Sidiqi v Kotsios
[2020] VSC 446
•24 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05410
| WAHID SIDIQI | Plaintiff |
| v | |
| DR CHRISTINE KOTSIOS, DR SUSANNE HOMOLKA, MR KEVIN SIU, DR DANIEL LEWIS | First to Fourth Defendants |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Fifth Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2020 |
DATE OF JUDGMENT: | 24 July 2020 |
CASE MAY BE CITED AS: | Sidiqi v Kotsios |
MEDIUM NEUTRAL CITATION: | [2020] VSC 446 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Diagnosis of chronic pain syndrome – Panel’s opinion that worker could perform pre-injury duties and had ‘current work capacity’ – Whether Panel failed to have regard to relevant matters – Whether Panel’s opinion irrational or not open – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr AG Uren QC with Mr CE Hangay | Zaparas Lawyers |
| For the Fifth Defendant | Mr MF Fleming QC with Mr R Paoletti | Russell Kennedy |
HER HONOUR:
Wahid Sidiqi began working for Dindas Australia Pty Ltd, a timber supplier, as a storeman and forklift driver in April 2016. On 26 August 2016, as he bent down to pick up a piece of timber, he experienced acute and severe pain in his lower back. He was unable to finish his shift due to the pain and sought medical attention that day. In September 2016, he made a claim for workers’ compensation in respect of injury to his lower back, which was described as two bulging discs. The claim was accepted.
Mr Sidiqi did not work again until early the following year, when he commenced a graduated return to work doing modified duties. He was unable to return to his pre-injury duties and, in October 2017, Dindas terminated his employment.
On 25 October 2018, Mr Sidiqi applied to the County Court of Victoria for a serious injury certificate under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). His application is opposed by the Victorian WorkCover Authority.
On 13 June 2019, on WorkCover’s application, Judge Wischusen referred medical questions to a Medical Panel for an opinion, pursuant to s 274 of the WIRC Act. A Medical Panel was convened to consider the referral, comprising Dr Christine Kotsios, psychiatrist, Dr Susanne Homolka, occupational and environmental physician, Mr Kevin Siu, neurosurgeon, and Dr Daniel Lewis, rheumatologist.
On 30 September 2019, the Panel provided its opinion and a written statement of reasons. In relation to Mr Sidiqi’s lumbar spine injury, the Panel found that he was suffering from chronic pain syndrome following a soft tissue injury that had resolved. It also found that he had a mild chronic adjustment disorder with mixed anxiety and depressed mood. It considered both conditions to be permanent. In relation to Mr Sidiqi’s capacity for work, the Panel found that neither condition resulted in him having an incapacity for his pre-injury duties, and that he had ‘current work capacity’ and did not have ‘no current work capacity’ for the purposes of the WIRC Act. The Panel’s opinion is to be adopted and applied by the County Court in Mr Sidiqi’s application for a serious injury certificate.[1]
[1]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 313(4).
In this proceeding, Mr Sidiqi seeks judicial review of the Panel’s opinion. He contends that the Panel fell into jurisdictional error in several respects, and that its reasons were inadequate. His central complaint was that the Panel’s acceptance of his persistent pain symptoms was inconsistent with its conclusions about his capacity to work. He submitted that the Panel did not properly consider the extent to which his pain affected his capacity to work, and had not adequately explained its conclusion that he could work. Mr Sidiqi seeks an order in the nature of certiorari quashing the Panel’s opinion, and an order in the nature of mandamus remitting the medical questions to a differently constituted Panel.
For the reasons that follow, the proceeding must be dismissed.
The Panel’s opinion and reasons
Thirteen medical questions were referred to the Panel for its opinion. Those questions, and the Panel’s opinion in relation to each question, were set out in the Panel’s certificate of opinion dated 30 September 2019:
Question 1.What is the nature of the medical condition of the Plaintiff’s
1.1lumbar spine;
1.2mind?
Answer: 1.1 In the Panel’s opinion the Plaintiff is suffering from chronic pain syndrome following a soft tissue injury on a background of pre-existing, constitutional degenerative changes of the lumber spine commensurate with his age, the effects of which have otherwise resolved.
1.2In the Panel’s opinion the Plaintiff is currently suffering from a mild chronic adjustment disorder with mixed anxiety [and] depressed mood.
Question 2.Do any, and if so which, of the medical condition identified in response to question 1 currently result from, or are they materially contributed to by, the back injury suffered by the Plaintiff in the course of his employment on 26 August 2016?
