Saki v Victorian WorkCover Authority
[2022] VSC 562
•20 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 02029
| ANVAR SAKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (and others according to the attached Schedule of Parties) | Defendants |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 June 2022 |
DATE OF JUDGMENT: | 20 September 2022 |
CASE MAY BE CITED AS: | Saki v Victorian WorkCover Authority & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 562 |
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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Workplace Injury – Injury to spine – Food picker and packer – Injury from nature of duties and lifting incident - Accepted claims – Workplace Injury Rehabilitation and Compensation Act2013 (Vic) – Whether Panel considers injury arising from the nature of employment duties on the basis of the facts agreed between the parties – Panel erred by not giving real and genuine consideration to nature of manual handling duties as a cause of injury – Relief granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Eitan Makowski | Arnold Thomas & Becker |
| For the First Defendant | Michael Fleming QC with Fiona Spencer | MinterEllison |
| For the Second to Sixth Defendants | No appearances | Victorian Government Solicitor |
HER HONOUR:
This proceeding seeks judicial review of an opinion given by a medical panel constituted pursuant to the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (WIRC Act). Mr Saki was employed by a labour hire agency and placed to work as a picker/packer at Polar Fresh Pty Ltd (Polar Fresh) from 2 November 2015. Polar Fresh operated a cold storage warehouse for products destined for Coles supermarkets. Mr Saki alleged injury to his lumbar spine (the first injury) from his duties over the period between December 2015 and June 2016 (the relevant period) and as a result of a lifting incident on 17 November 2016 (the November incident). He also alleged a consequential psychiatric injury.
Mr Saki had an accepted claim for compensation with his employer in respect of the November incident. He had an accepted claim for impairment benefits in respect of injury occurring ‘over a period of time in the course of employment’ encompassing both the first injury and the November incident.
On 2 December 2019 he applied to the first defendant for a serious injury certificate under the WIRC Act. The application was refused by letter dated 25 June 2020, and County Court proceedings were then begun seeking leave to commence a damages claim against his employer and Polar Fresh. Reliance was placed on both mechanisms of injury. In the course of that proceeding, on 15 October 2020, orders were made referring questions to a Medical Panel (the Panel). The second to sixth defendants are the medical practitioners comprising the Panel. They have taken no active role in the proceeding.[1]
[1]Having indicated their intention by letter dated 23 June 2021 to abide by the outcome in accordance with the principles in R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
In all eleven questions were referred. The grounds of appeal as directed at the first two questions and corresponding answers. They are:
Question 1: What is the nature of any medical condition of the Plaintiff’s;
(a) lower back; and
(b) mind?
Answer: (a) In the Panel’s opinion the Plaintiff is currently reporting back pain in the absence of any diagnosable medical condition to account for his symptoms.
The Panel is of the opinion that the Plaintiff had previously suffered symptomatic exacerbations of pre-existing constitutional degenerative disc disease of the lumbar spine, but these exacerbations have now resolved.
(b) In the Panel’s opinion the plaintiff is not currently suffering from any psychiatric or psychological medical condition.
Question 2:(a) Does any medical condition of the lower back identified by the Medical Panel in answer to Question 1(a) continue to result from or be materially contributed to by the compensable injury in the period from December 2015 to June 2016 and/or on 17 November 2016.?
(b) Does any medical condition of the mind identified by the Medical Panel in answer to Question 1(b) result from or is it materially contributed to by any injury identified by the Medical Panel in answer to Question 2(a)?
Answer: (a) The Medical Panel is of the opinion that the Plaintiff’s now resolved symptomatic exacerbations of pre-existing constitutional degenerative disc disease of the lumbar spine resulted, but no longer result from and were but no longer are materially contributed to by any compensable injury in the period from December 2015 to June 2016 and/or on 17 November 2016.
(b) Not applicable.[2]
[2]The Panel’s Certificate of Opinion and their Reasons pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) dated 16 April 2021, 1-2.
As a result the remainder of the questions dealing with permanency and capacity to work were either not applicable or answered adversely to the plaintiff.
The plaintiff has 6 grounds of review in his Amended Originating Motion. Ground 1 deals with the way the Panel dealt with agreed facts in the joint statement[3] provided to the Panel pursuant to s 304 of the WIRC Act. Ground 3, similarly to ground 1, alleges error in failing to consider the nature of the employment duties over time. Grounds 2 and 6 deal with the Panel’s conclusion that the report of back pain presently was not explicable by any diagnosable medical condition. Ground 5 alleges a specific error regarding a report of back pain on 19 October 2015 by not considering it as occurring in the course of the employment with the labour hire company. Finally, Ground 4 relies on an inadequate path of reasoning.
