Torialay v Rahgozar
[2022] VSC 683
•15 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03770
| TORIALAY TORIALAY | Plaintiff |
| v | |
| DR MAJID RAHGOZAR | First Defendant |
| and | |
| MR PETER WILDE | Second Defendant |
| and | |
| DR JUDITH HAMMOND | Third Defendant |
| and | |
| DR EDMOND VAN AMMERS | Fourth Defendant |
| and | |
| DR JULIAN FREIDIN | Fifth Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Sixth Defendant |
---
JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2022 |
DATE OF JUDGMENT: | 15 November 2022 |
CASE MAY BE CITED AS: | Torialay v Rahgozar & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 683 |
---
ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Diagnosis in respect of back injury in lifting incident in February 2016 – Symptoms of disc prolapses ‘now resolved’ – Degenerative changes of the lumbar spine and ‘lumbar spondylosis’ – Alleged specific jurisdictional errors – Reasoning of medical panels - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, Chang v Neill [2019] VSCA 151, Sidiqi v Kotsios [2021] VSCA 187 and Ayana v Qantas Airways Limited [2021] VSC 500 – Proceeding dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Hangay | Zaparas Lawyers |
| For the First to Fifth Defendants | No appearance | Victorian Government Solicitor’s Office |
| For the Sixth Defendant | FC Spencer | Minter Ellison |
HIS HONOUR:
A Introduction
The plaintiff was born on 10 February 1991 in Afghanistan and came to Australia in 2011. In November 2015, he commenced employment as a kitchenhand/labourer with Gourmet Dinner Services Pty Ltd.
On 10 February 2016, the plaintiff sustained injury to his back as a result of lifting and carrying heavy boxes in the course of his employment (‘the incident’).
On 29 February 2016, the plaintiff made a claim for workers’ compensation which was accepted. On 8 July 2017, the plaintiff made a claim for impairment benefits which was also accepted.
On 4 May 2020, pursuant to the provisions in div 2 of pt 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’), the plaintiff sought consent to commence proceedings for common law damages. The plaintiff claimed to have suffered a back injury arising out of the incident as well as consequential mental or behavioural disturbance or disorder. His application was refused.
On 15 September 2020, the plaintiff issued an originating motion in the County Court of Victoria seeking leave to commence common law proceedings against his employer.
On 13 May 2021, pursuant to s 274 of the Act, his Honour Judge Wischusen referred certain questions to a medical panel.
The panel was comprised of five members: an occupational and environmental physician, an orthopaedic surgeon, a general practitioner and two psychiatrists.
The plaintiff was examined by the ‘physical doctors’ on 30 June 2021 and the psychiatrists on 19 July 2021. On each occasion, the panel appears to have been assisted by a professional interpreter.
On 18 August 2021, the panel delivered its certificate of opinion accompanied by written reasons.[1] Relevantly, the certificate stated as follows –
[1]Amended Court Book (‘ACB’) 53-80.
Question 1 What is the current medical condition of Plaintiff’s:
(a) lumbar spine;
(b) mind?
Answer:(a) The Panel is of the opinion that the Plaintiff was suffering from low back pain due to small lumbar disc prolapses at the L4/5 and L5/S1 levels, now resolved, on a background of mild pre-existing constitutional degenerative changes of the lumbar spine.
(b)The Panel is also of the opinion that the Plaintiff is suffering from an Adjustment Disorder with Depressed and Anxious Mood.
Question 2Does any condition of Plaintiff’s mind, as identified in the answer to Question 1(b), result from, or is it contributed to by, the accepted lumbar spine condition?
Answer:The Panel is of the opinion that the Plaintiff’s current condition of an Adjustment Disorder with Depressed and Anxious Mood is not contributed to by and does not result from the accepted lumbar spine condition.
It was unnecessary for the panel to answer questions 3, 4 and 5.
The substance of the panel’s answers was to the effect that –
(a) the back pathology suffered by the plaintiff as a consequence of the incident – namely, small lumbar disc prolapses at the L4/5 and L5/S1 levels – is now resolved;
(b) there is, however, a background of mild pre-existing constitutional degenerative changes of the lumbar spine; and
(c) the plaintiff’s psychiatric presentation – namely, an adjustment disorder with depressed and anxious mood – did not result from the now resolved back pathology.
B The panel’s reasons
The panel’s certificate of opinion was accompanied by extensive written reasons.
The length of those reasons is partially to be explained by the volume of the material placed before the panel, which included the certificate of opinion and written reasons of an earlier medical panel.[2]
[2]ACB658-670.
The written reasons of the present panel noted the claimed injuries, the agreed facts, the facts in dispute, the submissions of the plaintiff and sixth defendant respectively, the opinion of the previous medical panel and thereafter addressed the plaintiff’s physical injury.[3]
[3]ACB57-61.
In that connection, the panel referred to its interview with the plaintiff and to his pre-injury history, including his medical and employment history.[4] That discussion included reference to histories of –
[4]ACB61-63
(a) unexplained pain in the plaintiff’s stomach for ‘many years’, both before and after leaving Afghanistan, for which he had sought investigation and treatment and been prescribed antidepressant and hypnotic medication;
(b) headaches for which a CT scan of the brain had been performed and shown no evidence of intracranial pathology;
(c) depression diagnosed by a psychiatrist in October 2015; and
(d) in September 2015 –
Mr Torialay … continuing to complain of pain in the form of headaches and muscle aches in his back; his general practitioner, Dr Akhtar, referred him for physiotherapy under a Medicare funded plan, with some improvement in his symptoms.[5]
[5]ACB62.
