Morrison v Melbourne Pathology Pty Ltd
[2018] VSC 477
•27 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03840
| WENDY MORRISON | Plaintiff |
| v | |
| MELBOURNE PATHOLOGY PTY LTD | First Defendant |
| and | |
| DR JENNY DOWNES-BRYDON, | |
| DR MANO THEVATHASAN and | |
| DR JOHN BOURKE | Second, Third and Fourth Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2018 |
DATE OF JUDGMENT: | 27 August 2018 |
CASE MAY BE CITED AS: | Morrison v Melbourne Pathology Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 477 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Assessment of whether ongoing incapacity for work was still work-related – Lymphoedema in left arm, right arm and left chest – Whether Panel’s statement of reasons adequate – Whether findings of fact were open on the evidence – Error established – Panel’s opinion quashed – Questions remitted to differently constituted Panel.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr AG Uren QC with Mr CE Hangay | Zaparas Lawyers |
| For the Defendants | Mr MF Fleming QC with Ms F C Spencer | Thomson Geer |
HER HONOUR:
The plaintiff, Wendy Morrison, began working for the first defendant, Melbourne Pathology, in 2007 as a pathology collector. In July 2016 Ms Morrison made a workers compensation claim in respect of lymphoedema in both of her arms, and her claim was accepted. In December 2016 her compensation entitlements were terminated, on the basis that her incapacity for work was no longer work related.
Ms Morrison disputes that decision, contending that she has an ongoing work related condition that incapacitates her for work. The dispute was referred to a Medical Panel, constituted by the second, third and fourth defendants. In July 2017 the Panel gave its opinion that Ms Morrison’s incapacity for work was no longer related to her work.
Ms Morrison seeks judicial review of the Panel’s opinion, which she says involved legal error. She seeks orders quashing the opinion and remitting the matter for reconsideration by a differently constituted Medical Panel. Melbourne Pathology contends that there is no error in the Panel’s opinion.
The Panel did not participate in the proceeding, advising the Court through its solicitors that it would submit to such orders as the Court might make.
For the reasons that follow I find that the reasons given by the Panel for its opinion were inadequate and that it made material findings of fact that were not open on the evidence. I will therefore make the orders sought by Ms Morrison.
Factual background
When Ms Morrison started working for Melbourne Pathology in 2007 she had a history of breast cancer, which required surgery in 2002 and again in 2003. By 2003 she had also been diagnosed with lymphoedema of the left arm, which she was able to manage well using massage and a compression sleeve. Melbourne Pathology was aware of Ms Morrison’s medical history from the outset, and it managed her workload with this knowledge. She worked part time and, from 2007, was placed at a quieter location with fewer patients.[1]
[1]The factual summary in this and the following paragraphs is drawn from the reasons for opinion of the Panel dated 24 July 2017 (Reasons), except where otherwise indicated. The Reasons were exhibit JT-6 to the affidavit of John Typaldos sworn 22 September 2017 (Typaldos affidavit).
In about late January 2016 Melbourne Pathology introduced a new ‘E Collect’ system that required a good deal more data entry, using both hands on a keyboard, than had previously been the case. In about February 2016 Ms Morrison reported ‘arm pain’ to her employer, which she attributed to more data entry. Her workstation was modified to make it more ergonomic, which assisted with the symptoms in her right arm. However, after a few months she had swelling in her right arm that was diagnosed as lymphoedema. She had four weeks off work in May 2016, and then returned to working reduced hours.
In July 2016 Ms Morrison attended the lymphoedema clinic at Monash and was found to have lymphoedema in both arms, with greater swelling in her left arm than in her right. That month she made a claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) for weekly payments of compensation and medical and like expenses.[2] The claimed injury was ‘my arms – particularly right arm’. The claim was accepted by Melbourne Pathology’s claims agent, Allianz, in August 2016.[3]
[2]Exhibit JT-1 to the Typaldos affidavit.
[3]Exhibit JT-2 to the Typaldos affidavit.
By August 2016 Ms Morrison had ongoing aching of the upper limbs, more so on the left side. She did not work in August 2016, and then returned to her pre-injury duties two days a week with no E Collect duties. Despite wearing compression sleeves she experienced significant worsening of arm pains when performing her pre-injury duties. Her hours were reduced again.
In early October 2016 she felt able to try working longer hours again but, before she could do so, she experienced new symptoms in her left breast, which became swollen, aching and tender. These new symptoms were diagnosed as lymphoedema of the left chest wall and breast. Ms Morrison ceased all work in November 2016 and has not resumed work since then.