[3]In fact the joint statement relied on by the Panel was a revised joint statement dated 21 October 2020. It was identical in all material respects for the purpose of this judicial review and for convenience I will simply refer to it as the joint statement.
The dispute referred to the Panel
The joint statement provided to the Panel included the following agreed facts:
5. [The Plaintiff’s] duties involved manual handling, mainly in the produce and dairy sections of the facility. On occasion, the Plaintiff might pack in the meat section. For the purposes of this referral to the Medical Panel, it is agreed that the Plaintiff’s duties involved at least a moderate degree of manual handling.
6. The Plaintiff in this proceeding alleges injury to his lumbar spine as a result of manual handling foodstuffs at the site over the period December 2015 to June 2016 and an incident on 17 November 2016. For the purposes of this referral to the Medical Panel, the Defendant accepts the Plaintiff suffered injury to his lumbar spine in the course of his employment with the employer during this period and in this incident.
In its introductory comments, the Panel noted receipt of the joint statement and other documents in the referral material. It noted 14 paragraphs containing agreed facts and set out a series of dot points summarising that information: outlining education and employment history, circumstances of injury, cessation of work and the subsequent course of the Workcover claim. Relevantly, those dot points included:
…
· commenced employment as a picker/packer with his pre-injury employer on 2 November 2015 and was deployed to a cold storage facility, where he worked on a full-time basis, mainly on the afternoon shift, and where his duties “involved at least a moderate amount of manual handling in the produce and dairy sections and occasionally also in the meat section of the facility;
· ceased work on 17 November 2016 and lodged a compensation claim for a back injury which was “first noticed on 17 November 2016” and in respect of which liability was accepted;
…
· lodged an impairment benefits claim for a “Back injury with pain radiating to right leg” sustained “Over a period of time in the course of employment” in respect of which liability was accepted for an “injury to the lower back”.[4]
[4]The italicised phrases are direct extracts from the joint statement.
After the introductory remarks the Panel set out a section headed ‘Occupational History’. In that section the Panel records being told by the plaintiff that he commenced work for the labour hire company in September or October 2015 and then commenced placement at Polar Fresh in November 2015. There is no history of duties undertaken prior to placement. The Panel asked the plaintiff about training documents provided by the employer dated 12 October 2015, which noted a number of hobbies, described provision of ‘extensive training in manual handling techniques’ and included a quiz requiring sound English comprehension and literacy. The plaintiff described a three-day induction course, denied a hobby of weightlifting or weights training and said he attended the training course without the benefit of an interpreter.
The Panel next obtained a history of the pre-injury duties at Polar Fresh in some greater detail. It recorded:
The Plaintiff described to the Panel his employment duties in the fresh produce section of the cold storage warehouse facility where he worked. He told the Panel that he operated an electric pallet mover loaded with one or two pallets, which he drove around the aisles of the warehouse and onto which he picked orders of boxed dairy, fruit and vegetable produce from the warehouse shelving in accordance with instructions transmitted to him via a headset. He told the Panel that upon completing an order he drove the machine to a wrapping area, where he manually wrapped each pallet, then proceeded to the despatch area, where he off-loaded the completed pallets for delivery and reloaded his machine with empty ones.
He told the Panel that he worked for up to five, eight-hour afternoon shifts, from 2 pm until 10 pm, in any given week, and he said that he had a 15-minute tea break and a half-hour meal break during each shift.
The Plaintiff told the Panel that the nature of his duties was physically demanding, requiring sustained weight-bearing activity and fast-paced manual handling of boxes ranging in weight between one and twenty kilograms, as well as frequent bending or squatting and reaching above shoulder height. He told the Panel that he picked 1,350 boxes of produce per shift, and he said that most of the boxes which he handled weighed between five and ten kilograms.
As to the occurrence of injury the Panel recorded:
The Plaintiff told the Panel he could not recall the actual date of the incident which resulted in an injury to his lower back but he said that he clearly recalled both the incident and the subsequent events. He told the Panel that the incident had occurred towards the end of his shift, at approximately 8.30pm on a Thursday and he said he had lifted a box of what he thought were either potatoes or onions, when he felt a sudden pain in his back (‘the incident’).