From that point, the panel considered the plaintiff’s account of the incident and subsequent events, including the subsequent clinical course.[6]
[6]ACB63-65.
The panel thereafter considered the plaintiff’s current symptoms and management of his condition and then turned to the results of its physical examination.[7] In that regard, among other things, the panel observed and recorded that the plaintiff had demonstrated ‘a greater range of flexion than demonstrated on formal examination’.[8]
[7]ACB65-66.
[8]ACB66.
The panel then considered the imaging reports, in respect of which, among other things, it recorded that –
(a) lumbar spine MRIs in March and April 2016 were reported as having demonstrated –
a mild broad-based near circumferential disc protrusion at the L4/5 level, contacting but not compressing the traversing bilateral L5 nerve root and a small posterior central disc protrusion at the L5/S1 level contacting but not compressing the traversing right S1 nerve root.[9]
[9]Ibid.
(b) a CT scan in February 2016 was reported as having demonstrated degenerative changes in the facet joints, particularly at the L4/5 level, which the panel considered to indicate that –
Mr Torialay had pre-existing degenerative change in his lumbosacral spine prior to the work-related incident of 10 February 2016.[10]
[10]Ibid.
The panel thereafter stated its ‘diagnostic conclusions regarding the physical injury’ as follows –
In assessing Mr Torialay’s physical condition, the Panel took into account the clinical history provided by Mr Torialay and the Panel’s physical examination, in addition to the information provided by Mr Torialay in his sworn affidavit, dated 24 April 2020, and his supplementary affidavit, dated 5 January 2021. The Panel also considered the information provided in the referral material, including the reports of Mr Torialay’s treating practitioners: general practitioners, Dr Akhtar and Dr Mendis; treating pain physician, Dr Gassin; physiotherapists, Mr Hutchinson and Mr Moar, in addition to the reports of neurosurgeons, Mr Aliashkevic and Mr Akil. The Panel also noted the independent medical opinions of rehabilitation specialist, Dr Ali Kian Mehr; neurosurgeon Professor Richard Bittar; pain specialist, Dr Richard Sullivan; occupational physicians, Dr Kilner Brazier and Dr Joseph Slesenger, and general surgeon, Mr Barclay Reid.
The Panel noted that Mr Torialay had suffered from chronic pain for many years including abdominal pain, headaches and back pain prior to the incident of 10 February 2016 for which no cause was identified.
In assessing Mr Torialay, the Panel also noted:
•the report of Dr Geoffrey Horgan, psychiatrist, dated for October 2015, in which he noted Mr Torialay complained of “a lot of pain through the whole body including the back and the back of the head” and suffered from “long-standing major depression”;
•the Casey Hospital Emergency Department discharge summaries, dated 23 February 2015 and 8 April 2015, documenting Mr Torialay presentations with long standing abdominal pain for which no cause was found, however, on the latter visit, the cause of his abdominal pain was considered to be anxiety;
•Mr Torialay’s own report in his affidavit, dated 24 April 2020, that he had experienced long-standing abdominal pain for many years, the pain having been present whilst he was still living in Afghanistan in 2013. Mr Torialay also noted in his affidavit that he had suffered headaches and muscle aches and that following some physiotherapy “his headaches and his back soreness improved”.
The Panel noted the circumstances of the work-related incident of 10 February 2016, when Mr Torialay experienced back pain when lifting heavy boxes and the Panel noted the subsequent imaging findings of a mild disc prolapse at the L4/5 level and a minor disc prolapse at the L5/S1 level on the CT scan of 12 February 2016 and the MRI scans of 11 March 2016 and 26 April 2016. The Panel noted the prolapsing discs are reported as touching the passing L5 and S1 nerve roots but with no evidence of nerve root compression. The imaging also showed evidence of pre-existing degenerative changes, particularly of the facet joints the L4/5 level.
The Panel also considered the well documented and widely accepted natural history of symptomatic vertebral disc prolapse which resolves over a period of one to two years (although imaging appearances of the vertebral disc may not change significantly, the associated symptoms nonetheless resolve) with or without appropriate conservative therapy. The Panel also noted the reports of neurosurgeons Mr Aliashkevic (dated 12 April 2016 and 7 October 2016) and Mr Akil (dated 30 March 2020 and 4 November 2020) who shared the opinion that surgical intervention for Mr Torialay’s symptoms were not appropriate, consistent with the mild nature of the lumbar spine injury suffered and the natural history of the clinical symptoms associated with disc prolapses to settle spontaneously with time. Therefore, whilst the Panel accepts that Mr Torialay may have experienced small acute disc prolapses at the L4/5 and L5/S1 levels at the time of the incident of 10 February 2016, the Panel considered the disc prolapses were mild in nature and any symptoms related to acute disc prolapses resolve within a 12 to 24 month period.
The Panel also considered Mr Torialay’s report of constant severe pain in his lower back limiting all physical activity; the limited benefit of his considerable medication past and current regime; the lack of improvement in his pain despite multiple therapeutic modalities; the absence of significant physical examination findings of spinal pathology (noting the presence of tenderness to palpation of the lumbosacral spine but no evidence of paravertebral muscle spasm or guarding with a normal examination of his lower limbs); multiple inconsistencies in Mr Torialay’s physical examination (for example, inconsistencies in range of movement in the lumbar spine during formal and informal observation and his inability to single leg stand because of Neither pain and yet walk with a non-antalgic gait). Neither did Mr Torialay display symptoms of a chronic pain syndrome or inorganic signs of disease, in that he did not have widespread tenderness to superficial touch; his lower back pain was not increased with axial loading or simulated rotation, nor did he have regional disturbances muscle weakness or sensory loss.
