Nestorovic v Rowe
[2017] VSC 787
•20 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00116
| LJILJANA NESTOROVIC | Plaintiff |
| v | |
| PROFESSOR LEANNE ROWE | Frist Defendant |
| DR CAROLINE BRAND | Second Defendant |
| MR JOHN BOURKE | Third Defendant |
| DR JOHN MALIOS | Fourth Defendant |
| MULTICULTURAL AGED CARE SERVICES PTY LTD | Fifth Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2017 |
DATE OF JUDGMENT: | 20 December 2017 |
CASE MAY BE CITED AS: | Nestorovic v Rowe & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 787 |
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ADMINISTRATIVE LAW – Judicial Review and Appeals – Supreme Court (General Civil Procedure) Rules 2015, order 56 – Medical panel – Jurisdictional error – Procedural fairness –Whether the Panel took account of irrelevant matters or failed to consider relevant matters – Whether Panel reached conclusions that were not open to it – Whether plaintiff’s injuries are consistent with an injury of a psychogenic nature.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A G Uren QC with Mr A Ingram | Arnold Thomas & Becker |
| For the Fifth Defendant | Mr M F Fleming QC with Mr R Kumar | Wisewould Mahoney |
HIS HONOUR:
Ms Nestorovic was employed by the fifth defendant, Multicultural Aged Care Services Pty Ltd (Multicultural Aged Care), as a part-time food services assistant. She described her work as involving a lot of heavy lifting, preparing meals, pushing a heavy trolley, washing dishes and loading food onto shelves and into a freezer. While loading plates into a bain-marie, Ms Nestorovic experienced sudden severe pain in her low back and numbness in the left leg. A claim for compensation made by Ms Nestorovic was accepted by the authorised insurer of Multicultural Aged Care and compensation was paid pursuant to the Accident Compensation Act 1985 (the ACA). A short time after Ms Nestorovic returned to normal duties, her employment was terminated. Ms Nestorovic’s application to reinstate weekly payments of compensation was rejected by the authorised insurer on the basis that any incapacity was no longer the result of the work injury. Ms Nestorovic claims to have an ongoing entitlement to weekly payments of compensation because she says she is incapacitated for work by the condition of her low back which resulted from or was materially contributed to by the work injury.
A proceeding was issued by Ms Nestorovic in the Magistrates’ Court claiming ongoing entitlement to weekly payments of compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). The Magistrates’ Court referred questions to a medical panel for its opinion. Answering those questions, the Panel determined that Ms Nestorovic currently suffers pre-existing constitutional lumbar spondylosis, which does not result from and is not materially contributed to by the work injury. The effect of the Opinion of the Panel was that Ms Nestorovic has no ongoing entitlement to weekly payments of compensation under the Act. Ms Nestorovic has no right to appeal the decision of the Panel on its merits, but does seek judicial review of the Panel Opinion on a number of grounds.
The essence of the Panel Opinion was that the work injury suffered by Ms Nestorovic was a soft tissue injury to the lower back, which resolved, and that she currently has constitutional degenerative changes of the lumbar spine which do not result from and are not materially contributed to by the work injury. At issue in the proceeding is whether:
(a) there was a jurisdictional error because the Panel had regard to a physiotherapy note which it materially misstated, failed to have regard to the treating GP clinical notes, and determined the work low back injury had resolved when it was not open to do so;
(b) the Panel denied Ms Nestorovic procedural fairness by failing to address with her its understanding of the physiotherapist’s note; and
(c) there was jurisdictional error because the Panel failed to consider whether Ms Nestorovic’s complaints of pain were an injury consisting of a psychogenic pain condition from a work-caused back injury, even if the back injury had now resolved.
The Panel, comprised of the first to fourth defendants, did not appear at the trial of the proceeding, and will abide the proceeding’s outcome.
History of injury and proceedings
Ms Nestorovic was born in Serbia in 1965 and is now 52 years of age. In 2004 she commenced employment with Multicultural Aged Care as a part-time food services assistant working about 27 hours per week. She told the Panel that prior to an incident at work on 11 March 2004 she may have experienced intermittent mild back pain which was not significant and for which she consulted a GP but did not have any other treatment.
On 11 March 2014, while loading plates into a bain-marie, Ms Nestorovic experienced sudden severe pain in her low back and numbness in her left leg. Ms Nestorovic was unable to continue work and attended with her GP, Dr Hassan, the same day. She was treated with analgesics and was referred by Dr Hassan to the Geelong Physiotherapy Centre.
