Tawakuli v Victorian WorkCover Authority
[2020] VSCA 22
•19 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0045
| MOHAMMAD TAWAKULI | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 February 2020 |
| DATE OF JUDGMENT: | 19 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 22 |
| JUDGMENT APPEALED FROM: | [2019] VCC 354 (Judge Parrish) |
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ACCIDENT COMPENSATION – Workplace injury to right shoulder – Whether injury satisfied statutory definition of ‘serious injury’ – Application for leave to commence proceedings for damages against respondent – Whether judge failed to give proper consideration to applicant’s submission regarding medical report – Whether trial judge failed to provide adequate reasons – Application for leave to appeal refused – Accident Compensation Act 1985 s 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Mighell QC with Mr R H Ajzensztat | Zaparas Lawyers |
| For the Respondent | Mr S A O’Meara QC with Ms M Norton | Russell Kennedy Lawyers |
BEACH JA
KYROU JA:
Introduction and summary
On 28 February 2013, the applicant commenced full time employment with Raminti Services Pty Ltd (‘Raminti’) as a fencing and factory hand. Over the course of his employment he experienced pain in his right shoulder. On 6 September 2013, the pain became unbearable and he ceased work.
On 11 January 2018, the applicant applied to the County Court for leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘Act’) to bring common law proceedings against the respondent for damages for pain and suffering and pecuniary loss in respect of the injury. On 28 March 2019, the judge refused leave.[1]
[1]Tawakuli v Victorian WorkCover Authority [2019] VCC 354 (‘Reasons’).
Section 134AB(19) of the Act provides that a court must not give leave under s 134AB(16)(b) unless it is satisfied that the injury is a serious injury. The applicant relied on para (a) of the definition of ‘serious injury’ in s 134AB(37), namely, ‘permanent serious impairment or loss of a body function’.
The applicant seeks leave to appeal against the orders made by the judge on two grounds. The first ground is that the judge failed to give proper consideration to the applicant’s submission that the medical report of Mr Michael Dooley dated 31 October 2017 contained an opinion that the applicant was, by reason of an organic impairment to his right shoulder, precluded from returning to unrestricted employment. The second, alternative, ground is that the judge failed to provide adequate reasons for rejecting that submission.
For the reasons that follow, the application for leave to appeal will be refused.
Facts
The applicant is 43 years of age and was born in Afghanistan. He is married and has a daughter aged 11 and a son aged 13. His wife and children live in Pakistan.
The applicant did not complete any formal education or training and could neither read nor write in his native language, Dari. In Pakistan he worked as a panel beater for approximately 27 years before coming to Australia by boat in October 2012. The boat he was on capsized and caused the deaths of 130 people including three of his friends. After the boat capsized he was in the water for around 15 hours before being rescued. He sustained minor physical injuries to his right heel and psychiatric difficulties as a result. He was granted a bridging visa.
The applicant’s duties with Raminti involved manual work to construct wooden lattices. He generally worked on rotating shifts involving four machines. His work required him to handle and manoeuvre large pieces of wood using both hands and to staple them together using a staple gun. He is right hand dominant.
During his employment with Raminti, the applicant experienced pain in his right shoulder which got progressively worse. On 26 March 2013, he underwent an ultrasound on his right shoulder which reported ‘Mild right subacromial bursitis with impingement. Intact rotator cuff tendons’. On 9 April 2013, he was treated with a subacromial bursal steroid injection.
On 6 September 2013, the applicant experienced significant pain in his right shoulder while operating a staple gun and he ceased work.
The applicant underwent an MRI on 9 October 2013 which reported ‘Intrasubstance partial thickness tear within the posterior aspect of the supraspinatus tendon’, ‘tendinosis … in more anterior aspect of supraspinatus tendon’, ‘Subacromial bursitis’, ‘Spurring of outer margin of acromion and thickening of coraco acromio ligament’, ‘Mild degenerative lipping of margins of acromio clavicular joint’ and ‘Small superior labral tear conforming to a SLAP[[2]] type II lesion’. On 30 October 2013 he had a cortisone injection to his right shoulder. On 10 January 2014, he had a further cortisone injection.
[2]Superior labral from anterior to posterior.
In September 2013 and January 2014, the applicant had physiotherapy treatment but found that this aggravated the pain. On 17 January 2014, he underwent an acupuncture session with Dr John Mok.
On 28 February 2014, the applicant had a right shoulder MRI which showed ‘some hyperintense signal in the distal fibres of the supraspinatus tendon with some minimal loss of definition of these fibres consistent with tendinosis and low grade insubstance partial-thickness tearing’.
