Victorian WorkCover Authority v Kalenjuk
[2017] VSCA 17
•16 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0112
| VICTORIAN WORKCOVER AUTHORITY | Applicant |
| v | |
| OLGA KALENJUK | Respondent |
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| JUDGES: | SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2017 |
| DATE OF JUDGMENT: | 16 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 17 |
| JUDGMENT APPEALED FROM: | [2016] VCC 948 (Judge Bowman) |
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ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury – Serious injury application – Elbow injury – Epicondylitis – Whether worker’s epicondylitis had recovered – Whether worker’s injury continued to have a substantial organic basis – Disentangling physical consequences from psychological consequences – Whether judge was correct in concluding that there was ongoing epicondylitis or organic elbow injury – No error in judge’s conclusion – Reasons for judgment – Whether reasons adequate – No inadequacy in judge’s reasons – Appeal dismissed – Accident Compensation Act 1985 s 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Gorton QC with Mr M J Hooper | Wisewould Mahony |
| For the Respondent | Mr J H Mighell QC with Mr S J Carson | Maurice Blackburn |
SANTAMARIA JA
BEACH JA:
In May 2009, Olga Kalenjuk, the respondent, commenced employment with Enterprise Contractor Services (Vic) Pty Ltd. Her employment involved performing cleaning work at the Ford Motor Company. In 2010, while vacuuming in the course of her employment, the respondent developed right elbow pain. In March 2011, the respondent ceased work. After initial examinations and investigations, the respondent was found to be suffering from epicondylitis affecting her right elbow.
In June 2015, the respondent commenced a proceeding in the County Court against the Victorian WorkCover Authority, the applicant, seeking leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages. The respondent relied upon paragraphs (a) and (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act.[1] The injury relied upon by the respondent for the purpose of paragraph (a) of the definition was the injury to her right elbow. So far as paragraph (c) of the definition was concerned, the respondent alleged that she had suffered an exacerbation of a pre-existing and previously well-controlled bipolar disorder arising out of her employment.
[1]The expression ‘serious injury’ is defined in paragraph (a) of its definition to mean ‘permanent serious impairment of a body function’, and in paragraph (c) to mean ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.
The respondent’s application was heard in the County Court by Judge Bowman over two days in June 2016. The respondent was the only witness to give oral evidence and to be cross-examined. The parties otherwise tendered medical reports and notes from clinical files. The respondent only sought leave to commence a proceeding claiming ‘pain and suffering damages’.[2] She did not seek leave to claim pecuniary loss damages.
[2]As that expression is defined in s 134AB(37) of the Act.
On the hearing of the application, there was no issue that the respondent had initially suffered a work-related right elbow epicondylitis. The applicant, however contended that the respondent had recovered from her epicondylitis. In so contending, the applicant relied particularly on the examination findings and opinions of two medico-legal specialists retained by it, Dr Karna and Mr Ireland. On the other hand, the respondent submitted to the judge that he should accept the opinions of Dr Hodgson (the respondent’s general practitioner) and two other medico-legal specialists, Mr Myers and Associate Professor Buzzard, that the respondent was continuing to suffer from the epicondylitis with which she was originally diagnosed.
On 8 July 2016, Judge Bowman delivered reasons for judgment in which his Honour upheld the respondent’s application in respect of paragraph (a) of the definition of serious injury.[3] The judge rejected the claim made under paragraph (c). After delivering judgment, the judge made an order granting the respondent leave to commence a proceeding for pain and suffering damages.
[3]Kalenjuk v Victorian WorkCover Authority [2016] VCC 948 (‘Reasons’).
The applicant seeks leave to appeal against the judge’s order. The applicant’s proposed grounds of appeal are as follows:
1.On a proper consideration of the evidence and in particular the post-operative specialist examinations and opinions, the learned trial judge should have found that the respondent had not established that she had an ongoing epicondylitis or organic elbow injury, and the learned trial judge erred by concluding to the contrary.
2.The learned trial judge erred in accepting the opinion of the respondent’s general practitioner Dr Hodgson over the opinions of the specialists Dr Karna and Mr Ireland, who had assessed and examined the respondent in the years since her operation, by:
a.failing to give any or sufficient weight to the fact that the most recent examinations of the specialists Dr Karna, Mr Ireland and Mr Myers had each revealed an absence of evidence of any ongoing organic injury and were inconsistent with ongoing epicondylitis; and
b.failing to give any or sufficient weight to the fact that there was no evidence from Dr Hodgson that he had conducted a formal examination in the years prior to the application or that otherwise responded to the opinions of Dr Karna and Mr Ireland; and
c.placing excessive weight on the fact that Dr Hodgson was a thorough and careful general practitioner who had repeated his opinion.
3.The learned trial judge erred by failing to give proper reasons for preferring the opinion of the respondent’s general practitioner Dr Hodgson over the opinions of the specialists Dr Karna and Mr Ireland, in particular by failing to give any reasons for rejecting the opinions of those specialists, and by failing to explain how he accommodated the fact that those specialists (and Mr Myers) had conducted examinations with a view to identifying whether there was ongoing epicondylitis, which examinations had revealed that there were no signs of ongoing organic injury and were inconsistent with ongoing epicondylitis, and that there was no evidence from Dr Hodgson that he performed a formal examination over that time, or that he had expertise in the area sufficient to prefer his opinion over the specialists.
