Putrus v Fish
[2021] VSC 853
•17 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03592
| ROBERT PUTRUS | Plaintiff |
| v | |
| DAVID FISH (and others named in Schedule) | Second Defendant |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2021 |
DATE OF JUDGMENT: | 17 December 2021 |
CASE MAY BE CITED AS: | Putrus v Fish & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 853 |
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JUDICIAL REVIEW – Review of a decision of a Medical Panel – Section 304 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Where Medical Panel found that plaintiff’s physical medical condition had been resolved – Whether Medical Panel disclosed an adequate path of reasoning – Whether Medical Panel turned its mind to psychological source of physical pain – Unreasonableness – Illogicality or irrationality – Whether a chronic pain syndrome was squarely raised on the material before the Medical Panel – Failure to take into account a relevant consideration – Adequacy of reasons – Held the Medical Panel erred – Remittal to a differently constituted medical panel – Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 applied – Chang v Neill [2019] VSCA 151 applied – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 applied – Schmael v Leach [2020] VSC 562 and Nguyen v Disler [2021] VSC 140 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Cal Viney | Lawyers of Preston |
| For the Sixth Defendant | Ms Maree Norton | Injury Disputes Practice Lawyers |
| SCHEDULE OF PARTIES | |
| S ECI 2019 03592 | |
| BETWEEN: | |
| ROBERT PUTRUS | Plaintiff |
| -and- | |
| | |
| -and- | |
| DR DAVID FISH | Second Defendant |
| -and- | |
| DR ARMIN DRNDA | Third Defendant |
| -and- | |
| ASSOCIATE PROFESSOR SHARAIN VAN DOORNUM | Fourth Defendant |
| -and- | |
| DR REMY GLOWINSKI | Fifth Defendant |
| -and- | |
| VICTORIAN WORKCOVER AUTHORITY | Sixth Defendant |
HER HONOUR:
Background
In July 2015, Robert Putrus, the plaintiff, sustained injuries to his back and lumbar spine in the course of his employment with BDS People Pty Ltd, a labour hire company.
Mr Putrus submitted a serious injury application relating to these injuries in April 2018.
A Medical Panel was convened to consider various medical questions referred to it in the course of the proceeding[1] arising from his injury claim.
[1]Robert Putrus v Victorian Workcover Authority (County Court of Victoria, Cl-18-03755, commenced in or around December 2015).
Dr David Fish, specialist occupational and environmental physician and specialist public health physician, Dr Armin Drnda, specialist neurosurgeon, associate Prof Sharon Van Doornum, specialist rheumatologist and Dr Remi Glowinski, specialist psychiatrist comprised the Medical Panel (the Panel). The members of the Panel are the 2nd to 5th Defendants in this proceeding. The first defendant was removed as a party from this proceeding by the plaintiff’s ‘Further Amended Originating Motion Pursuant to Notice of Order Dated 25 June 2020 by Judicial Registrar Keith’ dated 27 July 2020.
The Panel examined the Plaintiff on 3 April 2019 and 20 May 2019 and provided a Certificate of Opinion and Reasons dated 3 June 2019 (Reasons).
The questions for the Panel, and their answers were as follows:
Question 1: What is the nature of the medical condition of the plaintiff’s:
(a) back:
(b) lumbar spine: and
(c) mind?
Answer: The Panel is of the opinion that: –
(a)-(b) Mr Putrus has radiological evidence of mild degenerative changes in his lumbosacral spine, but no current clinical evidence of injury following resolution of a soft tissue injury of the back and/or lumbar spine
(c) Mr Putrus is not currently suffering from a diagnosable psychological or psychiatric condition.
Question 2: Does any medical condition of the plaintiff’s:
(a) back;
(b) lumbar spine; and
(c) mind
as identified by the Medical Panel continue to result from or be materially contributed to by injury suffered in employment with the BDS People Pty Ltd (“the employer”)?
Answer: (a)-(b) the Panel is of the opinion that the mild degenerative changes in the lumbosacral spine did not result from and are not materially contributed to by an injury.
(c) Not applicable
Question 3: Is any medical condition of the plaintiff’s:
(a) back:
(b) lumbar spine; and
(c) mind?
as identified by the Medical Panel ‘permanent’ meaning likely to last for, during or through the foreseeable future?
Answer: (a)-(c) Not applicable
Question 4: Does the plaintiff’s back /lumbar spine condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
(a) a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b) “no current work capacity” within the meaning of the Act?
Answer: (a) Not applicable
(b) Not applicable
Question 5: If “yes” to question 4 (a) hereof; what employment would or would not constitute suitable employment within the meaning of the Act?