Dr Hassan records that on 2 April 2014 Ms Nestorovic returned to normal duties but suffered a flare up in pain. On 6 April 2014, Ms Nestorovic reported to Dr Hassan that her low back pain had started to improve with home exercises. Ms Nestorovic then remained on light duties at work until early June 2014, pursuant to certificates provided by Dr Hassan. On 8 June, Dr Hassan recorded that Ms Nestorovic reported:
She felt large improvement and after she had discussed with the physiotherapist about her lower back condition, all agreed to try to return to her full duties in the aged care facility and will see how it goes with her back.
Ms Nestorovic was certified by Dr Hassan as being fit for normal duties from 9 June 2014.
The notes of the physiotherapist record treatments commencing on 12 March 2014, with improvement noted particularly from mid to late May. A treatment note of 2 June records that Ms Nestorovic was much improved with no pain for the last four days, but with mild pain on the day of treatment ‘post work this morning’.
Ms Nestorovic was made redundant by Multicultural Aged Care on 27 June 2014. She has not worked since that date.
Dr Hassan recorded that when Ms Nestorovic attended on 30 July 2014 she:
said that her lower back pain flared up and radiates to her right lower limb a few days prior. She was sacked from this job at the aged care facility and she was not doing any work since then until now.
The next physiotherapy note is dated 1 August 2014. The contents of that note includes:
HOPC: 2–3/52 ago onset of Ⓡ LBP post starting gym (ex bike and light UL weights) gradually worsened. …
PMHX Ⓛ LBP treated Feb-Apr 2014 (work inj). Completely resolved Ⓟ free [indistinct] 2/12. Currently not working.
A CT scan performed of the lumbar spine on 5 August 2014 was reported as demonstrating posterior disc herniations at the L4-5 and L5-S1 levels. Ms Nestorovic attended with neurosurgeon, Mr Bulluss, on 20 August. Mr Bulluss recorded that Ms Nestorovic developed left-sided low back and left leg pain in March 2015 which occurred first while she was twisting at work, that she had three weeks off work and then the pain resolved; that Ms Nestorovic was then made redundant; and that two or three weeks prior to her attendance with Mr Bulluss, Ms Nestorovic developed severe right-sided leg pain radiating from her buttock to the front of her foot.
A MRI scan performed on 31 August 2014 was reported as demonstrating extrusion of the L4-S1 disc causing moderate spinal canal stenosis and contacting the S1 nerve roots bilaterally. A second MRI performed on 9 April 2015 was reported as demonstrating resolution of the disc extrusion with a small residual disc protrusion. The report of a third MRI performed on 8 December 2015 is similar.
Ms Nestorovic was seen by three medico-legal orthopaedic surgeons. In a report of 12 January 2015, Mr Clive Jones, asked whether recent incapacity was a direct result of the work injury, stated:
Symptoms appeared after she was unloading a dishwasher, bent forward carrying plates, and suddenly twisted. Her back pain is said to have increased following that event. As she was certified fit for normal duties and hours in June last year, I do not believe the recent incapacity is directly as a result of the injury that occurred on 11/3/14.
When asked what was the cause of Ms Nestorovic’s medical condition, Mr Jones responded that there were multiple causes. In a report of 15 February 2016, Mr Ian Jones stated:
This patient’s apparent inability to undertake even restricted employment would seem to be the longer term effects of an L5/S1 disc injury suffered on 11.03.2014.
In a report of 17 March 2016, Mr Cunningham stated the symptoms on 11 March 2014 were entirely consistent with an acute disc prolapse at the L5/S1 level, that the disc extrusion had since resorbed, and that there is now an unintentional amplification of symptoms most likely due to a chronic pain syndrome.
A claim by Ms Nestorovic for compensation under the ACA lodged on 6 April 2014 was accepted. Some time after her employment was terminated Ms Nestorovic sought to have her weekly payments of compensation reinstated. On 14 January 2015 the authorised insurer of Multicultural Aged Care refused the application to reinstate payments. Magistrates’ Court proceedings were commenced by Ms Nestorovic claiming reinstatement of weekly payments of compensation from 27 June 2014. Subsequently a series of questions were referred to a medical panel for opinion. The referral was accompanied by documents including the medical materials to which I have referred. Submissions to the Panel by Multicultural Aged Care contain the following:
Mr Ian Jones saw the Plaintiff some time after she last worked on the 15th February 2016. By the time the he saw her, she was giving a history at page 3 of his report that on the 8th August 2014 the patient “reported severe onset of low back pain. This was associated with some numbness affecting her left great toe. Ms Nestorovic stated that there was no specific injury to precipitate the severe symptoms stating that she simply was unable to get out of bed”.
