Tan v Kotzman
[2016] VSC 482
•25 AUGUST 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 06155
| MUI TAN | Plaintiff | |
| AND | ||
| DR DAVID KOTZMAN & ORS | Defendants | |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 1 AUGUST 2016 |
DATE OF JUDGMENT: | 25 AUGUST 2016 |
CASE MAY BE CITED AS: | TAN v KOTZMAN & ORS |
MEDIUM NEUTRAL CITATION: | [2016] VSC 482 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Inadequate Reasons – No reasoning in opinion about chronic pain syndrome – Syndrome raised by medical questions and by reference materials – Opinion as to capacity for work – Suitable employment – Whether panel failed to give consideration to relevant matters – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 3, 302, 303, 304, 307, 313 – Accident Compensation Act 1985 (Vic), s 5(1B).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Schilling | Zaparas Lawyers |
| For the Sixth and Seventh Defendants | Mr M Fleming QC with Mr R Kumar | Russell Kennedy |
| For the First, Second, Third, Fourth and Fifth Defendants | No appearance. |
HIS HONOUR:
The plaintiff applied, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial review of a Medical Panel opinion dated 5 October 2015 made pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013, in respect of the plaintiff’s capacity to work following injuries allegedly suffered as a result of her employment. By her second amended originating motion filed pursuant to leave granted on 1 August 2016, the plaintiff sought an order in the nature of certiorari, quashing the opinion of the Medical Panel, and an order in the nature of mandamus, remitting the questions in respect of which its opinion was given to a differently constituted medical panel to be determined in accordance with law.
The first to fifth defendants, who did not appear and will abide the court’s decision, constituted the members of the Medical Panel whose joint reasons are the subject of this application. The sixth defendant was the plaintiff’s previous employer, and the seventh defendant is the employer’s claims manager and an authorised agent of the Victorian WorkCover Authority (collectively ‘the defendants’).
For the following reasons, I will grant to the plaintiff the relief she seeks.
Background to the application
The plaintiff’s injuries
In 2003 the plaintiff commenced full-time employment, through a labour hire agency,[1] as a machine operator at Fyna Foods, a confectionary factory. The plaintiff’s duties involved lifting and pulling heavy pallets of chocolate to her workstation, feeding the chocolate into a hopper, restacking the pallets, lifting and replacing 13kg rolls of plastic film in a machine and cleaning the machine. The work was manual and involved repetitive handling, bending, twisting and lifting of heavy items. On or about 5 January 2012, the plaintiff fell backwards and onto the ground while trying to lift a wooden pallet off a stack of pallets. When she returned to work, in order to reduce her exposure to manual handling, the plaintiff changed duties to a role packing chocolates, which required her to stand and pack at about waist height.
[1]In November 2011 the plaintiff’s employment commenced with the sixth defendant, a different labour hire agency.
In December 2012, the plaintiff underwent right carpal tunnel surgery. She returned to work in February 2013 on light duties and with reduced hours. In March 2013, she went on annual leave. When she returned from leave, the sixth defendant did not offer her further work. She attempted to return to work in November 2013 with a different employer, packing potatoes, but was unable to continue due to increased pain symptoms.
The plaintiff alleged that as a result of her repetitive work duties during her employment with the sixth defendant, she sustained injuries that were aggravated by the fall on 5 January 2012. Her injuries were to the lower back, neck, left and right shoulders, right upper limb, bilateral carpel tunnel syndrome, chronic pain syndrome and consequential psychological injury.
Claim history and Magistrate’s Court proceeding
The plaintiff lodged multiple claims in respect of these injuries. The affidavit of her solicitor, Ms Kehela Vandenberg, affirmed on 10 December 2015, sets out the history of those claims. I will not recite this history in these reasons. It is sufficient to note that the plaintiff was aggrieved by several decisions of the seventh defendant to either reject a compensation claim or terminate weekly compensation payments on the basis that she has a current work capacity or her incapacity to work was not likely to continue indefinitely.
On 19 July 2013, the plaintiff commenced proceedings in the Magistrates Court of Victoria. She subsequently amended her claim as the seventh defendant rejected further claims made after she first commenced the proceeding. In summary, the amended claim ultimately alleged:
(a)That the plaintiff’s work duties caused, aggravated and or accelerated injuries to her neck, right upper limb, bilateral carpal tunnel syndrome; aggravation of bilateral carpal tunnel syndrome, bilateral shoulders (tendinopathy in right shoulder, full thickness tear in left shoulder), chronic pain syndrome and consequential psychological injuries;
(b)That the plaintiff suffered injuries to the right arm, neck, right shoulder, left shoulder, chronic pain and consequential psychological injuries caused by the fall on or about 5 January 2012;
(c)That the plaintiff suffered injury to the left shoulder as a consequence of the right shoulder injury; and
(d)That the plaintiff suffered injury to the lower back as a result of both her work duties and the fall referred to above.
In summary, the defendants, admitted that the plaintiff suffered –
(a)compensable neck, right arm and right shoulder injuries during the period 26 October 2012 to 21 February 2013; and
(b)a compensable back injury as a result of the fall on or about 5 February 2012, for the period 3 April 2013 to 12 September 2015.
The defendants admitted a continuing liability for medical and like expenses for the plaintiff’s lower back injury, but otherwise denied the alleged injuries.
Referral to Medical Panel
On 3 July 2015, a magistrate referred 15 medical questions to the Medical Panel pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013. On 14 September 2015, the Panel examined the plaintiff. The Panel comprised, by speciality, an occupational physician, a rheumatologist, an orthopaedic surgeon, and two psychiatrists.
The Panel’s Certificate of Opinion and its Reasons for Opinion are both dated 5 October 2015. The relevant questions submitted for its consideration and its answers were as follows:
Question 1:What is the nature of the Plaintiff’s medical condition relevant to the alleged injuries to the:
a. Neck;
b. Bilateral moderate C4 neuroforaminal narrowing at C3-C4;
c. Right upper limb;
d. Bilateral Carpal Tunnel Syndrome;
e. Tendinopathy in right shoulder;
f. Full thickness tendon tear in the left shoulder;
g. Bilateral shoulder;
h. Chronic pain syndrome;
i. Consequential psychological injuries;
j. Lower back.
(“the said injuries”)?
Answer:In the Panel’s opinion, the Plaintiff is suffering from mild persisting low back dysfunction, as a consequence of a partially-resolved soft tissue injury of the lumbar spine.
The Panel is also of the opinion that the Plaintiff is not currently suffering from any other medical condition attributable to the said injuries.
Question 2:Was the Plaintiff’s employment with the Defendant on 5 January 2012 in fact, or could it possibly have been, a significant contributing factor to alleged neck, bilateral moderate C4 neuroforaminal narrowing at C3-C4, right upper limb and tendinopathy of the right shoulder injuries?
