Maimonis v Bourke
[2019] VSC 456
•12 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01474
| THEO MAIMONIS | Plaintiff |
| v | |
| MR JOHN BOURKE | |
| DR DAVID EATON | |
| MR GEOFFREY KLUG | |
| DR ANTHONY SHEEHAN | First to Fourth Defendants |
| and | |
| METROLINK VICTORIA PTY LTD | |
| KDR VICTORIA PTY LTD | Fifth and Sixth Defendants |
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JUDGE: | QUIGLEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 June 2019 |
DATE OF JUDGMENT: | 12 July 2019 |
CASE MAY BE CITED AS: | Maimonis v Bourke & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 456 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Order 56 – Certiorari to quash the determination of the Medical Panel – Whether jurisdictional error – Taking into account irrelevant considerations – Failure to take into account relevant considerations – Whether Panel’s statement of reasons adequate – Procedural fairness – No error established – Definition of ‘injury’ considered – Accident Compensation Act 1985 ss 82, 5(1B) – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 40(3), sch 1 pt 3 cl 25.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Horner | Ellis Palmos Lawyers |
| For the First to Fourth Defendants | No appearance | DLA Piper Australia |
| For the Fifth and Sixth Defendants | Mr J P Gorton QC with Ms F C Spencer | Lander & Rogers and Wisewould Mahony |
HER HONOUR:
Introduction
The Plaintiff, Theo Maimonis, began work as a tram conductor in November 1987 with what was then the Public Transport Corporation. In 1991 he retrained as a tram driver after conductors were abolished on Melbourne’s trams.
In August 1999, he started working for Metrolink Victoria (the fifth defendant) when that entity took over operation of Melbourne’s trams. Subsequently, he was employed as a tram driver by KDR Victoria (the sixth defendant) from 30 November 2009 to 28 October 2015.
In his employment as a tram driver with both Metrolink Victoria (‘Metrolink’) and KDR Victoria (‘KDR’) he drove C-class trams from around 2001. He also drove W-class and Z-class trams during his employment, but it is the C-class trams which is the focus of the causal connection between the injury claimed and work, the subject of this proceeding.
Mr Maimonis has a long history of neck and shoulder pain first reported in the late 1980’s or early 1990’s. His symptoms became worse and on 28 October 2015 Mr Maimonis ceased working. He had performed his full duties until then but has not worked since that time.
Just over a month after his employment with KDR ceased, he lodged a Workcover claim against KDR for a neck injury. This claim was rejected on 4 January 2016. Later that year Mr Maimonis also made a Workcover claim against Metrolink for a neck injury. On 5 October 2016 this claim was also rejected.
There was no dispute between the parties that Mr Maimonis’s neck condition, cervical spondylosis, is quite significant. The condition has led him to undergo two operations and other treatments between. The issue is whether he sustained an injury arising out of or in the course of his employment as defined by the Accident Compensation Act 1985 (‘ACA’) in respect of the period of employment with Metrolink or the successor to that legislation the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’) for the period of employment with KDR.
On 28 November 2016 the Plaintiff sought review of the rejections of his Workcover claims in the Magistrate’s Court. The medical evidence was contradictory and on 2 May 2018, the presiding magistrate referred ten questions, set out below, to a Medical Panel (the ‘Panel’).
The Panel gave its certificate of opinion (the ‘Opinion’) on 23 July 2018 together with written reasons (the ‘Reasons’).[1] It is in respect of this Opinion that Mr Maimonis seeks relief in the nature of the certiorari quashing the Opinion of the Panel and an order remitting the medical questions on which the Opinion was given to a differently constituted panel to be reconsidered in accordance with law.
[1]The Medical Panel comprised the named medical practitioners who are the first, second, third and fourth defendants in this proceeding.
By correspondence dated 19 March 2019 the Panel elected not to participate in the proceedings save to be heard as to costs in the event a costs order was proposed against them, pursuant to principles enunciated in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors.[2]
[2](1980) 144 CLR 13.
Metrolink and KDR, the fifth and sixth defendants (together, ‘the Defendants’) are jointly represented and participated in the proceedings before the Court.
The claimed injury
The pleadings in the Magistrates Court proceeding alleged the following 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; and
(g) Neck pain;
(the said injuries)
The submissions before the Panel made it clear that the claim was not put on the basis that Mr Maimonis’s employment with either defendant caused the degenerative changes in his cervical spine. Instead it was put that the employment with either of the defendants has been a ‘significant contributing factor’ to the aggravation, acceleration, deterioration, or exacerbation of the degenerative changes in his cervical spine.
