Sensis Pty Ltd v Jones
[2018] VSC 754
•6 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01168
| SENSIS PTY LTD | Plaintiff |
| v | |
| SABRINA JONES | First Defendant |
| PROFESSOR PETER DISLER | Second Defendant |
| DR JULIAN FREIDIN | Third Defendant |
| DR RICHARD TRAVERS | Fourth Defendant |
| KEITH ELSNER | Fifth Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 September 2018 |
DATE OF JUDGMENT: | 6 December 2018 |
CASE MAY BE CITED AS: | Sensis Pty Ltd v Jones |
MEDIUM NEUTRAL CITATION: | [2018] VSC 754 |
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JUDICIAL REVIEW — Medical Panel — Whether injury significant contributing factor to injury — Whether mandatory matters taken into account — Whether statutory test applied — Whether reasons adequate — Accident Compensation Act 1985 ss 5, 5(1B), 82.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with Ms S Gold | Wisewould Mahony |
| For the First Defendant | Ms J Forbes QC with Mr J Angenent | Henry Carus + Associates |
HIS HONOUR:
The plaintiff, Sensis Pty Ltd (‘Sensis’) seeks judicial review of a Medical Panel Opinion certified in writing and dated 13 February 2018 (‘Opinion’). The Panel comprised the second to fifth defendants, who adopted a Hardiman approach for this proceeding. The Panel’s Opinion determined the nature and cause of injuries sustained by the first defendant, Sabrina Jones, on 20 March 2013 in the course of her employment with Sensis.
Background
From September 2008, Ms Jones was employed by Sensis. She initially worked in a telemarketing role, but was promoted through various positions to become a senior account manager. Her duties were to work with specific clients on designing advertising campaigns, which involved visiting clients and speaking with them on the phone or via computers. She worked long hours of work at the computer typing with both hands, using a mouse, and referring to attached documents.
Ms Jones’ claim is that on 20 March 2013 she sustained an injury to her neck, back and left arm in the course of her employment with Sensis. She claimed that the injury occurred while she was sitting at her desk and typing at her computer. She twisted her neck and body to the left side of the desk to look at some notes and as she turned back to the computer she developed severe pain over the left scapula, so severe that she ‘screamed’ and ‘thought the shoulder blade had come out’.[1] This pain persisted despite receiving medical treatment. In her Worker’s Injury Claim Form she described the incident as:
Working at my desk typing and reached over to my notepad and felt a sharp pain in my arm and shortly after in my back and neck.
[1]Panel’s Reasons for Opinion, 4 (‘Reasons’); Court Book, 21 (‘CB’).
On 19 April 2013, Ms Jones lodged a claim for weekly payments and medical and like expenses pursuant to the Accident Compensation Act 1985 (‘the Act’). The claim was accepted by the authorised agent of the Victoria WorkCover Authority (‘Agent’) who acted for Sensis. Ms Jones received weekly compensation payments pursuant to the Act.
In August 2016, the Agent notified Ms Jones that she would no longer be entitled to weekly payments of compensation from 22 November 2016. The basis for this decision was that she either had a current work capacity, or if she had no current work capacity it would not continue indefinitely. This decision followed the opinion of Dr M Brown, who conducted an independent medical examination arranged by the Agent. Dr Brown considered that Ms Jones did have a working capacity and that there would be no need to modify her duties upon her return to work. Ms Jones challenged the cessation of her payments by commencing Magistrates’ Court proceedings on 16 November 2016. She contended that she still suffered from an injury arising from her employment and that she therefore had no current work capacity.
The key issue raised with the Magistrates’ Court was Ms Jones’ work capacity. However, in its amended notice of defence dated 19 June 2017, Sensis raised the issue of causation for the first time. Sensis contended that Ms Jones’ employment was not a significant contributing factor to her injury. If established, this would render her ineligible for compensation payments irrespective of her current work capacity, as the injury would no longer be deemed compensable.
In its amended defence in the Magistrates’ Court proceeding, Sensis repeated three times that it said that Ms Jones’ employment with it was not a significant contributing factor to her injury and also alleged that:
a. [Ms Jones] has a current work capacity or, in the alternative, if she has no current work capacity, which is denied, it is not likely to persist indefinitely;
b. [Ms Jones’] employment with [Sensis] was not a significant contributing factor to the claimed injuries;
c. [Ms Jones’] incapacity for work does not result from and is not materially contributed to by an injury to … which [Ms Jones’] employment with [Sensis] was a significant contributing factor.[2]
[2]CB 60-61.
In its submissions to the Magistrates’ Court, Sensis contended that:
The [worker’s] radiological findings are consistent with the evolution of a degenerative disease in her spine. The nature of [the worker’s] clerical duties with the defendant are unlikely to account for any or any lasting aggravation of that degenerative condition.[3]
[3]CB 51.
During the Magistrates’ Court proceeding, the Magistrate referred medical questions concerning Ms Jones’ work capacity and causation to the Convenor of Medical Panels pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’).
A Panel was convened and provided with copies of all documents in the possession of the parties concerning the medical questions, most notably Ms Jones’ medical history and various medical reports, as well as a statement of agreed and disputed facts and submissions from each party.
The Panel examined Ms Jones on 22 January 2018. On 13 February 2018, it published a Certificate of Opinion recording its answers to the referred questions. A Medical Panel’s opinion must be adopted and applied by a court, body or person pursuant to s 68(4) of the Act and s 313(4) of the WIRCA. The referred medical questions and the Panel’s answers were as follows:
Question 1
What is the nature of [Ms Jones’] medical condition relevant to the following alleged injuries:
a) Injury to the cervical spine
i. C4/5 and C6-C7 posterior disc protrusions;
ii.Left C6 radiculopathy causing pain and sensory loss of the left upper extremity.
b)secondary psychiatric injury, including anxiety and depression (‘the alleged injuries’).
Answer
In the Panel’s opinion [Ms Jones] has:
a)cervical spine dysfunction resulting from a soft tissue and C6/7 disc prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy; and
b)an adjustment disorder with mixed anxiety and depressed mood of moderate severity.
Question 2
Was employment with [Sensis] a significant contributing factor to the alleged cervical spine injury?
Answer
Yes.
Question 3
In the period 22 November 2016 to date, did any physical condition of [Ms Jones’] cervical spine result from or was it materially contributed to by the alleged injuries?
Answer
In the Panel’s opinion, in the period 22 November 2016 to date, [Ms Jones’] cervical spine dysfunction resulting from a soft tissue injury on a background of radiological evidence of degenerative changes in the cervical spine with C6/7 disc prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy, resulted from and was materially contributed to by the alleged injuries.
Question 4
In the period 22 November 2016 to date, did [Ms Jones] have:
a) a “current work capacity”; or
b) “no current work capacity”?
Answer
In the Panel’s opinion [Ms Jones] had no current work capacity in the period 22 November 2016 to date.
Question 5
If “yes” to Question 4(b):
a) is the incapacity for work likely to continue indefinitely?
b)does [Ms Jones’] incapacity for work result from or is it materially contributed to by the alleged injuries.