Answer:The Panel is of the opinion that the Plaintiff’s employment on 5 January 2012, could not possibly have been, and was not in fact, a significant contributing factor to any alleged injuries or conditions of the neck, bilateral moderate C4 neuroforaminal narrowing at C3-C4, right upper limb, or tendinopathy of the right shoulder, or to the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injuries or conditions of the neck, bilateral moderate C4 neuroforaminal narrowing at C3-C4, right upper limb and tendinopathy of the right shoulder, in any way.
Question 3:Was the Plaintiff’s employment with the Defendant in fact, or could it possibly have been, a significant contributing factor to alleged full thickness tear in the left shoulder injuries?
Answer:In the Panel’s opinion, the Plaintiff’s employment could not possibly have been, and was not in fact, a significant contributing factor to any full thickness tear in the left shoulder, or to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing full thickness tear in the left shoulder, in any way.
[Questions 4–6 not relevant to the application.]
Question 7:During the period from 12 September 2015 to the date of the Medical Panel examination did the Plaintiff have:
a. a current work capacity;
b. no current work capacity?
Answer:a. Yes.
b.No.
[Questions 8–10 not relevant to the application.]
Question 11: As of the date of the Medical Panel examination, does the Plaintiff have:
a. a current work capacity; or
b. no current work capacity?
Answer:a. Yes
b. No.
[Questions 12–15 not relevant to the application.]
The effect of the Panel’s opinion was that the plaintiff’s proceeding must fail. That is because, unless set aside by this court, by operation of s 313(4) of the Workplace Injury Rehabilitation and Compensation Act, the Panel’s opinion must be accepted as final and conclusive in the plaintiff’s Magistrate’s Court proceeding. In these circumstances, the plaintiff has standing to apply for relief in the nature of certiorari and mandamus.
Grounds of appeal
The plaintiff raised four issues with the Panel’s Certificate of Opinion:
(a)the Panel failed to provide adequate reasons with regard to referred questions (1)(a)-(c), (e)-(g), 1(h), (2), (3), (7) and (11);
(b)the Panel failed to provide an opinion on referred question 1(h) (chronic pain syndrome);
(c)the Panel failed to apply the criteria set out in s 5(1B) of the Accident Compensation Act 1985 in determining questions 2 and 3; and
(d) the Panel failed to take into account relevant considerations, namely:
(i)referred medical question 1(h) and whether the plaintiff was suffering from a chronic pain syndrome; and
(ii)whether the functional requirements of the roles identified by the Panel as constituting ‘suitable employment’ would further aggravate the plaintiff’s pre-existing carpal tunnel syndrome.
Legal principles
In Wingfoot Australia Partners Pty Ltd v Kocak,[2] the High Court authoritatively identified the standard required of a medical panel’s reasons provided pursuant to s 68 of the Accident Compensation Act (the legislative predecessor to s 313(2) of the Workplace Injury Rehabilitation and Compensation Act) as follows:[3]
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.
[2](2013) 252 CLR 480. See subsequently Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, and Richter v Driscoll [2016] VSCA 142.
[3]Ibid, 501 [55].
In terms of establishing error on the part of a Medical Panel, the Court said:[4]
If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
[4]Ibid.
It is not necessary for a Medical Panel to refer to each of the opinions of medical experts provided with the referral material or to explain why it reached a different view on the referred medical questions to any of those experts.[5] This is a reflection of the function of a Medical Panel, which the High Court characterised as follows:[6]
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.
The plaintiff did not contend that the panel was required to deliberate or adjudicate on the opinions of the practitioners in the referral materials.
[5]Ibid, 502 [56].
[6]Ibid, 499 [47].
That principle is, however, subject to the following proviso:[7]
The nature of the question referred to a Medical Panel, and the way that question was addressed by other medical practitioners in opinions supplied to a Medical Panel, might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a Medical Panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons. An inference might be drawn, for example, that the reasoning involved one or more steps not reflected in a written statement of reasons either at all or in sufficient detail to allow a court to see whether a Medical Panel made an error of law in those steps.
[7]Ibid, 502 [57].
It is axiomatic that the court on judicial review is concerned only with issues of legality. The merits of any opinion expressed, to the extent that they can be distinguished from legality, are for the medical panel alone.[8] Within the parameters established by the High Court in Wingfoot, the reasons of a medical panel are entitled to a ‘beneficial construction’ in the sense that they should ‘not … be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[9]
[8]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36-37; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 363 [66]; Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, 48 [8]; Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [61].
[9]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29]-[30].
It is clear that what must be included in the reasons to ‘show that the opinion does or does not involve error of law’ will vary from case to case. The reasons need not positively disclose error to fall short of the standard in Wingfoot. The reasons provided must be of sufficient detail to show that the opinion of the medical panel has been properly formed and is supported by ‘an evident and intelligible’ justification.[10] If the reasons are such that the court is left in any real doubt as to whether a panel has correctly exercised its statutory functions, the reasons will not comply with the Workplace Injury Rehabilitation and Compensation Act.[11]
[10]Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, [70(d)] (Griffiths J with whom Allsop CJ and Wigney J agreed); Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [82]-[100]; Richter v Driscoll [2016] VSCA 142, [126].
[11]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].
There was some debate before me about the adequacy of reasoning required for forming an evaluative opinion. The defendants pointed to an observation made by Phillips JA, in a different context and prior to Wingfoot, when submitting that findings that the worker’s employment was not a ‘significant contributing factor’ to injury, or that a medical condition is not related to an alleged injury, being questions as to a causal link, are findings of fact on questions ‘on which minds can legitimately differ, involving a value judgment on the evidence (or other material)’.[12] However, the context of those observations was whether the question was one that had been committed to the tribunal and not to the court and I am not assisted by this submission on the question of the standard or content of reasoning required of a medical panel, particularly where Wingfoot is directly on point.
[12]S v Crimes Compensation Tribunal (1998) 1 VR 83, 89.
The defendants also drew on cases examining the adequacy of reasons in serious injury applications, noting that ‘a serious injury application necessarily involves a substantial amount of “value judgment” which does not itself admit of detailed explicit reasoning’.[13] Most recently, Cavanough J observed in Dias v Oakleigh Centre Industries[14] that ‘[t]he reasons behind the formation of an opinion by a medical panel on an evaluative question of [whether or not the plaintiff had a current work capacity] cannot be extensively articulated’. I do not take Cavanough J to be suggesting any dilution of the standard of reasons specified in Wingfoot.
[13]Woolworths Ltd v Warfe [2013] VSCA 22, [130].
[14][2016] VSC 115, [29].
Kaye AJA observed in Woolworths Ltd v Warfe,[15] which if I may with respect say is perfectly consistent with Wingfoot, that the adequacy of reasons must depend upon the issues and nature of the proceeding in any individual case. The appeal concerned a serious injury assessment by the County Court. In an appropriate case, reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. Consistently, in Richer v Driscoll,[16] Ashley and Kaye JJA stated that a court reviewing the reasons of a medical panel should eschew speculative ‘gap-filling’ and inferences lacking a proper evidential foundation disclosed in the reasons.
[15][2013] VSCA 22, [131].
[16][2016] VSCA 142, [129], [132].
I bear in mind that the content or standard of reasoning required of a medical panel is set by the decision in Wingfoot.
