Milwain v Sim
[2009] VSC 75
•12 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5989 of 2008
| MARRALYN MILWAIN | Plaintiff |
| v | |
| PROFESSOR MALCOLM SIM, ASSOCIATE PROFESSOR RICHARD STARK, DR EVANGE ROMAS, DR JAMES CARSON and DIVER METAL PRODUCTS PTY LTD | Defendants |
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JUDGE: | Kyrou J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2009 | |
DATE OF JUDGMENT: | 12 March 2009 | |
CASE MAY BE CITED AS: | Milwain v Sim | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 75 | |
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Judicial review – Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Accident Compensation Act 1985 (Vic) – medical panel – failure to take into account relevant considerations – inadequate reasons – whether inadequacy of reasons constitutes error of law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr N D Horner | Workforce Legal |
| No appearance for the First, Second, Third and Fourth Defendants | ||
| For the Fifth Defendant | Mr M Fleming | Wisewoulds |
HIS HONOUR:
Introduction and summary
This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in relation to an opinion of a medical panel dated 14 February 2008 answering six medical questions to the effect that there was no causal link between the employment of the plaintiff, Marralyn Milwain, with Diver Metal Products Pty Ltd (“Diver”) and the injury to her cervical spine or right hand and that she does not have a present inability to return to her pre-injury employment.
The first, second, third and fourth defendants constituted the medical panel (“panel”) and did not participate in the proceeding. The fifth defendant, Diver, assumed the role of contradictor in the proceeding.
The plaintiff seeks an order quashing the panel’s opinion and an order remitting the medical questions to a differently constituted medical panel on the grounds that the panel failed to take into account relevant considerations and that the reasons for its opinion are inadequate.
For the reasons set out in this judgment, I have decided to grant the orders sought by the plaintiff on the ground that the panel failed to take into account relevant considerations.
Facts and procedural history
Ms Milwain commenced work with Diver on 28 January 1997 and worked as a spot welder from 1999. Around January 2004, she began noticing intermittent pains in the muscles of her upper arms and neck when she needed to take parts from the left side of a machine and also when parts were twisted together and she had to pull them apart. She reported the pain to Diver but did not take any time off work during 2004.
Ms Milwain started her summer holidays on 23 December 2004. She travelled to Adelaide on 27 December 2004 as a passenger in a car. The following day, she slept on a camp bed and woke with right sided neck pain radiating into the shoulder blade. The trip back to Melbourne a week later was very uncomfortable. She had some physiotherapy treatment during January 2005, as her neck pain worsened. She did not return to work when due to do so on 17 January 2005 because of the severe neck and right shoulder pain.
Ms Milwain was subsequently diagnosed with a prolapsed C6/7 cervical disc. She made a claim against Diver under the Accident Compensation Act 1985 (Vic) (“AC Act”) on 4 March 2005 for injury to her neck, namely a right sided disc protrusion at C 6/7 (“injury”). The claim was rejected on 30 March 2005. On 20 May 2005, she had surgery involving a cervical C6/7 discectomy and fusion. This lessened the severity of her pain.
Ms Milwain has not returned to work at Diver. She has performed some light casual work following the termination of her employment with Diver on 22 August 2006.
Ms Milwain commenced proceedings in the County Court on 17 July 2006. She requested that six medical questions be referred to a medical panel pursuant to s 45(1)(b) of the AC Act.
The panel was convened to give its opinion. The documents that Ms Milwain submitted to the panel included medical reports obtained from her treating doctors and medical experts. They included reports from two neurosurgeons, Mr Klug and Mr McMahon.
Mr McMahon’s report dated 25 May 2005 stated:
I feel that Miss Milwain’s previous employment as a spot welder has been a significant contributing factor to her recent presentation. Certainly there would be a background of disc degeneration, however, I feel that due to the physical nature of her work which involves lifting heavy weight as well as constant neck flexion movements that her work has been a significant contributing factor.