Answer
In the Panel’s opinion:
a) [Ms Jones’] incapacity for work is likely to continue indefinitely;
b)[Ms Jones’] current incapacity for work is materially contributed to by the cervical spine dysfunction resulting from a soft tissue injury on a background of radiological evidence of degenerative changes in the cervical spine with C6/7 disc prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy, and the adjustment disorder with mixed anxiety and depressed mood of moderate severity.
The Panel’s answers to the questions dealt with issues raised or that might arise from the defences of Sensis, including current work capacity, causation and the claim for compensation.
Sensis seeks judicial review of the Panel’s Opinion on the grounds of jurisdictional error and error of law on the face of the record. The grounds are:
1.In determining its response to referred question 2, the panel failed to consider mandatory relevant considerations and or failed to properly apply [the Act] s 5(1B) which prescribes what must be taken into account in determining whether employment was a significant contributing factor to an alleged injury.
2.In determining its response to referred question 2, the panel fell into jurisdictional error by asking itself the wrong question or failing to answer the question it was required to address.
3.The panel failed to give an adequate statement of reasons sufficient to comply with WIRCA s 313(2), relevant to its finding that [Ms Jones’] employment was a significant contributing factor to the alleged cervical spine injury.
Sensis contends that the Panel was required to consider whether Ms Jones’ employment was a ‘significant contributing factor’ to her injuries. It argues that the Panel fell into jurisdictional error when answering this question by failing to consider mandatory considerations prescribed by the Act (ground 1), failing to ask itself the correct question to satisfy itself of causation (ground 2) and failing to provide adequate written reasons (ground 3).
The Panel’s reasons
The Panel members were by profession a psychiatrist, a rheumatologist, an orthopaedic surgeon and a rehabilitation and general physician.
After recounting the formal history of Ms Jones’ claim, the Panel summarised the questions that it was required to answer. It then set out her account of how the injury occurred, which has been set out above.
The Panel then recounted events that followed the incident including the medical treatment that Ms Jones received, and stated that:
[Ms Jones] said that over time the left scapula pain persisted, but she also developed a pain in the neck and down the left arm and she was referred by her General Practitioner to a Neurologist, Dr S Yerra.[4]
[4]Reasons 4; CB 21.
The Panel then noted Dr Yerra’s reports and notes and those of Mr G Nair, a neurosurgeon and Dr C Thomas a consultant in Rehabilitation and Pain Medicine. The Panel recorded Ms Jones’ description of her current symptoms to it as follows:
·constant pain which extends from the base of the skull down to the thoracic spine, midway below the shoulder blades;
·pain from the left shoulder down the lateral aspect of the left arm as far as the hand, with particularly intense pain in her palm, index finger and thumb;
·pain over the left side of the face, extending into left ear, and to the top of the head, which she described as a ‘headache’.
·On occasions she develops photophobia, blurred vision and nausea with the above headache, and said that she has been diagnosed with migraine. She acknowledged that her General Practitioner may have advised her to take migraine-specific medication, but she said that she tries to avoid taking tablets and so has not taken this to date. She said that she was admitted to the Mercy Werribee Hospital with a severe migraine a week prior to attending the Panel and was treated with an intravenous drip;
·pain in the left ankle and foot; she said that this pain, which developed about one year ago, is increased by walking, and feels ‘exactly the same as the pain in her hand’. She said that she had undergone radiological investigations of her lower back but had been told that no cause for her left lower limb symptoms had been found;
·the whole of the left arm and the left foot ‘don’t move’ in the mornings, and may take one to two hours to improve;
·she has been wearing an elasticized brace on her wrist for ‘a year or so’. She said that she started wearing this because her fingers and wrist curled up at night and she finds that she is unable to use her left hand or arm unless she wears the splint, as her hand is ‘floppy’. She said that she does use her mobile telephone regularly, which she holds in her left hand, but she is unable to hold her telephone unless she wears the splint.[5]
[5]Reasons 6; CB 23.
The Panel recorded her medication, personal circumstances and employment history including that after the incident she returned to work on modified duties but ceased working in May 2014.
The Panel recorded the results of its physical examination of Ms Jones and its review of radiological investigations and noted that:
·[a] CT scan of the cervical spine dated 16 April 2013 showed moderate disc protrusion at C6-C7 and a small protrusion at C4-5;
…
·[an] MRI scan of the cervical spine dated 1 July 2016 showed a large C6-C7 lateral and central disc protrusion with moderate–to-severe central canal narrowing and mild narrowing of the left C7 foramen. A small disc prolapse was also seen at the C4-C5 level, not affecting the spinal canal or nerve root foramen. MRI scan of the lumbosacral spine was normal on the same date.[6]
[6]Reasons 8-9; CB 25-26.
The Panel then stated:
Based on the history taken by the Panel, its physical examination of [Ms Jones] and its review of the attached documents and radiological investigations, the Panel concluded that [Ms Jones] is suffering from cervical spine dysfunction resulting from a soft tissue injury and a large C6/7 disc prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy.[7]
[7]Reasons 9; CB 26.
The Panel then referred to other medical reports about evidence of radiculopathy and then dealt with issues of the connection between Ms Jones’ work and her injuries in the following paragraphs:
The Panel considered [Ms Jones’] description of the incident of injury, as described above, and noted that [Ms Jones] had developed symptoms after twisting her head and upper body, having previously been asymptomatic. Subsequent medical imaging of [Ms Jones]’s cervical spine revealed a disk prolapse. The Panel considered that a movement such as she described was indeed consistent with cervical disc prolapse, and concluded that [Ms Jones’] employment with [Sensis] was a significant contributing factor to the alleged cervical spine injury.
…The Panel considered that [Ms Jones’] presentation at the time of examination was consistent with the onset and progression of disc prolapse which has never remitted despite treatment. The Panel thus concluded that [Ms Jones’] cervical spine was affected by her employment on or about 20 March 2013 and those effects persist.
The Panel therefore concluded that in the period 22 November 2016 to date, [Ms Jones’] cervical spine dysfunction resulting from a soft tissue injury on a background of radiological evidence of degenerative changes in the cervical spine with C6/7 disc prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy, resulted from and was materially contributed to by the alleged injuries.[8]
[8]Ibid.
The Panel then considered psychiatric issues affecting Ms Jones and issues which led to its conclusion that she had no current work capacity. The Panel stated that:
The Panel considered the functional demands of [Ms Jones’] pre-injury employment as a senior account manager (as detailed above), and noted that this demanded prolonged sitting at a computer work station, typing with both hands, using a mouse and referring to attached documents. The Panel took this into account in forming the opinion that Ms Jones’ psychiatric condition (with an adjustment disorder with mixed anxiety and depressed mood of moderate severity, and in particular her frustration and irritability, her lack of energy and motivation, and her persistent, although less severe suicidal ideation), in conjunction with her physical condition (cervical spine dysfunction resulting from a soft tissue and C6/7 disc prolapse with referred pain to the left arm), is of such severity that [Ms Jones] is not capable of performing her pre-injury duties.[9]
[9]Reasons 14; CB 31.