Answer: The Panel is of the opinion that the Plaintiff’ current physical and psychiatric medical conditions of chronic pain syndrome following a soft tissue injury on a background of pre-existing, constitutional degenerative changes of the lumbar spine commensurate with his age, the effects of which have otherwise resolved and mild chronic adjustment disorder with mixed anxiety [and] depressed mood result from and are materially contributed to by the back injury suffered by the Plaintiff in the course of his employment on 26 August 2016.
Question 3.Is any medical condition of the Plaintiff’s:
3.1lumbar spine;
3.2 mind;
which results from, or is materially contributed to by, the injuries ‘permanent’, meaning ‘likely to last for, during or through the foreseeable future’?
Answer:3.1 and 3.2 The Panel is of the opinion that the Plaintiff’s current physical and psychiatric medical conditions of chronic pain syndrome following a soft tissue injury on a background of pre-existing, constitutional degenerative changes of the lumbar spine commensurate with his age, the effects of which have otherwise resolved and mild chronic adjustment disorder with mixed anxiety [and] depressed mood are permanent.
Question 4.Does any medical condition of the Plaintiff’s lumbar spine which results from, or is materially contributed to by, the injuries (excluding any psychological or psychiatric consequences of those conditions) result in him having an incapacity for work as a store person and a forklift driver?
Answer: No.
Question 5.If any incapacity is identified in response to question 5 (sic), is such incapacity ‘permanent, meaning ‘likely to last for, during, or through the foreseeable future’?
Answer: Not applicable.
Question 6.Does any medical condition of the Plaintiff’s mind which results from, or is materially contributed to by, the injuries (excluding any physical consequences of those conditions) result in him having an incapacity for work as a store person and a forklift driver?
Answer: No.
Question 7.If any incapacity is identified in response to question 7 (sic), is such incapacity ‘permanent’, meaning ‘likely to last for, during or through the foreseeable future’?
Answer: Not applicable
Question 8.Does any medical condition of the Plaintiff’s lumbar spine which results from, or is materially contributed to by, the injuries (excluding any psychological or psychiatric consequences of those conditions) result in him having:
8.1 a ‘current work capacity’ within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’); or
8.2 ‘no current work capacity’ within the meaning of the Act?
Answer: 8.1 Yes.
8.2 No.
Question 9.If ‘yes’ to question 9(a) (sic), would employment as a:
9.1 Process Worker (Light);
9.2 Machine Operator (Light);
9.3 Cashier;
9.4 Sales Assistant;
9.5 Stock Clerk;
constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
Answer:9.1 – 9.5 The Panel is of the opinion that full-time employment as a process worker (light), machine operator (light), cashier, sales assistant, and stock clerk, working for eight hours per day and five days per week, would constitute suitable employment within the meaning of the Act.
Question 10. If any incapacity is identified in response to question 9, is such incapacity ‘permanent’, meaning ‘likely to last for, during or through the foreseeable future’?
Answer: Not applicable.
Question 11. Does any medical condition of the Plaintiff’s mind which results from, or is materially contributed to by, the injuries (excluding the physical consequences of those conditions) result in him having:
11.1 a ‘current work capacity’ within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’); or
11.2 ‘no current work capacity’ within the meaning of the Act?
Answer: 11.1 Yes.
11.2 No.
Question 12. If ‘yes’ to question 12(a) (sic), would employment as a:
12.1 Process Worker (Light);
12.2 Machine Operator (Light);
12.3 Cashier;
12.4 Sales Assistant;
12.5 Stock Clerk;
constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
Answer:12.1 – 12.5 The Panel is of the opinion that full-time employment as a process worker (light), machine operator (light), cashier, sales assistant, and stock clerk, working for eight hours per day and five days per week, would constitute suitable employment within the meaning of the Act.
Question 13. If any incapacity is identified in response to question 12, is such incapacity ‘permanent’, meaning ‘likely to last for, during or through the foreseeable future’?
Answer:Not applicable.
Dr Kotsios, the psychiatrist on the Panel, conducted an examination of Mr Sidiqi on 16 September 2019. The other members of the Panel jointly examined Mr Sidiqi on 20 September 2019. The Panel commenced its reasons by referring to these examinations.