His claim was also not put on the basis of an incident or incidents while employed by either of the defendants but rather as a result of the particular stresses and strains associated with his employment as a tram driver with them and more particularly with his employment driving the C-class trams.
Medical and work history given to the Panel
Mr Maimonis gave the Panel a history which indicated that in the late 1980’s to 1990’s he developed neck and left arm pain. He attributed that in part to handling heavy bags containing coins, as he did as a tram conductor.[3] He saw a general practitioner and physiotherapist. The symptoms were not severe. He said the pain decreased when he was not working and that after he stopped working as a conductor, he had continuing pain in his neck and left shoulder, although it was less severe than it was while working. It did not affect his normal activities. Between 1991 and around 2003 he drove W-class trams which are operated by hand controls with left-hand power and right-hand break, and Z-class trams which were operated by foot controls.
[3]This is noted by way of background as no claim was made in relation to his work as a tram conductor.
Around 2004, or shortly after he started driving C-class trams, Mr Maimonis began having more severe neck pain, pain in his left arm below the shoulder and tingling in the fingers of his left hand. C-class trams were operated using a left-hand master control.
The symptoms evolved gradually. His GP, Dr Arsenakis, noted that the left arm and neck symptoms that Mr Maimonis complained of intermittently were becoming more constant.
Around January 2005 Mr Maimonis saw a general practitioner and had CT scans of his cervical spine. In March 2008 he had MRI scans of his spine and again in February 2014. He had a CT guided corticosteroid injection in March 2014. In August 2015 he consulted Orthopaedic Surgeon, Mr Quan, about the worsening symptoms of left arm pain and weakness in left-sided neck pain. Mr Quan considered he had a large degenerative C5/6 disc protrusion causing severe left C5/6 foraminal stenosis and impinging on the left C6 nerve root. He suggested treatment options including another left C6 nerve root injection, or surgery.
In September 2015 Mr Maimonis saw neurosurgeon Mr Xenos for a second opinion. On 30 October 2015 Mr Xenos performed on Mr Maimonis a procedure called a C5/6/7 anterior cervical discectomy and C6 rhizolysis and fusion.
Mr Maimonis’s neck and left arm symptoms were better for some time after the operation but gradually worsened again. In January 2016 he saw a neurologist because of facial pain that he thought was a mixture of neck pain and atypical facial pain.
In March 2016 Mr Maimonis consulted another neurosurgeon, Mr Hall, about the worsening left side neck pain and left arm pain. Mr Hall referred him for a CT guided left C6 nerve root injection which slightly improved his arm pain for 48 hours afterwards. Based on that and the results of MRI scans demonstrating possible compression of the left C6 nerve root by an osteophyte, Mr Hall performed a further procedure on 19 April 2016. After that procedure the neck and arm pain was significantly better but not had resolved.
Mr Hall arranged post-operative imaging that he considered demonstrated adequate decompression of the left C6 nerve root and did not consider any additional surgery was indicated.
Mr Maimonis wanted to return to work after the second surgical procedure and KDR arranged for an assessment with a specialist occupational and environmental physician. However, KDR did not arrange for him to return to work.
The questions before the Panel
The focus of the statutory provisions in issue in respect of entitlement to compensation in this case is the phrase in sub-s (2C) of s 82 of the ACA,[4] being that there is no entitlement to compensation in respect of the injury unless the worker’s employment was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
[4]Replicated in the Workplace Injury Rehabilitation and Compensation Act 2013 s 40(3).
The questions before the Panel, and the Panel’s answers were as follows:
Question 1. What is the nature of Mr Maimonis's 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 CS-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)psychology 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's employment with Metrolink Victoria Pty Limited (the first defendant) 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’s employment with Metrolink Victoria Pty from 29 August 1999 to 3.00am on 30 November 2009 was not a significant contributing factor to any of the said injuries.
Question 3. If yes to question 2, what is the extent to which any physical or mental condition of Mr Maimonis:
(a)resulted from or was materially contributed to by:
(b)results from or is materially contributed to by:
any and, if so which, of the said injuries?
Answer: Not applicable.
Question 4. Was Mr Maimonis’s employment with KDR Pty Ltd (the second defendant) 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's employment with KDR Pty Ltd after 3.00am on 30 November 2009 to 28 October 2015 was not a significant contributing factor to any of the said injuries.