The Panel concluded that:
…[Ms Jones’] incapacity for work, from 22 November 2016, up to, and including the date of the Medical Panel examination, was materially contributed to by [Ms Jones’] current psychiatric condition (adjustment disorder with mixed anxiety and depressed mood of moderate severity relevant to the alleged injury) in conjunction with current physical condition (a large lateral and central C6/7 disc protrusion with moderate-to-severe central canal narrowing and mild narrowing of the left C7 foramen, and referred pain to the left arm).[10]
[10]Reasons 16; CB 33.
The Panel then referred to the reports of the Independent Medical Examiner, Dr M Brown, which is referred to later in this judgment.
Legislative scheme
Both the Act and WIRCA are relevant to this proceeding. In 2013, the WIRCA was introduced to replace the Act and simplify the legislative regime for the rehabilitation of injured workers and their compensation entitlements.[11] However, compensation for injuries occurring before 1 July 2014 are still to be assessed under the Act.[12] As the injury in this proceeding occurred before that date, the compensation entitlement provisions of the Act are to be applied. By contrast, the relevant and applicable medical panel referral provisions are to be found in the WIRCA.
[11]Workplace Injury Rehabilitation and Compensation Act 2013 s 1.
[12]Ibid ss 5, 6.
The relevant provisions of the Act are as follows:
5. Definitions
(1)In this Act unless inconsistent with the context or subject-matter –
…
injury means any physical or mental injury and, without limiting the generality of that definition, includes –
(a) industrial deafness;
(b)a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
…
(1B)In determining for the purposes of this Act whether a worker’s employment was a significant contributing factor to an injury—
(a)the duration of the worker’s current employment; and
(b)the nature of the work performed; and
(c)the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and
(f) the life-style of the worker; and
(g) the activities of the worker outside the workplace—
must be taken into account.
82. Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
…
(2C)There is no entitlement to compensation in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injury –
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
The relevant provisions of the WIRCA are as follows:
3 Definitions
In this Act –
…
Medical question means any of the following –
…
(h)a question whether a worker’s employment was in fact, or could possibly have been –
(i) a significant contributing factor; or
(ii) a contributing factor –
to an injury or alleged injury, or to a similar injury.
274 Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a) may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b) if—
(i) a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii) the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
313 Opinions
(1)Subject to section 312, a Medical Panel must form its opinion on a medical question relating to a claim for a benefit under Part 5 referred to it—
(a)within 60 days after the Medical Panel receives from the Convenor the documents relating to the medical question; or
(b)within such longer period as is agreed by the Conciliation Officer, a court, VCAT, the Authority or the self-insurer.
(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.
(3)Within 7 days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer, the court, VCAT or the Authority or the self-insurer its written opinion and a written statement of reasons for that opinion.
(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a) is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
Ground 1 – failure to consider mandatory relevant considerations
Sensis’ first ground was that the Panel made a jurisdictional error by failing to take into account mandatory considerations when considering the question of whether Ms Jones’ employment was a significant contributing factor to an injury that they suffered. As set out previously, s 5(1B) of the Act prescribes factors that ‘must be taken into account’, which include:
(d)the probable development of the injury occurring if that employment had not taken place; and
(f) the life-style of the worker; and
(g) the activities of the worker outside the workplace.
The particulars of this ground are that the Panel failed to take into account the required matters under s 5(1B)(d) and (g) and by only commenting in its reasons that Ms Jones’ described movement was ‘consistent’ with the cervical spine disc prolapse, the Medical Panel failed to consider whether the employment was actually, or in fact, a significant contributing factor to the alleged injury. Paragraph (f), lifestyle was also relied on.
Sensis asserted that these three mandatory factors were not considered by the Panel despite being squarely raised by the referred material, and that therefore the Panel made a jurisdictional error. Sensis placed particular reliance on paragraph (d) and its counsel stated in reply that its complaint really centred around that consideration, ‘the probable development of the injury occurring if that employment had not taken place’.[13]
[13]Transcript of Proceedings, Sensis Pty Ltd v Sabrina Jones & Ors (Supreme Court of Victoria, S CI 2018 01168, Ginnane J, 7 September 2018), 130.
Sensis’ submissions
Sensis argued that Question 2 required the Panel to consider the causal link between Ms Jones’ employment with it and her injury by applying the test of significant contributing factor. This was to be done with particular focus on the three mandatory factors mentioned above, particularly that in paragraph (d). In answering Question 2, the Panel must have given ‘active intellectual consideration’[14] to these causal factors, something that was not evident in the Panel’s reasons.
[14]Bat Advocacy NSW Inc v Minster for Environment Protection, Heritage and the Arts (2011) LGERA 99, [2011] FCAFC 59 at [44] (Emmett, McKerracher and Foster JJ), citing Tickner v Chapman (1995) 57 FCR 451 at 462.
The issues of causation and whether Ms Jones’ employment with Sensis was a significant contributing factor to her injury were squarely raised in the material referred to the Panel. Sensis’ written submissions to the Panel contended that Ms Jones’ employment was not a significant contributing factor to her injury and that there was no discernible mechanism for the injury to her spine. Ms Jones’ movement leading to the onset of symptoms was benign and not heavy, repetitive or demanding. Sensis relied on a number of medical reports. First there was the report of Dr M Bloom, an Occupational and Environmental Physician, who considered that the injury was consistent with the evolution of a degenerative disease state in Ms Jones’ spine not consistent with a traumatic injury.[15] He stated that it was ‘very likely that she would have developed similar or the same symptoms had she not worked with Sensis’.[16] He also noted that Ms Jones engaged in demanding physical activities leading up to the incident, including attending a gym up to four times per week and boxing training, that would be considered ‘far more likely to contribute to the evolution of a prolapsed intervertebral disc than the nature of her work duties with Sensis’.[17]
[15]CB 282.
[16]CB 287.
[17]Ibid.
Sensis also relied on the report of Mr I Jones, an Orthopaedic Surgeon, who concluded that the injury appeared to be a ‘spontaneous event’ as the circumstances of its occurrence, a slight turning of the neck, appeared to be ‘exceedingly minor, there being only reference to some slight turning of the patient’s neck to the left side to view her note book’.[18] In a later report Mr Jones stated that the work incident appeared to have been ‘an aggravating factor’ for a previous and apparently asymptomatic condition of degenerative C6-7 disc disease.
[18]CB 300.
Dr M Brown, an Occupational Physician, who made an Independent Medical Examination Report, observed that there was ‘no clear evidence that employment has caused any injury or medical condition’ as Ms Jones was ‘merely working in an office when her symptoms occurred’.[19] He stated that there did not appear to be any apparent ‘feasible mechanism of an injury at work’,[20] and that there was no clear evidence of aggravation or exacerbation of a pre-existing injury or disease.
[19]CB 260.
[20]Ibid.
Sensis argued that, in light of these opinions, the Panel had to consider the possibility that Ms Jones’ injury was not caused by the workplace incident, but was rather a spontaneous manifestation of a pre-existing degenerative spinal disease. Additionally, the evidence suggested that the cause of the injury was not the benign movement in the performance of her clerical role but rather her demanding exercise regime.
