Talevska v Ensign Services (Aust) Pty Ltd
[2021] VSC 309
•1 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02184
| ZORA TALEVSKA | Plaintiff |
| v | |
| ENSIGN SERVICES (AUST) PTY LTD & ORS (in accordance with the schedule attached) | Defendants |
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JUDGE: | O’MEARA J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2021 |
DATE OF JUDGMENT: | 1 June 2021 |
CASE MAY BE CITED AS: | Talevska v Ensign Services (Aust) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 309 |
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ADMINISTRATIVE LAW – Judicial Review – Opinion of Medical Panel – Panel’s opinion that symptomatic lumbar spondylosis and chronic pain syndrome unrelated to the plaintiff’s employment – Whether the Panel made a jurisdictional error as a result of failing to have regard to relevant and important material – Whether open to the Panel to come to certain conclusions – Whether Panel failed to consider relevant matters – Whether Panel gave adequate reasons for its decision – Chang v Neill (2019) 62 VR 174 - Application allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | AG Uren QC with S Dawson | Zaparas Lawyers |
| For the Defendants | FC Spencer | Russell Kennedy Lawyers |
HIS HONOUR:
A Background
The plaintiff was born on 30 December 1955 in Macedonia. She migrated to Australia in 1979 and commenced working for the first defendant, Ensign Services (Aust) Pty Ltd, in July of that year. She was employed full-time as a laundry hand and labourer and continued in that employment until suffering injury in an incident on 31 January 2017, in which a trolley hit her from behind causing her to fall to the ground on her right side (the incident). She was off work until July 2017 and returned to work on restricted duties four hours per day, five days per week and, it seems, has continued to work on that basis since that time.
On 21 February 2017 the plaintiff lodged a claim for compensation in respect of injuries identified in her claim form as ‘right & left thigh/hip’. Liability was accepted but later terminated by notice dated 19 January 2018.
By further claim dated 28 November 2018 the plaintiff alleged injury to her ‘right hip, left hip, lower back’. In respect to that claim, the plaintiff alleged that she had suffered injury effectively by reason of a gradual process in the course of her employment. That claim was rejected by notice dated 4 January 2019.
The plaintiff commenced proceedings in the Magistrates’ Court and by referral dated 18 November 2019, Magistrate Wright referred 10 medical questions to a Medical Panel (the Panel) pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013.
Among the various questions, the Panel was, in substance, asked to identify the plaintiff’s medical condition relevant to her claimed injuries to the lower back, left hip, right hip, left leg, right leg and psychological condition and whether any such condition was materially contributed to by injury suffered in employment with the first defendant.
The Panel consisted of a psychiatrist, occupational and environmental physician, orthopaedic surgeon and rheumatologist. The plaintiff was examined by the psychiatrist on 20 January 2020 and by the other members of the Panel on 31 January 2020.
On 16 March 2020, the Panel published its certificate of opinion accompanied by its reasons.
On 14 May 2020, the plaintiff applied by originating motion in this Court. To the extent that the Panel’s opinion considered and determined medical questions relating to the plaintiff’s claimed injury to her lower back and chronic pain syndrome, the plaintiff seeks to have those and consequential parts of the Panel’s opinion quashed on the grounds that the Panel is said to have erred on the face of the record, that it was not open to the Panel to come to certain conclusions, that it failed to consider relevant matters and failed to provide adequate reasons for its decision.
I should say that the members of the Panel are defendants to the present originating motion but, in the conventional manner, have not participated in the hearing and have advised the Court and other parties that they will abide by the decision.
B Ground 1: jurisdictional error – error on the face of the record
In the course of oral argument, it emerged that this was the plaintiff’s principal complaint in respect to the opinion of the Panel.
The nub of the plaintiff’s complaint was the manner in which the Panel dealt with her claim to have suffered injury to her lower back in the incident on 31 January 2017.
The plaintiff’s claim for compensation was complicated by the fact that she had prior presentations and treatment for lower back pain and had, in 2008, undergone a left total hip replacement. On the evidence, there was also a suggestion that the plaintiff had elements of a chronic pain syndrome prior to the incident.
In that context, question 1 to the Panel was directed to several claimed injuries. That question stated:
What is the nature of the plaintiff’s medical condition relevant to the injuries alleged in paragraph 5 of the amended statement of claim and, in particular:
(a) lower back;
(b) left hip;
(c) right hip;
(d) left leg;
(e) right leg;
(f) psychological condition?