Mr Klug’s report dated 4 January 2007 stated:
Although there doesn’t appear to be any specific incident associated with [Ms Milwain’s] employment I would have to be of the opinion that the nature of her employment almost certainly has contributed to the development of this disorder. I feel it is unlikely that in the absence of her particular employment her condition would have developed to the stage where she did require operative treatment.
Although Diver submitted a number of medical reports to the panel, the panel’s “Enclosure A”, which sets out the material the panel took into consideration in forming its opinion, lists only one such report, namely the report of Mr Brownbill, a neurosurgeon, dated 18 July 2005.[1] In that report, Mr Brownbill stated:
[I]f [Ms Milwain’s] previous job had involved repeated heavy lifting and forced cervical spine mobility (including repeated forced neck flexion) then it would be considered on probability in her job as a spot welder, that her disc prolapse would be regarded as work related. If however, her job did not involve such heavy lifting or forced cervical spine mobility (and as suggested by Dr. Brown, an occupational physician who stated that he had visited the workplace and was familiar with the work activities involved) then on probability, it would be considered that the disc prolapse was not work related.
[1]A further report prepared by Mr Brownbill on 12 December 2005 did not express any relevant opinions.
The panel was also provided with a DVD prepared by Diver after Ms Milwain lodged her claim, which depicted another person performing the type of work Ms Milwain had performed prior to the injury. Ms Milwain was given access to the DVD and she prepared a detailed handwritten submission setting out those aspects of the DVD which did not accurately depict her work. The general thrust of the submission, which was provided to the panel, was that Ms Milwain’s work involved more flexing and heavy lifting than was depicted on the DVD.
The panel examined Ms Milwain on 25 January 2008. In the course of the examination, the panel obtained information from Ms Milwain about the nature of her work, her medical history, the injury and its ongoing effects.
In its opinion dated 14 February 2008, the panel answered the six questions that had been referred to it as follows:
Question 1.What is the nature of the medical condition of the Plaintiff’s –
a.Neck;
b.C6-7 disc;
c.C5-6 disc;
d.left shoulder;
e.right shoulder;
f.right hand;
g.Psychological state?
Answer:In the opinion of the Panel, the Plaintiff is suffering from:
a.No medical condition relevant to any alleged neck injury;
b.No medical condition relevant to any alleged C6/7 injury;
c.No medical condition relevant to any alleged C5/6 injury;
d. No medical condition relevant to any alleged left shoulder injury;
e. No medical condition relevant to any alleged right shoulder injury;
f. No medical condition relevant to any alleged right hand injury;
g. No medical condition relevant to any alleged psychological state injury.
Question 2.Was the Plaintiff’s employment by Diver Metal Products Pty Ltd from 28 January 1997 until 23 December 2004 in fact, or could it possibly have been, a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of any and what pre-existing injury or disease of the Plaintiff’s –
a.neck;
b.C6-7 disc;
c.C5-6 disc;
d.Left shoulder;
e.Right shoulder;
f.Right hand;
g.Mind?
Answer: a.-g. No.
Question 3. Does the Plaintiff have an incapacity for work?
Answer:In the Panel’s opinion the Plaintiff has no present inability arising from an injury such that she is not able to return to her pre-injury employment.
Question 4.If yes to question 3, does the Plaintiff’s incapacity for work result from or is it materially contributed to by any and which of the matters inquired of in question 2?
Answer:In the Panel’s opinion any incapacity for work does not result from nor is it materially contributed to by any alleged injury.
Question 5.Does the Plaintiff have no current work capacity?
Answer:In the Panel’s opinion the Plaintiff has no present inability arising from any injury such that she is not able to return to her pre-injury employment.
Question 6.If the Plaintiff has no current work capacity, is she likely to continue indefinitely to have no current work capacity?
Answer:Not applicable.
The panel also prepared reasons for its opinion dated 14 February 2008. These reasons were provided to Ms Milwain on 6 March 2008 following a request from her solicitors dated 29 February 2008.