The Panel then recorded the plaintiff’s recollection of subsequent events, completing his shift, seeking medical attention the following day and having a CT scan, the report of which was dated 30 June 2016. The Panel then recorded a break after which the pain resolved and he resumed work. The reasons continue:
He told the Panel, however, that one or two months later his back pain recurred and he said that “I stopped work”. He was unable to recall, even approximately, when he had last work for his pre-injury employer but said that thereafter he had remained away from the workforce for one or two years.
The Panel noted that the documented history differed from that obtained on attendance before the Panel. The differences covered both the timing of ‘the incident’, which was documented to be November not June, and the inclusion of other incidents of back pain prior to the relevant period that the plaintiff could not recall. The documented history comprised the information contained in the agreed facts of the joint statement, the plaintiff’s own affidavit in support of his serious injury application and the clinical notes of the general practitioner.
Relevantly, the Reasons identified the following from those three sources:
(a) an agreed fact that the plaintiff had commenced work for the labour hire company on 2 November 2015 and had an accepted claim for an injury ‘first noticed on 17 September 2016’ on which day he ceased work;
(b) prior to the commencement of employment at Polar Fresh on 2 November 2015 there were general practitioner attendances of 22 September 2015 and 19 October 2015 where it was recorded ‘developed lower back pain after heavy lifting at work was lower thoracic muscle spasm, settled but then developed mild lumbar pain’ and was ‘advised to lose weight…’;
(c) in relation to the incident, as defined by the Panel, an attendance on the general practitioner on 29 June 2016 with ‘back pain on and off, no history of direct injury, recurrent attacks of stiffness high body weight…’ and the ordering of a CT scan;
(d) further consultation with an extended care plan being developed on 2 July 2016;
(e) a consultation of 15 August 2016 recording ‘now pain is gone’ and that the plaintiff was asking for a clearance; and
(f) consultation on 18 November 2016, the day after the accepted back injury, in which it was recorded ‘low back pain few days, was lifting at work’.[5]
[5]Again the use of italics in the reasons identifies matters directly quoted from the relevant documentary sources.
The reasons say that the Panel asked the plaintiff about the documented history and were told that:
…he could not recall seeking medical attention before the lifting incident on the day prior to his CT scan.
…
The Plaintiff was unable to reconcile the documented chronology of the onset and progression of his back symptoms, and reiterated that the first time he had ever experienced pain in his back was when he lifted a box at work on the day before his CT scan.
The Panel set out an improvement in back pain after ceasing work with weight loss, and deterioration with subsequent weight gain. It took details of his current physical status and his activities of daily living and treatment before detailing its clinical examination.
The Panel said it did not review any imaging. It had available to it the CT report of 30 June 2016 referred to above, and an MRI scan report dated 17 May 2017. Of the MRI, it said it:
noted, and scrutinised, the photographs of this imaging, which were attached to the report, dated 15 September 2020, of the independent medical examiner Mr Graeme Brazenor, neurosurgeon. The Panel considered that the changes described in the CT report were consistent with the photographs, and the MRI photos revealed a right paracentral L5/S1 disc protrusion resulting in compression of the right S1 nerve root.
Unsurprisingly, the Panel concluded it could not entirely rely on the plaintiff’s recall of events, but considered that the documentary evidence and information enabled it to make an accurate assessment of the plaintiff’s current and past condition sufficient to answer the questions. It then set out nine dot points (detailed later in these reasons) that it said it had considered. It concluded:
Based on its analysis of the factors above, the Panel considered that the plaintiff suffered symptomatic exacerbations of pre-existing constitutional degenerative disc disease of the lumbar spine in the course of his employment in June 2016, and again on 17 November 2016; that subsequently the degenerative changes had progressed further, resulting in a radiologically demonstrated L5/S1 disc protrusion (which is nowhere documented to have at any time been associated with corroborative clinical findings); and that both episodes of exacerbation of the Plaintiff’s symptoms which he experienced during the course of his employment have resolved, the June 2016 episode by August 2016 and the November 2016 episode by July 2018.[6]
[6]Emphasis added.
