McIntyre v Fish
[2015] VSC 82
•11 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 02520
| GLENYS YVONNE McINTYRE | Plaintiff |
| v | |
| DR DAVID FISH AND OTHERS | Defendants |
---
JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 February 2015 |
DATE OF JUDGMENT: | 11 March 2015 |
CASE MAY BE CITED AS: | McIntyre v Fish and ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 82 |
---
ADMINISTRATIVE LAW – Judicial review – Order 56 Supreme Court (General Civil Procedure) Rule 2005 – Medical panel – Whether the medical panel’s reasons for decision were adequate – Accident Compensation Act 1985 ss 65, 68 – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Schilling | Nevin Lenne Gross |
| For the Sixth and Seventh Defendants | Mr M F Fleming QC with Ms F C Spencer | Wisewould Mahony |
HER HONOUR:
Introduction and summary
This is an application for review under order 56 of the Supreme Court (General Civil Procedure) Rules 2005 of an opinion of the first to fifth defendants (‘the Panel’) concerning an injury to the plaintiff’s cervical spine during the course of her employment as a kitchen hand/childcare worker with the sixth defendant, Rural City of Wangaratta (‘City of Wangaratta’) (‘the injury’).
The opinion is dated 26 March 2014 (‘Opinion’) and was accompanied by a statement of reasons for the Opinion (‘Reasons’). The Opinion answered three medical questions (‘medical questions’) as follows:
Question 1: What is the nature of the Plaintiff’s medical condition relevant to the claimed injuries, namely:
·production, aggravation, acceleration and exacerbation of cervical disc disease;
·spondylosis at C5/6 and C6/7;
·at C3/4 marked narrowing of the disks with grade 1 spondylolisthesis requiring C3/4 anterior cervical discectomy and fusion;
·radiculapathy;
·progressive neurological disturbances of the upper limbs including paraesthesia and numbness of hands and fingers bilaterally?
Answer: The Panel is of the opinion that the Plaintiff is suffering from constitutional cervical spondylitic myelopathy with hyperreflexia, but this medical condition is not relevant to any claimed injury.
Question 2: Does the plaintiff have:
(a) a capacity to undertake the duties outlined in the signed position description dated 8 September 2011;
(b) current work capacity;
(c) no current capacity?
Answer: The Panel is of the opinion the Plaintiff has no present inability to return to her pre‑injury employment arising from an injury.
Question 3: If the Plaintiff has an incapacity for work does the incapacity for work result from or is it materially contributed to by any and which of the claimed injuries?
Answer: Not applicable.
The plaintiff seeks an order quashing the Opinion on the ground that the Panel provided inadequate reasons for the Opinion and an order in the nature of mandamus remitting the medical questions, in respect of which the Opinion was given to a medical panel to be determined in accordance with the law.
The sole ground of review in the plaintiff’s further amended originating motion filed 19 February 2015 is as follows:
In determining its opinion the Medical Panel committed an error of law on the face of the record, in that the reasons given for its opinion were inadequate in that they:
(a)failed to answer, or explain the Medical Panel’s actual path of reasoning in respect of, the precise question asked in Questions 1 and 2; and failed to explain or to explain adequately the Medical Panel’s actual path of reasoning in respect of
(i)the relationship, if any, between the Plaintiff’s employment and the onset of the Plaintiff’s symptoms in late 2008/early 2009;
(ii)whether at any time such symptoms represented an aggravation, acceleration and/or exacerbation of the Plaintiff’s underlying constitutional condition;
A. if so, when such symptoms referrable to the Plaintiff’s employment ceased and why the Medical Panel had formed the opinion of the Plaintiff’s current symptoms were solely referrable to her specific constitutional condition of CSM;
B. if not, why the Medical Panel had formed an opinion, contrary to the opinions of all the medical reports provided with the referral (including that of Associate Professor Buzzard) that the Plaintiff’s symptoms did not at any time represent an aggravation, acceleration and/or exacerbation of her underlying constitutional condition.
The plaintiff relies on the affidavit of Belinda Diane Fenn sworn 24 May 2014, and written submissions dated 15 October 2014 and 8 December 2014.
The defendant relies on written submissions dated 6 November 2014.
Facts
There was no real dispute about the background circumstances to the plaintiff’s injury and the treatment she received in relation to the injury. The background information is conveniently set out in the Reasons.
The plaintiff was born on 26 November 1951 and was 61 years of age at the time of the Opinion.
The plaintiff was employed by the defendant, the City of Wangaratta, from 4 November 1988 as a kitchen hand/childcare worker.
The plaintiff claimed that she sustained an injury to her neck in the course of her employment with the defendant.
The duties the plaintiff undertook prior to the claimed injury included preparation of morning and afternoon teas, meals, loading and pushing trolleys containing meals, utensils and serving dishes, cleaning and maintaining the kitchen area, reordering and purchasing items and preparing invoices for payment.
Towards the end of 2008 the plaintiff developed increasing clumsiness and stiffness in the fingers of both hands. She noticed the development of pins and needles in the fingertips. By February/March 2009 she developed numbness in both feet and consulted her GP, Dr Lynette Squires, on or about 19 March 2009.
On 30 April 2009 the plaintiff lodged a WorkCover claim in which she described her injury as ‘neck, shoulder, arm numbness, tingling fingers’.[1] The claim for compensation lodged on 30 April 2009 was accepted and the plaintiff received weekly payments of compensation and payment of medical and like expenses.
[1]Worker’s Injury Claim Form, Court Book, 39.
Dr Squires prepared a report for the WorkCover agent (QBE Workers Compensation (Vic) Limited (‘QBE’) dated 14 May 2009.[2] In response to the question asked by QBE: ‘Do you consider this injury to be an aggravation of or related to a pre-existing injury?’ Dr Squires responded: ‘Probably some underlying degeneration but aggravated by duties at work … ‘.[3]
[2]Court Book, 55-57.
[3]Ibid 55.
The plaintiff was subsequently referred to orthopaedic suregeon, Mr Richard Kjar. In a letter dated 26 May 2009 to Dr Squires, Mr Kjar stated that he considered that the plaintiff’s pain had settled markedly and numbness improved to a level similar to when the situation was back in December 2008 from the time the plaintiff ceased working and commenced physiotherapy.[4] It was Mr Kjar’s opinion that: ‘… the majority of Glenys’ symptoms are coming from her degenerate cervical spine. This would certainly explain her pain but I cannot find an anatomical explanation for the bilateral hand pins and needles. … I believe she should continue with the physiotherapy and avoidance of aggravating activities … ‘.[5]
[4]Ibid 82.
