O'Brien Glass Industries Ltd v Pisani
[2018] VSC 294
•6 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS
S CI 2017 01574
| O'BRIEN GLASS INDUSTRIES LTD | Plaintiff |
| v | |
| LISA MARY PISANI AND OTHERS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2018 |
DATE OF JUDGMENT: | 6 June 2018 |
CASE MAY BE CITED AS: | O'Brien Glass Industries Ltd v Pisani & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 294 |
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ADMINISTRATIVE LAW – Application by employer for judicial review of a medical panel (‘Panel’)’s opinion in respect of questions concerning cause of injury to worker and her capacity for work – Claim by worker for compensation under s 93 of the Accident Compensation Act 1985 (Vic) (‘Act’) – Worker alleged she was injured while installing a windscreen in the course of employment as an auto technician, resulting in ongoing symptoms of pain in wrists and hands – Panel concluded that worker did not have a work capacity for her pre‑injury employment due to a risk of recurrence for a duration of approximately two years after injury, including a period of time after injury had resolved – Employer sought review on grounds including jurisdictional error, error of law and failure to provide adequate reasons – Whether there can be no compensable incapacity for work beyond the date on which an injury is found to have ‘resolved’ – Richter v Driscoll [2016] VSCA 142, referred to – Clarchet Pty Ltd v Demediuk [2011] VSC 22, distinguished – Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533, referred to – Calleja v Franet [1999] VSC 202, referred to – Whether the Panel’s findings as to the risk of the worker’s medical condition re‑occurring by a return to work were insufficient to justify a finding of a compensable incapacity for work – Ryan v Grange at Wodonga Pty Ltd [2008] VSC 415, referred to – Stojilkovik v Romas [2017] VSC 49, referred to – Caldipp Pty Limited t/as Slaven Motors v Delov (2002) FCAFC 352, referred to – Panel’s finding that there was a ‘propensity’ for injury sufficient to ground an ongoing incapacity – Whether the Panel took into account the s 5(1B) factors listed in the definition of ‘significant contributing factor’ in determining the causal relationship between employment with the employer and the alleged injury – Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors [2014] VSC 664 , referred to – Ventrice v Riva Plaster Pty Ltd and Ors [2008] VSC 415, referred to – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, applied – Pearce v Lloyd [2016] VSC 806, referred to – No jurisdictional error – Open to Panel to make finding of a compensable incapacity for work – Not necessary to consider whether Panel’s finding was ‘grossly illogical or irrational’ – Panel took into account mandatory relevant considerations – Reasons adequate – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with Mr R Kumar | Thomson Geer |
| For the First Defendant | Mr M Wheelahan QC with Mr L Allan | Shine Lawyers |
| No appearance for the Second to Sixth Defendants |
TABLE OF CONTENTS
Introduction and Background..................................................................................................... 1
The Panel’s reasons and the statutory framework.................................................................. 5
The Grounds of Review and issues in this proceeding........................................................ 10
Can there be any compensable incapacity for work beyond the date on which an injury is found to have resolved?................................................................................................................... 13
Are the Panel’s findings with respect to the level of risk that the worker’s medical condition would reoccur with O’Brien Glass sufficient to justify a finding of compensable incapacity for work?.............................................................................................................................................. 16
Did the Panel take into account the factors referred to in s 5(1B) of the Act in determining whether there was a causal relationship between Ms Pisano’s employment with O’Brien Glass, and if so, whether that employment was a significant contributing factor to her injury?....... 17
Were the Panel’s reasons adequate?........................................................................................ 21
Analysis and Conclusions......................................................................................................... 22
HER HONOUR:
Introduction and Background
The plaintiff, O’Brien Glass Industries Ltd (‘O’Brien Glass’) is a well-known business specialising in the repair and replacement of car and truck windscreens. The first defendant, Ms Lisa Pisani (‘Ms Pisani’) was employed with O’Brien Glass between January and April 2012 as an auto technician. Ms Pisani stopped work after an incident on 10 April 2012, when she suffered pain in her hands when installing a replacement windscreen on a four wheel drive vehicle. She subsequently applied for worker’s compensation, which gave rise to the dispute which is the subject of this proceeding.
O’Brien Glass has sought judicial review of a certificate of opinion of a medical panel (‘Panel’) issued on 3 March 2017, seeking to quash answers given by the Panel to certain questions concerning the cause of soft tissue injuries suffered by Ms Pisani and her capacity for work. I will dismiss the application for the reasons which follow.
Ms Pisani brought a proceeding in the Magistrates’ Court challenging the refusal by claims agents acting on behalf of O’Brien Glass and her immediate past employer (‘former employer’) to admit her claim for payments of weekly compensation pursuant to s 93 of the Accident Compensation Act 1985 (Vic) (‘Act’).[1] The Panel was convened following a referral of certain medical questions by orders made by Magistrate Wright in response to a request by Ms Pisani.
[1]As the alleged injury occurred and the claim for compensation was made in 2012, the provisions of the Act in force during the relevant period apply to Ms Pisano’s substantive claim. However, the procedure by which the referral to the Panel was made, and the obligations of the Panel in assessing Ms Pisano’s claim and forming its opinion are governed by the successor legislation to the Act, being the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’).
As noted by senior counsel for O’Brien Glass, the reference to the Panel and the procedure adopted by the Panel followed a conventional path. The referral document lodged on 29 November 2016 contained nineteen questions. Questions 2 through to 10 related only to the injury said to have been suffered by Ms Pisani in connection with her employment by the former employer. The questions and answers relevant to Ms Pisani’s employment with O’Brien Glass are reproduced below:[2]
[2]The date of 21 March 2014 has no medical or other factual significance to this dispute, but was referred to in questions 15, 16 and 17 of the medical questions referred to the Panel, such that the Panel was bound to answer those questions. Apparently this date is the expiry of the period during which the former employer might be liable to make weekly payments of compensation to Ms Pisani.
Question 1:What is the nature of [Ms Pisani’s] medical condition relevant to the injuries referred to in paragraph 8 of the amended statement of claim, namely:
(a)Injury to the left hand?
(b)Injury to the left wrist?
(c)Injury to the right hand?
(d)Injury to the right wrist? (‘the Alleged Physical Injuries’)
(e)Anxiety and depression? (‘the Alleged Psychiatric Injury’).
Answer:In the Panel’s opinion [Ms Pisani] is not now suffering from any physical medical condition of the hands or wrists following resolution of soft tissue injuries of the left and right wrists sustained on 23 September 2011 and resolution of a recurrence of soft tissue injuries to the left and right wrists sustained on 10 April 2012.
The Panel is also of the opinion that [Ms Pisani] is not now suffering from any psychiatric or abnormal psychological condition following resolution of an adjustment disorder with mixed anxiety and depressed mood, which had arisen as a consequence of the recurrence of soft tissue injuries to the left and right wrists sustained on 10 April 2012.
Question 11: Was [Ms Pisani’s] employment with [O’Brien Glass] in fact, or could it possibly have been, a significant contributing factor to any, and if so which, of the Alleged Physical Injuries?
(any such injuries hereinafter referred to as the [O’Brien Glass] Physical Injuries)
Answer:The Panel is of the opinion that [Ms Pisani’s] employment with [O’Brien Glass] on 10 April 2012 was in fact a significant contributing factor to the recurrence of a soft tissue injury of the left wrist, now resolved, and the recurrence of the soft tissue injury of the right wrist, now resolved.
Question 12: Did the Alleged Psychiatric Injury result from or was it materially contributed to by any, and if so which, of the [O’Brien Glass] Physical Injuries?
(any such injuries hereinafter referred to as the [O’Brien Glass] Psychiatric Injuries)
Answer:In the Panel’s opinion the Alleged Psychiatric Injury (now resolved) resulted from and was materially contributed to by the [O’Brien Glass] Physical Injuries.
Question 13: In the period from 11 April 2012 to the date of the Medical Panel’s examination, what is the extent to which any medical condition identified in response to question 1 resulted from or was materially contributed to by the [O’Brien Glass] Physical Injuries and/or the [O’Brien Glass] Psychiatric Injuries?