These issues required the Panel to consider prescribed matters under s 5(1B): the claim the injury was a spontaneous event was relevant to paragraph (d): the probable development of the injury occurring if that employment had not taken place; and Ms Jones’ exercise regime was relevant to paragraphs (f) and (g): her life-style and her activities outside the workplace.
Sensis submitted that the Panel did not properly address the issue of causation and the material that related to it. The only discussion about causation and Ms Jones’ lifestyle and activities in the Panel’s reasons was in the following passage, which I will repeat:
The Panel considered [Ms Jones’] description of the incident of injury, as described above, and noted that [Ms Jones] had developed symptoms after twisting her head and upper body, having previously been asymptomatic. Subsequent medical imaging of [Ms Jones]’s cervical spine revealed a disk prolapse. The Panel considered that a movement such as she described was indeed consistent with cervical disc prolapse, and concluded that [Ms Jones’] employment with [Sensis] was a significant contributing factor to the alleged cervical spine injury.
The Panel noted [Ms Jones’] reported history of her symptoms not improving, and increasing over the past few years. The Panel also noted that the C6/7 disc appeared to be larger on the radiological investigation of 1 July 2016 than it had been in 2013, and that the latter investigation had shown moderate-to- severe central canal narrowing and mild narrowing on the nerve root exit foramen. The Panel considered that [Ms Jones’] presentation at the time of examination was consistent with the onset and progression of disc prolapse which has never remitted despite treatment. The Panel thus concluded that [Ms Jones’] cervical spine was affected by her employment on or about 20 March 2013 and those effects persist.
The Panel therefore concluded that in the period 22 November 2016 to date, [Ms Jones’] cervical spine dysfunction resulting from a soft tissue injury on a background of radiological evidence of degenerative changes in the cervical spine with C6/7 disc prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy, resulted from and was materially contributed to by the alleged injuries.
In a later section of its reasons, the Panel stated:
She said that outside of work she attended the gym three or four times each week and enjoyed dancing and music…[21]
[21]Reasons 10; CB 27.
Sensis argued that the Panel’s reasons demonstrated that it did not intellectually grapple with the issue of causation as was required. There was no reference in the reasons to the medical evidence suggesting that the injury was spontaneous and could have occurred at any point, and no reference to what affect her rigorous exercise regime could have had on the injury. From this, it could be inferred that the mandatory considerations were not taken into account.
Ms Jones’ submissions
Ms Jones submitted that the Panel had not failed to take mandatory considerations into account and was entitled to disagree with medical opinions provided to it. She pointed out that her claim had been accepted and weekly payments made until the insurer changed its approach following Dr Brown’s report and its reference to degeneration. But Dr Brown had relied on X- rays from 2016, which were explicable as evidence of degeneration since 2013. The Panel did in fact refer to Mr Brown’s opinion, stating that it had reached a different conclusion to the one he expressed.
Ms Jones also submitted that the Panel, having considered the description of the incident and the medical opinions contained in the referral material, was satisfied that the workplace incident was the mechanism for her disc prolapse. In answering Question 2, the Panel considered all of the relevant evidence and materials, including medical reports, and correctly concluded that the workplace incident, in which the symptoms became evident, was a significant contributing factor to her injury. In doing so the Panel had express regard to those mandatory factors it deemed relevant, such as the nature of the work performed being the paragraph (a), (b) and (c) considerations. Thus the Panel discussed, in detail, Ms Jones’ employment history, her workplace roles and tasks and the workplace conditions. The Panel took into account that she spent much time sitting at her desk using a computer and referring to documents and her belief that her desk was too low.
The fact that the Panel specifically addressed some of these considerations meant that the others were probably not regarded as relevant. The Panel did not have to refer expressly to every mandatory consideration, to establish that it had taken them into account. In accordance with the High Court decision in Wingfoot Australia Partners Pty Ltdv Kocak[22], it was entitled to disagree with the evidence and opinions of the medical practitioners whose analysis formed part of the material provided to it.
[22](2013) 252 CLR 480 (‘Wingfoot’).
Ms Jones contended that the Panel did have regard to factors (d), (e), (f) and (g), particularly her activities outside her employment. The Panel referred briefly to her gym routine of attendances four times weekly in the context of a psychiatric assessment. It stated that it did have regard to all of the referred material, which included material raising the question of causation and whether her activities outside of employment had a bearing on her injury.
Even if Ms Jones’ activities outside the workplace did have some causal effect on her injuries, the Panel could still have found that her employment was a significant contributing factor. The Panel was entitled to conclude, on the basis of a temporal connection between the workplace incident and the sudden onset of symptoms, that Ms Jones’ employment was a significant contributing factor to the cervical prolapse.
Ms Jones’ injury could be contributed to by a number of factors. A positive answer concerning the significance of the work contribution to the injury would not be negated by other causal factors such as Ms Jones’ exercise routine.
Analysis of ground one
This Court’s task is to consider whether the Panel performed its statutory duty by answering the questions as posed taking into account the statutory scheme contained in the Act.
Section 82(1) of the Act entitles injured workers to compensation if he or she has caused to them ‘an injury arising out of or in the course of any employment’. However, s 82(2C) carves out a class of injuries that attract an additional causal test that requires employment to be a significant contributing factor to a worker’s injuries. That class of injuries is a ‘recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease’. In considering whether a worker’s employment was a significant contributing factor to their injury, s 5(1B) prescribes mandatory considerations that must be taken into account.
Determining whether an employee’s work was a significant contributing factor to their injury is a factual enquiry. As Ashely J stated in Popovski v Ericsson Australia Pty Ltd:
What amount or effect will be ‘considerable’ in any particular case will, of course, be a matter for determination on the facts; the determination being ordinarily inviolable.[23]
[23]Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 at [61] (‘Popovski’).
Later in St Mary’s School v Askwith, Ashley JA reiterated this point by saying:
The words ‘significant contributing factor’ involve resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation.[24]
[24][2011] VSCA 90 [13].
Section 5(1B) seeks to assist in the resolution of this factual enquiry by directing a Panel’s attention towards possible issues. However, as Ashley J stated in Popovski, the sub-section is not an end in itself:
All this emphasises the care that needs to be taken in applying the sub-section - a sub-section in which there are constant shifts in language and use of inexact terminology. It needs to be steadily borne in mind, I consider, that the sub-section exists to assist in resolving the question whether an employment was a significant contributing factor to injury, not as an end in itself. If the larger question is kept in focus, the possible relevance of the presence or absence of circumstances fitting sub-paragraphs (a) to (g) will be the more apparent.[25]
[25]Popovski at [81].
The major questions on which to focus when determining whether a mandatory consideration was taken into account are: was the factor squarely raised on the evidence and fundamental to the Panel’s answering of the referred questions and if so, did the Panel appropriately take the factor into account.
The issue raised by Sensis’ first ground, as it developed in submissions, was whether the Panel properly took into account the mandatory considerations particularly those in s 5(1B)(d),(f) and (g).