The Panel stated that it formed its opinion with regard to the documents and information referred to in Enclosure A, the history provided by Mr Sidiqi, and the examination findings elicited by the Panel. Enclosure A listed a large number of documents provided to the Panel with the referral, including written submissions of Mr Sidiqi and WorkCover, Mr Sidiqi’s affidavits in support of his serious injury application, certificates of capacity, surveillance material, radiological reports, medical reports, clinical records, and rehabilitation documents. The Panel expressly noted written submissions made to it on behalf of Mr Sidiqi dated 22 May 2019.
The Panel set out Mr Sidiqi’s occupational history and his pre-injury employment. It described the history of the incident on 26 August 2016, Mr Sidiqi’s medical and like treatment following the incident, and his graduated return to work in 2017, before he stopped work due to ongoing lower back pain. It noted Mr Sidiqi’s efforts to retrain and find alternative employment, following the termination of his employment by Dindas in October 2017.
The following sections of the Panel’s reasons summarised Mr Sidiqi’s current physical status and activities of daily living. His main complaint was ‘constant lower back pain of variable severity which is worse in cold weather and which is increased by walking or standing for longer than about 10–15 minutes, and by sitting for longer than 20–30 minutes’. He also suffered intermittent associated pain in his left leg, which at times felt numb and weak, although he told the Panel that his left leg symptoms were ‘not really a problem for him’. His lower back pain disturbed his sleep, and he always woke up feeling stiff and tired. He was independent in his personal care, and able to drive his car, shop with his wife, and make sandwiches for his children. He did little else around the house because his doctor had advised him not to bend, and he was ‘too scared to do anything’ for fear of another lower back injury. For that reason, he had not returned to playing soccer.
The Panel noted that Mr Sidiqi’s current treatment was limited to seeing his general practitioner two or three times a month for prescriptions. He had not seen his pain specialist since the pain management program concluded. His medications included opioid analgesics, an antidepressant, and an anxiolytic, all of which he tried to avoid taking as much as possible. He also used paracetamol as a simple analgesic. He had ceased physiotherapy, hydrotherapy, and acupuncture when funding was withdrawn, and had also stopped his self-directed gym/swim program for financial reasons. He was last reviewed by his neurosurgeon in early 2018, and had opted to avoid surgery.
The findings of the Panel’s clinical examination on 20 September 2019 were then set out:
The Panel conducted a physical examination and noted that the Plaintiff walked with a normal gait, and was able to heel and toe walk and to weight bear fully on each leg individually without difficulty. He demonstrated a normal standing posture, with equal body weight distribution to both lower limbs and a level pelvis. Examination of the thoracolumbar spine revealed a slight thoracic scoliosis convex to the left but otherwise normal spinal contours, with a retained lumbar lordotic curve and without any evidence of paraspinal muscle spasm. Range of active motion of the lumbar spine was full and symmetrical, and neurological examination of the lower limbs was normal. Specifically, there was no evidence of any muscle wasting or atrophy of either the thighs or the calves, and no loss of power was demonstrated. Deep tendon reflexes were present and symmetrical, the plantar response was down going bilaterally, and sensory testing did not reveal any abnormalities.
The Panel noted that an MRI scan of Mr Sidiqi’s lumbar spine demonstrated ‘mild degenerative changes’ at the two lower lumbar levels, and a small annular tear at L4/5. There was no radiological evidence of any neural compromise. No further imaging or investigations were required by the Panel. It had viewed surveillance footage of Mr Sidiqi captured on 25 August 2018, and considered that the footage was consistent with its clinical examination findings and did not provide additional information that would assist it in forming an opinion about his medical condition, or about any functional limitations or restrictions he may be experiencing.
In a section headed ‘Analysis and Discussion’, the Panel referred to the onset and progression of Mr Sidiqi’s symptoms, its clinical examination findings, available radiological evidence, surveillance material, and the opinions of medical practitioners who had examined and/or treated Mr Sidiqi and whose reports were included in the referral material. Having considered those matters:
The Panel considered that the Plaintiff had suffered a soft tissue injury on a background of pre-existing, constitutional degenerative changes of the lumbar spine commensurate with his age, as a consequence of the incident. The Panel noted, and accepted, the Plaintiff’s description of persistent pain symptoms and of the restrictions to his activities, which he practises due to his fear of further injury. The Panel considered that the nature, extent and severity of the Plaintiff’s symptoms of pain, when considered in the context of a normal clinical examination of his lumbar spine, do not correlate with, and cannot be accounted for, by the minor degenerative changes of his lumbar spine, and the Panel formed the view that the Plaintiff has developed a chronic pain syndrome as a consequence of the soft tissue injury, the effects of which have now otherwise resolved.