[5]Ibid 83.
The plaintiff underwent an MRI of her neck on 13 November 2009 which revealed a protrusion of the C3/4 disc with central spinal stenosis and myelopathy at the C3/4 cord, together with C5/6 desiccation.[6]
[6]Submission to the Panel on behalf of the plaintiff [12], Court Book, 29.
The plaintiff was subsequently referred to Mr McMahon, a neurosurgeon. In a letter to Dr Squires dated 2 December 2009, Mr McMahon notes a history taken from the plaintiff describing that she developed neck pain and suprascapular pain as well as left facial paraesthesias since December 2008.[7] Mr McMahon recommended a C3/4, C5/6 anterior cervical discectomy and fusion.[8] On 8 February 2010, the plaintiff underwent a C3/4 anterior cervical discectomy and fusion, performed by Mr McMahon for cervical myelopathy.[9]
[7]Court Book, 87.
[8]Ibid.
[9]Ibid 94.
Following the surgery, the plaintiff said that the symptoms in her hands and feet improved.[10] In particular, she noticed the numbness and pins and needles improved and the clumsiness largely resolved.[11] She had less pain in her neck, shoulders and movement in the neck and shoulders improved.[12]
[10]Court Book, 6.
[11]Ibid.
[12]Ibid.
The plaintiff commenced a graduated return to work in July 2010 and was placed on light duties and provided with an assistant.[13] The plaintiff gradually increased her hours and eventually returned to pre‑injury work hours by January 2011.[14]
[13]Ibid.
[14]Ibid.
The plaintiff says that due to issues in relationship to the assistant and her workload increasing, resulting in increasing working hours, she developed stiffness in her fingers while performing heavy chopping and peeling with radiation of the pain into the forearm.[15] The plaintiff eventually ceased work in February 2012 and has not worked since.[16]
[15]Ibid 6–7.
[16]Ibid 7.
The plaintiff gave a history that since ceasing work she still suffers neck and bilateral shoulder girdle pain, she is unable to hang washing on the line, cannot vacuum or dry her hair easily, her socialising has diminished and she is no longer able to play netball with her granddaughter.[17] She said that she has difficulty driving because of difficulty performing head checks and that she now avoids driving long distances.[18]
[17]Ibid.
[18]Ibid.
The plaintiff said that she suffers pain in the neck and shoulders when sleeping and particularly pain over the left trapezius at night.[19]
[19]Ibid.
In July 2011, the plaintiff suffered a dizzy spell in the shower and sustained burning to her torso.[20] She was off work for three months and then returned to work in September 2011 on reduced hours and modified duties with the help of an assistant.[21] In February 2012 the plaintiff ceased work.[22]
[20]Ibid 30.
[21]Court Book, 30.
[22]Ibid.
On 29 February 2012 the plaintiff lodged a claim for compensation for weekly payments and medical and like services citing stress which she claimed arose as a direct consequence of the pain resulting from her neck injury and difficulty coping at work.[23] The claim was rejected on the basis that although it appeared the plaintiff was suffering from an exacerbation of an underlying psychiatric condition, her claims of lack of support at work, bullying and harassment by her supervisor were considered by QBE not to be supported.[24]
[23]Ibid 42.
[24]Ibid.
On 20 February 2011, the plaintiff lodged a claim for impairment benefits under s 98C of the Accident Compensation Act 1985 (‘the Act’). On or about 4 May 2012 that claim for impairment benefits which related to the neck injury was accepted.[25] The impairment was assessed at five per cent and was undertaken by Mr Gale, surgeon.[26] The plaintiff received a payment of approximately $11,500 in respect of that permanent impairment. The plaintiff subsequently lodged an application for reinstatement of entitlement to weekly payments which was rejected by QBE.[27] In the letter dated 25 June 2012, QBE gave the reasons for the decision:
[the insurer] determined that whilst you do have an incapacity for work, this is not materially contributed by an injury arising out of or in the course of your employment with the Wangaratta Rural City Council on 23 December 2008, but rather relates to your perception that you are not being supported at work and are being bullied and harassed by your supervisor. Therefore your application for reinstatement of entitlement to weekly payments has been rejected.[28]
[25]Ibid 22.
[26]Ibid 126.
[27]Ibid 43.
[28]Ibid.
The rejection was subsequently referred to the Accident Compensation Conciliation Service, who on 2 July 2012, provided a certificate pursuant to sub-s 59(4) of the Act, that there was a genuine dispute in respect of the decision.[29]
[29]Outline of Plaintiff’s Submissions dated 15 October 2014, 3.
The plaintiff commenced Magistrates’ Court proceeding on 17 April 2013 against the City of Wangaratta, seeking weekly payments of compensation from March 2012 to continue in accordance with the Act, interest pursuant to s 114 of the Act and additional compensation pursuant to s 128 of the Act.[30]
[30]Court Book, 19–24.
On 2 December 2013, pursuant to s 45(1)(b) of the Act, the Magistrates Court referred the medical questions to the Panel.[31]
[31]Ibid 15–16.
The plaintiff attended for an examination by the Panel on 5 March 2014.[32]
[32]Outline of Plaintiff’s Submissions dated 15 October 2014, 3.
The Panel provided its Opinion dated 26 March 2014 and Reasons dated 26 March 2014.[33]
[33]Court Book, 1–11.
Medical reports referred to by the Panel
The Panel had regard to numerous medical reports contained in Annexure A to the Panel’s Reasons. The following is a summary of some of the medical reports which the plaintiff relied upon in oral submissions.
Dr Squires
In letters dated 19 April 2012 and 6 June 2012, Dr Squires outlined a history of the injury and records an ongoing pain issue for the plaintiff.[34]
[34]Ibid 62 and 64.
Mr Richard Kjar
As outlined at paragraph 14, in his letter dated 26 May 2009 to Dr Squires, Mr Kjar described that the plaintiff ‘presents with neck pain and bilateral hand numbness’[35] and opined that the plaintiff’s symptoms come from her degenerate cervical spine.[36]
[35]Ibid 82.
[36]Ibid 83.
In Mr Kjar’s fax to the insurer, he stated that he considers the injury to be an aggravation of a pre-existing injury.[37]
[37]Court Book 84.
Mr McMahon
Following her consultation with Mr Kjar, the plaintiff was referred to Mr McMahon, a neurosurgeon. As noted at paragraph 16, Mr McMahon recommended a C3/4 C5/6 anterior cervical disectomy and fusion.[38] The procedure was performed on 8 February 2010.
[38]Ibid 95.
