Tarczon v Brimbank City Council
[2022] VSC 418
•27 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01320
| JASON TARCZON | Plaintiff |
| v | |
| BRIMBANK CITY COUNCIL (and others according to the attached Schedule of Parties) | First Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2022 |
DATE OF JUDGMENT: | 27 July 2022 |
CASE MAY BE CITED AS: | Tarczon v Brimbank City Council & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 418 |
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ADMINISTRATIVE LAW - Judicial Review – Medical Panel – Review of Opinion of the Panel – Workplace compensable injury to right knee – Consequential left knee injury – Panel concluded that present condition did not result from claimed injuries – Whether Panel erred finding an exacerbation injury and that the exacerbation had resolved – Factual error going to jurisdiction – Decision not open on the evidence – Legal unreasonableness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allen | Maurice Blackburn Lawyers |
| For the First Defendant | Mr R Kumar | Russell Kennedy |
| For the Second, Third and Fourth Defendants | No appearance | Victorian Government Solicitors Office |
HER HONOUR:
Mr Tarczon sustained a right knee injury at work in compensable circumstances.
He sustained a consequential twisting injury to his left knee as a result of his right knee giving way at home (the twisting incident). A medical panel (the Panel) was convened to answer three medical questions referred by a conciliation officer in the context of a dispute about liability for surgery for the left knee injury. The Panel determined that the present left knee condition did ‘not now result from and nor is it materially contributed to by the claimed left knee or right knee injury’.0F[1]
[1]The Panel’s Certificate of Opinion and their Reasons for Opinion pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is dated 25 February 2021 (‘Panels Reasons’).
The plaintiff seeks judicial review of the Panel’s opinion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. The opinion and accompanying reasons are dated 25 February 2021 (the Opinion). As a result of the answers to the first two questions, the Panel said it was not applicable to answer the question as to whether the surgery was appropriate. The plaintiff submits that the Panel made jurisdictional errors in answering the first and second referred questions and as a result should have answered the third question.
The second, third and fourth defendants are the Convenor and members of the Panel. They have advised they will abide the decision of the Court.1F[2]
[2]By letter dated 12 May 2021 from the Victorian Government Solicitor’s Office in accordance with the principles from R v Australian Broadcasting Tribunal, Ex Parte Hardiman & Others (1980) 144 CLR 13.
The plaintiff worked as a garbage truck driver from 2002 with Brimbank Council, the first defendant who appeared as contradictor. The right knee injury occurred as a result of an incident on 27 November 2015 when lifting a bin that had been knocked over. The right knee injury required a number of surgical procedures culminating in a right knee replacement performed by Mr Lording, orthopaedic surgeon, on 11 April 2017. The left knee symptoms followed the twisting incident which occurred in November 2019. Those symptoms took the plaintiff to his general practitioner where he was prescribed anti-inflammatory medication and had cortisone injections. He had two MRIs of the left knee on 26 November 2019 and 14 September 2020. Both MRIs reported degenerative changes within the knee joint. The scans identified a medial meniscal tear. The plaintiff returned to Mr Lording who recommended an arthroscopic debridement of the left knee to treat the medial meniscal tear. Mr Lording believed the tear was not an exacerbation of a pre-existing injury but was caused by the twisting incident.
The Panel’s Opinion
The Panel was asked three questions. Those questions and the Panel’s answers were as follows:
Question 1What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
Answer In the Panel’s opinion the worker (Mr Tarczon) is suffering from moderate right knee dysfunction, following a soft tissue injury, surgically treated on multiple occasions, relevant to the claimed right knee injury.
In the Panel’s opinion the worker (Mr Tarczon) is not now suffering from any medical condition of his left knee that is attributable to the claimed left knee or right knee injury.
Question 2 What is the extent to which any medical condition of the worker results from or is materially contributed to by any, and if so which, of the claimed injuries?
Answer In the Panel’s opinion the medical condition of the worker’s right knee results from and still is materially contributed to by the claimed right knee injury.
In the Panel’s opinion the medical condition of the worker’s left knee does not now result from and nor is it materially contributed to by the claimed left knee or right knee injury.
Question 3 Do you consider the following surgical procedure, left knee arthroscopy appropriate for the worker’s injury and/or condition?
