Omerasevic v Kotzman

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 06893

SMAJL OMERASEVIC	Plaintiff
v
DR DAVID KOTZMAN AND OTHERS	Defendants

---

JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 JUNE 2016
DATE OF JUDGMENT:	22 JULY 2016
CASE MAY BE CITED AS:	OMERASEVIC V KOTZMAN
MEDIUM NEUTRAL CITATION:	[2016] VSC 383

---

ADMINISTRATIVE LAW – Judicial review – Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 56 – Accident Compensation Act 1985 (Vic) – Workplace Injury Rehabilitation and Compensation Act2013 (Vic) - Whether the misinterpretation of the plaintiff’s work duties to the medical panel resulted in a denial of procedural fairness – Whether the medical panel’s reasons were adequate - Whether the medical panel failed to take into account relevant matters – Whether a failure of the medical panel to have regard to certain matters could constitute jurisdictional error – The circumstances in which a failure of the medical panel to have regard to a worker’s answers or referral material could constitute jurisdictional error discussed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms M Schilling	Zaparas Lawyers
For the Respondents	Mr M Fleming QC Mr R Kumar	Minter Ellison

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The relevant facts............................................................................................................................... 1

Questions referred to the Medical Panel................................................................................... 3
Statutory regime............................................................................................................................ 4
The plaintiff’s submissions to the Medical Panel.................................................................... 6
The defendants’ submissions to the Medical Panel................................................................ 8

Reasons of the Medical Panel.......................................................................................................... 8

Carpal tunnel syndrome.............................................................................................................. 8
History................................................................................................................................... 8
Examination........................................................................................................................ 11
Opinion............................................................................................................................... 11

Injuries to the spine.................................................................................................................... 12
History................................................................................................................................. 12
Examination........................................................................................................................ 13
Opinion............................................................................................................................... 14

Grounds of appeal in respect of the carpal tunnel syndrome................................................. 14

The misinterpretation of the plaintiff’s work duties by the interpreter............................. 15
Breach of the hearing rule.......................................................................................................... 18
Plaintiff’s submissions...................................................................................................... 18
Defendants’ submissions.................................................................................................. 19
Authorities with respect to whether misinterpretation breaches the hearing rule. 20
Conclusion on breach of the hearing rule...................................................................... 22

Did the misinterpretation cause jurisdictional error?........................................................... 24

Grounds of appeal in respect of injuries to the plaintiff’s spine............................................ 25

Inadequate reasons..................................................................................................................... 25
Plaintiff’s submissions...................................................................................................... 25
Defendants’ submissions.................................................................................................. 26
Conclusion on adequacy of reasons............................................................................... 27

Jurisdictional error - failing to take into account a mandatory relevant consideration... 30
Plaintiff’s submissions...................................................................................................... 31
Defendants’ submissions.................................................................................................. 32
Authorities with respect to jurisdictional error............................................................ 32
Conclusion on failing to take into consideration a mandatory relevant consideration 39
Did the medical panel fail to take the Continuing Symptoms Evidence into account? 40
Would failure to have regard to the Continuing Symptoms Evidence constitute jurisdictional error?............................................................................. 41

Jurisdictional error - ignoring relevant material.................................................................... 42

Relief................................................................................................................................................... 42

Introduction

By second amended originating motion filed pursuant to leave granted on 20 June 2016, the plaintiff seeks an order in the nature of certiorari quashing the certificate of opinion of a Medical Panel (‘the Medical Panel’) dated 4 November 2014 which responded to a number of questions referred by the County Court under s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act2013 (‘the WIRC Act’) in respect of the plaintiff’s claim for compensation under the Accident Compensation Act 1985 (‘the AC Act’) for both physical and psychological injuries allegedly suffered as a result of his employment.

The first, second, third and fourth defendants constituted the Medical Panel. The fifth defendant, Carson Finishing Pty Ltd, was the plaintiff’s employer; and the sixth defendant, QBE Workers’ Compensation Ltd (Vic), is the employer’s insurer. Only the fifth and sixth defendants were represented and I will refer to them collectively in these reasons as ‘the defendants’.

The relevant facts

The following facts are not disputed:

(a) The plaintiff was born on 9 June 1954.
(b)The plaintiff commenced employment with Carson Finishing Pty Ltd in November 2001 as a factory worker.
(c)The plaintiff’s work as described in the notice of particulars pursuant to s 304 of the WIRC Act was as follows:
The plaintiff’s work involved the assembly of cardboard sheets to make boxes and also the stripping of the rubbish, or off-cuts, manually from the cardboard that was cut away in the process. The plaintiff would lift and assemble about 1 tonne of cardboard per day. The plaintiff’s duties also included the loading of paper into printers for laminating and unloading the finished product. This work included the manual lifting of significant weights on a repetitive basis.

(d) The plaintiff ceased work with the employer on 23 December 2010.
(e)On 20 January 2011, the plaintiff underwent a right hand carpal tunnel decompression procedure performed by a hand surgeon, Mr Anthony Berger.
(f)On 3 March 2011, the plaintiff completed a worker’s injury claim form claiming weekly compensation payments and medical and like expenses in respect of an injury to both hands, wrists and arms under ss 93 and 99 of the AC Act. By notice dated 31 March 2011, the plaintiff’s claim was rejected.
(h)On 30 November 2011, the plaintiff completed a second worker’s injury claim form claiming weekly compensation payments and medical and like expenses under ss 93 and 99 of the AC Act for injuries to the spine including the lumbar spine, thoracic spine and cervical spine. By notice dated 3 January 2012, the plaintiff’s claim was rejected.
(j)On 24 April 2012, the plaintiff completed a third worker’s injury claim form claiming impairment benefits under ss 98C and/or 98E of the AC Act in respect of injuries to the spine, an injury to the right and left upper extremities; and a psychological injury. By notice dated 5 July 2012, the plaintiff’s claim was rejected.
(k)In July 2012, the plaintiff underwent a second carpal tunnel decompression procedure performed by Mr Berger, this time to his left hand.
(l)On 6 May 2013, the plaintiff filed a writ claiming declarations of entitlement to weekly compensation payments and medical and like expenses pursuant to ss 93 and 99 of the AC Act; and a declaration that he had sustained injuries pursuant to ss 98C and/or 98E.
(m)On 17 January 2014, the plaintiff underwent a repeat carpal tunnel decompression procedure to his left hand.
(n)On 14 August 2015, pursuant to s 274 of the WIRC Act, the County Court referred certain questions to the Medical Panel.
(o)On 4 November 2014, the Medical Panel delivered its certificate of opinion and written statement of reasons for that opinion (‘Reasons’).

Questions referred to the Medical Panel

The questions referred to the Medical Panel and the answers provided in the Medical Panel’s certificate of opinion dated 4 November 2014 were as follows:

Question 1:What is the nature of the Plaintiff’s medical condition of the Plaintiff’s:
(a)left upper extremity, in particular the left arm, wrist and hand (carpal tunnel);
(b)right upper extremity, in particular the right arm, wrist and hand (carpal tunnel);
(c)spine, in particular the cervical spine, thoracic spine and lumbar spine;
(d)mental and behavioural system, including but not limited to anxiety and depression;

(hereinafter referred to as ‘the said injuries’)?

Answer:In the Panel’s opinion, the Plaintiff is suffering from mild persisting dysfunction to the left and right hand, as a consequence of bilateral carpal tunnel syndrome, treated surgically, mild persisting low back dysfunction, as a consequence of lumbar spondylosis, and from a chronic adjustment disorder with mixed anxiety and depressed mood.
Question 2:Was the Plaintiff's employment with the Defendant in fact a significant contributing factor to any and, if so which, of the said injuries?
Answer:The panel is of the opinion that the Plaintiff’s employment was not in fact a significant contributing factor to any of the said injuries or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the arms, wrists and hands (carpal tunnel), cervical spine, thoracic spine and lumbar spine or mental and behavioural system, in any way.
Question 3:Does the Plaintiff have any incapacity for work as a result from or is any incapacity for work materially contributed to by any and, if so which, of the said injuries?
Answer:In the Panel’s opinion, the Plaintiff’s incapacity for work does not result from and is not materially contributed to by any of the said injuries.
Question 4:Does the Plaintiff have a current work capacity having regard to the definition of ’current work capacity’ in s.5 of the Accident Compensation Act?
Answer:The Panel is of the opinion that the worker has no present inability arising from an injury, such that he is not able to return to work, either in his pre-injury employment or in suitable employment.
Question 5:If no to Question 4 hereof, is the Plaintiff likely to continue indefinitely to have ‘no current work capacity’ having regard to the definition of ‘no current work capacity’ in s.5 of the said Act?
Answer:Not applicable.

