Victorian Workcover Authority v Putrus
[2023] VSCA 28
•23 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0018 |
| VICTORIAN WORKCOVER AUTHORITY | Applicant |
| v | |
| ROBERT PUTRUS AND ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
---
| JUDGES: | BEACH, KENNEDY JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2023 |
| DATE OF JUDGMENT: | 23 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 28 |
| JUDGMENT APPEALED FROM: | [2021] VSC 853 (Quigley J) |
---
ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Whether medical panel erred in failing to take into account relevant consideration – Whether medical panel failed to intellectually engage with worker’s alternative claim – Whether medical panel fell into reviewable error by failing to provide adequate reasons – Primary judge quashed medical panel’s opinion for failing to take into account relevant consideration, failing to intellectually engage with part of worker’s claim and failing to provide adequate reasons – No error by primary judge – Application for leave to appeal refused.
Workplace Injury and Rehabilitation Act 2013, ss 274, 304, 325 and 335.
Wingfoot Australia Partners Pty Ltd (2013) 252 CLR 480, Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 and Sidiqi v Kotsios [2021] VSCA 187 referred to.
---
| Counsel | ||
Applicant: | Ms CM Harris KC with Ms M Norton | |
First Respondent: | Mr PA Czarnota and Mr CN Viney | |
Second to Fifth Respondents: | No appearance | |
| Solicitors | ||
| Applicant: | IDP Lawyers | |
| First Respondent: | My Lawyer | |
| Second to Fifth Respondents: | DLA Piper | |
BEACH JA
KENNEDY JA
J FORREST AJA:
Between 2010 and 2015, Robert Putrus was employed by a labour-hire company, BDS People Pty Ltd. In October 2013, he was assigned to work for Allied Mills in Tullamarine as a mixer/factory hand. His tasks were heavy and included picking up bags of flour off a pallet and pouring the contents into bowls, manoeuvring large mixing bowls on castors, loading and unloading trays of bread, pulling heavy pallets, and lifting, carrying and emptying bags of product each weighing approximately 25 kilograms.
On 26 October 2015, Mr Putrus submitted a WorkCover claim form in which he alleged that he had suffered a back injury on 9 September 2015. Mr Putrus attributed his injury to the heavy nature of his work. His claim for compensation was subsequently accepted and he was off work for a period before returning to work on alternative duties. Ultimately, his employment was terminated.
In August 2018, Mr Putrus commenced a proceeding in the County Court seeking leave to bring a claim for common law damages pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). He relied upon injuries to his back and lumbar spine, as well as psychological/psychiatric injuries in support of his application for leave to commence a common law proceeding.
On 7 February 2019, pursuant to s 274(1)(b) of the Act, a County Court judge referred 11 medical questions to a medical panel. Subsequently, a medical panel was convened comprising Dr David Fish, a specialist occupational and environmental physician and specialist public health physician; Dr Armin Drnda, a specialist neurosurgeon; Associate Professor Sharon Van Doornum, a specialist rheumatologist; and Dr Remy Glowinski, a specialist psychiatrist.
On 3 June 2019, the medical panel provided a certificate of its opinion and a written statement of its reasons. The panel found that Mr Putrus suffered from mild degenerative changes in his lumbosacral spine which did not result from and were not materially contributed to by any injury. It also found that he was not then suffering from any diagnosable psychological or psychiatric condition.
Following receipt of the medical panel’s opinion and reasons, Mr Putrus commenced a proceeding in the Trial Division pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 against the medical panel and the Victorian WorkCover Authority (‘VWA’), seeking relief in the nature of certiorari to quash the medical panel’s opinion. The trial of this proceeding was heard on 3 September 2021. On 22 December 2021, pursuant to reasons delivered on 17 December 2021,[1] the judge made orders quashing the opinion of the medical panel and remitting the medical questions to a differently constituted medical panel.
[1]Putrus v Fish [2021] VSC 853 (‘Reasons’).
While the judge did not find any error in the panel’s consideration and reasoning in respect of Mr Putrus’s claim to have suffered an organic back injury, she held that the medical panel did not properly engage with the psychological/psychiatric condition alleged by Mr Putrus and failed to set out an appropriate path of reasoning supporting the panel’s opinion that Mr Putrus did not suffer from a diagnosable psychological or psychiatric condition.[2]
[2]Ibid [16], [91].
The VWA now seeks leave to appeal from the judge’s orders. Its proposed grounds of appeal are as follows:
1.The primary judge erred by concluding, at [16] of the Reasons for Judgment, that the Panel had not ‘intellectually engaged with the claim for psychiatric injury, being chronic pain syndrome’.
2.The primary judge erred by concluding, at Reasons [16], that the Panel fell into reviewable error in ‘failing to set out a path of reasoning which supported its opinion’, such that the Court could not be satisfied that it had ‘intellectually engaged with the claim for psychiatric injury, being chronic pain syndrome’.
3.The primary judge erred by concluding, at Reasons [91], that the panel had failed to take into account a relevant consideration, being a chronic pain condition of psychiatric origin.
The County Court proceeding
In the County Court proceeding, in support of his application for leave to commence a common law proceeding, Mr Putrus relies upon both para (a) (‘permanent serious impairment or loss of a body function’) and para (c) (‘permanent severe mental or permanent severe behavioural disturbance or disorder’) of the definition of ‘serious injury’ in s 325(1) of the Act. In a draft statement of claim pleading the cause of action he wishes to pursue in his proposed common law proceeding, Mr Putrus particularises the injuries he alleges as follows:
(a)Production, aggravation, acceleration, deterioration, exacerbation of pre-existing degenerative changes in spine;
(b)Spinal facet arthrosis;
(c)Injury to lumbar spine;
(d)Injury to spine;
(e)Central sensitisation;
(f)Chronic pain disorder and/or syndrome;
(g)Pain syndrome;
(h)Anxiety and depression.