I raised with the parties the question whether the issue of a pre-existing injury was really before the Panel and Ms Jones submitted that it was not. But I consider that it was raised by Sensis’ defence and submissions as well as some of the medical reports. The acceptance of Ms Jones’ weekly payments claim did not prevent the medical questions being referred to the Panel. Though the principal issue before the Magistrates’ Court was Ms Jones’ work capacity, the issues of causation and pre-existing injury were nonetheless squarely raised on the referred materials and, by virtue of Question 2, fundamental to its determination. The Panel was therefore required to expressly address the issue of causation by applying the significant contributing factor test.
The Panel expressly relied on the mandatory considerations relevant to the duration and nature of Ms Jones’ employment, being the considerations in paragraphs (a), (b) and (c) in reaching its conclusion that her twisting and reaching motion was a significant contributing factor to her injury. The Panel’s reasons on causation were that the temporal connection between Ms Jones’ movement of twisting her head and upper body, having previously been asymptomatic, was consistent with the injury of cervical disc prolapse, showed that the employment was a significant contributing factor.
The Panel did not agree with the assertion that the injury was a ‘spontaneous event’, and accepted that Ms Jones suddenly became symptomatic while conducting a workplace task. The Panel correctly focused on evaluating the significance of the employment contribution to the injury rather than addressing and contradicting every alternative conclusion proffered by the many medical reports.
But the Panel did not give any real consideration to paragraph (d), ‘the probable development of the injury occurring if that employment had not taken place’. Question 2 expressly asked the Panel whether employment was a significant contributing factor in Ms Jones’ injury and that involved consideration of a causal test, taking into account the mandatory considerations contained in s 5(1B). Furthermore, Sensis’ submissions and the reports of some of the doctors disagreed with, or provided grounds for contesting the proposition that her employment caused, or was a significant contributing factor to, her injuries.
Question 2 contained the language of s 82(2C) and therefore required an evaluation of whether Ms Jones was disentitled to compensation by virtue of the provision. The question presupposes that her injury was a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease as the test will only become operative in such a case.[26]
[26]Kamener v Griffin [2005] VSC 202 [73] Ashley J. The present case is not one where, despite the medical questions being referred, the Panel could have decided not to answer Question 2 because there could not possibly be a paragraph (c) injury.
In submissions, Ms Jones questioned the accuracy of Dr Bloom’s assessment because he was analysing 2016 X-Rays when reaching his conclusion, rather than 2013 X-Rays taken immediately after the incident. Therefore, she submitted that the degeneration Dr Bloom perceived was more likely than not to have occurred over the three years from the incident, and not before. There was no evidence contemporaneous with, or prior to, the incident that suggested spinal degeneration.
The Medical Panel was not required to expressly address all evidence and issues, only those that were ‘squarely raised’ on the evidence or ‘fundamental’ to the answering of the referred questions.[27] But as appears from the authorities next discussed, a failure to expressly refer to a relevant consideration, or to give it weight, can enable an inference to be drawn that it was not taken into account.
[27]Ryan v The Grange at Wodonga [2015] VSCA 17; Omerasevic v Kotzman [2016] VSC 383.
The Court of Appeal decision in Ryan v The Grange at Wodonga[28] addressed the requirement that the Panel consider relevant considerations. The Court decided that the Panel had not properly had regard to an issue because its reasons did not ‘indicate that the Panel undertook any meaningful consideration of the effect which a return to work could have on aggravating the pre-existing injury’.[29] Neave JA stated that:
If the worker’s answers or the documents provided [to the Panel] raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[30]
[28][2015] VSCA 17 (Neave JA; Santamaria JA and Ginnane AJA agreeing).
[29]Ibid [71] (Neave JA).
[30]Ibid [60] (Neave JA) (citations omitted).
These principles were later summarised by Riordan J in Omerasevic v Kotzman[31] in the following terms:
[31][2016] VSC 383 (‘Omerasevic’).
(a)A medical panel is bound to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred questions.
(b)The fundamental issue arising from the referral material, in the circumstances of that case, was whether the worker, by returning to her work duties, would aggravate her pre-existing shoulder injury.
(c)The reasons of the medical panel did not deal with the fundamental issue of ‘whether the appellant’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition’.
(d)Her Honour inferred that the medical panel ‘did not take account of’ the fundamental issue – presumably on the basis that:
(i) it was not expressly referred to in the reasons; and
(ii)if such a fundamental issue had been considered, one would expect that it would have been referred to.
(e)The medical panel, by failing to deal with the fundamental issue, for the purpose of answering Question 2, had failed to fulfil its statutory function of forming its opinion on the medical question referred to it. Speaking colloquially, I infer her Honour as concluding that, given its significance to the referred question, the medical panel had failed to have regard to the elephant in the room. This constituted jurisdictional error.[32]
[32]Ibid [97] (citations omitted).
The Panel must have engaged in an ‘active intellectual process’, in which each relevant matter received genuine consideration.[33]
[33]Bat Advocacy NSW Inc v Minster for Environment Protection, Heritage and the Arts (2011) LGERA 99, [2011] FCAFC 59 at [44] (Emmett, McKerracher and Foster JJ), citing Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105].
A Panel’s lack of express reference in its reasons to a fundamental issue can support the inference that it did not take it into account. In Combined Enterprises Pty Ltd v Brister[34], Keogh J stated:
Although it is generally for the decision-maker to determine what weight ought to be given to a mandatory matter, taking a relevant consideration into account calls for much more than ‘mere advertence or lip service’. The failure to expressly refer to a relevant consideration, or to give it any weight, can provide the basis for an inference that it was not taken into account. Similarly, a bare reference to a document, or a mere assertion that a decision-maker has had regard to a matter, may not provide an adequate foundation upon which the conclude that the substance of the material referred to has been taken into account.[35]
[34][2016] VSC 807.
[35]Ibid [27].
On the other hand, in Omerasevic Riordan J stated:
The proposition that a medical panel is bound to take into account all matters in the referral material and, if it fails to do so, it commits jurisdictional error, is untenable. It could not be said, in the present case, that if the Medical Panel had not found the reference to the plaintiff’s complaint to his general practitioner on 22 September 2009, which was buried deep within the hundreds of pages of the referral material (and to which the Medical Panel was not otherwise referred), its decision would have been tainted with jurisdictional error.[36]
[36][2016] VSC 383 [105].
In Popovski, referred to above, Ashley J also stated that the fact that one of the mandatory considerations listed in s 5(1B) was not applicable in a particular case may itself be a relevant factor.[37] For instance, the fact that there were no lifestyle factors might itself be relevant in determining whether the employment was a significant contributing factor in a worker’s injury. It might support a finding that the worker’s employment was the only significant contributing factor in her injury.
[37][1998] VSC 61 [81].
The Panel’s reasons did not consider the question of whether Ms Jones in fact suffered from a pre-existing injury or disease at the time of the incident. However, as I have previously mentioned it is clear enough that the issue was raised in material before the Panel. In his March 2017 report, Dr Bloom stated that:
The history of the onset of symptoms together with the one radiological report that I have access to is consistent with the evolution of a degenerative disease sate in this woman’s cervical spine, and not consistent with a traumatic injury. There was no significant transfer of force or energy to explain a mechanism of injury in her workplace. I think it very likely that she would have developed similar or the same symptoms even if she had not worked with Sensis.[38]
[38]CB 287.