Statutory regime

At the relevant time, s 82 of the AC Act provided:

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.

The plaintiff claims that he sustained injury within the meaning of the AC Act, and accordingly, pursuant to s 82 he is entitled to compensation in the form of weekly payments and medical and like expenses under ss 93 and 99. He also claims to be entitled to compensation in the form of impairment benefits pursuant to ss 98C and/or 98E of the AC Act.

Section 82(2C)(c) of the AC Act provided that there is no entitlement to compensation in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration (‘aggravation’) of any pre-existing injury unless the worker’s employment was a significant contributing factor to the injury. In determining whether a worker’s employment was a significant contributing factor to an injury the following matters must be taken into account:

(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...[1]

[1]AC Act s 5(1B). Note that s 4(2)(a) of the WIRC Act adopts a substantially identical definition of ‘significant contributing factor’ in sch 1 pt 3 cl 25 of the WIRC Act.

Section 98C(1) of the AC Act provided that a worker who suffered a compensable injury is entitled to weekly compensation payments if the injury results in a permanent impairment.

The compensation provisions of the WIRC Act do not apply to the plaintiff’s claim because the injury occurred prior to 1 July 2014.[2] However, the dispute resolution provisions in Part 6 of the WIRC Act do apply to disputes and claims under the AC Act whether made before or after 1 July 2014.[3]
[2]WIRC Act s 5.
[3]Ibid s 6(6)(b).

Pursuant to s 274(1) of the WIRC Act, a court may refer a medical question to a medical panel for an opinion under Division 3 of that Act.

Under Division 3, the function of a medical panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment.[4] A medical panel is not bound by rules or practices as to evidence, but may inform itself of any matter relating to a reference in any manner it thinks fit; and must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.[5]
[4]Ibid s 302.
[5]Ibid s 303.

The medical panel is entitled to require any worker to submit for examination by the medical panel.[6] The Convenor of the medical panels may give directions as to the arrangement of the business of the medical panels.[7] The directions relevant to the present dispute include the following:

24. The Convenor will arrange examinations by a Medical Panel as are considered appropriate. The Convenor will also arrange for professional interpreter services when required or requested by the worker, and, where necessary, for a chaperone to be present during examinations.
27. The [WIRC] Act provides that a worker's attendance for examination must be in private, unless the Medical Panel considers that it is necessary for another person to be present. If a worker is a minor or a person under a disability, the Panel must permit a representative of the worker to be present. In an examination (other than a psychiatric examination), the Convenor will provide for a chaperone from the Office of the Convenor to be present as necessary. In any examination, a Panel may allow a person such as a family member or friend to attend during an examination to support the worker, but any such person will not be allowed to speak on the worker's behalf or act as an interpreter. The Panel can require that a person leaves the examination if the Panel considers he/she is intruding into or obstructing the examination.[8]

[6]Ibid.

[7]Ibid s 303(6).

[8]Convenor's Directions as to The Arrangement of Business of Medical Panels (Workplace Injury Rehabilitation and Compensation Act 2013) 2014 (footnotes omitted).

A medical panel is bound to observe the rules of procedural fairness,[9] including the 'hearing rule' as articulated in Kioa v West.[10] It must give a certificate as to its opinion and a written statement of reasons for that opinion.[11] The opinion of a medical panel must be accepted as final and conclusive.[12]
[9]Masters v McCubbery [1996] 1 VR 635, 644 (Winneke P), 658 (Callaway JA).
[10](1985) 159 CLR 550.
[11]WIRC Act s 313(2).
[12]Ibid s 313(4)(b).

The plaintiff’s submissions to the Medical Panel

The plaintiff’s submissions to the Medical Panel described the plaintiff’s work duties as set out in the notice of particulars pursuant to s 304, referred to in paragraph [3(c)] above, except in the last sentence it added the underlined words:

This work was heavy, repetitive and forceful and included the manual lifting of significant weights on a repetitive basis.

For the purposes of establishing the causal connection between the plaintiff’s injuries and his employment, the plaintiff’s written submissions referred to the detailed history contained in a report of Dr David Middleton, a treating general practitioner, dated 30 April 2011 which stated as follows:

Mr Omerasevic stated that each morning the manager would inform the workers of what needed to be produced for the day. Having been told the sheets to be worked on that day, he would go to the warehouse, where pallets had been left to collect, one pallet at a time. These were loaded with the sheets of material that he was supposed to work on and the loaded pallets would weigh between 1000 and 2500kg (1 to 2.5 Tonnes). The pallets would be moved using a pallet jack, which he would have to push and pull to his workstation. His workstation is a huge table, where two other people also work. Depending on the size of the sheet, Mr Omerasevic would need to bend and lift a significant amount (approximately 20-40kg) of sheets from the pallet and place them on the table and then strip them. If the sheets were too big, the workers would have to work directly from the pallet, which would start at a height of around 1.3m and involve a fixed and repetitive lumbar flexion lifting and twisting, the depth of which which (sic) would increase as the pallets were unloaded. Mr Omerasevic states that towards the end of a pallet he basically had to kneel on his knees in order to complete a pallet. When the pallet was completed, he would then commence by hand to lift, rip and pull apart 20kg of sheets up to 100 times per 1000kg pallet. This process would need to be repeated 10-12 times (pallets) a day depending upon the sheet size.

The submissions also made reference to part of an earlier report of Dr Middleton dated 9 January 2014 which stated:

[It] is a highly manually dependant job involving repetitive and forceful gripping with both hands, repetitive and heavy lifting with prolonged fixed, forward flexion to lift each individual sheet of material covering up to 2.5 tonnes of material in each day, six days per week.

Further, the submissions paraphrased a report of the plaintiff’s treating hand surgeon, Mr Berger, dated 15 July 2014. The relevant part of that report stated follows:

Thank you for your letter dated 11 July 2014 and the enclosed medical reports from Dr Middleton dated 9 January 2014 and 30 April 2011. Carpal tunnel compression is often a constitutional condition caused by increasing pressure within the carpal tunnel. Although some well defined specific causes for carpal tunnel have been identified, the vast majority of carpal tunnel compressions are idiopathic, that is no specific cause can be identified. Clinical and laboratory studies however have shown that power grip and wrist flexion increase the pressure within the carpal tunnel. Repetitive heavy lifting and gripping also results in thickening of the synovial tissue within the carpal tunnel thus increasing the volume of tissue within the tunnel and subsequently the pressure. I believe therefore that occupations that involve heavy and repetitive gripping and wrist flexion over a prolonged period of time may aggravate or accelerate a pre-existing or underlying tendency to develop carpal tunnel compression. The job description as outlined in detail by Dr David Middleton, I believe, would therefore qualify as a contributing factor to the development of the carpal tunnel compression in Mr Omerasevic.

The defendants’ submissions to the Medical Panel

The defendants’ submissions referred to material that it alleged showed that the plaintiff was in fact pursuing a long-term project to cease working and to commence to receive some form of income benefit based upon some form of medical condition. The submissions relied upon reports from Dr Gary Davison, occupational physician, and Mr Peter Battlay, general surgeon, to the effect that the plaintiff’s employment was not a significant contributing factor to his carpal tunnel syndrome or back condition.

Reasons of the Medical Panel

The Medical Panel considered each of the injuries alleged in the particulars of injury in the statement of claim; and relevantly to this application:

(a) carpal tunnel syndrome in both hands; and
(b) injuries to the cervical spine, thoracic spine and lumbar spine.
Carpal tunnel syndrome

With respect to the alleged carpal tunnel syndrome, I summarise the Medical Panel’s findings with respect to history, examination and opinion as follows:

History

The Medical Panel noted the following history:

(a) The plaintiff was employed by the employer as a factory worker from November 2001.

(b) The Medical Panel noted the plaintiff’s description of his work as follows:

The worker described to the Panel his pre-injury employment, which involved the manual stripping of off-cuts from cardboard box blanks. He said that this task involved lifting stack of cardboard box blanks, about 8 cm thick, from a pallet onto a workbench, hitting the off-cuts with a hammer held in the right hand, to strip them from the box blank, whilst holding down the stack of blanks with his left hand, with his wrist extended. He was unsure how many sheets were in each stack. The Panel noted that it is agreed the worker would lift and process about 1 tonne of cardboard per day.