Question 5. If yes to question 4, what is the extent to which any physical or mental condition of Mr Maimonis:
(a)resulted from or was materially contributed to by:
(b)results from or is materially contributed to by:
any and, if so which, of the said injuries?
Answer: Not applicable.
Question 6. In any, and if so, what period from 28 October 2015 to the date of the Medical Panel examination did Mr Maimonis have:
(c)the capacity to work in his pre-injury duties as a tram driver;
(d)a current work capacity;
(e)no current work capacity?
Answer: Not applicable.
Question 8. If applicable, whether Mr Maimonis's incapacity for work, if any:
(a)resulted from or was materially contributed to by;
(b)results from or is materially contributed to by:
any, and if so, which of the said injuries provided in answer to question 2?
Answer: Not applicable
Question 9. If applicable, whether Mr Maimonis's incapacity for work, if any:
(a)resulted from or was materially contributed to by;
(b)results from or is materially contributed to by:
any, and if so, which of the said injuries provided in answer to question 4?
Answer: Not applicable
Question 10. If applicable, was it appropriate for Mr Maimonis to undergo:
(a)the C5-6/C6-7 anterior cervical discectomy and fusion surgery on 30 October 2015; and/or
(b)the left C5-6 cervical foraminotomy and rhizolysis C6 nerve surgery on 19 April 2016;
as treatment for any and, if so which, of the said injuries?
Answer: Not applicable.
The Panel’s Reasons
Contemporaneously with the provision of the answers the Panel gave to the referred questions (set out above), it provided written reasons.
The Panel recorded that it had before it an extensive range of documents and information including written submissions on behalf of the parties, the pleadings, CT and MRI scans and x-rays as well as the various medical reports of treating doctors including Dr Arsenakis, Mr Quan, Mr Xenos and Mr Hall and medico-legal opinions of Mr Brownbill, Dr Slesenger, Dr Kostos, Mr Siu, Mr Jones, Dr Baynes, Dr Shan, Dr Sabetghadam and other medical reports and records. In addition, they had ergonomic and workplace reports relevant to tram driving, in particular the C-class trams.[5] They also had the opportunity to physically examine Mr Maimonis.
[5]A schedule of the documents is enclosure A to the Reasons at Court Book, Maimonis v Bourke & Ors (Supreme Court of Victoria, S ECI 2018 01474, Justice Quigley, 20 June 2019) 1515-1518 (‘CB’).
The Panel summarised the task arising from the questions referred to it as relating to:
(a)Mr Maimonis’s present medical condition relevant to those alleged injuries and the extent to which employment with the defendants separately contributed to those injuries and (again separately) whether any of Mr Maimonis’s medical conditions resulted from or were materially contributed to (past tense) or result from or are materially contributed to (present tense) by the employment.
(b)Mr Maimonis’s work capacity from 28 October 2015 to the date of the Medical Panel’s examination (past tense) and his current work capacity (present tense) at the time of that examination. If Mr Maimonis had or has had an incapacity for work, the Panel is also asked to determine the extent to which incapacity for work resulted from or was materially contributed to by employment with the defendants separately.
(c)Whether it was (past tense) appropriate for Mr Maimonis to have surgical procedures on his neck on 30 October 2015 and 19 April 2016.
The Reasons record Mr Maimonis’s contention that operating C-class trams in the course of his employment with the Defendants contributed to his injury because he said 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° 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 records that various reports relied upon by Mr Maimonis supported a causal connection between operating the C-class trams and his neck injury based in part on the ergonomic factors set out above, namely medical reports from Dr Arsenakis, Mr Xenos, Mr Hall, Mr Brownbill and Dr Slesenger and ergonomic or engineering reports from Mr Trembath, Mr Short and Mr Dohrmann.
Metrolink relied on a medical report from Dr Kostos that proposed an alternative view that Mr Maimonis had spinal disc degeneration and osteoarthritis with multiple foraminal stenosis that was largely constitutional and determined by heredity factors. KDR relied on medical reports from Dr Sabetghadam, Mr Jones, Mr Sui and Dr Baynes whose opinions were that there was no causal connection between operating C-class trams and Mr Maimonis’s condition. The Defendants also relied upon specialist occupational and ergonomic reports from Mr Caple and Dr Baynes which did not support a causal connection between the driving the C-class trams and the injury.