The Panel then set out its diagnosis and conclusions:
The Panel therefore concluded that the Plaintiff is currently suffering from a chronic pain syndrome following a soft tissue injury on a background of pre-existing, constitutional degenerative changes of the lumbar spine commensurate with his age, the effects of which have otherwise resolved, and the Panel also concluded that his current medical condition of chronic pain syndrome results from and is materially contributed to by the back injury suffered by the Plaintiff in the course of his employment with the Defendant on 26 August 2016.
Noting the nature and duration of Mr Sidiqi’s symptoms, the Panel considered that his chronic pain syndrome was likely to persist in the foreseeable future.
As to Mr Sidiqi’s physical work capacity:
The Panel considered that notwithstanding his persistent pain symptoms, the Plaintiff’s current medical condition of chronic pain syndrome would not preclude him from undertaking the full duties and hours of work of his pre-injury role as a storeman/forklift driver for a supplier of timber with the Defendant. The Panel also considered that the nature of his pre-injury duties would not exacerbate or aggravate his current medical condition of chronic pain syndrome in any way.
The Panel therefore concluded that the Plaintiff’ current medical condition of chronic pain syndrome does not, when excluding any psychological or psychiatric consequences of this condition, result in him having an incapacity for work as a store person and forklift driver.
The Panel turned to the five employment options identified in the Vocational Assessment report dated 5 February 2019 — namely, process worker (light), machine operator (light), cashier, sales assistant, and stock clerk. It considered that Mr Sidiqi’s chronic pain syndrome ‘would not preclude him from being able to consistently and reliably perform the duties of any/all of these five job options on a full-time basis as a settled or established member of the wage-earning workforce, without the need for retraining’. It did not consider that the physical functional requirements of these suitable employment options would exacerbate or aggravate Mr Sidiqi’s medical condition in any way. As a result:
The Panel therefore concluded that when disregarding any psychological or psychiatric consequences of his current medical condition of chronic pain syndrome, the Plaintiff has a current work capacity within the meaning of the Act, and the Panel also concluded that the duties of a process worker (light), machine operator (light), cashier, sales assistant, and stock clerk, working for eight hours per day on five days per week, would constitute suitable employment for him within the meaning of the Act.
The contrary opinions of Mr Craig Timms, Mr Sidiqi’s treating neurosurgeon, Dr Meena Mittal, pain physician, and Dr Joseph Slesenger, occupational physician were noted. The Panel said that it had formed a different opinion, based on its own clinical examination of Mr Sidiqi and ‘for the reasons above’.
The Panel next provided an extensive account of its psychiatric assessment of Mr Sidiqi. It concluded that Mr Sidiqi has ‘a mild chronic adjustment disorder with mixed anxiety and depressed mood’ resulting from and materially contributed to by his lower back injury. It considered that this psychiatric condition was likely to persist through the foreseeable future and was therefore permanent.
However, in the Panel’s opinion, Mr Sidiqi’s psychiatric condition did not result in an incapacity for work in his pre-injury employment as a store person and forklift driver, or more generally. The five employment options were considered by the Panel to be ‘suitable employment’ for Mr Sidiqi, which he could perform full-time. The Panel’s view was that the psychological and emotional functional requirements of those job options would not exacerbate or aggravate his psychiatric condition in any way.
Chronic pain syndrome
A diagnosis of ‘chronic pain syndrome’ is used by doctors to refer to chronic pain that does not have an obvious organic cause. There are no generally agreed criteria for the diagnosis, and its imprecision is an ongoing source of difficulty for judges.[2] Depending upon context, ‘chronic pain syndrome’ can refer to a condition that is physical, or one that is psychiatric, or one that is a combination of both.
[2]Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, [2]–[4] (Maxwell P).
In the context of the Panel’s opinion, it is clear that its diagnosis of chronic pain syndrome was a physical diagnosis. The first question referred to the Panel asked separately about medical conditions of Mr Sidiqi’s lumbar spine and his mind. The Panel’s opinion was that chronic pain syndrome was a condition of his lumbar spine, not his mind.
The Panel did not consider Mr Sidiqi’s fear of pain or further injury and his avoidance of certain activities to amount to a psychiatric disorder. Its psychiatric diagnosis was that Mr Sidiqi had a mild chronic adjustment disorder with mixed anxiety and depressed mood. It did not consider Mr Sidiqi to be suffering from a pain disorder or somatic symptom disorder — diagnoses that were not suggested by any of his treating doctors.