In light of the complaint of persistent pain, and in the context of a ‘normal examination’, the Panel considered a diagnosis of chronic pain syndrome. It concluded that the history obtained and examination were not indicative of such a diagnosis. Features such as a ‘strong focus on persistent, constant pain’; a ‘constant… detailed and unvarying’ description of onset and progression of symptoms, medication use and limitations on activities of daily living commensurate with the pain perception and a firm belief as to disability caused by pain; and non-organic signs on examination were absent. The absence of such features in the plaintiff led the Panel to reject the diagnosis of chronic pain syndrome. The Panel concluded that there was radiological evidence of constitutional multilevel degenerative disc disease in the lumbar spine but considered that the pain symptoms reported:
do not correlate with and cannot be explained either by these changes or by any other diagnosable medical condition.
Therefore, the Panel concluded there had been previous symptomatic exacerbations of the pre-existing condition that had since resolved and so answered questions 1 and 2 as it did.
In relation to capacity for work, the Panel said:
Further noting the degenerative nature of the pathology in the Plaintiff’s lumbar spine, which is likely to progress with the passage of time, the Panel considered that the Plaintiff would almost certainly experience further episodes of symptomatic exacerbation of his constitutional lumbar spine pathology if he returned to this work. Having said, however, the Panel also considered that since the Plaintiff’s medical condition attributable to the accepted injury, specifically his symptomatic exacerbations of pre-existing constitutional degenerative disc disease of the lumbar spine, has resolved, he no longer has an inability, arising from an injury, for the duties of his pre-injury employment.
The Panel went on to undertake a psychiatric assessment, history and examination of the plaintiff concluding that he might have had features of a mild adjustment disorder in the first half of 2018 but the symptoms in the past and those exhibited currently were insufficient to warrant a psychiatric diagnosis.
There was no dispute in the medical opinions as to the presence of an L5/S1 disc protrusion as disclosed by the MRI of 17 May 2017. There was a medical dispute as to its relevance to compensable injury. The report itself noted a clinical history of back pain with radiation into the right buttock. The disc is described as desiccated with a right-sided protrusion that compressed the right S1 nerve.
Dr Graeme Brazenor, neurosurgeon, was retained to provide an opinion to the first defendant. He commented on the available documentary evidence and analysed the two available pieces of radiology. The CT scan showed irregularity at three lumbar levels: asymmetry at L3/4, a moderate diffuse bulge at L4/5 and at L5/S1 an asymmetry with bulging more on the left. By comparison, according to Dr Brazenor, the MRI showed:[7]
at L4/5 there is now not only a diffuse bulge, but a central prominence (see images attached to this report) and this is a significant disc injury.
At L5/S1 there is a large right paramedian disc protrusion severely compressing the right lateral recess and proximal intervertebral foramen.
It should also be noted that both the L4/5 and L5/S1 facet joints have fluid within them, and this is a traumatised back considering at the time of this scan Mr Saki was only 22 years of age.
[7]For completeness, the MRI also indicated that there was no asymmetry at L3/4 indicating that the CT scan finding at that level was an artefact.
Dr Brazenor had a history of the plaintiff first experiencing back pain in June 2016 and severe pain on lifting on a Thursday in November 2016. The CT scan finding at L5/S1 could only be construed, in his view, as a recent injury (within six months) of a moderately severe asymmetric diffuse bulge of the disc annulus encroaching significantly on the central and right sided spinal canal and intervertebral foramen. Implicit in his report is an acceptance that manual work, as described to him by the plaintiff, was a cause of the onset of back pain in June 2016 and its recurrence in November 2016. By the time of the MRI scan there was a moderately severe protrusion of the disc. Dr Brazenor concluded:
The clear implication here is that in the six months prior to the first scan of 30 June 2016, the annulus of at least the L5/S1 disc was injured, and over the next c. 11 months L5/S1 nuclear material winkled its way out through the torn annulus fibres to produce the moderately severe focal protrusion seen in the MRI…
The Panel set out reasons why it reached a different conclusion to Dr Brazenor. It concluded:
The Panel agreed with Mr Brazenor that the MRI-demonstrated disc protrusion required a tear of the annulus to develop. However, the Panel noted that an annular tear cannot be identified on a CT scan, and that Mr Brazenor had not clarified on what basis he considered the L5/S1 bulge seen on that CT scan to be recent. In this context, the Panel further noted that although an annular tear may be acute, it can also develop slowly over a period of time, in which case it is painless until the tear extends to the outer fibres of the annulus. Furthermore, the Panel noted that the Plaintiff is documented to have complaints of episodes of back pain on 22 September 2015 and again on 19 October 2015, prior to commencing work with his pre-injury employer on 2 November 2015. The Panel considered this information pathognomonic of gradually progressing degenerative changes in the Plaintiff’s lumbar spine, the onset of which, both in terms of pathology and symptoms, pre-dated employment.