On 24 November 2016 Ms Morrison was assessed by Associate Professor Anthony Buzzard, a consultant general surgeon and independent medical examiner. His opinion was that ‘Her current condition is not now related to the February 2016 work although I think that work caused an aggravation of her lymphedema.’[4] On the basis of Associate Professor Buzzard’s report Allianz notified Ms Morrison on 1 December 2016 that from 21 December 2016 she was no longer entitled to weekly payments and payment of her medical and like expenses would cease from 4 January 2017.[5]
[4]Report of Associate Professor Buzzard dated 24 November 2016 – included in exhibit JT-7 to the Typaldos affidavit.
[5]Exhibit JT-3 to the Typaldos affidavit.
Ms Morrison disputed this decision, referring the dispute for conciliation by the Accident Compensation Conciliation Service (ACCS). A conciliation officer with ACCS determined that the issues in dispute were medical, and decided to refer the matter to a Medical Panel for opinion. The Referral, under s 284 of the WIRC Act, is dated 15 May 2017 and described Ms Morrison’s claimed injury as ‘“my arms – particularly right arm” (aggravation of bilateral arm lymphoedema)’. The Referral set out some agreed facts relevant to the issues in dispute, which were identified as whether Ms Morrison has an ongoing work related condition that incapacitates her for work.[6] Relevant documents were provided with the Referral, including Ms Morrison’s injury claim form, her certificates of capacity, reports of her treating doctors and Associate Professor Buzzard’s report.[7] The conciliator later provided the Panel with a report of her treating surgeon, Mr David Speakman, dated 22 May 2017.[8]
[6]Exhibit JT-4 to the Typaldos affidavit.
[7]Exhibit JT-7 to the Typaldos affidavit.
[8]Exhibit JT-7 to the Typaldos affidavit – Enclosure B – Schedule of attachments. Mr Speakman’s report was exhibit JT-8 to a further affidavit of John Typaldos sworn 1 May 2018.
The Panel examined Ms Morrison on 16 June 2017 and provided a certificate of opinion[9] and reasons for opinion[10] on 24 July 2017. The Panel answered the questions referred to it as follows:
[9]Exhibit JT-5 to the Typaldos affidavit.
[10]Exhibit JT-6 to the Typaldos affidavit.
Question 1 What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer: In the Panel’s opinion the worker is suffering from persistent bilateral upper limb and left chest wall lymphoedema following bilateral breast cancer treatment following a (now resolved) temporary exacerbation of right upper limb lymphoedema relevant to the claimed “my arms – particularly right arm aggravation of bilateral arm lymphoedema” injury with designated injury date 14 July 2016.
Question 2 What is the extent to which the worker’s incapacity for work:
(a) Resulted from or was materially contributed to by; or
(b) Results from or is materially contributed to by:any and if so which of the claimed injuries?
Answer:
(a) In the Panel’s opinion the workers’ incapacity for work in the early-mid part of 2016 resulted from and was materially contributed to by a temporary exacerbation of right upper limb lymphoedema.
(b) In the Panel’s opinion the worker’s incapacity for work no longer results from and is no longer materially contributed to by the (now resolved) temporary exacerbation of right upper limb lymphoedema relevant to the claimed “my arms – particularly right arm aggravation of bilateral arm lymphoedema” injury with designated injury date 14 July 2016.
The Panel’s reasons
The Panel commenced its Reasons by noting that Ms Morrison had lodged a claim for ‘my arms, particularly right arm’ (aggravation of bilateral arm lymphoedema).
The Panel then set out at length the history it had taken from Ms Morrison. It noted that she is left hand dominant. It then recorded her extensive breast cancer history, which began with a diagnosis of cancer in both breasts in 2002, for which she had a bilateral mastectomy. In relation to lymphoedema, the Panel noted the following:
(a) She experienced left arm ‘cording from the beginning’ in 2002 and by 2003 she had a formal diagnosis of left arm lymphoedema made. This was treated with massage and use of a compressive sleeve. She managed this ‘really well’ and considered the lymphoedema was mild. At that time, if she had a heavy workload, she would wear a ‘sleeve’ on the left arm and this occurred about once a fortnight.
(b) Her first year of employment with Melbourne Pathology, in 2007, was very busy and she would wear a sleeve at home after work. After a year, adjustments were made to accommodate her situation and she was moved to a quieter location with fewer patients.