A better picture of what actually occurred is to be obtained from the physiotherapist’s notes at the relevant time. The notes from Geelong Physiotherapy Centre are quite clear in the entry of the 1st August 2014:
“2-3/52 ago onset of Ⓡ LBP post starting gym (ex bike plus light UL weight) gradually worsened.”
In the same note under Past History, it is stated:
“(L) LBP treated Feb-Apr 2014 (work inj). Completely recovered”.
In the Defendant’s submission this is a pattern consistent with the Plaintiff’s past history of low back pain and after her employment was terminated ongoing intermittent complaints of various incidents causing a re-emergence of various low back symptoms, such incidents being unrelated to work on 11 March 2014.
Whilst Mr Clive Jones was probably unaware of this note, in the Defendant’s submission it does vindicate his comments at page 4 of his report wherein he does not believe that the recent incapacity is directly as a result of the injury that occurred on the 11th March 2014.
Ms Nestorovic made submissions to the Panel in response. Ms Nestorovic attended for examination by the three members of the Panel on 31 October 2016. The Opinion of the Panel and Reasons for Opinion are dated 19 November 2016.
Medical Panel opinion and reasons
The five questions referred to the Panel for Opinion and the Panel’s answers to those questions are as follows:
Question 1.What is the nature of the Plaintiff’s medical condition relevant to any injury and/or the alleged injury to the back?
Answer:The Panel is of the opinion that the Plaintiff has pre-existing constitutional lumbar spondylosis.
Question 2:Does any back condition as assessed by the Medical Panel continue to result from or be materially contributed to by injuries suffered in employment with the Defendant?
Answer:The Panel is of the opinion that the Plaintiff’s pre-existing constitutional lumbar spondylosis does not result from and is not materially contributed to by injuries suffered in employment with the Defendant.
Question 3:To what extent has any physical condition of the Plaintiff resulted from, or been materially contributed to by any and if so which, of the said injuries?
Answer:The Panel is of the opinion that the Plaintiff’s pre-existing constitutional lumbar spondylosis does not result from and is not materially contributed to by the alleged injury to the back.
The Panel is of the opinion that the Plaintiff’s soft tissue injury of the lower back (now resolved) resulted from and was, but is no longer materially contributed to by the alleged injury to the back.
Question 4:Does the Plaintiff have an incapacity for work?
Answer:The Panel is of the opinion that the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment and any incapacity for work does not result from and is not materially contributed to by the claimed injury.
Question 5:If yes to question 4, does the Plaintiff’s incapacity for work result from, or is it still materially contributed to by, any and if so which, of the said injuries?
Answer:Not applicable.
The reasons of the Panel include the following:
The Plaintiff told the Panel that on 11 March 2014, whilst loading plates into a bain-marie, she experienced sudden severe pain in her lower back and numbness in the left leg (“the incident”). She said she was unable to move, and she immediately consulted a General Practitioner, who gave her Tramal and ordered X-rays. She said she rested in bed for about a month and ‘did nothing’ because of severe lower back pain. She said she tried physiotherapy, which was of no help.
The Plaintiff told the Panel that in about late July 2014, her lower back pain became worse for no reason. The Panel noted in the referral documents that the treating physiotherapist documented that the Plaintiff’s lower back pain in early August 2014 was related to starting a gym program.
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The Panel noted the physiotherapist’s clinical record dated 1 August 2014 wherein it was noted that the Plaintiff’s lower back pain had completely resolved for two months.
The Plaintiff described for the Panel her pre-injury duties as a food services assistant for about 27 hours per week which involved a lot of heavy lifting, preparing meals, pushing a heavy trolley, washing dishes and loading food onto shelves and into a freezer. She said that after the incident, she returned to light duties on 9 May 2014 and then normal duties on 8 June 2014. She said she was terminated from her role on 27 June 2014 and has not worked since.
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Based on these considerations, the Panel concluded that the Plaintiff suffered a soft tissue injury to the lower back which has since resolved and the Plaintiff currently has constitutional degenerative changes of the lumbar spine.
The Panel noted that the Plaintiff had intermittent mild back pain and constitutional degenerative changes of her lower lumbar spine on her medical imaging which would have pre-existed the incident on 11 March 2014. The Panel noted the Plaintiff sustained a soft tissue [sic] to her lower back whilst loading plates into a bain-marie on 11 March 2014 and experienced severe lower back pain, which required her to have complete rest for about a month.
The Panel noted the Plaintiff returned to light duties on 9 May 2014 and then normal duties on 8 June 2014, before being terminated from her role on 27 June 2014.
The Plaintiff told the Panel that in about late July 2014, her lower back pain became worse for no reason. The Panel noted in the referral documents that the treating physiotherapist documented that the recurrence of the Plaintiff’s lower back pain in early August 2014 was related to starting a gym program, and that prior to this, the Plaintiff’s lower back pain had completely resolved for two months.