To that question, the Panel answered:
(a)-(b)In the Panel’s opinion the Plaintiff is currently suffering from constitutional lumbar spondylosis, complicated by a chronic pain syndrome, and from a mild residual dysfunction of the left hip following an arthroplasty, but these conditions are not attributable to any claimed injury.
(c)-(e)In the Panel’s opinion, the Plaintiff is currently not suffering from any intrinsic physical medical condition of the right hip or of the left and right legs.
The Panel is of the opinion that the Plaintiff had previously suffered soft tissue injuries, including bruising, to the right hip and left and right legs, but these conditions have now resolved.
(f)In the Panel’s opinion the Plaintiff is currently suffering from a chronic adjustment disorder with mixed anxiety and depressed mood.
This answer framed many of the answers to the further medical questions posed including, in particular, question 4 which asked:
Does any medical condition of the Plaintiff’s:
(a) lower back;
(b) left hip;
(c) right hip;
(d) left leg; or
(e) right leg –
as assessed by the Medical Panel continue to result from or be materially contributed to by injuries suffered in employment with the Defendant?
To which the Panel answered:
(a) and (b)The Panel is of the opinion that the Plaintiff’s current medical conditions of constitutional lumbar spondylosis, complicated by a chronic pain syndrome, and mild residual dysfunction of the left hip following an arthroplasty do not result from, and are not materially contributed to by any claimed injury.
(c)-(e)The Panel is of the opinion that the Plaintiff’s soft tissue injuries including bruising of the right hip, left and right leg did result from, and was materially contributed to by employment, however no longer results from and is not materially contributed to by the claimed injuries as they have resolved.
Similarly, in respect to the plaintiff’s psychological presentation, question 5 asked:
Does any psychological condition as assessed by the Medical Panel examination result from or is it materially contributed to by any injury to the plaintiff’s:
(a) lower back;
(b) left hip;
(c) right hip;
(d) left hip;
(e) right leg?
To which the Panel answered:
(a)-(e)The Panel is of the opinion that the Plaintiff’s current psychiatric medical condition of chronic adjustment disorder with mixed anxiety and depressed mood results from and is materially contributed to by her now-resolved soft tissue injuries, including bruising, to the right hip and left and right legs.
The questions and answers from question 6 onward depended upon earlier answers.
It will be evident from the above that in the opinion of the Panel both the plaintiff’s present symptomatic lumbar spondylosis and chronic pain syndrome are unrelated to any injury claimed to have been sustained in the incident.
Further, the Panel was of the opinion that the plaintiff suffered soft tissue injuries to her right hip and left and right legs in the incident that have now resolved leaving her with a chronic adjustment disorder with mixed anxiety and depressed mood that, in the opinion of the Panel expressed in answer to other questions posed, did not present any inability for her to perform her full duties and hours of work in pre-injury employment.
In its reasons, the Panel recorded that the plaintiff told it that ‘at the time of the incident she experienced immediate pain in her lower back and left leg, and said that her left leg went numb’.
The Panel also recorded that the plaintiff had told it that over the following weekend she had gone to the hospital where, it was said, she was advised that there was ‘something wrong with the nerves’.
The plaintiff did, in fact, attend the Northern Hospital, as she said, and the record of the hospital Emergency Department (the ED record) stated a diagnosis of ‘INJURY TO NERVE (incl spinal/excl extracranial) – LOWER LEG – injury to nerve of lower leg’.
Later in the reasons, the Panel recorded, among other things, that the plaintiff had presented at her general practitioner on 6 February 2017; that in March 2017 she had attended Dr Curtis, independent orthopaedic surgeon; that in April 2017 she had sought treatment from Mr John Owen, orthopaedic surgeon; and that she had undergone MRI scanning of her lumbar spine, including in April 2017.
The Panel reasons referred to various other features of the material before it. Many of those documents referred to the plaintiff complaining of pain variously in the hip and left and right legs.
In that regard, the Panel referred to the clinical notes of the Boulevard Family Practice which the plaintiff attended on many occasions between 6 February 2017 and 6 June 2017. On the latter date it was recorded: ‘still back pain and lt [left] leg’. Although the notes recorded the referral for MRI of the lumbar spine in early April 2017, there was no distinct reference to a complaint of back pain until the attendance on 6 June 2017 (albeit that that reference implicitly acknowledged that one or more of the earlier complaints of pain must have been of pain including back pain).
