Ryan v Disler
[2021] VSC 411
•12 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05899
| MICHAEL RYAN | Plaintiff |
| v | |
| PETER DISLER (and other according to the attached schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 March 2021 |
DATE OF JUDGMENT: | 12 July 2021 |
CASE MAY BE CITED AS: | Ryan v Disler |
MEDIUM NEUTRAL CITATION: | [2021] VSC 411 |
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JUDICIAL REVIEW – Medical Panel – Whether failure to take into account relevant considerations – Reliance on worker’s medical history given to the Panel – Whether adequate reasons provided.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay | Maurice Blackburn Lawyers |
| For the Sixth Defendant | Ms M Norton | Thomson Geer |
HIS HONOUR:
The plaintiff, Mr Michael Ryan, seeks judicial review of a Medical Panel opinion (‘the Medical Panel’ or ‘the Panel’), dated 7 November 2019 (‘the Opinion’). The Opinion answered three medical questions concerning whether Mr Ryan had suffered an injury in the course of employment with the sixth defendant, Oskar Air Products Pty Ltd[1] (‘the employer’) in North Laverton. He had worked there as a store person/trades assistant, truck driver and forklift operator since 2010. The work included lifting items weighing 20 kg and heavy manual handling work. He is now aged 56. He had been employed in the sheet metal industry for over 30 years, including performing general steel fabrication work, site work, installing ducts and machinery, truck driving and forklift operating.
[1]The employer is described in some documents as Williamstown Sheetmetal Pty Ltd.
Mr Ryan’s grounds for judicial review are:
(a) The Panel made a jurisdictional error because it did not take into account or give proper, genuine, and realistic consideration to his history of pain, weakness and symptoms experienced since 8 December 2014 as recorded in his affidavit of 25 June 2019, four affidavits of lay witnesses and the opinion of his treating neurosurgeon, Mr Patrick Lo; and
(b) the Panel failed to provide adequate reasons for its Opinion as its reasons did not identify why it reached its conclusion notwithstanding other evidence, namely Mr Lo’s and the lay witness affidavits.
The Medical Panel comprised a consultant psychiatrist, a second psychiatrist, a rehabilitation physician, an orthopaedic surgeon and a neurosurgeon.
The case particularly focuses on the Panel’s consideration of two incidents affecting Mr Ryan, which I will next describe.
The incident at work
On 8 December 2014, Mr Ryan and the owner of the business at which he worked while moving a platform ladder, which was approximately four metres above ground level, dislodged a pallet racking beam that protruded from a pallet. That beam fell and struck Mr Ryan on top of his head. The beam weighed between 10 and 15 kg, and he was knocked to the ground,[2] although he did not lose consciousness. He tried to stand up, became unsteady and fell backwards onto his buttocks.[3] He suffered a small cut to his head, pain in his head and neck, numbness in his fingers and a feeling of heaviness in his arms.
[2]As recorded in Mr Ryan’s second affidavit of 25 June 2019.
[3]Court Book, Ryan v Disler & Ors (Supreme Court of Victoria, S ECI 2019 05899, Ginnane J, 11 March 2021) 109 (‘CB’).
He had not previously suffered any injury or impairment of his neck, although a previous x-ray revealed degenerative changes in his cervical spine.
The next day, Mr Ryan visited his general practitioner in Williamstown, Dr Rick Woods, and told him of the incident and that he had a sore head and neck. Dr Woods did not find any obvious signs of injuries or neurological impairment.
Mr Ryan continued to work for his employer for another 18 months without change of duties until a second incident in July 2016. Mr Ryan did not make a WorkCover claim until after the second incident. During that interval, he attended Dr Woods on seven occasions, but did not mention any medical issue arising from the first incident.
In his first affidavit made in a County Court proceeding prior to the Medical Panel assessment, Mr Ryan stated that there was no further immediate consequence from the first incident, and he continued on with his employment as usual. However, in his second affidavit, made on 25 June 2019, he sought to revise that statement and said that he had felt intermittent pain and symptoms in his neck and shoulders from the first incident. He particularly became aware of these symptoms when going on walks with his wife. He gave examples of his walks around Cherry Lake in Altona and on the Otway Fly, which is a treetop walk. Between the first and second incidents, he and his wife had to shorten their walks because, with the aching and heaviness that he experienced, he no longer had the energy to finish them. He recalled feeling aching in the back of his neck and across his shoulders, his arms would feel heavy as if held down by bricks and he experienced a tingling sensation in his hands. He attempted the Otway Fly on two occasions, the first time, he reported that he felt sore in his neck and shoulders. The second time, six months later, he could not complete it, and his wife had to arrange a golf cart to transport him back to his vehicle. Although his wife advised him to seek medical attention from his general practitioner, he preferred to ‘tough it out’.
Mr Ryan also felt the same symptoms while walking around the workshop at work, and if he was on his feet for more than an hour, he would begin to feel heavy in his arms and would start to ache in the back of his neck and across his shoulders. This occurred most days, but he ‘preferred to “tough it out” [as he] thought it would get better’.[4]
[4]CB 111.
The second incident
In July 2016, while playing with his partner’s granddaughter in the shallow end of the pool at his stepdaughter’s home in Melton, My Ryan felt something move in his neck and suddenly experienced severe pain in his neck (‘the second incident’). The pain extended down his arm and he lost the sensation in his fingertips.
Later that month, on 26 July 2016, he consulted Dr Woods with persisting symptoms in his neck, who arranged an MRI scan which revealed several disc protrusions and a bony growth formation which caused significant compression to the cervical cord.
Dr Woods referred Mr Ryan to Mr Patrick Lo, a neurosurgeon, who advised that he may require surgery but that he would first see if the symptoms settled down. They did not and on 15 November 2016, Mr Lo performed ‘[a] standard C3/4 anterior cervical total microdiscectomy’ and interbody fusion.[5]
[5]CB 130.
Mr Ryan ceased working in September 2016 because of the reduced sensation in his arms and legs and has not resumed employment since.
On 20 March 2019, he commenced a proceeding in the County Court seeking a determination that he had suffered a serious injury and leave to commence proceedings to recover damages for pecuniary loss and pain and suffering.