The Panel then recorded Mr Nestorovic’s current complaints of pain and restriction, current treatments and unrelated medical conditions and commented:
On physical examination, the Plaintiff walked with a slow gait, but was able to stand on her toes and heels and was able to stand on one leg at a time. The Plaintiff was unable to tolerate very light palpation of the spine due to marked sensitivity with reports of severe pain spreading into her left leg. However, the Panel noted there was no spasm of the lumbosacral region. The Panel noted there was variable motion of the lumbosacral spine in all planes in the test and non-test situation. There was marked collapsing weakness below the left knee but power testing was otherwise normal. There was reduced sharp sensation over the whole left side of the body which was non anatomical. There was no leg wasting. Plantar reflexes and proprioception of the legs were normal.
The Panel reviewed the following medical imaging investigations:
·CT scans of the lumbosacral spine dated 5 August 2014, which showed a central disc bulge at L5/S1;
·MRI scans of the lumbar spine dated 31 August 2014, which showed mild multilevel degeneration in the lower lumbar spine and a mild disc bulge at L4/L5 and L5/S1 and a sequestrated fragment at L5/S1;
·MRI scans of the lumbosacral spine dated 31 August 2014, which showed that the sequestrated fragment had largely resolved and persisting degenerative changes in the lower two lumbar discs.
The Panel reviewed the reports of the following medical imaging investigations:
·X-rays of the lumbosacral spine dated 16 April 2014, which showed mild degenerative changes in the lumbosacral spine;
·MRI scans of the lumbar spine dated 9 April 2015, which described resolution of the disc extrusion at L5/S1 and foraminal disc protrusion on the left at L5/S1 contracting the exiting left L5 nerve root;
·CT guided injection which was abandoned dated 13 May 2015;
·CT guided lumbar neural foraminal injection dated 29 June 2015.
The Panel viewed the DVD surveillance dated 15 February 2016 with the Plaintiff who identified herself walking into a railway station and later getting in the back seat of a car, which was consistent with her history.
Based on the above sequence of events and the Panel’s physical examination and review of the medical imaging investigations, the Panel considered that the Plaintiff suffered a soft tissue injury to the lower back on 11 March 2014 that has since resolved. The Panel also noted that the Plaintiff then suffered an exacerbation of pre-existing lumbar spondylosis when attending the gym in about late July 2014, which was after she ceased work.
As noted above the Panel considers that the Plaintiff is currently suffering from constitutional degenerative changes of the lumbar spine however her employment did not have any effect on the progression of the constitutional degenerative disease in any way. The Panel therefore concluded that the Plaintiff’s constitutional degenerative changes of the lumbar spine does not result from and is not materially contributed to by the alleged injury to the back.
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As the Panel concluded that the Plaintiff’s soft tissue injury of the lower back has now resolved, the Panel concluded that the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment and any incapacity for work does not result from and is not materially contributed to by the claimed injury.
Section 313(4) of the Act provides that a the opinion of a medical panel on a question referred to it must be adopted by a court as final and conclusive. As stated, the effect of the Panel’s Opinion is that Ms Nestorovic has no ongoing entitlement to weekly payments of compensation. Rule 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) empowers the court to grant an order in the nature of certiorari to quash the opinion of a medical panel. Such relief is available on a number of grounds, including jurisdictional error and denial of procedural fairness.
Grounds for review
The grounds for review were not set out in the amended originating motion, but may be summarised from Ms Nestorovic’s submissions as follows:
(a) the Panel failed to have regard to material matters, or had regard to immaterial matters, in respect of the physiotherapy treatment notes;
(b) the Panel failed to have regard to a material matter, being the history contained in the treatment notes of general practitioner Dr Hassan;
(c) the Panel made findings of fact that the work injury resolved and that starting a ‘gym program’ was sufficient to cause a fresh injury, which were not open;
(d) the Panel denied Ms Nestorovic procedural fairness in reaching the conclusion it did as to the effect of starting the ‘gym program’ without seeking clarification or relevant information from Ms Nestorovic; and
(e) the Panel failed to consider whether Ms Nestorovic’s complaints of pain were an injury consisting of a psychogenic pain condition from a work-caused back injury, even if the back injury had now resolved.
An affidavit sworn by Ms Nestorovic was filed in this proceeding in support of the procedural fairness ground. Ms Nestorovic submitted, relying on that affidavit, that it should be accepted the Panel did not seek information from her as to:
(a) the extent of improvement or otherwise in her low back pain before mid-July 2014;
(b) whether she did in fact attend a gym;
(c) the reason for the ‘gym program’, and whether it was in respect of treatment for her work injury;
(d) the nature, content, frequency and duration of the work constituting the ‘gym program’;
(e) the relationship of the ‘gym program’ to her renewed pain;
(f) the contents of the physiotherapist’s note.