Answer:The Panel is of the opinion that in the period from 11 April 2012 to 10 October 2013, the medical condition of [Ms Pisani’s] left and right wrists and her psychiatric condition resulted from and were materially contributed to by the [O’Brien Glass] Physical Injuries and [O’Brien Glass] Psychiatric Injuries.
Question 14: Currently, what is the extent to which any medical condition identified in respect to question 1 results from or is materially contributed to by the [O’Brien Glass] Physical Injuries and/or the [O’Brien Glass] Psychiatric Injuries?
Answer:Not applicable.
Question 15: In the period from 11 April 2012 to 8 October 2014,[3] did [Ms Pisani] have capacity for her pre-injury duties as an auto-technician?
Answer:The Panel is of the opinion that [Ms Pisani] did not have capacity for her pre-injury duties as an auto technician from 11 April 2012 to 21 March 2014.
Question 16: If no to question 15, did [Ms Pisani’s] incapacity for work result from, or was it materially contributed to, by any, and if so which, of the [O’Brien Glass] Physical Injuries and/or the [O’Brien Glass] Psychiatric Injuries?
Answer: [Ms Pisani’s] incapacity for work between 11 April 2012 and 21 March 2014 resulted from and was materially contributed to by the recurrence of the soft tissue injury of the left wrist, now resolved, and the recurrence of the soft tissue in jury of the right wrist, now resolved.
Question 17(a): In the period 21 March 2014 to the date of the Medical Panel’s examination;
[3]This appears to be an error, and should state ’21 March 2014’.
(b): Currently –
did/does [Ms Pisani] have no current work capacity?
Answer:(a)&(b) The Panel is of the opinion that [Ms Pisani] had no inability arising from an injury with [O’Brien Glass] to return to her pre-injury employment as an auto technician between 21 March 2014 and the date of the Panel examination.
Question 18: If yes to any part of question 17, was/is [Ms Pisani’s] no current work capacity likely to continue indefinitely?
Answer:Not applicable.
Question 19: If yes to question 18, did/does [Ms Pisani’s] incapacity for work result from, or was it, materially contributed to by, by any, and if so which, of the [O’Brien Glass] Physical Injuries and/or the [O’Brien Glass] Psychiatric Injuries?
Answer:Not applicable.
Both parties (and the former employer) provided a number of documents to the Panel, including a statement of agreed facts,[4] medical reports and other medical records, investigators’ reports, and comprehensive written submissions. The statement of agreed facts provided, as follows:
[4]Pursuant to s 304(1)(ii) of the WIRCA.
1. The plaintiff was born on 8 September 1981 and is 35 years old.
2.On 1 September 2011, the plaintiff commenced employment with the first defendant. The plaintiff was placed with a host employer Salmat Ravenhall as a data entry operator.
3.On 23 September 2011, the plaintiff ceased employment with the first defendant.
4.On or about 30 January 2012, the plaintiff commenced employment with the second defendant as an auto technician working 38 hours per week.
5.On 10 April 2012, the plaintiff last worked for the second defendant.
6.On 10 April 2012, the plaintiff was in Hopetoun performing a windscreen fit on behalf of the second defendant.
7.On 24 July 2012, the plaintiff’s employment with the second defendant was terminated.
8.On 28 September 2012, the plaintiff lodged a WorkCover claim form in respect of an injury to her hands during her employment with the first defendant. This claim was rejected on 8 November 2012. A conciliation outcome certificate was issued on 16 February 2015.
9.On 28 September 2012, the plaintiff lodged a WorkCover claim form in respect of an injury to her hands during her employment with the second defendant. This claim was rejected on 29 October 2012. A conciliation outcome certificate was issued on 22 July 2013.
The Panel’s reasons and the statutory framework
It is not necessary for present purposes to review the medical evidence before the Panel (and this Court) in any detail, or at all. It is sufficient to say that the medical evidence regarding the cause of Ms Pisani’s ongoing symptoms of pain was inconclusive, and that imaging results and nerve conduction tests did not assist either her treating doctors or medico-legal experts to determine the presence of an ongoing physical injury, or identify the cause of her symptoms of pain.
The Panel, constituted of a rheumatologist, a musculoskeletal physician, two psychiatrists, and a neurologist, examined Ms Pisani on 31 January 2017, and issued its Certificate of Opinion and statement of reasons for opinion (‘reasons’) on 3 March 2017. At the commencement of the reasons, the Panel stated as follows:
The Panel formed its Opinion with regard to
(a) the documents and information referred to in Enclosure A; and
(b)the history provided by [Ms Pisani] and the examination findings elicited by the Panel at the above mentioned examination of [Ms Pisani].
The reasons provide sufficient detail of the factual background to Ms Pisani’s claims against O’Brien Glass and the former employer for present purposes, and will be summarised below. However, prior to that, it is convenient to turn to the relevant statutory framework within which Ms Pisani’s claims for weekly compensation were required to be assessed. Section 82(1) of the Act provides as follows:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
Section 82(2C)(c) of the Act provides that:
There is no entitlement to compensation in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injury …
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
Section 5(1B) of the Act provides that:
In determining for the purposes of this Act whether a worker’s employment was a significant contributing factor to an injury –
(a) the duration of the worker’s current employment; and
(b) the nature of the work performed; and
(c) the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e)the existence of any hereditary risks; and
(f)the life-style of the worker; and
(g)the activities of the worker outside the workplace-
must be taken into account.
Section 93 of the Act provides as follows:
If a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.
In the reasons, the Panel noted the agreed facts, namely, the dates of employment by Ms Pisani with the former employer and O’Brien Glass, and the making and rejection of claims for compensation.
In relation to Ms Pisani’s claims against the former employer, the reasons noted as follows:
(a) prior to her commencement with the former employer on 1 September 2011, she had no problems with her hands, save for an injury to her right arm and hand in October 2008, which resolved completely after three weeks; and
(b) Ms Pisani developed severe symptoms of pain in her hands and wrists after undertaking a sustained volume of typing work, which worsened until she ceased work on 23 September 2011. After this time, and some treatment, her hands and wrists returned to normal after three months, in around December 2011.
In relation to Ms Pisani’s employment with O’Brien Glass as a trainee auto technician, the reasons noted the following:
(a) Ms Pisani undertook a medical assessment prior to commencing with O’Brien Glass on 30 January 2012;
(b) her job was to replace car windscreens, which she did in a factory setting until 10 April 2012;
(c) on 10 April 2012, Ms Pisani was sent to a job to replace a car window on her own. This was the first occasion she had driven to a job to change a windscreen on her own; and
(d) the reasons stated as follows:
The Plaintiff told the Panel that she took the original windscreen out of the four-wheel-drive without difficulty. She said that while in the process of installing the replacement windscreen, which she said weighed approximately 20kg, she was holding the windscreen in both hands, and felt a sudden pain and loss of strength in both wrists. She said that she dropped the window onto the bonnet of the car. She said the pain continued in her hands and wrists. She said she managed to continue working and successfully installed the windscreen. She said that she drove back to the main office, but was not able to do any further work that day. She said that she went to her GP the next day.
The Plaintiff told the Panel that the pain in her wrists and hands has continued from that time to the present. She said that the pain in her wrists and hands in the weeks following the injury on 10 April 2012, was severe. She said that she was treated with rest, splints, and analgesia. She said that her symptoms did alter and eased in 2014 although the pain ‘still triggers off’ on occasions.
The reasons noted that Ms Pisani ultimately returned to work in 2016 in a job that did not require heavy lifting or sustained keyboard typing. Ms Pisani told the Panel about her ongoing symptoms of pain, what she could and could not do, and her ongoing treatment and medication regime.
In the reasons, the Panel reported upon the physical and psychiatric examinations undertaken by the members of the Panel. In relation to the physical examination, the Panel referred to the imaging results provided to it, along with the results of nerve conduction studies. The Panel stated as follows:
The Panel considered that no further investigations are required in order for the Panel to assess the Plaintiff’s physical medical condition.