On 4 March 2014, the applicant attempted to return to work. He worked four hours per day for three days a week doing cleaning duties, including sweeping scrap wood from the floor. This ceased on 14 March 2014 due to pain in his right shoulder.
On 26 April 2014, the applicant changed general practitioners and began consultations with Dr Anthony Karantonis, who became his regular treating doctor.
On 6 June 2014, the applicant was examined by an orthopaedic surgeon, Mr Christopher Pullen.
On 10 June 2014, the applicant again attempted to return to work for two hours per day, two days a week. He ceased on 19 June 2014 due to pain in his right shoulder and has not returned to work since then.
On 25 September 2014, Mr Pullen performed surgery on the applicant’s right shoulder in the form of an arthroscopy, subacromial decompression and debridement. Mr Pullen noted that there were partial thickness tears of the supraspinatus and subscapularis tendons, the biceps tendon showed evidence of mild tendinopathy and a type I SLAP lesion, and in the subacromial space there was a small subacromial spur. Following the surgery, the applicant continued to experience pain in his right shoulder.
On 15 April 2015, the applicant underwent a further MRI on his right shoulder. It showed likely adhesive capsulitis and supraspinatus tendinosis/tendinopathy without a full thickness tear.
On 8 May 2015, the applicant underwent a hydrodilatation.
The applicant continued to experience pain in his right shoulder and was subsequently referred to Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. In January 2016, at Dr Thomas’ recommendation, the applicant participated in an assessment for a pain management program at the Victorian Rehabilitation Centre. In February 2016, the applicant again saw Dr Thomas as he was experiencing ongoing pain in his right shoulder.
On 19 September 2016, a right shoulder ultrasound was performed and reported ‘A solitary moderate-sized chronic partial-thickness tear of the bursal surface and anterior supraspinatus tendon’, ‘Mild subacromial bursitis’ and ‘a significant globally restricted range of motion, without impingement, consistent with early/mild adhesive capsulitis/frozen shoulder’.
On 5 October 2016, the applicant had an MRI on his right shoulder which revealed no significant change relative to the MRI of 28 February 2014. The MRI report stated that there were no features of subacromial bursitis and noted insertional subscapularis tendinopathy.
The applicant last had an appointment with Dr Thomas on 29 November 2016. In July 2017, he attempted to participate in a pain management program but did not complete it.
As at 8 September 2017, the applicant was taking or using the following medication for the pain in his right shoulder as well as for his psychological injury: Panadol Osteo, four to five tablets a day; Gabapentin, one capsule in the morning and one at night; Panadeine Forte one tablet in the morning and one at night; Endone, one tablet a day; Somac, one tablet a day; Nexium, one tablet in the morning and one at night; Anaprox, one tablet in the morning and one at night; Deep Heat, at night as required; Mylanta, at night as required. As at 13 November 2018, he was taking Feldene one tablet twice a day, Panadeine Forte two tablets at night, Gabapentin, one capsule in the morning and two at night, and Nortriptyline one to two tablets a day, and was using Dencorub pain-relieving heat patches as required.
In March 2018, the applicant travelled to Iran for three months to visit his family. His family travelled from Pakistan to Iran to meet him.
The applicant has poor English language skills.
County Court proceeding
In his application to the County Court for leave to bring common law proceedings against the respondent for damages for pain and suffering and pecuniary loss, the applicant relied only on para (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act. As we have already stated, that section defines ‘serious injury’ as ‘permanent serious impairment or loss of a body function’.
At the hearing before the judge, it was common ground that the applicant had suffered a right shoulder injury which was causally related to his employment with Raminti. The issue was whether the injury satisfied the requirements of para (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act. In particular, the judge had to decide whether the consequences of the injury (in terms of pain and suffering and loss of earning capacity) had an organic basis as distinct from a psychological or psychiatric basis.[3]
[3]See [56]–[59] below.
The applicant relied on two affidavits sworn by him on 8 September 2017 and 13 November 2018. He was the only witness to give oral evidence.
The applicant gave evidence that he had pain in his right shoulder which radiated into the right side of his neck and down his arm. He felt a burning pain in his right shoulder all the time. He tried to avoid raising his arm to above shoulder height and lifting anything weighing more than approximately two kilograms, as these activities aggravated his pain. Whilst he still used his right hand to dress, he had to be careful to avoid aggravating his pain. He relied on his left hand when he showered and tried to drive using his left hand only. His pain depressed him. He no longer cooks much and has ceased some social activities because he does not enjoy them any more.