Did the Panel fail to consider relevant matters?
Mr Sidiqi contended that the Panel did not give proper consideration to the effect of his pain on his capacity for work. He argued that the Panel failed to engage in an active intellectual process and give genuine consideration to the question of whether his ability to perform the roles of store person or forklift driver was so reduced by his chronic pain that he, in fact, did not have a capacity for work either in his pre-injury duties, or in any of the five employment options identified as suitable for him.
It may be accepted that Mr Sidiqi’s ongoing experience of pain was a ‘fundamental issue’ for the Panel in the formation of its opinion about his capacity for work, consideration of which was essential to the valid performance of its statutory function.[3] The submission for Mr Sidiqi was that the Panel did not give genuine consideration to his physical experience of pain:[4]
The Plaintiff’s pain symptoms and conditions are also physical medical conditions, because they have a physical effect, are experienced physically and are experienced as bodily conditions with bodily consequences.
…
The Panel appears to have taken into consideration only the Plaintiff’s physical ability to perform the tasks of each job, and it did not give proper consideration as to whether his ability was so reduced or affected, by pain and its effects, that he had an incapacity to work as a store person or forklift driver, or that full-time employment as a process worker (light), machine operator (light), cashier, sales assistant, and stock clerk, working for eight hours per day and five days per week, would constitute suitable employment for the Plaintiff, within the meaning of the WIRC Act. Further, the Panel did not give proper consideration to the effects of the Plaintiff’s pain and its consequences on his employability in the labour market.
[3]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60]; Omerasevic v Kotzman [2016] VSC 383, [97]; Chang v Neill [2019] VSCA 151, [92].
[4]Outline of submissions of the plaintiff dated 26 February 2020, [25], [42].
Reading the Panel’s reasons as a whole, it is clear that the Panel did give genuine consideration to the pain suffered by Mr Sidiqi. It noted and accepted his description of the persistent pain symptoms he experienced, although it considered that his lower back injury had otherwise resolved. The Panel’s diagnosis of chronic pain syndrome was based on its acceptance that Mr Sidiqi continued to suffer pain. The Panel took careful note of the way in which this pain affected Mr Sidiqi, his daily activities, his treatment, his medication, and his presentation on physical examination and in the surveillance footage. Having done that, its opinion was that ‘notwithstanding his persistent pain symptoms’ his chronic pain syndrome would not preclude him from undertaking his pre-injury duties, and that he could do the duties of the five jobs identified as ‘suitable employment’.
In oral submissions, some emphasis was given to the ‘fear avoidant behaviour’ noted by the Panel in its reasons — that is, Mr Sidiqi’s avoidance of activities that he fears will result in further injury. It was submitted that the Panel had reached its opinion without reference to his fear avoidant behaviour. This submission might have had some force if the Panel had found that this behaviour was an aspect of a psychiatric disorder. However, as discussed, that was not the Panel’s opinion. The Panel accepted that Mr Sidiqi had persistent pain symptoms, which were an aspect of the chronic pain syndrome diagnosed by the Panel. It also accepted that he restricted his activities due to his fear of further injury. I do not understand the Panel to have considered Mr Sidiqi’s avoidance of certain activities to be an aspect of his chronic pain syndrome.
Mr Sidiqi also submitted that the Panel did not consider the effects of his personal circumstances — namely his age, transferable skills and experience, prior work experience, and matters that affected his attractiveness to a potential employer — in forming its opinion that the five employment options were ‘suitable employment’ within the meaning of the WIRC Act.
Although I accept that the matters set out in paragraph (a) of the definition of ‘suitable employment’ in s 3 of the WIRC Act, including ‘the worker’s age, education, skills and work experience’, are matters that the Panel was required to consider in forming its opinion about suitable employment,[5] it is plain that the Panel did not overlook them. The Panel’s reasons disclose that it did have regard to these matters, as well as to Mr Sidiqi’s participation in vocational retraining, his literacy in English, his medication, and his home and family life. The Panel referred to each of these matters in its reasons, which must be read as a whole. It said that it formed its opinion with regard to the information in the referral documents and the history provided by Mr Sidiqi, and I accept that statement at face value.[6]
[5]In the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).
[6]Maribyrnong City Council v Malios [2014] VSC 452, [47]–[48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [83].