The key paragraphs in the panel’s reasons for present purposes are as follows:
The Panel formed its opinion by reference to –
(a)the documents and information referred to in Enclosure A; and,
(b)the history provided by the Plaintiff and the examination findings elicited by the Panel at the above mentioned examinations of the Plaintiff.
…
The Plaintiff said that she worked as a process worker and welder and the Plaintiff described her various work tasks to the Panel. She said she began working in the spot welding area in 1999. She said she worked on a variety of different machines, which usually required the parts to be passed from her right side to her left. These were usually components weighing about 500 grams and up to three hundred parts were welded in an hour. She said that rotation was usually on a daily basis, although there were times when she stayed on the same machine for a few days at a time. She often worked overtime.
The Plaintiff told the Panel that prior to the end of 2003 she had no particular health problems at work, apart from occasional minor muscular aches and pains. None of these required her to take time off work, nor to seek any medical treatment.
The Plaintiff said that from about January 2004 she began to notice intermittent pains in the muscles of her upper arms and neck and reported this at work. She noticed that this occurred when she needed to take parts from the left side of a machine and also when parts were twisted together and she had to pull them apart. She stopped work on the machine that was causing this problem. Despite this change in her work program she continued to have ongoing intermittent muscular pain. She self treated this with tiger balm rubbed over the shoulder blade and occasional Panadol.
The Plaintiff said she also stopped doing overtime in March 2004. Later in 2004 she was able to start overtime again, doing up to ten to twelve hours a week. The Plaintiff told the Panel that there was no worsening in her muscle pain from this increase in her work hours. The Plaintiff said that she had not taken time off work in 2004 for her muscular pains despite working up to fifty hours per week. She said that she had some breaks for some minor surgical procedures during 2004 which gave her some natural breaks from her work and she did not need to take any further time off.
The Plaintiff said that she started her summer holidays on the 23rd December 2004. She said that she was a passenger on a car trip to Adelaide on the 27th December. She said she had no neck pain on that day. She said that on the following day she had a sleep on a camp bed and woke with right sided neck pain radiating into the shoulder blade. She said that this pain was more severe than any pain that she had had before and she took Nurofen tablets. She was in Adelaide for a week and said the trip back to Melbourne was very uncomfortable. She did not seek treatment when she returned to Melbourne but she had physiotherapy treatment during a trip to Bright later in her holidays, as her neck pain had worsened. When she was due to return to work in late January she was unable to do so because of the severe neck and right shoulder pain.
The Plaintiff said that she was subsequently diagnosed with a prolapsed C6/7 cervical disc, for which she had surgery on the 20th May 2005. This surgery involved a cervical C6/7 discectomy and fusion. After this surgery her pain resolved for some weeks but then she had a recurrence of pain in the right side of the neck and the right shoulder, although this was not as severe as before her operation.
The Plaintiff said that she is currently having intermittent right sided neck pain and right shoulder blade pain. She finds that pushing with the right arm can increase her pain. She is not having any numbness or tingling in the arms apart from the numbness in the hands at night. The Plaintiff related these symptoms to a recently diagnosed Carpal Tunnel Syndrome, for which she has not had any nerve conduction studies nor any treatment. She said that strength in her arms is normal and that she has full mobility of the right shoulder and arm.
…
The Panel watched the supplied DVD of the Plaintiff’s workplace with the Plaintiff, who said she had seen the DVD before. The Panel observed the actions which depicted various tasks the Plaintiff performed and the Panel noted that the tasks were consistent with the Plaintiff’s description of her work tasks with the Defendant.
The Panel concluded that the Plaintiff suffers from a right posterolateral C6/7 disc prolapse, surgically treated, with persisting right sided radiculopathy and a C5/6 disc bulge with no radiculopathy.
The Panel also concluded that the Plaintiff suffers from no intrinsic medical condition of the left shoulder or right shoulder, relevant to any alleged injury.
After reviewing the Plaintiff’s complaint of right hand symptoms which are suggestive of Carpal Tunnel Syndrome and the normal findings on clinical examination, and notwithstanding the absence of any nerve conduction studies, the Panel concluded that the Plaintiff is not suffering from any medical condition of the right hand relevant to any alleged injury.