In a letter to Dr Squires dated 15 March 2010, Mr McMahon said:
I do not feel that Mrs McIntyre can return to any form of physical work activity for at least a three month period following the surgery. When she does return, she will have a lifting restriction of 5 kg and I would recommend that she has a graduated return to work hours and work duties over at least a one month period. In the longer term, her lifting restriction will be 10 kg and she should not be involved in any repetitive work that requires repetitive bending below knee height or repetitively reaching upwards above head height.[39]
[39]Ibid.
Associate Professor Buzzard
In a report to QBE from Associate Professor Buzzard dated 22 March 2012, he referred to a recording of a history given by the plaintiff whereby she states that the problem of neck stiffness has occurred since 2008 and is worsening.[40]
[40]Ibid 117.
When Associate Professor Buzzard was asked his clinical opinion regarding the cause of the plaintiff’s injury or medical condition, he concluded that:
The cause of her cervical spondylosis has not been her employment. There may have been an aggravation caused by the nature of her work, but I don’t think that that has necessitated surgery or had a significant ongoing effect on her cervical spondylosis.[41]
[41]Ibid 119.
Associate Professor Buzzard noted that the plaintiff denies any pre-existing symptoms.[42]
[42]Ibid 120.
Professor Buzzard opined that the plaintiff cannot return to her pre-injury duties but that she can return to suitable employment with assistance.[43]
[43]Court Book, 120.
In the conclusion to his report, Associate Professor Buzzard stated:
The symptoms with which she [the plaintiff] presented in December 2008 indicated nerve root involvement. That was confirmed on imaging and subsequently she had surgery for this at what appears to be only C3/4 level. She has responded well to that but still has some continuing symptoms because of her neck.
The particular issue appears to me to be whether or not her employment has been a causal factor in the above problem. I don’t think that her employment caused the above problem. However, I think it is reasonable to accept that her employment aggravated the above problem. I don’t think the stresses on her neck during the type of activity she was doing as a catering officer for the Rural City of Wangaratta would have been such as to have caused significant long-term problems. In other words, I think she would have come to having surgery whether or not she had been working.[44]
[44]Ibid 121–122.
He went on to say that:
…she is at present capable of carrying out work not involving a full range of movement of her neck. It would appear that she would be capable of carrying out suitable employment as against her ‘pre-injury’ employment.[45]
[45]Ibid 122.
Mr Gale
Mr Gale’s report assessed the degree of permanent impairment. He noted that:
Post-operatively the worker underwent physiotherapy for a prolonged period of time. The worker feels that there was significant improvement in her symptoms with reduced neck discomfort, she has had a persisting feeling of stiffness in the neck, and the symptoms in the hands resolved.[46]
[46]Ibid 123.
Mr Gale also noted that:
At the present time Mrs McIntyre has ongoing symptoms with a minor feeling of stiffness in the neck and occasional discomfort...[47]
[47]Ibid 124.
Mr Gale stated that:
Leading up to December 2008 the worker developed increasing symptoms particularly involving the upper limbs with numbness and motor function impairment involving both the right and left hands, and some neck discomfort, likely to be a consequence of symptomatic aggravation of age-related degenerative changes involving numerous levels of the cervical spine. The worker ultimately underwent an anterior cervical fusion at the C3/4 level in February 2010. The surgery resulted in significant symptomatic improvement, but there have been increasing symptoms since February 2012 of uncertain cause probably related to a stress-related episode at work.[48]
[48]Court Book, 125.
He also noted that:
It is possible, but unlikely, that the increasing symptoms affecting the upper and lower extremities could be as a consequence of progression of the degenerative changes in the cervical spine.[49]
[49]Ibid.
However, he concluded that, ‘I would consider that the worker continues to have some ongoing symptoms from the cervical spine injury that is dated 23 December 2008.’[50]
[50]Ibid.
Mr Gale opined that: ‘…the nature of her employment duties could have symptomatically aggravated the pre-existing constitutionally based and age-related degenerative changes in the cervical spine’.[51]
[51]Ibid 115.
He assessed that the whole person impairment at five per cent as a consequence of the work-related incident of injury dated 2007.[52]
[52]Ibid 126.
Mr Brearley
Mr Brearley, a consulting surgeon, diagnosed Mrs McIntyre’s condition as ‘cervical spondylosis with cervical myelopathy at C3/4 and cord compression also at C5/6 which has produced significant sensory disturbance affecting both hands and both feet in addition to disabling neck pain.’[53]
[53]Ibid 99.
In his report, Mr Brearley opined that: ‘The neck injuries suffered by Glenice McIntyre remain a material contributing factor to her current incapacity.’[54]
[54]Court Book, 100.
Mr Brownbill
Mr Brownbill, neurosurgeon, noted that the plaintiff:
… did not have any previous neck pain with the onset of such pain and limb paraesthesia following the described physical activities of September 2008, and the radiological changes of cervical spine degenerative changes. I consider that on probability this lady in those activities of 2008 sustained aggravation of pre-existing asymptomatic cervical spine degenerative changes with associated cord compression and quadriparesis (which subsequently resolved following appropriate surgical decompression).[55]
[55]Ibid 106.
He opined that the aggravation of cervical spine degenerative changes with associated spinal cord depression have resulted from the described employment activities.[56] Mr Brownbill added that the plaintiff’s employment was, in his view, a significant contributing factor to aggravation of pre-existing cervical spine degenerative changes: ‘Her neck and scapular region pains have continued with fluctuations since onset in 2008 and I consider the employment activities of 2008 remain a material contributing factor to her current incapacity…’[57]
[56]Ibid.
[57]Ibid 107.
Mr Brownbill noted: ‘Clinical experience shows that when cervical spine degenerative changes are rendered symptomatic on occasions the resulting pain may continue in a fluctuating manner indefinitely.’[58]
[58]Ibid.
Relevant provisions of the Act
Pursuant to s 65(1) of the Act, ‘A Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit’. Section 65(2) provides that ‘The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows’. Under s 65(5), ‘A Panel may ask a worker … to meet with the Panel and answer questions … [and] to submit to a medical examination by the Panel or by a member of the Panel’.
Section 67(1) of the Act provides that ‘[the] function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment…’. Section 67(1A) stipulates that ‘[a] Medical Panel must give its opinion on a medical question in accordance with this Division’.
Section 68 of the Act states:
68 Opinions
(1)A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, [VWA] or self-insurer.
(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.
(3)Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer or the County Court or [VWA] or self‑insurer its written opinion and a written statement of reasons for that opinion.