The Panel took into consideration the history obtained from the Plaintiff, its own examination findings and the medical reports provided by the Plaintiff ‘s treating clinicians as well as the reports of those doctors who have examined the Plaintiff.
Notwithstanding the Plaintiff’s ongoing complaint of pain the Panel was unable to identify any objective evidence of any ongoing physical injury/pathology at either forearm, wrist or hand and considered the absence of objective clinical findings to be entirely consistent with essentially normal imaging and nerve conduction studies.
Based upon the Plaintiff’s history and the Panel’s finding on examination and review of imaging and investigation reports the Panel concluded that there is no longer any intrinsic medical condition of either forearm, wrist or hand.
The Panel further concluded that the Plaintiff probably suffered soft tissue injuries of the left and right wrist that have now resolved and there is no on‑going medical condition attributable to any of the Alleged Physical Injuries.
In relation to its psychiatric assessment of Ms Pisani, the Panel stated as follows:
The Panel considers the Plaintiff had suffered an adjustment disorder with mixed anxiety and depressed mood, which is now resolved. The Panel considered the adjustment disorder with mixed anxiety and depressed mood developed as a consequence of the physical condition that arose following the injuries on 10 April 2012, but it did not affect her capacity to work. The Panel further considers there is no current psychiatric disorder which impacts upon her capacity for pre-injury duties as a data entry operator or auto technician or any other employment.
The Panel concluded that Ms Pisani’s employment with the former employer was a significant contributing factor to the soft tissue injuries of both wrists.
In relation to Ms Pisani’s employment with O’Brien Glass, the reasons stated as follows:
The Panel noted that the Plaintiff said that her wrist and hand pains had not fully resolved since 10 April 2012, but her symptoms did alter and eased in 2014 although the pain ‘still triggers off’ on occasions. The Panel considered the usual natural history of a soft tissue injury of the wrists and also noted the imaging results of the wrists, in particular the MRI of the left wrist 9 October 2013 and the MRI of the right wrist 10 October 2013 which showed no significant abnormality in either wrist. The Panel concluded that the physical component of the recurrence of the soft tissue injury of both wrists had fully resolved by 10 October 2013 notwithstanding the Plaintiff’s complaints of ongoing pain symptoms.
The Panel considered the nature of the [O’Brien Glass] Physical Injuries in conjunction with the Plaintiff’s pre-injury employment duties with the Second Defendant which involved lifting, holding, and manoeuvring glass car windows weighing around 20kg. The Panel considered that because this work had significantly contributed to the [O’Brien Glass] Physical Injuries, that re-introduction of the same work might cause a recurrence of the same medical condition even though the injuries had resolved by 10 October 2013. The Panel considered that this propensity for re-injury existed from the date of the injury at least up until 21 March 2014.
The Panel therefore concluded that the Plaintiff did not have a work capacity for her Second Defendant pre-injury employment as an auto technician from 10 April 2012 to 21 March 2014. The Panel also concluded that this incapacity for pre-injury employment as an auto technician resulted from and was materially contributed to by the recurrence of the soft tissue injury of the left wrist, now resolved, and the recurrence of the soft tissue injury of the right wrist, now resolved.
The Panel has concluded that the Plaintiff’s injuries have resolved and that any incapacity for work had ceased by 21 March 2014 and therefore the Panel concluded that the Plaintiff had no inability arising from an injury with the First Defendant or the Second Defendant to return to her pre-injury employments as a data entry operator or an auto technician between 21 March 2014 and the date of the Panel examination.
Finally, the reasons referred to the decision making process undertaken by the Panel in reaching its opinion, noting that ‘it could rely on the history provided by her in conjunction with the other material and the examination findings in order to reach its conclusions’. The Panel referred to the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[5] (‘Wingfoot’), and the decision of Cavanough J in Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors (‘Vellios’).[6] The reasons concluded as follows:
Whilst the Panel informed itself as to the views of other practitioners who have examined [Ms Pisani] the panel came to its own conclusions in relation to the current medical condition of [Ms Pisani], any relationship to [Ms Pisani’s] employment and the incidents of injury and her capacity for employment.
[5](2013) 252 CLR 480.
[6][2014] VSC 664.
The Grounds of Review and issues in this proceeding
As noted above, O’Brien Glass seeks to quash the opinion of the Panel insofar as it responds to questions 11, 13, 15 and 16 of the referred questions. In its originating motion filed 2 May 2017, O’Brien Glass identified the following grounds of review:
In determining its opinions upon referred questions 15 and 16, the Medical Panel fell into jurisdictional error, alternatively error of law patent on the record, by making a finding of fact which was not open to it.
PARTICULARS
Having found that ‘the physical component of the recurrence of the soft tissue injury of both wrists had fully resolved by 10 October 2013’ it was not then open for the Medical Panel to find that from that date the worker had any incapacity for work which resulted from, or was materially contributed to by, the resolved [O’Brien Glass] Physical Injuries’.
In determining its opinions upon referred questions 15 and 16, the Medical Panel fell into jurisdictional error by making a finding of fact which was grossly illogical or irrational.
PARTICULARS
Having found that ‘the physical component of the recurrence of the soft tissue injury of both wrists had fully resolved by 10 October 2013’ it was then grossly illogical or irrational for the Medical Panel to find that from the date the worker had any incapacity for work which resulted from, or was materially contributed to by, the resolved [O’Brien Glass] Physical Injuries’.
In determining its opinions upon referred questions 15 and 16, the Medical Panel fell into jurisdictional error, alternatively error of law patent on the record, by misconstruing or misapplying the concepts of ‘injury’ and ‘incapacity’.
PARTICULARS
Contrary to the analysis and/or findings of the Medical Panel:
(a)a physical injury which has ‘fully resolved’ is not then capable of giving rise to entitlements under [the Act] or WIRCA, including weekly payments of compensation;
(b)a mere possibility of pre-injury employment duties causing a recurrence of a prior medical condition may not be sufficient to give rise to a finding of incapacity under [the Act] or WIRCA.
In determining its opinion upon referred question 11, the Medical Panel fell into jurisdictional error by failing to take into account mandatory relevant considerations.
PARTICULARS
In finding that employment with the plaintiff on 10 April 2012 was a ‘significant contributing factor’ to injury, the Medical Panel failed to have regard to the mandatory considerations set out in s 5(1B) of [the Act].
The Medical Panel failed to give an adequate statement of reasons sufficient to comply with s 313(2) of the WIRCA.
PARTICULARS
The Reasons for Opinion are inadequate with respect to:
(a)how the Medical Panel found that a physical injury or condition which had ‘fully resolved’ was capable of recurrence;
(b)how the Medical Panel concluded that the worker did not have a capacity for her pre-injury employment from 10 October 2013 to 21 April 2014 when it only found that such work ‘might cause a recurrence of the same medical condition’ (emphasis added);
(c)how the Medical Panel concluded that from 10 October 2013 to 21 April 2014 the worker had an incapacity for work which resulted from or was materially contributed to by a resolved physical injury;
(d)how the Medical Panel concluded that the worker had an incapacity for her pre-injury employment up to 21 March 2014 but not thereafter;
(e)how the Medical Panel concluded that employment with the plaintiff on 10 April 2012 was a ‘significant contributing factor’ to injury, including as to whether the Medical Panel had regard to the mandatory considerations set out in s 5(1B) of [the Act].
The written outline of submissions filed on behalf of O’Brien Glass expanded upon the grounds of review reproduced above, and identified the issues in this proceeding, as follows:
(a)Whether the Panel made a finding of fact which was not open to it, or which was grossly illogical or irrational;
(b)Whether the Panel misconstrued or misapplied the concepts of ‘injury’ and ‘incapacity’;
(c)Whether the Panel fell into jurisdictional error by failing to take into account a relevant consideration to which it was bound to have regard;
(d)Whether the Panel failed to provide adequate reasons for its Opinion.
The submissions filed on behalf of Ms Pisani characterise the issues a little differently, as follows:
The Plaintiff (henceforth referred to as ‘OGI’) makes three primary complaints. The first two complaints relate to the Panel’s finding of a continuing, compensable incapacity beyond 10 October 2013:
(a)firstly, that there can be no compensable incapacity for work beyond the date on which an injury is found to have ‘resolved’;
(b)secondly, that the Panel’s findings with respect to the level of risk that the worker’s medical condition would re-occur with OGI were insufficient to justify a finding of a compensable incapacity for work.