Mr Ryan’s medical treatment
Initially, after the surgery performed by Mr Lo, Mr Ryan’s progress was ‘fairly good’,[6] but with time he experienced persisting problems, particularly with his left upper arm and left hand. He also had increasing problems with his lower back and numbness in his legs. He understood that further CT scans showed degenerative changes throughout his lumbar spine. In July 2018, Mr Lo performed a nerve sheath injection into his left C7 nerve root, but it did not provide any lasting relief. Mr Lo recommended that he attend a multidisciplinary pain management group with physical therapy, including strengthening exercises for his neck and lower back symptoms and psychology. He did eventually undertake a pain management program and he takes medication for his pain.
[6]CB 95.
He believed that the first incident at work placed a great degree of vertical pressure through his spine resulting in significant cervical spine and lumbar spine injuries and referred symptoms.
Mr Ryan’s symptoms at the time of the Panel assessment
Mr Ryan described his current symptoms to the Panel as including neck and lower back pain, impaired sensations and pain to his left arm and hand and the loss of the ability to maintain control of his legs. He walked with a shuffle and struggled to walk a kilometre, took frequent rests and sometimes used a walking stick. He experienced pain and tightness in his legs around the knees. He slept badly and intimate relations with his wife had been adversely affected because by pain he was suffering. His legs and left upper arm ached and caused discomfort at night. When on his feet for extended periods, he suffered increased pain in his neck and lower back. These symptoms heavily restricted his daily activities, including house maintenance, and he is no longer physically fit to work. He can do his cleaning, but he is unable to do much else due to pain. He mows his lawn, but it takes twice as long as it used to.
He experiences depression and takes anti-depressants. I note that the Panel’s consideration of his depression was not part of the issues raised in this proceeding as a separate ground of jurisdictional error. Parties made no particular submissions about it.
The lay witness affidavits of family and friends
Amongst the material provided to the Panel, were the affidavits of four members of Mr Ryan’s family and friends, which were prepared for his County Court proceeding. They contained their observations and conclusion that the effects on him of the first incident did not resolve and were exacerbated by the second incident. They provided some corroboration that he was experiencing neck and back pain symptoms between the first and second incidents. Mr Ryan’s first ground contends that the Panel made a jurisdictional error by failing to have regard to them.
Ms Tracey North, who married Mr Ryan in November 2018 and had known him for thirteen years made an affidavit. She said that before the first incident, Mr Ryan did not complain of neck and shoulder pain, nor did she recall him suffering from any significant pain or restriction. She said that they walked most weeks for forty minutes to an hour. After the first incident, he complained of neck and shoulder pain including after their walks and he also complained that his legs and arms felt heavy.
Ms North described his experiences of attempting to complete the Otway Fly. She said that Mr Ryan has difficulty walking long distances and ‘walks with a sort of shuffle’[7] and that he is frequently tired and tires easily. She regularly encouraged him to seek medical attention, but considered that he was a ‘typical Aussie male’ who maintained an attitude that ‘she’ll be right’.[8] He is not the man that she knew. Since his injury, he has lost much of his strength and stamina. He no longer does tasks that he once did, such as assisting with maintenance around her house or in the garden and cutting down trees. To the extent that he still carries out physical tasks, he is slower and more restricted. For example, while he still mows his lawn, it takes him far longer than before his injury. He complained that it hurts to use his arms and he could no longer hold himself up with them. Ms North also stated that his injuries and limitations had greatly and negatively affected him emotionally as well as the intimate aspects of their relationship.
[7]CB 125.
[8]CB 124.
Ms Scarlett Kenny is Mr Ryan’s stepdaughter and has known him for thirteen years. She recollected that he seemed ‘okay’ after the first incident, but although he was not the sort of person to complain, she could see that he was struggling. He would hold his arms and rub his neck as if he was in pain around his neck and shoulders, and he said that he felt sore and his arms felt weird. She noticed before the second incident that he had stopped carrying out maintenance. He is now restricted in what he can do, which has affected him emotionally. He can no longer assist his wife with maintenance tasks and even prefers not to hold one of Ms Kenny’s small children or play with them on the ground because of the pain.
Mr Mark Whelan has known Mr Ryan for 28 years and is a close friend. Not long after the first incident, Mr Ryan told him that it ‘hurts like hell’.[9] He complained that his neck was ‘playing up a bit’ and was sore.[10] He had multiple conversations with Mr Ryan about his neck pain between December 2014 and 2016, and on one occasion, before Mr Ryan sought treatment for his neck injury, when he was supposed to go out, he did not leave the house due to neck pain. He suggested that Mr Ryan have an x-ray, but his suggestion was dismissed. He started to complain to Mr Whelan about back pain after the first incident. Mr Whelan described Mr Ryan’s physical condition as terrible and that he moves ‘around like a geriatric’, with a shuffle. He is no longer a physically active man, whereas he used to be quite a handyman, and helped others who needed something done around their home.[11] He told Mr Whelan that this was frustrating, and while he wanted to help, the pain made it too difficult.
[9]CB 119.
[10]CB 120.
[11]CB 121.
Ms Sheila Gent has been a friend and next door neighbour of Mr Ryan for approximately 20 years. He told her after the first incident that his neck and back hurt. Initially, he was okay, but after some time she noticed a change in him. He told her that he had an aching pain in his neck. He stopped helping her with maintenance around the house, such as gardening and fixing the fence, which she needed as her husband passed away in 2018 and had been quite ill in the previous years. She asked him what was wrong, and he sometimes replied that he had aching in his neck. One day after the first incident, he said that he could no longer help with maintenance tasks as he had lost a lot of his old strength. He is nothing like he used to be and regularly complains of pain in the neck and back and weakness in his hands.
The general practitioner’s records and opinion
Mr Ryan’s general practitioner was Dr Woods, who he regularly attended, including on 9 December 2014, the day after the first incident. Dr Woods noted in letters dated 16 February 2018 and 6 February 2019 that while Mr Ryan was experiencing some discomfort, there was no obvious injury or signs of neurological impairment. Dr Woods stated in the first letter:
Michael first saw me regarding his injury on 9th of December 2014 when he stated that a beam had hit him the day prior on the head and that his head and neck were sore. Whilst he was in some discomfort there was no obvious injury and no other signs of neurological impairment.
Of note he has a history of degenerative changes in his neck dating back to xrays and CT Scan taken in 2007.
He presented to see me again on the 26th of July 2016 complaining of neck pain and more importantly symptoms and signs suggestive of numbness and radiculopathy in both arms. He related this to the injury in 2014.
I felt that the condition was severe enough to warrant an MRI.
This showed considerable problems and I referred him immediately to a neurosurgeon (Mr Patrick Lo).