…
The Panel took into account the nature of the Plaintiff’s description of her tasks during her employment with Diver Metal Products Pty Ltd from 28 January 1997 until 23 December 2004, the Plaintiff’s history that her intermittent pains prior to ceasing work were minor musculature discomfort for which she did not require medical management or time off from work, the absence of any history of incident of injury and the Plaintiff’s history that … her cervical disc prolapse occurred several days after finishing work.
Based on the chronological history of her symptomatology, the Plaintiff’s description of her work duties and the absence of any work duties or of any incident of injury which the Panel considers would have affected the cervical spine or right hand, the nature and extent of her current symptoms and the findings on clinical examination, the Panel concluded that the Plaintiff’s employment duties did not affect the condition of the cervical spine or right hand, in any way.
The Panel concluded that the Plaintiff’s employment was not in fact, nor could it possibly have been, a significant contributing factor to any alleged injury to the cervical spine or right hand or to any alleged psychological state injury or to any alleged aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the cervical spine or right hand.
Ms Milwain issued an originating motion on 5 May 2008 seeking an order quashing the panel’s opinion and remitting the medical questions to a differently constituted medical panel. She relied on two grounds of review. The first was that the panel failed to take into account relevant considerations, namely Ms Milwain’s version of the nature of her work with Diver, her medical history and the three neurosurgeons’ reports. The second was that the reasons for the panel’s opinion were inadequate.
Decision on first ground of review – relevant considerations
A medical panel is amenable to judicial review.[2] Its opinion can be quashed if it makes a jurisdictional error.[3] It commits jurisdictional error if, in making its decision, it ignores a matter it is bound to take into account and that matter materially affects its decision.[4]
[2]Masters v McCubbery [1996] 1 VR 635 (“Masters”).
[3]Masters [1996] 1 VR 635.
[4]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41 (“Peko-Wallsend”); Craig v South Australia (1995) 184 CLR 163, 179 (“Craig”); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351-2 [82]-[83].
A medical panel does not commit a jurisdictional error merely because it employs illogical reasoning.[5] Further, the relative weight that a medical panel gives to evidence for and against an issue it is required to determine is a matter for the medical panel. The fact that this Court would have given different weight to evidence before a medical panel or would have reached a different factual conclusion does not in itself disclose a jurisdictional error.[6]
[5]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6; Roads Corporation v Dacakis [1995] 2 VR 508, 517-20; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 257 [146]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 [40], 627-8 [44]-[45]; Willcocks v Comcare (2001) 66 ALD 119; [2001] FCA 1315, [6]; Berbers v Transport Accident Commission (2002) 19 VAR 201; [2002] VSC 211, [28]-[34]; Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280; [2003] VSC 255, [34]; Lucas v Transport Accident Commission [2003] VSC 97, [10].
[6] Victoria v Sinnappan [1995] 2 VR 242, 256.
However, if a medical panel’s reasoning demonstrates that it asked itself the wrong question, took into account irrelevant considerations or failed to take into account relevant considerations, then it commits a jurisdictional error.[7] In deciding whether a medical panel has failed to take into account relevant considerations, this Court must be careful not to cross the line between judicial review and merits review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.
[7]Craig (1995) 184 CLR 163, 179.
What factors a medical panel is bound to consider in forming its opinion is determined by construction of the statute conferring its jurisdiction, namely the AC Act.[8] Section 65(5)(a) of the AC Act provides that a medical panel may ask a worker to meet with the panel and answer questions. It can be inferred from this provision that the medical panel must take into account the answers given. Section 65(5)(b) provides that a medical panel may ask a worker to supply the panel with copies of all documents in the worker’s possession which relate to the medical questions. Section 65(6B) also provides that the person or body referring a medical question to a medical panel must submit copies of all documents relating to the medical question in the possession of that person or body to the medical panel. Medical reports on issues covered by the medical questions referred to a medical panel are clearly relevant to the medical questions and it can be inferred from ss 65(5)(b) and (6B) that the medical panel must take them into account.