(c) The plaintiff said that he first noticed symptoms of carpal tunnel syndrome in 2009 when he observed numbness in the fingers of both hands, particularly at night and when driving. However, the Medical Panel noted the following evidence of earlier complaints of carpal tunnel symptoms:

(i) On 25 May 2000, Dr Vesna Levar, a general practitioner, provided the plaintiff with a referral to a rheumatologist noting complaints of ‘night paraesthesia hands’ and a diagnosis of ‘carpal tunnel’.

(ii) On 17 January 2001, the plaintiff was examined by Dr Alex Stockman, a rheumatologist, who noted that the plaintiff complained of ‘occasional paraesthesia and numbness in the fingers of the left hand’; and concluded that ‘he may well have mild left carpal tunnel syndrome’.

(d) The plaintiff told the Medical Panel that he did not make the above complaints and ‘he could not understand how such references came about’.[13]
[13]Reasons 4.

(e) On 17 September 2010, the plaintiff’s general practitioner noted complaints of numbness in the lateral three digits of both hands.

(f) On 1 October 2010, nerve conduction studies showed bilateral carpal tunnel syndrome, which was ‘worse on the right’.[14] He was placed on a public waiting list for a right carpal tunnel decompression procedure.
[14]Ibid 5.

(g) The plaintiff ceased work on 23 December 2010.

(h) On 20 January 2011, the plaintiff underwent a surgical right carpal tunnel decompression. The plaintiff told the Medical Panel that, after the surgery, there was an improvement in the numbness in his right hand after the surgery.

(i) On 3 March 2011, the plaintiff submitted a claim for compensation for an injury to both hands, wrists and arms, which was rejected by notice dated 31 March 2011.

(j) On 30 September 2011, repeat nerve conduction studies showed no evidence of persisting right carpal tunnel syndrome. However, further studies on 25 May 2012 showed a recurrence of right carpal tunnel syndrome with persisting left carpal tunnel syndrome.

(k) On 26 June 2012, the plaintiff underwent a left carpal tunnel decompression and he told the Medical Panel that, after the surgery, there was an improvement in the numbness in his left hand.

(l) On 5 December 2012, the plaintiff consulted a specialist hand surgeon who recommended further surgery on the left wrist. The Medical Panel noted that on 11 December 2012, there was an MRI scan of the right wrist which demonstrated the presence of a ganglion in the carpal tunnel. The plaintiff said he was treated with an ultrasound-guided corticosteroid injection.

(m) On 17 January 2014, the plaintiff underwent a repeat surgical left carpal tunnel decompression and he told the Medical Panel that his hands were ‘feeling better’.

With respect to his current condition, the Medical Panel noted the following:

(a) The plaintiff suffers from diabetes.

(b) The plaintiff has a ‘lot less’ numbness in the left hand.

(c) The plaintiff sometimes has numbness in the thumb, index and middle fingers and at other times the ring and little fingers in the right hand.

(d)The plaintiff says that he frequently drops things held in his left hand. He says he has pain in his left cubital fossa when he bends his left arm in bed at night and has occasional pain in the left shoulder.
(e)The plaintiff complains of constant pain in the thenar and hypothenar eminences of both hands but it is ‘worse on the left’.

Examination

On physical examination the Medical Panel noted the following:

(a) The plaintiff had a full range and motion in the shoulders and elbows.

(b) There is scarring consistent with previous bilateral carpal tunnel surgical decompressions.

(c) The plaintiff has a normal range of motion in the wrists.

(d) There is no persisting medial nerve dysfunction of the hands.

The Medical Panel reviewed the MRI scan of the right wrist dated 11 December 2012 which reported a ganglion in the right carpal tunnel.

Opinion

The Medical Panel’s opinion was that the plaintiff suffered from a mild persisting dysfunction as a consequence of bilateral carpal tunnel syndrome (together with surgical scarring).

The Medical Panel concluded that the plaintiff’s bilateral carpal tunnel syndrome was pre-existing and his work did not affect the pre-existing bilateral carpal tunnel condition for the following reasons:

(a)The documented history of symptoms consistent with carpal tunnel syndrome in 2000 and 2001, prior to commencing work with the employer in late 2001.
(b)The nature of the plaintiff’s work duties ‘which involved repetitive lifting of stacks of cardboard and the removal of off-cuts – using different physical actions and postures of the left and right hands, neither of which involved prolonged flexion of the wrists’.
(c)The plaintiff’s diabetes, which the Medical Panel considered was a risk factor for the development and progression of carpal tunnel syndrome.
(d)The fact that the carpal tunnel syndrome affected both hands to a similar degree although the plaintiff’s work duties involved quite different postures and movements of the left and right wrists with no repetitive wrist flexion.
(e)The findings on physical examination and on medical imaging.

Injuries to the spine

With respect to the injuries to the plaintiff’s cervical, thoracic and lumbar spine, I summarise the Medical Panel’s findings relating to the history, examination and opinion as follows:

History

In 2007, the plaintiff consulted a general practitioner complaining of lower back pain.

On 9 August 2007, X-rays were taken of the plaintiff’s lumbar spine and left hip.

On 6 April 2008, the plaintiff underwent a CT scan of the lumbar spine which showed aortic calcification and multi-level marginal osteo formation.

The plaintiff suffered from a ‘further episode of back pain in September 2009’.

There were no further documented complaints of lower back pain in the clinical notes prior to the plaintiff ceasing work on 23 December 2010.

On 10 March 2011, the plaintiff consulted his general practitioner and complained of spinal pain. The plaintiff said he was uncertain as to the cause of the symptoms.

On 28 June 2011, the plaintiff underwent a CT scan which showed multi-level degenerative changes and minor disc bulging.

On 28 March 2012, the plaintiff was assessed at the orthopaedic outpatients department of a metropolitan hospital with respect to his back pain. Surgical treatment was not recommended but he was referred to physiotherapy which he attended on three occasions between 13 April and 5 June 2012. He was not given physiotherapy manipulation but was provided with advice about exercises.

On 10 May 2012, the plaintiff underwent a CT scan of his cervical spine.

On 5 November 2012, the plaintiff consulted a neurosurgeon, to whom he was referred after he continued to complain of lower back pain.

On 15 July 2013, the plaintiff underwent a CT scan which showed multi-level degenerative changes and minor disc bulging.

On 4 June 2014, the plaintiff underwent an MRI scan of his lumbar spine and therapy and injections were ‘suggested, but had not been undertaken’.[15]
[15]Reasons 7.

The plaintiff complains of constant pain in the lower back, particularly on the right side, and pain in both calves and occasional numbness in the right heel. He has no pain in the neck or upper back.

Examination

On physical examination the Medical Panel noted the following:

(a)The plaintiff was able to walk normally and was briefly able to stand on his heels and toes.
(b)There was mild tenderness to palpation over the lumber spine.
(c)The axial compression test was positive for abnormal illness behaviour.
(d)The range of neck motion was within normal limits.
(e)There was a full range of motion of the shoulders.

Range of motion of the lumbar spine was moderately restricted on flexion and right lateral flexion but the Panel recorded ‘a greater range of flexion was observed with [sic] the worker picked up his bag from the floor, on leaving the examination’.

Neurological examination of both lower limbs revealed normal power and reflexes, collapsing weakness on the assessment of power and non-dermatomal sensory changes, with no clinical evidence of radiculopathy.

The MRI scan of the lumbar spine on 4 June 2014 showed multi-level lower lumbar disc desiccation, with a small annular tear at L5-S1 and no evidence of canal stenosis.

Opinion

The Medical Panel concluded that the plaintiff’s spinal injuries were not caused or otherwise aggravated by his employment for the following reasons:

(a)Prior to termination of his employment, he had an episode of lower back pain in 2007 and an episode of back pain in September 2009. There were ‘no further documented complaints of low back pain in the clinical notes, whilst he was at work’.
(b)The deterioration of his lower back pain after the termination of his employment occurred for no apparent reason.
(c)The CT scans demonstrated multi-level degenerative changes, which the Medical Panel considered were of constitutional origin.

Grounds of appeal in respect of the carpal tunnel syndrome

The plaintiff’s grounds of appeal in respect of the Medical Panel’s decision regarding the carpal tunnel syndrome are based on a misinterpretation of the plaintiff’s work duties by the interpreter during the course of the Medical Panel’s examination.