He initially wanted to wait a period of time before eventually agreeing that surgery was the most appropriate course of action. He then had a C3/4 discectomy and fusion procedure done on 15th October 2016.
Since that time his symptoms did improve somewhat, however from notes he has continued to complain of lethargy and weakness generally and recently has some recurrence of his numbness.
I have recently referred Michael back to see Mr Lo for further review and I am awaiting his opinion.
…
In answer to your specific questions.
…
2. Yes. His work significantly contributed to his injuries.
Between the first and second incidents, Mr Ryan attended Dr Woods seven times, but for issues other than neck or shoulder pain. The records do not suggest that he raised any problem arising from the first incident.
After the second incident, Mr Ryan attended Dr Woods on 26 July 2016, complaining of numbness in both arms. Dr Woods felt the condition was severe enough to warrant an MRI, and when it was obtained, he immediately referred Mr Ryan to Mr Lo, as previously mentioned.
From then, until the most recently recorded visit on 29 November 2018, Mr Ryan regularly attended Dr Woods regarding his symptoms. In his letters of 16 February 2018 and 6 February 2019, referred to above, Dr Woods stated his belief that Mr Ryan’s work ‘significantly contributed to his injuries’.[12]
[12]CB 138.
The Panel’s Opinion
The questions referred to the Panel and its answers were:
Question 1: What is the nature of the medical condition of the Plaintiff’s:
a) Cervical Spine;
b) Lumbar spine;
c) Psychiatric injury.
Answer: In the Panel’s opinion Mr Ryan:
a) Sustained a soft tissue injury of his neck and an exacerbation of cervical spondylosis, as a result of the incident on 8 December 2014 which resolved. The Panel concluded Mr Ryan is currently suffering from cervical spine dysfunction resulting from constitutional cervical spondylosis with surgically treated intervertebral C3/4 disc prolapse and no current evidence of radiculopathy at the C3/4 level;
b) No current condition of his lumbar spine;
c) As a consequence of the physical injury of his neck he developed an exacerbation of a pre-existing Dysthymic disorder the background of long-term episodic alcohol misuse or binge drinking, which returned to its previous level of severity with the resolution of the acute physical injury.
Question 2: Was the incident at work on 8 December 2014, when the Plaintiff was struck on the head by a steel beam and knocked to the ground, in fact, or could it possibly have been, a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the Plaintiff’s:
a) Cervical spine;
b) Lumbar spine;
c) Psychiatric injury.
Answer: In the Panel’s opinion the incident at work on 8 December 2014 was in fact a significant contributing factor to the soft tissue injury of the neck and exacerbation of cervical spondylosis, and to the exacerbation of his pre-existing chronic major depressive disorder (dysthymic disorder), both of which resolved.
Question 3:As at date of the Medical Panel’s examination do any, and if so which, of the medical conditions identified in response to question 1 result from or are materially contributed to by any injury sustained by the Plaintiff on 8 December 2014 in the course of his employment with the Defendant?
Answer: In the Panel’s opinion Mr Ryan’s current cervical spine and psychiatric conditions does (sic) not result from and are not materially contributed to by any injury sustained by Mr Ryan on 8 December 2014 in the course of his employment with the Defendant.[13]
[13]CB 417-418.
The Panel’s reasons
The Panel was provided with 66 documents, including the four affidavits of family and friends.[14] The Panel stated that it had considered all medical and Medical Examiner’s reports,[15] Mr Ryan’s responses to its questions, and his two affidavits.[16] The Panel stated that it formed its Opinion with regard to:
a) the documents and information referred to in Enclosure A and B;
b)the history provided by the Plaintiff and the examination findings elicited by the Panel [in their] examinations of the Plaintiff; and,
c) the guidance of the Consultant.[17]
[14]CB 54-57.
[15]CB 430-431.
[16]CB 429.
[17]CB 419.
The Panel did not refer to the lay witness affidavits in its reasons.
The Panel’s reasons recorded the injuries that resulted from the first incident, including the different descriptions Mr Ryan gave of them in his first and second affidavits[18] and his explanation that he had ‘got the first Affidavit incorrect’.[19] This was a reference to his statements in the first affidavit about whether he fell to the ground when hit by the beam and whether the pain in his neck and shoulders soon cleared up. The Panel also referred to Mr Ryan’s attendance on Mr Lo, to his understanding of his current symptoms and an overview of his current health, including his current medication and his attendance at a pain management program.[20]
[18]CB 420-421.
[19]CB 420.
[20]CB 423-424.
Mr Ryan’s answers to the Medical Panel’s questions
The Panel recorded that:
Mr Ryan again stated to the Panel that the statement in the first affidavit was incorrect and that he had in fact continued to experience symptoms following the incident in 2014. He confirmed to the Panel that he initially had a ‘sore neck and head’ but said that these symptoms had only lasted a couple of weeks and then resolved, but he did continue to experience ‘weakness’ of his arms and legs, with intermittent aching of the arms, which was most noticeable when he was walking.
…
Mr Ryan told the Panel that he also experienced some lower back pain after the initial incident, which was increased with lifting and persisted for a relatively short period of time (he could not be more specific). He said that he did not undergo investigation for this at this time.[21]
[21]CB 421-422.
The Panel did not consider the weakness in his arms to be suggestive of a diagnosis of an ongoing aggravation of cervical spondylosis. It recorded that he specifically stated to the Panel that he did not have pain in his neck for more than a couple of weeks after the first incident. It noted that there was no record of Mr Ryan attending his general practitioner for neck pain between 9 December 2014 and the second incident 18 months later.
Physical examination
In undertaking its physical examination of Mr Ryan the Panel noted that he had no visible scar on the top of his head and the ‘scar of anterior cervical fusion surgery was barely visible’. It also found on examination of his cervical spine that he had a decreased range of active movement, with movement causing him to report pain behind his ears or neck. It also found on examination of his lumbosacral spine that he had a normal range of motion. However, he reported ‘tightness at the back of his knees and in his back’ when he flexed forward, rotated or flexed laterally.
Neurological examination
On neurological examination, the only abnormality the Panel noted was slightly decreased right triceps reflex in respect to the left side. However, it did not consider there was any evidence of weakness, wasting or concordant sensory deficient. Therefore, the Panel ‘concluded that there was no clinical evidence of radiculopathy in [Mr Ryan’s] upper or lower limbs’.