Answer: Not applicable
Question 6: If “yes” to question 4 (a), would employment as a:
(a) Sales Clerk/Administrator;
(b) Dispatch Packer; or
(c) Product Assembler –
constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
Answer: Not applicable
Question 7: If “yes” to question 4 (b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer: Not applicable
Question 8: Does the plaintiff’s psychiatric condition result in or materially contribute to him having:
(a) a “current work capacity” within the meaning of the Act; or
(b) “no current work capacity” within the meaning of the Act?
Answer : Not applicable
Question 9: If “yes” to question 8 (a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?
Answer : Not applicable
Question 10: If “yes” to question 8 (a), would employment as a:
(a) Sales Clerk/Administrator;
(b) Dispatch Packer; or
(c) Product Assembler –
constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
Answer: Not applicable
Question 11: If “yes” to question 8 (b), is this “permanent” meaning “likely to last for during or through the foreseeable future”?
Answer: Not applicable
Grounds of Review
The plaintiff sought judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) against the decision of the Panel seeking an order that the Panel’s decision be quashed and ‘an order made for mandamus for the Medical Panel to answer the questions again.’
By Further Amended Originating Motion filed 27 July 2020, the application for judicial review was made on four grounds. However, at the hearing the grounds relied upon by the plaintiff were unreasonableness (though expressed as illogicality and irrationality of the decision), adequacy of reasons and failure to consider a relevant consideration.
The plaintiff argued that the unreasonableness ground was in two closely related parts. The plaintiff contended the grounds were closely linked and were referred to by counsel for the plaintiff as grounds 1A and 1B.
The first unreasonableness ground (ground 1A) was said to be that the Panel acted unreasonably in concluding that the plaintiff’s injury had resolved. That is, the conclusion lacked an evident or intelligible justification and that was premised on the Panel purporting to accept that the plaintiff had ongoing lumbar spine and leg pain while rejecting other accounts that would explain that pain. It was argued that the Panel made an illogical leap to a conclusion of recovery and that this error was material.
The second part to the unreasonableness ground was that the Panel failed to supply sufficient reasons for its conclusion by failing to set out the actual path of reasoning.
The second ground (ground 2 – which was said to be a separate and standalone ground) was that the Panel failed to give active intellectual consideration to a matter directly raised on the materials which it was bound to consider. That matter was chronic pain, be it either of a physical or mental manifestation. This matter could be a ground that is categorised as a failure to take into account a relevant consideration.
The Victorian WorkCover Authority, as the named sixth defendant (the defendant) argued that there was some uncertainty as to whether illogicality of the Panel’s conclusion was a valid ground of review.[2] It was argued that if it is a separate ground of review available, the relevant test is whether the decision is one that no reasonable decision-maker could arrive at following the test in Ryan v The Grange at Wodonga Pty Ltd.[3]
[2]The other named defendants did not actively participate in the proceeding.
[3][2015] VSCA 17 [86] in which Neave JA refers to the test in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
In answer to the inadequacy of reasons for its conclusion, the defendant argued that the Panel did not need to go further than expressing a view on the current medical condition and whether or not it was related to the compensable injury and did not need to explain any alternative reasonable diagnosis that would explain the ongoing pain symptoms. That was not the role of the Panel and there is no missing link in the Panel’s reasons.
The defendant’s response to the relevant consideration ground (ground 2) was that whether the plaintiff suffered from a chronic pain syndrome was not a fundamental issue before the Panel and further that, in any event, the Panel rejected a diagnosis of chronic pain syndrome.
For the reasons that follow, I have formed the view that the Panel fell into reviewable error in failing to set out a path of reasoning which supported its opinion. While the reasoning in respect of the organic or physical medical opinion was on its face appropriate, that was only part of the task and the Panel did not properly engage with potential psychiatric diagnosis in circumstances where it accepted the plaintiff’s ongoing complaints of pain. Additionally, in part because the Panel failed to set out its path of reasoning overall, the Court cannot be satisfied that it intellectually engaged with the claim for psychiatric injury, being chronic pain syndrome.
The Panel’s Reasons
The Panel’s Reasons stated that it formed its opinion with regard to the documents and information referred to in the enclosures attached to its opinion,[4] the history provided by the plaintiff and the examination findings elicited from the Panel’s examinations.[5]
[4]Reasons for Opinion, filed in Putrus v Fish, S ECI 2019 03592, Enclosures A and B (‘Reasons’).
[5]Dr Fish, Dr Drnda and A/P Van Doornum examined the Plaintiff on 3 April 2019 and Dr Glowinski separately on 20 May 2019.
The Panel referred to the joint statement pursuant to s 304 of the Workplace Injury Rehabilitation and Compensation Act 2013 dated 20 December 2018[6] and noted that the issues in dispute and reasons for referral were:
[6]Reasons (n 4) 4-6.