The Panel set out the history of Mr Maimonis’s work and the onset of symptoms and treatment between the late 1980’s and the examinations by the Panel in mid-2018 in the Reasons.
Mr Maimonis’s present function was described as decreased movement in his head and neck. The residual neck and left arm symptoms limit the forceful use of his left arm. Whilst he takes medication for the residual neck and left arm symptoms, sees a physiotherapist each week, has massage treatment and exercises for his upper body, there is no new or additional treatment planned for him.
The Panel set out a summary of the findings of the radiology reports.[6] They reviewed the images and generally agreed with the radiologists findings.
[6]Ibid 1510-1511.
In respect of Mr Maimonis’s physical condition, the Panel’s findings were that he had developed symptomatic cervical spondylosis in the late 1980’s and that he later developed some left C6 nerve root symptoms and possibly signs. It noted he had spinal surgery in 2015 and 2016. It considered the current physical diagnosis was a surgically treated symptomatic cervical spondylosis with persisting neck pain and radicular symptoms in the left arm but without radiculopathy or myelopathy. It did not believe Mr Maimonis had any intrinsic medical condition of his left shoulder or left arm and the symptoms in his left upper extremity are referred from the cervical spine condition.
The Panel also noted a chronic obsessive-compulsive disorder and major depressive disorder. The psychiatric condition was not in dispute between the parties before the Court.
The Panel then went on to deal with whether employment with the Defendants was a significant contributing factor to the said injuries[7].
[7]Ibid 1513.
The Panel recorded that Mr Maimonis argued that the properties of the C-class trams he drove between 2003 and 2015, or around 40% of his working hours, significantly contributed to the injuries, particularly the neck and upper left extremity injuries. In particular, he identified the properties of the left-hand master controller, the positioning of the driver’s seat and swaying of the trams to be issues.
The Panel considered some of the properties of the C-class trams and the factors identified by Mr Maimonis could cause transient left arm and torso fatigue to drivers. However, it did not believe that operating C-class trams or any of the factors identified by Mr Maimonis contributed to the development of Mr Maimonis’s physical condition as described above, the development or worsening of the cervical spondylosis, or the need for him to have surgical treatment in 2015 and 2016. The Panel considered constitutional factors caused Mr Maimonis’s cervical spondylosis.[8]
[8]Ibid.
The Panel concluded that Mr Maimonis’s employment with the Defendants was not a significant contributing factor to any of the said injuries. As they were of the opinion that he had no medical condition relevant to the said injuries, it made no findings of his work capacity or the appropriateness of medical treatment.
The issues
Mr Maimonis seeks to quash the Panel’s Opinion. The grounds of appeal identified in the originating motion, and argued before the Court, were stated to be whether the Panel fell into reviewable error by:
(a) failing to take into account factors it was bound to take into account including the full definition of injury contained in the statutes and the mandatory factors to be used when considering whether employment has been a contributing factor to an injury;
(b) taking into account irrelevant factors it was bound to disregard, namely an erroneous reading of the medical material provided on behalf of the Plaintiff;
(c) a denial of procedural fairness by not asking about the actual experience of driving the C-class trams as opposed to noting some of the properties of the C-class trams themselves; and
(d) failing to give legally adequate statement of reasons for its opinion in accordance with s 313(2) of the WIRCA.
The relevant legislative provisions
Section 82 of the ACA states:
Entitlement to compensation
(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.
(2)If there is caused to a worker an injury arising out of or in the course of any employment which results in or materially contributes to the death of the worker, the worker's dependants shall be entitled, subject to this Act, to compensation in accordance with this Act.
Note
Subsections (1) and (2), as amended by sections 3(3) and 3(4) of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003, only apply to injuries that occur on or after the date of commencement of section 3 of that Act—see section 262.
…
(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—
(a)a heart attack injury or stroke injury to which subsection (2B) does not apply;
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
Section 5(1B) of the ACA states:
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.
The WIRCA is the successor to the ACA with no material changes to the text of the provisions that are relevant to this proceeding.
The WIRCA s 40(3) states:
When no entitlement to compensation
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.
Section 3 of the WIRCA defines injury:
Injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a) industrial deafness; and
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); and
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
Schedule 1 pt 3 cl 25 of the WIRCA states:
Significant contributing factor
In determining whether a worker’s employment was a significant contributing factor to an injury, the following must be taken into account—
(a) the duration of the worker’s current employment;
(b) the nature of the work performed;
(c) the particular tasks of the employment;
(d)the probable development of the injury occurring if that employment had not taken place;
(e)the existence of any hereditary risks;
(f)the life style of the worker;
(g)the activities of the worker outside the workplace.