The Panel considered that apart from two episodes of temporary exacerbation of the Plaintiff’s symptoms ( back pain) in late June 2016 and 17 November 2016, there is no evidence of any other link between his lumbar spine pathology and his employment. Consequently the Panel formed a different opinion to Mr Brazenor.[8]
[8]Emphasis added.
Did the Panel assess the agreed mechanism of injury?
Ground 1 says the Panel was required to take account of,[9] and give real and genuine consideration to,[10] the joint statement that was provided. Alternatively, if the Panel intended to depart from the agreed facts, then procedural fairness required it to give the parties notice of that intended departure.[11]
[9]Minister forImmigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[10]Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17.
[11]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248.
Ground 3 also challenges the finding that, apart from two episodes of temporary exacerbation of symptoms of back pain, there was no link between lumbar spine pathology and employment. In reaching this conclusion the Panel is said to have overlooked the nature of the duties undertaken by the plaintiff, or made a mistake of fact as to symptom onset and progression that was important in the discharge of its statutory function.[12]
[12]Plaintiff, ‘Plaintiff’s Outline of Submissions’, Submission in Saki v Victorian WorkCover Authority & Ors, S ECI 2021 02029, 4 October 2021, [27]-[40].
Submissions of the parties
By these grounds the plaintiff contends that the Panel failed to have regard to the agreed fact that the plaintiff alleged he suffered compensable injury in two ways: in the course of his employment during the relevant period and in an incident on 17 November 2016. In effect, he submits that the Panel overlooked paragraph [6] of the joint statement and that instead, it approached the task on the basis that the plaintiff had suffered an exacerbation injury as a result of an incident in June 2016 and a second exacerbation injury by a recurrence of pain symptoms in November 2016. Accordingly it failed to consider whether the plaintiff had suffered an injury more generally due to the nature of his employment duties in the relevant period.
Alternatively, it was put that this approach departed from the parameters of the dispute as confined by the joint statement and other material before the Panel such that the plaintiff was denied procedural fairness.
There was a clear discrepancy between the plaintiff’s recollection during the Panel’s examination and the documented chronology and agreed facts. The plaintiff was unable to reconcile the discrepancy and the Panel found it was unable to rely on the plaintiff’s recall. Nevertheless, the Panel proceeded on the basis of a recalled lifting incident in June. This was a substantial departure from the agreed facts requiring the Panel to afford the plaintiff an opportunity to address it.
The error in confining the first injury in June to one of an incident on a particular date was material to the conclusion reached by the Panel.
The first defendant submits that the Panel specifically mentioned the joint statement and summarised it. It compared that information with the information provided by the plaintiff during interview and examination. It submitted that the Panel was not bound to find any particular type of injury – that it was a question of fact for the Panel in applying its professional judgment. The present case is distinguishable from the decision of Richards J in Withers v Chalmers Pty Ltd,[13] a decision in which a medical panel had given its opinion on a wrong date of injury contrary to an admission of injury on the agreed date by the defendant. Richards J inferred that the Panel overlooked the admission and departed from the parameters of the dispute between the parties. By contrast this Panel has not departed from the identified dispute of two injuries, one in a particular period and another resulting from an incident on a particular date.
[13][2020] VSC 635.
Consideration
The Panel summarised the joint statement and referred to the agreed description of work duties as involving at least a moderate amount of manual handling. The Panel obtained for itself a full description of the plaintiff’s duties. Ordinarily a statement by a medical panel that it had regard to a joint statement and sets out or summarises particular aspects of it would demonstrate that a medical panel has taken the document into account.[14] But it is necessary in each case to consider that statement in light of the reasons as a whole.
[14]Valspar Paint (Australia) Pty Ltd v Ma [2020] VSC 304; Maribyrnong City Council v Malios [2014] VSC 452.
For the reasons that follow I have come to the view that, despite the Panel’s statement that it had regard to the joint statement and it set out the agreed fact as to manual handling specifically, the Panel did not give consideration to whether or not the agreed manual handling duties conducted through the relevant period had been a cause of the injury to the plaintiff’s back.