Grounds 1, 2 and 3
An administrative decision-maker has committed a jurisdictional error if it ignores relevant material it is bound to take into or relies on irrelevant material, in circumstances where that failure materially affected the decision itself.[1] Where the factor in question was so insignificant the failure to consider it if it was relevant, or consideration of it if it was irrelevant, could not have materially affected the decision then the court will not be justified in setting aside the impugned decision and ordering that the discretion be re-exercised in accordance with law.[2] Matters which must be taken into account by the tribunal can only be determined by reference to the empowering statute.[3] Particular care must be taken, in determining whether an administrative decision-maker has failed to take a relevant consideration into account, or has taken into account an irrelevant consideration, to avoid crossing the line between judicial review and merits review and to ‘misconstrue dubious findings of fact or questionable weight being given to particular evidence’ as jurisdictional errors.[4] Mere assertion that a decision-maker has had regard to a matter may not provide an adequate foundation upon which to conclude that the substance of the material referred to has being taken into account.[5] However, failure by the Panel to specifically refer to part of a competing body of evidence does not result in the conclusion the Panel has not had regard to a relevant consideration.[6] The approach to be taken to a medical panel’s reasons, and the need to distinguish between judicial review and reconsideration of the merits, were considered in Gamble v Emerald Hill Electrical Pty Ltd:[7]
[1]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–41.
[2]Ibid.
[3]Ibid.
[4]Milwain v Sim [2009] VSC 75, [22] (Kyrou J); Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17, [61] (Neave JA, with Santamaria JA and Ginnane AJA agreeing).
[5]LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166, 179 [52].
[6]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 680 (Barwick CJ).
[7](2002) 38 VR 45 (citations omitted).
Axiomatically, there is no scope on judicial review for a reconsideration of the merits of the decision under review. As Brennan J said in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
That basal principle underpinned the well-known statement of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, describing:
the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The court described as “well settled” the propositions enunciated by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd as to “the practical restraints on judicial review”. The court on judicial review should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker, and should not construe the reasons for decision “minutely and finely with an eye keenly attuned to the perception of error”. These propositions have been frequently applied in judicial review proceedings ever since.
If a tribunal makes a finding which is simply not open to it, that may give rise to an error of law,[8] if the unsubstantiated finding was critical to the ultimate decision of the tribunal.[9] It will be more difficult to demonstrate that a finding was not open where a tribunal is to act on its own expertise. Review for jurisdictional error on the basis a finding was not open cannot succeed where there is even the slightest evidentiary basis for the tribunal’s finding.[10]
[8]S v Crimes Compensation Tribunal (1998) 1 VR 83, 89.
[9]Ibid 90.
[10]Sznkv v Minister for Immigration and Citizenship [2010] FCA 56 [37] (Kenny J).
Submissions
Ms Nestorovic submitted first that the Panel determined the work injury was a soft tissue injury to her lower back, and while the Panel gave no further content to that injury, in the context of material before it ‘… it appears that the work injury was a disc bulge at the area of the lower lumbar spine’. Secondly, the Panel did not expressly identify the basis for concluding the work injury had resolved by mid-July 2014, ‘but the basis appears to be an inference drawn by the medical panel from the contents of a physiotherapist’s record dated 1 August 2014’. Thirdly, the Panel wrongly took the physiotherapist’s record as stating ‘[Ms Nestorovic’s] lower back pain in early August 2014 was related to starting a gym program’ and ‘occurred when attending the gym in about late 2014’. It was submitted these statements were materially in error because there was no causal judgement in the physiotherapist’s note linking the onset of low back pain in July 2014 to the gym activities, and the note recorded ‘starting gym (ex bike and light UL weights)’, and not that Ms Nestorovic started ‘a gym program’, or attended the gym. Fourthly, the physiotherapist’s note that Ms Nestorovic was pain free for two months was inconsistent with the clinical notes and report of Dr Hassan. It was submitted there was no material justifying the Panel inferring ‘a cessation of pain meant a cessation of the injury which had caused the pain’. Further, the Panel’s reasons made no reference to the history contained in Dr Hassan’s notes or report, which was inconsistent with a finding that Ms Nestorovic was pain free for two months, and it should be inferred that no consideration was given to that material. Fifthly, there was no evidence on which the Panel could have come to the conclusion that gym activities engaged in by Ms Nestorovic were sufficient to cause a fresh injury unrelated to the March 2014 work injury, and it was not open to the Panel to reach that conclusion. The position for Ms Nestorovic was summarised in written reply submissions:
It was an essential feature of the Medical Panel’s reasoning that something had occurred in late July 2014 which was sufficient to cause an exacerbation of the Plaintiff’s pre-existing mild lumbar spondylosis, such that it accounted for her then pain, and also for her present pain (see the Respondents’ Submissions at para 36). On that basis, the workplace event on 11 March 2014 was not considered by the Medical Panel to be a cause of the Plaintiff’s lower back pain, which had resumed at that time.