(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
Section 45 relevantly states:
45 Medical questions
If the court[59] exercises its jurisdiction under this Part, the court–
[59]‘The court’ in this case is a Magistrates Court.
(a) may on the court’s own motion, refer a medical question to a Medical Panel for an opinion under this Division; or
(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; …
That is what occurred in this case. A notice of request pursuant to s 41(1)(b) of the Act was issued in the Magistrates’ Court proceeding and it notified that the plaintiff was going to request certain questions to be sent.
‘Medical questions’, as referred to in s 45, are defined in s 5 of the Act, under ‘medical question’. In this case it was the plaintiff’s application to refer Medical Panel questions, not the employer’s request. The plaintiff asked for a particular set of questions to be referred and they were duly referred. There is no issue in this proceeding that the medical questions were appropriate. The medical questions were properly supported by the definitions in the Act.
The Panel’s Reasons
On 5 March 2014 the plaintiff was examined jointly by Dr Fish, Mr Kevin Siu and Dr Andrea Bendrups. On the same day, the plaintiff was also examined jointly by Dr Brendan Hayman and Dr Jack Kirszenblat.
The Panel stated that it formed the Opinion by reference to the documents in Annexure A, the history provided by the plaintiff and the findings on the medical examinations of the plaintiff conducted by the Panel members.
The Reasons recited the history provided to the Panel by the plaintiff, the Panel’s findings upon the physical and mental state examinations of the plaintiff, and set out the Panel’s conclusions and the reasons for those conclusions.
The Reasons set out the recorded history of the plaintiff’s physical health as outlined earlier in this judgment.
The Reasons then set out the plaintiff’s medication and that the plaintiff sees her general practitioner and a psychologist monthly. The Reasons note that she had been referred to a pain management physician and that she has learnt strategies to manage her condition through that programme.
The Reasons set out the physical examination undertaken by the Panel. The Panel viewed a supplied DVD in the presence of the plaintiff and considered that the actions depicted in the DVD were not inconsistent with the plaintiff’s presentation at examination.
The Reasons refer to the medical imaging reports considered by the Panel, including the MRI scan of the cervical spine dated 24 September 2012. The Panel concluded that there were no significant changes from the previous X‑rays and that there was no longer any spinal canal stenosis or cord signal change. The Panel reviewed an MRI scan of the left and right shoulders dated 17 December 2012, which the Panel concluded was normal.
Importantly, the Panel recorded:
Based on the clinical examination findings and the medical imaging the Panel is of the opinion that the Plaintiff is suffering from constitutional cervical spondylitic myelopathy (CSM) with hyperreflexia, which is not relevant to any claimed injury.
The Panel also concluded that the Plaintiff is suffering from constitutional degenerative joint disease of both hands, which is not relevant to any claimed injury.
The Panel accepted that the condition for which the Plaintiff was treated in 2009 and 2010 was the C3/4 disc protrusion with canal stenosis. This condition was successfully treated by discectomy and fusion surgery as evidenced by the MRI scan of 24 September 2012, which confirmed that there was no longer any spinal canal stenosis or cord signal change at this level.
The Panel considered the symptoms from which the plaintiff now complains are indicative of the specific constitutional condition of CSM and constitutional degenerative joint disease of both hands and are not indicative of any suggested aggravation of generalised degenerative changes in the cervical spine.
The Panel noted the report of examining consultant neurosurgeon Mr David Brownbill dated 20 September 2013 in which he indicated that on examination he found very brisk reflexes in upper and lower limbs (with down going plantar response) but no objective neurological abnormality. The Panel also noted the report of that examining surgeon Mr Kenneth Brearley dated 29 August 2013 in which he indicated that all reflexes were normal.
The Panel at its examination found definite clinical evidence of generalised hyperreflexia in the upper and lower limbs to account for the diagnosis of CSM.
The Panel also considers that the CSM and constitutional degenerative disease of both hands have not been affected in any way by the Plaintiff’s employment and none of her current symptoms is related to the treated C3/4 disc protrusion with canal stenosis condition.
The Plaintiff also performed a psychiatric assessment.
…
The Panel concluded that the Plaintiff is not suffering from any psychiatric or abnormal psychological condition.
The Panel therefore concluded that the Plaintiff is no longer suffering from any medical condition, relevant to any claimed injury.
As the Panel considered the Plaintiff is no longer suffering from any medical condition, relevant to any claimed injury it concluded that the Plaintiff has no present inability to return to her pre‑injury employment arising from an injury.
The Panel noted the submissions made by the parties with regard to the relationship with the Plaintiff’s current condition to the original injury and considers it has adequately explained how and why the Panel has reached its conclusions in this regard.[60]
[60]Court Book, 8–11.
Relevant legal principles
In Wingfoot Australia Parts Pty Ltd v Kocak,[61] the High Court held that a medical panel’s statement of reasons must explain the actual path of reasoning by which the panel arrived at the opinion the panel formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion involves any error of law. An order in the nature of certiorari will lie if: the reasons meet the required standard of reasons but disclose an error of law in the way the panel formed its opinion; or the reasons failed to meet the required standard of reasons.
[61](2013) 88 ALJR 52 (‘Wingfoot’).
Subsequent decisions reinforce that a medical panel is not held to the same standard of reasons as a judge, and that a medical panel’s reasons are entitled to a beneficial construction. Further, a panel may take into account any relevant consideration or fail to take into account a relevant consideration, but its reasons may nonetheless meet the requisite standard and be ‘adequate’.
There is also authority to the effect that if a review panel is required to give reasons, and it agrees with the decision under review, it may simply say that it agrees with the opinion and reasons given by the original decision maker.
Inadequacy of a panel’s reasons will constitute an error of law on the face of the record, but it may also constitute a jurisdictional error. In this case, the plaintiff submits that the error of law is on the face of the record.
In Wingfoot, the High Court (French CJ, Krennan, Bell, Gageler and Keane JJ) discussed the availability of orders in the nature of certiorari against a medical panel’s opinion and statement of reasons given under s 68 of the Act. The Court also discussed the standard of reasons required by s 68(2).