Answer: Not applicable
The Panel’s Reasons
No separate claim had been lodged for a left knee injury. The original decision dated 22 June 2020 by the employer’s Authorised Agent denied liability on the basis that the compensable injury was to the right knee but the surgery was proposed to the left knee and was required for degenerative changes in that knee. However, it was clear from the material provided to the Panel that the plaintiff submitted that the left knee injury was a consequence of the right knee having given way in November 2019 and that the insurer understood this mechanism of injury. The insurer maintained a denial of liability on the basis that the surgery was to treat a degenerative condition and not a consequence of any injury from the twisting incident.
The plaintiff provided written submissions to the Panel. Those submissions addressed the cause of the meniscal tear noting the opinion of Mr Lording that the meniscal tear ‘is consistent with a fall caused by instability in his right knee’2F[3] and the opinion of Dr Mitropoulos, the general practitioner, that the symptoms were ‘not an aggravation of a pre-existing medical condition’.3F[4] The Authorised Agent did not provide submissions but the documents before the Panel included a Medical Advisor Referral and Recommendation which had sought a second internal review of the previously rejected claim. The review was requested in light of the additional information regarding the onset of left knee pain when the right knee gave way without prior symptoms of left knee pain as was described in the general practitioner’s report. The medical advisor maintained the opinion that the ‘proposed intervention is to treat the worker’s underlying extensive degenerative changes’4F[5] and a denial of liability was maintained.
[3]Report of Mr Lording dated 6 May 2020 quoted in Plaintiff’s Submissions to Medical Panel dated 4 January 2021 [9].
[4]Report of Dr Mitropolos dated 11 September 2020 quoted in Worker’s Submissions to Medical Panel dated 4 January 2021 [11].
[5]Medical Advisor Referral and Recommendation 6 October 2020.
The Panel obtained a history of right knee injury with no symptoms prior to an initial right knee dislocation in 2006, a further work injury in 2011 and the present work injury of 2015. It obtained a history of no left knee symptoms prior to November 2019. The Panel concluded that it could rely on the history provided by the plaintiff in conjunction with the other material before it and it’s examination findings. The history of the left knee was as follows:
Mr Tarczon told the Panel that in late November 2019 he was walking whilst at home, when his right knee gave way in an inwards direction. He had twisted his left knee and developed pain on the inside of his knee. His left knee may have swelled.
Under a heading ‘Discussion and diagnoses’ the Panel dealt with the left knee condition this way:
The Panel considered Mr Tarczon’s history of an injury to his left knee in late November 2019 related to the giving way in an inwards directions of his right knee. The Panel noted the results of the MRI of his left knee, dated 27 November 2019, which was reported as showing significant degenerative changes at the patellofemoral joint as well as degenerative changes at the tibiofemoral portion of the knee joint.
The Panel considered Mr Tarczon’s current history of constant pain in his knee together with the grabbing and catching sensation. At the time of the Panel’s physical examination, the Panel had found no explanation for the degree of symptoms that he was complaining of in his left knee. The Panel had concluded that the current physical findings in his left knee were limited in extent and explained by the pre-existing degenerative condition he had in his left knee (prior to the incident in November 2019).
The Panel had noted in the report of Dr Joseph Slesenger, 4 May 2018, that examination of Mr Tarczon’s left knee had revealed crepitus in his left knee joint movement. The Panel had confirmed the presence of left knee crepitus at the time of its assessment on 29 January 2021.
The Panel had concluded that Mr Tarczon’s right knee condition after his injury and subsequent knee surgeries would have resulted in him walking lesser distances, less often, with a slower pace and lesser stride length. This would result in an overall decrease in the use of his left (and right) knee(s).
The Panel had concluded that Mr Tarczon had had an exacerbation of his pre-existing degenerative changes in his left knee (as noted in the MRI performed in November 2019) at the time of the twisting injury in late November 2019. Based on the current physical findings, the Panel had concluded that this exacerbation had now ceased and that any symptoms in his left knee are now related to the pre-existing degenerative condition in his left knee. The pre-existing degenerative condition included changes within the meniscus.
Then, under a heading ‘Relationship of medical condition to the claimed injury’, the Panel set out its reasons beginning with the right knee outlining treatment including an unsuccessful right total knee replacement. As to the left knee, it said:
The Panel noted the history of injury to the right knee and the potential for the right knee to cause the left knee symptoms. The Panel concluded that the right knee injury had not had this effect. The Panel considered that the twisting injury to the left knee had caused an exacerbation of pre-existing degenerative changes, which the Panel concluded had resolved at the time of the Panel assessment.