The Medical Panel’s only evidentiary source of information as to what had occurred in that regard was the notes of the Plaintiff’s physiotherapist. The Medical Panel has misstated or mistaken the notes, as is clear from the Plaintiff’s Submissions. This is a jurisdictional error, and is also a situation where there is no evidence for the Medical Panel’s statement of what the note stated, see NASA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 653 at [65]-[72], SZDFZ v Minister for Immigration and Citizenship [2008] FCA 39- at [36]-[44], BDQ15 v Minister for Immigration [2017] FCCA 162 and Polizzi v Commissioner of Police [No 2] [2017] WASC 166 at [265].
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The Medical Panel did not “interpret” the physiotherapist’s notes, it misstated or mistook their contents, and if there was an interpretation, it was not open to be made. Further, outside the notes there was clearly no evidence of the gym references which the Medical Panel made, and if the notes do not establish the matters as stated by the Medical Panel, then there was no evidence of them.
The Medical Panel clearly took the physiotherapist’s notes as allowing it to find that there had been a gym programme of sufficient nature and intensity as to cause a pre-existing mild degeneration to advance to such an extent as to cause the Plaintiff extreme pain and disability. But the notes themselves show no such thing. The finding of the “gym programme” as a cause of the Plaintiff’s injury and pain allowed the Medical Panel to find that the injury from the 11 March 2014 event had completely (and not just temporarily) resolved, which was itself an off decision in the light of the results of the 2014 imaging, part of which the medical Panel itself referred to, and in the light of there being no medical imaging results which supports the Medical Panel’s conclusion.
The present is also a case where the Medical Panel has not based its reasoning on the document itself, and has thus not complied with its statutory mandate, see Ryan v The Grange at Wodonga [2015] VSCA 17.
In response Multicultural Aged Care submitted first the Panel’s interpretation of the physiotherapist’s note was open to it. Secondly, if there was misinterpretation of the physiotherapist’s note that was an error within jurisdiction, and was not reviewable. Thirdly, failure by the Panel to articulate the gym activities should not lead to an inference that it failed to have regard to the nature of activities in which Ms Nestorovic engaged, as recorded in the physiotherapist’s note. Furthermore, where the Panel was satisfied commencement of the gym activities was related to recurrence of Ms Nestorovic’s pain, nothing turned on the nature of those gym activities. Fourthly, the Panel stated it had regard to all documents provided to it, which included Dr Hassan’s notes. There is nothing in those notes which is inconsistent with the Panel’s findings. It should not be inferred the Panel failed to have regard to Dr Hassan’s notes. Fifthly, it was open to the Panel to conclude that Ms Nestorovic suffered a soft tissue injury to her lower back at work, and that this injury resolved. Sixthly, it was open to the Panel to find that Ms Nestorovic suffered an exacerbation of pre-existing lumbar spondylosis related to gym activities in which she engaged in late July 2014.
Analysis
For the following reasons I conclude Ms Nestorovic has failed to establish jurisdictional error by the Panel. First, in substance grounds 1, 2 and 3, and the submissions made in support of those grounds, amount to a merits review, rather than a review based on a jurisdictional error. The extract from written submissions included above demonstrates that the submissions amount to an attempt by Ms Nestorovic to re-characterise, inaccurately, the reasoning of the Panel in an effort to establish jurisdictional error. The Panel concluded that the work injury was a soft tissue injury to the lower back, not a disc bulge in the lower lumbar spine as was submitted by Ms Nestorovic. It was not ‘an essential feature’ of the Panel’s reasoning that something occurred in late July 2014 sufficient to cause exacerbation of Ms Nestorovic’s pre-existing lumbar spondylosis to account for her pain then and to the present. The Panel noted the history of exacerbation in late July, and interpreted the physiotherapist’s note in respect of the cause of that exacerbation. However, the Panel’s reasons do not demonstrate that the fact and cause of the late July exacerbation was central to its reasoning as to the nature and extent of the work injury. The Panel did not conclude that the late July exacerbation caused Ms Nestorovic to suffer extreme pain and disability, or that the effect of that exacerbation persisted and was the cause of current complaints. The Panel concluded:
Based on these considerations, the panel concluded that the plaintiff suffered a soft tissue injury to the lower back which had since resolved and the plaintiff currently has constitutional degenerative changes of the lumbar spine.