The third complaint relates to the Panel’s alleged failure to take into account the section 5(1B) factors listed in the definition of ‘significant contributing factor’ in determining the causal relationship, if any, between the OGI employment and the alleged injury.
In these reasons, I shall adopt the framework proposed by Ms Pisani for the purposes of analysing whether the Panel made any vitiating error of law. If the Panel misconstrued or misapplied the concepts of ‘injury’ and ‘incapacity’, the Panel has made an error of law. As such, it is not necessary to consider whether the Panel made a finding that was ‘grossly illogical or irrational’[7] for the purposes of determining this application. Further, it is common ground that if the Panel has not addressed the relevant factors in s 5(1B) of the Act, the Panel would have failed to take into account mandatory relevant considerations. While to some extent the question of whether the reasons are adequate is bound up with the other issues, I will deal with that issue separately.
Can there be any compensable incapacity for work beyond the date on which an injury is found to have resolved?
[7]The question of whether the ‘illogical or irrational’ ground is an available ground for review remains unsettled, although I have previously expressed the view that the preponderance of authority supports the availability of such a ground (see O’Brien v Brand & Ors [2017] VSC 596 [27]). The current case does not seem to me to be a particularly appropriate vehicle to progress the development of jurisprudence in this field. While proceeding on a misunderstanding of the relevant law would almost always amount to jurisdictional error, it does not necessarily amount to making a finding that is ‘irrational’ or ‘illogical’ within the natural and ordinary meaning of those words.
Senior counsel for O’Brien Glass noted that the principal error complained of is the Panel’s fundamental failure to appreciate that, in assessing whether there is an incapacity for work, any incapacity must result from a compensable injury. Senior counsel for O’Brien Glass relied upon the decision of Macaulay J in Clarchet Pty Ltd v Demediuk (“Clarchet”).[8]
[8][2011] VSC 22.
Senior counsel for O’Brien Glass submitted that it was not open to the Panel, having found that Ms Pisani’s soft tissue injury had fully resolved by 10 October 2013, to find that the injury resulted in, or materially contributed to an incapacity for work beyond 10 October 2013. Even if it is accepted that a risk of recurrence might, in some cases, be equated with an incapacity for work, such incapacity could not arise from an injury which has resolved. Any further injury would be a new injury, with a new employer.
Senior counsel for O’Brien Glass distinguished the current case from the circumstances before the Court in Ryan v Grange at Wodonga Pty Ltd (‘Ryan’),[9] Stojilkovic v Romas (‘Stojilkovic’),[10] and Asioty v Canberra Abattoir Pty Ltd (‘Asioty,’)[11] where the relevant injuries were found to be persisting, or, as in the case of Asioty,[12] the nature of the worker’s underlying condition meant that the abatement of symptoms did not preclude a finding of a permanent aggravation of that underlying condition by the nature of his employment.
[9][2015] VSCA 17.
[10][2017] VSC 49.
[11](1989) 167 CLR 533.
[12]Ibid.
In the alternative, senior counsel for O’Brien Glass submitted that the reasons were insufficient to allow the Court to assess how the Panel was able to find that:
(a)a physical injury or condition which had ‘fully resolved’ (ie as opposed to an underlying condition which continued to affect the worker) was capable of recurrence; and
(b)[Ms Pisani] had an incapacity for work between 10 October 2013 … and 21 March 2014 … but not thereafter.
Secondly, senior counsel for Ms Pisani, prior to addressing the submissions of O’Brien Glass in relation to the particular issues raised by O’Brien Glass in its originating motion, made two overarching submissions concerning O’Brien Glass’ application in this proceeding. First, senior counsel submitted that the submissions advanced on behalf of O’Brien Glass:
proceeded on the basis of informing Your Honour about how different judges in different courts have treated different reasons of different medical panels and sought to draw what seems to be asserted principles of law from those decisions.
Senior counsel for Ms Pisani relied upon the statement of Windeyer J in Teubner v Humble,[13] as follows:[14]
Observations made by judges in the course of deciding issues of fact ought not be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application.
[13](1963) 108 CLR 491.
[14]Ibid, 503.
Senior counsel for Ms Pisani submitted that the question of whether the propensity of Ms Pisani’s injury to recur amounted to incapacity was a matter of fact and opinion for the Panel to decide. Further, the submissions made on behalf of O’Brien Glass improperly seek to elide the concepts of injury and incapacity, which compensation law has long recognised to be distinct concepts.
Senior counsel for Ms Pisani referred to s 93 of the Act, and in particular, noted that s 93 provided that any incapacity must result from or be materially contributed to by an injury. He submitted that there is no requirement that the relevant injury be subsisting at the time of the incapacity. Neither the terms of the legislation or the authorities support the contention that there has to be some present condition before the Panel is entitled to conclude that the risk of recurrence is such as to amount to an incapacity.
Senior counsel for Ms Pisani submitted that the existence of an incapacity for work is not to be tested by reference to the existence of a physical or mental condition. Relying upon Ball v William Hunt & Sons Limited,[15] Thompson v Armstrong & Royse Pty Ltd,[16] and the recent Court of Appeal decision of Richter v Driscoll,[17] it was submitted:
The relevant question is … whether a worker’s earning capacity on the open market is diminished as compared to the worker’s pre-injury position.
[15](1912) AC 496, 501.
[16](1950) 81 CLR 585, 621.
[17][2016] VSCA 142, [89].
Accordingly, the enquiry under s 93 of the Act must be directed to whether a worker’s diminished earning capacity results from, or is materially contributed to by, an initial compensable injury. The decision in Asioty[18] was merely an application of these long established principles.[19] It was submitted that:
The question is simply whether any diminution in a worker’s open market earning capacity continues to result from, or materially contributed to by, the initial compensable injury. If so, the continuing ‘injury’ to the worker is his or her diminished earning capacity, regardless of whether there is a continuing physical or mental condition.
[18](1989) 167 CLR 533.
[19]See also Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431, 444; Arnotts Snack Products v Yacob (1985) 155 CLR 171.
Senior counsel for Ms Pisani relied, to the extent that it was necessary to do so, upon the decision of Ashley J in Calleja v Franet (‘Calleja’),[20] which, it was submitted, was clear authority for the proposition that a worker with a ‘resolved’ injury may still have a compensable incapacity for work. In that case, Ashley J held the Panel had not erred in finding an ongoing partial incapacity for work arising out of a resolved injury (noting, however, that the attack on the Panel’s findings approached the matter from a different angle). As the decision in Calleja[21] is a complete answer to O’Brien Glass’ first complaint, it ought to be followed unless it was considered to be completely wrong.
[20][1999] VSC 202.
[21]Ibid.
Senior counsel for Ms Pisani submitted that, properly understood, the reasons show that the Panel considered that, while the injury suffered by Ms Pisani (which was itself a recurrence of a previous injury) had resolved, that resolution was subject to there being a real risk of recurrence of the same injury, if Ms Pisani was doing the same work with the same employer. The Panel’s unequivocal findings concerning the cause of Ms Pisani’s injury, and the ‘propensity for re‑injury’, shows that the Panel appreciated the distinction between a persisting medical condition and an incapacity for work.
In reply, senior counsel for O’Brien Glass submitted that the submissions advanced on behalf of Ms Pisani fail to deal with the necessary connection between injury and incapacity. Further, Ms Pisani’s reliance on Calleja[22] is misconceived, as the question of whether a fully resolved injury could result in incapacity was not the subject of full argument or consideration in that case. In any event, by reason of the actual result in Calleja,[23] Ashley J’s comments were obiter.
Are the Panel’s findings with respect to the level of risk that the worker’s medical condition would reoccur with O’Brien Glass sufficient to justify a finding of compensable incapacity for work?
[22]Ibid.
[23]Ibid.