During cross examination, the applicant conceded that surveillance footage taken on 14 October 2018 showed him using his right hand to smoke, gesticulate and point, and to use his mobile phone. He agreed that he did not show any sign of restriction in that video. Other footage from 17 October 2018 showed the applicant unlocking and opening his car door using his right hand. It also showed him driving with his right hand resting on the steering wheel, although he maintained he mainly used his left hand to turn the wheel. Later, he conceded that footage taken on 4 January 2018 might have shown him using his right hand while driving. He also agreed that photographs taken on his Facebook page showed him on holidays with friends in other capital cities in Australia.
A number of medical reports were tendered including the following tendered by the applicant:
(a)medical reports from Dr Karantonis dated 30 November 2014, 16 February 2016, 21 April 2016, 14 November 2016 and 25 October 2018;
(b)medical reports from Mr Pullen dated 6 June 2014, 24 July 2014, 25 September 2014 (two reports), 2 May 2015 and 6 May 2015;
(c)medical reports from Dr Thomas dated 10 November 2015 and 8 February 2017;
(d)medico-legal reports from consultant physician and pain specialist, Dr Peter Blombery, dated 20 September 2016 and 22 October 2018;
(e)medico-legal report from orthopaedic surgeon, Mr Ash Chehata, dated 9 October 2018; and
(f)medico-legal report from pain specialist, Dr Meena Mittal, dated 15 October 2018.
The respondent also tendered a number of medical reports including the following:
(a)medico-legal reports from orthopaedic surgeon, Mr Peter Boys, dated 24 February 2015 and 30 October 2015;
(b)medico-legal report from rheumatologist, Dr Roy Karna, dated 11 October 2016;
(c)Certificate and reasons for opinion of a medical panel dated 6 December 2016;
(d)medico-legal reports from orthopaedic surgeon, Mr Michael Dooley, dated 31 October 2017, 15 January 2018, 19 November 2018 and 20 November 2018; and
(e)medico-legal reports from occupational physician, Dr David Barton, dated 21 November 2017 and 16 January 2018.
(f)medico-legal report from psychiatrist, Dr Timothy Entwisle, dated 11 December 2017.
The reports of Dr Karantonis, Dr Blombery, Mr Chehata and Dr Mittal either stated that the applicant’s right shoulder symptoms were organically based or were consistent with that conclusion. Dr Blombery, Mr Chehata and Dr Mittal were of the opinion that the applicant had no work capacity and Dr Karantonis considered that the applicant was unable to perform his pre-injury duties and would be unlikely to be able to undertake any employment in other areas. The reports of Mr Boys, Dr Karna, Mr Dooley, Dr Barton and Dr Entwisle either stated that the cause of the applicant’s symptoms was predominantly psychological or were consistent with that conclusion. Mr Boys was of the opinion that the applicant had no work capacity. Dr Barton was of the opinion that the applicant had capacity for suitable alternative employment, Dr Entwisle was of the opinion that the applicant had the capacity to work full time in suitable employment, and Mr Dooley considered that the applicant had the capacity to perform certain types of full time work provided that this was effected on a graduated basis.
Mr Dooley’s reports disclosed the following:
(a)Mr Dooley saw the applicant on 25 October 2017 for the purpose of preparing his report dated 31 October 2017. The applicant did not allow Mr Dooley to conduct a physical examination but allowed him to view his right shoulder.
(b)In his report dated 31 October 2017:
(i)Mr Dooley outlined the applicant’s personal circumstances and agreed with the opinion of a refugee health nurse that it was likely that the applicant was suffering from depression and post-traumatic stress disorder.
(ii)Mr Dooley expressed the opinion that during the course of his work the applicant sustained a soft tissue injury to his right shoulder that involved ‘some aggravation of underlying degenerative rotator cuff disease’. In his view, the consistency of the applicant’s ongoing pain and disability were greater than one would expect for his organic condition, and his psychological condition influenced his ongoing symptoms.
(iii)Mr Dooley stated that it was his ‘overall view that [the applicant] has naturally occurring degenerative rotator cuff disease of his right shoulder’. He accepted that the work that the applicant performed for Raminti could have aggravated the underlying degenerative rotator cuff disease.
(iv)Mr Dooley stated that the applicant’s ‘overall presentation … is dominated by his psychological condition’, that ‘continuing to treat [his] ongoing pain as though it is organically based will only lead to ongoing disappointment as it misses the crux of his presentation and pain’ and that ‘[e]ssentially [the applicant’s] prognosis depends on that of his psychological condition’.
(v)In response to the question ‘[l]ooking at the right shoulder alone, and only from a physical point of view, does the [applicant] have a capacity for fulltime hours of suitable employment (assuming any necessary restrictions can be accommodated)?’,[4] Mr Dooley stated:
From an orthopaedic viewpoint only, I would expect [the applicant] to have a physical capacity to carry out at least light physical work and clerical duties. Return to this sort of work would need to be on a graduated basis but ultimately [the applicant] would have a physical capacity to work full time.