Radiological investigations
The Panel noted that an x-ray of Mr Ryan’s cervical spine dated 4 October 2007 showed evidence of diffuse spondylosis, most marked at the C5/6 and C6/7 levels with no evidence of disc space narrowing or foraminal constriction. Later CTs and MRIs of the cervical spine showed multilevel degenerative changes with infringement of the nerve roots on the right side, particularly at C5 and C7.
Psychiatric examination
The Panel also stated that it had undertaken a psychiatric examination of Mr Ryan. After detailing its observations, the Panel stated:
Based on Mr Ryan’s account of his symptoms and functional capacity, the interview presentation and review of the referral documents, the Panel concluded that as a consequence of the physical injury of his neck in 2014 he developed an exacerbation of a pre-existing Dysthymic disorder (Persistent Depressive Disorder) on the background of long-term episodic alcohol misuse or binge drinking. The Panel concluded that this exacerbation had resolved with the resolution of the acute physical injury, and his psychiatric condition had returned to its pre-injury level of severity.[22]
[22]CB 429.
Medical opinions before the Panel
In addition to Dr Woods’ opinion, the Panel was provided with the following medical opinions.
Mr Patrick Lo - treating neurosurgeon
Mr Lo noted that Mr Ryan said that after the first incident, he suffered pain in his head and neck, and after that, he felt a tingling in his hands, and although that tingling sensation settled after about a week, he continued to experience occasional neck and back pain.
On 15 November 2016, after the second incident, Mr Lo conducted a standard C3/4 anterior cervical total micro-discectomy on Mr Ryan’s spine. Before presenting to Mr Lo, Mr Ryan had undergone an MRI scan which revealed a ‘right-sided C3/4 disc/osteophyte protrusion’, causing an indentation of the spinal cord and exiting nerve root.[23] The surgery involved removing ‘a fragment of disc [which was] mixed with possible osteophytic fracture fragment’ which was compressing the spinal cord and the exiting nerve root.[24]
[23]CB 140.
[24]CB 140.
Following the surgery, Mr Ryan underwent a nerve conduction study that identified chronic radiculopathy, although it did not reveal any continuing neural compression. Mr Ryan showed noticeable improvement in his cervical spine injury but began experiencing numbness in his lower back and legs. He also underwent an MRI scan on 14 February 2018, which revealed issues at C7, and to a lesser extent, C5.
Mr Lo expressed the opinion that the first incident was a contributing factor to Mr Ryan’s current conditions and that it resulted in his natural cervical degenerative condition’s aggravation and acceleration. In a second letter, Mr Lo restated his opinion that ‘the [first incident] was a significant contributing factor to his injury’.[25]
[25]CB 173.
Mr Lo also stated that although the cervical fusion had stabilised, the cervical and lumbar conditions’ degenerative nature meant that Mr Ryan will likely continue to suffer from severe pain and limitations. Because the cervical fusion had stabilised, it was unlikely that his condition would ‘improve significantly in the foreseeable future’. Because of this, the nature of Mr Ryan’s injury and its effect on him, he did not have capacity for his pre-injury duties nor was there suitable alternative employment.[26]
[26]CB 141.
Independent medical examiners’ reports
In coming to its assessment, the Panel had access to several medical reports. The independent examiners’ opinions were divided as to whether the current cervical spine condition was related to the first incident or whether that incident could have contributed to Mr Ryan’s current condition. The Panel considered the six independent medical examiners’ reports and agreed with the opinions of Mr R Simm and Mr K Siu that the current cervical spine condition was not related to the first incident. It stated that ‘based on its cumulative experience and expertise and for the reasons detailed’ it came to a different conclusion to the independent medical experts who considered that the first incident could have contributed to Mr Ryan’s current cervical spine condition.[27]
[27]CB 431.
I will now summarise the opinions of the independent medical examiners provided to the Panel.
Mr Ian R Jones
Mr Jones, an orthopaedic surgeon, found that Mr Ryan suffered a mild degenerative disease and a moderately severe prolapse at the C3/4 disc, which manifested in neck pain and neurological symptoms. He believed that the first incident caused an injury to the C3/4 disc but that this resolved, although it left Mr Ryan pre-disposed to the more significant prolapse in the future. That occurred on the second incident, which Mr Jones believed led to Mr Ryan’s current conditions. However, as counsel for the employer submitted, it does not appear that Mr Jones had access to the October 2007 MRI that showed Mr Ryan had cervical spondylosis.[28]
[28]Transcript of Proceedings, Ryan v Disler & Ors (Supreme Court of Victoria, S ECI 2019 05899, Ginnane J, 11 March 2021) 30 (‘T’).
Dr Ralph Poppenbeek
Dr Poppenbeek, an occupational physician, reached the same conclusion as Mr Jones. In his first report, he expressed the opinion that Mr Ryan was dependent on his treatment regime and that his major issue was the degeneration and protrusion of the C3/4 disc. He tended to agree with Mr Jones that Mr Ryan was injured during the first incident, which resolved, but that a relapse occurred during the second incident. He considered that the first incident caused his condition in combination with his constitutional cervical spine degenerative disease.
He delivered a third report noting that on the radiological evidence, it appeared that Mr Ryan had a significant pre-existing degenerative change, which was a factor in his condition. He also noted that although having undergone surgery, he still experienced major impairment.
Mr David Wallace
Mr Wallace, a neurosurgeon, considered that Mr Ryan had an acute disc prolapse at C3/4 and that his current disabilities were permanent. He stated that while Mr Ryan had pre-existing degenerative changes in his neck and back, the first incident caused the acute C3/4 disc injury.
Dr Michael Baynes
Dr Baynes, an occupational physician, examined Mr Ryan on 3 October 2018. He found that his condition was caused by ‘degenerative change at C3/4 level in the cervical spine’ but noted that his ‘[e]mployment is still a cause’.[29] While Dr Baynes noted Mr Ryan’s age-related degenerative change in the cervical spine, he believed his capacity to work would have remained the same if it were not for the pre-existing degenerative change at C3/4 and the second incident where Mr Ryan injured himself while in the pool with his granddaughter.[30]
[29]CB 327.
[30]CB 327.
Mr Kevin Siu
Mr Siu, a neurosurgeon, considered that Mr Ryan had pre-existing cervical spondylosis, which was not severe. He said that he suffered a soft tissue ligamentous injury due to the first incident that temporarily exacerbated his pre-existing cervical spondylosis before resolving. The results of the second incident came for no apparent reason and demonstrated the natural ‘ongoing degenerative changes typical of cervical spondylosis’.[31] Mr Siu did not believe that the injuries resulting from the first injury caused or triggered Mr Ryan’s current condition.