There was also reports of Mr I Jones, orthopaedic surgeon, which stated:
The circumstances of the patient’s reported injury appeared to be exceedingly minor, there being only references to some slight turning of the patient’s neck to the left side to view her note book. There was no reported lifting or extreme of neck movement involved. It would seem as though the disc prolapse occurred at the time of this incident, although given the circumstances was likely a spontaneous event.[39]
…
Reference to x-rays in reports previously provided and referred to in my initial report, together with the formal report provided by the patient, dated 12 July 2016, suggests pre-existing degenerative disc disease at the C6-7 level of the cervical spine. The changes in the MRI scan report at that time would suggest a developing disc disease of some years’ duration to account for the changes reported, in addition to the large central disc prolapse and osteophyte at the C6-7 level.
The incident as described to have occurred at work on 20 March 2013 appears to have been an aggravating factor for a previous and apparently asymptomatic condition of degenerative C6-7 disc disease.[40]
[39]CB 300.
[40]CB 303-304.
These two reports suggest that Ms Jones suffered from a degenerative disease state in her spine. I accept that weight would have to be given to the fact that both opinions were given approximately 4 years after the incident, and Dr Bloom’s opinion is based on reviewing X-rays taken three years after the incident. Such X-rays provide limited assistance in identifying pre-incident degeneration. But that is not to say that the reports were not relevant to the Panel’s consideration of paragraph (d).
Then there was the opinion of Dr U Boffa, an occupational physician, who on 27 May 2015 expressed the opinion that Ms Jones had aggravated cervical spondylosis with left C6 radiculopathy, that employment was the cause of her injury and that the injury was an aggravation of pre-existing cervical spondylosis.[41]
[41]CB 224.
Associate Professor Cherry, a Pain Medicine Specialist, stated:
Ms Jones was dismissed from work in what she thought was a most unsatisfactory way –together with some of her colleagues. There is also the issue of the ergonomic design of her desk which she thinks was faulty and therefore resulted in some way in the development of her cervical signs and symptoms. There is no doubt that she was suffering from asymptomatic cervical spondylosis prior to the injury at work and the work injury was the ‘final straw’ in the development of symptoms. She has a mood adjustment disorder which requires further investigation by the appropriate specialist.[42]
[42]CB 256.
It is of course important to keep in mind that there was considerable medical evidence expressing opinions that supported Ms Jones’ case. In May 2013, Mr M Polke, an orthopaedic surgeon, when asked whether the condition was an aggravation, a recurrence, an acceleration, an exacerbation or a deterioration of any pre-existing injury or disease, answered that ‘this appears to have been a primary injury’.[43] There was no imaging before the prolapse because Ms Jones was asymptomatic, but there was imaging in 2013 which confirmed the existence of her prolapse.
[43]CB 191.
Dr R Yerra, a treating neurologist, stated that Ms Jones had essentially sustained an injury leading to radicular symptoms on the left side. He also stated that he felt that her symptoms were related to central pain sensitization and other primary issues rather than due to any neurological cause per se, but considered that it was quite possible that the worsening of the C6/7 disc prolapse could be contributing to her pain in the left upper neck and arm. Dr G Nair, a neurosurgeon, raised the option of C7 nerve root injection to treat Ms Jones. Dr C Thomas, a Rehabilitation and Pain Medicine Consultant, reported on her mid-disc bulge in C6-7. Associate Professor M Goldwasser, an orthopaedic surgeon, reported that Ms Jones’ history was consistent with her suffering an injury to her neck associated with activities at work, including the episode. Her General Practitioner, Dr R Udumala, stated that her duties relating to work resulted in her stated injury, which was neck movement restriction and pain limit, pain in her left neck and scapula. Dr T Kostsos, a rheumatologist, stated that Ms Jones claimed to have developed left sided neck and arm pain at work in the manner described, after reaching for a notebook, and that ‘certainly on the basis of her history and examination today it does appear as though she did injure her neck and she has developed left arm radicular symptoms’.[44]
[44]CB 196.
The Panel was obliged to consider the differences of medical opinions in deciding whether, and if so how, the consideration in paragraph (d) was relevant. The Panel did not perform that task. The Panel did state that it had considered the referred material and the parties’ submissions. It did consider Dr Brown’s opinion that ‘there is no clear evidence that employment has caused any injury or medical condition’.[45] In response, the Panel stated:
For the reasons given above, and based on its cumulative experience and expertise , the Panel came to a different conclusion from Dr Brown with respect to the contribution of [Ms Jones’] employment to her current condition and [Ms Jones’] current work capacity.[46]
[45]CB 260.
[46]Reasons 17; CB 34.
But the Panel in that passage was not dealing with the consideration in paragraph (d) in anything but the most indirect terms. It does not appear to have taken into account the paragraph (d) consideration in any real sense in determining whether Ms Jones’ employment was a significant contributing factor to her injury.
I consider that the Panel did make a jurisdictional error by not addressing the matter contained in paragraph (d), ‘the probable development of the injury occurring if the employment had no taken place’. The Panel did not state that the injury would probably not have developed if Ms Jones’ employment had not taken place. Nor do it reasons or its consideration of the medical evidence suggest that it took that factor into account. Rather the Panel appears to have concluded that the injury was caused only by the work incident without considering the opinions that suggested there may have been a pre-existing condition. The Panel was free not to accept any medical opinions and did not have to give reasons for not reaching an opinion that it did not form. But it was obliged to consider relevant statutory provisions, including paragraph (d) and the medical opinions relevant to it. But it does not appear to have done so.
In contrast to my conclusions about paragraph (d), I do not consider that Sensis has established that the Panel failed to consider the paragraph (e) or (g) considerations, the life-style of the worker and activities outside the workplace, even though it did not expressly refer to them.
The major fact relevant to those issues was Ms Jones’ exercise regime. Only Dr Bloom’s opinion connected Ms Jones’ exercise regime to her injury. But the Panel clearly had regard to its significance by mentioning her exercise and lifestyle factors in the context of a psychiatric examination. In addition, there was a lack of temporal connection between the onset of Ms Jones’ symptoms and her exercise activities and there was only one medical opinion that connected the injury to exercise.
It appears clearly enough that the Panel did not agree with Dr Brown’s opinion that Ms Jones’ lifestyle/exercise regime caused her injury. It did not have to give reasons for not so agreeing.
I consider that the Panel failed to address the matter contained in s 5(1B)(d), which required consideration of the probable development of Ms Jones’ injury occurring if the employment had not taken place. Ground one is therefore established.
Ground 2 – asking the wrong question or failing to answer the required question
The second ground of review alleges that the Panel made a jurisdictional error in answering Question 2 by asking itself the wrong question or by failing to answer the required question.
The particulars of this ground allege that the Panel erred by only determining that Ms Jones’ described movement was ‘indeed consistent with cervical disc prolapse’. They also alleged that in its reasons the Panel revealed that it answered the wrong question or failed to answer the correct question, namely, whether Ms Jones’ employment was actually, rather than possibly, a significant contributing factor to the alleged cervical spine injury.