The Panel considered that Mr Torialay’s experience of ongoing, severe, low back pain, increasing rather than diminishing over time, is not consistent with the absence of significant physical examination findings related to lumbar disc prolapse nor the natural history of symptomatic lumbar disc prolapse which would have resolved over one to two years after the February 2016. The Panel, therefore, considered that lumbosacral spinal injury incurred by Mr Torialay at the time of the incident of 10 February 2016 has now resolved.
The Panel noted that this opinion is shared by that of occupation health physician Dr Joseph Slesenger in his reports dated 11 October 2017, 20 August 2020 and 13 January 2021 and was in concordance with the opinion of the previous Medical Panel who assessed Mr Torialay in November 2019.
The Panel considered Mr Torialay’s ongoing symptoms of back pain are instead related to his persisting mild pre-existing constitutional degenerative changes of the lumbar spine, as seen on the CT scan of 12 February 2016, which would be expected to gradually deteriorate over time, unrelated to his lumbar spine injury of February 2016. The Panel also noted Mr Torialay’s neurological propensity to centralised pain, previously expressed as abdominal pain, headache and backache and considered this might be amplifying his lower back symptoms secondary to his pre-existing constitutional degenerative lower back condition. The Panel also considered the psychosocial stressors in Mr Torialay’s life in recent years, including significant financial and familial pressures, might further aggravate centralised pain symptoms.[11]
[11]ACB66-68.
It will be apparent that the panel considered that –
(a) the plaintiff had suffered ‘small acute disc prolapses’ in the incident that were nonetheless ‘mild in nature’;[12] and
(b) any symptoms relating to that pathology were ‘now resolved’.[13]
[12]ACB68.
[13]ACB68.
The panel plainly considered the plaintiff’s ‘constant severe pain in his lower back limiting all physical activity’ to be related to ‘his persisting mild pre-existing constitutional degenerative changes of the lumbar spine’ that, in its opinion, ‘would be expected to gradually deteriorate over time, unrelated to his lumbar spine injury of February 2016’.[14]
[14]Ibid.
The panel thereafter noted that the plaintiff’s lower back symptoms ‘might’ be being amplified by ‘a neurological propensity to centralised pain’.[15]
[15]Ibid.
The panel then addressed the claimed ‘psychiatric injury’ and considered the plaintiff’s psychiatric history, treatment, family history, the panel’s examination and relevant medical reports.[16] In the course of that discussion, the panel noted the manner in which the plaintiff had presented to the panel and his ‘somatic preoccupation and own interpretation of his difficulties’.[17]
[16]ACB69-73.
[17]ACB72.
The panel returned to that issue when expressing its ‘psychiatric conclusions’, including as follows –
The Panel took into account all of the psychiatric enclosures provided, information obtained at interview and observation of Mr Torialay’s mental status to form its conclusions. The Panel took note of the physical symptoms complained of associated with the claimed injury, and his description that there were secondary emotional symptoms and impairment of function associated with that of a severe nature. The Panel was impressed however that there was no outward expression of the pain that he complained of and he did not present as somebody who was markedly depressed or lacking in vigour. The Panel therefore had hesitation in accepting the symptoms he complained of at face value and preferred to base its opinion on the examination of Mr Torialay. Noting a record of inconsistencies in the information provided by Mr Torialay, the Panel wanted to reserve its opinion whether this was due to wilful manipulation, cultural factors, or a feature of his somatised behaviour but thought it important to be aware that a fair degree of information given by Mr Torialay did not accord with documented information from previous medical reports. The Panel thought it significant that there was a recorded history of pre-existing psychological difficulties in his General Practitioner notes and also judged the psychiatric report of Dr Hogan in October of 2015 to be thorough and well documented. The Panel was comfortable therefore in finding that prior to the claimed injury Mr Torialay was suffering from significant psychiatric difficulties. The Panel assessed that the level of symptoms and function as described by Mr Torialay currently are not to any significant extent of a greater severity than recorded by Dr Hogan five months prior to the claimed injury. The Panel also noted that Mr Torialay had been working intermittently and not always full-time prior to the date of injury. The Panel noted that at the previous Medical Panel examination in 2019 no history was provided from documentation or Mr Torialay that he had pre-existing psychological problems, understanding therefore why the Panel in 2019 had considered his psychiatric symptoms to be secondary to the claimed injury. This Panel concluded that, concurrently with the finding of the physical Panel, that the claimed back injury had resolved, that the emotional symptoms that may have accompanied that prior injury have resolved as well. The Panel considered it likely that in the context of his previous, and now resolved, claimed back injury there was an exacerbation of his pre-existing chronic Adjustment Disorder with Depressed and Anxious Mood, but that exacerbation has now resolved as well. The panel noted in particular that on mental status examinations, Mr Torialay presented with a greater level of observable symptomatology at the previous Panel assessment. The emotional symptoms that Mr Torialay now complains of are a continuation of those that existed previously, noting Mr Torialay’s chronic presentation of somatic symptoms, along with complaints of depression and the features that accompany that psychological state.[18]
[18]ACB73-74.