(c) The Panel noted the nature of Ms Morrison’s work duties from 2008, and that she would wear a sleeve after work during that period. After further surgery for breast cancer in her right breast in 2012 she returned to work with a ‘lightish load’. She still wore her left sleeve 1-2 times a week to control and manage her left arm lymphoedema, but did not have difficulty with right arm lymphoedema at that time.
(d) A new ‘E Collect’ system was introduced in January 2016 that required significantly more data entry using both hands than had previously been required. Ms Morrison said that the movements required with her wrists and fingers were new movements for her. After attending a training session one afternoon her left arm was ‘very swollen’. In or about February 2016 she reported ‘arm pain’ to her employer.
(e) After a few months she experienced more aching in the right forearm and swelling in the right cubital fossa. The swelling of her right arm was diagnosed as lymphoedema. She considered that the alteration in her duties had resulted in right arm swelling because the movements required to enter data were movements that she did not usually perform with her right arm.
(f) In July 2016 Ms Morrison attended the Monash lymphoedema clinic, and her left upper limb swelling was noted to exceed that of her right arm.
(g) After being off work in August 2016 Ms Morrison returned to her pre-injury duties, with no E Collect duties, for 2 days a week. Even when attending a small number of patients she felt ‘achy, tired, heavy, exhausted and swollen’ even whilst wearing compressive sleeves.
(h) In October 2016 Ms Morrison developed new left breast symptoms – an itchy red rash that spread over the whole breast, with the whole breast swollen and aching. Ms Morrison was concerned that she had again developed breast cancer. The new symptoms were attributed to lymphoedema of the left chest wall and breast. Ms Morrison considered this had occurred because, due to the onset of right arm lymphoedema, she had overcompensated with her left arm.
(i) Since ceasing work in November 2016 she has experienced ongoing left arm pain and lymphoedema and feels that it is ‘much worse than it has ever been’. Her condition continues to worsen. She wears compression sleeves bilaterally and takes Panadol and Nurofen as required for pain in her left arm and chest wall. Her main concerns were the persistence of swelling in her left chest wall and upper limb.
The Panel also noted the history given in a report from Ms Morrison’s treating general practitioner, Dr Alice Lam, dated 7 February 2017, as follows:
(a) Ms Morrison advised Dr Lam that she informed her employer of left arm mild lymphoedema in 2007 and again in 2014. She required a compression sleeve for the left arm post heavy patient loads, generally every two weeks or so. She felt it was managed with part time hours and generally quiet hours.
(b) On review on 11 August 2016 Ms Morrison felt that, despite not working and doing regular exercises to move her arms, she was still experiencing ongoing aching of the upper limbs more so on the left side, which she thought might be due to ‘compensating’ for not being able to use the right hand so much.
(c) On assessing her on 9 September 2016, despite wearing compression sleeves she was experiencing significant worsening of arm pains when performing her pre-injury duties. Her hours were again reduced.
(d) In early October Ms Morrison reported that she felt able to try increased hours. However, before that could happen she began to experience new left breast symptoms which ‘started as itchy red rash over inner quadrants which spread over whole of breast and now whole breast swollen and aching particularly tender periphery’.
On physical examination the Panel noted:
(a) Ms Morrison presented wearing bilateral compression sleeves, which she removed for examination.
(b) Swelling was noticeable from the junction of the lower third of the forearm with the upper two thirds of the forearm bilaterally, with that on the left being more prominent than that on the right. The swelling was more pronounced from the cubital fossa proximally as far as the shoulder.
(c) Ms Morrison demonstrated unrestricted range of movement of both shoulders, elbows and wrists.
Before expressing its conclusions, the Panel also noted Mr Speakman’s report of 22 May 2017, ‘wherein he notes that lymphoedema is a chronic condition and the patient is likely to experience exacerbations and remissions.’ It also noted the reports of Professor Vernon Marshall dated 2 August 2016 and Associate Professor Buzzard dated 24 November 2016.
The Panel’s conclusions were expressed as follows:
Based on its assessment of the worker on 16 June 2017 and its combined experience and expertise the Panel formed the opinion that the worker is suffering from persistent bilateral upper limb and left chest wall lymphoedema following bilateral breast cancer treatment following a (now resolved) temporary exacerbation of right upper limb lymphoedema relevant to the claimed ‘my arms-particularly right arm aggravation of bilateral arm lymphoedema’ injury with designated injury date 14 July 2016.