Senior counsel for O’Brien Glass submitted that a mere possibility of or ‘propensity’ to a recurrence of an injury which has resolved is insufficient for there to be a relevant incapacity. In Asioty,[24] the Court found that there was more than a mere possibility that the worker’s symptoms would flare up if the worker continued to work in an abattoir, but rather, that those symptoms ‘were liable’ to recur. Further, in Ryan,[25] the Court of Appeal referred to the necessity for the medical panel to consider whether the worker’s return to her pre‑injury duties:
would further aggravate her pre‑existing shoulder condition. It is not for this Court to decide whether such an aggravation was likely or probable (emphasis added)
[24](1989) 167 CLR 533.
[25][2015] VSCA 2017, [71].
Accordingly, senior counsel for O’Brien Glass submitted that the Panel was required to actively engage with the question of whether the risk of recurrence of Ms Pisani’s soft tissue injuries was so high as to make it likely or probable that those injuries would recur should she return to work.
Senior counsel for Ms Pisani submitted that the question of whether there was a risk of recurrence of injury such that there would be a continuing incapacity for work at least until 21 March 2014 was a question of fact for the Panel. That the risk was real and not fanciful was discernible from the reasons: the risk was sufficiently serious to justify the Panel’s finding that there was an incapacity, which is a medical conclusion that was open to the Panel to reach.
Senior counsel for Ms Pisani observed that the question of whether, for there to be an incapacity arising from a risk of recurrence of an injury, the evidence must establish that it is likely or probable, is not settled. However, there are decisions which refer to there being a ‘risk’ of recurrence[26] or a ‘susceptibility to injury’[27] as being sufficient to warrant a finding of ongoing incapacity. In any event, even if there is a requirement that any risk of recurrence of an injury be likely, or probable, the natural and ordinary meaning of the word ‘propensity’ implies that such a recurrence is at least likely or probable.
Did the Panel take into account the factors referred to in s 5(1B) of the Act in determining whether there was a causal relationship between Ms Pisano’s employment with O’Brien Glass, and if so, whether that employment was a significant contributing factor to her injury?
[26]Perrti Kattelus v Wakeup Pty Ltd (1990) 100 FLR 29, [67].
[27]Caldipp Pty Ltd t/as Slaven Motors v Delov [2002] FCAFC 352.
Senior counsel for O’Brien Glass submitted, in summary, as follows:
(a) as the Panel found the injury suffered by Ms Pisani was a recurrence of the soft tissue injury she had received during the course of her employment with the former employer, it was necessary for the Panel to be satisfied that her employment was a ‘significant contributing factor’ to the recurrence of the injury;
(b) Ms Pisani had only been employed by O’Brien Glass for approximately three months before the onset of symptoms, which occurred spontaneously and without apparent trauma, in circumstances where she had only recently recovered from the injury suffered by her when employed with the former employer;
(c) there was no evidence before the Panel concerning incidents prior to Ms Pisani’s employment with either the former employer and O’Brien Glass, including:
(i) an incident in October 2008, when Ms Pisani fell from a fence and injured her right arm;
(ii) nerve conduction studies performed in 2008 and 2009;
(iii) an incident in March 2009 when Ms Pisani jammed her right hand;
(iv) Ms Pisani’s injuring her right shoulder in 2009;
(v) a motorcycle accident in October 2010, which left Ms Pisani with pains affecting her left arm;
(vi) that her medical history showed an onset of symptoms in 2001; and
(d) senior counsel for O’Brien Glass submitted that:
In the circumstances, it was necessary for the Panel to actively and intellectually engage with the various mandatory factors set out in s 51(1B) of the [Act], including [Ms Pisani’s] full prior medical history and the development of hand and wrist symptoms prior to employment with either [the former employer or O’Brien Glass]. Here, the Panel only recorded a very limited history in respect of the incident in October 2008 when she climbed over a fence. There was no discussion by the Panel as to the probable development of the injury if [Ms Pisani] had not held the windscreen, or the existence of any hereditary or constitutional risks.
Senior counsel for O’Brien Glass referred to the notes of Ms Pisani’s treating general practitioner dated 16 April 2012 and 17 April 2012[28] where no reference was made to an incident at work, and reference was made to there being ‘known bilateral hand pain for long time’, and notes dated 16 May 2012,[29] where reference was made to ‘always cold hands’ and there being a ‘similar problem in the family’, as support for the proposition that the Panel has not properly engaged with the factors set out in s 5(1B) of the Act. I understood these notes were relied upon to contend that there might be alternative explanations for the symptoms suffered by Ms Pisani that should have been addressed by the Panel. He submitted the reasons could not assure the Court that the Panel has taken all of the relevant considerations into account, or actively engaged with those relevant considerations. While there is authority to indicate that the Panel ought to be taken at its word, when it says, as in this case, what the Panel took into account, other decisions eschew formulaic statements, and require that the reasons demonstrate an active intellectual engagement with the issues.
[28]CB 258-259.
[29]CB 260.
Senior counsel for O’Brien Glass submitted that the Panel had failed to properly engage with the material before it, or with the question of whether Ms Pisani’s employment with O’Brien Glass was a significant contributing factor to the recurrence of her soft tissue injury. The Panel’s reasons only recorded a very limited history of Ms Pisani’s symptoms, compared with what material was before the Panel prior to the Panel’s examination of Ms Pisani. There was no discussion in the reasons concerning the probable development of the injury had Ms Pisani not performed the tasks she did while employed by O’Brien Glass.
In response, senior counsel for Ms Pisani noted that the written submissions provided to the Panel by both O’Brien Glass and the former employer referred in some detail to various occasions between 2008 and Ms Pisani’s employment with the former employer where it was alleged (and medical material in support of this contention was referred to) that Ms Pisani had experienced similar symptoms as those suffered by her during her employment with O’Brien Glass and the former employer, such that these matters were squarely before the Panel.
Senior counsel for Ms Pisani submitted that the Panel had expressly stated that it had considered the submissions made by O’Brien Glass and the former employer. The Panel undertook a detailed examination of Ms Pisani, and questioned her about issues of her prior medical history. Relying upon the decision of Cavanough J in Vellios,[30] it was submitted that the Panel was not required to address with Ms Pisani, nor mention in its reasons, every matter concerning Ms Pisani’s medical history raised in the parties’ submissions. The Panel relied upon the history provided by Ms Pisani that immediately prior to her employment with the former employer she had no problems with her hands, and stated that it could rely upon the history provided by her. Accordingly, it was submitted, the Panel clearly turned its mind to Ms Pisani’s prior medical history.
[30][2014] VSC 664, [79].
Senior counsel for Ms Pisani relied upon the decisions of J Forrest J in Clarke v National Mutual Life Insurance Ltd & Ors,[31] and Beach J in Ventrice v Riva Plaster Pty Ltd and Ors[32] (‘Ventrice‘) in support of the following propositions:
[31][2007] VSC 341, [11].
[32][2008] VSC 415.
(a) the findings of the Panel need to be viewed in the light of the fact that the Panel is an expert tribunal whose members are chosen for their experience;
(b) it can be assumed that the members of a Panel are well and truly familiar with the relevant provisions of the Act, including the matters listed in the definition of ‘significant contributing factor’; and
(c) in circumstances where the Panel had not made express reference to the relevant factors, the Panel should be given the benefit of the doubt with respect to whether it considered all of the relevant factors specified in s 5(1B) of the Act.
It was submitted on behalf of Ms Pisani that, in the current case, the Panel had clearly considered the matters in sub‑paragraphs (a) to (d) of s 5(1B) of the Act, and there was no material before the Panel which indicated that the remaining sub-paragraphs were relevant. It was submitted that (omitting citations):
The Panel is not required to slavishly list and discuss each matter in the definition of ‘significant contributing factor’ in its Reasons, regardless of whether it considers a particular matter to be of relevance, and regardless of whether a party has drawn its attention to that matter through submissions or the referral of medical material. Such a requirement would not be concordant with the accepted Wingfoot standard. Further, the Panel is not required to specifically list statutory definitions or state that a statutory provision has been complied with.