It was not in dispute before me that the test for jurisdictional error was authoritatively stated by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.[17]
[17](2001) 206 CLR 323, 351 [82].
In respect of the ground based on the Panel’s failure to have regard to relevant considerations, a medical panel will fall into jurisdictional error if, in making its decision, the medical panel ignores a matter it was bound to take into account (a relevant consideration), or takes into consideration a matter it was bound to disregard (an irrelevant consideration), and in either case, the matter ignored, or impermissibly taken into account, materially affected its decision.[18]
[18]Craig v South Australia (1995) 184 CLR 163, 179; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ).
The considerations that must be taken into account, or that must not be taken into account, by a medical panel are determined by reference to any consideration expressly referred to in the statute or, if none are stated, by implication from the subject-matter, scope and purpose of the statute.[19]
[19]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42; Abebe v Commonwealth (1999) 197 CLR 510, 579-580 [195]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 348 [74].
In Moyston Court Fisheries Limited v Malios & Ors, J Forrest J said that the matters which must be taken into account by a medical panel include: [20]
[20][2007] VSC 518, [47].
(a)its own examination of the worker (including any history provided and evidence as to any investigations, tests, studies or the like) and its opinion;
(b)the document required under the Act identifying the alleged injury and the agreed facts and disputed facts;
(c)the ‘material’ provided by the referring body or person, including the documents relating to the medical question as provided; and
(d) the medical question or questions asked.
In Ryan v Grange at Wodonga Pty Ltd, Neave JA (with whom Santamaria JA and Ginnane AJA agreed) said:[21]
Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration. ...
In my view the appellant’s answers to the Panel and the reports of the above practitioners squarely raised the issue whether the appellant’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition. It is not for this court to decide whether such an aggravation was likely or probable. However, I accept the appellant’s submission that if, after considering the matter, the Panel concluded that a return to duties would aggravate the appellant’s pre-existing injury, she should not have been regarded as capable of returning to her pre-injury duties. Although the Panel’s task was to reach its own conclusion and not to resolve the differences between the views of the various practitioners, I consider that by failing to consider the question whether the appellant’s work would aggravate her previous shoulder injury, the Panel failed to have regard to a relevant consideration.
[21][2015] VSCA 17, [60], [69](citations omitted).
The plaintiff carries the burden of establishing that there was a failure to consider relevant circumstances.[22] The High Court set out the matters which must be established in a challenge to an administrative decision in which it is asserted that the decision-maker has failed to take into account a relevant consideration in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[23]
(a)The relevant consideration must be one which the decision maker is bound to take into account in making that decision;
(b)The factors which must be taken into account can only be determined by reference to the relevant statute;
(c)A failure to take into account a particular consideration will not necessarily result in a setting aside of the decision; and
(d)The Court’s role is to review the exercise of the discretion – if it is made appropriately within the discretion it cannot be assailed.
[22]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J, Adam J agreeing).
[23](1986) 162 CLR 24, 39-42.
I accept the defendants’ submission that the mere circumstance that a medical panel may not have specifically referred to or specifically dealt with part of a competing body of evidence in the course of its fact-finding task does not result in the conclusion that the medical panel has not had regard to a relevant consideration.[24]
[24]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 680 (Barwick CJ); Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, 423 [79] (Allsop J, Heerey J agreeing); W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398, [32]; Brambles Industries Ltd v Nisselle [2005] VSC 82, [22].
Adequate reasons
The first ground upon which relief is sought is that an error of law on the face of the record is evident because the Panel failed to give adequate reasons in respect of referred questions 1(a) to (c) and 1(e) to (g), question 1(h), questions 2 and 3, and question 7.
Questions 1(a) to (c) and 1(e) to (g)
Panel’s reasons
This first question is poorly drafted. It inquiries about the plaintiff’s medical condition relevant to alleged injuries to listed areas of the plaintiff’s body. At a stretch, each of (a)–(j) can be interpreted as an injured area, except for (h) chronic pain syndrome. The Panel’s opinion on question 1 was that the plaintiff was suffering from a mild persisting low back dysfunction, as a consequence of a partially resolved soft tissue injury of the lumbar spine, and that the plaintiff was not currently suffering from any other medical condition attributable to the said injuries. It is implicit in the Panel’s answer to question 1 that the Panel concluded that the plaintiff is not suffering from any medical condition relevant to any sub-question other than question 1(j), which refers to injury of the lower back.
The Panel set out its conclusions for that opinion[25] in four steps. First, the Panel concluded that the worker was suffering from mild persisting low back dysfunction, as a consequence of a partially-resolved soft tissue injury of the lumbar spine. Secondly, while the Panel considered that the worker may have suffered carpal tunnel syndrome the Panel considered that at the time of their examination this had resolved. Thirdly, the Panel took account of the history provided by the worker, the material provided with the referral and the current findings on physical examination and on medical imaging. Finally, it concluded that the worker was not currently suffering from any other medical condition attributable to the said injuries. The Panel stated:[26]
Based on the same considerations, including the history provided by the worker, including the circumstances of the injury on 5 January 2012, the material provided with the referral and the current findings on physical examination and on medical imaging, the Panel concluded that the worker’s employment on 5 January 2012, could not possibly have been, and was not in fact, a significant contributing factor to any alleged injuries or conditions of the neck, bilateral moderate C4 neuroforaminal narrowing at C3-C4, right upper limb or tendinopathy of the right shoulder, or to the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injuries or conditions of the neck, bilateral moderate C4 neuroforaminal narrowing at C3-C4, right upper limb and tendinopathy of the right shoulder, in any way.
The Panel also concluded that the worker’s employment could not possibly have been, and was not in fact, a significant contributing factor to any full thickness tear in the left shoulder, or to the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing full thickness tear in the left shoulder, in any way.
The Panel noted the description of the incident in January 2012 and the persistence of symptoms despite treatment. The Panel concluded that during the period from 21 February 2013 to the date of the Medical Panel examination, and at the present time, the worker continued to suffer from low back pain as a result of the fall and the Panel therefore concluded that the worker’s mild persisting low back dysfunction results from, was and is still materially contributed to by the injury sustained on 5 January 2012.
While the Panel considered that the worker’s lower back was affected by the incident in January 2012, the Panel also noted that the worker had previously complained of lower back pain in 2008, but had continued to work in her pre-injury duties after this time. Based on its examination of the worker and its consideration of the material contained in the referral, the Panel considered that while the worker may have experienced some pain as a result of her work duties, the Panel did not consider that her work with the defendant contributed to any intrinsic medical condition of the back, but rather her lower back condition is attributable to the tripping fall in 2012. The Panel concluded that from 21 February 2013 to the date of the Medical Panel examination, and at the present time, the worker’s mild persisting low back dysfunction did not result from and is not materially contributed to by the alleged injury sustained throughout the course of her employment with the defendant.
[25]Reasons pp 9-11.
[26]Reasons pp 10-11.