First, on the availability of orders in the nature of certiorari, the High Court said that the error of law on the face of the record is a basis for making an order in the nature of certiorari, quashing a medical panel’s opinion.[62] The Court then considered what the ‘record’ in the medical panel’s opinion included. The medical panel was a ‘tribunal’ and its opinion a ‘decision’ pursuant to the Administration Law Act 1978 (Vic). Section 10 of this Act expands the usual meaning of ‘record’ to include any statement by a tribunal or inferior court, whether made orally or in writing, of its reasons for a decision. That meant:
… the effect of section 10 is to make whatever reasons a Medical Panel in fact gives for its opinion on a medical question referred to it part of that opinion and part of the record of that opinion. An error of law manifest on the face of such reasons as a Medical Panel in fact gives for its opinion on a medical question referred to it is therefore an error of law on the face of the record of that opinion. A Medical Panel which in fact gives reasons that are inadequate to meet the standard required of a written statement of reasons under section 68(2) of the Act fails to comply with the legal duty imposed on it by section 68(2) and thereby makes an error of law. Inadequacy of reasons will therefore inevitably be an error of law in the face of the record of the opinion of a Medical Panel, and certiorari will therefore be available to remove the legal consequences of an opinion for which non‑compliant reasons have been given.[63]
[62]Wingfoot [27].
[63]Ibid [28] (citation omitted).
It is also possible, although not argued in Wingfoot, that failure to comply with the duty to give reasons will constitute a breach of a condition of the valid performance of the duty imposed on the medical panel under s 68, and would amount to a jurisdictional error.[64] The case was argued, however, on the basis of error of law on the face of the record.
[64]Wingfoot [29].
The Court then considered the requisite standard of reasons. As there is no free-standing common law duty to give reasons for making a statutory decision,[65] the only duty imposed on the Medical Panel to provide written reasons was a statutory duty in s 68(2). The standard of reasons required by s 68(2) had to be determined by reference to the terms of s 68(2) and the Act:
The standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by section 68(2) of the Act falls therefore to be determined as an exercise in statutory construction. In the absence of express statutory prescription, that standard can be determined only by a process of implication.[66]
[65]Ibid [43].
[66]Ibid [44].
The key considerations for determining the required standard of reasons were: the nature of the function performed by a medical panel in forming and giving an opinion; and the objective, within the scheme of the Act, of requiring the panel to give a written statement of reasons.[67] The Court described the function of a medical panel as:
The function of a Medical Panel is to form and give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[68]
[67]Ibid [46].
[68]Wingfoot [47] (citation omitted). This passage on the function of a medical panel was relied upon by Neave JA in Ryan v Grange Wodonga at Wodonga Pty Ltd [2015] VSCA 17, which is discussed below and by the New South Wales Court of Appeal in Frost v Kourouche [2014] NSWCA 39, [2] (Basten JA) [40] (Leening JA, with whom Beazley P and Basten JA agreed.)
To determine the objective of requiring medical panels to give statements of reasons, the Court first looked at the legislative history. Until 2010, the requirement for a medical panel to give written reasons was found in s 8 of the Administrative Law Act. Under s 8, written reasons were only required if a person affected by the decision requested them. The legislative history of s 68(2) did not suggest that Parliament intended to alter the standard of reasons required by s 8.[69] The objective of inserting s 68(2) was that:
… persons affected by the opinion automatically be provided with[instead of having to ask for] a written statement of reasons adequate to enable a court to see whether the opinion does not involve any error of law …[70]
[69]Wingfoot [53].
[70]Ibid [54].
The Court’s conclusion on the standard required of written reasons given under s 68(2) was as follows:
… The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain the 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 …[71]
[71]Ibid [55]. See also [48].
Medical panels are not required to explain why they did not reach an opinion they did not form, even if parties have provided the panels with different opinions by other medical practitioners.[72] Differing opinions supplied for a medical panel may, however, reveal deficiencies in the panel’s reasoning.[73] For instance, the way another medical practitioner goes about answering a medical question and explaining their opinion might reveal the medical panel’s written reasons do not adequately explain all the steps in the panel’s reasoning.
[72]Ibid [56].
[73]Ibid [57].
An order in the nature of certiorari will lie if the reasons meet the required standard but disclose an error of law in the way the panel formed its opinion or if the reasons fail to meet the required standard.[74]
[74]Ibid [55].
In Ryan v Grange at Wodonga Pty Ltd,[75] the appellant sought orders quashing the opinion of a medical panel. She claimed, among other things, that the panel considered irrelevant considerations or failed to consider relevant considerations, and that the panel’s written reasons were inadequate. On relevant/irrelevant considerations, Neave JA (with whom Santamaria JA and Ginnane AJA agreed) said:
Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided or raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration. …
In my view the appellant’s answers to the Panel and the reports of the above practitioners squarely raised the issue of whether the appellant’s return to her pre‑injury duties would further aggravate her pre‑existing shoulder condition. It is not for this Court to decide whether such an aggravation was likely or probable. However, I accept the appellant’s submission that if, after considering the matter, the Panel concluded that a return to duties would aggravate the appellant’s pre‑existing injury, she should not have been regarded as capable of returning to her pre‑injury duties. Although the Panel’s task was to reach its own conclusion and not to resolve the differences between the views of the various practitioners, I consider that by failing to consider the question whether the appellant’s work would aggravate her previous shoulder injury, the Panel failed to have regard to a relevant consideration.[76]
[75][2015] VSCA 17 (‘Ryan v Grange’).
[76]Ibid [60]–[69] (citations omitted).
On the adequacy of reasons, her Honour said that the function of a panel is not to resolve a dispute between medical practitioners.[77] Neave JA extracted passages from Wingfoot and then said:
I agree with the primary judge that the Medical Panel gave adequate reasons for answering the Medical Questions in the way that it did. … It follows that the Reasons set out the path of reasoning by which the Panel arrived at its Opinion. As has frequently been stated, administrative tribunals who members are not legal experts are not expected to give reasons of a standard which would accord with the requirements imposed on a judge or lawyer. In that sense its Reasons are entitled to a beneficial construction. The Reasons contain sufficient detail to enable the Court to decide whether or not the opinion involved any error of law.
There is no inconsistency between my conclusions that the Medical Panel failed to have regard to a relevant consideration (that is a possibility that the appellant’s shoulder injury would be aggravated by the performance of duties which had previously injured her shoulder) and my conclusion that the Reasons which the Medical Panel did give were adequate to explain the actual path of reasoning which led the Medical Panel to opine that the appellant was able to return to her pre‑injury duties.[78]
[77]Ibid [108].
[78]Ryan v Grange [109]–[110] (emphasis added).
So it is possible for a medical panel’s reasons to be adequate even though the panel failed to take into account a relevant consideration.
Plaintiff’s submissions
The plaintiff submits that the Panel’s Reasons failed to disclose the Panel’s actual path of reasoning in respect of the relationship between the plaintiff’s employment from an earlier aggravation or exacerbation of the plaintiff’s condition.