The considerations on which the Panel relied to reach that conclusion were not limited to the physiotherapist’s note of 1 August 2014, but included the referral documents; the history obtained from Ms Nestorovic which included that she experienced intermittent mild back pain prior to the work injury on 11 March 2014; the return to normal duties on 9 June 2014 and cessation of normal duties on 27 June because of termination of employment; the Panel’s physical examination of Ms Nestorovic, the Panel’s review of medical imaging investigations and reports and the DVD surveillance. The referral material included the report of treating neurosurgeon Mr Bulluss in which he recorded a history that pain from the work lower back injury had resolved, and the opinion of orthopaedic surgeon Mr Clive Jones to the effect that incapacity which he found in January 2015 was not related to the March 2014 work injury. The Panel recorded a history from Ms Nestorovic that in late July 2014 her low back pain became worse for no reason. The clinical notes of Dr Hassan record significant improvement of symptoms by 8 June 2014, and no further attendance until 30 July following a flare up of low back pain a few days earlier. I agree with the submission of Multicultural Aged Care that Dr Hassan’s notes are not inconsistent with the conclusion reached by the Panel. I do not infer the Panel failed to have regard to those notes. The Panel noted that the history of intermittent mild back pain prior to the work injury was consistent with constitutional degenerative changes to Ms Nestorovic’s lower lumbar spine which would have pre-existed the work injury. The Panel’s conclusion that Ms Nestorovic suffered a soft tissue injury to her lower back in March 2014 which has since resolved was based on a range of considerations and was a conclusion which was clearly open to the Panel.
Secondly, I do not agree that the Panel’s reasons demonstrate it misstated the physiotherapist’s note in any material way not open to it. It was open to the Panel to conclude that a contemporaneous physiotherapist’s note reading ‘low back pain post starting gym’ indicated a degree of causal connection between the activity and the pain complained of. The Panel had regard to the physiotherapist’s note, which included reference to the content of the gym activity. Whether that activity occurred at home or in a gymnasium is hardly material. Thirdly, I agree with the submission for Multicultural Aged Care that if the Panel did err in its interpretation of the physiotherapist’s note, that was an error within jurisdiction. Fourthly, it was open to the Panel to find, on the basis of the physiotherapist’s note and other material available to it, including the referral materials, history obtained from Ms Nestorovic, results of physical examination, radiological investigations and the Panel’s own expertise, that Ms Nestorovic suffered an exacerbation of pre-existing lumbar spondylosis related to gym activities in late July 2014.
I find against Ms Nestorovic in relation to grounds 1, 2 and 3.
Ground 4 — procedural fairness
In Kioa v West,[11] Mason J observed:
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “the particular statutory framework”. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting …
[11](1985) 159 CLR 550, 584–5 (citations omitted).
In Vegco Pty Ltd v Gibbons, in relation to the obligation of a medical panel to observe the rules of natural justice, Kyrou J said:[12]
A medical panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinion on medical questions. A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel’s own medical expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.
[12][2008] VSC 363, [23] (citations omitted).
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[13] a full court, comprising Northrop, Miles and French JJ, said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
[13](1994) 49 FCR 546, 591–2.
Submissions
Ms Nestorovic submitted:
It was not fair of the medical panel not to ask the plaintiff about her exercise program, or about the history as contained in the physiotherapist’s notes or the medical panel’s view of them as showing a causal activity, of which the plaintiff could be expected to provide relevant information, and then using the notes, or the medical panel’s view of them, to the plaintiff’s prejudice.
Multicultural Aged Care submitted first that the Panel was authorised to ‘inform itself on any matter relating to a reference in any manner it thinks fit’,[14] and was thus permitted to inform itself by reference to the referral material, including the physiotherapist’s records. Secondly, it could not be said Ms Nestorovic had no opportunity to be heard in respect of the content of the physiotherapist’s record because that matter was specifically raised and relied upon in submissions to the Panel by Multicultural Aged Care. It was submitted in those circumstances Ms Nestorovic cannot complain the Panel’s findings are unexpected or came ‘out of the blue’.[15]
[14]The Act s 303(1).
[15]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSCA 248, [48].