I do not accept that the Panel failed to have regard to mandatory relevant considerations, or to give proper consideration to matters essential to the performance of its statutory task.
Was the Panel’s opinion about capacity to work irrational or otherwise not open?
Mr Sidiqi submitted that it was not open for the Panel to find that he had a capacity to work, given the Panel’s acceptance of the pain he was suffering in his lumbar spine and left leg, and the physical effects of that pain on him. He argued that the nature and extent of these injuries and the associated pain was such that it was not open, in the circumstances, for the Panel to find that he had a capacity to work as a store person and forklift driver, or that he would be able to engage in full-time work as a process worker (light), machine operator (light), cashier, sales assistant, or stock clerk. These conclusions were, he submitted so unreasonable that no reasonable Panel could have reached them on the material before the Panel.
Mr Sidiqi submitted that irrationality or unreasonableness is a ground of review of a Medical Panel opinion, relying on authorities including the Court of Appeal’s decision in Mailton Holdings Pty Ltd v Jussy.[7] WorkCover made a formal submission that the ground was not available, based on the observations of an earlier Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd.[8]
[7][2019] VSCA 281, [48].
[8][2015] VSCA 17, [82]–[100] (Neave JA, Santamaria JA and Ginnane AJA agreeing).
I am not sure that the Court of Appeal’s decision in Mailton Holdings resolved the doubts expressed in Ryan about the availability of legal unreasonableness as a ground of review of a Medical Panel opinion. However, for reasons I have given previously,[9] I accept that a Medical Panel’s opinion can be reviewed on the ground of legal unreasonableness, one form of which is illogicality or irrationality.
[9]Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266, [22]; Mailton Holdings Pty Ltd v Jussy [2019] VSC 421, [40].
That said, the test for legal unreasonableness is stringent,[10] and the ground is not a vehicle for challenging the merits of a Medical Panel’s opinion.[11] An opinion on a medical question is a matter on which logical or rational or reasonable minds might follow different routes and reach different conclusions.[12] The standard of legal reasonableness allows room for reasonable minds to differ.
[10]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [108]–[113] (Gageler J).
[11]Li, [30] (French CJ), [66] (Hayne, Kiefel and Bell JJ).
[12]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [130]–[131] (Crennan and Bell JJ).
Mr Sidiqi’s submissions on this ground were very similar to his submissions on the proper consideration ground. He submitted that the Panel did not give proper, genuine and realistic consideration to the question of whether a person with his physical and mental conditions had a capacity for work in his pre-injury employment, or in the five employment options. In performing its statutory task, Mr Sidiqi argued, the Panel was also bound to consider whether there was an injury-caused inability to return to work as a settled member of the workforce. Instead, the Panel only considered his physical and psychiatric capacity to engage in particular tasks. The Panel also failed to consider the entirety of the plaintiff’s personal circumstances and the impact on the attractiveness of the plaintiff to any potential employer.
As discussed above, I consider that the Panel did give proper consideration to the effect of Mr Sidiqi’s persistent pain symptoms on his capacity for work, and to his personal circumstances. Separately, it considered his mild adjustment disorder, and concluded that it did not preclude him from performing either his pre-injury duties or the five job options. That conclusion was unsurprising, given Mr Sidiqi’s own statement that he was ‘capable of working from an emotional perspective’ and was ‘keen to find a job which would be suitable for him from a physical perspective’.
I accept the submission made for WorkCover that there is nothing inherently illogical or irrational about a finding that a person with chronic pain could, notwithstanding their pain, work in suitable employment. Everything would depend on the severity of the pain. The Panel’s reasons disclose that it paid careful attention to the ‘nature, extent and severity’ of Mr Sidiqi’s pain symptoms and the effect of those symptoms on his activities. It also noted that he avoided many activities due to his fear of further injury, although it did not find that this avoidant behaviour was an aspect of either his physical or psychiatric injuries. Its conclusions about his capacity for work were, in my view, open to it.
I do not consider that the Panel’s opinion that Mr Sidiqi has a capacity for suitable employment was irrational or otherwise legally unreasonable.
Were the Panel’s reasons adequate?
Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel’s ‘actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law’.[13] A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions.[14] A real doubt may exist where a Panel’s conclusions are open to more than one interpretation,[15] and in that case the reviewing court should not speculate about a Panel’s path of reasoning in order to resolve ambiguity or fill gaps.[16]
[13]Wingfoot, [55].
