Ramalingan v Fine Foods Holdings Pty Ltd
[2021] VSC 38
•5 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00631
| KONESWARAN RAMALINGAN | Plaintiff |
| v | |
| FINE FOOD HOLDINGS PTY LTD | First Defendant |
| DAVID EATON as the Convenor of Medical Panels | Second Defendant |
| PROF PETER DISLER | Third Defendant |
| PROF MARINIS PIRPIRIS | Fourth Defendant |
| MR STEVEN LEITL | Fifth Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 5 February 2021 |
CASE MAY BE CITED AS: | Ramalingan v Fine Foods Holdings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 38 |
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JUDICIAL REVIEW - Medical Panel – Answers to referred questions - Whether Panel performed its statutory function – Employer and worker agree that Panel failed to consider an important issue and made a jurisdictional error – Panel’s Opinion quashed – Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Zaparas Lawyers | |
| For the First Defendant | Russell Kennedy Solicitors | |
| For the Second to Fifth Defendants | Victorian Government Solicitor’s Office |
HIS HONOUR:
The Plaintiff was an employee of the First Defendant, Fine Food Holdings Pty Ltd. He was an oven operator.
The Plaintiff sustained an injury to his right ankle while working for the First Defendant on 23 February 2017. On 25 July 2017 he lodged a claim in relation to that injury, seeking weekly payments and medical and like expenses. The claim was accepted and payments were made accordingly. The First Defendant’s agent subsequently refused two requests for the funding of treatment for the Plaintiff’s left ankle and low back, either because they concerned a condition unrelated to the Plaintiff’s compensable injury or because they did not concern an injury that arose out of or in the course of his employment. The Plaintiff filed a complaint in the Magistrates’ Court of Victoria in relation to the agent’s decisions and medical questions were referred to a Panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
The Plaintiff says that the Panel made a jurisdictional error by failing to give genuine consideration to an issue and seeks judicial review orders quashing the opinion of the Panel and remitting the questions for determination before a differently constituted panel. The First Defendant, the employer, agrees that that is the appropriate outcome of the proceeding and the worker and employer have agreed on orders. Because judicial review orders are sought, the Court must be satisfied that they should be made and in accordance with the Court’s practice,[1] the worker and the employer filed a joint memorandum explaining why those orders are appropriate. I now set out much of that memorandum.[2]
[1]Judicial Review and Appeals List Practice Note [8].
[2]Paragraph 2 is also taken from that memorandum.
The Second Defendant is the Convenor of Medical Panels, and the Third to Fifth Defendants comprised the medical panel convened and constituted pursuant to Division 3 of Part 6 of the Act (Panel).
By way of overview, the Panel found that the Plaintiff suffered from constitutional osteochondritis in the medial talar dome of both ankles, which condition had been aggravated in the right ankle as a result of the accepted work injury (Answers 1(a) and (b); see also Reasons p 9). In relation to the left ankle, the Panel found that this medical condition did not result from and was not materially contributed to by the accepted work injury (Answers 2 and 3). The Panel also found that the Plaintiff had no current condition of the lumbosacral spine (see Answer 1(c)).
The Plaintiff seeks judicial review on the grounds set out in the Further Amended Originating Motion dated 2 October 2020. By way of summary, the ground are:
(a) The Panel erred in law by mistaking or misunderstanding the meaning of ‘medical condition to not include the Plaintiff’s pain and consequential movement restrictions (Ground 1).
(b) The Panel failed to give any/any appropriate consideration to the Plaintiff’s case that any medical condition in his left ankle and/or low back was a consequence of him walking with an altered gait in response to pain arising from his accepted right ankle injury (Ground 2).
(c) The Panel failed to apply the correct legal test in respect of causation and/or failed to consider the Plaintiff’s case in respect of causation (Ground 3).
The Plaintiff intended to press each of the above grounds at hearing.
The Plaintiff contended among other matters that the Panel failed to consider whether the constitutional osteochondral condition in his left ankle was aggravated or made symptomatic by the simple fact of him taking extra weight on it in response to pain in his right ankle, that is, regardless of whether there was an anatomical reason for doing so: see in particular the Plaintiff’s outline of submissions at [49]. For the reasons set out in this joint memorandum, the Plaintiff and the First Defendant agree that the Panel failed to give genuine consideration to that matter when arriving at its answers to Questions 2 and 3 and, accordingly, orders in the agreed form ought be made.[3]
[3]The Plaintiff also contended that the Panel failed to consider whether his antalgic gait had a ‘knock on’ effect on his low back: see the Plaintiff’s outline, [2], [12], [13], [17], [28], [31], [33], [37], [38], [42] and [51].