The Panel made reference to the radiological reports regarding the left knee described ‘as showing significant degenerative changes at his patellofemoral joint as well as degenerative changes in the tibiofemoral parts of the left knee joint’.5F[6] The Panel also made reference to its own physical examination with what it described as ‘limited’ findings regarding to the left knee. The examination noted:
… range of movement from 0 through to 120 of flexion. The knee joint was stable in an anteroposterior and mediolateral directions. Crepitus was noted on knee movement. There was minimal effusion. There was tenderness over the medial part of the knee. He was able to perform single leg standing on his left foot without complaint of pain. There was mild fullness in the left popliteal fossa.
[6]Panel’s Reasons (n 1) 6.
Two grounds of review
The plaintiff identifies the errors of the Panel in reaching its conclusions that the left knee injury was an exacerbation injury and that the exacerbation had resolved. The first addresses the Panel’s finding of an injury that was an exacerbation of pre-existing degenerative changes. This finding underpins the answers to questions 1 and 2. He characterises the error variously as either a mistake of fact that is sufficiently important so as to constitute jurisdictional error,6F[7] alternatively as a finding for which there was no evidence, and as such was not open to the Panel7F[8] or one reached in a manner that was legally unreasonable8F[9] (Ground 2).9F[10]
[7]Chang v Neill [2019] VSCA 151 (‘Chang’).
[8]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; S v Crimes Compensation Tribunal [1998] 1 VR 83; and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.
[9]Nguyen v Disler [2021] VSC 140 (‘Nguyen’), [10]-[14].
[10]Plaintiff, ‘Originating Motion for Judicial Review’, Tarczon v Brimbank City Council & Ors, S ECI 2021 01320, 26 April 2021, [21] (‘OM’).
The other ground addresses legal error in the finding that the exacerbation injury had resolved. As with the nature of the injury, the finding of resolution was said to be a mistake as to a fact going to jurisdiction10F[11] or a finding that was legally unreasonable,11F[12] for which there was no evidence, so was therefore not open12F[13] (Ground 3).13F[14]
[11]Chang (n 7).
[12]Nguyen (n 9) [10]-[14].
[13]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; S v Crimes Compensation Tribunal [1998] 1 VR 83; and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.
[14]OM (n 10) [22].
Within both of these grounds is a subsidiary complaint of the inadequacy of the path of reasoning for the finding.14F[15]
[15]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, which outlines the standard for an adequate path of reasoning relevant for the purposes of section 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
A third ground was identified that the Panel failed to answer question 1 as referred, or asked itself the wrong question and/or applied the wrong test when identifying the ‘medical condition’ of the left knee15F[16] (Ground 1).16F[17] This ground was not pursued at the hearing and it can be put to one side.
[16]OM (n 10) [20].
[17]Ibid [20].
Principles
Not all factual findings made by a decision maker give rise to legal error. Those facts necessary to enliven the decision making power are described as jurisdictional facts and a wrong finding of such a fact may lead to a decision maker exceeding jurisdiction.17F[18] It is otherwise said that a wrong finding of fact does not give rise to an error of law.18F[19] There are occasions where an error in fact finding that is not of a jurisdictional fact, nevertheless may give rise to a jurisdictional error. After reviewing the case law that developed this principle, the Court of Appeal in Chang v Neill & Ors set out the applicable test:
The authorities to which we have referred establish that a factual error may constitute a jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material – properly construed – is an essential feature of a valid exercise of the function.19F[20]
[18]Corp of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
[19]Waterford v Commonwealth (1987) 163 CLR 54, 77 (Brennan J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[20]Chang (n 7) [92].
Where a panel decides a question of fact when there is no evidence in support of the finding, it also makes an error of law. The ‘no evidence’ ground was summarised by Phillips JA in S v Crimes Compensation Tribunal:
It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact-finding arrived at a finding that was simply not open to it. In so referring to a ‘finding’ I use the term not only to include a finding of a fact derived from the acceptance of direct evidence to that effect; I include also an inference of fact drawn by the tribunal from other facts found by it. If the finding (be it a finding on direct evidence or inference) was not open to the tribunal, that may bespeak a relevant error of law.