The issues in this Court
The applicant does not challenge the judge’s finding that ‘the respondent was a witness of truth, or that the respondent’s elbow condition, if an ongoing organic injury were found, would be a serious injury within the meaning of paragraph (a) of the definition [of serious injury]’.[4] The significance of the issue of whether the respondent’s ongoing elbow injury is a physical injury or, on the other hand, is a psychological or psychiatric consequence of a work-related injury is to be found in s 134AB(38)(h) of the Act, which requires the psychological or psychiatric consequences of a physical injury ‘to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise’.[5]
[4]See ‘Agreed Summary for the Court of Appeal’, 12 October 2016, [15].
[5]As to the need for an applicant for leave to commence a proceeding in reliance upon paragraph (a) of the definition of serious injury to establish a ‘substantial organic basis’ for the consequence relied upon, or to ‘disentangle’ the physical from the psychological consequences, see Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 610–11 [19]–[22] (Ashley JA), 636 [170] (Neave JA), 636 [173] (Pagone AJA); Meadows v Lichmore Pty Ltd [2013] VSCA 201, [18]–[22] (Maxwell ACJ, Robson and Dixon AJJA agreeing); Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199, [56]–[61] (Redlich and Beach JJA and Cavanough AJA); VWA v Nguyen [2016] VSCA 284, [22]–[26] (Osborn, Priest and Beach JJA).
The applicant contends that the judge was wrong when he concluded that the respondent had an ongoing epicondylitis or organic elbow injury (ground 1) and asserts that the judge made a number of specific errors in his treatment and acceptance or rejection of various parts of the medical evidence (ground 2). Additionally, the applicant contends that the judge failed to give proper reasons for preferring the respondent’s general practitioner’s evidence (Dr Hodgson) over that of two specialists retained by it (Dr Karna and Mr Ireland) (ground 3). As part of its argument under ground 3, the applicant makes complaint about a lack of reference to specific matters that it was said should have been addressed in the judge’s reasons.
The respondent’s position in this Court was that the judge engaged in a careful analysis of all of the evidence and came to the correct conclusion that the applicant’s elbow injury was an organic physical injury. The respondent submitted that there was no error in the judge’s reasoning process and that there was a ‘clear and cogent path of reasoning by the judge for his finding that there was an ongoing organic injury’.
Relevant background facts
The respondent was born on 28 June 1971. As we have already said, she commenced employment with Enterprise Contractor Services (Vic) Pty Ltd in May 2009. She developed right elbow pain while vacuuming in 2010, and ceased work in March 2011. She has not worked since March 2011.
Dr Hodgson diagnosed the respondent as suffering from epicondylitis and, on 30 March 2011, sought authorisation for an MRI to be performed. On 24 June 2011, an MRI was performed. The MRI was reported as showing organic changes consistent with Dr Hodgson’s diagnosis of epicondylitis. Dr Hodgson referred the respondent to an orthopaedic surgeon, Mr Doig. A second MRI was performed on 13 March 2012. This MRI also revealed organic changes. Mr Doig saw the respondent on 5 June 2012. Mr Doig agreed with the diagnosis, saying that the respondent had both lateral and medial epicondylitis.
Mr Doig arranged for an injection of local anaesthetic and steroid into the respondent’s right elbow. On 26 September 2012, on the referral of Mr Doig, the respondent underwent an autologous blood injection. On 8 January 2013, Mr Doig operated on the respondent’s right elbow. Mr Doig’s operating note makes reference to ‘a lot of synovium that was being caught between the radial head and the capitellum’.
Mr Doig last saw the respondent on 27 August 2013. It was his opinion at that time that the respondent was ‘slowly and steadily improving’, and that it ‘may take nine to 12 months’ for the respondent to get the full benefit of the surgery.
The relevant medical evidence
The relevant medical evidence concerning the respondent’s right elbow injury came from medical records, reports and letters written by the doctors to which we have already referred (Dr Hodgson, Mr Doig, Associate Professor Buzzard, Mr Myers, Dr Karna and Mr Ireland) and two other medical specialists, Mr Troy and Mr Francis.
In a series of letters and reports written between February 2012 and April 2016, Dr Hodgson expressed the opinion that the respondent’s diagnosis was epicondylitis. In a report dated 26 April 2016, Dr Hodgson said the diagnosis was ‘chronic lateral epicondylitis’. In the same report, Dr Hodgson said that ‘little has really changed’ since a report he had written in November 2013. Dr Hodgson said that he was not recommending any further active treatment for the respondent’s elbow ‘as none has been effective in the past’.