Principles to be applied
The relevant principles to be applied in this application for review can be summarised as follows:
(a) A medical panel is not an adjudicative body. 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;[9]
[9]WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [47] (‘Wingfoot’).
(b) The right to procedural fairness applies to the task to be undertaken by a medical panel;[10]
[10]Ibid.
(c) It is common in workers compensation matters for the Panel to use short-hand expressions for the statutory test to be applied. There is nothing wrong with that so long as the shorthand does not displace or obscure the correct test;[11]
[11]Attanayake v Simplot Australia Pty Ltd [2019] VSC 387, 10 [27].
(d) It is not enough for the Plaintiff to show that the medical panel’s reasons for its decision are so expressed as to suggest the possibility that it proceeded upon the wrong view of the law. The Court is not entitled to interfere with decisions unless it is satisfied that there was in fact a vitiating error of law;[12]
[12]Ventrice v Riva Plaster Pty Ltd [2008] VSC 415, 7 [12] (‘Ventrice’).
(e) The reasons given by the medical panel must explain its actual path of reasoning in sufficient detail to enable the Court to see if the opinion does or does not involve an error of law;[13]
[13]Wingfoot (n 9) 501 [55].
(f) The medical panel is an expert tribunal and not a judicial body and its findings need to be viewed in that light.[14] Their reasons are meant to inform and are not to be exposed to over-zealous judicial review by seeking to discern whether there is some inadequacy which may be gleaned from the way in which the reasons are expressed.[15] The reasons should not be construed by the reviewing court ‘minutely and finely with an eye keenly attuned to perception of error’;[16]
[14]Ventrice (n 12) 7 [12].
[15]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
[16]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2. See also Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [9], [20]; Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, 8-9 [29].
(g) The reasons of a medical panel are to be read in context, taking into account the background of the case, the material provided on the issues which have to be determined;[17]
[17]Ventrice (n 12).
(h) A beneficial construction of reasons must be adopted and the Court should not be concerned with looseness of language or unhappy phrasing;[18]
[18]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; East Melbourne Group Inc v Minister for Planning & Ors [2008] VSCA 217, 82 [229].
(i) A statement of reasons is not adequate if there is a ‘real doubt’ whether the tribunal correctly performed its statutory functions.[19] A balance must be struck between requiring too much or too little of medical panels;[20] and
(j) A medical panel is under no obligation to explain why it did not reach an opinion it did not form.[21]
Failure to properly consider the definition of injury and the relevant significant contributing factors in accordance with the legislation
[19]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, 14 [47].
[20]Kipniak Pty Ltd v Rann [2017] VSC 651, 32 [97].
[21]Wingfoot (n 9) 501-502 [56].
Mr Maimonis’s claim was that the injury was either an aggravation, acceleration, deterioration or exacerbation of the condition affecting the cervical spine, namely cervical spondylosis.
The Panel stated in its conclusion, that it did not believe that
‘operating the C-class trams …. contributed to the development of Mr Maimonis’s 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 considered constitutional factors have caused Mr Maimonis’s cervical spondylosis’[22]
[22]CB 1513.
Mr Maimonis submitted that this demonstrated that the Panel had a poor grasp of the causal question that it was being asked to answer. This was said to be because whether constitutional factors caused the condition was not in issue. It was argued that the Panel failed to properly consider the statutory definition of injury including the factors set out in the legislation relevant to determining whether employment was a significant contributing factor to the injury
Mr Maimonis argued that each of the words used in the legislation, namely ‘aggravation, acceleration, exacerbation and deterioration’ were required to be given their own separate and distinct meaning.[23] It was argued also that given the legislation was beneficial in nature, it was necessary to give each word its own separate meaning so that the most beneficial and expansive meaning was given to the section. However, it was rightly conceded that there is an overlap of meaning of the words to some extent, and that extent was a question of degree.[24]
[23]Darling Island Stevedoring and Lighterage Co-Ltd v Hankinson (1967) 117 CLR 19; Federal Broom Co-Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Federal Broom’).