The Court of Appeal has not directly answered the question of whether legal unreasonableness is an independent ground of judicial review of medical panel opinions.20F[21] In Sidiqi v Kotsios & Ors, it observed that the Court’s approach to judicial review is to accommodate the fact that a medical panel does not exercise an adjudicative function, the fact that it is a decision-maker that possesses its own expertise in reaching its opinions and the fact that a medical panel is ‘possessed of a broad discretion as to the manner in which it evaluates the facts in a particular case’.21F[22] It noted with support the trial judge’s view that as a matter of principle a standard of legal reasonableness ought apply to a medical panel’s exercise of discretion or satisfaction of a jurisdictional fact in a manner that remains discrete from merits review. The approach has been taken in a number of decisions in the trial division. Subsequent to Sidiqi in Nguyen v Disler, Gorton J stated the following:
The legislature has imposed on the Panel procedural obligations and given it powers that are not imposed on or available to a Court, such as the obligation to act informally and the power to inform itself on any matter in any manner it thinks fit. However, the significance of the Panel’s role in the determination of workers’ and employers’ obligations, and the fact that the worker is obliged to expose him or herself to a full medical examination by the Panel as part of that process, to my mind justify a conclusion that the legislature intended that the Panel act reasonably when exercising its powers – i.e. that it not act irrationally, arbitrarily or capriciously, or reach findings that no reasonable panel could reach in the circumstances. Probably, in any event there is a presumption to that effect, and there is no reason for which that presumption should be displaced.
It follows from the above that if a panel has acted in that way, then it has exceed its jurisdiction and its decision is liable to be quashed on that ground.22F[23]
[21]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, Sidiqi v Kotsios & Ors [2021] VSCA 187, [56]-[59] (‘Sidiqi’).
[22]Sidiqi (n 21) [24], [26], [39].
[23]Nguyen (n 9) [12]-[13]; Schmael v Leach [2020] VSC 562 [36]-[37].
The three errors as advanced here by the plaintiff overlap. The findings are said to be unreasonable because they are not based on any evidence, or because they are based upon a mistake of fact because it misconstrued the nature and effect of the pre-existing condition.
Finding an exacerbation injury
The plaintiff submitted that a finding that the injury occurred in the twisting incident in November 2019 was an exacerbation injury carried with it the implicit finding that the left knee was already symptomatic in some way prior to this incident.23F[24] As there was no evidence of a symptomatic knee prior to the twisting incident, this finding of injury was submitted to constitute a mistake of fact, a finding not open on the evidence and so one that was legally unreasonable.
[24]Plaintiff, ‘Plaintiff’s Outline of Submissions’, Submissions in Tarczon v Brimbank City Council & Ors, S ECI 2021 01320, 14 October 2021,[50]; also Transcript of Proceedings, Tarczon v Brimbank City Council & Ors (Supreme Court of Victoria, S ECI 2021 01320, Justice Forbes) 18 May 2022 (‘Transcript’), 16.
Using the language of Federal Broom Company Pty Ltd v Semlitch,24F[25] an exacerbation injury describes:
The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.25F[26] Accordingly, if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.
[25]Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626, [7] (Kitto J).
[26]Ibid [7] (Kitto J), agreeing with the observations of Moffitt J in Federal Broom Company Pty Ltd v Semlitch [1964] NSWR 511.
In the absence of pre-existing symptoms, the plaintiff submitted that there was no ‘wound’ to ‘salt’. The submissions drew attention to a decision of Daly AsJ in Del Ben-Athanasaidis v RMIT & Ors,26F[27] where a medical panel had concluded that a worker ‘sustained an exacerbation of symptoms while performing her pre injury duties’. Her Honour concluded that the reasons were inadequate because, having accepted a history of absence of symptoms prior to commencing the relevant work duties, they failed to explain why a panel had found that there had been an ‘exacerbation of symptoms’. Her Honour described the literal and grammatical reading of the reasons as carrying with it an implicit assumption that the worker was asymptomatic prior to this time.27F[28]
[27][2019] VSC 674 (‘Del Ben-Athanasaidis’).
[28]Del Ben-Athanasaidis (n 27) [60].