(c)In his report dated 15 January 2018 Mr Dooley expressed the opinion that, from an orthopaedic view only, the applicant would have a physical capacity to work as a machine packer, courier, meter reader and forklift driver. He stated that the applicant’s return to work would need to be on a graduated basis but that he had the capacity to increase his hours towards full time.
(d)In his report dated 19 November 2018 Mr Dooley stated that he was able to physically examine the applicant on 14 November 2018 and that his opinion essentially remained as outlined in his report dated 31 October 2017.
(e)In his final report dated 20 November 2018 Mr Dooley noted that he had reviewed surveillance footage of the applicant from August and October 2018. He stated that from the surveillance footage there was ‘no evidence of [the applicant] … having any difficulty in terms of his right shoulder condition’.
[4]Emphasis in original.
At the hearing before the judge, senior counsel for the applicant relied on the reports of Dr Karantonis, Mr Chehata, Dr Blombery and Dr Mittal for the proposition that the applicant’s right shoulder impairment was organically based. He submitted that the restricted movement in the applicant’s right arm and shoulder and the associated pain resulted in the applicant not having the capacity to perform his pre-injury duties or undertake any suitable employment.
Senior counsel for the applicant provided the judge with an outline of submissions which made the following ‘points’ in relation to Mr Dooley’s evidence:
(i)[Mr Dooley] comments about work from ‘an orthopaedic view point only’ and forms the view that the [applicant] is fit for only light duties. This is presumably without regard to any psychological condition or chronic pain condition.
(ii)After considering [a vocational assessment] report … he confirms his opinion that the [applicant] is fit for only modified duties and that any return to work would be on a graduated basis. He notes that ‘in time however I believe that [the applicant] has a physical capacity to increase his hours towards full time’. Following his further examination of the [applicant] on 14 November 2018 and receipt of the DVD surveillance he seemingly does not alter his opinion concerning work capacity.
(iii)In relation to chronic pain syndrome his comments … seemingly acknowledge the concept of neuropathic pain and central sensitisation. He states that ‘these terms can mean different things to different people’. Given that Mr Dooley is an orthopaedic surgeon, the Court should prefer the evidence of experts in the relevant field of pain medicine when considering these concepts.
In oral submissions, the following relevant exchanges took place between the judge and senior counsel for the applicant:
HIS HONOUR: [U]nfortunately, in this case there is a pole apart of some of the doctors here and - - -
[COUNSEL]: Maybe not, because Dooley, his opinion about work capacity is that from an orthopaedic point of view, we are restricted to light duties, that is his last and his only comment on work capacity, and he doesn’t recant it.
…
Leaving aside chronic pain or anything else, he says the man can’t return to unrestricted employment, he can only do light work.
HIS HONOUR: Okay. What does that mean? You say it may be an issue about whether he gets home on pecuniary loss?
[COUNSEL]: No. We would say that the best view of the [respondent’s] case, leaving aside Barton, whom we will address, Your Honour, to the effect that he is an outlier, but the medical evidence is such that this man’s arm means that he cannot perform unrestricted employment, employment of the type that he conducted prior to this injury. He is one of the few people that the court would ever see who has no ability to read or write in either his native language or in English.
…
[COUNSEL]: Can we address Your Honour in relation to Mr Dooley?
HIS HONOUR: Yes
[COUNSEL]: [H]e comments about work and he says: ‘From an orthopaedic viewpoint only’, and he forms the view that ‘the [applicant] is fit for only light duties.’ Now this is presumably, and in fact there’s no doubt in fact, it is without regard to any psychological condition or chronic pain condition.
HIS HONOUR: Yes.
[COUNSEL]: If we could stop there. He doesn’t revisit that, he doesn’t alter that opinion following any further material, whether it be video or vocational assessment.
HIS HONOUR: Yes.
[COUNSEL]: After considering the [vocational assessment] report …, he confirms the opinion the [applicant] is fit for only modified duties and that any return to work would be on a graduated basis. He notes that: ‘In time, however, I believe that [the applicant] has a physical capacity to increase his hours towards full-time.’ Following his further examination of the [applicant] on 14 November 18 and receipt of the surveillance, he seemingly does not alter his opinion concerning work capacity.
HIS HONOUR: By that, though, do you mean that the opinion as initially expressed or the opinion when he talks about graduated return to work on the [vocational assessment report] …?
[COUNSEL]: Either. Both of them are in effect saying he can do modified work.