For completeness, the Plaintiff also contended that the pain in his back was a medical condition, and on the appropriate test was caused by his right ankle injury (see the Plaintiff’s outline at [2], [12], [13], [17], [28], [31], [33], [37], [38], [42] and [51]). Because this Memorandum concerns the Panel’s answers to Questions 2 and 3 (which, by virtue of the Panel’s answer to Question 1(b), did not address causation in respect of the Plaintiff’s low back: see Reasons p 10), no further reference is made to this aspect of the application for present purposes.
The Plaintiff’s case on causation
The Plaintiff relevantly contended before the Panel that, as a result of pain in his right ankle arising from the accepted injury, he adopted an antalgic gait that placed more weight on his left ankle, causing him pain in that area.
The fact that the Plaintiff walked with an antalgic gait, as well as the possibility of a link between this and his left ankle pain, featured in materials that were put before the Panel, including:
(a) the Plaintiff’s submissions to the Panel (paragraph 3);
(b) histories the Plaintiff provided to doctors (see e.g. the histories referred to in Dr Byrne’s 4 April 2018 report; Mr Wang’s 23 April 2018 report, p 1; and Dr Low’s 29 April 2019 report, p 2 ); and
(c) medical opinions provided to the Panel (see e.g. report of Dr Low dated 29 April 2019, p 9; report of Dr Khan dated 22 August 2017; report of Dr Wang dated 22 May 2018).
The Panel’s Opinion and Reasons
The Panel referred to the causation argument in its Reasons:
Mr Ramalingam told the Panel that he started developing pain in his left ankle in or about October 2017 which he attributed to taking more weight on his left ankle to relieve the right ankle pain.
The Panel also noted that the Plaintiff “walked differently without crutches after removing his left and right ankle braces, with an antalgic gait favouring his right leg” (Reasons p 7).
Relevant to this proceeding, the medical questions and the Panel’s answer are set out below:
Question 1: What is the nature of the Plaintiff’s medical condition, if any, relevant to the injuries alleged in paragraph 10 of the Amended Statement of Claim and, in particular:
…
c) consequential left ankle [injury].
Answer: In the Panel’s opinion, Mr Ramalingam has:
…
b)Constitutional osteochondritis of the left medial talar dome.
…
Question 2: From 23 February 2017 to the date of the Medical Panel’s examination, did any, and if so which, medical condition identified by the Medical Panel in answer to question 1(b) and/or 1(c) result from, or is it materially contributed to by an injury to the right ankle sustained on 23 February 2017
Answer:In the Panel’s opinion the condition of Mr Ramalingam’s left ankle did not result from and was not materially contributed to by the accepted right ankle injury between 23 February 2017 and the date of the Medical Panel’s examination.
Question 3: As at the date of the Medical Panel’s examination, does any, and if so which, medical condition identified by the Medical Panel in answer to question 1(b) and/or 1(c) result from, or is it materially contributed to by an injury to the right ankle sustained on 23 February 2017
Answer:In the Panel’s opinion the condition of Mr Ramalingam’s left ankle does not result from and is not materially contributed to by the accepted right ankle injury as at the date of the Medical Panel’s examination.
In relation to the above, the Reasons record as follows (p 9):
Regarding the left ankle, the Panel also considered
·The report of “ankle pain” in 2007 (cited above) had not stated which side was affected, and Mr Ramalingam had been unable to clarify this to the Panel;
·Mr Ramalingam’s General Practitioner had documented both left and right ankle pain on 4 November 2010;
·The radiological features consistent with an osteochondral lesion.
The Panel took all of the above into account in concluding that Mr Ramalingam also had an underlying constitutional osteochondral condition of the left talar dome which accounts for his current left ankle symptoms.
The Panel also considered that Mr Ramalingam had no clinical evidence of a significant neurological motor deficit in the right leg and no evidence of right leg shortening, these being factors which may predispose to extra weight being taken on the left leg.