Critically, for present purposes, despite the careful and at many points detailed consideration of aspects of the referral material, and the fact that in at least two places in its reasons the Panel recorded that it had questioned the plaintiff specifically about the content of particular parts of the referral material, at no point in its reasons did the Panel refer specifically to the ED record.
The Panel stated its clinical diagnosis at page 14 of its reasons. It considered the plaintiff to be suffering from lumbar spondylosis and mild residual dysfunction of the left hip. However, the Panel concluded that the plaintiff was not suffering from any intrinsic physical medical condition of the right hip or left and right legs other than mild residual dysfunction of the left hip following total arthroplasty. As I have noted, the Panel concluded that the plaintiff had suffered soft tissue injuries, including bruising, to the right hip and left and right legs in the incident but that such injuries had resolved.
In the course of the analysis and discussion that followed, the Panel stated:
The Panel considered the Plaintiff’s history of the onset and progression of her symptoms and her description of the mechanism of the incident on 31 January 2017, the Panel’s clinical examination findings, the radiological evidence, the information contained in the various documents included within the Referral material and the opinions of the medical examiners who have examined and/or treated the Plaintiff, as expressed in their reports that were also included with the Referral material.
The Panel noted that the Plaintiff’s description of the incident differs from the description documented in the Worker’s Injury Claim Form dated 15 February 2017, which makes no reference to any direct trauma to the lumbar spine and which also described the body parts affected in the incident to have involved ‘right & left thigh/hip’ rather than the lower back. The Panel also noted that the clinical records of the Plaintiff’s treating general practitioner document an initial presentation with pain and local tenderness in both legs and bruising in the right leg, and make no reference to any back pain until a consultation dated 6 June 2017, almost five months after the incident. The Panel noted that the Plaintiff continued at work, performing full duties, on the day of, and for a further three days after, the incident on 31 January 2017.
The Panel considered that there is objective, verifiable evidence in support of the Plaintiff being struck by a linen trolley which caused her to fall onto her right side and sustain soft tissue injuries to both her lower limbs on 31 January 2017.
[Emphases added]
It will be evident that the Panel considered the plaintiff’s history of the onset and progression of her symptoms and her description of the manner in which the incident unfolded on 31 January 2017 to be at variance from the descriptions documented in her claim form and other records. In that regard, the Panel noted that there was no reference to ‘direct trauma to the lumbar spine’ in the claim form. That said, the Panel considered there to be ‘objective, verifiable evidence’ in support of the plaintiff having been struck by a linen trolley ‘which caused her to fall onto her right side and to sustain soft tissue injuries to both her lower limbs on 31 January 2017’.
In context, it seems that the Panel considered the ‘objective’ and ‘verifiable’ evidence to have been the contemporaneous records in the referral material before it rather than the history provided to the Panel orally by the plaintiff.
The Panel then noted that the plaintiff had had a history of intermittent episodes of lower back pain since 2005 and that she had clinical and radiological evidence of lumbar spondylosis. The Panel considered the natural history of that condition and concluded that the plaintiff ‘was suffering from symptomatic constitutional lumbar spondylosis prior to the incident on 31 January 2017’.
Immediately thereafter, and in a passage central to the plaintiff’s present complaint, the Panel stated:
The Panel noted that there is evidence to support the Plaintiff’s complaints of ongoing left lower limb pain since the incident, which prompted the referral for an MRI scan on her lumbar spine on 6 April 2017, but the Panel also noted that there is neither clinical nor radiological evidence to suggest that the Plaintiff’s left leg pain is in any way related to her medical condition of lumbar spondylosis. Consequently, the Panel considered that the Plaintiff’s medical condition of lumbar spondylosis is constitutional in nature and, in the absence of any evidence of any trauma to the lumbar spine sustained during the incident the Panel also considered that there has been no aggravation, exacerbation, acceleration, deterioration of [sic: or] recurrence of this condition resulting from the incident.
[Emphases added]
Thereafter, the Panel addressed the plaintiff’s hip and leg complaints and rejected the plaintiff’s contention that her condition of symptomatic lumbar spondylosis had arisen, in effect, as a matter of gradual process and in the course of her employment. There is no challenge to those aspects of the Panel’s determination.