HIS HONOUR: Yes.
[COUNSEL]: But even after the DVD, he’s not saying, oh, I’ve seen the DVD, this man can now work unrestricted.
HIS HONOUR: No, I understand that. Just again so I understand the submission you’re making, say I was minded to accept Dooley’s opinions and I came to this piece here, that he’s seen the [vocational assessment] report and what you say here, fit for modified duties and any return to work would be on a graduated basis, although then he goes on further to say in time physical capacity to increase his hours towards full-time. What do you say that means when coming to a view about pecuniary loss as assessed at today’s date?
[COUNSEL]: It’s part of the evidence Your Honour would take into account when assessing whether there is employment for which the [applicant] is suited.
HIS HONOUR: I understand that totally, but - - -
[COUNSEL]: It’s not a complete answer to the issue for the court.
HIS HONOUR: No, it’s probably not, but leaving aside his premises which I know you attack, and I’m not suggesting rightly or wrongly at this stage, but say I’m left with that opinion — I just want to understand what you’re putting to me. If I came to the view that as at today’s date this man’s got a capacity to go back and do some work on a graduated basis with a likelihood he’s going to increase towards full-time, how do you say that fits in the matrix? What do you say that should mean?
[COUNSEL]: Well, it is simply part of the evidence, that is, it is evidence from an orthopaedic surgeon; your Honour still needs to take into account the individual, his literacy - - -
HIS HONOUR: His literacy and all that sort of thing.[5]
[5]Transcript of Proceedings (22 November 2018) 140.16–141.12; Transcript of Proceedings (27 November 2018) 155.18–157.21.
Senior counsel for the respondent relied on the reports of Mr Boys, Dr Karna, Mr Dooley, Dr Barton and Dr Entwisle in support of a submission that there was no organic cause for the applicant’s condition and that the overwhelming presentation is that of some type of pain syndrome mediated by psychological means. He submitted that the judge should not accept the evidence of Dr Karantonis, Mr Chehata, Dr Blombery and Dr Mittal.
Judge’s reasons for decision
The judge stated that he was not satisfied that the applicant had established that his compensable right shoulder injury had produced an organic impairment of the right shoulder with organic consequences.[6] He considered that the applicant had ‘developed a significant chronic pain syndrome [mediated] by psychological mechanisms contributed to by his tumultuous experiences in coming to Australia, his ongoing concerns as to his status in this country, and the undoubted concerns he would have about his family back in Pakistan’.[7]
[6]Reasons [214].
[7]Reasons [215].
The judge stated that if he was wrong and there was some organic impairment in the applicant’s right shoulder, ‘the development of a chronic pain syndrome (a psychological condition) dominates [the applicant’s] clinical presentation’.[8] He said that this conclusion is consistent with Mr Dooley’s evidence.
[8]Reasons [216].
In relation to the applicant’s credit, the judge stated that he doubted that the applicant set out consciously to mislead the Court. He concluded that the applicant was ‘injury’ and ‘pain’ focused and that his responses were borne out of a ‘significant pain syndrome’.[9] He stated that the applicant’s ‘overwhelming presentation’ was his claim that he had significant pain at or around the site of his right shoulder surgery, that the pain was made worse by activity with his right arm and caused significant restrictions on his right arm and shoulder movement.[10]
[9]Reasons [203].
[10]Reasons [206].
The judge rejected the opinions of Dr Blombery, Dr Mittal, Mr Chehata and Dr Karantonis on the issue of whether there was an organic basis to explain the variable restriction of movement in the applicant’s right shoulder and his constant pain.[11]
[11]Reasons [221].
As to the evidence of Mr Dooley, the judge summarised his four reports and quoted extensively from the report dated 31 October 2017.[12] He summarised the passage set out at [36(b)(v)] above[13] as well as quoting it in full.[14] The judge stated:
[12]Reasons [103].
[13]Reasons [104].
[14]Reasons [210(c)].
It was further submitted [by senior counsel for the applicant] that the opinion of the orthopaedic surgeon, Mr Dooley, in relation to work capacity from an orthopaedic point of view was important. Counsel [for the applicant] stated that Mr Dooley asserted that the [applicant] is ‘restricted to light duties, that is his last and his only comment on work capacity, and he doesn’t recant it’.
It is perhaps pertinent to refer to the opinion of Mr Dooley, set out in his report dated 31 October 2017 — that being the initial consultation with the [applicant] when he was prevented from physically examining the shoulder, Mr Dooley did state:
From an orthopaedic viewpoint only, I would expect [the applicant] to have a physical capacity to carry out at least light physical work and clerical duties. Return to this sort of work would need to be on a graduated basis but ultimately [the applicant] would have a physical capacity to perform full time.