[31]CB 345.
He considered that Mr Ryan’s symptoms in July 2016 were a progression of his pre-existing cervical spondylosis. Mr Ryan continued to work without restriction or recurring symptoms after the first incident. Mr Ryan’s need for surgery arose from his pre-existing condition and the second incident and not from the effects of the first incident. Mr Ryan’s lumbar spine condition was degenerative and was not caused, aggravated or otherwise contributed to by his employment.
Mr Rodney J Simm
Mr Simm, an orthopaedic surgeon, provided a first report, dated 21 February 2019, before he had examined Mr Ryan, and a second report on 29 April 2019 after he examined Mr Ryan.
Mr Simm considered that no relationship could be established between Mr Ryan’s neck and back symptoms and his employment. While accepting that he had some neck pain after the 2014 incident, he did not consider this affected Mr Ryan’s neck or his lower back’s degenerative pathology. Mr Simm considered that Mr Ryan’s neck injury following the first incident resolved quickly. He could not establish any relationship between the first incident and injuries suffered as a result of the second incident. Consequently, Mr Simm stated that he did not believe that Mr Ryan’s injuries were contributed to by his employment and that the underlying cause for the condition is common constitutional progressive age-related degenerative cervical pathology.
The Panel’s conclusions about Mr Ryan’s medical condition
The Panel recorded the findings of their physical examination of Mr Ryan, his various radiological investigations and nerve conduction studies.[32] Based on these findings and the other materials provided to it, the Panel concluded that Mr Ryan:
Sustained a soft tissue injury of his neck and an exacerbation of cervical spondylosis in the incident on 8 December 2014, with resolution of the neck and head pain over a couple a weeks, on the background of radiological evidence of constitutional cervical spine spondylosis, evident radiologically in 2007;
Sustained an aggravation of cervical spondylosis in the further incident in about June or July 2016, with C3/4 intervertebral disc prolapse, treated surgically with anterior cervical fusion, and with no current evidence of radiculopathy at C3/4 level;
Notwithstanding Mr Ryan’s history of chronic back pain, the Panel considered that he has no current clinical or radiological signs of any lumbar spine condition and concluded that he has no current condition of his lower back relevant to the alleged claims of injuries.[33]
[32]CB 424-425.
[33]CB 425.
So far as psychiatric injury was concerned, the Panel concluded that:
[A]s a consequence of the physical injury of his neck in 2014 he developed an exacerbation of a pre-existing Dysthymic disorder (Persistent Depressive Disorder) on the background of long-term episodic alcohol misuse or binge drinking. The Panel concluded that this exacerbation had resolved with the resolution of the acute physical injury, and his psychiatric condition had returned to its pre-injury level of severity.[34]
[34]CB 429.
The Panel recorded the following observations about Mr Ryan. Radiological evidence of cervical spondylosis in Mr Ryan’s spine was noted in October 2007. Mr Ryan may have been knocked forward by the blow (the two affidavits differing on this point), but did not lose consciousness, and sustained only a small laceration on his scalp with transient bleeding and no need for sutures. Mr Ryan apparently developed pain in his neck after the incident, which he reported to his general practitioner (Dr Woods) on 9 December 2014, who commented in his letter of 16 February 2018: ‘Whilst he was in some discomfort there was no obvious injury and no other signs of neurological impairment’. Radiological investigation of Mr Ryan’s cervical spine was not considered necessary at the time. Mr Ryan stated in his first affidavit that there ‘was no further immediate consequence’ of the incident. He stated in his second affidavit that he experienced ‘intermittent pain and symptoms in my neck and shoulder from the date of the accident’, but on direct questioning by the Panel he stated that these symptoms had only lasted a couple of weeks and then resolved. After that, his symptoms comprised ‘weakness’ of his arms and legs when walking, which the Panel did not consider to be suggestive of a diagnosis of an ongoing aggravation of cervical spondylosis. Mr Ryan specifically stated to the Panel that he did not have pain in his neck for more than a couple of weeks after the incident on 8 December 2014. There was no further reference in the general practitioner’s records of any consultation for neck pain between 9 December 2014 and the date of the second incident, July 2016. Mr Ryan’s general practitioner stated in his letter of 9 February 2018:
‘Michael suffered an injury to his head in December 2014 but it was on the 27/6/16 that he started suffering from symptoms of numbness in both arms’, at which time Mr Ryan reported neck pain with pain in his elbows, which extended down the forearms into his fingers, associated at times with tingling;
The treating neurosurgeon, Mr Lo noted Mr Ryan’s history of experiencing tingling in both hands after the incident on 8 December 2014, which ‘settled after [a] period of 1 week’, but that following the incident in the swimming pool in 2016 ‘he began experiencing neck and arm symptoms once more’.[35]
Panel’s conclusion about whether Mr Ryan’s identified medical conditions resulted from, or were materially contributed to by, any injury sustained in the first incident.
[35]CB 429-430.
The Panel reached the following conclusions on this issue:
The Panel took all of the above into account in concluding that the incident at work on 8 December 2014 was a significant contributing factor to a transient exacerbation of Mr Ryan’s cervical spondylosis, and an exacerbation of his pre-existing Dysthymic disorder (Persistent Depressive Disorder), but that the physical injury resolved over a relatively short period of time, and his psychiatric condition returned to its previous level of severity with resolution of his physical condition.
The Panel also considered that Mr Ryan had sustained an aggravation of the pre-existing constitutional cervical spondylosis in the incident in about June or July 2016, with the development of C3/4 intervertebral disc prolapse which was treated surgically with anterior cervical fusion. The Panel also noted that his pre-existing Dysthymic disorder (Persistent Depressive Disorder) on the background of long-term episodic alcohol misuse or binge drinking has persisted.
As the Panel had formed the opinion that the soft tissue injury of the neck and exacerbation of cervical spondylosis sustained by Mr Ryan had resolved, and the pre-existing Dysthymic disorder (Persistent Depressive Disorder) had returned to its previous level of severity, the Panel also concluded that neither his current physical condition of surgically treated cervical spondylosis, nor his current psychiatric condition are, as at the date of the medical panel’s examination result from or are materially contributed to by any injury sustained by Mr Ryan on 8 December 2014 in the course of his employment with the Defendant.