Parties’ submissions
The plaintiff submitted that despite finding no medical condition relevant to alleged injuries to the neck, C3-C4, right upper limb (1(a)-(c)) and right shoulder, tendon tear to left shoulder, and ‘bilateral shoulder’ (1(e)-(g)), the Panel found that the plaintiff ‘currently experiences pain’ in relation to:
(a)The neck and the bilateral moderate C4 neuroforaminal narrowing at C3-C4 (relevant to questions 1(a), (b));[27]
(b) The right upper limb (relevant to question 1(c));[28] and
(c) Both shoulders (relevant to questions 1(e)-(g)).[29]
[27]The Panel noted from the referral materials the Plaintiff’s history of pain in the neck from late 2011 (Reasons p 7); recorded that the plaintiff currently complains of intermittent pain in the neck with forward flexion and right rotation (Reasons p 8); and stated that its physical examination revealed that ‘axial compression was mildly positive, with a slight pain reported in the neck’ (Reasons p 9).
[28]In relation to the shoulders, the Panel noted from the referral material the plaintiff’s history of pain in the right shoulder from late 2011 (Reasons p 7); noted that the Plaintiff first complained of pain in the left shoulder on 21 February 2013 (Reasons p 7); recorded that plain X-rays and ultrasound of right shoulder dated 12 February 2013 were reported to show supraspinatus tendinopathy, and that an ultrasound of the left shoulder dated 26 February 2013 was reported to show a full thickness tear of supraspinatus (Reasons p 9); and recorded that the Plaintiff currently complained of referred pain to both shoulder girdles (Reasons p 8).
[29]In relation to the right upper limb, the Panel noted from the referral materials the Plaintiff’s history of pain in the right arm from late 2011 (Reasons p 7).
The plaintiff submitted that an issue clearly in dispute between the parties was the relationship between her subjective perception of pain in these areas, which the Panel acknowledged, and her medical condition arising from injury in these areas. The Panel’s reasons do not address this relationship. Based on its reasons, the Panel did not consider the plaintiff’s reported pain to be manufactured, misstated or exaggerated. The Panel did not relate in some way the pain reported in the plaintiff’s neck, cervical spine, right upper limb or bilateral shoulder to the compensable back injury, nor did it attribute such pain to chronic pain syndrome. The plaintiff submitted that to conclude that, despite her reported pain, she was not currently suffering from a medical condition of the neck, cervical spine, right upper limb or bilateral shoulders, the Panel’s analysis must have included one or both of those steps. The plaintiff submitted that the Panel should have exposed this step in its process of reasoning, and its failure to do so amounted to an error of law.
The defendant submitted that the plaintiff misunderstood the nature of the question asked. Question 1 asked the Panel to provide its opinion on ‘the nature of the plaintiff’s medical condition relevant to’ various alleged injuries, which were particularised in the plaintiff’s second further amended statement of claim. It was not implicit from the Panel’s answer to question 1 that they had concluded she was not suffering from any medical condition of the neck, shoulders, right upper limb or cervical spine. Properly understood, the Panel’s finding was that there was no such condition caused by the plaintiff’s alleged injuries. The defendant submitted that so much was clear from their answer, when after identifying a partially resolved soft tissue injury of the lumbar spine, the Panel concluded that ‘the plaintiff is not currently suffering from any other medical condition attributable to the said injuries’. (emphasis added)
The defendant submitted that the following passage from Commonwealth v Mifsud,[30] albeit taken from a different statutory context, supported this construction.
A certificate of a medical board as to the condition of an employee, given pursuant to that section must, it seems to me, relate to his condition as affected by the injury for which he claims or is receiving compensation, its consequences, physical and mental, for him and their bearing upon his capacity for work. The policy of the Act and the purpose for which a certificate is to be given impose some restriction upon what could otherwise be a very far-reaching inquiry as to his “condition”. I do not think that in certifying as to his condition the board is obliged to report exhaustively upon aspects of his physical, nervous and mental state which do not arise or could not arise from the injury.
[30](1965) 114 CLR 505, 512.
The defendant submitted that the Panel’s finding that the plaintiff was not currently suffering from any other medical condition attributable to the said injuries was properly made as at the date of the Panel’s examination, as referred question 1 did not ask the Panel to provide its opinion in respect of any previous (but now resolved) medical condition.
Analysis
The Panel identified, from the referral material, the plaintiff’s history of pain and numbness in both wrists and hands from 2007, pain in the back from 2008, and pain in the neck, right arm and shoulder from late 2011 and identified that the plaintiff continued to experience pain:[31]
She currently complains of constant pain in the left side of the low back, with intermittent referred pain to the left leg, extending as far as the sole of the left foot … She complains of intermittent pain in the neck, with forward flexion and right rotation, with referred pain to both shoulder girdles. She said she can’t say which shoulder is the worst.
[31]Reasons, pp 7-8.
However, the Panel expressed no conclusion about pain other than with regard to lower back pain, finding that during the period from 21 February 2013 to the date of the Panel’s examination, and at the present time, the plaintiff continued to suffer from lower back pain as a result of the fall. The Panel did not make any positive current finding about pain referrable to the neck, right upper limb and both shoulders.
The Panel accepted the veracity of the plaintiff’s complaint of constant pain to the lower back and intermittent pain to the neck, but reached no conclusion on the possible cause of the intermittent pain to the neck, while accepting that the lower back pain was attributable to the fall. With regard to the upper limb, the Panel merely noted that her history of pain included pain of the right arm. It did not conclude that that she currently continued to suffer from such pain, and made no finding of right arm pain on examination. I do not consider the Panel’s reasons to be inadequate with regard to question 1(c), being injury to the right upper limb.
That said, the Panel’s reasons fail to adequately disclose its path of reasoning in concluding that the plaintiff was not currently suffering from any other medical condition attributable to the injuries, apart from the right upper limb. I cannot determine from the panel’s reasons whether its opinion that the only compensable injury was to the plaintiff’s lower back did not involve any error of law. Because the Panel recorded findings on examination of intermittent pain referable to the neck and shoulders, it is unclear whether the Panel:
(a)accepted that the plaintiff suffered pain as she described, concluded that the plaintiff suffered from the alleged injuries to the neck and/or shoulders, but found such pain to be unrelated to her work duties and thus warranted no further consideration; or
(b)did not accept that the plaintiff was in fact suffering pain to her neck and shoulders, and accordingly, concluded that she did not suffer from the alleged injuries at all.
Identification of the alternative chosen by the Panel would be an exercise in ‘speculative gap filling.’ It is not readily apparent why, if the Panel reasoned by the former course, it found such pain to be unrelated to the plaintiff’s work duties. Equally it is not apparent why, if the Panel reasoned by the latter course, it was selective in its assessment of the examination of the plaintiff’s pain, both by itself and by others. The generic dismissal of all injuries other than that to the lower back cannot be determinative in showing in these circumstances that the Panel properly considered all relevant considerations that it was required to consider. In either case, the Panel’s statement of reasons fails with regard to referred questions 1(a), (b), (e), (f) and (g) to meet the Wingfoot standard, which failure is itself an error of law on the face of the record of the opinion.