[8]Peko-Wallsend (1986) 162 CLR 24, 39.
Mr McGarvie SC, who appeared with Mr Horner for Ms Milwain, submitted that the panel was bound to take into account Ms Milwain’s version of the nature of her work with Diver and that it had failed to do so because it relied on the nature of the work on the DVD which, according to Ms Milwain’s detailed handwritten submission, did not accurately depict her work. Mr McGarvie submitted that the panel’s statement that the tasks depicted on the DVD were “consistent” with Ms Milwain’s description of her work tasks indicates that the panel failed to take into account the detailed handwritten submission.
As it was not in Ms Milwain’s interest to depart from what she previously stated in the detailed handwritten submission about her work, it is highly likely that what she told the panel was consistent with the submission. Accordingly, it can be inferred that Ms Milwain informed the panel that her work was heavy and involved repeated forced neck flexion.
The panel’s reasons attribute to Ms Milwain various statements about the nature of her work. The fact that the panel did not expressly state in its reasons that Ms Milwain said that her work involved heavy lifting and repeated forced neck flexion suggests that it did not focus on the precise nature of Ms Milwain’s work. This is reinforced by the panel’s statement that the tasks depicted on the DVD were consistent with Ms Milwain’s description of her work tasks, given the differences set out in the detailed handwritten submission between the work depicted on the DVD and the work Ms Milwain performed.
It can be inferred from the matters referred to in paragraph 26 of this judgment that the panel did not regard whether Ms Milwain’s work involved heavy lifting and repeated forced neck flexion, as maintained by her, or was of a lighter nature, as depicted on the DVD, as relevant because it formed the view that, irrespective of the nature of Ms Milwain’s work, the work was not a significant contributing factor to her injury. Mr Fleming, who appeared for Diver, agreed that this inference can be drawn from the panel’s reasons.
It can thus be inferred that the panel failed to take into account Ms Milwain’s statements to the panel that her work with Diver involved heavy lifting and repeated forced neck flexion and thus failed to take into account a matter that it was required to take into account pursuant to s 65(5)(a) of the AC Act. This failure cannot be regarded as immaterial in the circumstances of this case. This is because, in view of the fact that all three neurosurgeons had expressed the opinion that Ms Milwain’s work with Diver would probably have been a significant contributing factor to her injury if the work involved heavy lifting and repeated forced neck flexion, whether her work in fact involved those activities was clearly relevant to whether her work was a significant contributing factor to her injury. It was therefore necessary for the panel to make a finding on whether Ms Milwain’s work involved heavy lifting and repeated forced neck flexion, and take that finding into account in deciding whether the work was a significant contributing factor.
I disagree with Mr Fleming’s submission that the panel concluded that Ms Milwain’s injury was caused by events connected with her holiday in Adelaide and that, in light of the panel’s conclusion that Ms Milwain’s work with Diver could not possibly have significantly contributed to her injury, it was unnecessary for the panel to form a view about whether Ms Milwain’s work involved heavy lifting and repeated forced neck flexion. The panel did not say that Ms Milwain’s injury was caused by events connected with her holiday. For the reasons set out above, the circumstances of this case required the panel to form a view about whether Ms Milwain’s work involved heavy lifting and repeated forced neck flexion and to take this view into account before deciding what caused or contributed to her injury.
Mr McGarvie also submitted that the panel failed to take into account the fact that all of the medical reports that the panel said it considered concluded that if, as claimed by Ms Milwain, her work involved heavy lifting and repeated forced neck flexion, her work was probably a significant contributing factor to her injury.
Mr Fleming submitted that the panel took into account the three neurosurgeons’ reports because they were listed in Enclosure A to the panel’s reasons.