The first defendant submitted that Del Ben-Athanasaidis does not assist the plaintiff. The Panel found an ‘exacerbation of symptoms’ and it is in that context that the implication arose from a literal and grammatical reading. Here the exacerbation was of ‘the pre-existing degenerative changes’ in a context where it is accepted that those changes were asymptomatic prior to the twisting incident.
Fundamental to a description of an exacerbation of a disease is the effect on the individual; that is the production or intensity of symptoms experienced is changed by something external, but there is no change to the underlying mechanism or progression of the disease that produces those symptoms. Here, where the underlying disease (i.e. the wound) is the degenerative changes in the knee joint, the production of symptoms for the first time may be an exacerbation if an external event such as the twisting incident or increased strain on the joint produces new symptoms or intensifies existing ones. I cannot see a basis to confine the word to situations where existing symptoms are intensified or increased. It is equally applicable to situations where new symptoms are introduced and includes circumstances where new symptoms are the only symptoms experienced by an individual.
It may well be, as was the case in Del Ben-Athanasaidis and also in Matthews v Com 1 International Pty Ltd & Ors,28F[29] to which I was referred in submissions, that a ‘symptomatic exacerbation’ or ‘exacerbation of symptoms’ will implicitly or explicitly refer to situations where existing symptoms are present before injury. In Matthews,
I found the reasons of the Panel to be inadequate to explain its conclusion of a ‘symptomatic exacerbation’ of chronic pain, accepting that an exacerbation injury can involve pre-existing conditions that are both symptomatic and asymptomatic.29F[30] Whether or not symptoms exist prior to an exacerbation injury will necessarily inform the nature of the exacerbation. These are matters that in each case will require a reading of the reasons as a whole.
[29]Matthews v Com 1 International Pty Ltd & Ors [2021] VSC 361.
[30]Ibid [64].
I accept that in this case there was no evidence of pre-existing symptoms. The Panel considered the available information as to the pre-existing state of the degenerative changes in the left knee. Apart from the plaintiff’s own history of no prior symptoms which the Panel accepted, there were two pieces of evidence as to the pre-existing condition of the knee. The plaintiff was examined in May 2018 by Dr Slesenger, an occupational physician, for the purpose of determining entitlements in respect of the right knee injury. Despite no record of symptoms in the left knee both knees were formally examined. The left knee was normal to inspection with no tenderness or effusion. Flexion was 160% and mild crepitus was noted. The Panel notes this finding consistent with its own finding of crepitus on examination. In May 2018, the finding of crepitus was not associated with any recorded subjective symptoms nor do the Panel’s reasons conclude from the finding of crepitus that the plaintiff was symptomatic prior to the twisting incident. There was no evidence that would have supported such a finding. Reading the reasons as a whole, the ‘incidental’ finding of crepitus was relevant to the Panel’s conclusion as to the state of the pre-existing degeneration in a similar way to the 2019 MRI. That is, both pieces of information were evidence of the quiescent degeneration already present in the knee prior to the external event of the twisting incident.
I do not accept the premise of the plaintiff that the Panel, in finding the injury to be an exacerbation of degenerative changes, accepted implicitly that symptoms were already present in some way. To the contrary, the Panel expressly accepted the absence of prior symptoms.
In this case it is clear in my view that the Panel accepted the presence and asymptomatic existence of degenerative changes in the joint. The first left knee MRI taken contemporaneously with the incident showed significant degenerative changes that were characterised as pre-existing. The Panel clearly accepted that those changes (or some of them) became symptomatic as a result of the twisting incident. The Panel understood that it was relevant to consider not only whether or not the twisting incident had precipitated symptoms, but whether it had any impact on the progression of the degenerative condition. It was a matter for the Panel applying its expertise to opine whether or not that twisting incident, which it accepted had occurred, had such an impact.
A significant part of that exercise was directed at whether or not the medial meniscal tear demonstrated on MRI was traumatic or degenerative. It was this tear that the disputed surgery was directed at repairing. The MRI report in November 2019 notes an ‘acute twisting injury to left knee’. The report describes the tear and surrounding condition of the left knee as:
Small under surface tear of the body of the medial meniscus is less than 10mm in length. Small areas of chondral thinning, grade 2 in the medial femoral condyle. MCL intact. No Baker’s cyst. An ossified body posterior to the medial meniscus is up to 7mm in diameter.