On 25 July 2012, the respondent was examined, on behalf of the applicant, by Mr Troy. This examination was some four and a half months before the surgery performed by Mr Doig. Mr Troy recorded his examination findings as follows:
Examination indicated that she had full flexion and extension of the elbow, as she did pronation and supination without symptoms. There is no effusion into the joint and no crepitus. Medial and lateral epicondyles were non-tender and provocation tests for either medial or lateral epicondylitis produced no symptoms at all.
She had normal movements of the wrists and small [scil, all] joints of thumb and fingers of the dominant right upper limb.
She had no clinical symptoms or findings in the left upper limb.
She had normal reflexes, power, grip, tone and sensation. Her upper limbs were 43 cm right, 42 cm left, and right forearm 38 cm and left 35 cm.
In response to a question about the respondent’s ‘accepted physical condition’, Mr Troy said:
She continues to have pain in the past [sic] in the right lateral elbow. Clinical condition on this occasion states she has recovered.
Mr Troy assessed the respondent as having a zero per cent whole person impairment.
The respondent was examined by Mr Francis, on behalf of the applicant, on 8 August 2011, 14 February 2012, 6 December 2012 and 25 July 2013. While Mr Francis’s first three examinations were performed before Mr Doig’s operation, the fourth examination was performed a little over six months post-operatively. It is not necessary to refer to all three examinations conducted by Mr Francis before Mr Doig operated on the respondent. Of relevance, however, is Mr Francis’s third examination. Mr Francis described this examination (performed a month before surgery):
Regarding her right elbow, the scene of most of her symptoms, she was totally non-tender over the medial and lateral condyles and adjacent musculature. There was no swelling and there was a full range of flexion and extension, and no pain on resisted flexion, extension, pronation or supination. Pronation/supination movements were fully performed freely.
Mr Francis then said that his examination on this occasion ‘now shows literally nothing abnormal in relation to [the respondent’s] right elbow’.
Mr Francis then expressed his opinion:
On present examination, I find there is no specific injury or physical condition involving this worker. There may be signs on the MRI and on the ultrasound of tears in the extensor origin from the right lateral epicondyle — but these are not associated with physical findings indicating any inability to use this elbow and forearm adequately, properly and seemingly, painlessly, on examination.
In his post-operative examination of the respondent (performed 25 July 2013), Mr Francis found:
Six months post-operatively [the respondent] now presents a fully mobile right elbow in regard to flexion and extension, with forearm pronation and supination movements virtually equivalent to the left arm.
Mr Francis described the respondent’s injury as a right elbow lateral epicondylitis which had been operated on and had ‘not exactly fully recovered’.
We have already described the treatment provided by Mr Doig. His diagnosis was epicondylitis, which ultimately led to the surgery he performed on 8 January 2013. When he last saw the respondent (27 August 2013), Mr Doig’s assessment of her was, in his words, ‘essentially unchanged’. In his report of 3 October 2013, Mr Doig said:
At this stage she is continuing to have physiotherapy. It is likely that she will continue to slowly and steadily improve. It may take nine to 12 months to get the full benefit from a tennis elbow release but once that time is up it is unlikely that she is going to improve significantly from there. …
The short term prognosis is moderate. She is slowly and steadily improving. The long-term prognosis is also moderate but it is likely that she is going to continue to have some ongoing ache and pain in the right elbow.
Associate Professor Buzzard saw the respondent, at the request of the applicant, on 12 November 2013. Associate Professor Buzzard conducted an examination and recorded the following findings:
Both arms were equally and normally developed by measurement. On the lateral aspect of the right elbow there was a 7 cm long x 2 millimetre wide reddish scar. There was some irregularity of the associated tissues at the proximal end of the scar. [The respondent] said that this was due to ‘bruising’. There was a full range of movement of all joints of the arms, forearms and hands.
There was some tenderness in the region of the right elbow lateral epicondyle. There was some pain in that area on forced dorsiflexion of the right wrist. I couldn’t find any evidence of any sensory disturbances.
Associate Professor Buzzard concluded that the respondent was suffering from right elbow lateral epicondylitis. He expressed his opinion:
I think that [the respondent] has suffered from right elbow lateral epicondylitis. That has not responded well to any of the treatments given. She still has right elbow lateral epicondylitis. I don’t think there is a place for any further operative treatment.
The remaining medical witnesses of significance are Mr Myers, Dr Karna and Mr Ireland. Mr Myers saw the respondent, at the request of her solicitors, on 7 March 2016. Mr Ireland saw the respondent, at the request of the applicant, on 8 April 2015 and 2 March 2016. Dr Karna saw the respondent, at the request of the applicant, on 8 April 2015 and 16 February 2016. In addition, both Mr Ireland and Dr Karna were subsequently provided with a copy of Mr Myers’ report following his examination.
Following his first examination of the respondent (8 April 2015), Mr Ireland recorded his examination findings as follows:
On examination of [the] right elbow there was a healed surgical scar on the lateral aspect measuring six cm that was non-tender, non-adherent and non-hypertrophic. There was a full range of pain-free motion of the shoulder, elbow, forearm and wrist.