Of course, Mr Dooley later re-examined the [applicant] on 14 November 2018, at which time he did perform a physical examination of the right shoulder;
…
[Senior counsel for the applicant] also stressed that Mr Dooley acknowledges the concept of neuropathic pain and central sensitisation and that the evidence of Dr Mittal and Dr Blombery are to be preferred over that of Mr Dooley, as the former two are experts in the area, whereas Mr Dooley is an orthopaedic surgeon;
…
Mr Dooley, … examined the [applicant] on 25 October 2017, and on 14 November 2018. On the first occasion, the [applicant] would not permit Mr Dooley to examine the right shoulder, although it was noted that there was no obvious wasting at that time. The [applicant] complained of ongoing right shoulder girdle pain. When seen on the second occasion, Mr Dooley found the [applicant] well-muscled, with no wasting over the shoulder girdle musculature, and there was tenderness, generally, in this area. Active abduction and forward flexion were to 80 degrees, external rotation was to 40 degrees, internal rotation to 0 degrees, abduction and extension was to 10 degrees. There was a generalised reduction in power of the right upper limb, although sensation was intact.
As I have already recorded, Mr Dooley formed the opinion that the [applicant] had developed a chronic pain syndrome through psychological mechanisms which dominated his clinical presentation. Although he had significant restriction of active range of movement of the right shoulder, Mr Dooley noted this is a subjective and not an objective finding. Furthermore, Mr Dooley was of the opinion that there were inconsistent signs in relation to passive range of motion of the right shoulder.
Mr Dooley sets out in some detail the conclusions that he has reached and why he has reached them.
…
Generally, I consider that the various opinions expressed by Mr Dooley most closely accord with the evidence in this proceeding, and to that end, I largely adopt the medical opinions that he has proffered.[15]
[15]Reasons [210(c)] (citation omitted) (emphasis in original), [212(e)], [219(b)(iv)], [220].
Grounds of appeal
The applicant’s proposed grounds of appeal are in the following terms:
1The primary judge erred in law by failing to comply with the rules of natural justice in that he failed to give proper, genuine and realistic consideration to the submission from the appellant’s senior counsel that the medical report of Mr Michael Dooley of 31 October 2017 contained an opinion that the applicant was, by reason of an organic impairment to his right shoulder, precluded from returning to unrestricted employment.
2Alternatively to proposed ground 1, the primary judge erred in law by providing legally inadequate reasons in that the reasons of the primary judge fail to refer to and assign reasons for the rejection of the submission from the appellant’s senior counsel set out in proposed ground 1 above.
Parties’ submissions
The applicant submitted that his case before the judge was that: first, there was substantial medical evidence that supported the proposition that his right shoulder impairment was organically based; secondly, that the organic impairment precluded him from returning to unrestricted employment; and thirdly, the evidence of Mr Dooley was an important part of the evidence supporting these propositions.
According to the applicant, the judge’s reasons do not disclose whether he accepted or rejected the applicant’s submission as to how he ought to characterise Mr Dooley’s evidence. He contended that Mr Dooley’s evidence concerned an important issue in the context of the case and went directly to the judge’s ultimate determination. He argued that the reasons do not acknowledge the applicant’s submission, they fail to explain what consideration was given to it and also fail to engage with the merits of that submission. It was said that accordingly, the applicant was denied natural justice.
The applicant submitted that had the judge accepted his submission after giving it proper, genuine and realistic consideration, it could have provided a discrete basis for the judge to grant leave pursuant to s 134AB(16)(b) of the Act.
In relation to ground 2, the applicant contended that the judge’s reasons were inadequate as they did not disclose his consideration of the applicant’s submission in relation to the characterisation of Mr Dooley’s evidence nor did they set out reasons for the acceptance or rejection of that submission.
The applicant submitted that it was unclear from the judge’s reasons whether he understood that the submission was directed to Mr Dooley’s evidence supporting the argument that the applicant’s right shoulder injury had given rise to organic impairment that precluded him from performing his pre-injury employment. According to the applicant, it was also unclear whether, and if so how, the judge reconciled the applicant’s submission and the adoption of Mr Dooley’s evidence with the finding that he was not satisfied that the applicant’s injury produced an organic impairment of his right shoulder with organic consequences.
The respondent contended that the judge gave appropriate consideration to the applicant’s submission and that there was no denial of natural justice nor a failure to provide adequate reasons. The respondent argued that Mr Dooley’s opinion on the applicant’s work capacity was relevant to both the question of organic impairment and the related questions of permanence and that the judge engaged with the opinion in both respects. It was said that the judge engaged with Mr Dooley’s opinion both when it was advanced in argument and in his reasons.