As earlier noted, the panel considered the ‘most appropriate diagnosis’ to be that of adjustment disorder with depressed and anxious mood, but did not consider that to be related to injury from the incident in February 2016.[19]
[19]ACB74.
C The present proceeding
The plaintiff brings the present proceeding by amended originating motion seeking judicial review of the panel’s opinion on the following stated grounds –
Ground 1:
12.In forming its opinion on the Answer to Question 1(a), the Medical Panel did not take into account, or have regard to, or address:
(a)relevant material supplied to the Medical Panel, namely the medical reports and opinions of two specialist neurosurgeons, Mr Akil and Professor Bittar, each of whom were of the opinion that the Plaintiff was continuing to suffer from a work caused aggravation of lumbar spondylosis and that condition was the cause of his present pain;
(b)issues raised by the reports of Mr Akil and Professor Bittar, namely whether the Plaintiff was continuing to suffer from a work caused aggravation of lumbar spondylosis and that condition was the cause of his present pain;
(c)a relevant matter of medical science, namely that the Plaintiff may have been continuing to suffer from a work caused aggravation of lumbar spondylosis and that condition was the cause of his present pain.
Ground 2:
13.The Medical Panel’s reasoning as to the cause of the Plaintiff’s lumbar spine pain included a finding that he was suffering from “chronic pain for many years including abdominal pain, headaches, and back pain prior to the incident of 10 February 2016.” As to this reasoning,
(a)There was no evidence that such was the case in relation to the Plaintiff’s lumbar spine;
(b)The evidence as to the Plaintiff’s previous back pain did not include lumbar spine pain;
(c)The finding was irrelevant as to the cause of the Plaintiff’s present lumbar spine pain.
Ground 3:
14.The Medical Panel’s reasoning as contained in its Reasons that the workplace incident was not a cause of the Plaintiff’s present lumbar spine pain included findings that:
(a)he had a neurological propensity towards centralization of pain which had previously expressed itself as abdominal pain, headache and back pain, and which may have amplified his pain symptoms;
(b)he had demonstrated somatised behaviour;
15.However, in law the employer was required to take the Plaintiff as it found him, and the Medical Panel was wrong in law in considering that these findings militated against the incident being a cause of Plaintiff’s present pain symptoms.
Ground 4: Reasons
16.Pursuant to section 313(2) of the WIRC Act, the Panel had a statutory obligation to give reasons for its decision. Pursuant to section 10 of the Administrative Law Act 1976 those reasons are part of the record of the determination.
17. The Panel’s reasons are deficient to explain:
(a)why it rejected any continuing relationship between the Plaintiff’s employment and the condition in his lumbar spine;
(b)what consideration, if any, it gave to the concept of injury as an aggravation of a pre-existing condition or vulnerability as required by the definition of injury in s.3 of the WIRC Act; and
(c)why the Panel rejected evidence that the Plaintiff’s condition in his lumbar spine had been aggravated by the incident in his employment; and
(d)why the Panel concluded that the Plaintiff’s injury to his lumbar spine had resolved;
(e)what consideration, if any, was given to the reports of Mr Akil and Professor Bittar.[20]
[20]ACB12-13.
The plaintiff contends that the panel made jurisdictional errors or errors of law on the face of the record and seeks orders in the nature of certiorari quashing the panel’s opinion and mandamus remitting the medical questions to a differently constituted panel in order to be reconsidered in accordance with law.
In written submissions, the plaintiff pressed grounds 1, 2 and 3 as, in effect, specific jurisdictional errors, and ground 4 as a complaint of broader deficiency in reasoning.
In oral argument, the complaints of specific error tended to be identified as ‘tied in’ with the ‘path of reasoning/reasons point’.[21] In broad terms, it was submitted that the conclusion of the panel concerning physical injury ‘doesn’t make sense’.[22] In that connection, counsel submitted that –
[21]See, for example, Transcript (‘T’) 3-4.
[22]T41.
(a) the reasons of a panel must be sufficient for the Court to determine whether or not an error has been made;[23]
[23]T42. In that connection, counsel referred to aspects of the reasoning in Gruma Oceania Pty Ltd v Bakar [2014] VSCA 242, [39]-[41], [47] and [49] (‘Gruma Oceania’).
(b) the panel found that there was a ‘temporary aggravation’, but ‘there’s no explanation as to the temporariness of that aggravation’ or ‘what changed’;[24] and
[24]T42.
(c) the reasons of the panel –
don’t connect the dots in terms of whether it was a discogenic injury or discogenic pain, whether it was, if so what was causing the ongoing pain, and why that’s not related. So it doesn’t make sense.
…
It [the panel] says as a matter of pattern, or a matter of widely documented science, blindly accepted that prolapses heal over a period of time, but again, it doesn’t explain adequately, in my submission, to enable Your Honour to determine whether it has adequately considered the material, what changed, given that it accepts that there is ongoing severe pain. It seems to attribute it to … centralisation and to amplification and to degeneration, but again all those matters could be matters which are part of the process that was commenced on 10 February [2016] by way of an aggravation, exacerbation or what have you. It doesn’t deal with that at all.[25]
[25]T43-44.
The sixth defendant addressed the plaintiff’s contentions comprehensively in written and oral submissions.
The other defendants – comprising the members of the panel – did not participate in the hearing and had earlier advised the Court that they would abide the result.