Based on the above, the Panel concluded that Mr Ramalingam’s left ankle condition did not result from and was not materially contributed to by the accepted right ankle injury between 23 February 2017 and the date of the Medical Panel’s examination, and at the date of the Medical Panel’s examination.
Legal Principles
The following principles are relevant to the disposition of the application for review:
A medical panel is bound to consider the worker’s answers to questions and documents submitted by the worker and the referring body.[4]
[4]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60].
Through such review the medical panel determines the ‘fundamental issues’ that will enable it to answer the referred questions.[5]
[5]Omerasevic v Kotzman [2016] VSC 383, [97]. But see Ryan v The Grange at Wodonga [2015] VSCA 17; Chang v Neill [2019] VSCA 151, [86] and [104]. See also Conroy v Romas [2019] VSC 695, [68]-[70]; Valspar Paint (Australia) Pty Ltd v Ma [2020] VSC 304, [38].
A medical panel is required to engage in an ‘active intellectual process’, in which each relevant matter receives genuine consideration.[6]
[6]Sensis v Jones [2018] VSC 754, [63], referring to Tickner v Chapman (1995) 57 FCR 451, 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [105].
On judicial review, the Court must assess, in a qualitative way, whether the decision- maker has as a matter of substance given appropriate consideration to a relevant matter, having regard to its centrality to the dispute.[7]
[7]See Meyrick v Minister for Home Affairs [2020] FCA 677, [98], Singh v Minister for Home Affairs (2019) 267 FCR 200, [34]-[37].
While it is not necessary for a decision-maker to refer in its reasons to every piece of evidence and every contention made, if a critical piece of evidence or a fundamental issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision maker did not consider the evidence or issue.[8]
[8]Singh v Minister for Home Affairs (2019) 267 FCR 200, [36]; Omerasevic v Kotzman [2016] VSC 383, [95].
Joint position of the Plaintiff and the First Defendant
While a conclusion that a decision-maker has not engaged in an active intellectual process should not be arrived at lightly,[9] the Plaintiff contends, and the First Defendant accepts, that the Panel did not give active consideration to whether the fact that the Plaintiff adopted an altered gait as a result of pain in his right ankle might have caused an aggravation of the constitutional condition in his left ankle.
[9]Meyrick v Minister for Home Affairs [2020] FCA 677, [98], referring to Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [48].
The Panel was required to give active consideration to that matter in circumstances where:
(a) the Plaintiff’s causation argument was squarely raised before the Panel;
(b) there was no dispute that the Plaintiff walked with an antalgic gait favouring his right ankle;
(c) the Panel found that the Plaintiff had a constitutional medical condition in his left ankle; and
(d) the Plaintiff developed pain in the left ankle in the months following his accepted right ankle injury (albeit that this was not the first time he had experienced pain in that area: see Reasons p 9).
The Panel’s Reasons refer only to the absence of a clinical or anatomical explanation for the Plaintiff’s adoption of an altered gait (p 9). They do not demonstrate genuine consideration of whether the fact that the Plaintiff adopted that gait in response to pain in his right ankle could have caused an aggravation of the constitutional condition in his left ankle that ‘resulted from or was materially contributed to by’ the accepted injury. The Panel’s failure to consider this fundamental issue gave rise to a jurisdictional error.
For these reasons, the Plaintiff and the First Defendant propose that the Opinion be quashed and the referred medical questions be remitted to a differently constituted medical panel to be determined in accordance with law.
Court’s Conclusion
Having considered the joint memorandum, I am satisfied that the Medical Panel made a jurisdictional error in answering Questions 2 and 3 by failing to give active and genuine consideration to whether the fact that the Plaintiff adopted an altered gait in response to pain in his right ankle could have caused an aggravation of the constitutional condition in his left ankle that ‘resulted from or was materially contributed to by’ the accepted injury.
I will order that:
(a) The opinion of the Medical Panel constituted by the Third to Fifth Defendants dated 9 December 2019 in respect of the medical questions referred on 23 July 2019 (Medical Questions) be quashed.
(b) The Medical Questions be remitted to a differently constituted Medical Panel for determination according to law.
(c) The First Defendant pay the Plaintiff’s costs of the proceeding on a standard basis to be assessed by the Costs Court in default of agreement.
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