Later in the Panel’s reasons it stated its conclusions relevantly as follows:
The Panel therefore concluded that the Plaintiff is currently suffering from constitutional lumbar spondylosis complicated by a chronic pain syndrome, and from a mild residual dysfunction of the left hip following a left hip arthroplasty, but these conditions are not attributable to any claimed injury, and the Panel also concluded that the Plaintiff’s current medical conditions of the lower back and left hip do not/did not result from and were/are not materially contributed to by any claimed injury.
For the reasons above, the Panel also concluded that the incident on 31 January 2017 and/or the nature of the Plaintiff’s duties throughout the course of her employment with the Defendant prior to the incident, were not a significant contributing factor to her current medical conditions of constitutional lumbar spondylosis complicated by a chronic pain syndrome and mild residual dysfunction of the left hip following a left hip arthroplasty, or to any aggravation, exacerbation, acceleration, deterioration or recurrence of any pre-existing medical condition of the lumbar spine or of the left hip in any way.
The Panel considered that the Plaintiff had suffered soft tissue injuries, including bruising, to the right hip and left and right legs as a consequence of the incident on 31 January 2017, the effects of which have now resolved, and the Panel concluded that the Plaintiff is not currently suffering from any intrinsic physical medical condition of the right hip or of the right and left legs.
The Panel therefore concluded that the Plaintiff’s employment with the Defendant on 31 January was, a significant contributing factor to the now-resolved soft tissue injuries to the right hip and left and right legs, and the Panel also concluded that the Plaintiff’s now-resolved soft issue injuries to the right hip and left and right legs resulted, but no longer result from, and were but no longer are, materially contributed to [by] her employment with the Defendant.
Thereafter, the Panel referred to several opinions in the referral material including the opinions of Mr Russell Miller, orthopaedic surgeon, Dr Kilner Brasier, occupational physician, and Dr Meena Mittal, pain specialist, all of whom examined the plaintiff at the request of her legal advisers. The Panel noted that Mr Miller and Dr Brasier had considered that the plaintiff had suffered an aggravation of pre-existing degenerative changes in her lumbar spine as a consequence of the incident on 31 January 2017. In respect to the opinions of all three medical practitioners, the Panel stated that they had ‘obtained a history of an acute onset of lower back pain as a result of the incident, which has persisted from the onset to the present time, and the Panel formed a different opinion for the reasons above’.
In this context, the plaintiff submits, in substance, that the Panel committed jurisdictional error in the sense of a constructive failure to perform its statutory function by failing to have regard to important relevant factual material when finding that the plaintiff’s present condition of symptomatic lumbar spondylosis was unrelated to the incident on 31 January 2017.
In particular, the plaintiff emphasises the Panel’s reference to the ‘absence of any evidence of any trauma to the lumbar spine sustained during the incident’ in what I have identified above as the passage of reasoning central to the plaintiff’s present complaint.
In contrast with the categorical terms in which that statement was expressed, the plaintiff refers, in particular, to three records that were within the referral material, particularly –
(a) The ED record, which may properly be described as the one page report of Melinda Blake, hospital medical officer of the Emergency Department at the Northern Hospital dated 8 February 2017;
(b) The progress note of Mr Kho, physiotherapist at the Northern Hospital dated 7 March 2017; and
(c) The report of MRI scan of the plaintiff’s lumbar spine dated 10 April 2017.[1]
[1]In written submissions and argument there was also reference to a further note dated 11 September 2017, the applicable copy of which may not have been in the Court Book, but which was referred to by the Panel at the top of page 9 of its reasons. In my view nothing turns on that document as the Panel evidently referred to it and it was created well after both the workplace incident and the General Practitioner note of 6 June 2017 that recorded ‘still back pain’.
There seems to me to be little in the contention that the Panel erred in failing to take account of the report of MRI scan, as it referred to that report repeatedly in its reasons.
Further, the fact that the plaintiff was referred for and underwent an MRI scan of her lumbar spine in April 2017 does not necessarily sit uncomfortably with the proposition that her complaints of back pain could be unrelated to the incident in January, in light of the fact that the plaintiff had a history of intermittent back pain prior to the incident and for which she had attended her general practitioner and been provided with anti-inflammatory medications on dates in the three year period prior to January 2017.