The Panel noted that at the time of the exacerbation of the worker’s left upper limb and left chest wall lymphoedema she was not performing any E Collect activities, was undertaking minimal employment tasks and was having extensive treatment for bilateral lymphoedema. The Panel formed the opinion that any exacerbation of [the] worker’s left upper limb and left chest wall lymphoedema is unrelated to her employment in any way and is entirely consistent with the natural history of this chronic condition which, as noted by the worker’s treating surgeon, is ‘likely to experience exacerbations and remissions’.
…
The Panel noted and accepts the description given by the left hand dominant worker of the change in use of her right hand and arm during or about early 2016 associated with the introduction of the E Collect system within her workplace. The Panel noted and accepts the history given by the worker of the onset of right upper limb symptoms of heaviness, pain and swelling, subsequently diagnosed as lymphoedema during the first half of 2016. The Panel noted and accepts the history given by the worker that her work duties were modified with periods of time off work and reduced hours, and her requirement to undertake E Collect duties was ceased until she ceased work altogether in November 2016. The Panel noted and accepts the history given by the worker of the flare of her left upper limb and left chest wall lymphoedema symptoms which occurred in or about early October 2016 in the context of her performing minimal employment duties and no E Collect duties, following significant time off work and extensive treatment for bilateral lymphoedema.
The Panel formed the opinion that the worker’s employment in the early part of 2016 and in particular during the period of introduction of the E Collect system was a materially contributing factor to the worker’s (now resolved) temporary exacerbation of right upper limb lymphoedema relevant to the claimed ‘my arms-particularly right arm aggravation of bilateral arm lymphoedema’ injury with designated injury dated 14 July 2016 but not to any exacerbation, aggravation, acceleration or deterioration of her left upper limb and chest wall lymphoedema.
The Panel therefore concluded the worker’s incapacity for work in the early-mid part of 2016 resulted from and was materially contributed to by a temporary exacerbation of right upper limb lymphoedema. In the Panel’s opinion the worker’s incapacity for work no longer results from and is no longer materially contributed to by the (now resolved) temporary exacerbation of right upper limb lymphoedema relevant to the ‘my arms-particularly right arm aggravation of bilateral arm lymphoedema’ injury with designated injury date 14 July 2016.
In conclusion the Panel noted that it had formed a similar conclusion to Associate Professor Buzzard in respect of the material contribution of Ms Morrison’s claimed injuries to her incapacity for work.
Relevant provisions
Medical Panels are constituted under s 537 of the WIRC Act as necessary for the purposes of the WIRC Act, the Accident Compensation Act 1985 and Part VBA of the Wrongs Act 1958. A Medical Panel is convened from a list of medical practitioners appointed by the Governor in Council.
The ACCS has dispute resolution functions under Pt 6, Div 2 of the WIRC Act and, in relation to medical questions, it can seek an opinion of a Medical Panel under that Division. The medical questions for the Panel’s opinion in this case were referred by the ACCS under s 284 of the WIRC Act.
Section 313 of the WIRC Act provides for the opinions of Medical Panels. Section 313(2) provides:
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.
The opinion of a Medical Panel is final and conclusive and must be adopted and applied by any court, body or person for the purpose of determining any matter or question.[11]
[11]WIRC Act, s 313(4).
Grounds for review
Ms Morrison’s amended originating motion identified three broad grounds for review of the Panel’s opinion. First, she made various complaints about the adequacy of the Panel’s Reasons. Second, she argued that there was no evidence for the Panel’s finding that her right arm lymphoedema was a temporary and resolved exacerbation of bilateral arm lymphoedema. Third, she said that the Panel had failed to have regard to a relevant consideration that it was bound to address, arising from the report of her treating surgeon Mr Speakman.
Ground 1 – adequacy of reasons
Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.[12] If a statement of reasons given under the WIRC Act does not meet that standard, there is an error of law that is amenable to correction on judicial review by an order in the nature of certiorari.[13]
[12]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [55] (Wingfoot).
[13]Wingfoot [55].
However, an error of law involves something more than ‘looseness in the language of the tribunal’ or ‘unhappy phrasing of the tribunal’s thoughts’. A reviewing court should not construe a Panel’s reasons ‘minutely and finely with an eye keenly attuned to the perception of error’.[14] Rather, the reasons of a non-legal, expert tribunal such as a Medical Panel should be given a beneficial construction.[15] A balance must be struck between requiring too much, or too little, of Medical Panels.[16]
[14]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [9], [20] and Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29] (Gruma Oceania).