Analysis
Ms Nestorovic was aware the physiotherapist’s note was part of the referral material to the Panel. Ms Nestorovic was also aware that the case for Multicultural Aged Care was that the work injury to the low back had recovered and was no longer a cause of her low back condition or symptoms. Multicultural Aged Care’s defence filed in the Magistrates’ Court proceeding pleaded that any incapacity for work did not result from and was not materially contributed to by the work injury. The submissions of Multicultural Aged Care to the Panel placed specific reliance, in support of that allegation, on the physiotherapist note of 1 August 2014 [see paragraph 14 above]. Ms Nestorovic responded with her own written submissions to the Panel which did not address the physiotherapist’s note.
Ms Nestorovic was put on notice of the defence being run by Multicultural Aged Care that she had recovered from the work injury to her low back, and specifically of the reliance by Multicultural Aged Care on the physiotherapist’s note in support of that argument. Ms Nestorovic had the opportunity, prior to the medical panel determination, to respond to the case being put against her, by making submissions or providing material to clarify the physiotherapist note and the history of symptoms in the period June and July 2014. In the circumstances of this case there was no lack of procedural fairness by the Panel in proceeding as it did to place reliance on the physiotherapist’s note.
Ground 5 — psychogenic injury
Submissions
Ms Nestorovic submitted that the findings by the Panel on psychical examination of non-anatomical and non-organic signs were consistent with an injury of a psychogenic nature. Further, the Panel had before it the report of Mr Cunningham whose diagnosis was of chronic pain syndrome which it was submitted the Panel disregarded ‘because for some unstated reason it considered that the pain did not fit the diagnosis of a chronic pain syndrome’. It was submitted there was jurisdictional error because the Panel failed to consider whether the complaints of pain by Ms Nestorovic were an injury consisting of a psychogenic pain condition from a work caused back injury, even if the back injury had now resolved. Ms Nestorovic relied, in support of that submission, on the decision of Rush J in Lillis v Barton & Ors.[16]
[16][2015] VSC 205 (‘Lillis’).
Multicultural Aged Care submitted first that the Panel specifically dealt with the only suggested diagnosis of a non-organic condition, stating that it disagreed with the opinion of Mr Cunningham. Secondly it was implicit that the Panel’s diagnosis of constitutional degenerative changes of the lumbar spine was explanation for Ms Nestorovic’s current back symptoms such that no further consideration of a non-organic cause was warranted. Thirdly even if there was psychogenic component to Ms Nestorovic’s current symptoms that does not explain causal connection with the work lower back injury which the Panel concluded had resolved with complete resolution of symptoms for a period of some two months. Fourthly Ms Nestorovic by her statement of claim in the Magistrates’ Court did not make any allegation of psychogenic injury, and nor was any such injury identified for assessment by the Panel in the joint statements required by s 304 of the Act.
Analysis
I agree with the submissions of Multicultural Aged Care. Only physical injury to the lumbar spine was pleaded in the Magistrates’ Court statement of claim. In the s 304 statement the only injury listed under the heading ‘Injuries to be assessed’ was ‘to the lower back’. The submissions to the Panel by Ms Nestorovic rely on the physical condition of her lower back. Other than noting the supportive report of Mr Cunningham those submissions contain no reference to psychogenic injury. It is only by the report of Mr Cunningham that the referral materials raise amplification of pain by non-physical cause. Mr Cunningham’s opinion was expressed as follows:
Her examination does not suggest the presence of ongoing nerve root impingement on the left side in particular, the distribution of numbness over the whole of the left leg is inconsistent with any physical finding. Her reaction to examination is strongly suggestive of an unintentional amplification of symptoms, and is most likely due to a chronic pain syndrome.
The Panel considered Mr Cunningham’s opinion and concluded:
Based on the panel’s own findings the panel did not consider that the plaintiff’s presentation fulfilled the diagnostic criteria for such a conclusion and therefore disagreed with Mr Cunningham.
By contrast in Lillis there was a significant body of material before the Panel raising for consideration the issue of whether the worker had suffered a back injury, and the reasons of the Panel did not address the issue. In the present case the reasons disclose that the Panel addressed relevant material which it was bound to take into account, including the opinion of Mr Cunningham and its own findings on clinical examination.
I agree with the submission of Multicultural Aged Care that Ms Nestorovic faced the additional hurdle with this ground that the Panel concluded the soft tissue lower back work injury resolved, and Ms Nestorovic was pain free for a period before suffering exacerbation of pre-existing lumbar spondylosis unrelated to the work injury. It is difficult to see in the circumstances how a chronic pain syndrome which Mr Cunningham identified in March 2016 could be causally related to the result work lower back injury.
I conclude that ground 5 fails.
Conclusion
I have concluded that Ms Nestorovic has failed on the grounds relied on as the basis for judicial review of the Panel’s Opinion. The proceeding will be dismissed. I will hear from the parties as to the form of orders, including as to costs.
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