According to the respondent, the judge rejected the applicant’s submission because he did not regard it as accurately founded in Mr Dooley’s opinion. According to the respondent, the judge emphasised that Mr Dooley was of the view that from an orthopaedic viewpoint the applicant could undertake ‘at least light physical work’ and that he ‘would have a physical capacity to work full time’.
The respondent argued that any submission that Mr Dooley’s opinion as to work capacity provided a basis for a finding of a subsisting work-related organic impairment with ‘serious’ consequences was at odds with the weight and content of Mr Dooley’s opinions. It contended that this submission ignored Mr Dooley’s view, expressed in his first report, that the applicant had ‘naturally occurring degenerative rotator cuff disease’ and that his presentation was dominated by psychological factors. According to the respondent, Mr Dooley was plainly in the camp of medical experts who considered the applicant’s claims of pain and associated incapacity for work to be dominated by psychological factors.
Decision
In our opinion, neither ground of appeal is made out.
In order to succeed in his application for leave pursuant to s 134AB(16)(b) of the Act, the applicant needed to establish that the shoulder condition of which he complained constituted a ‘serious injury’ that arose out of, or in the course of, or due to the nature of, his employment with Raminti.[16] As he relied on para (a) of the definition of ‘serious injury’ in s 134AB(37), he had to establish that he had suffered a ‘permanent serious impairment or loss of a body function.’ The applicant contended that he had suffered a permanent serious impairment of his right shoulder.
[16]Act ss 134AB(2), (19)(a).
In order to establish that the impairment suffered by him was ‘permanent’, the applicant had to establish that it was ‘likely to last for the foreseeable future’.[17]
[17]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 638 [33]; [2005] VSCA 33.
In deciding whether the impairment was ‘serious’, the judge had to consider pain and suffering separately from loss of earning capacity.[18] He could not find that the impairment was serious unless the pain and suffering consequences or the loss of earning capacity consequences were, when judged by comparison with other cases in the range of possible impairments, fairly described as being more than significant or marked, and as being at least very considerable.[19] In relation to loss of earning capacity consequences, the applicant additionally had to establish that he had, at the date of the hearing, a loss of earning capacity of 40 per cent or more and would after that date continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[20]
[18]Act s 134AB(38)(b).
[19]Act s 134AB(38)(c).
[20]Act s 134AB(38)(e).
In determining whether the applicant had suffered a permanent serious impairment, the judge could not take into account any psychological or psychiatric consequences of the shoulder injury.[21] That is because psychological and psychiatric consequences are dealt with separately under para (c) of the definition of ‘serious injury’ in s 134AB(37) of the Act.
[21]Act s 134AB(38)(h).
The applicant has not contended that the judge misunderstood or misapplied the above principles. Rather, he contended that, in his application of the above principles, the judge failed to consider a key submission that his senior counsel made at trial in support of his case.
It is common ground that, in the context of a court proceeding, the hearing rule of natural justice includes a requirement that the court give consideration to each party’s submissions on critical issues in the case. For present purposes it is not necessary to discuss the precise parameters of that requirement. That is because, even if the formulation that is used in some authorities — that the court must give ‘proper, genuine and realistic consideration’ to such submissions[22] — were adopted to describe the requirement, it was satisfied in the present case.
[22]The applicant relied on the following cases in support of that formulation: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, [25]–[26], [33], [43]; [1987] FCA 457; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321, 325–6 [24], 338–9 [87]–[88]; [2003] HCA 26; Azriel v NSW Land & Housing Corporation [2006] NSWCA 372, [51], [56], [59]; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 356 [90]; [2010] HCA 41; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [78]; Ferris v Victoria [2018] VSCA 240, [5]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 435–6 [13]; [2019] HCA 3.
In considering ground 1, it is necessary to bear in mind the issues at trial and the precise nature of the submissions that the parties made in relation to them. As we have stated at [29] above, it was common ground that the applicant had suffered a right shoulder injury which was causally related to his employment with Raminti. The critical issues were the severity of the consequences of that injury (in terms of pain and suffering and loss of earning capacity) and whether those consequences had an organic basis as distinct from a psychological or psychiatric basis. Mr Dooley’s opinions were relevant to both those issues.