[24]Federal Broom (n 23); Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
Mr Maimonis contended that by referring to the term ‘worsening’ of the cervical spondylosis, the Panel demonstrated that it did not consider and apply the definition as set out in the legislation as that definition required the Panel to consider whether the worker’s employment was a significant contributing factor to the ‘aggravation, acceleration, exacerbation or deterioration of the pre-existing injury’. It was suggested that even conceding that the word ‘worsening’ might be of equivalent meaning to ‘aggravation’, this did not account for the other words in the section. It was argued that ‘acceleration’ ought to be taken to refer to the hastening of the progress of the disease and both ‘deterioration’ or ‘exacerbation’ ought be taken to refer to the worsening of the symptoms experienced by the worker of the disease.
The Defendants argued that a reference to ‘worsening’ was in effect a shorthand and inclusive way of referring to each of the individual words, as the word ‘worsening’ was in effect and commonly understood to be a synonym for each of those individual words. The Defendants argued that a finding that the condition had not ‘worsened’ is a finding that there hasn’t been any of those subcategories of ‘accelerate, aggravate, exacerbate or deteriorate’. The words have several different meanings, but the question is whether the disease is made worse, more grave or more grievous, or more serious in its effect.[25]
[25]Federal Broom (n 23).
As Richards J stated in Attanayake v Simplot Australia Pty Ltd, the use of a short hand expression is not unusual and of itself is not an error as long as the shorthand does not displace or obscure the correct test.[26]
[26][2019] VSC 387, 10 [27].
Each of the words in issue are ordinary English words and should be given their common meaning. In my view, it is fair in relation to each of them that the word ‘worsening’ is a commonly understood synonym. Reference to the Macquarie dictionary and the Oxford dictionary confirm this observation.
In the context of the pleadings, and the description of the medical condition used by a number of the doctors where the terms aggravation, exacerbation or worsening have been used as a synonyms or interchangeably, I am not convinced that the conclusion of the Panel where it uses the word ‘worsening’ demonstrates a lack of understanding of the test it was required to apply or an understanding of the elements of that test. In my view, what the Panel did was to assess Mr Maimonis’s medical condition and having diagnosed cervical spondylosis it then considered what factors caused it. It formed the view that constitutional factors caused the cervical spondylosis and then formed the view that this condition was not caused nor worsened by his employment. A fair reading of the Reasons as a whole and one not finely attuned to legal error or an interpretation that relies on an overzealous nit-picking reading, leads me to this conclusion.
The Panel states clearly in the section of the Reasons dealing with his physical condition that:
The Medical Panel considers Mr Maimonis developed symptomatic cervical spondylosis in the late nineteen eighties. 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’s current physical diagnosis is surgically treated symptomatic cervical spondylosis with persisting 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’s age – with and without symptoms – he has no symptoms or clinical signs of subacromial bursitis, rotor cuff tendinopathy or any other condition of his left shoulder.[27]
[27]CB 1512.
They went on to discuss the psychiatric conditions and a number of images and radiologists’ findings.[28]
[28]Ibid 1510–511.
The Panel then dealt with in its next section of the Reasons ‘the significant contributing factors to the said injuries’,[29] that is the medical condition that is set out above. In this section of the Reasons the Panel refers to the particular properties of the C-class trams complained about by Mr Maimonis. It then concluded that it considered that some of the properties of the C-class trams and the factors set out in its reasons could cause transient left arm and torso fatigue in drivers. However, it went on to say that it does not believe operating C-class trams or any of the factors above contributed to the development of Mr Maimonis’s physical conditions, nor the development or worsening of the cervical spondylosis or the need for him to have surgical treatment in 2005 and 2016. It could not be clearer in this passage of the Reasons that the Panel considered constitutional factors caused the cervical spondylosis and that employment factors did not adversely affect his cervical spondylosis, notwithstanding the phrase used is ’worsening’ rather than listing each of the words ‘aggravated, exacerbated, accelerated or deteriorated’.
[29]Ibid 1513.
I agree with the Defendants that as the Panel concluded that Mr Maimonis’s medical condition was one which resulted from constitutional factors only, it follows that the alternative conclusion, which was that the underlying condition was aggravated, exacerbated, accelerated or deteriorated by reason of his employment, is excluded.
Mr Maimonis also submitted that the fundamental question of what part employment played in aggravating, accelerating, exacerbating or deteriorating the underlying condition was not considered by the Panel. He argued that this was apparent from examination of the Reasons. He said no explicit reference can be found that the Panel had taken any of the mandatory factors set out in s 5(1B) of the ACA into account.[30] I disagree with this submission.
[30]Or the equivalent provision of the Workplace Injury Rehabilitation and Compensation Act 2013.