(a) the nature of the plaintiff’s medical condition of the back/lumbar spine;
(b) the nature of any medical condition of the plaintiff’s mind;
(c) whether any medical condition of the plaintiff’s back/lumbar spinal or mind as assessed by the Panel continues to result from or be materially contributed to by injury suffered in employment with BDS People Pty Ltd;
(d) whether any medical condition of the plaintiff’s back/lumbar spinal mind as identified by the Panel is permanent meaning likely to last for, during or through the foreseeable future;
(e) if the plaintiff has a current work capacity, what employment would or would not constitute suitable employment within the meaning of the Act; and
(f) whether any incapacity is likely to be “permanent” meaning “likely to last for, during or through the foreseeable future”.
The Panel noted the Certificate of Opinion and Reasons for Opinion of a previous differently constituted medical panel dated 26 July 2017. That previous panel found that although there was some evidence of “pre-existing very mild degenerative changes on the MRI scan” in September 2015, the worker suffered from complaints or episodes of pain with no signs or evidence of clinical injury from a mild resolving soft tissue injury of the lower back.[7]
[7]Ibid 6-7.
The Panel recorded that from mid-2015 the plaintiff noted a gradual onset of lower back pain which became worse in September 2015. He consulted a physiotherapist and was provided a lumbar belt to wear. His pain continued, worsening and he ceased work for three months. He received treatment with massage and chiropractic treatment and attended a six week rehabilitation program at Dorset Rehabilitation Centre which, involved physiotherapy and hydrotherapy and gym work, and his symptoms improved. He was off work from 10 September 2015 to 9 November 2015 and returned to light duties. After an unrelated period off work, he was unable to return to the employer as there were no suitable duties. He found alternative work between October 2017 to March 2018 with Camp Australia Services Pty Ltd where he supervised children at before and after school care. This was for a limited period of hours, five days per week. His hours were reduced and he ceased working for Camp Australia and he told the Panel that other attempts to find work had not succeeded as he did not have experience in the roles suggested.
The plaintiff told the Panel that he still experienced right-sided lower back pain and separate pain in both posterior thighs, anterior thighs and calves. The pain in his back radiated in the lumbar spine to the thoracic and cervical spine and across the back of both shoulders. He told the Panel that the pain was getting worse, standing for 15 minutes would lead to pain in the back of the legs as did sitting and he could drive up to 30 minutes at a time being limited by back pain.
The plaintiff’s current treatment included over-the-counter pain relief (such as Panadeine Forte, Panadol Osteo, Nurofen and Nexium) and that he attends his GP monthly. He attends the gym three days a week for about an hour to undertake upper body and lower body strengthening exercises. He does not consult a psychologist or psychiatrist. He has massage treatment when he can afford it.
The physical examination and clinical observations were reported as demonstrating a normal range of power reflexes and sensation. Examination of lumbar spine revealed no loss of lumbar lordosis but mild scoliosis concave to the left and there was tenderness at the cervicothoracic and thoracolumbar junctions. Spinal movements were within normal limits.
The Panel reviewed reports of medical imaging in the supplied documents and noted an MRI scan of the lumbosacral spine dated 17 September 2015 and an x-ray report of the full spine and pelvis dated 28 February 2017.[8] The Panel did not examine medical imaging (as opposed to the report of that imaging) as none was available and the Panel considered none was necessary for it to complete its assessment. The Panel also concluded that no additional information was required from the worker’s treating practitioners to complete the assessment.
[8]Ibid 10.
The Panel’s Diagnosis
The Panel’s analysis and conclusions were provided in two parts dealing with the physical[9] and the psychiatric (mind)[10] injuries and it set out its diagnosis in the following terms.
[9]Ibid 10-11.
[10]Ibid 12-14.
Analysis of any Physical Injury
The Panel noted that Mr Putrus was a 26-year-old otherwise fit and well young man with complaints of persistent lumbar and leg pain with referred symptoms throughout the thoracic and cervical spines. The Panel noted the medical imaging and clinical examination had failed to identify any ongoing significant injury and that apart from mild degenerative changes on the MRI scan there were no clinical signs or other evidence of injury to account for the ongoing complaints and symptoms affecting the back, legs and upper spine. There was also no clinical evidence of any radiculopathy or spinal cord involvement.
The Panel said that Mr Putrus had undergone appropriate rehabilitation and was participating in a strengthening programme and that it was now over three years since the initial claimed injury. The Panel therefore concluded that Mr Putrus suffered a soft tissue injury during the course of his employment but that this had now resolved and that there is now no physical medical condition of the back or lumbar spine relevant to the injuries of the back and/or lumbar spine.
The Panel said that he had mild degenerative changes in the lumbosacral spine, but this condition does not result from and is not materially contributed to by an injury.
The Panel made reference to the report of medico-legal examiner Mr Thomas Kossmann who concluded that Mr Putrus had no capacity to return to his pre-injury duties and that he believed this incapacity will continue for the foreseeable future.[11] The Panel disagreed with Mr Kossmann that the degenerative changes shown on radiology account for his complaints of symptoms based on its own assessment and medical findings.[12]
[11]Report of Mr Thomas Kossman of Lex Medicus, filed in Putrus v Fish, S ECI 2019 03592, 10 July 2017.