[15]Gruma Oceania, [29].
[16]Kipniak Pty Ltd v Rann [2017] VSC 651, [97] (Kipniak).
A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions.[17] Reasons may be able to be understood combining what is expressly stated with inferences necessarily arising. However, a reviewing court must not speculate about a Panel’s path of reasoning in order to fill the gaps.[18] The court should avoid drawing inferences that lack a ‘proper evidential foundation disclosed in the reasons’.[19] Ambiguity in a Panel’s reasons may render those reasons inadequate, where its conclusions are open to more than one interpretation.[20]
[17]Gruma Oceania, [47].
[18]Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].
[19]Tan v Kotzman [2016] VSC 482, [22].
[20]Pearce v Lloyd [2016] VSC 806, [62].
Notably, a Panel is under no obligation to explain why it did not reach an opinion it did not form.[21]
[21]Wingfoot [56].
Submissions
Ms Morrison’s amended originating motion made numerous complaints about the adequacy of the Reasons given by the Panel. The grounds were refined in the written submissions filed on her behalf, and the argument was put even more succinctly in oral argument. The essence of the complaint was that there was a ‘complete disconnect’ between the history that the Panel took from Ms Morrison, which it accepted, and its conclusions set out at [19] above. In particular, she submitted, in the context of the history accepted by the Panel it was unclear how it had reached its conclusions that there was an exacerbation or aggravation of right upper limb lymphoedema, that it was temporary, or that it had resolved.
That submission was developed as follows. There was nothing in the history the Panel took from Ms Morrison to suggest that she had ever had lymphoedema in her right arm before 2016. Lymphoedema is not one condition that affects the whole body; it can develop in different parts of the body at different times. Between 2002 and 2016 Ms Morrison had only ever had lymphoedema in her left arm. She had not had bilateral lymphoedema until she developed swelling in her right arm in 2016. The development of right arm lymphoedema in 2016 had been accepted to be work related and it had not resolved before the Panel examined Ms Morrison in June 2017. It was therefore unclear how the Panel had concluded that she had a now resolved temporary exacerbation of right upper limb lymphoedema.
Ms Morrison made a similar submission in relation to the Panel’s conclusion that the exacerbation of her left arm and left chest wall lymphoedema was unrelated to her employment in any way. The history taken by the Panel was that there was a very substantial exacerbation of her left arm lymphoedema brought on by performance of the E Collect duties in early 2016. This had not resolved by June 2017. She had not suffered lymphoedema in her left chest before September or October 2016. It therefore made no sense for the Panel to conclude that the development of lymphoedema in her left chest at that time was an exacerbation of a chronic condition.
In response, Melbourne Pathology submitted that the Panel found that Ms Morrison had, at the time of its examination, persistent bilateral upper limb lymphoedema following bilateral breast cancer treatment that had in 2016 been temporarily exacerbated by her performance of the E Collect work. Reading the Panel’s reasons as a whole, it was apparent that its findings supported its conclusion that Ms Morrison’s lymphoedema was no longer materially contributed to by her employment. Melbourne Pathology emphasised the Panel’s finding, based on Mr Speakman’s May 2017 report, that lymphoedema was a chronic condition and that Ms Morrison was likely to experience exacerbations and remissions from time to time. This explained the Panel’s ultimate conclusion that the exacerbation of the lymphoedema in her right arm, left arm and left chest was no longer associated with work activities, those activities having ceased some time earlier.
As to the nature of the condition, Mr Fleming referred me to a Wikipedia definition of lymphoedema as ‘a condition of localised fluid retention and tissue swelling caused by a compromised lymphatic system which would normally return interstitial fluid to the bloodstream’. While I doubt that Wikipedia is an appropriate source here, the definition relied on for Melbourne Pathology was consistent with the case put for Ms Morrison – namely that lymphoedema is localised fluid retention and swelling that is a common complication of cancer treatment.
Consideration
The Panel’s reasons do not, in my view, explain how it derived its conclusions in relation to the lymphoedema in Ms Morrison’s right arm – namely that it was an exacerbation or aggravation of bilateral lymphoedema, which was temporary and which had ‘now resolved’. The thorough history that the Panel took from Ms Morrison, which it accepted, was that until 2016 Ms Morrison had only ever suffered lymphoedema in her left arm. The Panel noted that she first experienced lymphoedema in her right arm in 2016, in connection with the performance of E Collect duties, and swelling in that arm was still present when the Panel examined her on 16 June 2017. There is no clear path of reasoning from the history and examination findings recorded by the Panel to its conclusions about the lymphoedema in Ms Morrison’s right arm.