The plaintiff submits that the Reasons do not disclose whether the Panel:
(i) considered that there was no causal relationship between her employment, the symptoms that emerged in 2008 and the plaintiff’s underlying condition and if so, why it had formed that view;
(ii) considered that there had been a previous aggravation or exacerbation of the plaintiff’s underlying condition that that aggravation or exacerbation ceased;
(iii) it considered the symptoms referred to any aggravation or exacerbation of her condition ceased entirely and if so, when that occurred and why the Panel had formed that opinion;
(iv) considered that the symptoms the plaintiff now experiences have no relationship to any earlier aggravation or exacerbation of her condition; and
(v) a combination of the above matters; or reasons in some other way.
The plaintiff submits that any one of these steps or their process of reconciliation might give rise to an error of law.
The plaintiff submits that all material before the Panel confirmed an underlying condition in 2008 and the subsequent aggravation of that condition was work related. The plaintiff notes that her claim for permanent impairment was accepted and compensation paid in respect of at least an aggravation of her underlying condition.[79] The plaintiff submits that this is not an attack on the Panel’s findings but that there has been an error of law, in that the path of reasoning does not adequately explain how the Panel has accepted that the plaintiff had a medical condition on which there was an aggravation due to work related activities followed by modified work duties, and the disruption to those work duties which is said gave rise to symptoms of aggravation again and yet, concluded that she does not have capacity or incapacity based on those symptoms.
[79]Transcript, 21.
The plaintiff refers to the Panel’s conclusion that she was suffering from CSM with hyperreflexia which is not relevant to any claimed injury. The plaintiff submits that it is not clear from the Reasons whether the Panel considered that the C3/4 disc protrusion with canal stenosis had any relationship to the plaintiff’s employment. The plaintiff submits that while the Panel stated that they accepted that the plaintiff’s treatment in 2009/2010 was for the C3/4 disc protrusion and canal stenosis, it said no more. The plaintiff submits that there was no reference in the relevant paragraph to the plaintiff’s current symptoms or any symptoms she may have had from the time of the surgery in 2009/2010 to the date of the opinion. The plaintiff submits that there is no information which indicated the symptoms the plaintiff had at the time of the surgery or post-surgery ceased and if they had ceased, when the symptoms referring to the C3/4 disc protrusion and canal stenosis ceased.
The plaintiff submits that this is problematic in light of a finding that the plaintiff still has symptoms that she currently complains of.
The plaintiff submits that even though the Panel considers the C3/4 disc protrusion and canal stenosis was successfully treated, the Panel does not find, based on the material before it and the history given by the plaintiff, the examination undertaken, the radiological investigations, that the plaintiff did not continue to have symptoms following surgery related to that condition. The plaintiff submits that all the material before the Panel is inconsistent with the Panel’s findings.
The plaintiff submits that what flows is that it is not clear when the symptoms, which the Panel refers to as the plaintiff suffers from ‘now’, came into existence given that they are distinguished from symptoms that were from a potentially employment related cause.
The plaintiff submits that the material before the Panel, and in particular submissions from the parties, contemplated symptoms which were an aggravation of an underlying condition of the cervical disc disease which may have been work related. If those symptoms ceased, and the symptoms referable to a different condition commenced, the plaintiff submits that there needs to be some explanation in the Reasons. The plaintiff submits that the difficulty is that the symptoms in question are such that they could arise from the plaintiff’s cervical disc disease or the CSM.
The plaintiff notes that the Panel was not considering symptoms which would readily be distinguished, and as such, an explanation and clarity was necessary in the Panel’s Reasons about what symptoms the plaintiff was suffering from, what condition the symptoms were referable to, if there was an aggravation of the symptoms which may have been work related and if the symptoms referable to a particular condition ceased, and when it was likely they ceased.
The plaintiff submits that in this case the parties assumed that there was a continuance of an underlying aggravation. The defendant submitted to the Panel that the continuance was ameliorated by changes in the plaintiff’s position requirement, so that her work duties were not making it worse.
The plaintiff submits that the Panel’s statement:
The Panel considers the symptoms from which the Plaintiff now complains are indicative of the specific constituted condition of CSM and constitutional degenerative disease of both hands and are not indicative of any suggested aggravation of generalised degenerative changes in the cervical spine. [emphasis added]
created ambiguity in relation to past symptoms, when they ceased and if they were referable to the plaintiff’s cervical disc disease.
The plaintiff considers the Panel’s reasons are inadequate, in that they are ambiguous, and it appears there may have been a finding by the Panel of a cessation of symptoms. The plaintiff submits that this issue is critical because it renders the path of reasoning unclear in circumstances where the plaintiff is seeking weekly payments dating back to February 2012. If there was a cessation of symptoms between February 2012 and 24 December 2013 when the Panel’s Reasons were given, the plaintiff would still have an entitlement to the weekly payments, if those symptoms were referable to an employment related injury in that prescribed period.
The plaintiff submits that the generalised statements at paragraph [3] of p 7 of the Reasons and paragraph [2] of p 8 of the Reasons do not constitute adequate reasons.
The plaintiff considers that in this case one is left speculating as to what those intermediate steps of reasoning might have been. In a situation where those intermediate steps, are capable of being impugned and could materially have affected the outcome, it is a decision which should be quashed.
The defendants’ submissions
The defendants submit that it is clear from the Panel’s Reasons that the fact that the Panel concludes the symptoms now experienced by the plaintiff were referable to or constitutes a condition, rather than any employment related aggravation, were as follows:
(1) the evidence from medical imaging that the plaintiff’s previous C3/4 disc protrusion, canal stenosis condition had been successfully treated;
(2) the plaintiff’s history of improvement of symptoms following that surgery; and
(3) the Panel’s clinical findings which suggested a constitutional condition as opposed to residual symptoms of C3/C4 disc protrusion of canal stenosis condition.
The defendants submit that the Panel’s Reasons do not suggest that the Panel failed to consider the plaintiff suffered from any symptoms as a result of an aggravation of cervical disc disease caused by her employment at any time. Rather, the Panel’s finding was that at the date of the examination, the plaintiff’s symptoms were no longer referable to such a condition; the symptoms may have occurred and may have been referable to such condition but were no longer referable. The defendant submits that the Panel was aware of the competing diagnoses which had been put to them but that they concluded that the plaintiff’s current symptoms are now all constitutional. All the Panel was required to do is to state whether the plaintiff’s current condition and symptoms had a relationship with the employment and they were to provide sufficient reasons to explain their conclusion. The defendant submitted that this was done by the Panel.