The dispute between the parties was one as to the extent of compensable injury to the back. It was accepted by the parties that there were two mechanisms relevant to the compensable injury: one from the nature of his duties throughout the relevant period, and a second from an incident occurring in November 2016. Injury arising from each mechanism had been accepted by the first defendant. This is clear from the acceptance of the weekly payments and medical expenses claim in respect of the November incident and from the acceptance of an impairment claim for injury sustained over a period of time. It is also clear from the identification not only of the agreed facts but from the identified issues in dispute. It was disputed whether the medical condition continues to result from or be materially contributed to by injury suffered with the employer. The defendant did not take issue with the fact that each of the two mechanisms of injury relied on by the plaintiff were a cause of injury. Rather the focus was on the extent of any ongoing compensable injury.
In this context, the plaintiff’s history (according to the Panel) of a lifting incident occurring in June rather than November was clearly at odds not only with the agreed fact in the joint statement but also with almost all of the other evidence before the Panel including the material that the Panel relied on to form a documented chronology. The clinical notes did not support a specific incident in June 2016 (nor November 2016); the plaintiff’s sworn affidavit, the statement of claim, and most of the histories to doctors were consistent with the gradual onset of symptoms in June and a lifting incident in November.[15]
[15]The exception is the history recorded by Dr Barton who has an incident described in November, which was immediately followed by a CT scan, notes a return to work before ceasing again sometime later.
Despite the Panel concluding that it could not rely on the plaintiff’s recall of events, it proceeded on the basis of that recollection, acting upon a lifting incident as in fact occurring in late June. That in itself would not necessarily lead to a conclusion that the Panel had overlooked the nature of work duties and their effect in the onset of pain at that time.
However, the description of the work duties is nowhere discussed in the section headed ‘Discussion and Physical Conclusions’. There is no mention of the manual handling required at all. The focus is entirely on two ‘episodes’ of exacerbation that occurred during the course of employment.
There is no doubt as to the correctness of the defendant’s submission that it is for the Panel to diagnose the relevant injury. But the core of the plaintiff’s submission is that the Panel failed to have regard to manual handling over the relevant period as causative of his back injury, whatever the diagnosis of that condition might be. That aspect of employment was relied on by the plaintiff and, subject only to the qualification that it was ‘at least moderate’, was accepted by the defendant as a relevant causal factor.
In Federal Broom Co Pty Ltd v Semlitch,[16] the High Court addressed the concept of employment contribution to a pre-existing disease. Windeyer J said:
I pass then to the next, and I think more difficult question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of employment or some characteristic of the work performed or the conditions in which it was performed.[17]
[16](1964) 110 CLR 626.
[17]Ibid 642 [11].
The Panel’s discussion and conclusion dealt only with an event or occurrence during employment and not the proposition that the characteristic of work or conditions under which that work was performed caused injury. By considering onset in June as responding to a lifting incident, the Panel appears to have overlooked the nature or characteristic of employment as a causal factor. This might be sufficient to infer that consideration was overlooked.
In my view there are some additional aspects in this part of the Panel’s reasons that strengthen the case for drawing such an inference. First, the symptomatic exacerbations are both described as occurring during the course of employment. They are on each occasion an exacerbation involving the onset of pain. Second, the Panel’s conclusion that apart from those two temporary exacerbations that produced symptoms, there was no other link between employment and spinal pathology. In my view these clearly point to a Panel dealing with an injury occurring at or during work rather than one as alleged by the plaintiff due to the nature of employment. To use the language of the WIRC Act,[18] it considered an injury in the course of employment and not an injury arising out of or due to the nature of employment. If the reasons are to be read implicitly excluding a causal link made by the nature of the duties, the silence strains the ordinary reading of the reasons as a whole.
[18]Workplace Injury Rehabilitation and Compensation Act (Vic) s 5(1).