[12]Reasons (n 4) 11.
The Panel also noted the report of Dr Hussain dated 21 March 2018 who diagnosed chronic low back pain and that as a consequence of the injury, the plaintiff remained unfit for the work which had been identified.[13] Dr Hussain concluded that the plaintiff needed ongoing conservative treatment intermittently. The Panel disagreed with the opinion of Dr Hussain on the basis that the Panel considered there was an initial soft tissue injury that had since been resolved.
[13]Letter of Dr M Amjad Hussain, filed in Putrus v Fish, S ECI 2019 03592, 21 March 2018.
The Panel referred to the report of medico-legal examiner Dr Barmare in December 2018 in which Dr Barmare expressed the opinion that the injuries consisted of chronic lumbar spondylosis L4/L5 and L5/S1, which is on a background of minor disc prolapse bulges, facet arthropathy at the same location, trapezius fasciitis because of chronic neck pain and chronic regional pain syndrome with chronic pain in the neck and lower back.[14]
[14]Report of Mr Arshad Barmare of Lex Medicus, filed in Putrus v Fish, S ECI 2019 03592, 11 December 2018.
The Panel also disagreed with these diagnoses based on its own assessment and examination findings.[15]
[15]Reasons (n 4) 11.
Psychiatric Injury Analysis
In respect of the psychiatric (mind) injury, the Panel took a history of Mr Putrus’s current psychiatric symptoms and undertook a mental state examination.
The Panel noted the psychology entries contained within the Dorset Rehabilitation Centre Team Assessment. This information indicated that the plaintiff had some emotional symptoms with lowered mood, reduced engagement, reduced pleasure in interests and housework since the back injury, some sleep and appetite disturbance and a sense of hopelessness but no suicidal ideation. The Panel noted that it was unable to find any other mention of significant psychological symptoms or treatment in the referral documents and that the plaintiff apparently denied symptoms of anxiety or depression according to the report of independent medical examiner Dr Bala.[16]
[16]Ibid 14.
Dr Vaidya Bala, in his report of 5 April 2018, referred to “…chronic persistent lower back pain, which is certainly disproportionate to his spinal anatomy and initial soft tissue injury”.[17] However, no further mention was made to the status of the plaintiff’s psychological state.
[17]Report of Dr Vaidya Bala of Victorian Neuro & Ortho Rehab Services, filed in Putrus v Fish, S ECI 2019 03592, 5 April 2018, 5.
Orthopaedic surgeon, Dr Barmare, who conducted a medico-legal examination, identified the plaintiff’s injuries as including “chronic regional pain syndrome with chronic pain in the neck and lower back”.[18]
[18]Reasons (n 4) 11; Report of Dr Arshad Barmare of Lex Medicus, filed in Putrus v Fish, S ECI 2019 03592, 11 December 2018, 5 (‘Barmare Report’).
The Panel concluded that based on the plaintiff’s presentation, history and collateral information, he was not currently suffering any diagnosable psychological or psychiatric condition.
As the Panel concluded that the plaintiff was not suffering from a diagnosable psychological or psychiatric condition, they considered the issues regarding capacity for work were not applicable.
UNREASONABLENESS
The plaintiff’s submissions
By this ground, the plaintiff contended that the Panel acted unreasonably in concluding that the injury to his back and/or lumbar spine had resolved in circumstances where it did not offer an alternative explanation for his ongoing pain.
The plaintiff argued that there was no evidence that the plaintiff suffered any symptoms of back or lumbar spine pain prior to his injury in 2015 and no finding to that effect was made by the Panel.[19]
[19]In the Plaintiff's submissions to the Panel dated 4 February 2019 it was submitted that the Panel acknowledged the Plaintiff did not suffer any pre-existing symptoms related to a lower back injury and this was not challenged by the defendant in their submissions to the Panel dated 5 November 2018. However, in submissions before this Court some challenge was made to the question of pre-existing symptoms predating mid-2015.
The plaintiff described his then current symptoms to the Panel, as set out above.[20]
[20]See paragraphs 26-27 of this decision.
The Panel’s reasoning included that the medical imaging and clinical examination had failed to identify any ongoing significant physical injury. Apart from degenerative changes on the MRI scan there were no clinical signs or other evidence to account for the ongoing complaints and symptoms affecting the back, legs and upper spine and there was no clinical evidence of radiculopathy or spinal cord involvement. The Panel said the plaintiff had undergone appropriate rehabilitation and was participating in a strengthening programme. It was now over three years since the injury and the Panel concluded that the plaintiff suffered a soft tissue injury during the course of his employment that had now resolved and that he had recovered from his back and/or lumbar spine injury.[21]
[21]Reasons (n 4) 10-11.