I have reached the same view in relation to the Panel’s conclusion that the exacerbation of Ms Morrison’s left arm lymphoedema was no longer work related. It is not apparent from the history and examination findings how the Panel reached that conclusion. The history recorded was of a very significant exacerbation in early 2016, in connection with the performance of E Collect duties, that had not resolved by June 2017 despite time off work and extensive treatment.
These deficiencies are not remedied by fact that, in May 2017, Mr Speakman described Ms Morrison’s lymphoedema as ‘recurrent’ and a ‘chronic condition’ of which she was ‘likely to experience ongoing exacerbations and remissions’. This was not a description of Ms Morrison’s condition at the start of 2016, and did not dispense with the need for the Panel’s conclusions to relate to the evidence it had about the development of her symptoms over 2016 and their continued presence in June 2017.
Overall, while doing my best to read the Reasons beneficially, I am left to speculate in order to fill gaps in the Panel’s reasoning. I am uncertain whether the Panel regarded lymphoedema as a localised condition or a condition affecting the whole body, or whether it was simply mistaken in describing Ms Morrison’s initial condition as ‘bilateral arm lymphoedema’. That ambiguity alone makes the Reasons legally inadequate. It is also not clear whether the Panel made an intermediate finding, not stated in the Reasons, that between 2016 and June 2017 the lymphoedema in both the right and left arms had resolved. There is no apparent basis for that conclusion in the history and examination findings, and I should not draw inferences that lack a proper evidential basis disclosed in the Reasons.
The inadequacy of the Reasons was contributed to, in my view, by a lack of precision by the Panel about the injury that was the subject of Ms Morrison’s claim. On her claim form, which was provided to the Panel, she identified her injury as ‘my arms – particularly right arm’. She did not describe her injury as an ‘aggravation of bilateral arm lymphoedema’. This description appears to have been introduced, inaccurately, by the ACCS conciliator in his referral to the Panel. At the beginning of its Reasons the Panel differentiated between the claimed injury - ‘my arms – particularly right arm’ – and the conciliator’s description – ‘(aggravation of bilateral arm lymphoedema)’. By the end of the Reasons, however, the Panel had combined these together into an incorrect description of the claimed injury – ‘my arms – particularly my right arm aggravation of bilateral arm lymphoedema’. Until 2016, Ms Morrison had not had bilateral arm lymphoedema. The onset of the condition in her right arm was a particular subject of her claim.
Ground 1 is made out in relation to the Panel’s conclusions about the lymphoedema in Ms Morrison’s right and left arms.
However, in relation to the left chest lymphoedema, I can discern a path of reasoning to the Panel’s conclusion that this was not materially contributed to by Ms Morrison’s employment. The Panel noted that she first experienced these symptoms in October 2016, at a time when she was doing minimal work and no E Collect duties. It referred to but did not adopt Mr Speakman’s opinion that ‘the change in usage of the left arm precipitated by right arm lymphoedema has aggravated problems in the left breast’. The Panel did not accept that this condition was work-related, and it explained why that was so. It was not asked to express an opinion about what did cause the onset of lymphoedema in Ms Morrison’s left chest, and did not have to do so.[22]
[22]Wingfoot, [56].
Ground 2 – no evidence
A tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law.[23] An error of law will be established only where there is no evidence at all to support the finding of fact.[24] A finding of fact that is unsupported by evidence will vitiate a decision if the error materially affected the decision, in the sense that it was critical to the tribunal’s ultimate conclusion.[25]
[23]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6 (Mason CJ), 367 (Deane J) (ABT v Bond); S v Crimes Compensation Tribunal [1998] 1 VR 83, 89–90 (Phillips JA); Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390, [91] (Hayne, Heydon, Crennan and Kiefel JJ).
[24]ABT v Bond, 356 (Mason CJ), 367 (Deane J); S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).
[25]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J); S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).
Ms Morrison submitted that there was no evidence that she had suffered right arm lymphoedema before 2016, that she suffered an exacerbation of right arm lymphoedema in 2016, or that the condition in her right arm was temporary or had resolved. In the absence of any such evidence, she argued, the only conclusion open to the Panel was that she suffered lymphoedema in her right arm for the first time in 2016, that it was work related, and that the condition was continuing at the time of the Panel’s examination.