The written and oral submissions that were made on behalf of the applicant as to Mr Dooley’s opinions in so far as they related to those critical issues are quoted at [38]–[39] above. As can be seen from those quotes, senior counsel for the applicant relied on the statement in Mr Dooley’s report dated 31 October 2017 that ‘[f]rom an orthopaedic viewpoint only, [he] would expect [the applicant] to have a physical capacity to carry out at least light physical work and clerical duties’. In essence, senior counsel submitted that by this statement, Mr Dooley had opined that the applicant had capacity to perform only light duties and that this restricted capacity was a consequence of an organic impairment to his right shoulder. For convenience, we will refer to this submission as the ‘Dooley opinion submission’.
The judge was very much aware of the Dooley opinion submission because, in his reasons, he quoted senior counsel’s formulation of it as recorded in the transcript of the hearing.[23] The judge addressed the Dooley opinion submission by stating that it was ‘perhaps pertinent to refer to the opinion of Mr Dooley’ and then quoting from the opinion. In doing so, the judge placed his own emphasis on the words ‘at least’ in the phrase ‘I would expect [the applicant] to have a physical capacity to carry out at least light physical work and clerical duties’.[24] By addressing the Dooley opinion submission in this manner, the judge indicated that he was of the view that the submission did not accurately reflect Mr Dooley’s opinion about the applicant’s work capacity. In other words, the judge did not consider that Mr Dooley’s opinion was necessarily to the effect that the applicant’s work capacity was confined to performing light duties.
[23]Reasons [210(c)]. See [45] above.
[24]Reasons [210(c)]. See [45] above.
The judge’s reasons make it clear that he did not accept the applicant’s contention that the pain and suffering and loss of earning capacity consequences of his shoulder injury had an organic basis. He found that the injury did not produce an organic impairment of the right shoulder with organic consequences. He made this finding after carefully weighing up all of the evidence.
The judge went on to say that if, contrary to his primary finding, there was some organic impairment to the applicant’s right shoulder, the applicant had developed a psychological chronic pain syndrome which dominated his clinical presentation. In reaching this conclusion, the judge relied particularly on the evidence of Mr Dooley. The judge was justified in relying on Mr Dooley’s evidence because he consistently stated in his reports that the applicant’s impairment was psychologically based rather than organically based. The clear inference arises that the judge concluded that Mr Dooley’s reference to ‘an orthopaedic viewpoint only’ in response to a specific question did not detract from his view — which finds strong expression across his four reports — that any impairment that is the product of the applicant’s shoulder injury is predominantly psychological.
In circumstances where the judge:
(a)specifically referred to the Dooley opinion submission;
(b)questioned the accuracy of that submission by quoting the passage from Mr Dooley’s opinion upon which the submission was based and placing his own emphasis on two significant words in that passage; and
(c)considered the relevant passage in the context of Mr Dooley’s evidence as a whole on the critical issue of whether the applicant had suffered an organic impairment to the right shoulder,
it cannot be said that the judge failed to give proper consideration to the Dooley opinion submission.
We now turn to the applicant’s alternative ground that the judge’s reasons are inadequate.
In determining an application for leave pursuant to s 134AB(16)(b) of the Act, the court has a duty to give reasons which disclose the path of reasoning in dealing with the evidence and the issues raised by the application. Failure to expose the path of reasoning is an error of law. In Hunter v Transport Accident Commission, Nettle JA described the duty to give reasons as follows:
[W]hile the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[25]
[25](2005) 43 MVR 130, 136–7 [21] (citations omitted); [2005] VSCA 1. See also Lexa v Transport Accident Commission (2019) 88 MVR 394, 408 [72]; [2019] VSCA 123 (‘Lexa’).
The adequacy of reasons depends on the issues that were agitated at the hearing and the manner in which the case was presented. In an appropriate case, the judge’s path of reasoning may be sufficiently disclosed by a combination of what is expressly stated in the reasons and inferences that may be drawn from the judge’s recitation of the material.[26] In deciding what inferences may be drawn, the reasons must be read as a whole.[27]
[26]Lexa (2019) 88 MVR 394, 408 [73]; [2019] VSCA 123; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232, [78].
[27]R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66, [62], [66]; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [81], [117].
In deciding whether reasons are adequate, this Court should bear in mind the nature of the proceeding and the manner in which the evidence was adduced before the judge, and should not apply a standard of perfection, nor should it examine the reasons critically seeking to discern an inadequacy in them.[28]
[28]Jovceva v Transport Accident Commission (2019) 88 MVR 323, 337 [60]; [2019] VSCA 105.
At [62]–[67] above, we analysed the judge’s reasons for the purpose of determining whether ground 1 was made out. Our analysis demonstrates that the judge’s conclusions in relation to the Dooley opinion submission and the path of reasoning leading to those conclusions are readily apparent when his reasons are read as a whole. It must follow that the judge’s reasons cannot be characterised as legally inadequate.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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