Question 1(h)
Panel’s reasons
The Panel made no findings about chronic pain syndrome. It was not in issue between the parties that the Panel was bound to give an opinion on question 1(h).
Parties’ submissions
The plaintiff submitted that the inevitable inference was that the Panel failed to exercise its statutory task to do so. She submitted that the Panel’s reasoning about the alleged chronic pain syndrome is plainly inadequate, submitting that the observations of Gleeson CJ in Minister for Immigration and Cultural Affairs v Yusuf, were apposite. The Chief Justice there said that where a decision maker bound to give reasons ‘does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; … that, in turn, may indicate that the [decision maker] did not consider the matter to be material.’[32]
[32](2002) 206 CLR 323, 330 [5]. See, further, Gaudron J at 338 [37], McHugh, Gummow and Hayne JJ at 346 [69] and Kirby J at 366 [133].
The plaintiff submitted that the existence of a chronic pain syndrome was clearly in issue. It was expressly referred to in the first question. Based on the referred material, which included a number of medical reports recording the plaintiff’s history of pain to her neck, shoulders and arms, several reports indicating an absence of clinical findings to account for the plaintiff’s pain, and a positive diagnosis from one doctor that she suffered from chronic pain syndrome, the syndrome was material to the Panel’s response to question 1. The question about the existence of a chronic pain syndrome may have fallen away had the Panel made different findings. It did not consider that the plaintiff was misstating or exaggerating her reported pain in the neck, shoulders and arms. It noted her limited use of painkillers, and the referral material contained information on her history of intolerance to painkillers following donation of a kidney. However the Panel neither made such findings nor addressed chronic pain syndrome in its reasons.
The defendant submitted that the Panel had satisfied the requirement to give reasons when it specifically ruled out the existence of any medical condition relevant to any claimed injury other than to the lower back, necessarily excluding the alleged chronic pain syndrome. The Panel’s answer to question 1 encompassed its consideration of the injuries suffered by the plaintiff, one of which was a chronic pain syndrome as identified at 1(h). The defendant relied on the following statement of the High Court in Wingfoot:[33]
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.
[33](2013) 252 CLR 480, 502 [56].
However, in inviting the court to accept that the answer to question 1 specifically ruled out the existence of chronic pain syndrome, the defendant submitted that the Panel arrived at an opinion that it was obliged to explain. It is beside the point to refer to opinions it did not form or that were formed by others. In any case, the defendant submitted that the Panel’s reasons had taken into account the plaintiff’s condition as required,[34] and whilst the plaintiff’s written submissions to the Panel and some of the material relied on adverted to the possibility of a chronic pain syndrome diagnosis, it was only raised, at its highest, as a mere possibility. The panel’s reasons were adequate to address this issue.
[34]The defendants referred to the following passages from the Panel’s reasons: ‘she complains of intermittent pain in the neck, with forward flexion and right rotation, with referred pain to both shoulder girdles’ (p 8); her medications included ‘intermittent use of Panadol Osteo, which she said she has hardly used in the last month’ (p 8); ‘there was no tenderness to palpation and no muscle spasm in the cervical or lumbar areas’ (p 9); axial compression resulted only in ‘slight pain’ in the neck (p 9); ‘range of motion of the cervical spine was within normal limits’ (p 9); ‘range of motion of both shoulders was normal and there was no shoulder girdle muscle wasting or crepitus’ (p 9); ’neurological examination of both upper limbs revealed normal reflexes’ (p 9).
Analysis
The Panel did not fail to carry out its statutory task by not providing an opinion on sub-question 1(h). Although the Panel’s findings do not expressly say so, it is implicit in the answer to question 1 that the Panel considered that the plaintiff was not suffering from a chronic pain syndrome. Error was made in that the Panel’s reasons in respect of question 1 do not disclose any path of reasoning in arriving at this conclusion in respect of chronic pain syndrome. The Panel appears to have overlooked that particular ‘alleged injury’ when explaining its answer to question 1.
The Panel has made findings about the plaintiff’s history of pain, her pain on examination, her use of pharmaceuticals, and her emotional or psychological response to her pain. As the plaintiff submitted, the Panel’s reasoning, in the context of these findings, ought to have addressed the express question. Ultimately the Panel’s only positive finding regarding a current pain condition concerned the plaintiff’s lower back injury. It is impossible to glean, from the reasons, the pathway taken by the Panel to determine that, despite the recorded history and findings on examination, the plaintiff was not suffering from a chronic pain syndrome.
One might speculate that the Panel might have concluded that the pain findings could not warrant a diagnosis of a current pain syndrome, given she reported no use of pain medication other than occasional Panadol Osteo, suffered an allergy to common pain medication and experienced adverse consequences from pain killers because of a left nephrectomy. So much was evident from the referral material but the panel made no reference to her intolerance of pain medication. Such speculation is both misguided and unhelpful. It is altogether unclear what factor influenced the Panel to express itself in a way that permits the inference that it considered the plaintiff did not suffer from a chronic pain syndrome. If such factors did influence the Panel’s opinion, its reasoning in that respect was required.
The Panel’s failure to reason to an express conclusion from its findings implies that it did not consider the question that it was asked to determine. In the circumstances, the panel’s conclusion in respect of a chronic pain syndrome required reasoning. In turn, the failure to express a path of reasoning leaves unanswered, possibly unconsidered, whether the reported pain was not caused, even in part, by her employment and/or by the compensable lower back injury, which is discussed further in due course.
I accept that the Panel was not obliged to explain why it did not reach an opinion it did not form, but the reliance on that principle from Wingfoot is out of its proper context. Question 1(h) was referred to the panel and it was required to answer it. The question required an opinion and comprehensible reasons for that opinion. It is the absence of any reasons that constitutes an error in this instance.
Questions 2 and 3
Inadequacy of reasons
Panel’s reasons
Referred question 2 invited the Panel to consider the relationship between the plaintiff’s employment on 5 January 2012 and injuries to her neck, bilateral moderate C4 neuroforminal narrowing at C3-C4, right upper limb and tendinopathy of the right shoulder. This is a poorly constructed question because 5 January 2012 was the date of her fall. The parties’ submissions, in part, demonstrate differing interpretations of the question. The Panel did not seek clarification or allude to any ambiguity and appears to interpret the question as inquiring into the relationship between the plaintiff’s employment on that day and the relevant injuries.
Referred question 3 questioned the relationship between the plaintiff’s employment generally and the alleged left shoulder injury, described as a ‘full thickness tear’. This question contained no apparent connection to the fall on 5 January 2012.
The Panel’s entire consideration of questions 2 and 3 is set out in the first two paragraphs extracted from its reasons at paragraph [33] above.