The second MRI report of September 2020 has as history ‘Medial meniscal tear from November 2019. ? progression of the tear since then’. It noted that the under surface tear remained present, was stable and had not progressed. It noted other aspects of degenerative changes including those in the medial tibiofemoral joint and femoral condyle which appeared to be progressive between 2019 and 2020.
Mr Lording believed the twisting incident to be the cause of the medial meniscus injury as the knee had not been symptomatic prior and the tear is consistent with a fall caused by instability in the right knee. He considered the tear to be ‘a new injury and not an exacerbation of a pre-existing injury’.30F[31] Implicit in this was that Mr Lording viewed the tear as a traumatic tear rather than a gradual degenerative tear. On initial examination of the left knee in March 2020, Mr Lording recorded exquisite tenderness at the medial joint line, moderate effusion, mediolateral laxity with pain on rotational stress testing. Range of motion was ‘just shy of full extension to 120 degrees of flexion’ and pain was located on the medial side of the knee.
[31]Report of Mr Timothy Lording dated 16 September 2020, CB 90-91.
The Panel disagreed with the opinion that the medial meniscal tear seen on MRI was traumatic in nature, observing that ‘the pre-existing degenerative condition included changes within the meniscus’.31F[32] This view is consistent with its description of an exacerbation injury which does not change the underlying degenerative condition.
[32]Panel’s Reasons (n 1) 7.
The Panel considered two potential mechanisms by which the right knee injury could have led to a consequential left knee injury. The first mechanism was that an abnormal gait might have placed prolonged stress on the knee leading to injury and the second was the twisting incident itself. The potential mechanisms for injury had relevance to the nature of the injury that might be sustained. The Panel found no injury through prolonged additional stress saying:
The Panel had concluded that Mr Tarczon’s right knee condition after his injury and subsequent knee surgeries would have resulted in him walking lesser distances, less often, with a slower pace and lesser stride length. This would result in an overall decrease in the use of his left (and right) knee(s).
The Panel accepted an injury at the time of the twisting incident which, as explained above, did not in its opinion worsen the underlying degenerative condition. The plaintiff recalled symptoms at the time as pain over the inside of his left knee and perhaps swelling. As Mr Lording described it, the injury produced medial pain, and tenderness and swelling in March 2020. By the time of the Panel’s examination, the plaintiff described:
…constant pain deep inside the (right ) knee…
.. the pain in the left knee is greater than the right. He has constant pain over the inside of the left knee and may experience a grabbing, catching sensation accompanied by a sharp pain in the same area of his knee. His left knee does not give way. It may occasionally swell. It does not lock. His symptoms are made worse by twisting on his left lower limb, by walking and by the use of stairs.
The Panel did not make any mistake of fact going to jurisdiction. It did not base its finding upon a mistake as to the existence of left knee symptoms prior to the twisting incident. It was for the Panel to determine as a matter of its own expertise the nature of the injury to the left knee sustained in the twisting incident, which for the first time precipitated symptoms. This included a determination as to whether the injury impacted upon a pre-existing and progressive condition.
It follows also that the Panel did not erroneously make a finding of prior symptoms for which there was no evidence. The Panel expressly accepted that the plaintiff had no prior symptoms in his left knee. The conclusion that the injury was one by way of exacerbation was informed by the Panel’s view that the meniscal tear shown in the 2019 MRI predated the onset of symptoms and was degenerative in nature. It explicitly disagreed with Mr Lording and identified the evidentiary basis for its disagreement. As is clear from the conflicting medical opinions as to causation of injury between the medical advice received by the agent on the one hand and the opinions of Mr Lording and the general practitioner on the other, the precise nature of the injury sustained was a matter about which reasonable medical opinion might differ. Given the evidence as to the state of the pre-existing condition that the Panel referred to in its reasons, particularly the MRI reports, such a finding was one that a panel could reasonably reach in the circumstances. This ground is not made out.
Resolution of the exacerbation injury
As to the resolution of that exacerbation, the plaintiff contends that in light of the Panel’s own physical findings of crepitus, medial tenderness, minimal effusion and restricted flexion to 120 degrees, and the subjective complaints of pain all of which dated from the occasion of the twisting incident, the evidence did not support a finding that the exacerbation was temporary nor that the effect of the injury had ceased or resolved. Again the argument began with the absence of prior symptoms and the subsequent history of symptoms on the medial side of the left knee with onset in the twisting incident which have not settled since. Again, the factual matters accepted by the Panel as to history and examination, were said to lead to a conclusion that was variously described as factually mistaken, or one for which there was no evidence and so legally unreasonable.