As previously mentioned, Question 2 required the Panel to determine whether Ms Jones’ employment with Sensis was a significant contributing factor to her injury. The significant contributing test is a special causal test that, if not satisfied, disentitles a worker to compensation for injuries that are categorised as the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease.
Sensis’ submissions
Sensis argued that the Panel erred by failing to recognise the statutory nature of the phrase ‘significant contributing factor’, and thereby did not apply the proper legal test in answering Question 2. Rather the Panel had apparently applied its own unstated interpretation of the words ‘significant contributing factor’.
To repeat for ease of reference the Panel’s reasons concerning causation:
The Panel considered [Ms Jones’] description of the incident of injury, as described above, and noted that [Ms Jones] had developed symptoms after twisting her head and upper body, having previously been asymptomatic. Subsequent medical imaging of [Ms Jones]’s cervical spine revealed a disc prolapse. The Panel considered that a movement such as she described was indeed consistent with cervical disc prolapse, and concluded that [Ms Jones’] employment with [Sensis] was a significant contributing factor to the alleged cervical spine injury.
The Panel noted [Ms Jones’] reported history of her symptoms not improving and increasing over the past few years. The Panel also noted that the C6/7 disc prolapse appeared to be a larger one on the radiological investigation of 1 July 2016 than it had been in 2013, and that the latter investigation had shown moderate –to- severe central canal narrowing and mild narrowing of the nerve root exit foramen. The Panel considered that [Ms Jones’] presentation at the time of examination was consistent with the onset and progression of disc prolapse which has never remitted despite treatment. The Panel thus concluded that [Ms Jones’] cervical spine was affected by her employment on or about 20 March 2013 and those effects persist.
The Panel therefore concluded that in the period 22 November 2016 to date, [Ms Jones’] cervical spine dysfunction resulting from a soft tissue injury on a background of radiological evidence of degenerative changes in the cervical spine with C6/7 prolapse, with referred pain to the left arm but no current clinical evidence of radiculopathy, resulted from and was materially contributed to by the alleged injuries.
Sensis emphasised the Panel’s statement that Ms Jones’ movement leading to the injury ‘was indeed consistent with cervical disc prolapse’, which led to their conclusion that her employment with Sensis was a significant contributing factor. It submitted that this was an entirely inadequate approach to determining the statutory question.
Sensis relied on Ashley J’s statement in Popovski as to the meaning of ‘significant contributing factor’, which is said was a high threshold, and which stated:
The adjective which parliament chose to insert was ‘significant’ not ‘material’, nor the phrase ‘to a recognisable degree’. It is an adjective which implies a contribution of greater dimension than that conjured up by the other formulations, each of which has its place in the history of workers’ compensation legislation. What amount or effect will be ‘considerable’ in any particular case will, of course, be a matter for determination on the facts; the determination being ordinarily inviolable. It remains only to say that, at a practical as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable mount or effect may be more apparent than real.[47]
[47][1998] VSC 61 at [61].
Sensis submitted that the Panel had not applied the accepted test and not had regard to the relevant provisions of the Act. Those failures supported the inference that the Panel misunderstood its task and was not aware that it was to apply a statutory test. It thereby made a jurisdictional error. Sensis pointed in contrast to the Panel’s approach to considering Ms Jones’ current work capacity. In that connection, the Panel expressly referred to the Act and listed in dot points the applicable statutory factors.
Ms Jones’ submissions
Ms Jones agreed that the Popovski formulation of ‘considerable amount or effect’ was the appropriate test for considering whether a worker’s employment was a significant contributing factor to an injury. However, she contended that the Panel properly answered Question 2.
Ms Jones relied on the fact that the prolapsed disc occurred at the time of the workplace incident. In issue was whether the injury was a spontaneous event unrelated to any activity, an event caused by a build-up of recreational activity or an event related to her work movements including her static seating position and the twisting of her neck at the time of injury. The Panel addressed these matters and decided that the last of the three possibilities was the cause of the injury.
Ms Jones also submitted that the Panel’s reasons should not be over zealously scrutinised. The use of the phrase ‘consistent with’ was a permissible expression for a non-legally trained tribunal, whose reasons should be given a ‘beneficial construction’.[48] The words ‘consistent with’ did not show that the Panel improperly applied the statutory test of ‘significant contributing factor’. It should be taken to have decided that the employment’s contribution to the injury was of ‘considerable amount or effect’.
[48]Gruma Oceania Pty Ltd v Bakar[2014] VSCA 252 [29].
Ms Jones disputed Sensis’ submission that the Panel did not understand that it was obliged to apply the statutory test of significant contributing factor. The Panel was a specialist medical panel and would have been aware of the test that it was to apply in answering the Questions.
Analysis of ground two
The word ‘significant’ was included into the test of significant contributing factor to emphasise the point that workplace injuries will be compensable ‘only if there is a strong connection between work and the injury’.[49] As mentioned, Ashley JA said that the words significant contributing factor ‘involve resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation’.[50] The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor.
[49]Hansard, Legislative Council, 13 November 1992 p 608.
[50]St Mary’s School v Askwith [2011] VSCA 90 [13].
The Panel applied the test of ‘significant contributing factor’, which was a statutory test. It expressly stated that Ms Jones’ employment with Sensis was a significant contributing factor to her alleged cervical spine injury. In view of that statement of conclusion and subject to the argument about the significance of the use of the words ‘consistent with’ to which I refer below, I do not consider that it can be said that the Panel asked the wrong question or failed to answer the required question or applied the wrong test.
It is true that the Panel did not make any express reference to the relevant statutory provisions or state that they had been considered. Nor did it refer to the accepted interpretation of significant contributing factor as meaning ‘of considerable amount or effect’.
However, those matters in themselves did not establish a jurisdictional error, as a Panel of medical practitioners does not need to expressly refer to the relevant legislation and use the precise statutory language, provide it does not misinterpret the statutory provision. Additionally, as Ms Jones submitted, the Panel’s reasons are entitled to a ‘beneficial construction’.[51]
[51]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322 [9].
But Sensis pointed to another matter, that the Panel concluded that Ms Jones’ neck condition became symptomatic while twisting and reaching at work; that she was later diagnosed with a cervical disc prolapse, and the movement at the time of the onset of symptoms was ‘consistent’ with cervical disc prolapse. Sensis said that the Panel had thereby applied the wrong statutory test.
However, importantly the Panel did also say in the critical conclusion of that part of its reasons that:
[Ms Jones’] employment with [Sensis] was a significant contributing factor to the alleged cervical injury.[52]
[52]Reasons 9; CB 26.
The Panel noted Dr Brown’s opinion referred to previously that there was no clear evidence that employment had caused any injury or medical condition’, but reached a different conclusion.
The use of the phrase ‘consistent with’ does not suggest that the Panel simply applied their own common sense causal test rather than the statutory test. It used those words when describing the link between Ms Jones’ movement and her cervical disc prolapse. But, importantly, it went on in the critical conclusion of its Reasons to apply the statutory test of ‘significant contributing factor’.
I consider that the Panel did perform the statutory task required in answering Question 2.
Ground 2 is therefore not established.