The misinterpretation of the plaintiff’s work duties by the interpreter

At the hearing before the Medical Panel on 13 October 2014, the plaintiff attended and was accompanied by his daughter, Ms Enisa Hajdarevic. The plaintiff was asked questions for about 30 minutes, during which time his daughter was present, after which he was then physically examined for about 20 minutes. The plaintiff understands very little English and all questions asked of him and answers given by him were interpreted by a Bosnian interpreter.

During the interview, he was asked one question by the doctors, about how he did his work and how he carried on his duties, to which he says he responded as follows:

I told the doctors that I had to lift stacks of cardboard sheets onto a bench from a pallet in order to remove off-cuts from around the box shapes, which were already cut into the cardboard sheets. I told the panel that while using my left hand to secure the stacks of cardboard, I first had to hit the off-cuts with a hammer in my right hand to separate and split the cardboard and that I would then put the hammer down, and manually strip the off-cuts by gripping and pulling them with my right hand. I told the panel that once all the off-cuts had been stripped I would use both hands to rip and separate the individual box shapes contained in the cardboard sheets.

The plaintiff also said that he took with him to the interview a cardboard box sheet which he used to demonstrate his workplace duties. He described the demonstration as follows:

I recall that I stood up and showed the panel members how I would use my left hand to secure the stacks of cardboard and use the hammer held in my right hand to hit the edges of the cardboard. I demonstrated that I would then put the hammer down and strip all the cardboard off manually using my right hand. I demonstrated that I would then rotate the box using both hands in order to strip the off-cuts from the far side of the box.

Ms Hajdarevic said that at the examination she recalled her father describing the workplace duties as follows:

He said that his duties involved lifting stacks of cardboard onto a bench from a pallet in order to remove offcuts. He described that while using his left hand to secure the stacks of cardboard, he first had to hit the off-cuts with a hammer in his right hand to separate them. He described that it was necessary to do this in order to allow him to then manually strip the [sic] away the off-cuts with right hand.

However, she said that the interpreter misinterpreted the description of the duties. In particular, she said as follows:

The interpreter interpreted the description that my dad uses the hammer to remove the off-cuts wrongly. This was not what my dad described; my dad said that he removed the off-cuts manually with his right hand after hitting them with the hammer.

She also confirmed that the plaintiff demonstrated how he would remove the off-cuts by manually stripping them with his right hand while using his left hand to secure the stacks of cardboard.

She said that she told the plaintiff about the misinterpretation in the lift after the completion of the examination; and that she had not spoken up during the course of the examination because she understood she was not allowed to say anything during the examination. This belief was based on the fact that she had interpreted to the plaintiff the letter dated 5 September 2014 from the Medical Panel requiring the plaintiff to attend for the examination. She said that, included in the letter under the sub-heading ‘Important Information’, was the following:

Examinations are to be held in private but the Medical Panel will allow a family member or friend to attend during a physical examination for support or to assist you to undress/dress, if required. Unless they are a representative, any person accompanying you to an examination will not be allowed to speak on your behalf or interpret.

Accordingly, by comparison with the actual statement of the plaintiff to the Medical Panel, the interpreter failed to interpret that, after hitting the off-cuts with a hammer held in his right hand, he would:

(a)put the hammer down and manually strip the off-cuts by ripping and pulling them with his right hand; and
(b)use both hands to rip and separate the individual box shapes contained in the cardboard sheets.
(together ‘the Additional Duties Description’)

The defendants did not file any evidence contradicting the plaintiff or his daughter in respect of the failure to interpret the Additional Duties Description; and did not seek to cross-examine them. Accordingly, I accept their uncontradicted and unchallenged evidence.

The employer did point to the fact that the evidence of the plaintiff varied from that of his daughter in that his daughter did not refer to the plaintiff saying he would use both hands to rip and separate the individual box shapes. Because of the lack of any challenge to the evidence, I accept the plaintiff’s version as the more advantageous of the unchallenged and uncontradicted evidence.

The plaintiff submitted that the fact that the misinterpretation resulted in the Additional Duties Description not being considered by the Medical Panel invalidated the decision of the Medical Panel for the following reasons:

(a)a denial of procedural fairness insofar as it involved a breach of the hearing rule;
(b)jurisdictional error insofar as it involved:
(i)a failure to take into account a mandatory relevant consideration being the Additional Duties Description; or taking into account of an irrelevant consideration being the misinterpreted answer of the plaintiff; and
(ii)a failure to make findings on material questions of fact in accordance with the principles in Minister for Immigration and Multicultural Affairs v Yusef.[16]
[16](2001) 206 CLR 323 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

Breach of the hearing rule
Plaintiff’s submissions

In respect of whether the misinterpretation resulted in a denial of procedural fairness, it was submitted on behalf of the plaintiff as follows:

(a)Although it was due to no fault of the Medical Panel, the fact that the Additional Duties Description had not been interpreted had resulted in the plaintiff being unfairly deprived of the opportunity to put his case; and the Medical Panel did not have the opportunity of properly considering the plaintiff’s case.
(b)It should be concluded that the Additional Duties Description would have had an effect on the Medical Panel’s ultimate conclusion because the Medical Panel had determined that the plaintiff’s employment had not been a significant cause of his carpal tunnel syndrome specifically on the basis that his duties did not include repetitive wrist flexion.

It was contended that, if the Additional Duties Description had been received, the Medical Panel should have found that the plaintiff’s duties did involve repetitive wrist flexion on the basis of the following analysis:

(a)The history recorded by Dr Middleton (referred to in paragraphs [15] and [16] above) noted that the plaintiff’s duties included the stripping of the cardboard sheets ‘manually by tearing them with his hands … requiring forceful and repetitive gripping involving both hands’.

(b)Mr Berger, after reading the history recorded by Dr Middleton, had opined:
Occupations that involve heavy and repetitive gripping and wrist flexion over a prolonged period of time may aggravate or accelerate a pre-existing or underlying tendency to develop carpal tunnel compression.
The job description as outlined in detail by Dr David Middleton, I believe, would therefore qualify as a contributing factor to the development of the carpal tunnel compression in Mr Omerasevic.

(c)Accordingly, although Dr Middleton did not refer to the plaintiff’s duties involving prolonged wrist flexion, it should be inferred that Mr Berger had concluded from Dr Middleton’s history that the work described would have involved prolonged wrist flexion.
(d)Therefore, if the Additional Duties Description had not been omitted, the Medical Panel would have likewise inferred that the duties involved prolonged wrist flexion, which had significantly contributed to the aggravation of the plaintiff’s carpal tunnel syndrome in both hands.

Defendants’ submissions

The defendants submitted that there had been no procedural unfairness in respect of the misinterpretation for the following reasons:

(a)The precise nature of the plaintiff’s work duties was not the fundamental factor to the Medical Panel’s conclusion.
(b)The plaintiff had failed to establish that there was an unfair hearing in circumstances where:
(i)the plaintiff had drawn the agreed statement of facts which had described the plaintiff’s work duties;
(ii)the plaintiff was provided with a competent interpreter with NAATI Level 3 Serbian qualifications; and
(iii)there was a single mistranslation.

(c)The plaintiff had communicated his work duties because, although the Additional Duties Description was omitted, he had carried out a physical demonstration to the Medical Panel of all facets of the stripping of the cardboard.
(d)The Additional Duties Description does not necessarily lead to a conclusion that there was prolonged or repetitive wrist flexion.
(e)The Medical Panel was not bound to adopt any history recorded in the opinions of other medical practitioners, in particular Dr Middleton, especially as he did not identify any prolonged or repetitive wrist flexion.

Authorities with respect to whether misinterpretation breaches the hearing rule

Both parties referred to the decision of the Full Court of the Federal Court in SZRMQ v Minister for Immigration and Border Protection[17] and, in particular, to the observations of Allsop CJ with respect to the adequacy of interpretation and his conclusion that:

The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair.[18]

[17](2013) 219 FCR 212 (Allsop CJ, Flick and Robertson JJ) (‘SZRMQ’).

[18]Ibid [9]; see also [44]-[47] (Flick J dissenting), [70]-[73] (Robertson J).