D Applicable principles
The principles relating to the judicial review of an opinion of a medical panel are established and well understood.[26]
[26]Among many other authorities, see: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’); Chang v Neill (2019) 62 VR 174 (‘Chang’); Gruma Oceania (n 23); Maimonis v Bourke [2019] VSCA 302; Didani v Downes-Brydon [2021] VSCA 281; Sidiqi v Kotsios [2021] VSCA 187 (‘Sidiqi’).
Relevantly, in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’), the High Court explained that –
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. 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.[27]
[27]Wingfoot (n 26) [47]. See also, Sidiqi (n 26) [41] & [49]-[50].
The High Court later spoke to the required standard of reasoning as follows –
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. 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. 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.[28]
[28]Wingfoot (n 26) [55].
Subsequently, in Gruma Oceania Pty Ltd v Bakar (‘Gruma Oceania’), the Court of Appeal stated –
It is important to bear in mind that the question for the Court when considering whether a medical panel’s reasons are adequate is not whether the reasons positively disclose that the panel erred in law, but whether the reasons are sufficient to enable the Court to determine whether the panel’s opinion does or does not involve any error of law. If the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply with s 68(2) of the Act. …[29]
[29]Gruma Oceania (n 23) [47].
More recently, and in a passage presently emphasised by the plaintiff, in Ayana v Qantas Airways Ltd (‘Ayana’), Gorton J observed that –
(a)A tension can arise between the principle that a panel must set out its reasoning process in sufficient detail to allow the court to ascertain whether that process involved an error or law, and the principle that a panel is not obliged to give reasons to explain why it did not reach an opinion it did not form. The tension arises in a case like this, where the parties agree that the Panel was required to consider a possible diagnosis, but the Panel did not reach that diagnosis. The tension is resolved, in my view, by giving priority to the former principle. If a panel is required to consider a diagnosis, then in ordinary circumstances the reasons ought to reveal whether or not it considered that diagnosis, even if it did not ultimately form that diagnosis. Otherwise, the Court would be unable to detect and correct error.
(b)In ordinary circumstances, reasons will not be sufficient if they merely create in the Court a suspicion that a panel has had regard to a relevant matter. This is particularly important where the uncertainty derives from an absence of an express reference to a mandatory consideration in a set of reasons. The reasons themselves must be read, in their full context, with an open mind as to whether or not the decision-maker has erred, including with an open mind as to whether or not the decision-maker has made an obvious or surprising error. That is not to say that the reasons ought to be read with an eye to error; rather, they must be read on their merits. The Court may draw inferences, and in many cases this will include an inference that a panel has considered a matter to which it has not explicitly referred. But starting with a presumption that a panel would not ordinarily fail to consider a relevant matter, and then in effect relying on this to justify an inference that the matter was considered despite it not being explicitly referred to at the relevant part of the reasons, can be both circular and unfair. Of course, each case will turn on its own particular circumstances, and there may be cases where the error, if it occurred, would be so surprising and obvious that a conclusion may be reached that it did not occur. I do not think this is such a case.[30]
[30][2021] VSC 500, [18].
Notwithstanding the above, factual error in the reasoning of a panel may constitute jurisdictional error. In Chang v Neill, the Court of Appeal explained as follows –
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 and 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.[31]
[31]Chang (n 26) 200 [92].
E Ground 1 (& 4): aggravation of lumbar spondylosis
As I have noted, ground 1 is a complaint of specific jurisdictional error, although it largely came to be advanced as a contention that the relevant reasons of the panel are ‘not very well written’.[32]
[32]T7.
In substance, the plaintiff submitted that the panel failed to have regard to the opinions of Mr Akil, Mr Bittar and, perhaps also Mr Aliashkevich. It was contended that the panel failed to consider whether the plaintiff was continuing to suffer from ‘a work caused aggravation of lumbar spondylosis’.
In that regard, counsel submitted that the panel had erred in failing to have ‘picked up’ the word ‘aggravation’ in the relevant part of its reasons and had engaged in an ‘artificial … slicing apart of the lower part of the spine … [that] isn’t satisfactorily explained’.[33] Counsel pointed to the plaintiff’s continuing pain, treatment and medications.
[33]T18.
In its reasons, the panel correctly identified that –
(a) the plaintiff claimed to have suffered ‘a lumbar spine disc injury at the L4/5 and L5/S1 levels causing referred pain and symptoms into the legs’;[34]
[34]ACB57.
(b) one of the questions in dispute was ‘the nature of the Plaintiff’s physical condition affecting his spine’;[35]
[35]ACB58.
(c) the sixth defendant had submitted that the plaintiff suffered a ‘temporary aggravation’ of ‘a pre-existing constitutional degenerative spine condition’ which had ‘long since recovered’;[36] and
[36]Ibid.
(d) the plaintiff had submitted that there was ‘a range of medical opinions about the nature of the Plaintiff’s current physical … condition’; however, the ‘imaging reports … indicate the presence of lumbar spine pathology’ and –
it [was] highly unlikely that the Plaintiff’s injury was a temporary aggravation or exacerbation. [And] … the Plaintiff continues to suffer from severe levels of pain for which he takes significant doses of daily medication … .[37]
[37]ACB60-61.
It follows that the panel plainly understood that an aspect of the dispute concerned the relevance of the plaintiff’s ‘lumbar spine pathology’ to the incident and his persisting symptoms.