Parties submissions
The plaintiff submitted that questions 2 and 3 required the Panel to consider whether the plaintiff’s employment was or could have been a significant contributing factor to the following alleged injuries - neck, bilateral moderate C4 neuroforminal narrowing at C3-C4, right upper limb and tendinopathy of the right shoulder and full thickness tear of the left shoulder. These questions were not in terms limited to injuries current at the time of examination, but required the Panel to consider the relationship between the plaintiff’s work (up to 5 January 2012) and any resolved injury of the kind alleged. In context, the plaintiff had claimed for the injuries to her neck, neuroforminal narrowing at C3-C4, right upper limb and tendinopathy of the right shoulder on the basis of long term heavy lifting and repetitive movements at the same time as the accepted claim for bilateral carpal tunnel syndrome.
The plaintiff contended the relationship between a resolved injury and the plaintiff’s work could be critical to a proper assessment of the alleged chronic pain syndrome and consequential psychological features. The plaintiff submitted:
(a)Firstly, because those two paragraphs of reasons deal hypothetically with the injuries as ‘alleged injuries’, it is unclear whether the Panel accepted the prior existence of any of the alleged work related medical conditions affecting the neck, cervical spine, right upper limb and shoulders, or why, in relation to any such resolved medical condition, the Panel had formed the view that such injuries ‘could not possibly have been and [were] not in fact’ related to either the fall or the plaintiff’s work duties;[35] and
(b)Secondly, although the Panel did not accept the prior existence of any of the other medical conditions, the Panel expressly acknowledged that the plaintiff may have previously suffered carpal tunnel syndrome.[36] The plaintiff contended that it was impossible to discern the Panel’s path of reasoning in rejecting the other medical conditions, in particular in respect of the shoulder conditions given, as the Panel noted, medical imaging reported tendinopathy in the right shoulder and a left shoulder full thickness tendon tear.
[35]Reasons, p 10.
[36]Reasons, p 9.
The defendant submitted that the only accepted claim in respect of the 5 January 2012 incident was a lower back injury, which explained the referral to the Panel of the issue of whether other injuries could have arisen at that time. The defendant interpreted the question as focussed on the fall. This submission overlooked the acceptance of the carpal tunnel syndrome claim submitted on the basis of repetitious work with heavy lifting and fast paced movements. The defendant contended that the Panel’s reasons were sufficient, because they recorded that it took into account matters ‘including the history provided by the worker, including the circumstances of injury on 5 January 2012, the material provided with the referral and the current findings on physical examination and on medical imaging’.[37] The Panel’s statement of reasons was sufficient to comply with its statutory obligation where the history of the incident did not disclose any report of symptoms affecting the neck, upper limb, or right shoulder contemporaneous with the fall, and the Panel found that those symptoms commenced prior to the incident.
[37]Reasons, p 10.
Similarly, the Panel recorded its conclusion that the first complaint of pain in the left shoulder was made by the plaintiff to her general practitioner in February 2013. Stating that it had considered the same sources as identified in the preceding paragraph, the Panel:
… concluded that the worker’s employment could not possibly have been, and was not in fact, a significant contributing factor to any full thickness tear in the left shoulder, or to the recurrence, aggravation, acceleration and exacerbation or deterioration of any pre-existing full thickness tear in the left shoulder, in any way.
In the circumstances, the defendant again submitted that the Panel’s statement of reasons was sufficient, noting further that the question of causation was ultimately one of value judgment for the Panel ‘which does not of itself admit of detailed explicit reasoning’.[38]
[38]In Woolworths Ltd v Warfe [2013] VSCA 22, Kaye AJA (with whom Tate and Whelan JJA agreed) noted at [130] that ‘a serious injury application necessarily involves a substantial amount of “value judgment” which does not itself admit of detailed explicit reasoning’.
Analysis
The difficulties with the Panel’s reasons provided to question 1 infect its reasoning on questions 2 and 3. It is not apparent whether the Panel accepted that the plaintiff suffered any of the medical conditions affecting the neck, cervical spine, right upper limb and shoulders. If she did not suffer at all from any medical condition related to those injuries her condition could not have been referable to the relevant employment either in relation to employment on 5 January 2012 or the heavy lifting and repetitive movements required by her employment duties over the longer term. If the Panel had stated as much, I accept that there would have been little need for further reasons on that point to satisfy the adequacy threshold. However, if the Panel found that she did in fact suffer medical conditions from any or all of those injuries, but that the medical conditions were caused by something other than her employment, that was a key step in the reasoning, which should have been set out.
The first step in the reasoning process is whether the plaintiff suffered those injuries at all, not whether she presently exhibited symptoms. Then the issue of causation may need to be dealt with. The initial finding was a constituent part of the reasoning. It is insufficient to point, as the defendant does, to the fact that the Panel was only looking to injury referable to the relevant employment on 5 January 2012.
I accept the plaintiff’s submission that the Panel’s brief consideration of questions 2 and 3 fails to expose its path of reasoning. As the Court of Appeal said in Bakar v Gruma Oceania Pty Ltd,[39] ‘conclusions of a general nature without any meaningful reasons’ will not satisfy the test in Wingfoot. There is a step missing in the reasoning on these two questions such that it is impossible for the court to understand the basis upon which the opinion was given. In the form provided the opinion is in effect a bald assertion. In the Panel’s answer to question 2, the statement that the plaintiff’s employment on 5 January 2012 ‘could not possibly have been, and was not in fact, a significant contributing factor’ strongly suggests that the Panel has narrowly construed the plaintiff’s exposure to employment duties to that date only. The same reasoning, employing the same statement, was used to answer question 3, which cannot be construed as limited to the fall on 5 January 2012 and directed the Panel’s attention to questions of recurrence, aggravation, acceleration, exacerbation, or deterioration of the plaintiff’s medical conditions by reason of the plaintiff’s employment duties generally over the longer term.
[39][2014] VSCA 252, [36].
I am satisfied that the Panel’s reasoning in respect of questions 2 and 3 is inadequate. The panel may have fallen into error by identifying the wrong issue or asking itself the wrong question in the manner in which it has interpreted those questions. Its reasons in respect of these questions are not sufficiently detailed to enable me to see whether the opinion does or does not involve any error of law.
Jurisdictional error
The plaintiff put an alternative submission that the Panel, in determining questions 2 and 3, fell into jurisdictional error by failing to apply the criteria set out in s 5(1B) of the Accident Compensation Act1985.
Section 82(1) of the Accident Compensation Act provides that, generally, there is an entitlement to compensation in accordance with the Act if a worker has sustained injury arising out of or in the course of their employment. Section 82(2C)(c) of the Act provides that there is no entitlement to compensation in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, unless the worker’s employment was a ‘significant contributing factor’ to the recurrence, aggravation, acceleration, exacerbation or deterioration.
In determining this causation question, the Panel was required to consider the criteria in s 5(1B) of the Accident Compensation Act, which provides as follows:
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.
Parties submissions
The plaintiff submitted that if the Panel undertook any analysis, in particular in relation to sub-paragraph (d), it has patently failed to disclose that step in its reasons. The absence of any reference to the issues raised by s 5(1B)(d) suggests that the Panel failed to apply itself to, and address, the correct legal question and thereby constructively failed to exercise its jurisdiction.[40]
[40]Craig v South Australia (1995) 184 CLR 163, 179.