As I said earlier, the Panel’s conclusion was based on an analysis of nine factors. They were listed:
1) the two episodes of back pain predating 2 November 2015;
2) CT Scan findings which the Panel considered to be constitutional in nature and origin and to have evolved over a number of years;
3) clinical record in August 2016 that back pain was gone;
4) the sudden onset of back pain in the November incident as agreed but the clinical note of the following day recorded back pain for ‘few days’;
5) the letter of the treating neurosurgeon on 12 May 2017 which did not describe clinical evidence of radiculopathy;
6) the MRI scan showing a large disc protrusion which was not evident on the CT scan and ‘consequently must have developed in the intervening period’. The presence of the protrusion did not in the Panel’s view correlate with the onset and progression of symptoms;
7) Dr Barton’s report, based on an examination the day prior to the MRI describing abnormal illness behaviour which was incompatible with an acute disc protrusion and consistent with a gradually developing protrusions;
8) the clinical notes in 2018 and 2020 linking the weight loss and weight gain to the extent of back pain; and
9) the present report of constant low back pain involving the right side of his back the intensity of which had reduced after the first year of absence from work but which persisted since and which did not correlate with examination or the radiology available.
Conspicuously, the nature of the work duties is absent from this list of considerations. It is clear in my view that the Panel focused on the temporal aspect of the onset of symptoms – it did not accept the sudden onset of back pain on 17 November 2016 and, contrary to the agreed facts, accepted a lifting incident occurred in June 2016. It viewed instances of back pain that pre-dated the employment as pathognomonic, or diagnostic, of progressing degenerative changes that were present both as to pathology and symptoms before the employment commenced. It was open to the Panel to reach that view and was hardly surprising in light of the clinical notes that it did so. But that did not address the question of what effect the manual handling duties after that time, performed by the plaintiff over time, had on the spine in that state.
This then in my view may be fairly characterised as a failure to have regard to a relevant consideration, that consideration being: what was the nature of the injury from the employment involving manual handling in the relevant period? It might also be characterised as a question that the Panel did not ask itself or answer: what effect did the period of employment from November 2015 as described to the Panel, and agreed by the parties to involve a moderate amount of manual handling, have on the pre-existing and progressing condition?
As to the adequacy of the reasons, I consider that, contrary to the view I have taken, if the Panel made no error of law because it considered that the manual handling required was of no causal effect, the reasons are not sufficient to disclose any such path of reasoning.
I uphold Ground 1 and Ground 3 as expressed in paragraph [8] of the Amended Originating Motion.
Although this is sufficient to grant the relief sought by the plaintiff, I should also express my observations as to the remaining grounds of review.
Prior symptoms in October 2015 – Ground 5
Ground 5 alleges a failure to take account of the fact that the attendance on the general practitioner in October 2015 occurred at a time when the plaintiff was undergoing training with the employer and so wrongly considered this as demonstrating symptoms generated by the degenerative spine prior to commencing employment. The plaintiff submits that the Panel erred by failing to link this episode of pain as occurring while performing duties for the pre-injury employer.
The defendant submits that, if it is a factual error to treat this episode as one pre-dating employment, the complaint is without merit given the way the plaintiff framed his case. In any event there was no direct evidence that the particular presentation to the general practitioner was a complaint related to duties performed for the labour hire agency.
I accept the defendant’s submission on this ground. The plaintiff framed his case by reference to the period of work when he was placed at Polar Fresh commencing on 2 November 2015 or from December 2015. It was no part of his case that he had suffered compensable injury prior to that time. The October 2015 clinical note recorded the onset of lower back pain as occurring ‘after heavy lifting at work’. It may be that earlier symptoms are relevant to the state of the spine at the time of commencing the relevant work, and may inform the nature of any exacerbation or other compensable injury that occurs due to the nature of the duties as relied on. However, the Panel did not err in noting a ‘documented history of intermittent episodes of non-radiating lower back pain’ prior to commencing at Polar Fresh.
The conclusion that complaint of pain was not explained by the constitutional degenerative condition of the spine nor any other diagnosable condition
Grounds 2 and 6 address the illogicality, irrationality or unintelligible nature of the conclusion that the plaintiff is continuing to report back pain in the absence of any diagnosable medical condition. The answer to Question 1 was said therefore to be one no medical panel acting reasonably could have determined and one for which there was no evidence. Alternatively, the acceptance of the radiologically demonstrable prolapse and the finding of no chronic pain disorder meant that a finding that the absence of a diagnosable condition to explain the reports of pain has come out of the blue and lacks a path of reasoning. Given the MRI that the Panel accepted was dated, the Panel should have made an obvious inquiry in seeking updated radiology.
Central to these grounds was the manner in which the Panel addressed the radiological material.