In relation to sub‑paragraph (e), where senior counsel for O’Brien Glass had pointed to a progress note from the medical records provided to the Panel to the effect that Ms Pisani had reported always having cold hands and there being a similar problem in the family, he submitted there was no material before this Court to indicate this was a mandatory relevant consideration, or any material concerning what hereditary condition might be indicated by Ms Pisani reporting cold hands. Further, O’Brien Glass made no reference in its submissions to the Panel concerning the existence of any hereditary condition, to lifestyle matters, or activities outside the workplace.
Were the Panel’s reasons adequate?
As noted above, to some extent, the question of whether the Panel’s reasons were adequate is tied up with the substantive issues in the proceeding. By way of example, senior counsel for O’Brien Glass submitted that the reasons were inadequate to explain how the Panel found that Ms Pisani’s soft tissue injury, which had fully resolved by 10 October 2013, was capable of recurrence, and capable of resulting in an incapacity for work after that date. It was submitted that the reasons did not demonstrate whether the Panel had actively engaged with the issue of whether the mere existence of a risk of recurrence amounted to incapacity. Alternatively, the reasons were insufficient to enable the Court to understand how the existence of that risk of re‑injury was determinative of the Panel’s finding of incapacity. The reasons were also insufficient to allow this Court to ascertain whether the Panel had regard to the mandatory relevant considerations, being the factors set out in s 5(1B) of the Act. Finally, the reasons did not disclose the Panel’s path of reasoning, or how and why the Panel reached the opinion that it reached.
Senior counsel for Ms Pisani rejected the contention that the reasons were inadequate, and the contention of O’Brien Glass that the Panel must explain ‘how and why’ it reached its opinion. Rather, the content of the obligation to give reasons is to be found in the decision of the High Court in Wingfoot.[33] The Panel needs to explain what material it had recourse to, and what considerations it had regard to. It is established law that a medical panel is not required to produce reasons of a judicial standard, and the reasons ought not be subject to overzealous scrutiny. The reasons are sufficient to convey that the Panel was cognisant of, and had regard to, the mandatory relevant considerations.
[33](2013) 252 CLR 480.
Analysis and Conclusions
In my view, it is sufficiently clear from the reasons that the Panel formed the view that, by reason of the injury sustained by Ms Pisani in the course of her employment with O’Brien Glass, which itself was a recurrence of a previous soft tissue injury, there was a sufficient risk of recurrence of that injury, even after it resolved, to give rise to a residual incapacity capable of being found as ‘resulting from’ her employment with O’Brien Glass. I agree with the submissions advanced on behalf of Ms Pisani that it was open for the Panel to make that finding in performing the task assigned to it by the legislature, and that the contention that incapacity can only result from a subsisting injury or underlying condition, or a likelihood of recurrence which is likely or probable, amounts to an impermissible gloss on the statute and the authorities. Further, I agree that this Court must be wary of acceding to submissions which seek to ‘cherry pick’ findings of fact by other courts in other cases in a manner which seeks to elevate those findings to principles of law.
It is apparent from the authorities, most recently the decision of the Court of Appeal in Richter v Driscoll,[34] that while there must be a causal nexus between an injury and incapacity for work, there need not necessarily be a temporal nexus between that injury and the resulting incapacity. One might expect that there usually would be, but no requirement of such a temporal nexus is discernible from the authorities. Indeed, the fact that a number of decisions relied upon by both parties consider whether a greater susceptibility to re‑injury, or a risk of recurrence of an injury, or a risk of recurrence of symptoms of an underlying condition can result in an incapacity for work suggests that there is no such requirement.
[34][2016] VSCA 142.
This proposition receives further support from the decision in Re Wakep Pty Limited (in liquidation) v Pertti Kattelus (‘Kattelus’),[35] which analysed the decision in Asioty[36] as follows (omitting citations and emphasis added):
The remaining point, as to what it is that constitutes the causal relationship between the compensable injury and the continuing incapacity, is one which was expressed by his Honour in terms of the reasoning of Toohey J, with whose judgment all of the other members of the High Court agreed in Asioty’s Case. Asioty was a case concerned with disease, and it would appear that Kelly J has dealt with this case as a case of injury, although he does from time to time make reference to disease. Asioty is really concerned with two quite different questions. In the first case, Toohey J was concerned to identify precisely what it was that could be described as aggravation, and with that Kelly J was not, for present purposes, concerned. The second question is the one that he was concerned with, and we are concerned with. The question may be put in this way: do you show incapacity for work by injury by showing that, as a result of physiological events consequent only upon the injury, the worker is in such a condition that if he returns to work he will produce symptoms of sufficient gravity to make it impossible for him to continue? This worker, like Asioty, was – at any rate, while he abstained from heavy physical work- not in any real sense unable to work, if you think of work in the abstract. But Kelly J was able to conclude upon evidence, to some of which Wilcox J has referred, that once he went back to the kind of work that he was qualified to do, the only kind of work he was likely to be able to get, he would suffer pain, and that the cause of that pain was the injury, in the sense that the injury had enhanced and increased his susceptibility to disabling pain in consequence of work of that kind. It seems to me that the reasoning in Asioty’s Case is authority for the conclusion that that is sufficient to show entitlement to worker’s compensation. It may mean no more than what is said when the doctor says, as Wilcox J quoted from the evidence, ‘I told him not to go back to work.’ Not that he could not pick up the jackhammer and start using it. He was not incapacitated in that sense, but he was incapacitated in the sense that the opinion of the medical witness – and accepted by the court – is that once he did so, the incapacitating pain would occur and that he was brought to that point by the injury. And in that sense the injury did something which it is to be supposed, if one accepts this reasoning, the underlying condition upon which the injury operated would not have done.
[35][1990] FCA 435, [4].
[36](1989) 167 CLR 533.
Of course, in Kattelus,[37] there was an underlying physical condition that the Court found would be aggravated by a return to work. But the discussion above illustrates the very real distinction between ‘injury’ and ‘incapacity’, and that a risk of recurrence of pain is sufficient to ground a finding of incapacity.
[37][1990] FCA 435.
In Caldipp Pty Limited t/as Slaven Motors v Delov (‘Caldipp’),[38] the Full Court of the Federal Court rejected the contention that the analysis in Asioty[39] limited the liability of an employer to circumstances where the employment had enhanced the worker’s susceptibility to suffer the symptoms of an underlying disease.[40] Further, the Court found, in relation to the questions of how the relevant injury is to be characterised:[41]
It is not merely the pain and fatigue that constitutes incapacity, it is the continuing susceptibility to these symptoms. That incapacity was itself the result, even if arising from an underlying pathology and whether or not it would have arisen otherwise than in a work context, of the employment.
[38][2002] FCAFC 352.
[39](1989) 167 CLR 533.
[40]Ibid [30].
[41]Ibid [62].
Of course, Caldipp[42] was also a case where the worker had an underlying condition, and as such, provides some support for O’Brien Glass’ contention that there must be an underlying condition for there to be incapacity. However, here the Court was grappling with the question of what was the nature of the injury causing incapacity: the symptoms themselves, or the susceptibility of the worker to experience those symptoms in the work environment. In the current case, I doubt whether it matters whether the susceptibility to further injury arises from an underlying condition, or, as found by the Panel in the current case, a history of recurrence of injury.
[42][2002] FCAFC 352.
Further, while I accept the primary contention advanced on behalf of Ms Pisani, being that the terms of the Act impose no requirement for the relevant injury to be subsisting for there to be incapacity, and the question of incapacity is a matter which is solely within the ambit of the Panel’s responsibilities, I agree that to the extent that support from authority is required, the decision in Calleja[43] supports the proposition advanced on behalf of Ms Pisani that a worker may have a continuing compensable injury and an associated incapacity for work, notwithstanding that the medical condition which caused the injury had resolved. Indeed, the authorities referred to by the parties, including Calleja,[44] Asioty,[45] Caldipp[46] and Kattelus,[47] seem to me to all be examples of the application of the principle laid down in Ball v William Hunt & Sons[48] and other earlier authorities to the effect that incapacity is concerned with the economic, rather than the physiological consequences of an employment related injury.
[43][1999] VSC 202.