There was poorly localised tenderness diffusely over the lateral aspect of the elbow but this was not localised to the common extensor origin. There was full extension without pain. The isometric extension stretch test for lateral epicondylitis was negative. The provocative tests for radial tunnel syndrome were negative and there was no tenderness or crepitus over the radial head and there was no tenderness over the posterior interosseous nerve or the radial nerve.
Maximum forearm circumference on the right was 35.6 cm compared with 34.9 cm on the left.
Grip strength was measured using the Jamar dynamometer and was recorded at 32, 36 and 34 kg on the right compared with 40, 41 and 40 kg on the left. Measurements were undertaken to ensure this represented maximum effort.
Mr Ireland then recorded his diagnosis as:
The diagnosis is chronic pain syndrome right elbow following surgical treatment for lateral epicondylitis. There is currently no longer any evidence of lateral epicondylitis at the right elbow.
Following his second examination (2 March 2016), Mr Ireland recorded his examination findings as follows:
On examination of the right elbow there was a healed surgical scar measuring five cm on the lateral aspect. This scar was non-tender, non-adherent and non-hypertrophic. The elbow was symmetrical when compared with the contralateral side. There was a full range of pain-free motion at the elbow, forearm and wrist.
There was diffuse mild tenderness around the lateral aspect of the elbow of equal severity within 4 cm of the lateral epicondyle. The provocative tests for lateral epicondylitis, medial epicondylitis, radial tunnel syndrome and ulnar tunnel syndrome were all negative. [The respondent] was able to extend the wrist with the elbow fully extended without pain.
Forearm circumference on the right was 36.0 cm compared with 35.2 on the left. When measuring grip strength using the Jamar dynamometer, the variation on the right exceeded 20% precluding the use of grip strength as a rateable impairment.
Mr Ireland then recorded his diagnosis:
The diagnosis is chronic pain syndrome. There is no longer any residual evidence of lateral epicondylitis at the right elbow.
Mr Ireland then said that he was ‘in total agreement with Dr Karna’s assessment and conclusions’ that were set out in a report of Dr Karna that had been provided, by the applicant’s solicitors, to Mr Ireland.
Dr Karna first examined the respondent on 8 April 2015.[6] He recorded his examination findings as follows:
[6]Although his report records that he ‘interviewed and examined Ashley McDonald’, there is no doubt that he in fact examined the respondent.
·Forearm and upper arm circumference on the right was equal to that on the left and there was a full range of motion in the fingers of the right hand, right wrist and right elbow and right shoulder.
·She had a six cm scar on the lateral aspect of the right elbow with no pathological swelling in the right upper limb compared to the left.
·Provocation manoeuvres for lateral epicondylitis and medial epicondylitis were negative and there were no features of ulnar neuritis or carpal tunnel syndrome on the right.
·The range of motion at the right elbow was entirely normal and there was no synovial swelling.
·She alleged tenderness on palpation of the right extensor muscle belly extending into the right elbow, but this was poorly localising and not reproducible.
·Grip strength was normal on the left and reduced by one-third on the right.
·There were no features of autonomic dysfunction.
·Neurological examination was normal.
·Shoulder examination was normal and her neck movements were full.
Dr Karna then expressed his opinion in the following terms:
This 43 year old, dominantly right-handed worker sustained a soft tissue injury to the right upper limb with the epicentre of discomfort being the right elbow and a provisional diagnosis of right lateral epicondylitis was made. This proved refractory to conservative therapy and she came to surgery, but she continues to complain of right extensor forearm and elbow pain predominantly with activity, but also at rest. There were no clinically reproducible objective physical findings to suggest ongoing structural musculoskeletal pathology in the right upper limb. By way of contrast she had non-localising, non-reproducible tenderness in the right upper limb, which did not conform to any specific structural musculoskeletal pathology or syndrome. There were no features of pathological swelling or of nerve entrapment. I would suggest that the underlying issue is that of a chronic pain syndrome and that it has been driven by psychogenic factors.
Following his second examination (16 February 2016), Dr Karna recorded his examination findings as follows:
·There was no reduction in forearm circumference on the right compared to the left and she had a 7–8 cm scar on the lateral aspect of the right elbow which was not particularly tender.
·She described tenderness in her right forearm generally not specifically the extensor compartment and provocation manoeuvres for right lateral epicondylitis were negative (no pain with wrist extension or finger extension felt at the lateral elbow).
·She had a full range of motion of the right wrist, elbow and shoulder.
·There were no features of autonomic dysfunction were (sic) noted.
·Reflexes were preserved and she had collapsing weakness in the right upper limb.
Dr Karna then expressed his opinion:
I can find no change in this worker. I accept the notion of an initial right lateral epicondylitis lesion that was treated conservatively and subsequently surgically and she now presents with non-localising symptoms which in my opinion cannot be attributed to any defined structural musculoskeletal injury work-related or otherwise. She clearly has become entrenched in an invalid role and looking at the situation in totality I cannot explain her upper limb symptoms on the basis of any injury.
Mr Myers examined the respondent on 7 March 2016. He recorded his examination findings:
There is a five cm scar at the back of the right elbow. There is a full range of movements of all joints of both upper extremities.