The defendant relied on its submission that the reasons provided in relation to questions 2 and 3 were adequate and, as such, the issue of jurisdictional error did not arise.
Analysis
The error infecting the Panel’s answers to questions 2 and 3 is found in the adequacy of its reasons for its conclusion for the reasons stated above, rather than a failure to undertake the statutory task. In circumstances where it is unclear whether the Panel accepted that the plaintiff had suffered[41] any injury other than to her lower back it is impossible to tell whether it considered the factors in s 5(1B), in particular the probable development of one or more of those injuries occurring if that employment had not taken place, in relation to those injuries. If the Panel did not accept that she suffered from any of the alleged work related medical conditions affecting the neck, cervical spine, right upper limb and shoulders, no need to consider the s 5(1B) factors arose. However, had the Panel found that she did in fact suffer a medical condition from one or more of those injuries, there is a step missing in the Panel’s reasoning. It is impossible for the court to glean whether the Panel determined that the medical condition was not referable to her employment. This obscurity goes to the adequacy of reasons, not the exercise of jurisdiction.
[41]As opposed to ‘was suffering’.
Questions 7 and 11
Questions 7 and 11 required the Panel to determine whether the plaintiff had a current work capacity.
‘Current work capacity’ is defined in s 5(1) of the Accident Compensation Act as:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to work in suitable employment.
‘Suitable employment’ is defined in s 5(1) of the Accident Compensation Act as:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre-injury employment; and
(iii)the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.
Panel’s reasons
The Panel addressed the plaintiff’s work capacity at page 11 of its reasons, stating:
The Panel considered the nature and severity of the worker’s lower back injury in conjunction with her pre-injury duties, which included prolonged standing, repetitive lifting of weights up to 12 kg and occasional repetitive bending and twisting on the production line. The Panel concluded that during the period from 21 February 2013 to the date of the Medical Panel examination, the worker could not and currently cannot return to her pre-injury employment as a machine operator. (underlining added for cross-referencing)
The Panel then considered the suggested job options included in the Nabenet 130 Week Vocational Assessment Report dated 3 January 2015.
Parties’ submissions
The plaintiff submitted that it must be inferred that the Panel considered the plaintiff’s pre-injury work to be unsuitable because of the functional requirements underlined above. The plaintiff submitted that the Panel’s reasons on this question were inadequate because having found, in effect, that she did not have a capacity as a result of a compensable injury to undertake work which required prolonged standing, occasional repetitive bending and twisting on the production line, and manual and repetitive actions, the Panel nevertheless concluded that the plaintiff could perform the duties of a ‘Light Packer’ and ‘Product Assembler (Light Items)’ which include in their descriptions equivalent physical demands.[42]
[42]The description of ‘Light Packer’ includes the following physical descriptors: constant standing when working, frequent bending, occasional twisting of body or neck, lifting and carrying and repetitive hand/arm movements. The description of ‘Product Assembler (Light Items)’ includes similar physical descriptors.
The plaintiff submitted that each of the possible paths of analysis identified by T Forrest J in Denham v Consolidated Herd Improvement,[43] could apply to the Panel’s analysis of the plaintiff’s work capacity in this case. In Richter v Driscoll,[44] Ashley and Kaye JJA (with whom Osborn JA agreed) indicated that a court reviewing the reasons of a Medical Panel should eschew speculative ‘gap-filling’ and inferences lacking a proper evidential foundation as disclosed in the reasons.
[43][2014] VSC 520.
[44][2016] VSCA 142, [129] - [132].
In Denham, T Forrest J found that the Panel’s failure to disclose its path of reasoning in reconciling the plaintiff’s injury, including his limited physical capacities, with suitable employment, was sufficient to disclose legal error. His Honour said:[45]
[45][2014] VSC 520, [38], [41]-[42].
I take the view that in this case a necessary step in the Panel’s reasoning was to reconcile the plaintiff’s injury, including his limited capacity to sit and stand for extended periods, with the suitability of employment. The plaintiff’s account of the extent of those limitations was set out in the Panel’s neutral summary of his history. Having concluded that the plaintiff did have this limited capacity, it is unclear whether the Panel accepted the plaintiff’s own description of those limits, or formed its own view. Perhaps the Panel took a conservative view of those limitations. That was one way of reconciling the plaintiff’s injury with the realities of employment. If it did so, it was required to say that it did so.
…
In more detail, I consider the defect in the Reasons to be that I am unable to say, on the balance of probabilities, whether the Panel:
a)considered that the employment activities were not sufficiently related to the plaintiff’s limitations, or sufficiently onerous considering the extent of the plaintiff’s limitations, to cause the plaintiff pain or discomfort; or
b)considered that while the plaintiff would suffer pain or discomfort, the degree of pain or discomfort was not sufficient to prevent him from performing the employment duties; or
c)considered that the degree of pain or discomfort the plaintiff would suffer, though acute, was not a bar to the finding that the employment constituted ‘suitable employment’ within the meaning of the Act; or
d)considered that having found that the plaintiff had transferable skills it was irrelevant that the plaintiff might suffer pain or discomfort undertaking the employment duties; or
e)did not undertake an independent assessment of the employment activities (or the suitability of employment, generally) but instead relied upon the Vocational Assessment which identified those activities to be suitable for the plaintiff; or
f) a combination of the above; or
g) reasoned in some other way.
Each of these, or a combination of these, is a path of reasoning that is available on the face of the Reasons and consistent with the Opinion. Many, perhaps all, of these paths might conceivably give rise to one or more errors of law. If, for example, the Panel had accepted the plaintiff’s description of his own limitations but had reasoned that the employment activities were suitable because they would not cause him pain, the plaintiff would have an at least arguable case that the Opinion was unreasonable in the Wednesbury sense. Alternatively, if the Panel had simply relied upon the Vocational Assessment without independently considering the suitability of the employment duties in light of the plaintiff’s physical limitations, the plaintiff might argue that the Panel had failed to have regard to a relevant consideration such as the ‘nature of the worker’s incapacity...’. It is impossible to say whether these claims would succeed or fail because each of these paths of reasoning would themselves contain other intermediate steps that are absent from the Reasons and that ought not be absent if a Court is to determine whether the Opinion is affected by error.
The defendant submitted that, properly understood, the Panel’s finding was not that the presence of any one of the underlined functional factors would preclude the plaintiff from particular employment options; rather its conclusion was only to the effect that her pre-injury employment which included all of those factors, was unsuitable. The defendant said it was significant that the roles of ‘Light Packer’ or ‘Product Assembler (Light Items)’ did not have the identical physical requirements to her previous role as a machine operator, and pointed to what it said were material differences in the functional requirements of both.
Although the defendant pointed to several cases that accepted that a medical panel’s answers to referred questions of an evaluative nature may not always be extensively articulated,[46] I do not accept that such remarks are intended in any way to dilute the Wingfoot standard for reasons.
[46]See above [20]–[23].
Analysis
In circumstances where the Panel had itself identified functional restrictions preventing the plaintiff from returning to her previous employment, the Panel needed to explain how it had formed the view that the plaintiff could undertake both positions that it deemed suitable, notwithstanding that they included substantially the same functional restrictions.