The plaintiff submitted that this decision required the court to look beyond the accuracy of the interpretation and to consider whether, in the whole of the circumstances, the hearing was fair and whether the plaintiff had an opportunity to be heard. However, SZRMQ was considering instances of frequent, continuous and intermittent misinterpretations, none of which are alleged in this case.

In this case, there was a single misinterpretation which resulted in specific evidence not being available for consideration by the Medical Panel. Although this was in no sense the fault of the Medical Panel, in my opinion, it is analogous to cases where a party has been prevented from presenting the entirety of its case by the wrongful exclusion of evidence.

In Balenzuela v DeGail,[19] the High Court considered whether a new trial should be ordered where the plaintiff’s evidence as to the precise place of an accident had been erroneously rejected. The Full Court of the Supreme Court of New South Wales had accepted that the evidence had been erroneously rejected but had dismissed the appeal on the ground that there was ‘no sufficient likelihood that the result of the trial would have been affected had the evidence been admitted’.[20] The High Court unanimously allowed the appeal and ordered a new trial. In doing so, Dixon CJ said that:

[U]nless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued … it was necessary at common law to grant a new trial.[21]

[19](1959) 101 CLR 226 (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ).

[20]Ibid 228.

[21]Ibid 234-235.

In Stead v State Government Insurance Commission,[22] the High Court approved Balenzuela v DeGail.[23] The appeal in Stead was from a decision of the Full Court of the Supreme Court of South Australia in which a new trial had been refused in circumstances where the trial judge had deprived the plaintiff’s counsel of the opportunity of presenting argument on whether the evidence of a medical witness called by the defence should be accepted. The Court held that the general principle applicable was as expressed in Jones v National Coal Board[24] in the following terms:

There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

[22](1986) 161 CLR 141 (Mason, Wilson, Brennan, Deane and Dawson JJ) (‘Stead’).

[23]Ibid 147.

[24][1957] 2 QB 55, 67 (Denning, Romer and Parker LJJ).

The Court said that the principle was subject to the qualification that ‘an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for such a new trial in such a case would be a futility’.[25]
[25]Stead (1986) 161 CLR 145.

In Featherstone v DJ Hambleton,[26] Peter Lyons J stated that Stead[27] stands for the proposition that:

[W]here a party has, during the trial, been deprived of the opportunity to advance an aspect of that party’s case, then a breach of the rules of natural justice would have occurred, and the party will ordinarily be entitled to a new trial. However, the case also recognised an exception, namely, where the loss of opportunity to advance that aspect of the party’s case could not have affected the outcome of the trial.[28]
[26](2015) 107 ACSR 131.
[27](1986) 161 CLR 141.
[28]Featherstone v DJ Hambleton (2015) 107 ACSR 131, 141 [44] (Peter Lyons J, with whom Gotterson JA and Douglas J agreed).

Conclusion on breach of the hearing rule

Accordingly, the plaintiff having, as a result of the misinterpretation, lost the opportunity to advance his case by the Medical Panel considering the Additional Duties Description, the question I am required to consider is whether the Additional Duties Description could have affected the decision of the Medical Panel with respect to the relationship between the plaintiff’s employment and the carpal tunnel syndrome. In determining whether the Medical Panel could have come to a different decision, I have identified the following competing considerations.

On one hand, it is most unlikely that the Medical Panel did not take into account the hand postures, which the plaintiff contended should have indicated the need for repetitive wrist flexion, for the following reasons:

(a)Detailed histories of the plaintiff’s work duties were contained in both the plaintiff’s submissions and Dr Middleton’s report dated 9 January 2014, and those documents were specifically referred to in the Medical Panel’s Reasons.[29]
(b)The plaintiff physically demonstrated his work duties with the cardboard box sheet, which he had brought to the examination for that purpose, and in particular he demonstrated stripping the cardboard off manually with his right hand and rotating the box using both hands in order to strip the off-cuts from the far side of the box.

[29]Reasons 3, 11.

Further, the analysis, as submitted by the plaintiff’s counsel, that Mr Berger must have inferred from Dr Middleton’s history that the activities described would have necessitated repetitive wrist flexion is in my opinion, in the absence of an express statement by Mr Berger, tenuous.

On the other hand:

(a)I have found that the misinterpretation did result in the Additional Duties Description not being communicated to the Medical Panel. The Reasons only record the plaintiff’s work duties as they were misinterpreted at the examination.[30]
(b)In my opinion, the failure of the plaintiff to seek to re-open the Medical Panel’s deliberations and correct the mistranslation when he became aware of it, does not disentitle the plaintiff to relief. The misinterpretation was not any fault of the plaintiff and there is no reason to believe that he was aware of its significance or of the extent of information that was otherwise available to the Medical Panel.
(c)The Medical Panel’s references to the plaintiff’s work duties as involving:
(i)‘repetitive lifting of stacks of cardboard and the removal of off-cuts, using different physical actions and postures of the left and right hands’; and
(ii)‘quite different postures and movements of the left and right wrist, with no repetitive wrist flexion’[31]

are consistent with the fact that the Medical Panel may not have been aware of the plaintiff using both hands in the final stripping stage, which was part of the Additional Duties Description.

[30]Ibid 4, 11.

[31]Ibid 10-11.

It is not apparent to me, as someone with legal as opposed to medical training, that the Additional Duties Description would indicate that repetitive wrist flexion was part of the plaintiff’s duties; but that does not mean that, if the information had been correctly interpreted to the Medical Panel, it could not have affected their conclusion that the work duties had not made a significant contribution to an aggravation of the plaintiff’s carpal tunnel syndrome.

Accordingly, I consider that the decision of the Medical Panel should be quashed and the matter should be referred back to the Medical Panel for reconsideration of their answers to questions 2 and 3 with respect to carpal tunnel syndrome.

Did the misinterpretation cause jurisdictional error?

The plaintiff alleges that the misinterpretation caused jurisdictional error on the following grounds:

(a)failure to take into account the relevant consideration being the Additional Duties Description;
(b)taking into account of an irrelevant consideration being the misinterpreted answer of the plaintiff;
(c)ignoring relevant material, being the Additional Duties Description, in a way that affected the exercise of power.

The plaintiff contended that such jurisdictional errors arose regardless of the fact that there was no fault by the Medical Panel, relying upon Wei Wei v Minister for Immigration and Border Protection.[32]
[32](2015) 327 ALR 28, 35 [33]-[34] (Gageler and Keane JJ).

The principles with respect to these grounds of jurisdictional error are discussed below in respect of the injuries to the plaintiff’s spine. However, even if such jurisdictional error was established in respect of the carpal tunnel syndrome, it would still be necessary, prior to the Medical Panel’s decision being quashed, to determine whether, by reason of the jurisdictional error, the applicant had been deprived of the possibility of a successful outcome.[33] As this test is the same as the test established by Stead v State Government Insurance Commission,[34] it is unnecessary to determine whether the misinterpretation could also constitute jurisdictional error because such a finding would, at best for the plaintiff, only result in the same outcome as that arrived at in paragraph [73] above.
[33]Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 40 (Mason CJ).
[34](1986) 161 CLR 141. The fact that the test in Stead is appropriate after jurisdictional error is found was established in Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346, 360 [62]-[64] (Sackville J, Black CJ with whom Sundberg J agreed). Discussed at paragraph [65] to [67] above.

Grounds of appeal in respect of injuries to the plaintiff’s spine

The plaintiff submitted that the Medical Panel’s determination that the plaintiff’s employment was not a significant contributing factor to the plaintiff’s low back dysfunction or to any aggravation of any pre-existing low back dysfunction was invalid on the following grounds:

(a)The Medical Panel’s Reasons were inadequate.
(b)The Medical Panel fell into jurisdictional error in failing to take into account a mandatory relevant consideration.
(c)The Medical Panel ignored relevant material in a way that affected the exercise of its power.
I deal with each in turn.

Inadequate reasons
Plaintiff’s submissions

The plaintiff submitted that questions 1 and 2 referred to the Medical Panel required the Medical Panel to consider whether the condition of the plaintiff’s spine was in whole, or in part, an aggravation of any pre-existing injury or disease. In particular, the plaintiff contended that this issue required consideration of the following matters:

(a)The plaintiff’s work involved manual lifting of significant weights on a repetitive basis as referred to in the notice of particulars pursuant to s 304.[35]
(b)Dr Middleton’s report of 30 April 2011 noted that the lifting of such weights involved ‘prolonged lumbar flexion with repetitive lifting and twisting to a level that made it necessary for [the plaintiff] to kneel on the ground’.
(c)The plaintiff’s lower back was asymptomatic prior to his employment.
(d)The plaintiff’s lower back first became symptomatic in 2007 and continued to be symptomatic on an ongoing basis, and not only episodically, from at least April 2008.
(e)The plaintiff provided a history to Dr Middleton that he had requested a change of duties to alleviate his lower back symptoms.
(f)The reports of Dr Aejaz Sherrif, general practitioner, Mr Armin Drnda, neurosurgeon, and Dr Middleton had concluded that the plaintiff’s work duties had aggravated the underlying degenerative changes to his lower back.