The plaintiff argued that the Panel was required to reconcile the acceptance of the onset of the symptoms and the persistent lumbar and leg pain at the time of the examination with its conclusion that he had suffered a soft tissue injury which had now resolved. This was said to be a logical gap in reasoning which demonstrated error.
It was argued that the logical gap was widened by the fact that the matters relied upon by the Panel to support its conclusion, that is, that the plaintiff had undergone appropriate rehabilitation and was participating in a strengthening programme and it was now over three years since the injury does not support the conclusion in the circumstances where the plaintiff symptoms continued.
Further, it was argued that its finding that the medical imaging showed an absence of any ongoing significant injury was made in circumstances where the Panel itself examined no medical imaging, relying instead only on the reports of that imaging and the MRI scan relied upon to support that finding was conducted some several years prior to the plaintiff’s examination by the Panel.[22]
[22]The MRI was dated 15 September 2015.
The defendant argued that it was not uncommon for medical specialists to rely upon the report of imaging and not seek to inspect the images themselves.
The plaintiff conceded that the Panel’s conclusion that “apart from degenerative changes on the MRI scan there were no clinical signs or other evidence of injury to account for the ongoing complaints and symptoms affecting the back, legs and upper spine” provides some support for an inference that the Panel considered the degenerative changes may explain the plaintiff’s ongoing symptoms. However, the plaintiff argued that this analysis cannot be sustained in view of the Panel’s rejection of Mr Kossmann’s opinion, Mr Kossmann having provided a reason for the plaintiff’s symptoms.[23]
[23]Reasons (n 4) 11.
In circumstances where the plaintiff’s ongoing complaints were not accommodated in the Panel’s reasoning, the plaintiff submitted that the Panel acted unreasonably in concluding that the plaintiff had recovered from injury.
The defendant’s submissions
The defendant argued that there was nothing illogical in the Panel’s conclusion that the plaintiff was not suffering any ongoing medical condition of the back or spine notwithstanding that the Panel accepted the plaintiff’s complaints of ongoing pain. It was submitted that on a proper reading of the Reasons, the Panel accepted those complaints but was unable to arrive at a diagnosis to explain them.[24] The conclusion that the soft tissue injury had resolved, over three years later, was therefore not surprising nor illogical.[25]
[24]The defendant referred in particular to page 10 of the Reasons.
[25]See Report of Dr Vaidya Bala of Victorian Neuro & Ortho Rehab Services, filed in Putrus v Fish, S ECI 2019 03592, 15 January 2016, 7 and Report of Dr Vaidya Bala of Victorian Neuro & Ortho Rehab Services, filed in Putrus v Fish, S ECI 2019 03592, 12 July 2016, 4, which include a similar conclusion.
Further, the defendant argued that having found that there was no diagnosis based on physical organic reasons to substantiate an ongoing injury attributable to the workplace injury it was not the function of the Panel to explain why they did not come to a conclusion that they did not come to.[26]
26Counsel for the defendant made a contemporary culture reference to Dr House, a character played by Hugh Laurie, with whom I was not familiar, to demonstrate the point but clearly had resonance with others.
As the defendant noted, the Panel was not alone in its inability to identify the cause of the plaintiff’s pain – a previous medical panel and other doctors who had examined the plaintiff also struggled to find an organic basis for his pain.[27]
[27]See, e.g., Report of Associate Professor Anthony Buzzard, filed in Putrus v Fish, S ECI 2019 03592, 4 April 2018, 5 (“I do not think that there’s a significant physical basis to his present presentation. To that extent there is a functional overlay.”); Bala Report (n 17) 5 (“[he] seems to have developed a chronic persistent low back pain, which is certainly disproportionate to his spinal anatomy and initial soft tissue injury”).
The Reasons demonstrated that the Panel considered alternative diagnoses, including degenerative changes, lumbar spondylosis and chronic regional pain syndrome,[28] but ultimately was not satisfied of such conditions.
[28]Reasons (n 4) 7 (“there are complaints or symptoms of pain, but no clinical signs of lumbar injury and no clinical evidence of radiculopathy”); See also the specific disagreement with the opinions of Mr Kossman and Mr Barmare at Reasons (n 4) 11.
The Panel’s role was to form an opinion in relation to the questions asked of it.[29] The Panel was not required to determine the cause of the plaintiff’s ongoing pain in circumstances where it was not satisfied of any ongoing medical condition other than mild degenerative changes in the lumbosacral spine.[30]
[29]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [47] (‘Wingfoot’).
[30]See by analogy Nguyen v Disler [2021] VSC 140 (‘Nguyen’). Mr Nguyen argued that the medical panel’s conclusion that he had no ongoing compensable brain injury, despite suffering from ongoing headaches, was illogical. Justice Gorton rejected that argument, for the reasons expressed at [31], including that “it was not legally unreasonable for this Panel to conclude, as I consider it did, that Mr Nguyen had ongoing headaches that were not caused by the compensable injury, without it having to identify the underlying cause of those headaches”.