Mr Myers then proceeded to comment on a number of documents including the report of Associate Professor Buzzard of 12 November 2013. Mr Myers said of Associate Professor Buzzard’s opinion:
He agrees with a diagnosis of right elbow lateral epicondylitis that has not responded to any treatment provided with persisting pathology and no place for any further surgery. [I] am in agreement with these opinions. He indicates that she should not resume employment that would involve ‘rapid, repetitive dorsiflexion movements of the right wrist’ and I would suspect that there is no alternative employment option available that would not require such use of the right arm.
Mr Myers then expressed his opinion:
There may be a psychiatric component to her disability but I consider that most of [her] problems relating to the right elbow result from organic injury.
In the absence of any benefit from treatment it must be considered that disability from organic injury to the lateral and medial epicondyle of the right elbow is now permanent.
…
There is no reason to anticipate that there will be any future improvement of her condition with ongoing conservative treatment in relation to the organic injury of her right elbow.
The report of Dr Myers, dated 15 March 2016, was given to Mr Ireland and Dr Karna for comment. In respect of Dr Myers’ opinion, Mr Ireland said:
I am not sure on what basis Dr Myers makes his diagnosis of right lateral and medial epicondylitis, as he states that the examination findings were normal. I believe he must base this diagnosis on previous imaging studies and previous operation reports.
It was my opinion, based on the history and examination findings, that the previous lateral epicondylitis has now fully resolved and furthermore that the patient is left with a chronic learned pain pattern.
In respect of Dr Myers’ opinion, Dr Karna said:
The worker does have underlying psychogenic/psychiatric issues and I considered that the absence of clinical findings, the natural history of epicondylitis lesions (which is for improvement) and the absence of any features of disuse further noting a normal range of motion at the elbow, argued against there being any organic pathology. She presented with collapsing weakness which clearly is a non-anatomical finding and fundamentally I could find no evidence of any organic pathology and quite frankly upon reviewing Mr Myers’ report I cannot see on what basis he feels there is organic pathology, notwithstanding his conclusion to the contrary.
The judge’s reasons
The judge commenced his reasons for judgment with descriptions of the general and factual background of the matter. The judge described the medical evidence in considerable detail.[7]
[7]Reasons [12]–[41].
Having described the medical evidence, the judge said:
The diagnosis, which I accept, is that of Dr Hodgson and Associate Professor Myers. Dr Hodgson has seen the plaintiff on numerous occasions and continues to be her treating general practitioner. As was discussed during the conduct of the case, the impression given from his reports and clinical notes is that Dr Hodgson is a thorough and careful general practitioner. This is a proposition with which [counsel for the defendant] … agreed.
The diagnosis of Dr Hodgson throughout has, in essence, been one of chronic lateral epicondylitis. He has repeated that as recently as in his report of 26 April 2016. That is the last of some 11 reports and letters provided by Dr Hodgson since March 2011. Dr Hodgson has had regular contact with the plaintiff over the years and his quite detailed clinical notes were put before me. I accept his evidence and his diagnosis. I find that the plaintiff does have chronic lateral epicondylitis. I accept the observations that the limitations on the plaintiff’s lifestyle and quality of life have remained unchanged. She remains unable to work and, in the opinion of Dr Hodgson, will never be able to work again. I note that he is not recommending any further active treatment for her elbow, as none has been effective in the past.
The opinion of Dr Hodgson is largely consistent with the findings of Associate Professor Myers. He has also diagnosed lateral and medial epicondylitis of the right elbow. He believes that most of the plaintiff’s problems relating to the right elbow result from organic injury. He believes the disability to be permanent. I note that Associate Professor Myers agrees with the diagnosis of Associate Professor Buzzard, examining on behalf of the defendant, to the effect that the plaintiff has a diagnosis of right elbow lateral epicondylitis that has not responded to any treatment and that there is no place for any further surgery. Associate Professor Myers added the observation that he suspected that there was no alternative employment option available to the plaintiff that would fit in with the restrictions imposed by Associate Professor Buzzard.
It seems to me that the conclusions of Dr Hodgson and Associate Professor Myers are consistent with what was found on radiological investigation. Such findings are consistent with what was found by the operating surgeon, Mr Doig, and the fact that symptoms are ongoing is consistent with Mr Doig’s prediction that, after 9-12 months from the date of surgery, it would be unlikely if there was going to be any further significant improvement. The findings are also consistent, at least to some extent, with the observations of Associate Professor Buzzard.
Importantly, and as stated, the impression gained from material supplied by Dr Hodgson is that he is a careful practitioner who has seen the plaintiff a multitude of times over the years and who knows her problems well. She is a woman who has undergone a considerable amount of treatment, including surgery. I accept the opinion of Dr Hodgson and the diagnosis of chronic lateral epicondylitis, with there also being some medial epicondylitis, as noted by Associate Professor Myers.
There is no suggestion that the plaintiff previously suffered from an injury or condition of this kind. The injury is not in the nature of an aggravation. It arises from the plaintiff’s activities when performing the Ford work.