The defendants accept the Panel’s Reasons do not specifically suggest that they ever concluded that there was an initial aggravation of the cervical disc disease which was employment related. However, the defendants submit that the Panel was specifically asked to diagnose what the plaintiff’s condition is now and that the Panel specifically said it is a constitutional condition. Further, the Panel was not asked in Questions 1 and 2 whether the symptoms she currently has incapacitated her from employment and they concluded that they did not.
The defendants submit that the plaintiff only asked the Panel about her symptoms ‘now’ and her incapacity ‘now’, at the time of the assessment. The Panel’s findings referred to the date of the examination and that her symptoms were no longer referable to cervical disc disease but were referable to her constitutional condition.[80]
[80]Reasons, 7, [5], (Court Book, 8); Reasons, 10, [1] (Court Book, 11).
The defendants submit that the Panel considered the plaintiff’s present symptoms in relation to a continuing aggravation condition in question 1. In doing so, the Panel considered the various medical reports and submissions and enclosure A, which included opinions supportive of a continuing compensable aggravation injury. The Panel’s Reasons explicitly found the plaintiff’s symptoms now were not indicative of any suggested aggravation or generalised degenerative changes to the cervical spine.[81]
[81]Reasons, 7, [6] (Court Book, 8).
The defendants submit that in light of Wingfoot, the Panel’s Reasons must explain the actual path of reasoning by which it arrived at its opinion and sufficient detail to allow a court to see whether the opinion involved an error of law. However, the Panel is not required to explain why it did not reach an opinion it did not form. The defendants submit that the Panel’s Reasons disclose a clear path of reasoning to its conclusion that the symptoms were referable to a constitutional condition of CSM.
The defendants submits that the Court, in determining the adequacy of Reasons, should ask, what possible reviewable error does the plaintiff say might have been hidden by its imputed or alleged inadequacy of reasons.
The defendants submit that once the Panel made its diagnosis of a constitutional condition of CSM and that the plaintiff’s current symptoms were not referable to any employment caused, it did not have to elaborate or set out when the symptoms, related to any aggravation which may have been employment related, ceased or abated.
The Plaintiff submitted at paragraph 4 of the Plaintiff’s Written Submissions in reply:
4. In particular, the plaintiff does not know whether the Panel:
4.1 considered there was no causal relationship between her employment, the symptoms that emerged in 2008 and the plaintiff’s underlying condition and if so, why it had formed that view;
4.2 considered that there had been a previous aggravation or exacerbation of the plaintiff’s underlying condition but that that aggravation or exacerbation had ceased;
4.3 considered that the symptoms referable to any aggravation or exacerbation of her condition ceased entirely and if so, when that occurred and why the Panel had formed that opinion;
4.4 considered that the symptoms the plaintiff now experiences have no relationship to any earlier aggravation or exacerbation of her condition;
4.5 a combination of the above matters; or
4.6 reasoned in some other way.
In relation to 4.1, the defendants submit that the Panel was not asked to consider this issue. That is, it was not asked to consider whether there was a causal relationship between her employment and the symptoms that emerged in 2008 and the plaintiff’s underlying condition.
In relation to 4.2, the defendants submit that it does not matter whether the plaintiff knows if the Panel considered there had been a previous aggravation or exacerbation. The defendants submit that this is no more than an exploration of the plaintiff’s doctor’s submissions which the Panel addressed and specifically rejected in relation to the plaintiff’s current condition and the current causal symptoms.
In relation to 4.3, the defendants submit that this is a question which any Panel would have difficulty answering in cases dealing with abating aggravation questions. In any event, the defendants submit that it was not a question the Panel was asked and the Panel did not have to answer as part of answering what the plaintiff’s condition was and its relationship to employment.
In response to the plaintiff’s submission that any of the steps set out in paragraph 4 of their written submissions in reply could give rise to an error of law, the defendants submit that if the Panel had made a finding in relation to the cessation of symptoms after the surgery in 2010, it would have done so relying on the Panel members’ expertise and would have been perfectly entitled to do so. Any evidence at all, including the Panel’s expertise and experience, notwithstanding the medical reports the plaintiff seeks to rely upon, would still be evidence. The defendants consider that a no evidence claim could not prevail.
The defendants submit that the asserted inadequacy of Reasons does not show that there is a possible error of law constituted by a conclusion not being open to the Panel.
In relation to the possibility of an error in the Wednesbury sense, the defendants submit that Wednesbury’s unreasonableness is only about discretionary termination, not about findings of fact. Even if there was such a ground, the defendants submit that the form of it would be that the factual finding was so unreasonable that no reasonable panel would come to that conclusion. The defendants submit that if such a ground is available, which they do not accept, and the Panel had concluded that the symptoms that emerged in 2008 were never attributable to any aggravation or exacerbation of the plaintiff’s CSM, they would have been entitled to make a finding of that type. Further, the defendants submit that the question posed about emerging symptoms in 2008 has no relevance to the matters before the Panel. The defendants submit that the Panel is not expected to discuss emerging symptoms in order to sustain its view about a condition when it examined the plaintiff, and when it was asked to opine about the plaintiff’s condition, and the relationship, if any, with employment.[82]
[82]Transcript, 83, lines 3–10.
Decision
When the Reasons are read as a whole, I consider that it is clear that the Panel concluded that although the plaintiff had a condition of C3/C4 disc protrusion and canal stenosis in the past, which is relevant to a claimed injury, the symptoms which she currently has are referable to the CSM and these symptoms are not referable to her employment or the earlier cervical disc disease. The Panel disagreed with the contrary medical opinions.
In reaching the above conclusion, the Panel took into account the matters set out in the Reasons, including –
(a) the history of the plaintiff’s physical health, as communicated by her to the Panel and as set out in the medical reports provided to the Panel, including the:
(vi) plaintiff’s pre-existing injury;
(vii) nature of the injury;
(viii) plaintiff’s return to work on modified duties and subsequent termination of work;
(b) the treatment the plaintiff received for the C3/C4 disc protrusion condition, its effectiveness, as communicated by the plaintiff to the Panel and as set out in the documents in Annexure A;
(c) the Panel’s observations of the plaintiff at her medical examinations by members of the Panel;
(d) the opinions of various doctors, including, Mr David Brownbill, Mr Kenneth Brearley, Dr Lynette Squires, Mr Richard Kjar, Mr John McMahon and Associate Professor Buzzard; and
(e) the contents of documents in Annexure A.
The plaintiff’s criticism is that the Panel failed to set out when the symptoms referable to the cervical disc disease ceased and that this is particularly important given the Panel’s finding that the plaintiff’s symptoms are now referable to a different condition of CSM, which is not a work related injury.