[35]See [3(c)] above.

The plaintiff submitted that, despite these facts, the Medical Panel had simply stated that it had noted that the medical imaging demonstrated multi-level degenerative changes, which it considered were of constitutional origin and had not been affected by the worker’s employment in any way.

Defendants’ submissions

The defendants submitted that the Medical Panel’s Reasons were sufficient to comply with its obligation to provide written reasons for its opinion under s 313(2) of the WIRC Act for the following reasons:

(a)The Medical Panel’s Reasons identified the material to which it had regard in forming its opinion including the documents and information with which it was provided, its examinations of the plaintiff and the history provided by the plaintiff to it.
(b)The plaintiff does not complain of any error in the history recorded by the Medical Panel nor of its diagnosis of the lower back pain being a consequence of lumbar spondylosis.
(c)The Medical Panel set out its reasons as to the lack of relationship between the plaintiff’s employment and the diagnosed condition which included:
(i)the plaintiff’s limited complaints of lower back pain during the period of his employment; and
(ii)the unexplained deterioration of his lower back after he ceased work.

(d)The Medical Panel’s reasoning was similar to that of Dr Davison, (upon whose opinion the defendants primarily relied in its written submissions) and, in particular, his following statement of opinion:
There was no specific incident that occurred at work. The onset of pain appeared to be insidious.
In addition, the worker reported the pain actually worsened after he ceased work.
These factors do not support the contention that employment was a significant contributing factor. I consider the worker’s condition has arisen spontaneously.

(e)It is not necessary for the Medical Panel to refute the opinions of medical practitioners who form a different conclusion.

Conclusion on adequacy of reasons

The following principles, which are to be applied when assessing the reasons of a Medical Panel, are well established:

(a)The statutory function of a medical panel is that it is to form its own opinion.
(b)The statement of reasons which a medical panel is obliged to provide under legislation must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion it formed on the medical questions referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.
(c)It is not incumbent on a medical panel to provide a comprehensible explanation for rejecting any expert medical opinion nor to explain why it did not reach an opinion it did not form. The function of a medical panel is neither arbitral nor adjudicative.
(d)The reasons of a medical panel are entitled to a beneficial construction in the sense that they should not be scrutinised over-zealously.[36]

[36]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [23]-[30] (Neave, Santamaria and Kyrou JJA) referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 and Gamble v Emerald Hill Electrical Pty Ltd [2012] 38 VR 45.

In my opinion, the Medical Panel’s Reasons, as summarised in paragraphs [27]-[45] above, disclose a clear path to its conclusions. Its opinion was based on:

(a)the plaintiff’s history derived from the examination of the plaintiff by the Medical Panel and the materials supplied to it;
(b)the clinical examinations of the plaintiff performed by the Medical Panel; and
(c)a review of the medical imaging.

The plaintiff complains that the Medical Panel failed to explain in its Reasons why it had not been persuaded to the opposite view by reason of the nature of the plaintiff’s duties, particularly the repetitive lifting, the fact that the plaintiff had ongoing lower back symptoms from at least April 2008 (the time of the first CT scan of the plaintiff’s back) and the opinions in the doctors’ reports provided by the plaintiff.

I reject the plaintiff’s submissions for the following reasons:

(a)The Medical Panel expressly had regard to the fact that the plaintiff’s duties involved repetitive lifting of stacks totalling about 1 tonne of cardboard per day.[37]
(b)It is likely that the Medical Panel did have regard to the fact that the plaintiff alleged that he had a level of continuing symptoms of lower back pain after September 2009 for the following reasons:
(i)The Medical Panel referred carefully to there being ‘no further documented complaints of low back pain in the clinical notes’; and ‘the absence of any further documented complaints of low back pain until 10 March 2011’. I infer that the reference to documented complaints is to distinguish oral statements of continuing problems that the plaintiff is reported to have made after the cessation of his employment with the employer.
(ii)The Medical Panel appears to have read the referral material very carefully. The Medical Panel found the reference to the consultation with the general practitioner on 22 September 2009 in which the plaintiff complained of an incident of lower back pain in a handwritten note in ‘Progress Notes’ (despite not otherwise being referred to it).[38] This document was contained within the hundreds of pages of the material provided to the Medical Panel.

(c)The Medical Panel specifically referred to the reports of the plaintiff’s treating doctors with whom the Medical Panel disagreed. The Medical Panel are not required to place weight on such opinions and it ‘goes too far … to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions’.[39]

[37]Reasons 4, 10.

[38]The note read ‘developed back pain over 10/7 exacerbation o/night’.

[39]Wingfoot v Kocak (2013) 252 CLR 480, 498-9 [47].

Accordingly, I am not prepared to infer that the Medical Panel did not have regard to the matters as submitted by the plaintiff. More importantly, I do not consider that the Medical Panel is obliged to identify why it did not consider those factors to be determinative.

I do not consider that the plaintiff’s submissions as to the detail required to be provided in the Medical Panel’s Reasons is consistent with the principles enunciated in Wingfoot v Kocak[40] or the statement of Callaway JA in Masters v McCubbery that:

In the present context, they are medical reasons in sufficient detail, and only in sufficient detail, to show the Court and the worker that the question referred to the Panel has been properly considered according to law and the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience.[41]
[40](2013) 252 CLR 480.
[41][1996] 1 VR 635, 661.

Jurisdictional error - failing to take into account a mandatory relevant consideration

The plaintiff submitted that the fundamental basis for the Medical Panel’s finding that the lower back condition was not related to his employment was that the Medical Panel had noted that:

(a)‘apart from a further episode of back pain in September 2009, there were no further documented complaints of low back pain in the clinical notes, whilst he was still at work’;[42] and
(b)‘the deterioration of his low back occurred for no apparent reason after the worker ceased work’.[43]

[42]Reasons 7.

[43]Reasons 10.

The plaintiff submitted that this finding demonstrates that the Medical Panel failed to take into account a mandatory consideration being the fact that the plaintiff did complain of back pain in the period from September 2009 until the end of his employment on 23 December 2010. The plaintiff points to the following matters to which it was submitted the Medical Panel failed to have regard:

(a)In the material provided to the Medical Panel there are references to the fact that the plaintiff alleges that in 2008 he complained of a back injury to his employer and requested that his employer change his position because of his lower back pain and that these complaints were ignored.
(b)The report of Dr Middleton dated 30 April 2011 recorded that ‘the low back pain persisted’ after it developed ‘some 3 years ago’; and ‘the back injury, according to [the plaintiff], has never fully recovered since the initial injury in 2008 and his request to management to changes in job, has been ignored’.
(c)The report of Dr Sheriff dated 13 April 2012 recorded that Mr Peter Mangos, a general surgeon, who examined the plaintiff on 2 December 2011, had written:
I note that he developed back pain some 2 years ago and reported this to his doctor at the time (Dr Ibrahimajic). A claim was not lodged. He has continued to have backache since that time.[44]

(d)A handwritten note dated 4 April 2012 included in a Royal Melbourne Hospital physiotherapy outpatient referral note records the plaintiff’s daughter as reporting that the patient has had lower back pain for about 3 years but it had been worse recently.
(e)Investigations as to the cause of the plaintiff’s back pain were undertaken in August 2007, April 2008 and September 2009.
(together ‘the Continuing Symptoms Evidence’)
[44]Emphasis added.

Plaintiff’s submissions

The plaintiff submitted as follows:

(a)The Continuing Symptoms Evidence establishes a significant discrepancy between the Medical Panel’s history and the true history of the lower back condition as disclosed by the referral material.
(b)As a result, it should be inferred that the Medical Panel had failed to take the Continuing Symptoms Evidence into consideration and that Ryan v The Grange at Wodonga Pty Ltd[45] stands for the proposition that a material failure to take into consideration a worker’s answers will amount to a jurisdictional error.
[45][2015] VSCA 17 [60] (Neave J).