I also accept that the injury and its consequences are permanent within the meaning of the Act. Associate Professor Buzzard was prepared to make an assessment pursuant to the requirements of the AMA Guides, an ingredient of which is permanence. The most recent report of Dr Hodgson indicates that the plaintiff’s prognosis is that the limitations on her lifestyle and quality of life, and upon her employability, are not going to improve. In this regard, he does not believe that she will ever work again. Associate Professor Myers has stated that the disability from the organic injury to the lateral and medial epicondyle of the right elbow is permanent and that there is no reason to anticipate that there will be any future improvement. I accept the opinions of these examiners in relation to diagnosis and I also prefer it in relation to prognosis.
Further, it is now almost three and a half years since the surgery was performed. The operating surgeon, Mr Doig, expressed the view in his report of 3 October 2013 that there was unlikely to be any significant improvement after some 9-12 months from the performance of the surgery. I accept that there has been basically no improvement. I am satisfied that the consequences of injury are permanent within the meaning of the Act.[8]
[8]Ibid [43]–[50] (citation omitted).
Next, the judge dealt with the question of disentanglement.[9] His Honour said:
The question of ‘disentanglement’ is one that received considerable attention. For the purposes of s 134AB(38)(h), psychological and psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. As I have already observed, I am not of the view that the claim pursuant to paragraph (c) has been made out. Accordingly, consequences of a psychological or psychiatric nature are not to be taken into account in relation to the remaining claim pursuant to paragraph (a). Such consequences and other injuries, both physical and mental, remain relevant for the purposes of ‘disentanglement’ and identifying the consequences which flow from the physical injury.
In arriving at my conclusion, I shall leave to one side all consequences of a psychological or psychiatric nature that arise from the physical injury, the subject of this application. I shall also leave to one side all symptoms, restrictions and the like which are caused by or result from injuries or conditions, physical or mental, other than those which are consequential upon the workplace injury to the right elbow.
I note that the treating psychiatrist, Dr Assadi, expressed the view that the plaintiff’s mental illness was pre-existing and was not secondary to work-related issues. However, the work-related stressors, along with other unrelated factors, had precipitated the escalation of symptoms. Dr Assadi expressed this view in May 2013. He was then of the view that the plaintiff was currently experiencing an escalation of psychological symptoms, but he believed that she would recover if she received and followed appropriate treatment.
Dr Hodgson, in his more recent reports, has clearly delineated between the plaintiff’s elbow problems and her mental condition. He has expressed the opinion that the plaintiff’s pre-existing Bipolar Disorder has been aggravated by the right elbow problems, but has spelled out clearly the consequences and limitations created by such physical problems.[10]
[9]See n 5 above.
[10]Reasons [51]–[54].
Before coming to his final conclusions, the judge said:
As I indicated at the outset, I am not of the view that the plaintiff has discharged the burden of proof in relation to her application insofar as it relies upon paragraph (c) of the definition. … In those circumstances, as stated, I shall leave to one side all consequences of a psychological or psychiatric nature that arise from the physical injury to the right elbow. That is also consistent with the opinion of Dr Jager,[11] although I do not accept the opinions of Dr Karna and Mr Ireland in relation to the plaintiff’s physical injury. I have discussed this previously. I also note that, in the opinion of Associate Professor Myers, whose evidence I accept, most of the problems relating to the plaintiff’s right elbow result from an organic injury.[12]
[11]A forensic psychiatrist who examined the respondent on behalf of the applicant and diagnosed a bipolar disorder which predated the respondent’s elbow injury.
[12]Reasons [59].
Finally, the judge concluded:
In relation to the right elbow injury, the plaintiff is successful. She has discharged the burden of proof. I am satisfied that the consequences of her impairment or loss of a body function could, when the relevant comparison is made, be fairly described as being more than significant or marked, and as being at least very considerable. Leave is given to her to bring proceedings for pain and suffering damages.[13]
[13]Ibid [70].
The applicant’s submissions
The applicant submitted that this Court is in as a good a position as the judge at first instance to determine whether there is a physical basis for the respondent’s right elbow complaints. It was next submitted that this Court is required to conduct a real review of the evidence and form its own view as to whether the respondent had established ongoing epicondylitis in her right elbow. It was submitted that this Court was required ‘to give the judgment which in its opinion ought to have been given in the first instance’. In support of this submission, reliance was placed upon Fox v Percy,[14] Pledge v Roads and Traffic Authority,[15] CSR Limited v Della Maddalena[16] and Hunter v TAC.[17] While counsel for the respondent acknowledged what has also been said by the High Court in Robinson Helicopter Co Inc v McDermott,[18] it was submitted that Robinson Helicopter did not have application where, as was the case here, this Court was in as good a position as the judge at first instance to determine the fact in dispute.
[14](2003) 214 CLR 118 (‘Fox v Percy’).
[15](2004) 205 ALR 56 (‘Pledge’).
[16](2006) 224 ALR 1 (‘Della Maddalena’).
[17](2005) 43 MVR 130, 143.
[18](2016) 331 ALR 550, 558 [43] (‘Robinson Helicopter’).