The plaintiff accepted that the continuation of symptoms by itself will not compel a conclusion of an ongoing causal connection.32F[33] However, the plaintiff submitted that it would not be sufficient reasoning to reject a claim for compensation for an injury in the extended sense, if the position is no different to what it would be with the progression of the underlying condition. The plaintiff cited Darling Island Stevedoring & Lighterage Co v Hankinson.33F[34] He submitted that if the Panel was not merely describing a worsening of symptoms, it must have formed a view that the incident had an effect on the pathology in the plaintiff’s knee.
[33]Transcript (n 24) 29.7.
[34](1967) 117 CLR 19 (‘Hankinson’).
Again the submission proceeds from the flawed premise that the Panel was mistakenly dealing with an exacerbation of a symptomatic condition. It was not.
In Hankinson, the worker suffered the collapse of vertebrae in his spine when lifting a bale of paper. The vertebrae were in a weakened state by the presence of an infection in the spine. The infection was a pre-existing condition unrelated to employment. On the collapse of the vertebras the infection spread and led to paraplegia. At trial, the injury was found to be an aggravation, acceleration, exacerbation and deterioration of a pre-existing disease, being the infection, and that the applicant was totally incapacitated from the date of the collapse and continuing. An unsuccessful appeal to the Supreme Court of NSW by the employer followed, on the grounds of no evidence for the finding as to injury and that any incapacity was limited in duration to the time until which the disease of its own course would have caused incapacity. A further appeal to the High Court ensued.
In dismissing the appeal, the court unanimously held that the injury sustained, being the collapse of the vertebrae, was an injury without need to resort to the extended definition of aggravation, acceleration, exacerbation or deterioration of a pre-existing disease, and that injury was what had led to an ongoing incapacity and award of payments of compensation. Further, three of the judges held that, if the injury were determined as that affecting a pre-existing disease in the extended sense of injury, the worker would still be entitled to the award of compensation made because the aggravation continued. The plaintiff before me relied on this aspect. In looking at the question of the resulting incapacity, Barwick CJ said:
The relevant questions in the case of an injury is whether incapacity resulted from it. It is not, as in the case of an action at law based on negligence, what damage has the injured party sustained.’34F[35]
[35]Hankinson (n 34) 25 (Barwick CJ).
The Chief Justice then said where the injury, if an extended injury, resulted in an incapacity which is permanent then ‘the entitlement to compensation would flow from the like incapacity resulting from any other injury’. Taylor J, with whom Kitto J agreed, said:
Whilst I agree that compensation in respect of incapacity resulting solely from the aggravation of an existing disease must be limited to the incapacity produced by the aggravation it by no means follows that the aggravation of a disease may not, itself, cause permanent incapacity….if what happened on 3 September 1964 was no more than an aggravation of the respondent’s disease, it was an aggravation of that disease which directly resulted in the respondent’s incapacity on and after that date. In that case, it is beside the point to say that if an aggravation had not occurred total incapacity…would at some later time have resulted from the natural progress of the disease.35F[36]
[36]Ibid 31 (Taylor J).
The case does not assist the plaintiff here because the Panel has concluded simply that the exacerbation was not permanent.
The onset of symptoms as a result of an incident such as the twisting incident, might often lead to a conclusion that the persistence of those symptoms are indicative of a continuation of the effects of that injury. As Gorton J said in Nguyen v Disler:
In most cases, if a compensable injury produces complaints, and those complaints persist, it will be concluded by doctors examining a person that the person has not recovered from that initial injury. However, there are exceptions. It may be that the doctors do not believe that the complaints have continued unaltered or that the complaints are genuine, or if they are genuine the doctors may consider that they are now due to some other cause. Other causes could be the progression of a pre-existing condition (particularly in an aggravation case), or simply the aging process, or the development of some other condition altogether. Of course it could be a combination of different matters. The opinions in this respect will be informed by all the circumstances personal to that person and the doctors’ experience with like cases of injury.36F[37]
[37]Nguyen (n 9) [26].