[14]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].
[15]Pearce v Lloyd [2016] VSC 806, [62].
[16]Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].
At the same time, a Panel’s reasons need only be sufficient to enable a reviewing court to understand that it has performed its function — to form and give its opinion on medical questions referred to it — lawfully. The Panel’s reasons must be read fairly, as a whole and in context, and should not be subject to ‘over-zealous judicial review’.[17] A Panel’s reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have a ‘proper evidential foundation disclosed in the reasons’.[18]
[17]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [9], [17]–[18], [20] and Gruma Oceania, [29].
[18]Tan v Kotzman [2016] VSC 482, [22].
Mr Sidiqi submitted that the Panel’s reasons did not explain the actual path of reasoning by which it arrived at its opinion that Mr Sidiqi had capacity to work as a store person or forklift driver, despite the accepted diagnosis of chronic pain syndrome. He argued that the ‘missed step’ in the reasoning of the Panel was a failure to explain why it considered he could perform the requirements of his former role despite the pain that had caused him to stop working in that role.
He made a similar submission in relation to the Panel’s opinion, in answer to Questions 8 and 9, that the five employment options were suitable for him. He submitted that the only basis on which the Panel concluded that Mr Sidiqi’s work capacity was not affected by his chronic pain syndrome was the Panel’s own examination of him. He argued that this was a ‘sweeping generalisation’ that did not adequately disclose the Panel’s path of reasoning, or explain why the Panel considered that he had a current work capacity despite his chronic pain.[19]
[19]Citing Gruma Oceania, [39], [49]; and Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [31].
These submissions were all premised on the Panel having overlooked the disabling effects of Mr Sidiqi’s chronic pain, without explaining why it considered he could work despite the pain. I do not accept that premise. Reading the Panel’s reasons as a whole, it is clear that the Panel accepted that Mr Sidiqi suffered ongoing pain, although his original injury had otherwise resolved. The inference that necessarily arises is that the Panel did not consider his chronic pain to be disabling. The Panel said that it considered he could do his pre-injury duties ‘notwithstanding his persistent pain symptoms’.
I was able to follow the Panel’s path of reasoning to its conclusion that Mr Sidiqi had a capacity to work. It explained that conclusion by reference to the normal clinical examination of Mr Sidiqi’s lumbar spine.[20] The conclusion was also consistent with other matters noted by the Panel in its reasons, in particular:
[20]See [14] above.
(a) Mr Sidiqi told the Panel that he could care for himself, including cutting his own toenails, drive, shop, and prepare sandwiches for his children. He avoided other housework because his doctor had told him not to bend and had not returned to playing soccer because he feared causing another injury.
(b) He had opted to avoid surgery.
(c) Strategies he had learned during a pain management program in 2017 had helped him to cope better with his pain, and he had benefitted from regular exercise and acupuncture.
(d) Although he was no longer receiving physiotherapy and acupuncture treatment and had reduced his exercise program, he was able to limit his use of opioid analgesics.
(e) The MRI scan of his lumbar spine showed no radiological evidence of any neural compromise.
(f) The surveillance footage of Mr Sidiqi carrying a bag of shopping to his car, getting in and driving away demonstrated a level of activity consistent with the Panel’s clinical examination of him. It did not provide further information ‘about any functional limitations or restrictions which he may be experiencing’.
(g) In explaining its diagnosis of chronic pain syndrome, the Panel noted that Mr Sidiqi restricted his activities due to his fear of further injury. It did not suggest that he avoided these activities because they caused him pain, or that his avoidance behaviour was pathological.
Overall, the Panel’s reasons did not cause me to doubt that it had correctly performed its statutory functions. As I have explained, the Panel did not overlook matters that it was obliged to take into account, and its conclusions about Mr Sidiqi’s capacity to work were open to it and were not irrational. I understood from the Panel’s reasons that it reached those conclusions because it did not consider Mr Sidiqi’s chronic pain to be incapacitating.
The Panel’s reasons for its opinion were, in my view, adequate.
Disposition
Mr Sidiqi has not established that the Panel’s opinion was affected by jurisdictional error. As a result, the proceeding must be dismissed.
On the question of costs, my starting position is that, unless I am persuaded otherwise, Mr Sidiqi should pay WorkCover’s costs of the proceeding, including any reserved costs, on a standard basis. I will make orders for the filing of brief written submissions by any party that seeks a different order as to costs.
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