Dr Brazenor described a protrusion that had occurred through gradual progression – nuclear material that winkled its way out. The Panel agreed that an annular tear was needed for this process to commence. It observed that such a tear could be either acute or develop gradually and would not be identified on a CT scan. It also observed that when developing gradually it is painless until the tear extends to the outer fibres of the annulus. Dr Brazenor described the bulge at L5/S1 level as a recent injury with gradual progression to a large protrusion. The Panel was critical of the description of the bulge as recent, saying Dr Brazenor had not explained why it was recent. Importantly, Dr Brazenor identified that, given the plaintiff’s age of 22 years, the radiological picture is one of a ‘traumatised back’. This description presumably but not explicitly implicates the manual handling work done over the seven months as causing the progression of a bulge to an annular tear and thereafter to disc protrusion.
Critically, the Panel was not obliged to accept the conclusion of Dr Brazenor, unexplained as the Panel found it to be. The Panel considered the two complaints in September and October 2015 as being pathognomonic of a gradually progressing disease the onset of which pre-dated employment both in terms of pathology and symptoms. Put another way the Panel accepted that the complaints of back pain in the two months prior to commencing work at Polar Fresh allowed a diagnosis of degenerative spinal disease to be made before the commencement of employment. But the Panel does not squarely address the point of difference with Dr Brazenor – the timing of the tear becoming symptomatic and whether or not the November incident, or work up until June, was implicated.
Accepting that the degenerative changes were present and symptomatic shortly before commencing work, the reasons fail to grapple with whether the nature of the employment had any effect on the progression of those degenerative changes. The Panel accepted that the annular tear occurred by gradual process, not be able to be seen on CT scan but present on 17 May 2017. Where pain had occurred and resolved on occasions before and during the relevant employment, but recommenced and had not resolved between November 2016 and when the MRI was performed, it was not explained why the progression seen on MRI was unaffected by the relevant period of employment and/or the November incident. While an explanation might not materially change the Panel’s ultimate conclusion that the compensable exacerbation had resolved by July 2018, it would be relevant to the question of capacity for employment, given the Panel thought that the progression of the condition made the plaintiff vulnerable to almost certain further exacerbations.
The conclusion that the exacerbation had resolved would be sufficient explanation for the Panel’s view that up-to-date imaging was not required. In my view the Panel was not obliged to seek up-to-date imaging to address the question of causation. Given the existing abnormalities on the available imaging it was not identified in what way current imaging might inform a diagnosis in the face of the Panel’s own limited examination findings – normal save for tenderness to palpation – and history of variable pain levels associated with physical activity.
On the one hand the Panel accepts the plaintiff’s complaints of pain, accepts that the pain is not driven by his mental state, and accepts the presence of degenerative changes in the lumbar spine is of some significance given his age. On the other hand, they reach the conclusion that the complaints of pain result from no diagnosable medical condition. This might be explained, and so have some logical foundation, by the conclusion that the injuries relied on were in the nature of exacerbations that have now resolved. However, there is an obvious tension between the conclusion that a symptomatic exacerbation (evidenced by complaints of back pain) has resolved and a conclusion that accepts complaints of pain are continuing for which there is no other medical explanation.
Any consideration is made difficult because the Panel has overlooked the effect on Mr Saki’s lumbar spine of the manual handling tasks he had to perform. The findings as to resolved exacerbations are undermined by this failure. Given there is some uncertainty about the availability of illogicality or irrationality as independent grounds of review of medical panel opinions, it is neither necessary nor desirable to consider this further.
Based on my conclusion at [46], I will make the following orders:
(a) that there be an order in the nature of certiorari quashing the opinion of the Medical Panel comprised of the second to sixth defendants dated 16 April 2021 and certified in writing on the referral from Judge Wischusen lodged 26 October 2020 with reference M120/3055.
(b) that there be an order in the nature of mandamus remitting the medical questions in respect of which the opinion was given to a differently constituted Medical Panel to be reconsidered in accordance with law.
I will hear from the parties on the question of costs.
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SCHEDULE OF PARTIES
| S ECI 2021 02029 | |
| ANVAR SAKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| And | |
| JOHN CRONIN | Second Defendant |
| And | |
| DIANE NEILL | Third Defendant |
| And | |
| SUSAN HAMULKA | Fourth Defendant |
| and | |
| ARMIN DRNDA | Fifth Defendant |
| and | |
| JOSEPH ROBIN | Sixth Defendant |
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