Similarly, the fact that Mr Kho, physiotherapist, noted in March 2017 the plaintiff’s history of being ‘hit from behind by a large linen trolley’ and that ‘pain is related to Lx [lumbar] strain and soft tissue’ does not connect the complaint of lower back pain with the plaintiff having been struck with the trolley in terms that are beyond argument. The wider context of that note includes reference to the plaintiff’s concern that she had injured her left hip. In any event, the more important point is probably that the note is dated in March 2017, and the Panel recorded that the plaintiff had seen, for example, Dr Curtis in March 2017 and complained of back pain at that time.
More compellingly, however, the one page ED record dated 8 February 2017 stated, relevantly:
ZORA TALEVSKA presented to the Emergency Department at The Northern Hospital on the 8 FEB 2017 at 17:12. The presenting problem was LEFT LEG/LOWER BACK PAIN POST FALL 1/52 AND BEING HIT IN THE BACK BY A TROLLEY. ASSOC WITH NUMBNESS LOWER LEFT LEG 3/7 AND DIFFICULTY WALKING. NIL HEAD STRIKE. HIP X-RAY YEST – NAD. HX THR 8YRS AGO.
The diagnosis was INJURY TO NERVE (incl spinal/excl intracranial) – LOWER LEG – Injury to nerve of lower leg.
…
We suspect this may be a neuropraxia and have discussed that it may take some time for the numbness and tingling to resolve.
…
The significance of the above is that:
(a)the plaintiff was referred to the hospital on that day by her general practitioner and the ED record was made relatively proximately to and contemporaneously with the incident;
(b)it was recorded in circumstances in which it might be thought that the worker had no eye to compensation and litigation (in that regard, it was completed well before the plaintiff’s claim for compensation dated 21 February 2017); and
(c)it makes reference to the combination of being struck in the back in the incident, suffering back and left leg pain from the incident and to a diagnosis that includes the ‘spinal’ nerves as well as those of the lower (left) leg.
In this sense, the ED record is a relatively contemporaneous and more complete reference to the elements of the plaintiff’s complaint (incident contacting back; onset of back and left leg pain; back and left leg diagnoses) than the other documents to which her counsel referred to in argument. In terms of chronology, it also significantly precedes her claim form and the later references to back pain in her histories to other doctors.
As I have noted, it seems that the Panel was moved more by contemporaneous records than by the history given orally by the plaintiff. On any view, the ED record was a contemporaneous record of significance. However:
(a)in the central passage referred to above, the Panel considered there to have been an ‘absence of any evidence of any trauma to the lumbar spine sustained during the incident’ – which, in context, must be read as an absence of any contemporaneous documentary evidence;
(b)the Panel later reflected that approach in its disregarding of the opinions of Mr Miller and Dr Brasier on the basis that they had obtained a history of acute onset and persistence of lower back pain as a result of the incident, with which the Panel stated specifically that it disagreed – albeit that the ED record could be read to be a record of onset of acute lower back pain in and since the incident;
(c) at no point did the Panel make any reference to the ED record.
In this sense, the inference is strong that the Panel – which was otherwise so detailed and careful in its reasons – must have overlooked the ED record and its significance.
In that regard, as I have noted, the ED record was of only one page. Further, it was listed in the Panel’s schedule of attachments to its reasons as merely ‘Northern Hospital (Melinda Blake)’, rather than as a distinct record of the Emergency Department. In addition, neither of the written submissions of the parties to the Panel had quoted or specifically highlighted the document in a way that would necessarily link to its present significance.
Of course, none of this is to say that the Panel having seen the ED record was compelled to accept that the plaintiff suffered injury to her lumbar spine in the incident and the onset and continuation of back pain thereafter. There was other contemporaneous documentary evidence that made no reference to back pain in connection with the incident. However, the ED record was strikingly proximate to the incident, corroborative of the plaintiff’s oral account to the Panel and plainly significant having regard to the manner in which the Panel ultimately reasoned. It was also not a document that, it seems, the Panel had raised with the plaintiff specifically in the course of her examination before it, although it had raised other significant documents with her.