The Panel’s conclusion on causation of symptoms and the consequent finding of resolution of symptoms caused by the twisting incident, was informed by at least three matters specifically referred to in its reasons. First, its own examination findings which were similar to those of Mr Lording. Both found tenderness over the medial aspect, effusion of some degree, crepitus and restricted flexion to 120 degrees. It accepted, as did Mr Lording, that there were degenerative changes in the knee. Both clinical examinations were consistent with a degree of symptoms produced by changes in the knee demonstrated radiologically.
Second, the Panel was explicit in its disagreement with Mr Lording’s opinion on causation that the twisting incident resulted in the meniscal tear. The medical dispute as to injury, and consequentially as to resolution of injury, in large part centred on whether the medial meniscal tear occurred in the twisting incident or not, and if so whether that tear continued to produce the symptoms complained of. The plaintiff’s submissions to the Panel squarely submitted that the treating doctor’s opinions were to the effect that the symptoms were not due to an aggravation of degenerative changes but the development of ‘a meniscal tear or chondral defect’ attributable to the twisting incident. The opinion of the Medical Adviser referral and recommendations was also before the Panel, concluding that the need for surgery was to treat a degenerative condition and not the effects of the twisting incident. The stability of the tear in the 2020 MRI would support a view that any progression of symptoms was likely to relate to the degenerative state of the knee more broadly and not the progression of the tear, however caused.
Third, the Panel accepted that anatomical degenerative changes were now causing some level of symptoms. In addition to the point about the meniscal tear, the Panel referred to a change and an increase in the nature and degree of symptoms over time which the Panel could not explain. It seems to me that the comment was directed both as to the increased intensity of symptoms with the passage of time and to the more widespread nature of those symptoms. The development of more widespread symptoms may lead a Panel to consider that causes other that the incident that led to the initial onset of symptoms have become relevant.
Implicit in the Panel’s reasons and by its description of an exacerbation in light of the history provided, is the opinion that, the injury had an effect on the plaintiff by producing symptoms but no effect on the underlying condition. Given the changes evident in the knee joint, symptoms produced by that twisting incident might not therefore be expected to persist indefinitely without a continuing external trigger (i.e. the application of salt) for those symptoms. It was a matter of expertise and of judgment by the Panel to determine whether or not that exacerbation persisted at the time of its examination some fourteen months later. In exercising that judgment it looked at the nature of the twisting incident that caused injury, the state of the degenerative changes existing at the time, the activities undertaken since November 2019 and the length of time that had passed, as well as the examination and subjective description of symptoms. All of these matters are set out in the reasons. The conclusion reached is a synthesis of those matters.
The question of an ongoing causal connection was at the heart of the medical dispute referred to the Panel. Medical Panels have been introduced by the legislature as a means of resolving medical questions, often medical questions that arise because medical opinions on those questions differ amongst reasonable medical minds.
The opinion expressed by the Panel was expressed as being based upon the evidence before it. It was open to the Panel to conclude that the persisting symptoms had become attributable to the underlying degenerative condition and were no longer due to the effects of the twisting incident. Being open to the Panel, it was not unreasonable for the Panel to have reached this conclusion.
Finally, the fact that the Panel reached a different opinion to that reached by Mr Lording and Dr Mitropoulos does not by itself prove error. As outlined above, I consider that the Panel sufficiently appraised itself of the available evidentiary material and formed its opinion on that basis. The reports of the treating medical practitioners did not implicate the broader degenerative changes in the left knee as being impacted by the twisting incident. The material before the Panel made very clear that the contest between the opinions was one focused on the cause of the meniscal tear or a chondral defect in the knee. The reasons are responsive the parameters of the dispute referred to it. It is for this court to test that the opinion reached was by a ‘rationally defensible path of reasoning’.37F[38] In this case, I find that the Panel’s Opinion met that standard. The reasons are adequate to ascertain that no error as alleged has occurred.
[38]Sidiqi (n 21) [58].
The proceeding will be dismissed. I will hear the parties on costs.
SCHEDULE OF PARTIES
BETWEEN:
JASON TARCZON Plaintiff
- and –
BRIMBANK CITY COUNCIL First Defendant
- and –
ASSOCIATE PROFESSOR PETER GIBBONS
as THE CONVENOR OF MEDICAL PANELS Second Defendant
- and –
MR JOHN BOURKE Third Defendant
- and –
DR DANIEL LEWIS Fourth Defendant
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11
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