[44]Ibid.
[45](1989) 167 CLR 533
[46](2002) FCAFC 352.
[47][1990] FCA 435.
[48][1912] AC 496.
O’Brien Glass sought to distinguish the task undertaken by the Panel in the current case from what was required to be considered by the medical panels which were the subject of review in Ryan[49] and Stojilkovic.[50] In those decisions, the medical panels were found to have erred in failing to consider a mandatory relevant consideration, in that they had not considered whether, in returning to work, the relevant workers risked aggravating their underlying physical conditions. In the current case, the Panel did consider whether there was a risk of recurrence by a return to work, and found that there was such a risk, or ‘propensity’. Once one accepts there is no requirement at law that a subsisting injury or permanent underlying condition is a necessary precondition to there being incapacity, the Panel’s findings in that regard are unremarkable. The fact that the workers in Ryan[51] and Stojilkovik[52] had underlying conditions which were required to be taken into account by a medical panel does not lead to a conclusion that there must be an underlying condition in order for there to be incapacity.
[49][2017] VSCA 17.
[50][2017] VSCA 49.
[51][2017] VSCA 17.
[52][2017] VSC 49.
Another decision relied upon by O’Brien Glass in support of its proposition that there must be a persisting injury for there to be incapacity, Clarchet,[53] does not support that proposition. In that case, the questions which the medical panel was required to answer were referable to a finding of an earlier medical panel in respect of a specific soft tissue injury to the neck, which was said in the question referred to the Panel to have resolved. Significantly, the worker agreed to the questions being put forward in a form which, by their terms, almost demanded a determination adverse to the worker, in that they confined the medical panel to considering any impact upon impairment from an injury which had resolved, as found by the earlier medical panel. Unsurprisingly, Macaulay J held the later medical panel to be in error when it assessed the level of impairment arising out of an alleged aggravation of the worker’s cervical spine injury, notwithstanding the finding of the earlier medical panel that the soft tissue injury had no effect on the worker’s spinal condition. In my view, the decision in Clarchet,[54] which concerned rather unusual circumstances, stands for no more than the principle that a medical panel is bound to answer the medical questions referred to it, and cannot go beyond those questions. I cannot discern from the reasons in Clarchet[55] support for an overarching principle that an incapacity cannot result from an injury which has resolved.
[53][2011] VSC 22.
[54]Ibid.
[55]Ibid.
Having accepted that there is no overarching requirement that an employment related injury must be subsisting, or unresolved, for there to be incapacity, provided that the incapacity results from the injury, it was open for the Panel to conclude that, notwithstanding the Panel’s opinion that Ms Pisani’s injuries had resolved, there remained a residual incapacity. While I accept that factual findings of this nature are not completely immune from review, say, for example, on the grounds of unreasonableness or irrationality, the suggestion in this case that the Panel’s findings concerning the risk of recurrence and the resulting impact upon Ms Pisani’s capacity are unreasonable, or grossly illogical or irrational is not supported by the material before the Panel, or the reasons. It may be that a medical panel’s decision of this nature might be found to be unreasonable if the period of residual incapacity was determined to be unreasonably lengthy, or indefinite, or if the risk of recurrence of an injury was negligible, but that is not this case.
As for the question as to whether there is a threshold level of risk of recurrence that must be reached before that risk can give rise to an incapacity, I do not consider the reference in Ryan[56] to it not being a matter for the Court to determine whether it was likely or probable that a return to pre‑injury duties would aggravate the worker’s underlying condition as amounting to laying down an absolute test as to the level of risk required for a finding of incapacity. That was not the question before the Court in Ryan.[57] In any event, I consider that one can read from the reasons a finding on the part of the Panel that the risk of recurrence was real, and not farfetched or fanciful, without needing to amplify or draw strained inferences from what was said by the Panel in the reasons.[58] The Panel stated:
The Panel considered the nature of [O’Brien Glass] Physical Injuries in conjunction with the Plaintiff’s pre-injury employment duties with [O’Brien Glass] which involved lifting, holding, and manoeuvring glass car windows weighing around 20kg. The Panel considered that because this work had significantly contributed to [O’Brien Glass] Physical Injuries, that re-introduction of the same work might cause a recurrence of the same medical condition even though the injuries had resolved by 10 October 2013. The considered that this propensity for re-injury existed from the date of the injury at least up until 21 March 2014.
[56][2017] VSCA 17, [71].
[57]Ibid.
[58]Cf Richter v Driscoll [2016] VSCA 142, [129]-[132].
It is quite clear from the above that, particularly having regard to the natural and ordinary meaning of ‘propensity’,[59] the Panel considered that the risk of recurrence was real, or significant, and possibly likely. I do not equate the concept of ‘propensity’ with a ‘mere possibility’. Rather, the language used by the Panel more closely equates to a finding that Ms Pisani was ‘susceptible’ to injury,[60] which was consistent with the finding of the Court in Kattelus.[61]
[59]The definition of ‘propensity’ in the Macquarie Dictionary (7th Ed) is as follows:[60]The definition of ‘susceptible’ in the Macquarie Dictionary (7th Ed) is as follows:
1.capable of being affected, especially easily; readily impressed; impressionable.
2.accessible or especially liable: susceptible to a disease;
[61][1990] FCA 435.
Turning now to the question of whether the Panel had failed to take into account mandatory relevant considerations, being the matters set out in s 5(1B) of the Act, I agree that the Panel has addressed the matters set out in paragraphs (a) to (d) in the reasons, and that the remaining relevant factors are not material to the Panel’s determination.
In my view, the complaint concerning the question of whether the Panel had actively engaged with the matters set out in s 5(1B) of the Act when considering whether her employment with O’Brien Glass substantially contributed to the recurrence of Ms Pisani’s soft tissue injury is almost completely answered by the following statements in the reasons:
The Panel considered the relationship of the alleged [O’Brien Glass] Physical Injuries to [Ms Pisani’s] employment with [O’Brien Glass]. The Panel noted that [Ms Pisani] said that on 10 April 2012 she had sudden onset of pain in both hands and wrists while holding a windscreen that she said weighed about 20kg. The Panel considered that this incident was probably a recurrence of the soft tissue injuries of the wrists that were sustained during employment with the [first employer].
The Panel accepted [Ms Pisani’s] clear description of the onset of bilateral hand and wrist pain while holding a heavy object while she was at work with [O’Brien Glass] and therefore concluded that [Ms Pisani’s] employment with [O’Brien Glass] on 10 April 2012 was in fact a significant contributing factor to the recurrence of a soft tissue injury of the left wrist, now resolved, and the recurrence of the soft tissue injury of the right wrist, now resolved.
The above statements demonstrate that the Panel considered the matters set out in paragraphs (b), (c) and (d) of the Act, albeit, in the case of (d), indirectly. The reasons show the Panel formed the view that the onset of Ms Pisani’s symptoms while holding a heavy object was an ‘incident’ that was probably a recurrence of the soft tissue injuries sustained during her employment with the former employer. The Panel expressly stated that the incident was a ‘significant contributing factor’ to the recurrence of the injury, which indicates an awareness on the part of the Panel of its statutory responsibilities. Elsewhere in the reasons, the Panel referred to Ms Pisani commencing employment with O’Brien Glass in January 2012, and the nature of her duties in her employment with O’Brien Glass. In any event, I agree with the submissions of senior counsel for O’Brien Glass that the duration of employment is of less significance with a single incident related injury. Further, I consider that the fact that the injury related to a single incident renders the inquiry under sub-paragraph (d) of less significance, once the Panel has accepted that there was a direct causal relationship between what occurred on 10 April 2012 and Ms Pisani’s onset of symptoms of pain. In such circumstances, the Panel is in effect stating that the injury would not have occurred had it not been for Ms Pisani’s employment with O’Brien Glass.
As for (f) and (g), being lifestyle factors and the activities of Ms Pisani outside the workplace, it was not seriously contended that the Panel fell into error in failing to expressly address these matters, and their relevance was not apparent from the materials before the Panel.