The passages of reasoning to which I have referred included detailed references to the opinions of several medical practitioners, including Mr Aliashkevich, Mr Akil and Mr Bittar. In particular, the panel observed that –
(a) Mr Aliashkevich had ‘concluded there was posterior bulging of the intervertebral disc segment at the L5/S1 level with a small posterior annular tear to which he attributed the Plaintiff’s pain …’;
(b) Mr Akil had ‘noted a disc bulge at the … L5/S1 level on imaging …; [and] diagnosed him as suffering from an aggravation of lumbar spondylosis …’; and
(c) Mr Bittar had diagnosed the plaintiff as ‘suffering from an aggravation of lumbar spondylosis causing lower back and leg pain’.[38]
[38]ACB59.
The panel’s reasons thereafter included further reference to the actions and opinions of various medical practitioners, including Mr Aliashkevich, Dr Gassin, Mr Akil and Mr Bittar. In particular, in connection with its ‘diagnostic conclusions regarding the physical injury’, as earlier noted, the panel stated –
In assessing Mr Torialay’s physical condition, the Panel took into account the clinical history provided by Mr Torialay and the Panel’s physical examination, in addition to the information provided by Mr Torialay in his sworn affidavit, dated 24 April 2020, and his supplementary affidavit, dated 5 January 2021. The Panel also considered the information provided in the referral material, including the reports of Mr Torialay’s treating practitioners: general practitioners, Dr Akhtar and Dr Mendis; treating pain physician, Dr Gassin; physiotherapists, Mr Hutchinson and Mr Moar, in addition to the reports of neurosurgeons, Mr Aliashkevic and Mr Akil. The Panel also noted the independent medical opinions of rehabilitation specialist, Dr Ali Kian Mehr; neurosurgeon Professor Richard Bittar; pain specialist, Dr Richard Sullivan; occupational physicians, Dr Kilner Brazier and Dr Joseph Slesenger, and general surgeon, Mr Barclay Reid.
[Emphases added].
It follows, in my view, there can be no substance in the contention that the panel failed to have regard to the opinions of Mr Akil and Mr Bittar (or Mr Aliashkevich).
That said, counsel for the plaintiff contended that the panel had insufficiently engaged with those opinions in its conclusions, as it had not there used the word ‘aggravation’ and, it was said, had insufficiently explained how it could have ‘artificially divided the disc prolapse[s] at L4/5 [and L5/S1] and somehow excised them from the degeneration’.[39] In that connection, it was essentially submitted that the panel had failed to give any ‘proper or real consideration’[40] to the medical opinions to the effect that aggravated lumbar spondylosis or degeneration stood as a complete explanation for the plaintiff’s current presentation.
[39]T9.
[40]T17.
It was also submitted that the panel had misconstrued the opinions of Mr Aliashkevich and Mr Akil when noting –
the reports of neurosurgeons Mr Aliashkevic (dated 12 April 2016 and 7 October 2016) and Mr Akil (dated 30 March 2020 and 4 November 2020) who shared the opinion that surgical intervention for Mr Torialay’s symptoms were not appropriate, consistent with the mild nature of the lumbar spine injury suffered and the natural history of the clinical symptoms associated with disc prolapses to settle spontaneously with time. …[41]
[41]ACB67.
I have earlier extracted the entirety of the panel’s conclusions concerning physical injury. Those conclusions followed upon the panel’s reasons concerning its physical examination of the plaintiff and the imaging reports.
Among other things, those passages demonstrate that the panel –
(a) observed inconsistencies in the course of its examination of the plaintiff (which might be thought to point against a completely mechanical explanation for his presentation);
(b) noted the disc protrusions evident on imaging, but also considered the CT scan to have showed pre-existing degenerative change at the facet joints;
(c) as I have noted, considered the opinions of various medical practitioners, including Mr Aliashkevich, Mr Akil and Mr Bittar;
(d) considered the ‘natural history of symptomatic vertebral disc prolapse’ – involving resolution of symptoms, albeit that imaging appearances may not change significantly;
(e) considered that natural history to be relevant to its consideration of the ‘small acute disc prolapses’ shown on imaging – which it considered to be ‘mild in nature’, and thereafter concluded that any symptoms related to that pathology would have resolved within a 12 to 24 month period;
(f) considered the plaintiff’s increasing symptoms to be inconsistent with ‘the absence of significant examination findings’ and ‘the natural history of symptomatic lumbar disc prolapse’;
(g) concluded that the ‘lumbosacral spinal injury’ suffered on 10 February 2016 was ‘now resolved’;
(h) considered the plaintiff’s increasing symptoms to be related to the pre-existing degenerative changes that ‘would be expected to deteriorate over time, unrelated to his lumbar spine injury of February 2016’; and
(i) considered that the plaintiff’s neurological propensity to centralised pain ‘might be amplifying his lower back symptoms secondary to his pre-existing constitutional degenerative lower back condition’.
In my view, those reasons amply addressed the issue identified by the panel at the outset, namely ‘the nature of the Plaintiff’s physical condition affecting his spine’.
In addressing that issue, I do not accept that the panel failed to give ‘proper or real consideration’ to the medical opinions to the effect that aggravation of degenerative changes in the plaintiff’s lumbar spine from the incident stood as a complete explanation for his current presentation. After all, it referred directly to those opinions and said that it either noted or took account of them.
In that sense, nothing turns upon whether or not the word ‘aggravation’ appears in the passages to which I have referred: the panel directly took account of the medical opinions which expressed that explanation for the plaintiff’s current presentation.