I am not persuaded by the defendant’s distinction on the basis that the job descriptions for suitable employment were not identical to her former role. If the plaintiff was unable to resume her former role because it involved prolonged standing, occasional repetitive bending and twisting, and manual and repetitive duties, logically any job involving the same or substantially similar physical requirements necessarily would be unsuitable. The fact that the two positions deemed suitable included other physical requirements that may have been within the plaintiff’s capacity does not alter that conclusion. The Nabanet report was in the materials before the Panel, which was chaired by an occupational physician. It included descriptions of the average expected physical and psychological demands of each position.
At least two issues became relevant. The first issue was the overlap between the former work duties accepted as beyond her capacities and the duties of the two positions identified as suitable. The second issue was whether partial application of a job description to the assessment being explained was appropriate. At a minimum the Panel needed to expose its path of reasoning in reconciling those issues.
Instead of articulating how it reconciled the position requirements with the plaintiff’s accepted physical restrictions, the Panel concluded that it had considered ‘the duties as described for these roles in the vocational assessment’. This may have been sufficient had there been no overlap in the Panel’s identification of the plaintiff’s functional limitations and the functional requirements of the two positions considered suitable. Failure to articulate how it had reconciled these issues constitutes an error of law, because the court cannot determine whether the conclusion that the plaintiff has a current work capacity is infected with jurisdictional error.[47]
[47]North v Homolka [2014] VSC 478.
Failure to consider relevant considerations
The final ground upon which relief was sought was that the Panel had fallen into jurisdictional error in determining particular questions by failing to have regard to matters to which it was bound to consider, namely:
(a) With regard to question 1:
(i) The medical question asked of it in question 1(h); and
(ii)Whether the plaintiff was suffering from a chronic pain syndrome;
(b)With regard to questions 7 and 11, whether the functional requirements of performing the roles of Light Packer and Product Assembler (Light Items) would further aggravate the Plaintiff’s pre-existing carpel tunnel syndrome.
Parties submissions
The plaintiff submitted that, firstly, for the reasons set out above regarding inadequacy of reasons, the Panel failed to have regard to a relevant consideration, namely question 1(h) of the referred questions and whether the plaintiff suffered from chronic pain syndrome, being an issue plainly raised on examination of the plaintiff and by the contents of the referral materials. Secondly, the Panel failed to have regard to the description of the physical demands of the roles of ‘Light Packer’ and ‘Product Assembler (Light Items)’ for the reasons set out above.
In respect of these two considerations, the defendant relied upon its same submissions made in respect of questions 1(h), 7 and 11 regarding the allegation of inadequate reasons.
Finally, the plaintiff submitted that the Panel failed to have regard to whether those functional requirements would further aggravate the plaintiff’s pre-existing carpal tunnel syndrome. The Panel accepted that the plaintiff ‘may’ have previously suffered from this syndrome and the referral materials clearly raised whether a return to repetitive manual handling and dexterity would aggravate this syndrome. Nowhere in its reasons does the Panel demonstrate that it considered this matter. Its acceptance of a causal relationship required the Panel to consider whether undertaking those functional requirements would cause a recurrence of carpal tunnel syndrome. If so, relying on Ryan v Grange at Wodonga Pty Ltd,[48] those positions should not have been considered ‘suitable’. The plaintiff submitted there was a clear failure by the Panel to take into account a relevant consideration.
[48][2015] VSCA 17, [71].
The defendant contended that this argument was misconceived and this case was distinguishable from Ryan. In Ryan, the impugned opinion was that notwithstanding a persisting shoulder injury, the worker was able to return to the same pre-injury duties which had caused her to suffer injuries.[49] In assessing whether the plaintiff had ‘a current work capacity’, question 7 directed the Panel to a period of two days, being the period from 12 September 2015 to the date of its examination.[50] The defendant contended that there could be no aggravation of the carpal tunnel syndrome in circumstances where the Panel found that there was no such persisting condition, as the Panel had concluded that while ‘the worker may have suffered carpal tunnel syndrome … at the time of their examination this had resolved.’[51]
[49][2015] VSCA 17, [69].
[50]It is not possible to ascertain from the materials why the Panel was directed to this period. 12 September 2015 appears to be the conclusion of the period for which liability was accepted for the plaintiff’s back injury. Liability for the carpal tunnel syndrome was rejected on 10 November 2014. The plaintiff’s entitlements to weekly payments in respect of both the back injury and carpal tunnel syndrome terminated on 22 May 2015. The questions for the Panel were dated 3 July 2015.
[51]Reasons, p 9.
Analysis
A mere failure to refer to a mandatory relevant consideration does not necessarily mean that the Panel failed to have regard to it. The Panel will generally be at liberty to accord a matter little or no weight at all, provided that it can reasonably be inferred that the Panel has first had regard to the matter in the sense of having engaged in an ‘active intellectual process’ of consideration.[52] Nevertheless, a failure to expressly refer to a particular relevant consideration or to give weight to it, in a statement of reasons, may in some instances, justify an inference that it was not considered to be material and/or was not taken into account.[53]
[52]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99, 112-113 [44]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [79].
[53]Repatriation Commissioner v O’Brien (1985) 155 CLR 422, 446 (Brennan J); Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679-80 (Barwick CJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [69] and 348-349 [75] (McHugh, Gummow and Hayne JJ).
As stated above, the Panel failed to adequately articulate its path of reasoning regarding the plaintiff’s experience of pain in the context of the Panel’s consideration of the plaintiff’s history, its findings on examination, and the referred material in opining that she was only suffering from a compensable injury to the lower back. The answer to question 1 implies the finding that she was not suffering from chronic pain syndrome. The existence or otherwise of a chronic pain syndrome was a relevant consideration based on the referred question, the plaintiff’s medical history and her examination. The reasons did not disclose whether the Panel considered chronic pain syndrome, and if so, whether it was discounted or discredited, and if so, for what reason. Accordingly I am satisfied that the Panel has failed to account for a mandatory consideration.
On the other hand, the Panel’s reasoning about the possible recurrence of the plaintiff’s pre-existing carpal tunnel syndrome does not demonstrate a failure to take into account a relevant consideration in assessing her suitability for future employment. The Panel expressly acknowledged the pre-existing injury but made a positive finding that the injury had resolved and that it did not affect her suitability for the contemplated employment duties. The finding that the pre-existing condition had resolved and was no longer relevant was open to the Panel applying their medical expertise. That demonstrated, notwithstanding the want of express discussion of the possibility of aggravation or accelerated degeneration through resumption of certain employment duties of the kind responsible for the original injury, that it was considered as a factor.
Conclusion
Although the prerogative writs are discretionary, no discretionary considerations appear to weigh against making the orders sought by the plaintiff and the defendant did not submit to the contrary. I propose to order that the continuing legal effect of the Panel’s opinion be quashed and that the questions be remitted to a medical panel, differently constituted, for determination according to law.
I will hear from the parties as to the appropriate form of orders and in respect of costs.
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