Defendants’ submissions

The defendants contended that any error in the history recorded by the Medical Panel (the existence of which was not conceded) was within the Medical Panel’s statutory jurisdiction under the WIRC Act. The defendants submitted that an error in fact finding could only amount to a jurisdictional error if:

(a)the erroneously found fact was itself a jurisdictional fact (which was not contended for in this case); or
(b)the error in fact finding was so serious or fundamental as to undermine the valid exercise of the jurisdiction itself.

Authorities with respect to jurisdictional error

It is well established that a medical panel is amenable to judicial review.[46] It commits jurisdictional error if, in making its decision, it fails to take into consideration a matter which it was bound to take into account; and the matter materially affects its decision.[47] However, the plaintiff’s contention that the Medical Panel was bound to take into consideration the Continuing Symptoms Evidence contained in the referral material and the worker’s answers on examination; and that material failure to do so will amount to jurisdictional error, requires consideration of the authorities upon which the submission relies.
[46]Masters v McCubbery [1996] 1 VR 635.
[47]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41; Craig v South Australia (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351-2 [82]-[83].

In Ryan v The Grange at Wodonga Pty Ltd,[48] the Court of Appeal considered an application to quash a medical panel’s opinion on the basis, among others, that the panel had failed to take into account a mandatory relevant consideration when it answered ‘Yes’ to Question 2 - ‘Is the worker capable of returning to her pre-injury duties?’.
[48][2015] VSCA 17 (Neave and Santamaria JJA and Ginnane AJA).

The relevant facts were as follows:

(a)In January 2012, the worker was unable to work as a result of shoulder injuries and received regular payments of compensation under the AC Act on the basis that the injury arose in the course of her employment.
(b)In March 2012, Mr White, a consultant surgeon engaged by the Workcover claim agent, stated that the worker had the capacity to ‘return to work in modified pre-injury duties and hours’, which the worker then did.
(c)On return to work, the worker again experienced pain in her right shoulder and on 18 April 2012 her general practitioner certified that she was not fit for her work.
(d)In July 2012, Dr Barton, a consultant occupational physician engaged by the Workcover claim agent, reported that the worker could return to her pre-injury duties for her pre-injury hours.
(e)On the basis of Dr Barton’s reports, the Workcover claim agent terminated the worker’s weekly payments in August 2012.
(f)The dispute was referred for the opinion of a medical panel which concluded that the worker was capable of performing her pre-injury (i.e. non-modified) duties.

With respect to the medical panel’s obligation to consider the worker’s answers to questions and the referral material, Neave JA said as follows:

Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[49]

[49]Ibid [60] (with whom Santamaria JA and Ginnane AJA agreed) (citations omitted).

Neave JA reviewed the relevant medical reports, all of which identified:

(a)the plaintiff’s work duties as being the cause of her initial incapacity; and
(b)on resumption, the plaintiff’s modified work duties had been the cause of her incapacity to continue.

Her Honour also noted the opinions of the worker’s general practitioner and a consultant physician that the duties performed on the worker’s return to work were the cause of her current condition.[50]

[50]Ibid [65]-[69] (emphasis added).

Accordingly, Neave JA identified the fundamental issue ‘squarely raised [from the referral material was] whether the [worker’s] return to her pre-injury duties would further aggravate her pre-existing shoulder condition’.[51] However, her Honour observed that there was ‘nothing in the Reasons which indicates that the Panel considered whether what they described as “minor pain” would worsen if the [worker] returned to work and performed the same duties which had initially aggravated her shoulder condition’.[52] Her Honour concluded:

Although the Panel referred to its own examination of the appellant and the views of her treating doctors and Mr White, its Reasons do not indicate that the Panel undertook any meaningful consideration of the effect which a return to work could have on aggravating the pre-existing injury. The Medical Panel was not required to explain why it took a different view from [the consultant physician] and [the worker’s treating general practitioner] about the appellant’s capacity to return to her pre-injury duties. However, it was required to explain how it had taken account of the chronology of events and why it had not inferred from its own finding that the injury was an aggravation of a pre-existing condition that, if the appellant returned to the same work, it was likely that she would again experience an aggravation of her shoulder condition.[53]

[51]Ibid [69].

[52]Ibid [70].

[53]Ibid [71].

In my opinion, a proper reading of the decision of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd, discloses Neave JA’s analysis as follows:

(a)A medical panel is bound to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred questions.[54]
[54]Ibid [60].
(b)The fundamental issue arising from the referral material, in the circumstances of that case, was whether the worker, by returning to her work duties, would aggravate her pre-existing shoulder injury.[55]
[55]Ibid [64]-[69].
(c)The reasons of the medical panel did not deal with the fundamental issue of ‘whether the appellant’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition’.[56]
[56]Ibid [63], [69].
(d)Her Honour inferred that the medical panel ‘did not take account of’ the fundamental issue[57] – presumably on the basis that:
[57]Ibid [63].

(i) it was not expressly referred to in the reasons; and

(ii) if such a fundamental issue had been considered, one would expect that it would have been referred to.

(e)The medical panel, by failing to deal with the fundamental issue, for the purpose of answering Question 2, had failed to fulfil its statutory function of forming its opinion on the medical question referred to it. Speaking colloquially, I infer her Honour as concluding that, given its significance to the referred question, the medical panel had failed to have regard to the elephant in the room. This constituted jurisdictional error.

The following should also be noted:

(a)Although the Court of Appeal overturned the decision of Kyrou J below, this was not because Kyrou J considered that a failure to consider this fundamental issue was not a jurisdictional error. Rather Kyrou J did not draw the inference that the medical panel failed to consider this fundamental issue.[58]
(b)It is apparent that Neave JA considered the medical panel would not have made a jurisdictional error if, after considering the matter, it had reached its own conclusion even if it had not resolved the differences between the views of the various practitioners.[59]

[58]Ibid [62]-[63]; Ryan v Grange at Wodonga Pty Ltd [2014] VSC 135 [179] (Kyrou J).

[59]Ibid [69].

I consider that the above analysis is similar to that applied by Kyrou J in Milwain v Sim,[60] which was cited by Neave JA as an example of a medical panel decision which acted outside jurisdiction.[61]
[60][2009] VSC 75.
[61]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 [60] n 34.

In Milwain v Sim,[62] the worker sought to quash the opinion of a medical panel which found that there was no causal link between the worker’s injuries and her employment; and that the worker did not have a present inability to return to her pre-injury employment. The relevant facts in that case were as follows:
[62][2009] VSC 75.

(a)In January 2004, the worker noticed intermittent pain in her upper arm and neck when performing certain work duties; and reported the pain to her employer.
(b)In December 2004, while on holidays, she suffered right sided neck pain radiating into the shoulder blade and did not return to work in January 2005, at the end of her holiday, because of severe neck and right shoulder pain.
(c)In March 2005, she made a claim under the AC Act, which the employer rejected.
(d)In July 2006, the worker filed proceedings in the County Court of Victoria and medical questions were referred to a medical panel.
(e)The medical panel was provided with:
(i)conflicting opinions from treating doctors and medical experts;
(ii)a DVD prepared by the employer depicting another person performing the type of work, which the employer alleged, the worker had performed prior to the injury; and
(iii)a detailed handwritten submission, prepared by the worker, setting out the aspects in respect of which the DVD did not accurately depict her work.

(f)The medical panel concluded that the worker’s injuries were not the result of her work duties and, notably, in its reasons stated that ‘The Panel observed the actions which depicted various tasks the Plaintiff performed and the Panel noted that the tasks were consistent with the Plaintiff’s description of her work tasks with the Defendant’.[63]

[63]Ibid [18] (emphasis added).

Kyrou J analysed the circumstances and, in particular, noted that all three consultant neurosurgeons’ reports, which had been included in the referral material, had expressed the opinion that the worker’s employment ‘would probably have been a significant contributing factor to [the worker’s] injury if the work involved heavy lifting and repeated forced neck flexion’.[64] Accordingly, his Honour identified the fundamental issue for determination by the medical panel as being whether the worker’s duties had ‘involved heavy lifting and repeated forced neck flexion, as maintained by her, or was of a lighter nature, as depicted on the DVD’.[65]
[64]Ibid [28].
[65]Ibid [27].