Nor do I accept that the panel failed to give ‘sufficient’ explanation for the different view that it formed. The central features of the panel’s reasoning are evident in that to which I have already referred; particularly, the panel’s observations on physical examination, the radiological features including the ‘mild’ nature of the disc prolapses, the plaintiff’s complaints of increasing symptoms and the natural history of disc prolapses of the kind shown. In light of its explanation in respect of the features to which I have referred, the panel plainly could not accept any notion of continuing aggravated lumbar spondylosis or degeneration as a complete explanation for the plaintiff’s current presentation.
The plaintiff’s argument otherwise came to be based in the contention – essentially advanced from the Bar table – that the panel had ‘artificially divided the disc prolapse[s]’ and ‘somehow excised them from the degeneration’.[42]
[42]T9.
The word ‘artificial’ is tendentious and might be said to carry within it several unstated premises. In any event, it is presently sufficient to say that the panel distinguished between the disc prolapses and degeneration of the facet joints by reference to expertise and experience that it plainly had and expressed in its reasons.
I should add that I do not accept that the panel misconstrued the fact that neither Mr Akil nor Mr Aliashkevich recommended that the plaintiff undergo back surgery. The panel was not saying that Mr Akil and Mr Aliashkevich were of the view that the plaintiff’s back pathology was ‘mild’ or could be expected to settle.[43] It is clear enough that the panel was saying that the conservative approach of Mr Akil and Mr Aliashkevich was ‘consistent’ with the panel’s view that the pathology was mild and could be expected to settle.[44] I do not consider that to have been inapposite.
[43]See, ACB189-190 & 192-197.
[44]ACB67.
In my view, the reasoning of the panel is clear, sufficient and consistent with the guidance given by the High Court in Wingfoot. In particular –
(a) it expressed its own opinion on the medical question by applying its own medical experience and expertise;
(b) it expressed the path of reasoning by which it arrived at its opinion; and
(c) it was not required to opine on the correctness of other opinions concerning the medical question.
It follows that I reject the plaintiff’s various contentions to the effect that the panel’s reasons were insufficient, artificial or did not make sense.
I should add, for completeness, that the plaintiff sought to suggest that the present case was properly to be considered with reference to the reasoning of the Court of Appeal in Gruma Oceania and Gorton J in Ayana. It will be evident from the passages earlier extracted that in each of those cases, the reasons of the particular panel left the reviewing court in doubt as to whether the panel had performed its statutory function. As I have endeavoured to explain, the circumstances of the present case are quite different.
Ground 1 (and the associated arguments advanced in connection with ground 4) must be rejected.
F Ground 2 (& 4): ‘many years’ of ‘back pain’
Ground 2 is directed to the following paragraph within the panel’s conclusions concerning physical injury –
The Panel noted that Mr Torialay had suffered from chronic pain for many years including abdominal pain, headaches and back pain prior to the incident of 10 February 2016 for which no cause was identified.[45]
[45]ACB67.
In substance, counsel for the plaintiff submitted that the panel erred in concluding that the plaintiff had suffered from low back pain for many years prior to the incident. Counsel also submitted that the relevant evidence before the panel could ‘only be related to the upper back and the neck’.[46]
[46]T1-4.
Counsel for the sixth defendant pointed to various aspects of the material before the panel.
The following lengthy paragraph appears earlier in the panel’s reasons –
Mr Torialay suffered from unexplained pain in his stomach for many years, both before and after leaving Afghanistan and had sought investigation and treatment for the pain in Pakistan. The abdominal pain was severe, interfered with his sleep and kept him up at night. He sought further medical assistance for the pain in Melbourne in 2014 and was investigated with blood tests, an ultrasound and a gastroscopy but again, no cause for the pain was found. He was prescribed medication for the pain which helped at times. In September 2014, he attended his general practitioner, distressed and anxious about his stomach pain. He was also experiencing headaches for which a CT scan of his brain was performed and showed no evidence of intracranial pathology. Due to ongoing problems with abdominal pain and disturbed sleep he was prescribed the antidepressant medication, Pristiq, as well as the hypnotic medication, Restavit. He told the Panel he stopped the medication when he became aware that it was an antidepressant medication as he did not think he was depressed and did not find it helpful. In February 2015, he attended the Emergency Department at Casey Hospital with ongoing stomach pain, chest pain and difficulty sleeping but no cause for his symptoms was found: no further investigation or treatment was suggested and he was returned to the care of his general practitioner. In October 2015, still experiencing abdominal pain and not sleeping well, he was assessed by psychiatrist, Dr Jeffrey Horgan, who diagnosed Mr Torialay as suffering from depression and prescribed him antidepressant medication. Mr Torialay told the Panel that he thought he had been misled and thought he was consulting Dr Horgan because of his stomach issues; Mr Torialay was not able to understand that there was a link between his physical and psychological symptoms (although the Panel noted from Dr Horgan’s letter, included in the referral material, that a Pashtu interpreter was present during the consultation). In September 2015, Mr Torialay was continuing to complain of pain in the form of headaches and muscle aches in his back; his general practitioner, Dr Akhtar, referred him for physiotherapy under a Medicare funded plan, with some improvement in his symptoms.[47]
[Emphasis added]
[47]ACB62.
No part of that lengthy paragraph was said to be in error.
The later paragraph to which attention was presently directed was plainly intended to stand as a shorthand version of the earlier. In that regard, it is important to be mindful that such text is written by medical practitioners, not legislative draftspersons.