The essence of the submission made by counsel for the first defendant was, in substance, that:
(a)the Panel said that it had it had considered ‘the information contained in the various documents included with the Referral material’ and should be taken at its word;
(b)to say that in the central passage complained of the Panel was saying that there was no evidence that the plaintiff was struck in the back with a trolley is to mistake what the Panel in fact said. When speaking of ‘trauma to the lumbar spine’, it was submitted, the Panel was referring to, in effect, acute or traumatic injury to the lumbar spine said to be a ‘medical concept’ rather than the plaintiff merely being struck by the trolley;
(c)the expert medical Panel was in the best position to determine whether the plaintiff had suffered ‘trauma’ to the spine in the incident; and
(d)the documents complained of as overlooked were no more than ‘pieces of evidence’ that took the matter no further because of what the Panel is said to have meant when referring to ‘trauma to the lumbar spine’.
Notwithstanding the attractive manner in which the first defendant’s submission was presented and developed, I am unable to accept it.
True it is that the Panel said that it had had regard to the contents of the referral material, but the absence of any reference to the ED record sits very uneasily with its striking relevance and the categorical statements of the Panel in its reasons that stand contrary to the contents of that record (‘absence of any evidence’; ‘acute onset of lower back pain as a result of the incident’ in respect to which the Panel said that it had a ‘different opinion’).
Further, it seems to me to be likely that the reference by the Panel to ‘trauma to the spine sustained during the incident’ is unlikely to be a reference to acute medical pathology of any specific kind.
In its ordinary sense, trauma can mean bodily injury, but it can also mean the condition caused by that injury – in this instance, pain. That might often be thought to be the manner in which the word is being used when the underlying pathology is no more than aggravated and symptomatic degenerative changes of the lumbar spine that, often enough, including on the evidence in the present case, seem likely to have appeared no different before and after the particular incident.
Consistently with such an approach, at the commencement of the central passage referred to, the Panel focussed upon and accepted the plaintiff’s complaints of pain in respect to the left leg: that is, pain, as opposed to any particular diagnosis or pathology for that pain.
On the page previous to that in which the central passage appears, the Panel referred to ‘direct trauma’, seemingly in the sense of contact with the plaintiff’s lower back during the incident. Thereafter, the Panel made the point in respect to the general practitioner’s notes that there was ‘no reference to back pain until a consultation dated 6 June 2017, almost five months after the incident’. Again, an emphasis upon pain as a consequence of the incident or, more specifically, an absence of record of it.
Similarly, on the later page in which the Panel effectively distinguished the opinions of Mr Miller and Dr Brasier, it did so because it did not accept that there was any persisting lower back pain from acute onset in the incident rather than because those medical practitioners had accepted any specific back pathology with which it disagreed.
For these reasons, I reject the submission that the Panel was referring to acute and ‘traumatic’ lumbar pathology when it referred to ‘trauma’. In my view, in context, it is more likely that it was referring to complaints of back pain in and arising out of the incident, or absence of them.
It should also be said that some aspects of the first defendant’s submission are at risk of becoming circular in the sense that – effectively it was said – the ED record should not be accepted to be evidence of ‘trauma to the spine’ because it should be inferred that it was not understood that way by the Panel, notwithstanding the fact that the ED record relatively clearly links the plaintiff’s onset of back and left leg pain with the incident and records a spinal diagnosis.
In light of the above, it seems to me that the Panel has made a factual error of the kind spoken of by the Court of Appeal in Chang v Neill,[2] namely a constructive failure to perform its statutory function as a consequence of a failure to have regard to relevant and important factual material.
[2](2019) 62 VR 174 [92] ‘Chang’.
In my view, the ED record was both relevant and important, and the failure of the Panel to refer to it is striking in light of the Panel’s statement that there was an absence of ‘any evidence of any trauma to the lumbar spine sustained during the incident’. For the reasons which I have endeavoured to explain, the Panel seems to have been particularly focussed upon what it described as ‘objective, verifiable evidence’ in the sense of reasonably contemporaneous documentary records and in my view the ED record is exactly that – a contemporaneous record of acute spinal and leg pain initiated by and persisting since the incident. In my view, the Panel was required to have specific regard to the ED record in order validly to exercise its function.
Further, while in oral submissions counsel for the defendant contended, correctly, that, in substance, the ED record did not require a finding contrary to that made by the Panel, it was, as I have said, strikingly in contrast to what it did find and does seem to have been overlooked. It was an important contemporaneous record and it seems that exercise of the statutory power could have been different if that error had not been made. Further, consideration of that matter was an essential feature of a valid exercise of the statutory function. For the reasons that I have given, the overlooking of the ED record by the Panel must satisfy the materiality requirement articulated in Chang.[3]
[3]Chang [93]-[100].