As for sub-paragraph (e), while I accept that the issue of whether Ms Pisani had some hereditary condition of the hands is referred to in the materials provided to the Panel, it is difficult to see how a passing reference in a general practitioner’s notes to Ms Pisani always having cold hands, and that being something that was common in her family, could elevate this matter to being a mandatory matter such as to require the Panel to engage with the question of whether that possible hereditary condition could have been causative of Ms Pisani’s ongoing symptoms of pain. In particular, given that neither the former employee or O’Brien Glass referred to this matter in their submissions to the Panel, and also given the reasonably emphatic findings of the Panel concerning the causal link between Ms Pisani’s injury and her employment with O’Brien Glass, I cannot see how the Panel was in error in failing to address this matter in the reasons. There was no material before the Panel, or before this Court, which would indicate any potential causal relationship between having cold hands and the symptoms of pain experienced by Ms Pisani after the incident on 10 April 2012.
As for the submission that the Panel’s reasons are insufficient to provide the Court with confidence that the Panel failed to properly have regard to, or engage with, any mandatory relevant considerations, I note that in Ventrice,[62] a decision which predated Wingfoot,[63] but was not inconsistent with Wingfoot,[64] Beach J stated as follows:[65]
The mere fact that the Panel has not set out the terms of s 5(1B) and made express reference to each of the several matters referred to therein does not entitle this Court to conduct that one or some of those matters were matters that were not properly considered by the Panel. As was said by Pagone J in Davidson v Fish:[66]
The reason for the omission of some fact, issue or submission may be clear from the circumstances of the case without the need for all of the facts, issues and submissions to be dealt with specifically and expressly.
[62][2008] VSC 415.
[63](2013) 252 CLR 480.
[64]Ibid.
[65]Ibid [20].
[66][2008] VSC 32, [12].
In the current case, in order for me to form the view that the Panel had failed in its task in failing to address sub-paragraph (e) there would need to be more material before me (and probably the Panel) as to why any such reported hereditary condition could have provided a cogent alternative explanation for Ms Pisani’s symptoms, particularly given that the Panel clearly accepted Ms Pisani’s version of events, as shown by the following extract of the reasons:
The Panel is of the opinion, based upon its interviews with the Plaintiff that it could rely on the history provided by her in conjunction with the other material available and the examination findings in order to reach its conclusions. The Panel also considered the submissions made on behalf of the Plaintiff and the Defendant and took into account the opinions of the Plaintiff’s treating doctors and doctors who have assessed the Plaintiff prior to reaching its conclusions. The Panel noted differing opinions in relation to causation of the Plaintiff’s symptoms and the appropriateness or otherwise of different treatment options in the documentation included with the referral which the Panel reviewed and considered when forming its own opinion in relation to the specific medical questions.
Another of O’Brien Glass’ complaints is that the reasons only refer to a limited part of Ms Pisani’s medical history prior to her employment with the first employer. There is a brief reference in the reasons to an incident in 2008 when she injured her right arm and hand when climbing over a fence with a dog. The written submissions itemised a number of matters which were referred to in the submissions provided by O’Brien Glass and the former employer to the Panel, which were not addressed at all in the reasons.
However, the authorities establish that it is not necessary to refer to and deal with each and every submission made by a party to a medical panel.[67] It is noteworthy that, save for a reference in the submissions to ‘a history as to the onset of symptoms in early 2011’, each of the incidents referred to in the submissions concerned an injury to a single limb, not bilateral symptoms. The reasons show that the Panel reviewed the nerve conduction study conducted in 2009, so it must have been aware of the earlier investigations. In any event, any deficiencies in the level of the detail of the reasons is overcome by the statement of the Panel that it was
of the opinion, based upon its interviews with [Ms Pisani] that it could rely on the history provided by her …
[67]See, for example, Vellios.
That is, the Panel considered Ms Pisani to be a credible and reliable historian. Therefore, one can assume that the Panel believed Ms Pisani when she said that immediately prior to her employment with the first employer, she had no problems with her hands. She described the incident with the dog in 2008, and told the Panel that the injury had resolved within three weeks. Again, I can assume that the Panel believed Ms Pisani’s version of events.
Accordingly, there was no deficiency in the Panel’s reasoning which would cause me concern as to whether the Panel had properly discharged its statutory function. Indeed, once it is accepted that the reasons demonstrate that the Panel has not fallen into error on the substantive grounds advanced on behalf of O’Brien Glass, any remaining debate concerning the adequacy of the reasons is a somewhat arid debate. As observed by Cavanough J, in Pearce v Lloyd:[68]
A Medical Panel’s statement of reasons must set out the ‘actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.’ It must be ‘adequate to enable a court to see whether the opinion does or does not involve any error of law.’ The statement is to contain ‘medical reasons in sufficient detail, only in sufficient detail, to show the court and the worker[69] that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ knowledge and experience.
[68][2016] VSC 806, [60], referred to with approval by J Forrest J in Karabinis v Bendrups & Ors [2017] VSC 648.
[69]Here, the applicable audience is the employer.
In my view, the reasons are unremarkable, and adequate. The reasons set out the agreed facts, and provided a reasonably detailed summary of the history provided to the Panel by Ms Pisani (which the Panel said it accepted). This summary ran for three densely typed pages, and set out the history in an orderly fashion. The Panel then recorded the results of its own investigations, and imaging and other investigation reports such as nerve conduction studies, and concluded that the Panel was unable to identify any objective evidence of any ‘ongoing physical injury/pathology’. The reasons then went on to report upon its psychiatric assessment and mental state examination of Ms Pisani, and its conclusions. No deficiencies were alleged, or could be found, with these aspects of the Panel’s reasons.
The focus of O’Brien Glass’ complaint with respect to the six paragraphs of the reasons concerning the relationship between Ms Pisani’s injury, and consequential incapacity for employment, and Ms Pisano’s employment with O’Brien Glass. As noted above, the reasons are sufficient to enable me to conclude that the Panel has not fallen into jurisdictional error. The question remains: do the reasons adequately disclose the Panel’s path of reasoning, having in mind the authorities which state that the reasons of a medical panel are not to be subject to overzealous scrutiny,[70] and that a medical panel is not required to address why it rejected alternative hypotheses which might explain Ms Pisani’s presentation and history?[71]
[70]Gruma Oceania Pty Ltd v Bakar ]2014] VSCA 252.
[71]Wingfoot, [47].
In my view, they do. The Panel expressly stated that it considered the relationship between Ms Pisani’s injuries and her employment with O’Brien Glass. The Panel stated that it accepted Ms Pisani’s description as to what occurred on 10 April 2012, and concluded that her employment was therefore a significant contributing factor to the injury, which, based upon the natural course of such injuries, and the imaging results, had resolved by 10 October 2013. The Panel considered the nature of Ms Pisani’s pre‑injury duties with O’Brien Glass, and said it had formed the view that reintroduction of the same work might cause a recurrence of the ‘same medical condition’ at least up until 21 March 2014, and concluded she had an incapacity for work up until that time.
Again, these paragraphs of the reasons are unremarkable. The reasons disclose what the Panel relied upon when forming its opinions both as to the cause of Ms Pisani’s injury, and the fact that the risk of recurrence resulted in an ongoing incapacity for work for a period of time after the injury had resolved. The Panel’s path of reasoning is succinctly, but more than adequately exposed. To make a finding in the current case that the Panel’s reasons are inadequate, or so inadequate that judicial intervention is warranted, would impose a standard more akin to a judicial standard, rather than a standard consistent with the requirements imposed by the High Court in Wingfoot.[72]
[72]Ibid.
Accordingly, I will dismiss the proceeding.
SCHEDULE OF PARTIES
S CI 2017 01574
O’BRIEN GLASS INDUSTRIES LTD Plaintiff - and - LISA MARY PISANI First Defendant A/PROF LYNDEN ROBERTS Second Defendant A/PROF PETER GIBBONS Third Defendant DR DIANE NEILL Fourth Defendant DR JOHN CRONIN Fifth Defendant DR JOHN KING Sixth Defendant
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1. natural or habitual inclination or tendency: a propensity to find fault
2. favourable disposition or partiality.
5
13
0