Kyrou J inferred from the medical panel’s statement (referred to in paragraph [100](f) above) that the worker’s duties, as depicted in the DVD, corresponded with her description, that the medical panel had failed to:

(a)consider that the worker had told them that her duties ‘involved heavy lifting and repeated forced neck flexion’;[66] and
(b)identify ‘the differences set out in the detailed handwritten submission between the work depicted on the DVD and the work [that the worker said she] performed’.[67]

[66]Ibid [32(a)].

[67]Ibid [26].

In my opinion, it is apparent from the decision of Kyrou J that his Honour’s line of reasoning was as follows:

(a)The fundamental issue arising from the worker’s answers and the referral material was whether the worker’s duties involved heavy lifting and repeated forced neck flexion.[68]
(b)His Honour inferred from the reasons that the medical panel had not considered the worker’s contentions that her duties did involve such heavy lifting and neck flexion; as opposed to those depicted in the DVD.[69]
(c)The medical panel, by failing to identify and consider the fundamental issue raised on the referral material, had therefore failed to fulfil its statutory function. This failure constituted jurisdictional error.[70]

[68]Ibid [28].

[69]Ibid [28], [34].

[70]In both Milwain v Sim [2009] VSC 75 and Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 a similar result may have been reached on the basis of a failure to provide adequate reasons if the inference of non-consideration had not been available. However, grounds of review often overlap. See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 (Lord Greene MR); Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5^th ed, 2013) 273 [5.10].

The fact that Kyrou J did not determine the matter on the basis of the opinion simply being against the weight of the evidence or otherwise is demonstrated by his statement that:

Had the panel taken Ms Milwain’s version of her work and the medical evidence into account and decided that, notwithstanding this information, no matter how onerous Ms Milwain’s work was, it did not contribute to her injury, its conclusion could not be impugned on the basis of failing to take relevant considerations into account.[71]

[71]Milwain v Sim [2009] VSC 75 [34].

The proposition that a medical panel is bound to take into account all matters in the referral material and, if it fails to do so, it commits jurisdictional error, is untenable. It could not be said, in the present case, that if the Medical Panel had not found the reference to the plaintiff’s complaint to his general practitioner on 22 September 2009, which was buried deep within the hundreds of pages of the referral material (and to which the Medical Panel was not otherwise referred), its decision would have been tainted with jurisdictional error.

Indeed, a similar proposition was rejected by Kyrou J in Milwain v Sim.[72] In that case, the worker had also submitted that the medical panel’s conclusion that ‘the worker’s intermittent pains prior to ceasing work were minor muscular discomfort for which she did not require medical management’ was the result of the medical panel confusing the medical history given by the worker. His Honour said that even assuming that the medical panel had made an error with respect to the worker’s medical history ‘it would not be an error of law let alone jurisdictional error’.[73]
[72]Ibid.
[73]Ibid [36].

Conclusion on failing to take into consideration a mandatory relevant consideration

I consider that the plaintiff has failed to establish that:

(a)the Medical Panel failed to take into consideration the Continuing Symptoms Evidence contained in the referral material; or
(b)a failure to take the Continuing Symptoms Evidence into account would constitute a jurisdictional error.

Did the medical panel fail to take the Continuing Symptoms Evidence into account?

A medical panel is not required to set out every matter to which it had regard prior to coming to its conclusion, but rather it must set out ‘the actual path of reasoning by which the medical panel arrived at the opinion the medical panel actually formed for itself.’[74] Further, a medical panel’s reasons are to be read with a beneficial construction and should not be scrutinised over-zealously.[75] Given these standards, it would be inconsistent for the court to readily infer that a failure to refer to a factor in a medical panel’s conclusion is indicative of a failure to take such a factor into account. As Neave JA stated in Ryan v The Grange at Wodonga Pty Ltd:

A court must proceed carefully when reviewing an administrative decision on the ground that the decision-maker did not have regard to a relevant consideration ‘lest it exceed its supervisory role by reviewing the decision on its merits’.[76]

[74]Wingfoot v Kocak (2013) 252 CLR 480, 499 [48] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[75]Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259, 271–2; Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [23]-[30] (Neave, Santamaria and Kyrou JJA) referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 and Gamble v Emerald Hill Electrical Pty Ltd [2012] 38 VR 45.

[76][2015] VSCA 17 [61].

With respect to the plaintiff’s submission that the court should infer the Medical Panel failed to take into account the Continuing Symptoms Evidence, I make the following comments:

(a)In the Medical Panel’s Reasons there is a specific reference to the fact that the plaintiff’s back pain developed in 2007, was investigated in 2008 and there was a further episode in 2009.[77]
(b)For the reasons set out in paragraph [84(b)], I consider that the reference to there being ‘no further documented complaints of lower back pain’[78] indicates that the Medical Panel was aware of the fact that the plaintiff had complained, after the cessation of his employment, about the back pain continuing after 2009; but was noting that such complaints has not been contemporaneously documented.
(c)In my opinion, the reference to the fact that after the further episode in 2009 the back pain ‘apparently settled’[79] is consistent with the Medical Panel being aware, correctly, that there was no evidence of any further treatment or reports of back pain to the employer until ‘the deterioration of his low back pain [that] occurred for no apparent reason after the worker ceased work’.[80]

Accordingly, I do not infer that the Medical Panel failed to consider the Continuing Symptoms Evidence contained in the referral material.

Would failure to have regard to the Continuing Symptoms Evidence constitute jurisdictional error?

[77]Reasons 10, 11.

[78]Reasons 5.

[79]Reasons 10, 11.

[80]Reasons 10, 11.

As stated in paragraphs [81] to [86] above, I consider that the Medical Panel has adequately set out its path of reasoning by which it reached its conclusion that the plaintiff’s back pain was ‘constitutional’ and not aggravated by his employment. The fundamental issue to be considered by the Medical Panel was whether the plaintiff’s back injury (the existence of which was not in question) was aggravated by his employment. The Medical Panel’s Reasons demonstrate that it considered this issue and, even assuming that they failed to have regard to a fact that may or may not have been relevant to that question, this would constitute only an error of fact. Similar to the presumed failure to take into account Ms Milwain’s medical history in Milwain v Sim, it would not be an error of law, let alone a jurisdictional error.[81]
[81][2009] VSC 75 [61].

Jurisdictional error - ignoring relevant material

The plaintiff submitted that there was an additional ground of jurisdictional error in that the Medial Panel ignored relevant material in a way that affected the exercise of its power.[82] This ground was explained by Robertson J in Minister for Immigration & Citizenship v SZRKT.[83] Robertson J’s explanation was adopted by the Full Court of the Federal Court in Minister for Immigration v MZYTS in which the Full Court said:

In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that ’jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.[84]

[82]Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, 175 [27]-[28] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[83](2013) 212 FCR 99 [65]-[70].

[84](2013) 230 FCR 431, 451.

For reasons already stated in respect of failing to take into account a mandatory relevant consideration, I do not consider that the plaintiff’s claim can be advanced by reliance on this alternative ground of jurisdictional error because I do not consider that it has been established that the Medical Panel failed to take into account or ignored relevant material or that the Medical Panel demonstrated any failure to perform a statutory task cast upon it by the WIRC Act.

Relief

I have considered the form of relief and, in particular, whether the matter should be remitted to a different medical panel. An order for remittal to another medical panel requires that good reason for doing so be established. Good reason can arise from strongly expressed views, adverse findings as to credit or apprehended bias.[85] In this case there is no suggestion of the ‘error’ being caused by any fault of the Medical Panel and, in my opinion, remittal to another medical panel would be unnecessary and result in the incurring of additional costs.
[85]Vegco Pty Ltd v Gibbons [2008] VSC 363 [33] (Kyrou J) adopted in SSC Plenty Road v Construction Engineering (Aust) (No 2) [2015] VSC 680 [24] (Vickery J).

Accordingly, I propose to order as follows:

1.The opinions of the Medical Panel in its answers to questions 2 and 3 in the certificate of opinion dated 4 November 2014, with respect to the alleged injuries or any recurrence, aggravation, exacerbation or deterioration of any pre-existing injury or disease of the arms, wrists and hands (carpal tunnel), be quashed.
2.Those questions be remitted to the same panel for reconsideration taking into account the plaintiff’s description of his work duties referred to in paragraph 48 of these reasons.

I will hear the parties on the form of proposed order 1, appropriateness of proposed order 2 and other orders.

---

[2016] VSC 383

22 JULY 2016