At present, illogicality and irrationality have only been identified by the High Court or the Court of Appeal as amounting to reviewable error on findings of jurisdictional fact and the exercise of discretions.[31]
[31]Ryan v The Grange at WodongaPty Ltd [2015] VSCA 17 [82]-[92]; cf, Mailton Holdings v Jussy [2019] VSC 421 [40] (Richards J) and Nguyen (n 30) (Gorton J).
SUFFICIENCY OF REASONS
The plaintiff’s submissions
As the ‘companion piece’ to the argument of legal unreasonableness, the plaintiff argued in the alternative to the logical gap argument identified above that the Panel had not provided adequate reasons for its conclusion. It was argued that the Panel had not set out its actual path of reasoning for its conclusion.
Section 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 requires the Panel to provide reasons for its opinion. Those reasons must explain the Panel’s path of reasoning in sufficient detail to enable the court to see whether the opinion does not involve an error of law.[32]
[32]Wingfoot (n 29) [55]-[56].
The plaintiff submitted that it is unclear from the Reasons whether the Panel considered:
(a) that the plaintiff did not in fact suffer from the symptoms he complained of;
(b) that the plaintiff’s ongoing complaints and symptoms were explained by the degenerative changes on the MRI scan;
(c) if they were, what part of the reasoning led it to conclude that these changes were not materially contributed to by the injury; or
(d) if they were not, what part of reasoning led it to form the view that its conclusion that the plaintiff had recovered from his injury could be sustained in the face of the plaintiff’s persisting symptoms.
The defendant’s submissions
The defendant submitted that this analysis was not correct and that the Panel went on to explain its reasons for reaching different conclusions to Mr Kossman and Dr Hussain (who were the two doctors the plaintiff specifically relied on in his written submissions), as well as Mr Barmare.[33]
[33]Reasons (n 4) 11. (‘The panel disagreed with these diagnoses, based on its own assessment and examinations findings.’).
The defendant submitted that the Panel’s path of reasoning was clearly set out in the Reasons[34] and this demonstrates that it did not fall into error in reaching its answer to Question 1.[35]
[34]See especially Reasons (n 4) 10, 12-14.
[35]See again the analysis in Nguyen v Disler [2021] VSC 140 [41].
The Panel was only required to give reasons that disclose the path by which it reached its opinion sufficient to satisfy the Court that it acted lawfully in reaching that opinion. It was not required to provide reasons for opinions it did not reach.[36]
[36]Wingfoot (n 29) [55]-[56].
The defendant contended that for similar reasons to the illogicality or unreasonableness submission, the argument that the Reasons failed to meet the statutory test should also be rejected.
Findings on Unreasonableness and Adequacy of Reasons
Reasons may be able to be understood by combining what is expressly stated with some inferences necessarily arising. A reviewing court must not speculate about a Panel’s path of reasoning in order to fill the gaps. What is to be set out in the statement of reasons is the actual path of reasoning by which the Panel arrived at the opinion it actually formed for itself.[37] The Court should avoid drawing inferences of a lack of proper evidential foundation disclosed in the reasons and ambiguity may render the reasons inadequate where the conclusions are open to more than one interpretation.[38]
[37]Ibid [48].
[38]Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477 [28] (Richards J).
The function of the Panel is to form its own opinion on the medical questions referred to it. Its role is not arbitral nor adjudicative. It is not to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[39]
[39]Wingfoot (n 29) [47].
It is difficult to glean the rationale for the rejection of any ongoing medical or psychiatric diagnosis in the face of apparent acceptance of the ongoing pain symptoms experienced by the Plaintiff. The Panel rejected the findings of other medical specialists based on its own “assessment and examination findings”.[40] As noted above, it is not for the reviewing Court to speculate to fill the gaps in a Panel’s reasoning.
[40]The Panel in its Reasons stated that they disagreed with the findings of the other medical professionals and that this was on the basis of its own assessment and findings. See Reasons (n 4) 11.
The Panel did not make a finding as to the impact of degenerative changes. It notes there are “mild degenerative changes in the lumbosacral spine, but that this condition does not result from and it is not materially contributed to by an injury”.[41] The Panel did not make a finding in respect of a psychiatrically based chronic pain syndrome or the like and otherwise could not find a connection between the pain, symptoms identified and a diagnosis.
[41]Reasons (n 4) 10.
The Panel considered the plaintiff’s psychiatric state on pages 12 to 14 of the Reasons, noting the limited references to significant psychological symptoms in the referral material, and the plaintiff’s own denial that he suffered symptoms of anxiety and depression. The Panel ultimately concluded that he was not currently suffering from a diagnosable psychological or psychiatric condition.