Given that:
(a)Ms Milwain informed the panel that her work with Diver involved heavy lifting and repeated forced neck flexion;
(b)the panel did not make a specific finding about whether Ms Milwain’s work with Diver involved heavy lifting and repeated forced neck flexion but did not expressly reject Ms Milwain’s version of the nature of her work;
(c)all the neurosurgeons’ reports that the panel said it had before it (including Mr Brownbill’s report that was prepared for Diver) concluded that if Ms Milwain’s work involved heavy lifting and repeated forced neck flexion, then it probably was a significant contributing factor to her injury;
(d)the panel did not refer to any of the medical reports in its reasons; and
(e)while the panel concluded that the cervical disc prolapse occurred several days after Ms Milwain finished work, it did not attribute the injury to any specific event during Ms Milwain’s holiday in Adelaide,
the question arises whether the panel’s conclusion that Ms Milwain’s work did not significantly contribute to her injury was one that was open to it on the evidence (even if there are gaps in its logic), or whether any gaps in logic indicate that material matters were not taken into account.
In the circumstances of this case, I have decided that the panel failed to take into account a material relevant consideration, namely the unanimous view of the medical reports before the panel that if Ms Milwain’s version of her work tasks was accepted, it was probable that her work significantly contributed to her injury.
Had the panel taken Ms Milwain’s version of her work and the medical evidence into account and decided that, notwithstanding this information, no matter how onerous Ms Milwain’s work was, it did not contribute to her injury, its conclusion could not be impugned on the basis of failing to take relevant considerations into account. However, in the circumstances of this case, the likelihood is that the absence of any reference to the medical evidence in the panel’s reasons is due to its failure to take that evidence into account. This is not a case where a medical panel states that it considered medical reports favouring a worker and medical reports favouring an employer and based on its conclusion it can be inferred it preferred one set of reports over the other. None of the reports the panel said it had before it stated that, on Ms Milwain’s version of her work duties, her work could not possibly have significantly contributed to her injury.
The fact that the three neurosurgeons’ reports are listed in Enclosure A to the panel’s reasons and that those reasons state that all the items in Enclosure A were taken into consideration in forming its opinion does not affect my conclusion. In my experience, all recent statements of reasons of medical panels contain a pro-forma statement that the documents listed in the enclosure to the reasons were taken into account by the medical panel. That statement is not determinative in circumstances where the reasons, read as a whole and without a predisposition to find error[9] indicate that a particular document, whilst before the panel, was not taken into account.
[9]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271-2.
Mr McGarvie also submitted that the panel’s statement that Ms Milwain’s “intermittent pains prior to ceasing work were minor musculature discomfort for which she did not require medical management” meant that the panel failed to take into account Ms Milwain’s medical history and medical treatment during 2004. The panel referred to Ms Milwain’s medical history before and after January 2004 at the beginning of its reasons. Even if it is assumed that the abovementioned statement confused Ms Milwain’s pre January 2004 medical history with her post January 2004 medical history, this would constitute an error of fact. It would not be an error of law let alone a jurisdictional error.
The panel was bound to take into account what Ms Milwain told the panel about the nature of her work and the medical evidence submitted to it. Its failure to do so constitutes a jurisdictional error which materially affected its opinion. It follows that the opinion will be quashed. As the panel has expressed its views on key issues in strong terms, it is appropriate in the circumstances of this case that the medical questions be remitted to a differently constituted medical panel for determination.[10]
[10]Vegco Pty Ltd v Gibbons [2008] VSC 363, [33].
Decision on second ground of review – inadequate reasons
My conclusion in paragraph 37 of this judgment makes it unnecessary for me to consider the second ground of review, namely that the panel’s reasons are inadequate. I note that in Sherlock v Lloyd,[11] I decided that the inadequacy of reasons given by a panel pursuant to a request for reasons under s 8 of the Administrative Law Act 1978 (Vic) does not constitute an error of law on the face of the record. I also note that Sherlock is now the subject of an appeal to the Court of Appeal.
[11][2008] VSC 450.
Proposed orders
I will hear the parties on the precise form of the orders to be made in light of this judgment and on costs.
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