In my view, it was not necessary for the Panel to expressly set out what part employment played, if any, in the aggravating, accelerating, exacerbating or deteriorating of the underlying condition by reference to the factors set out in s 5(1B) because they formed the opinion that the condition was a result of constitutional factors. Having formed that view there was no work for any of the sub-sections of s 5(1B) to play. If they had formed the view that his medical condition had any employment involvement at all, then it would have been necessary in the task of determining whether his employment was a ‘significant contributing factor’ that they considered each of the factors in s 5(1B). In my view this finding closes out the need for the Panel to deal with the individual factors set out in s 5(1B) of the ACA as they have clearly excluded any work related or employment factor by this express finding.
However, if I am in error in that analysis, the expressions used in this section of the Reasons demonstrates to me that the Panel by necessary implication considered the matters in sub-ss (a) to (d) of s 5(1B) of the ACA and there was no material before the Panel that indicated that the remaining sub-sections were of notable relevance. In relation to sub-s (a) the duration of the worker’s employment is referred to at a number of locations in the Reasons.[31] In relation to sub-ss (b) and (c) the Panel’s Reasons are replete with discussion about the nature of the work performed and the relevant tasks of the employment that were alleged to have placed strain or stress on his cervical spine and left arm.[32] Additionally, in concluding that the cause of the medical condition was the pre-existing constitutional degenerative disease,[33] the Panel must be taken to have considered sub-s (d).
[31]Ibid 1499, 1500, 1503, 1513, 1514.
[32]Ibid 1500, 1501, 1503, 1513.
[33]Ibid 1513.
It should not be inferred that merely because the Panel did not use the precise statutory language that it failed to consider the central issue before it and failed to apply the test in the statute. Read in its proper context, the Panel was stating that it considered that the cause of the cervical spondylosis was the pre-existing constitutional disease in its own unaided progression, in circumstances where it had rejected the properties of C-class trams as causing any symptoms other than transient left arm and torso fatigue or otherwise contributing to the condition’s further development or worsening.[34]
Taking into account an irrelevant consideration being an erroneous reading of the medical reports before the Panel
[34]Ibid.
In his originating motion, the Plaintiff stated that the Panel fell into jurisdictional error when answering questions 1–4 by taking into account irrelevant considerations which it was bound by law to disregard, namely an erroneous reading of the medical opinions provided on behalf of Mr Maimonis. It was argued that of the doctors cited by the Panel, namely Dr Arsenakis, Mr Xenos, Mr Hall, Mr Brownbill and Dr Slesenger, the only one who referred to or used the word ‘possibly’ was Mr Hall. It was submitted that the other doctors referred to all indicated that employment had been a significant contributing factor to either the aggravation of the cervical spine condition or the acceleration of the cervical spine condition.
The Defendants’ position in relation to this point was threefold. Firstly, that such a description of the doctor’s opinions is not entirely accurate and further, the impugned statement was part of a background summary, and not an essential part of the Panel’s reasoning.
Secondly, that the summary description of the effect of the doctors’ opinions should not be elevated to a vitiating error because an error of law involves something more than looseness in the language of the tribunal or an unhappy phrasing of the tribunal’s thoughts and that the reasons of a non-legal expert tribunal such as a Panel should be given a beneficial construction.[35]
[35]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; East Melbourne Group Inc v Minister for Planning & Ors [2008] VSCA 217.
Thirdly, that the Panel’s function was to form and give its own opinion on the referred questions.
I agree with the submissions of the Defendants. It is clear from a plain reading of the Reasons that the Panel considered all of the extensive medical reports, x-rays and scans in the material before them, in particular the doctors just cited. They also conducted their own examination, and as they are required to do formed their own opinion. Their task is not to adjudicate between opposing medical opinions but to form their own,[36] which they clearly did. The Panel states in its Reasons that it formed its opinion with regard to:
[36]Wingfoot (n 9) 498-499 [47].
(a) the documents and information referred to in Enclosure A (which was an extensive list of medical reports, x-rays and scans, ergonomic assessments and medical and hospital records including reports from Mr Maimonis’s treating and medicolegal doctors and medicolegal opinions relied upon by the defendants);
(b) the history Mr Maimonis provided; and
(c) the Panel’s examination findings.[37]
[37]CB 1499.