Essentially, the plaintiff’s complaint is that the Panel did not provide a rationale for the pain and that they were obliged to do so. However, I am of the view that this was not the question they were asked to consider. The question asked of them was to state the nature of the medical condition of the plaintiff’s back, lumbar spine and mind. They have acquitted that task in respect of the organic reasons for his pain. The Panel is required to form its own opinion as to the diagnosis. It has set out the basis of its opinion, that being its own assessment and examination findings. I am not satisfied in these circumstances that the unreasonableness ground, be it the Wednesbury[42] unreasonableness test or in terms of the more recently developing test which would encompass illogicality[43] is made out.
[42]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[43]Schmael v Leach [2020] VSC 562 (Richards J); Nguyen (n 30) (.
However, the Panel had to deal with both the organic and the psychiatric condition of the plaintiff. Having found no organic reason for the pain, and I accept there is sufficient reasoning and logical flow to support this finding and diagnosis, they also had to deal with the plaintiff’s psychiatric condition. The apparent acceptance of the complaints of symptoms and pain squarely raises this issue.
It appears from the reasoning provided that there was no finding of a diagnosable psychiatric condition which would account for the ongoing pain. That said, the Panel does not expressly engage with the potential for the plaintiff to be diagnosed with chronic pain syndrome.
I do not consider that the Reasons provided have dealt with the connection between the ongoing pain and any psychiatric condition. This could be seen as more relevant to the second ground of review.
FAILURE TO CONSIDER A RELEVANT CONSIDERATION
The plaintiff’s submission
The plaintiff contends that the question whether the plaintiff suffered from a psychiatrically based chronic pain syndrome was raised on the materials but not addressed in the Panel’s Reasons. Relying on the principle arising from Ryan v The Grange at Wodonga Pty Ltd,[44] he argues that the Court should conclude that the Panel was bound to, but did not, consider that issue.
[44][2015] VSCA 17 [60].
The plaintiff submitted that the issue of whether he suffered from a chronic pain type of condition was squarely raised in the material before the Panel. The particulars of injury set out at paragraph 11 of the plaintiff’s draft statement of claim alleged chronic pain disorder and/or syndrome and pain syndrome. Whilst it can be fairly said, as it was submitted by the defendant, that the draft statement of claim and the medical reports before the Panel primarily relied on an organic basis for the medical condition, the issue of chronic pain disorder is raised.
The plaintiff noted that the defendant made substantial submissions to the Panel on this issue and the report of medico-legal examiner Mr Barmare (orthopaedic surgeon) dated 11 December 2018 provided the opinion that in addition to chronic lumbar spondylosis and facet arthropathy, the plaintiff’s injuries consisted of chronic regional pain syndrome with chronic pain in the neck and lower back. The plaintiff also directed attention to the report of Dr Bala of 5 April 2018 which referred to chronic persistent lower back pain which is disproportionate to his spinal anatomy and initial soft tissue injury.
The plaintiff argued that in these circumstances it was incumbent upon the Panel to deal with the chronic pain issue and for its Reasons to sufficiently reveal its reasoning in the face of symptoms which are persisted since the date of the excepted injury.
The plaintiff argues that the Panel does not discuss chronic pain syndrome or a similar diagnosis at all in the psychiatric injury section of the Reasons.
The plaintiff argued that the Panel had to engage in an active intellectual process in relation to the his symptoms of pain that may have arisen out of a chronic pain syndrome. It was submitted that in fact the Panel’s Reasons do not reveal that this question was considered by it at all. Consequently, the Panel failed to consider whether the plaintiff suffered from a chronic pain syndrome, which it was bound to do on the materials before it and thus has fallen into error.
The defendant’s submissions
The defendant’s response to this ground was three-fold.
Firstly, it disagreed that the issue of a psychiatric chronic pain syndrome was squarely raised on the materials before the Panel.
The defendant argued that whilst some of the physical doctors referred to the presence of a “functional overlay” or “psychosocial factors”, those doctors were not qualified to offer a psychiatric diagnosis, and no psychiatric reports were put before the Panel. The only materials relevant to the plaintiff’s psychiatric condition were the records of the Dorset Rehabilitation Centre, which did not refer to a chronic pain syndrome that was psychiatric in origin. Further, the plaintiff’s submissions, which focused on the presence of an “identifiable organic condition” made no reference to a psychiatric pain syndrome.[45] In these circumstances, it is unsurprising that the Panel’s psychiatric assessment and diagnosis did not refer to such a syndrome.
[45]Compare Khan v Romas [2017] VSC 731 [31]-[34], where it was noted that the materials before the panel included multiple reports diagnosing chronic pain syndrome and the Plaintiff’s submissions also dealt “expressly and repeatedly” with the issue.