Ground 3 – inadequate reasons
The third ground is that the Panel failed to give an adequate statement of reasons sufficient to comply with s 313(2) of the WIRCA and therefore committed an error of law on the face of the record. Section 313(2) requires a Panel to ‘give a certificate as to its opinion and a written statement of reasons for that opinion’.
The particulars of this ground alleged that the reasons did not explain the Panel’s path of reasoning in relation to:
(a) the Panel’s application of s 5(1B) in determining whether employment was a ‘significant contributing factor’ to an injury; and
(b) whether the Panel asked itself the correct question and or addressed the wrong issue in determining its response to Question 2.
Sensis claims that, even if the Panel did not fall into jurisdictional error as alleged in grounds 1 and 2, its lack of reference in its written reasons to the mandatory considerations and the relevant legal test was inadequate to comply with s 313(2).
Sensis’ submissions
Sensis submitted that the Panel’s reasons regarding the significant contributing factor test were ‘manifestly insufficient’. They did not explain the path of reasoning by which the Panel arrived at its conclusion on the issue of causation. As a result, the Court could not determine whether the Panel’s reasoning involved any error of law, whether it correctly performed its statutory function, whether it applied the correct legal test and whether it had regard to the mandatory factors.
The Panel was required to actively consider the issues and provide reasons which adequately disclosed how it had approached its task. The Court could not infer that the Panel reached lawful intermediate conclusions to support its ultimate finding that Ms Jones’ employment with Sensis was a significant contributing factor.
Sensis relies on the same key passage of the Panel’s reasons previously set out that the workplace incident was ‘indeed consistent’ with the injury sustained and that therefore employment was a significant contributing factor. Sensis submitted that the reasons did not reveal how the Panel had considered the statutory test and mandatory criteria and those gaps in the Panel’s reasoning process could not be filled by inference or logic.
Ms Jones’ submissions
Ms Jones argued that the Panel’s use of the word ‘consistent’ was simply an expression and that it had properly concluded that the workplace incident was the mechanism for the disc prolapse. Therefore, Ms Jones’ injury had satisfied the Poposvski formulation of ‘considerable amount or effect’. The Panel’s reasons adequately outlined the manner in which it approached its task and sufficiently set out its path of reasoning.
Analysis of ground 3
The Panel was required to provide reasons capable of revealing the actual path of reasoning underling its conclusions, it could not merely state a bare conclusion on causation. Its reasons had to establish how it took into account the relevant considerations contained in s 5(1B).
The High Court decision in Wingfoot establishes that a Panel’s statement of reasons must explain the actual path of reasoning by which it reached its opinion. That path of reasoning must be explained in sufficient detail to enable a court to see whether the opinion does or does not involve any jurisdictional error or error of law. However, a Panel need not explain why it did not reach an opinion it did not form.
The High Court stated that:
The function of a Medical Panel is to form and give its own opinion on the medical question referred for its opinion. …The function of a Medical Panel is neither arbitral nor adjudicative; it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[53]
…
The statement of reasons must 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.[54]
…
A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[55]
[53](2013) 252 CLR 480, 498-9.
[54]Ibid 501.
[55]Ibid at 502.
Also relevant is the Court of Appeal’s decision in Gruma Oceania Pty Ltd v Bakar,[56] where the Court applied the Wingfoot standard of reasons, and notably stated that:
[56][2014] VSCA 252.
As a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a ‘beneficial construction’ in the sense that they should ‘not … be scrutinised … over-zealous[ly] … by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’ In Gamble v Emerald Hill Electrical Pty Ltd, this Court reaffirmed the following principles that apply to judicial review of a medical panel’s reasons:
The court on judicial review should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker, and should not construe the reasons for decision ‘minutely and finely with an eye keenly attuned to the perception of error’.
…
[A] court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel’s reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.[57]
It is important to bear in mind that the question for the Court when considering whether a medical panel’s reasons are adequate is not whether the reasons positively disclose that the panel erred in law, but whether the reasons are sufficient to enable the Court to determine whether the panel’s opinion does or does not involve any error of law. If the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply with s 68(2).[58]
[57]Ibid [29] (Citations omitted).
[58]Ibid [47].
Further, on the question of appropriateness of the Court filling gaps in reasoning, T Forrest J stated in Denham v Consolidated Herd ImprovementServices Co-Op Ltd[59] that:
A reviewing court should be hesitant to conclude that a Medical Panel has (or has not) made particular intermediary findings, or formed intermediary opinions, just because those findings or opinions are consistent with the reasons as they are expressed and because they can be reconciled with the Opinion. If it does so, the court risks attributing a path of reasoning to a Panel that is not the actual path of reasoning adopted by that Panel. In my view, it is also very difficult to infer that a Panel has reasoned in a particular way (where it does not say that it has reasoned in that way) without first assuming that the Panel has reasoned lawfully. That assumption would defeat the purpose of a proceeding under Order 56, which is essentially to inquire into the lawfulness of administrative action.[60]
[59][2014] VSC 520.
[60][2014] VSC 520 [37].
Although the Panel’s analysis is not lengthy, it plainly sets out a path of reasoning. Its reasons illustrate a series of factual findings, each constituting the formation of an intermediate conclusion. These lead to their ultimate conclusion that employment was a significant contributing factor to Ms Jones’ injuries. The Panel did not state what meaning it gave to the words ‘significant contributing factor’, but as I concluded in respect of ground two that did not amount to asking the wrong question. The crux of the Panel’s opinion was that the temporal connection between Ms Jones’ movements at her desk as part of her employment with the sudden onset of symptoms, and the fact that such symptoms were consistent with her movements, led to a conclusion that employment was a significant contributing factor to her injury. Its path of reasoning was that it applied the statutory language of ‘significant contributing factor’ to the facts that it found as to how the incident occurred.
Therefore, the Panel’s reasons were sufficient to demonstrate its path of reasoning.
I have found Sensis’ first ground established because I consider that the Panel failed to consider the mandatory consideration in paragraph (d). But that does not establish that its reasons were inadequate. To the contrary, because the Panel’s reasons showed that it did not take into account the matters in paragraph (d), they thereby enabled the detection of that error and that detection is one of the purposes of requiring Panel’s to provide adequate reasons.
The Panel did make jurisdictional errors, but it did not err by not adequately stating its path of reasoning. Ground 3 has not been established.
Conclusion
Sensis has established ground one. I consider that judicial review orders in the nature of certiorari and mandamus should issue setting aside the Certificate of Opinion of the Medical Panel and remitting the questions to a newly constituted Medical Panel to be answered according to law and these reasons. I consider that because the Panel, comprising the second to fifth defendants, has made extensive findings, the matter must be remitted to a newly constituted Panel.
Ms Jones submitted that in the event that the matter was to be remitted to a newly constituted Panel, that only Question 2 should be remitted and that she should not be denied the answers to the other questions. I do not accept that submission because the newly constituted Panel will in all likelihood have to again interview and take a history from Ms Jones and will have to formulate its own reasons. The Panel should not be affected or limited in that process by the previous Panel’s reasons that have not considered properly the important issue raised by Question 2.
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