Having reviewed all of the doctors’ reports submitted on behalf of Mr Maimonis, and not just isolated sentences, I am of the view that the description of the doctor’s opinions cannot be described as categorical as to their finding that employment had been a significant contributing factor taken as a whole. Some of the views expressed are somewhat equivocal and I am not convinced that the complaint made about the accuracy of the summary of the Plaintiff’s medical opinions is a fair one.[38] In any event, that is not determinative of this ground.
[38]See eg, Mr Xenos CB 158, 163; Mr Hall CB 166-167.
As the High Court observed in WingfootAustralia Partners Pty Ltd v Kocak in forming the Panel’s own opinion the Panel will no doubt have material relevant to the formation of the opinion which may include opinions of other medical practitioners.[39] The Panel may choose, in a particular case, to place weight on a medical opinion supplied to it informing its own opinion but that it goes too far to conceive of the function of the Panel as being either to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions.[40] In this case, the Panel had a large number of medical reports and information before it and in my opinion, a looseness of language in summarising the background, particularly in light of the body of contradictory medical material relied upon by the Defendants, is not an error which can properly be categorised as a vitiating error of law in the circumstances. The Panel’s function was to form and give its own opinion on the referred questions and they did so.
[39]Wingfoot (n 9).
[40]Ibid 498-499 [47].
Procedural fairness – not asking the Plaintiff about his experience of driving the C-class trams
Mr Maimonis argued that he was denied procedural fairness because the Panel did not ask him about his personal experience of driving the C-class trams, as opposed to noting the properties of the C-class trams themselves, particularly:
(a) The Plaintiff was not able to brace himself using his feet while driving the C-class trams due to the absence of an arm rest until 2010;
(b) The Plaintiff had to reach forward for sustained periods when driving the C-class trams;
(c) That the Plaintiff experienced whole-body vibration and swaying that were not alleviated by the driver’s seat in the C-class trams;
(d) That the Plaintiff experienced an increase in neck and left arm pain after starting to drive the C-class trams and that he experienced the increased symptoms initially only when driving the C-class trams; and
(e) That the T-bar controller required repetitive use of moderate force and occasional use of significant force.
I do not accept that this is alleged error is made out in fact or law. The Panel clearly asked the Plaintiff about his experience of driving C-class trams as in the section of the Reasons entitled ‘History’,[41] the Panel records what Mr Maimonis told it about the onset of symptoms and set out his comments about the operation of each class of trams, the location of the driving seat of the C-class tram and earlier in the part of the Reasons which set out the ‘The issues set out in the referral’. The tasks and circumstances relied upon by Mr Maimonis are also set out including the forceful and repetitive use of the left arm to push and pull the master controller, repetitive neck movements greater than 30°, whole-body vibration, regular emergency stops and occasional collisions, and seating design.
[41]CB 1503–1504.
I accept the substance of the submission of the Defendants that the Panel is not an investigative body. The Panel had a duty to inform itself so that it could properly form its own opinion but here the Mr Maimonis appears to have given the Panel a detailed account.
Adequacy of the reasons
Finally, Mr Maimonis argued that the Panel made an error of law by providing Reasons which are inadequate. He argues that the Panel failed to provide reasons sufficient to show its actual path of reasoning either at all, or in sufficient detail, to show how it arrived at its Opinion and whether its Opinion does or does not involve any error of law.
The Plaintiff submitted that the Reasons were inadequate because they failed to specify why it considered that the condition was solely constitutional and had not in any way been affected by his employment.
The Defendants’ position was that the Panel’s reasons succinctly but adequately expressed the reasons for their opinion.
The Defendants also argued that the Panel is an expert body and they should be taken to understand the legislation they are to apply. In my view, it goes too far to say that a Panel, being an expert body always knows what they are doing. It must be apparent from the reasons that the expert body applied the relevant test.
That said, in my view on a fair reading of the Reasons, I am satisfied that the path of reasoning of the Panel is clear in forming the opinion that Mr Maimonis did not have an injury or injuries which fell within the statutory definition. 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.[42] Having formed the opinion that Mr Maimonis’s medical condition was constitutional, this excluded other work-related reasons for his condition.
[42]Wingfoot (n 9) 501–502 [56].
Conclusion
Mr Maimonis has the obligation and burden of demonstrating the Panel fell into error in their statutory task. I have come to the conclusion for the reasons set out above that there is no legal error. It is not the place of this Court to put itself in the shoes of the Panel but to consider whether the task that they undertook was undertaken in accordance with law.
I find no error of law made out in this proceeding and the proceeding must be dismissed.
I will hear the parties on the question of costs.
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