, Casarotto, Tippett and Long delineate, at least to some extent, the meaning of each of the words used in the definition of ‘injury’, those authorities cannot lead to a conclusion – other than by overzealous judicial scrutiny – that the panel failed to consider the full ambit of the extended definition, when the circumstances revealed the contrary.
We add only this with respect to the worsening grounds. The legal conception that the extended definition of ‘injury’ can be satisfied by the onset or progression of symptoms, in the absence of any deleterious effect having been caused upon an underlying condition, is one which we think that some but not all medical practitioners would be likely to understand. We think that it would be wise, if such a case is to be advanced by a worker in the context of referral of medical questions to a panel, that the panel’s attention should be drawn to the principle.
In light of our conclusions with respect to the worsening grounds, the significant contributing factor grounds fall away. We add that we agree with the judge, for the reasons she gave, that there was no substance in Mr Maimonis’ written arguments.
The panel posed the causation issue by reference to the significant contributing factor questions posed for its determination; and it then decided, in answering those questions, that in fact the applicant had not suffered any injury arising out of or in the course of his employment. This conclusion decided the ‘significant contributing factor’ questions. The reasoning was unexceptional.
Having concluded that there had not been ‘caused to [Mr Maimonis] an injury arising out of or in the course of [his] employment’,[33] there was no occasion for the panel to give any consideration to the issue of ‘significant contributing factor’ under either s 82(2C)(c) of the AC Act or s 40(3)(c) of the WIRC Act. The issue of ‘significant contributing factor’ could only arise in the circumstances described in s 82(2C) of the AC Act (and s 40(3) of the WIRC Act) if Mr Maimonis had already been found to have suffered an injury arising out of or in the course of his employment under s 82(1) of the AC Act (or s 39(1) of the WIRC Act). So much is plain from the text of the relevant provisions.[34]
[33]See s 82(1) of the AC Act and s 39(1) of the WIRC Act.
[34]For the sake of completeness, we note there are authorities dealing with s 82 of the AC Act that discuss the requirement of a worker to satisfy both the arising out of or in the course of employment test and the significant injury test, and the question of which test is more stringent (see for example Popovski v Ericsson Pty Ltd [1998] VSC 61 and Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141). Those cases concerned a different version of s 82 of the AC Act.
Finally, there is no substance in Mr Maimonis’ complaints about the adequacy of the panel’s reasons. The panel clearly explained why it did not regard Mr Maimonis as having suffered an injury arising out of or in the course of his employment. The panel was required to do no more. We agree with the judge in relation to this issue. For the reasons given by the judge, the reasons ground is without substance.
Conclusion
The application for leave to appeal must be refused.
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SCHEDULE OF PARTIES
| THEO MAIMONIS | Applicant |
| and | |
| MR JOHN BOURKE | First respondent |
| MR DAVID EATON | Second respondent |
| MR GEOFFREY KLUG | Third respondent |
| DR ANTHONY SHEEHAN | Fourth respondent |
| METROLINK VICTORIA PTY LTD | Fifth respondent |
| KDR VICTORIA PTY LTD | Sixth respondent |
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9
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