The Court should be hesitant to conclude that a Panel has (or has not) made a particular intermediary finding, in this case, when the plaintiff’s symptoms which related to a cervical disc disease ceased. T Forrest J in Denham v Consolidated Herd Improvements[83] noted, that to do so, the Court risks attributing a path of reasoning to a Panel that is not the actual path of reasoning adopted by the Panel. His Honour said:
In my view it is also difficult to infer that a Panel has reasoned in a particular way (where it does not say it has reasoned in that way) without first assuming the Panel has reasoned lawfully.[84]
[83][2014] VSC 520.
[84]Ibid [37].
I take the view that in this case it was not a necessary step in the Panel’s reasoning to identify when the plaintiff’s symptoms referable to the cervical disc disease ceased. Having concluded that the plaintiff’s current symptoms were referable to the CSM condition, it was not necessary for the Panel to provide a timeline. Nor do I consider it is something which the Panel could have easily undertaken, as to when a set of symptoms which are no longer relevant, ceased. On the balance of probabilities, I am able to say that the Panel concluded that the plaintiff’s condition, based on the factors set out in paragraph 116 is CSM with hyperreflexia, and that it is not relevant to any claimed injury.
In my opinion, the Reasons adequately demonstrated the Panel’s path of reasoning in respect of Questions 1 and 2. The Panel explained the nature of the plaintiff’s medical condition and concluded that it was not relevant to the claimed injury. The Panel demonstrated an understanding and acceptance of the plaintiff’s claimed injuries as listed in Question 1 and of various treatments the plaintiff underwent for the claimed injury. Having had regard to the plaintiff’s history, documents and X-rays and the Panel’s examination of the plaintiff, it found that the nature of the plaintiff’s medical condition and the symptoms flowing from that medical condition, CSM, were not relevant to any claimed injury. In my view, the Reasons sufficiently explain the Panel’s conclusion that the plaintiff has no present inability to return to her pre-injury employment arising from the claimed injury.
I do not consider the Panel was required to embark upon an explanation of which medical opinions it agreed or disagreed with. Ultimately it was open to the Panel to make a finding that the plaintiff’s cessation of symptoms relating to the cervical disc disease was open to it on the basis of the examination of the plaintiff and the Panel’s expertise and experience. The fact that this may not have accorded with medical opinions before the Panel does not mean that a no evidence claim of an error in the Wednesbury sense would prevail.
As such, I consider the Panel’s path of reasoning is evident from the Reasons and complies with the requirements set out in Wingfoot. The plaintiff does not submit that the Panel reached a conclusion not open to it in terms of the current medical condition of CSM and its constitutional cause. The Panel’s Opinion focused on identifying, as medical practitioners, the cause of the plaintiff’s current symptoms. Question 1 requires assessment of the plaintiff’s medical condition at the time the Panel formed its Opinion. The Panel took a detailed history as to the onset of symptoms and subsequent progress, together with treatment provided. The Panel conducted a physical examination of the plaintiff, as well as a neurological assessment. The Panel examined and formed its own conclusions about the radiological imaging provided.
The Panel explained its path of reasoning in arriving at its Opinion in response to Question 1. The Panel considered the nature of the plaintiff’s current symptoms and said these were ‘indicative of a specific constitutional condition of CSM and constitutional degenerative disease of both hands’.[85] It rejected that the symptoms were now ‘indicative of any suggestive aggravation of generalised degenerative changes in the cervical spine’.[86] The Panel noted the contrast of the clinical examination to the findings of Mr Brearley and Mr Brownbill, of generalised hyperreflexia in the upper and lower limbs. The Panel considered that evidence and examination did ‘account’ for the diagnosis of CSM.[87] The Panel clearly stated that the CSM, an unrelated constitutional disease of the hands, ‘have not been affected in any way by the plaintiff’s employment’, and further that ‘none of her current symptoms is related to the successfully treated C3/4 disc protrusion with canal stenosis condition’.[88]
[85]Reasons, 7 (Court Book, 8).
[86]Ibid.
[87]Reasons, 8 (Court Book, 9).
[88]Reasons, 8 (Court Book, 9).
The Panel was aware of the submissions made in support of the continuing aggravation theory, or a potential causal link between current symptoms and prior work injury.[89] The Panel in its Reasons for the Opinion it formed, looked at the plaintiff’s current condition, and found no causal link between that condition and the claimed work related injury. The Panel appropriately applied its medical knowledge and experience in furnishing opinions on the referred medical questions. I consider the Panel explained the Reasons in sufficient detail and that it did so in a manner according to the law. Both the parties accepted that the Reasons should not be subjected to overzealous scrutiny.[90] The Panel was not required to address all possible paths of reasoning and dismiss them one by one.
[89]Reasons, 10 (Court Book, 11).
[90]Minister for Immigration and Ethnic Affair v Wu Shan Liang (1996) 185 CLR 259, 271–2; Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 42, 48–50 [9]–[18].
In concluding that the nature of the plaintiff’s medical condition was not relevant to any claimed injury, it was not necessary for the Panel to explain why it did not agree with the various medical opinions contained in Annexure A. As noted, in Wingfoot, the High Court said that a medical panel was only required to provide reasons for the opinion it formed and not for any opinion that it did not form.
As noted by Neave JA in Ryan v The Grange Wodonga Pty Ltd & Ors[91] the functions conferred on the Panel do not require the Panel to resolve a dispute between medical practitioners that have competing medical opinions. The function of the Medical Panel is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[92]
[91][2015] VSCA 17.
[92]Ibid [108].
I consider the Reasons contain sufficient detail to enable the Court to decide whether or not the Opinion and Reasons involved any error of law.
It follows that the ground of review is not made out. For the reasons set out above, the plaintiff has failed to establish that the Panel made an error of law on the face of the record.
The application for a review will be dismissed.
Subject to hearing the parties’ submissions on costs, it seems to me that costs follow the event and accordingly, the plaintiff should pay the defendant’s costs. I will hear the parties on the form of order and costs.
- - -
SCHEDULE OF PARTIES
| GLENICE MCINTYRE | Plaintiff |
| - and - | |
| DAVID FISH | First Defendant |
| KEVIN SIU | Second Defendant |
| ANDREA BENDRUPS | Third Defendant |
| BRENDAN HAYMAN | Fourth Defendant |
| JACK KIRSZENBLAT | Fifth Defendant |
| RURAL CITY OF WANGARATTA | Sixth Defendant |
| QBE WORKERS’ COMPENSATION (VIC) LTD | Seventh Defendant |
5
4
0