In response, Melbourne Pathology emphasised the stringency of the ‘no evidence’ ground of review. Mr Fleming referred me to S v Crimes Compensation Tribunal[26] as authority for the proposition that a finding of fact does not give rise to an error of law unless it is shown that the finding was ‘simply not open’ on the evidence and also that the unsubstantiated finding was in some way critical to the ultimate conclusion of the tribunal. An error of fact does not demonstrate an error of law unless the tribunal’s conclusion depended upon the impugned finding of fact. Melbourne Pathology submitted that there was evidence to support the Panel’s conclusions, which were squarely within its expertise.[27]
[26][1998] 1 VR 83, 89-90 (Phillips JA).
[27]S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).
Accepting that the ‘no evidence’ ground is not easily made out, I asked Mr Fleming to point me to anything in the materials considered by the Panel to the effect that Ms Morrison had lymphoedema in her right arm at any time before February 2016, and that the condition had resolved between its onset in early 2016 and the date of the Panel’s examination. He referred me to the following:
(a) the Panel’s findings on examination, that Ms Morrison was suffering from persistent bilateral upper limb and left chest wall lymphoedema following bilateral breast cancer treatment;
(b) Mr Speakman’s opinion that Ms Morrison’s lymphoedema was a chronic condition and that she was likely to experience exacerbations and remissions;
(c) the development of lymphoedema in the right arm in 2016, materially contributed to by the performance of E Collect duties;
(d) the history given by Ms Morrison of working only intermittently on restricted hours and performing no E Collect work from July 2016, before ceasing work altogether in November 2016;
(e) Ms Morrison reporting to her general practitioner in August 2016 that her left arm symptoms were worse than her right; and
(f) Ms Morrison telling the Panel on 16 June 2017 that her left chest wall and upper limb were her main concerns, and that it was for these conditions that she took medication.
I have also considered the matters set out at [14]-[17], [21] and [30]-[34] of the written submissions filed on behalf of Melbourne Pathology.
In my view, none of these matters supported the Panel’s characterisation of Ms Morrison’s right arm condition as ‘a (now resolved) temporary exacerbation of right upper limb lymphoedema’. The fact that, by mid-2017, she had a chronic condition of bilateral upper limb and chest wall lymphoedema was not evidence that she had a bilateral condition at the start of 2016. The parties were agreed (although the Panel did not explain) that lymphoedema is a localised condition, and there is nothing to suggest that Ms Morrison had ever suffered lymphoedema in her right arm before 2016. That being the case, there was no question of her work duties in 2016 exacerbating that condition in her right arm – the question was whether those duties caused it in the first place. There was also no evidence that the right arm lymphoedema had resolved since its initial onset in 2016, and no basis for describing it as temporary.
I have considered whether the Panel’s characterisation of Ms Morrison’s right arm condition as ‘a (now resolved) temporary exacerbation of right upper limb lymphoedema’ was in some way critical to its ultimate conclusion that her incapacity for work was no longer materially contributed to by her claimed injury. It is clear that it was. The Panel’s answers to both questions referred to it were based on that characterisation of her right arm condition, which was material to its ultimate conclusion.[28]
[28]Set out at [13] above.
Ground 2 is made out.
Ground 3 – relevant consideration
Ground 3 in the amended originating motion was that the Panel failed to take into account a relevant matter, being the opinion of Mr Speakman that the onset of lymphoedema in Ms Morrison’s left chest wall was related to the changes she made in the use of her left arm to enable her to continue working. I initially understood this to be a complaint that the Panel failed to consider a ‘fundamental issue’ that was raised on the materials before it.[29] Ground 3 was not pressed in this form at the hearing, however. It was reframed as a complaint that the Panel gave inadequate reasons for its conclusion that the left chest wall condition was not work-related, or alternatively failed to give genuine and realistic consideration to Mr Speakman’s opinion.
[29]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60] (Neave JA, Santamaria JA and Ginnane AJA agreeing).
Despite the change in emphasis, I do not consider Ground 3 to be viable. As discussed at [41] above, the Panel specifically referred to Mr Speakman’s opinion before concluding that Ms Morrison’s employment was not a materially contributing factor to the left chest wall lymphoedema. The Panel considered the opinion, but plainly did not accept it. The Panel was not obliged to give reasons for an opinion that it did not form.[30] It is clear enough from the Reasons that the history given of the onset of symptoms in the left chest – at a time when Ms Morrison had had significant time off work and extensive treatment for bilateral lymphoedema, was doing minimal work and no E Collect duties – was the basis for this finding.