The applicant submitted that while both Mr Doig and Associate Professor Buzzard identified findings on examination that suggested ongoing physical problems after the respondent’s surgery, ‘this was still in 2013’. In its submissions, the applicant pointed to the evidence of Dr Karna that the natural course of epicondylitis is to improve over time. The evidence of Dr Karna and Mr Ireland were said to be compelling against a finding of ongoing epicondylitis or ongoing organic elbow injury.
The applicant pointed to the absence of an up-to-date report from Mr Doig, and said that it was also significant that the respondent did not send the reports of Dr Karna and Mr Ireland to Mr Myers for his comment. It was submitted that the opinion of Dr Hodgson was, ‘on a proper analysis, more than outweighed by the opinions of Mr Ireland and Dr Karna’. Dr Hodgson’s opinion was described as ‘a mere assertion of ongoing epicondylitis, and was not supported by reference to any examination findings or other reasoning process’.
The applicant submitted that, in considering whether to accept the opinions of Dr Karna and Mr Ireland on the one hand, or Dr Hodgson and Mr Myers on the other hand, the judge:
(a) failed to confront the fact that Dr Karna and Mr Ireland had each performed examinations that were inconsistent with there being ongoing epicondylitis;
(b) failed to confront the fact that Mr Myers had not identified any findings on examination that, in the opinions of Dr Karna and Mr Ireland, justified his conclusion;
(c) failed to confront the fact that each of Dr Karna and Mr Ireland had expressly commented on and disagreed with Mr Myers’ opinion; and
(d) failed to confront the fact that Dr Karna and Mr Ireland both posited an alternative, non-organic, cause for the respondent having ongoing elbow complaints.
Finally, the applicant submitted that the judge did not give any reasons for rejecting the evidence of Dr Karna and Mr Ireland, even though that evidence was ‘the central plank of the applicant’s case’. Moreover, it was submitted that the particular circumstances of the case required the judge to explain either whether he did not accept the examination findings of Dr Karna and Mr Ireland, or whether he thought them to be less expert than Mr Myers, or whether he thought their opinions were flawed for some other reason.
The respondent’s submissions
The respondent submitted that the judge was correct when he concluded that there was an ongoing physical injury that affected the function of her right elbow. The respondent submitted that the judge was entitled to prefer the opinions of Dr Hodgson and Mr Myers, and that the opinions of Mr Ireland and Dr Karna did not compel a contrary conclusion. It was submitted that ‘the weight of the medical evidence was that the respondent continued to suffer ongoing lateral epicondylitis, notwithstanding a lack of examination findings’. Moreover, it was submitted that none of the errors contended for by the applicant were made out.
As to the applicant’s complaint about inadequacy of reasons, the respondent submitted that the judge’s reasons disclosed ‘a clear and cogent path of reasoning’ for the finding that there was an ongoing organic elbow injury, and nothing more was required.
Whether the judge’s decision was correct: grounds 1 and 2
This Court’s function when conducting an appeal by way of rehearing has been stated and restated many times before.[19] This Court must conduct a real review of the evidence and of the judge’s reasons to determine whether the judge has erred. If, upon such a review, paying due regard to the trial judge’s decision and any advantage he enjoyed as the trial judge, this Court concludes that the judge erred and that a different decision ought to have been given, then this Court is duty bound to give the decision that ought to have been given at first instance. In argument, the applicant submitted, and the respondent did not dispute, that the issue upon which this proceeding now turns was one that did not involve the judge being in any better position to decide than this Court.
[19]See for example Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 [14] (Gleeson CJ, Gaudron and Hayne JJ); Fox v Percy (2003) 214 CLR 118, 125–128 [23]–[29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter (2016) 331 ALR 550, 558 [43]; Box Hill Institute of TAFE v Johnson [2015] VSCA 245, [36]–[38] (Warren CJ, Hansen and Kaye JJA); Marriner v Australian Super Developments [2016] VSCA 141, [141] (Tate ACJ, Kyrou and Ferguson JJA).
Dr Hodgson saw the respondent many times over the years from when her injury first manifested itself until the hearing before the judge. Dr Hodgson’s evidence was clear that throughout this time the respondent suffered from right-sided epicondylitis. Moreover, his opinion was that, notwithstanding the various treatments that had been administered to the respondent (including the injections and surgery to which we have referred), the respondent’s condition, which had been shown to be organic at least up to the time of surgery, never recovered.
While the evidence of Dr Karna and Mr Ireland was important, and particularly so their opinions that there was no physical injury in 2015 and 2016, because physical examinations of the respondent, conducted by them during those years, were all negative, that evidence could never, on its own, have been finally determinative of the issue in dispute between the parties. It is to be remembered that the evidence before the judge also contained medical opinions of specialists who concluded that there were no physical signs, and there was no physical injury, in 2012 (before Mr Doig’s surgery). Indeed, the judge expressly summarised the evidence of Mr Francis and Mr Troy that was to this effect.[20] That evidence could properly have been regarded by the judge as having been shown to be wrong by the findings made at operation by Mr Doig in January 2013.