It follows from the above that ground 1 of the originating motion is made out and the relevant parts of the Panel’s determination must be quashed.
C Ground 2: ‘no evidence, not open’
In light of the above, I will deal with the plaintiff’s further grounds more briefly. In large part the parties were content to rely upon their written submissions in respect to these grounds, as ground 1 was addressed as the plaintiff’s ‘principal’ point.
The plaintiff contended that the reasons identified by the Panel for coming to the view that the plaintiff’s symptomatic lumbar spondylosis could not be linked with the incident were not ‘rationally probative’ of that conclusion and that ‘the only conclusion that could be rationally come to, on the evidence, was that the plaintiff had been struck in the lower back in the workplace incident’.
I cannot accept that submission. Whilst it is true that the ED record was an early and contemporaneous record of complaint of being struck in the back and suffering back pain as a consequence of that, and the plaintiff, when she met with the Panel, herself told the Panel that she had been struck in the back and had suffered back pain ever since, there was other material before the Panel, including contemporaneous material, that made no mention of back pain or treatment to the plaintiff’s back. It is not a case in which there was no evidence or only one view of the evidence such that only one conclusion could be reached. What I have said should be sufficient to explain why it is that this first part of ground 2 ought be rejected.
The second part of ground 2 was directed to the Panel’s conclusion concerning chronic pain syndrome in respect to which it was said that it was not open for the Panel to conclude other than that the plaintiff’s chronic pain syndrome was caused by the incident.
The issue of chronic pain syndrome arose in the material before the Panel, but appears to have been essentially confirmed by aspects of the Panel’s clinical examination of the plaintiff. In that regard, the Panel noted diffuse and generalised tenderness to palpation together with ‘complaints of severe lower back pain experienced with any/all movement of both her legs, inconsistent with her ability to ambulate and to sit upright’.
When later coming to the issue, the Panel stated:
The Panel noted that chronic pain syndrome is characterised and defined by a constellation of factors, both physical and psychosocial, including a strong focus on persistent, constant pain, a consistently detailed description of which can be provided by the sufferer, who is also able to provide a detailed and unvarying description of his medications and of the functional limitations commensurate with the pain perception, who has a firm belief in being disabled as a result of a serious medical condition, and who also demonstrates non-organic signs on clinical examination. The Panel considered that the Plaintiff’s presentation satisfies these criteria and formed the view that she is suffering from a chronic pain syndrome.
The Panel thereafter identified a reference in the material to the opinion of Mr Owen, treating orthopaedic surgeon, which it considered to indicate that the plaintiff may have had a pre-existing predisposition to the factors contributing to development of a chronic pain syndrome. Thereafter, the Panel stated:
The Panel also noted the Plaintiff’s statement regarding her 2005 claim for an episode of lower back pain, from which she made a full recovery, versus her current lower back pain, which she perceives to be disabling, in relation to which she said that ‘that was a muscle, this is a disc’. The Panel considered that the Plaintiff has developed a firm belief in having become incapacitated as a result of perceiving herself to be suffering from a severe ‘disc’ problem in her lower back and in this context has developed a chronic pain syndrome. The Panel noted that this opinion concurs with the view of Mr Russell Miller, orthopaedic surgeon who examined the Plaintiff at the request of her legal advisers, as expressed in his report dated 5 July 2019, wherein Mr Miller stated that ‘it is likely that it has been complicated by the development of a chronic pain syndrome leading to an overall poor prognosis’.
The Panel therefore considered that the Plaintiff has developed a chronic pain syndrome which is associated with, and complicates, her current age-related medical condition of constitutional lumbar spondylosis.
In a sense, the present complaint is overtaken by the plaintiff’s success in respect to ground 1, and so much was recognised by the parties in oral argument. In any event, the plaintiff’s success on ground 1 does not dictate that it was not open to the Panel not to conclude, as a matter of inference, that the plaintiff’s chronic pain syndrome was not aggravated, accelerated or exacerbated by the incident. That is and remains a question for the Panel. Causation is an inference of fact and, often enough, also a value judgement. Whichever way the question is viewed, it is plainly capable in the present context of being a question properly within the remit of the Panel.