[30]Wingfoot, [56].
Ground 3 is not made out.
Disposition
I have found that the Panel’s reasons did not meet the standard required by s 313(2) of the WIRC Act. I have also found that it was not open to the Panel to find that Ms Morrison’s right arm condition was ‘a (now resolved) temporary exacerbation of right upper limb lymphoedema’, and that this finding was material to its ultimate conclusions. Both are errors that may be corrected by an order in the nature of certiorari, and it is appropriate that I make such an order in this case.
Ms Morrison also seeks an order in the nature of mandamus that the referral be remitted to a differently constituted Medical Panel. She submitted that this was the usual or settled practice in cases where the Panel’s reasons had been found to be legally inadequate, for the sound reason that the Panel would be ‘significantly tempted’ to provide reasons that favour its original views.[31] This was all the more so in a case in which the Panel had made findings about a worker’s medical condition for which there was no evidence. Melbourne Pathology submitted that there must be good reason for such an order, and that there is no presumption in favour of remitting a matter for consideration by a differently constituted Panel.
[31]Clarke v National Mutual Life Insurance Ltd [2007] VSC 341, [70], citing Body Corporate Strata Plan (No 4166) v Stirling Properties Ltd [1984] VR 903, 912 (Ormiston J).
In cases such as this one, the Court does not order remittal to a differently constituted Medical Panel as a matter of course. In Vegco Pty Ltd v Gibbons,[32] Kyrou J observed:
Successful applicants in judicial review and appeal proceedings to the trial division of this Court frequently seek remittal to a differently constituted primary decision-maker when the primary decision is set aside and the matter is remitted. If orders are made by this Court as a matter of course requiring decisions to be remade by a differently constituted primary decision-maker, this may have serious resourcing implications for primary decision-makers and add to the costs and delays of the decision-making process. For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same primary decision-maker to redetermine the matter.[33]
[32][2008] VSC 363 (Vegco).
[33]Vegco, [33], citing Northern NSW FM Ply Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 42-3; Kapoor v Monash University (2001) 4 VR 483, 498-9 [51]; Davidson v Fish [2008] VSC 32, [14]-[21]; Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294, [49].
This approach has been followed in a number of subsequent decisions of the Trial Division,[34] including several decisions involving Medical Panels.[35] Applying the approach in Vegco, an order requiring the referral to be reconsidered by a differently constituted Panel should be made only where there is some feature of the original Panel’s conduct or reasons that would make it unfair, or give the appearance of unfairness, if the matter were to be remitted to the same Panel.
[34]Shields v Overland (No 2) [2009] VSC 589 (Kyrou J); Barro Group Pty Ltd v Brimbank City Council (No 2) [2012] VSC 199 (Emerton J); SJ Beaumont Investments Pty Ltd v Warrnambool City Council [2012] VSC 378, [42]-[47] (Emerton J); D’Agostino v Greater Shepparton City Council (No 2) [2015] VSC 392 (Zammit J); SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd (No 2) [2015] VSC 680, [22]-[24] (Vickery J); Gurner 57 Johnston Street Developments Pty Ltd v Yarra City Council [2017] VSC 290, [56]-[58] (Emerton J).
[35]Milwain v Sim [2009] VSC 75, [37] (Kyrou J); Omerasevic v Kotzman [2016] VSC 383, [113] (Riordan J); Pearce v Lloyd [2016] VSC 806, [74] (Cavanough J).
In this case, there is such a feature. The errors I have found involve more than legally inadequate reasons. The Panel mischaracterised Ms Morrison’s claim and her condition at the time of her injury, and made firm findings on key issues that were not open to it on the evidence, including the detailed history provided by Ms Morrison. For the same Panel to reconsider the referred questions would give the appearance of prejudgment and unfairness to Ms Morrison.
Subject to anything the parties have to say about the form of the orders, I propose to make the following orders:
(a) An order in the nature of certiorari quashing the opinion of the Medical Panel comprising the second, third and fourth defendants, certified in writing on 24 July 2017 (Opinion), in respect of the medical questions concerning the plaintiff’s claimed injury of ‘my arms – particularly right arm’ referred to a Medical Panel on 17 May 2017;
(b) An order in the nature of mandamus remitting the medical questions concerning the plaintiff’s claimed injury of ‘my arms – particularly right arm’, in respect of which the Opinion was given, to a differently constituted Medical Panel to be reconsidered in accordance with law.
I will hear the parties on the question of costs.
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