Mr Ryan’s grounds for judicial review
Mr Ryan relied on two grounds to support his application that the Panel’s Opinion be set aside. First, the Panel made a jurisdictional error by failing to consider all relevant considerations, and secondly, the Panel provided inadequate reasons for its Opinion.
Ground one: Jurisdictional Error – relevant considerations
Mr Ryan relied on the decisions of Ryan v The Grange at Wodonga Pty Ltd[36] and Omerasevic v Kotzman[37] for the proposition that a failure to address an issue raised by a worker’s documents or answers is a failure by a Medical Panel to fulfil its statutory function, and, therefore a jurisdictional error.
[36][2015] VSCA 17 (‘Ryan’).
[37][2016] VSC 383.
Mr Ryan argued that the Panel fell into jurisdictional error by failing to properly or genuinely consider his continued history of pain, weakness and other symptoms, including as recorded:
(a) in Mr Ryan’s second affidavit, which deposed that he continued to experience pain and symptoms after the first incident;
(b) the four lay witnesses’ affidavits which recorded corroborative evidence that Mr Ryan continued to experience pain and weakness after the first incident; and
(c) Mr Lo’s opinion that Mr Ryan’s current cervical spine injury was related to his employment.
Mr Ryan argued that because the Panel failed to refer to this evidence expressly or otherwise give it weight, it could be inferred that the evidence was not properly considered. The lay evidence provided corroborative evidence and while the Panel was entitled to find that evidence not medically significant, it did not say so. It should be inferred that the Panel did not consider the lay evidence because if they had, they would have expressly dealt with it in their reasoning.
The employer submitted that not every submission, or part thereof, must be expressly dealt with in the Panel’s reasons. In addition, even if a Panel failed to deal with a consideration, that would not be a jurisdictional error unless it might have come to a different conclusion had the error not occurred.
The employer argued that it could be inferred that the Panel considered Mr Ryan’s affidavits as they dealt with the inconsistencies between them. In addition, because Mr Ryan told the Panel that his injury had resolved by a week or two, after the first incident, the Panel was entitled to treat that as the best evidence regardless of the lay evidence. The Panel based its findings on his own answers to their questions, including that he ceased to suffer pain in his neck or head a few weeks after the first incident. In those circumstances, the significance of the affidavits of family and friends lessened or fell away.
The Panel did accept that Mr Ryan’s ongoing symptoms after the first incident included a feeling of weakness, but determined that it was not ‘suggestive of an ongoing aggravation of cervical spondylosis’.[38] Therefore, although the Panel considered the affidavits, they based their decision on Mr Ryan’s answers to their questions.[39]
[38]CB 429.
[39]De Agostino v Leatch [2011] VSCA 249, [51].
The employer submitted that it was clear that the Panel considered Mr Lo’s reports as its reasons referred to them and explicitly addressed the view that Mr Ryan’s injuries resulted from the first incident contributed to his current injuries.
Analysis
In Ryan v The Grange at Wodonga Pty Ltd, Neave JA stated 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.[40]
[40]Ryan (n 36) [60] (emphasis added).
Keogh J in Stojilkovic v Romas[41], when commenting on Ryan’s Case, stated that:
A mere failure to refer to a mandatory relevant consideration will not necessarily mean that a medical panel failed to have regard to it. A panel is free to accord a matter little or no weight, as long as it can reasonably be inferred that the panel has, before doing so, engaged in an ‘active intellectual process’ of consideration. As is made clear by Cavanough J in Vellios Electrical Contractors v Barton, this does not mean that every submission, much less every part of every submission provided to the Panel must be ‘dealt with in the ... statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part’. Rather, the requirement applies only to mandatorily relevant matters, factors or considerations, which are to be determined by reference to the terms of the relevant statute, rather than by reference to the submissions made to the decision-maker.[42]
[41][2017] VSC 49.
[42][2017] VSC 49 [10].
Therefore, a jurisdictional error will occur when a Panel fails to address relevant issues arising from the material. But there is no error when a Panel does not address each discrete piece of material before it,[43] provided that the Panel considered the issues raised by that material.
[43]Omerasevic v Kotzman [2016] VSC 383 [105].
The function of a medical panel is to form and to give its own opinion on the medical questions referred to it.[44] The Panel is free to give material before it little or no weight and the Court, in determining a judicial review challenge, must not cross the line between judicial and merits review.[45]
[44]Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’).
[45]Ryan (n 36) [61].
The Panel’s reasons make clear that they were aware of the importance of the issue of the neck and back pain that Mr Ryan experienced after the first incident. While that was only part of the material on which it formed its opinion, it is the issue that has been of central focus in this proceeding. The Panel took a medical history of his symptoms after the first incident. They took into account that he had kept working and not reported any problems after the first incident to Dr Woods. They noted that in his first affidavit he stated that ‘[t]here was no further immediate consequence and I continued on [with] my employment with the Defendant as usual’.[46] But they also noted that in his second affidavit he sought to clarify that sentence by saying ‘I felt intermittent pain and symptoms in my neck and shoulders from the date of the accident’ ie the first incident. Dr Woods stated in a letter of 16 February 2018 that after the first incident ‘[while] he was in some discomfort there was no obvious injury and no other signs of neurological impairment’.[47] As previously mentioned, the Panel stated that:
Mr Ryan again stated to the Panel that the statement in the first affidavit was incorrect and that he had in fact continued to experience symptoms following the incident in 2014. He confirmed to the Panel that he initially had a ‘sore neck and head’ but said that these symptoms had only lasted a couple of weeks and then resolved, but he did continue to experience ‘weakness’ of his arms and legs, with intermittent aching of the arms, which was most noticeable [when] he was walking.
To illustrate this, Mr Ryan made reference to walking with his partner on the Otway Fly ( a treetop walk) and said that although he was able to complete this in early 2015, about six months later he could not complete the walk due to aching in his neck and shoulders and ‘heaviness’ in his shoulders and arms, and his partner had arranged for [a] golf cart to transport him back to the car. Mr Ryan said that he had put up with these symptoms and ‘not taken notice of them’. He confirmed however that he specifically did not have pain on neck and head for more than a couple of weeks after the incident on 8 December 2014.[48]
[46]CB 93.
[47]CB 137.
[48]CB 421.
Later in its reasons, the Panel repeated that Mr Ryan ‘specifically stated to the Panel that he did not have pain in his neck for more than a couple of weeks after the incident on 8 December 2014’.[49]
[49]CB 429.