Senior counsel for the plaintiff was critical of the Panel for observing that ‘the plaintiff has developed a firm belief in having become incapacitated as a result of perceiving herself to be suffering from a severe “disc” problem in her lower back, and in this context has developed a chronic pain syndrome’. It was said that the Panel had overlooked the question whether chronic pain syndrome ought properly be viewed as caused by or a cause of the incident.
I do not read the Panel’s reasons as overlooking that potential causal connection. The Panel referred to and so plainly understood that the plaintiff herself attributed her persisting pain and functional limitations to the incident. However, I read the Panel’s reasons as coming to the view, as a matter of fact and value judgement, that the plaintiff’s chronic pain syndrome was based in her ‘firm belief’ of a ‘disc’ problem that was sufficiently remote from the incident as properly to be considered not to have been related to it in a causal sense. True it is that the Panel does not say that in precisely those terms, but it does seem to me to be the substance of what the Panel was saying.
For these reasons, ground 2 in both of its aspects should be rejected (subject, of course, to the fact that the plaintiff’s success on ground 1 logically and independently impacts upon the questions directed to the plaintiff’s psychological condition, including in respect to any chronic pain syndrome, for the reasons acknowledged by the parties in argument).
D Ground 3: Failure to consider relevant matters
In both the originating motion and written submissions the plaintiff addressed this ground essentially co-extensively with ground 1.
In response, the first defendant submitted that the documents said by the plaintiff to have been overlooked were ‘pieces of evidence rather than mandatory considerations as that distinction is discussed in Chang.’[4]
[4]Chang [65]-[100].
If the issue be co-extensive with ground 1, I have already determined it.
On the other hand, a complaint about a failure to take into account mandatory considerations might be said to turn upon the consideration rather than the evidence going to that consideration.
In the present instance, the consideration is revealed particularly by the Panel’s treatment of the opinions of Mr Miller and Dr Braiser, that is, whether there was an acute onset of lower back pain as a result of the incident which has persisted from onset. In the present instance, it seems to me that the consideration was taken into account by the Panel. The point is that the Panel overlooked ‘objective, verifiable evidence’ going to that consideration, particularly the ED record.
If the point is properly to be viewed in that way, ground 3 must be rejected, albeit that ground 1 directly engages the real point in issue and, that ground, as I have noted, must succeed.
E Ground 4: Reasons
The Panel was obliged to state its actual path of reasoning and in detail sufficient to enable a reviewing court to determine whether or not its opinion involved an error of law.[5]
[5]Wingfoot Australia Partners Pty Ltd & Anor v Kocak (2013) 252 CLR 480.
It will be evident from the above that the reasons of the Panel were sufficiently detailed in order to enable that to occur. Indeed, in many respects the Panel’s reasons were commendably detailed and careful and certainly more than sufficient in order for the Court to determine what was being said taking account of the fact that Medical Panel reasons are to be understood as the reasons of medical practitioners, not lawyers.
That said, the present reasons in their terms and context do disclose an error to which the plaintiff’s ground 1 is directed, but in my view that only underlines the sufficiency of the reasons provided.
Ground 4 must be rejected.
F Conclusion
The plaintiff has made out ground 1, which was her ‘principal’ contention.
In light of the above, and the acknowledgement in the course of argument that it would be proper for the Court to grant the relief sought by the plaintiff but only in respect to certain answers given by the Panel, I will hear the parties in respect to the appropriate form of order, but would have thought that certiorari will go in respect to only questions and answers 1(a) and (f), 4(a), 5(a) and 6 and following.
An order in the nature of mandamus will be made remitting the particular questions to a differently constituted medical panel to be reconsidered and answered in accordance with law.
As I have indicated, I will hear the parties in respect to the form of orders, and costs.
SCHEDULE OF PARTIES
| S ECI 2020 02184 | |
| BETWEEN: | |
| ZORA TALEVSKA | Plaintiff |
| - and - | |
| ENSIGN SERVICES (AUST) PTY LTD | First Defendant |
| DR CHRISTINE KOSTIOS | Second Defendant |
| DR SUSANNE HOMOLKA | Third Defendant |
| MR RODERICK CUNNINGHAM | Fourth Defendant |
| DR JENNIFER HARMER | Fifth Defendant |
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