Secondly, even if the ground is concerned with a pain syndrome, such as chronic regional pain syndrome or central sensitisation, it is not accepted that this issue was a mandatory relevant consideration, or that a failure to refer to the issue in the Reasons should be taken to mean that the Panel did not consider it at all.[46] It was reasonable to infer that the Panel considered but did not place weight or emphasis on this issue given its own examination of the plaintiff and the fact that the plaintiff did not refer to a chronic pain diagnosis in his submissions to the Panel. No failure to provide adequate reasons arises because, again, the Panel was not required to give reasons for opinions it considered but ultimately did not reach. Thirdly, the Panel did expressly refer to Mr Barmare’s diagnosis of “chronic regional pain syndrome with chronic pain in the neck and lower back”. The Panel ultimately disagreed with that diagnosis, based on its own assessment and examination findings. This reference strongly supports the argument that the Panel did consider whether the plaintiff’s pain could be explained by a source that is psychiatric in nature.
[46]As to whether the issue was a mandatory relevant consideration, see the reasoning in Omerasevic v Kotzman [2016] VSC 383 at [105]; compare Khan v Romas [2017] VSC 731 at [57].
Finding on Relevant Consideration
Whilst the plaintiff’s medical condition does appear to be primarily based on an organic reason for the ongoing symptoms of pain there is no doubt that there is also a claim for psychiatric or psychological injury as a result of the work place injury.
I consider that the prospect of a psychiatric condition and reason for the ongoing pain is sufficiently well founded in the material before the Panel.
I do not consider that the reference in the section of the Reasons which refers to Dr Barmare’s opinion[47] answers the criticism of the Panel’s consideration of this issue. The reference to Dr Barmare’s opinion is in the consideration of the physical and not the psychiatric condition of the plaintiff. The Panel does not expressly engage with the reference to Dr Barmare or other medical opinions raising this issue in the section of the Reasons which explicitly deal with the plaintiff’s psychiatric state.
[47]Reasons (n 4) 11.
In Sensis v Jones,[48] Ginnane J said that a panel must have engaged in an active intellectual process in which each relevant matter received genuine consideration and that a lack of express reference in its reasons to a fundamental issue can support the inference that the relevant matter was not taken into account.
[48][2018] VSC 754, [63]–[64].
The Panel does, in reference to the report of Mr Barmare, state that it disagreed with this diagnosis based on its own assessment and examination findings. This does not indicate that the Panel turned its mind to the question whether the Plaintiff suffered from chronic pain syndrome as distinct from whether he suffered from the physical injuries identified by Mr Barmare.
Counsel for the defendant referred to the cases of Khan v Romas & Ors[49] and Omerasevic v Kolzman[50] to argue that the extent to which an issue ought to be raised on the materials before the Panel needed to be more direct than in the circumstances. It was argued that the potential diagnosis of chronic pain syndrome was not squarely raised on the material before the Panel.
[49][2017] VSC 731.
[50][2016] VSC 383.
I do not agree that in the circumstances of the material before this Panel, including all of the medical reports and the draft statement of claim and their examination and acceptance of the plaintiff’s ongoing complaint of symptoms that it can be fairly said that this issue was not a relevant consideration.
The draft statement of claim raises the issue and there are references in the medical reports to the issue as a potential diagnosis. In the context of apparent acceptance of the plaintiff’s claim of ongoing symptoms and pain and the identification by the Panel in its own examination of the plaintiff of tenderness in the back,[51] the lack of engagement by the Panel in its analysis and reasons for psychiatric diagnosis with this issue is an omission which undermines the validity of the decision. I am satisfied that the Panel failed to take into account a relevant consideration which they were bound in the circumstances to do.
[51]Reasons (n 4) 9 (“There was tenderness at the cervicothoracic thoracolumbar junctions”).
Conclusion
It is clear that the Panel accepted that the plaintiff continued to suffer pain and weakness as described. They found no organic reason for the continuing condition. The psychiatric analysis does not engage with the prospect of a chronic pain syndrome.
The Panel’s task was to answer the question posed to it by the reference and provide Reasons for its opinion. In respect of the first question, which was to identify the nature of the plaintiff’s medical condition of his back, lumbar spine and mind, the Panel was of the opinion that there was no clinical evidence of injury following resolution of a soft tissue injury. It further opined that he was not currently suffering from a diagnosable psychological or psychiatric condition.
The reasoning in respect of the organic opinion was not in error. However, that was only part of the task and in respect of the combination of the conditions on which it was required to provide its opinion and reasons, the Panel did not properly engage with the psychiatric (mind) condition of the plaintiff. Having accepted the plaintiff continued to have pain, which was not able to be explained by an organic reason, in circumstances where a psychological or psychiatric condition was raised it was incumbent on the Panel to consider the ongoing complaints of pain, and fully engage in the potential diagnosis of chronic pain syndrome. As they did not, there is failure to take into account a relevant consideration which it was required to do and the decision of the Panel cannot stand.
I will provide the parties and opportunity to address the terms of the orders.
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