The Panel also noted that Mr Ryan’s treating neurosurgeon, Mr Lo, recorded that he experienced tingling in both hands after the incident on 8 December 2014, which ‘settled after a period of 1 week’, but that following the second incident, ‘he began experiencing neck and arm symptoms once more’.[50]
[50]CB 430.
The Panel noted that Mr Ryan told them that he also experienced some lower back pain after the initial incident, which was increased with lifting and persisted for a relatively short period of time. He did not undergo investigation for this at that time.
The Panel noted that Mr Ryan had undergone radiological investigation of his cervical spine in October 2007 that confirmed degenerative changes in the neck. The plain x-ray of the cervical spine showed evidence of diffuse spondylosis, most marked at the C5/6 and C6/7 levels with no evidence of disc space narrowing or foraminal constriction. An MRI scan of the cervical spine dated 27 July 2016 showed disc protrusion and signal change in the spinal cord at the C3/4 level with less significant degenerative changes at other levels.
The Panel took all these matters into account in concluding that the first incident was a significant contributing factor to a transient exacerbation of Mr Ryan’s cervical spondylosis, and an exacerbation of his pre-existing Dysthymic disorder, Persistent Depressive Disorder, but that the physical injury had resolved over a relatively short period of time, and his psychiatric condition returned to its previous level of severity with resolution of his physical condition.
All these matters demonstrate that the Panel paid close attention to the symptoms that Mr Ryan suffered as a result of the first incident. That was relevant to the issue of whether his medical condition was materially contributed to by any injury he suffered in that first incident. They placed most weight on his account of the effect of the injuries resulting from the first incident rather than the accounts of family and friends. Based on his answers to their specific questions, they found that his experience of ‘intermittent pain and symptoms’ in his neck and shoulders had only lasted a couple of weeks and then resolved. Thereafter his symptoms comprised ‘weakness’ of his arms and legs when walking, which the Panel did not consider to be suggestive of a diagnosis of an ongoing aggravation of cervical spondylosis. They accepted and acted on his response that the intermittent pain and soreness in his neck and shoulders had lasted a few weeks and resolved. His evidence was the best evidence. The Panel was entitled to adopt it in establishing his medical history. It is not surprising that they placed most weight on it.
In their reasons, the Panel referred to the inconsistencies in Mr Ryan’s affidavits and noted that on direct questioning, he stated that his symptoms following the first incident resolved after a couple of weeks.[51] In addition, the Panel mentioned his evidence of pain, weakness and heaviness mentioned in his second affidavit and his answers to the Panel’s questions. The Panel repeated his experience on the Otway Fly and his description of his current symptoms, including his continued feelings of ‘weakness in his legs and arms’.[52] Therefore, I accept the employer’s submission that it can be inferred the Panel formed its opinion on the totality of the evidence before it, but gave particular weight to Mr Ryan’s answers to the Panel’s questions.[53]
[51]CB 420-421, 429
[52]CB 421, 423.
[53]CB 32.
The issue was whether the first incident was, or could possibly have been, a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of Mr Ryan’s cervical spine, lumbar spine or psychiatric injury. The Panel expressly dealt with that issue in its Reasons. It concluded that the weakness felt by Mr Ryan was not suggestive ‘of an ongoing aggravation of cervical spondylosis’,[54] and that while the incident at work was a contributing factor to the soft tissue injury of his neck an exacerbation of Mr Ryan’s cervical spondylosis and exacerbation of his pre-existing chronic major depressive disorder (dysthymic disorder), his ‘physical injury had resolved over a relatively short period of time’[55] and therefore did not cause or contribute to the injuries detected after the second incident.
[54]CB 429.
[55]CB 430.
It is clear that the Panel considered the evidence before it but chose to give Mr Ryan’s statements contained in his second affidavit as to his neck and shoulder pain limited weight in preference to his direct answers to it, its own examination and other expert opinions.
The four lay witness affidavits of family and friends
The fact that the Panel did not mention the four affidavits of family and friends about Mr Ryan’s condition after the first incident was not a jurisdictional error. As previously mentioned, when questioned by the Panel, Mr Ryan stated that his symptoms of neck and shoulder pain had resolved a couple of weeks after the first incident. The Panel was entitled to base its conclusions about his medical history on his statements and answers rather than the on the lay witness affidavits of family and friends.[56] It was hardly surprising that it did. The corroborative evidence had another purpose of demonstrating the existence of symptoms, which might be relevant to whether the first incident caused an aggravation of ongoing cervical spondylosis. To answer that question, the Panel did not have to express a conclusion about the four affidavits as it had already accepted the existence of those symptoms. But it formed the opinion that the symptoms of weakness were not ‘suggestive of an ongoing aggravation of cervical spondylosis’.[57]
Mr Lo’s opinion
[56]De Agostino v Leatch [2011] VSCA 249, [51].
[57]CB 429.
Similarly, the fact that the Panel did not expressly mention Mr Lo’s opinion that the first incident was a significant contributing factor to his injury did not establish a jurisdictional error. The Panel expressly referred to the independent medical examiners’ reports that contained a similar opinion. It can be inferred that the Panel considered Mr Lo’s opinion as they referred to his reports, albeit not the parts on which Mr Ryan relies, and his contemporaneous experience, which was given to Mr Lo, that symptoms following the incident ‘settled after [a] period of 1 week’.[58] Furthermore, the Panel explicitly stated they had ‘reviewed and considered all medical reports from treating health practitioners and practitioners who have examined Mr Ryan’.[59] A Medical Panel does not have to adjudicate between differing medical opinions, but has the statutory duty of forming its own opinion on the questions referred to it. It must consider the medical issues raised by medical opinions provided to it, but the fact that it did not refer to a particular medical opinion does not establish that it failed to perform its duty, particularly when it discussed the issues raised by that opinion.
[58]CB 422-423, 430.
[59]CB 430 (emphasis added), see also 429.
Therefore, although the Panel did not expressly mention each piece of evidence, it clearly considered the issues raised by that evidence, including the medical effects of the first incident on Mr Ryan.
Mr Ryan’s first ground is not established.
Ground two – Inadequate Reasons
Mr Ryan submitted that the Panel fell into error as it ‘failed to explain what consideration, if any, it gave to’ the fundamental issues that arose from the material placed before it. In particular, Mr Ryan submitted that the Panel had failed to provide adequate reasons as to why the history of his symptoms, as supplemented by Mr Lo’s report, the lay opinion evidence, and his second affidavit justified the Panel’s conclusion that his injury resolved over a couple of weeks.