[20]Reasons [32], [34].
Further, the evidence of Mr Myers well supported the judge’s acceptance of Dr Hodgson and the ultimate conclusion arrived at by the judge. In addition to the actual opinion of Mr Myers being directly supportive of the respondent’s case, that evidence showed that a mere absence of physical signs was not necessarily determinative against a conclusion that a physically-based injury existed.
There was a choice to be made by the judge. On the one hand, there was a body of evidence that said that the respondent had a physical injury which was resistant to all forms of treatment administered, and this physical injury was one from which the respondent never recovered and continued to suffer. On the other hand, there was a body of evidence to the effect that when one conducted thorough and formal examinations of the respondent one could now find no physical signs of injury, and therefore the respondent’s complaints were no longer physically based.
In our view, there is much to be said for the judge’s conclusion that the injury has remained a physical injury. First, as the judge noted, the evidence of Dr Hodgson to that effect was most significant. He saw the respondent many times and concluded that what was undoubtedly a physical injury initially never recovered. Experience in the past has frequently shown that those medical practitioners who have opportunities to see or examine patients on multiple occasions over a period of years are better placed to provide a complete picture, and more accurate diagnosis, so far as their patient is concerned than specialists who may only examine a claimant on one or two occasions (no matter how eminent such specialists may be). Further, the weighing and assessing of evidence in proceedings of the present kind do not involve any mere addition of the number of opinions of the various specialists who have seen a particular person on one or two isolated occasions.
Secondly, the fact that eminent specialists were prepared to conclude, in 2012, that there was no physical injury, at a time when there was a physical problem that was later operated on, underscores the need for care to be taken before giving too much weight to the opinion of a medical specialist, or specialists, whose opinion is or are predicated upon an inability, or failure, to find particular or specified physical indicia.
Thirdly, the judge’s conclusion that the respondent’s injury remained a physical one was consistent with Mr Doig’s opinion, in late 2013, that the short-term and long term prognosis of the applicant’s epicondylitis was only ‘moderate’.
While the applicant asserts that the judge failed to confront the fact that Dr Karna and Mr Ireland had each performed examinations that were inconsistent with there being ongoing epicondylitis, it can just as easily be said that the applicant’s submissions do not confront the fact that other specialists (Mr Francis and Mr Troy) expressed the same conclusions on the same basis, but at a time when the respondent plainly suffered from epicondylitis (during 2012 and prior to the January 2013 surgery).
In addition to the applicant asserting that the judge failed to confront the fact of the opinions of Dr Karna and Mr Ireland, the applicant asserts that the judge failed to confront the fact that Mr Myers’ findings did not (according to Dr Karna and Mr Ireland) justify his conclusion; or the fact that each of Dr Karna and Mr Ireland had expressly disagreed with Mr Myers’ opinion; or the fact that both Dr Karna and Mr Ireland posited an alternative non-organic cause for the respondent’s complaints. There is no substance in these assertions. The judge’s detailed summary and description of the medical evidence, and in particular the evidence of Dr Karna and Mr Ireland,[21] discloses that his Honour was entirely cognisant of the relevance of the material upon which the applicant placed so much reliance, and the need for that material to be considered in his analysis of the issue in dispute.
[21]Reasons [36]–[41].
The applicant submitted that, while there was no dispute that Dr Hodgson was a ‘thorough and careful general practitioner’,[22] the judge ‘placed excessive weight’ on this fact. There is no substance in this complaint. The judge was entitled to refer to what was admitted to be the true position. Moreover, there is no suggestion that the judge merely reasoned from that description of Dr Hodgson to a conclusion in favour of the respondent.
[22]Ibid [43].
The various complaints of error made by the applicant, to which we have already referred, are merely arguments that support the conclusion for which the applicant contended, namely that the respondent’s injury was no longer physically based. The fact that the judge did not accept these arguments does not mean that his decision was in any way erroneous. While the matter was plainly capable of argument, having conducted the review of the evidence that we are required to conduct, we reject the applicant’s contention that a different conclusion, from that of the judge’s, should have been made.
Reasons: ground 3
The applicant’s complaint about the judge’s reasons is devoid of merit. This was a case that required the judge to choose between competing contentions. The acceptance of one contention mandated the rejection of the other.
The judge gave detailed and persuasive reasons for accepting Dr Hodgson’s opinion and the contention for which the respondent submitted (namely, that her injury was a physical one). These reasons necessarily involve the rejection of the conclusive nature of the opinions expressed by Mr Ireland and Dr Karna.
While it might be trite to say, it is to be remembered that the judge was required to give his reasons for his decision. That obligation did not require the judge to dilate on each of the topics about which the applicant now complains there was no express treatment.[23] The judge’s path of reasoning from the evidence to his ultimate conclusion was, with respect, plain. No more was required. Ground 3 must be rejected.
[23]Cf Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1610 [62] (Gleeson CJ, McHugh and Gummow JJ).
Conclusion
While we would grant leave to appeal in respect of grounds 1 and 2, the appeal must be dismissed.
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