Viewed in proper context, the later paragraph does not say and was not intended to say that the plaintiff had suffered from ‘many years of back pain’. Indeed, it seems plain enough that the panel was there saying that the plaintiff ‘had suffered from chronic pain for many years’, one element of which was ‘back pain prior to the incident’. In respect of an incident in February 2016, that was a reference to the earlier noted back pain in September 2015.
As to evidence of prior low back pain, counsel for the sixth defendant highlighted the following material before the panel –
(a) the clinical notes of attendances by the plaintiff upon his general practitioner in September 2015 that included references to ‘back pain’ and ‘Lx’ (the latter signifying lumbar spine);[48]
(b) a history recorded by Dr Hogan, psychiatrist, in October 2015 (and therefore prior to the incident) of ‘a lot of pain through the whole body including the back and the back of the head’;[49] and
(c) the plaintiff’s own affidavit which referred to the attendances upon his general practitioner in September 2015, and subsequent physiotherapy, and deposed that ‘as a result my headaches and my back soreness improved’.[50]
[48]ACB335
[49]ACB219.
[50]ACB96.
All of that material was directly or indirectly referred to in the panel’s reasons.[51]
[51]See, ACB62 & 67.
In my view, there is nothing in the submission that there was no evidence before the panel of low back pain prior to the incident. Indeed, there is nothing in the submission that the panel erred in the paragraph to which attention was presently directed.
It follows that ground 2 must be rejected.
G Ground 3 (& 4): ‘neurological propensity to centralised pain’
Ground 3 is directed to the following paragraph at the end of the panel’s conclusions concerning physical injury –
The Panel considered Mr Torialay’s ongoing symptoms of back pain are instead related to his persisting mild pre-existing constitutional degenerative changes of the lumbar spine, as seen on the CT scan of 12 February 2016, which would be expected to gradually deteriorate over time, unrelated to his lumbar spine injury of February 2016. The Panel also noted Mr Torialay’s neurological propensity to centralised pain, previously expressed as abdominal pain, headache and backache and considered this might be amplifying his lower back symptoms secondary to his pre-existing constitutional degenerative lower back condition. The Panel also considered the psychosocial stressors in Mr Torialay’s life in recent years, including significant financial and familial pressures, might further aggravate centralised pain symptoms.[52]
[Emphases added]
[52]ACB68.
Counsel for the plaintiff submitted that the panel had erred in failing to deal with the ‘neurological propensity to centralised pain’ in terms of ‘compensability’. That is, it was submitted –
what the Panel was required to consider is why that didn’t mean that the … [neurological] process … has been accelerated, for example, or exacerbated, so otherwise, to use the lay term, triggered by the employment injury.[53]
[53]T21-22.
Prior to the paragraph to which attention was presently directed, the panel had, among other things, referred to –
(a) the plaintiff’s history of chronic pain;[54]
[54]ACB67.
(b) the imaging findings and the natural history of symptomatic vertebral disc prolapse which resolves over a period of one to two years;[55]
(c) its conclusion that the ‘lumbosacral injury’ in the incident had ‘now resolved’;[56] and
(d) its conclusion that the plaintiff did not ‘display symptoms of a chronic pain syndrome or inorganic symptoms of disease’ in respect of his lower back.[57]
[55]Ibid.
[56]ACB68.
[57]ACB68.
That is, in the opinion of the panel, the incident had provoked pathology in the plaintiff’s lumbar spine, the symptoms of which had since resolved, but that did not carry with it symptoms of ‘inorganic symptoms of disease’ in the lower back. In other words, injury in the incident did not ‘accelerate’, ‘exacerbate’ or ‘trigger’ any such ‘neurological propensity’.
That explains –
(a) the subsequent finding of the panel, at the commencement of the paragraph to which attention was presently directed, that the plaintiff’s symptoms were ‘instead related to his persisting mild pre-existing constitutional degenerative changes of the lumbar spine’; and
(b) the subsequent uses in that paragraph of the word ‘might’ in connection with any such ‘neurological propensity’ (highlighted above).
It follows that the panel was not expressing any opinion that ‘neurological propensity’ was, in fact, now playing a role. It was, in the circumstances, no more than musing. It was also strictly immaterial: the panel had already answered the relevant medical question.
It is presently sufficient to say that I do not accept that the panel erred in or in relation to the paragraph concerned. Ground 3 must be rejected.
H Ground 4: reasons
I have endeavoured to deal with the substance of the plaintiff’s contentions concerning the reasoning of the panel in the course of addressing the complaints of specific error. In that regard, it will be evident that I do not accept that the panel’s reasons are legally insufficient in any of the ways submitted in the course of argument.
More generally, however, I should say that the contention that the present panel’s reasons were legally insufficient is an ambitious one. That is not only because of the length, detail and apparent diligence involved in the preparation of those reasons, but because the panel went to the trouble of addressing several matters that are much more often overlooked or unexpressed in the reasoning of medical panels, particularly –
(a) the details in the submissions made to the panel by the plaintiff and sixth defendant respectively;[58] and
(b) the plaintiff’s presentation, the inconsistencies in the information provided by the plaintiff and, consequently, the panel’s preference for its examination as a basis for its opinion.[59]
[58]CB58-61.
[59]CB72-73.
The diligence of the panel in addressing often unexpressed aspects of that kind confirms, in my mind, the conclusion that, in all of the ways in which it was put, ground 4 must be rejected.
Conclusion
None of the plaintiff’s grounds are made out. It follows that the proceeding must be dismissed.
0
6
0