Mr Ryan submitted that although the Panel was entitled to determine whether the evidence provided to it was medically relevant, it did not explain its path of reasoning. In particular, the Panel may have placed preference on Mr Ryan’s answers to its questions and other medical reports while giving little weight to the second affidavit, the lay witness opinions and Mr Lo’s opinion. However, while the Panel was entitled to form the view that specific evidence before it was not cogent, by failing to address the evidence or explain how they considered it, the Panel’s reasons failed to explain the actual path of reasoning that led to its opinion. In particular, by not discussing the theories that competed with the Panel’s finding of cervical spondylosis, Mr Ryan did not know why his ongoing symptoms, which the Panel accepted existed, were not of medical significance.
Mr Ryan also argued that although the Panel formed its conclusion by reference to the history it took, physical examination and the radiological investigation, it did not explain why it reached its conclusion. In addition, while the Panel stated that it considered his submissions, it failed to make mention of critical evidence, such as the lay witness affidavits by family and friends. Its reasons were ‘sweeping generalisations’ and not adequate.[60]
[60]CB 23; Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [31] citing Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [39]-[49].
The employer relied on the proposition that the Panel’s obligation to give reasons differed markedly from those of a Court giving final judgement. As such, on a judicial review application, the Court should not review the reasons over zealously for error. In addition, although a reviewing court may not speculate on the Panel’s reasoning, the reasons are to be understood by reference to what is expressly stated and the inferences that necessarily arise from those reasons.
The employer submitted that when the Panel’s reasons were read as a whole and having regard to permissible inferences, it was clear that the Panel formed its opinion by reference to the material provided to it and its examination of and answers given by Mr Ryan. To the extent to which Mr Ryan’s symptoms persisted, the Panel did not consider them indicative of an ongoing aggravation of cervical spondylosis caused by the first incident. In addition, as to the inconsistencies between Mr Ryan’s evidence as contained in his affidavits, the evidence of family and friends, and his answers on examination, it can be inferred that the Panel formed the view that he did not experience pain in his neck and shoulders for more than a couple of weeks after the first incident.[61]
[61]CB 35.
Analysis
In accordance with the principles stated in Wingfoot Australia Partners Pty Ltd v Kocak[62] and the requirement is s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013, the Panel was required to give reasons for their decision which:
explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question 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.[63]
[i]f the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons [are not adequate].[64]
[62]Wingfoot (n 44).
[63]Ibid 501 [55].
[64]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].
The reasons of a medical panel will be inadequate if they do not demonstrate ‘an evident and intelligible’ justification,[65] or the court is ‘left in any real doubt as to whether a panel has correctly exercised its statutory functions’.[66] That is not the case here.
[65]Tan v Kotzman [2016] VSC 482, [19] citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, [70(d)].
[66]Tan v Kotzman [2016] VSC 482, [19] citing Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].
The Panel was not required to explain why it did not reach a different opinion or comment on the correctness of others’ opinions on the medical questions, nor was it required to explain why it either accepted or rejected any particular evidence or documents.[67]
[67]Wingfoot (n 44) 498-499 [47], 502 [56]; Tan v Kotzman [2016] VSC 482, [16]; Lalor Bowling Club v Mazzei [2018] VSC 727, [79].
The Panel’s path of reasoning was plainly outlined. It detailed Mr Ryan’s history with reference to his answers to their questions, the material he provided in his two affidavits, medical reports and radiological investigations. The Panel also detailed particular findings that they considered were of note, which included that there was evidence of cervical spondylosis in 2007 and that Mr Ryan directly stated to the Panel that he did not have neck pain for more than a couple of weeks after the first incident. The Panel formed its opinion based on a study of the history, their physical examination and questioning of Mr Ryan and the medical reports. Although competing theories existed in the medical reports about the cause of Mr Ryan’s medical condition, the Panel was not required to explain why it did not adopt any particular opinion, but only to explain the path of reasoning for the opinion that it did form.[68]
[68]Wingfoot (n 44) 498-499 [47], 502 [56]; Tan v Kotzman [2016] VSC 482, [16]; Lalor Bowling Club v Mazzei [2018] VSC 727, [79].
Thus with respect to Mr Ryan’s submission that the Panel did not ‘really address directly … Mr Lo’s ultimate opinion on causation’,[69] the Panel was not required to explain why it did not form a particular opinion, ‘nor to opine on the correctness of other opinions’.[70]
[69]T 17.
[70]Wingfoot (n 44) 498-499 [47], 502, [56].
With respect to the submission that the reasons were inadequate because the Panel did not address the affidavit evidence of family and friends.[71] The Panel was not required to deal separately with every document or material provided to it. Although the Panel did not analyse that evidence, they addressed the issues that they raised, namely whether Mr Ryan continued to experience pain following the first incident. The Panel noted several times in its reasons:
[71]CB 22-23.
(a) that their opinion was that his pain resolved over a couple of weeks;
(b) that Mr Ryan stated, following the Panel’s questioning, that he did not have pain after a couple of weeks following the first incident;
(c) but that Mr Ryan continued to struggle at times, including with feelings of weakness or heaviness.[72]
[72]CB 421, 425, 426, 429, 430.
It was open for the Panel to conclude, as they did, following their review of the material, their physical examination, and Mr Ryan’s answers to their questions, that the weakness that he experienced was not ‘suggestive of a diagnosis of an ongoing aggravation of cervical spondylosis’.[73]
[73]CB 429
The fact that the Panel did not expressly disagree with the opinion put forward by Mr Lo, or expressly discuss the evidence of family and friends, does not establish that the Panel failed to provide adequate reasons. It clearly explained how it considered and dealt with the issues raised for its consideration and opinion.
Mr Ryan’s second ground is not established.
Conclusion
The proceeding must be dismissed.
SCHEDULE OF PARTIES
S ECI 2019 05899
MICHAEL RYAN................................................................................................................... Plaintiff
v
PROFESSOR PETER DISLER.................................................................................. First Defendant
MR DAVID DE LA HARPE................................................................................ Second Defendant
MR GEOFFREY KLUG.......................................................................................... Third Defendant
DR CHRIS GRANT............................................................................................... Fourth Defendant
ASSOCIATE PROFESSOR ALEXANDER HOLMES.......................................... Fifth Defendant
OSKAR AIR PRODUCTS PTY LTD...................................................................... Sixth Defendant
0
8
0