In a draft defence prepared by the VWA’s solicitors, on behalf of BDS People Pty Ltd, BDS People Pty Ltd admit that Mr Putrus suffered injury, but ‘does not admit the extent of the alleged injury, loss and damage [set out in Mr Putrus’s draft statement of claim]’.
The referral of the medical questions
The first of the medical questions referred to the medical panel required the panel to state the ‘nature of the medical condition’ of Mr Putrus’s back, lumbar spine and mind. The second medical question asked whether any medical condition of Mr Putrus’s back, lumbar spine or mind continued to result from, or was materially contributed to by, any injury suffered by Mr Putrus in his employment with BDS People Pty Ltd.
As part of the referral to the medical panel, a large number of documents were provided to the panel by the parties. The documents were listed in schedules of attachments, headed ‘Enclosure A’ and ‘Enclosure B’. The documents included WorkCover claim forms and reports; medical reports; radiology reports; rehabilitation and vocational material; clinical records; court documents, including the draft statement of claim; a joint statement of agreed facts and issues prepared by the parties’ solicitors;[3] and separate submissions prepared by each party’s solicitors.
[3]As required by s 304(a) of the Act.
In the joint statement provided by the parties to the medical panel, the parties set out various facts which were agreed between them, including the facts that Mr Putrus’s duties at Allied Mills were ‘heavy’; and that he had been treated by various medical practitioners, with treatment including Mr Putrus’s participation in a pain management program in May and June 2016. Under the heading ‘Issues in dispute’, the parties identified six issues in dispute. These were said to include:
1. The nature of the Plaintiff’s medical condition of the back/lumbar spine.
2. The nature of any medical condition of the Plaintiff’s mind.
3.Whether any medical condition of the Plaintiff’s back/lumbar spine or mind as assessed by the Medical Panel continues to result from or be materially contributed to by injury suffered in employment with BDS People Pty Ltd.
The opinion and reasons of the medical panel
The 11 medical questions, and the panel’s answer to each question, were set out in the panel’s certificate of opinion. For present purposes only the answers to questions 1 and 2 are relevant. In relation to those two questions, the certificate of opinion provided:
Question 1 What is the nature of the medical condition of the Plaintiff’s:
(a) back:
(b) lumbar spine; and
(c) mind?
Answer: The Panel is of the opinion that:-
(a)–(b) Mr Putrus has radiological evidence of mild degenerative changes in his lumbosacral spine, but no current clinical evidence of injury following resolution of a soft tissue injury of the back and/or lumbar spine.
(c) Mr Putrus is not currently suffering from a diagnosable psychological or psychiatric condition.
Question 2 Does any medical condition of the Plaintiff’s:
(a) back;
(b) lumbar spine; and
(c) mind -
as identified by the Medical Panel continue to result from or be materially contributed to by injury suffered in employment with the BDS People Pty Ltd (‘the employer’)?
Answer: (a)–(b) The Panel is of the opinion that the mild degenerative changes in the lumbosacral spine do not result from and are not materially contributed to by an injury.
(c) Not applicable.
The panel commenced its reasons by noting that Mr Putrus was examined jointly by Dr Fish, Dr Drnda and Associate Professor Van Doornum on 3 April 2019; and separately by Dr Glowinski, on 20 May 2019. The panel stated that it formed its opinion having had regard to the documents and information referred to in Enclosures A and B; the history provided by Mr Putrus; and the examination findings elicited by the panel at the two examinations conducted by the panel members.
The panel noted the facts which were agreed between the parties and the issues in dispute identified in the parties’ joint statement. The panel also noted the opinion of a medical panel that had previously examined Mr Putrus in 2017, observing that the earlier panel had found that, while there was some evidence of mild degenerative changes, Mr Putrus suffered from ‘complaints or symptoms with no signs or other evidence of clinical injury from a mild resolving soft tissue injury of the lower back’.
Broadly speaking, the medical panel’s reasons were then divided into sections which dealt with physical matters, before turning to psychological/psychiatric matters. The panel set out the history given by Mr Putrus of his back injury and treatment, followed by details of the panel’s physical examination and clinical observations, before setting out its analysis and conclusions in respect of physical matters. It then set out Mr Putrus’s psychiatric history, provided details of its mental state examination of Mr Putrus, and then set out its analysis and conclusions with respect to psychiatric matters. The panel’s reasons concluded with a statement that the panel considered that its reasons adequately addressed the submissions of both Mr Putrus and the VWA.
In relation to Mr Putrus’s back injury, the panel noted Mr Putrus’s history of the gradual onset of lower back pain in mid-2015, which became worse in September 2015; the back pain had continued; and Mr Putrus still experienced pain which was getting worse. Under the heading, ‘Diagnosis’, the panel said:
The Panel noted that Mr Putrus was a 26 year old otherwise fit and well young man with complaints of persistent lumbar and leg pain with referred symptoms throughout the thoracic and cervical spines. The Panel noted that medical imaging and clinical examination had failed to identify any ongoing significant injury and that apart from mild degenerative changes on the MRI scan there were no clinical signs or other evidence of injury to account for the ongoing complaints and symptoms affecting the back, legs, and upper spine. There is also no clinical evidence of any radiculopathy or spinal cord involvement.
Under the heading ‘Other Reports’, the panel dealt with a number of reports and opinions. In respect of one report and opinion about which the parties made specific submissions at first instance and again in this Court, the panel said:
The Panel also noted the report of medico-legal examiner Mr Arshad Barmare (orthopaedic surgeon) dated 11 December 2018 in which he was of the opinion that the injuries consisted of:
1.Chronic lumbar spondylosis L4/L5 and L5/S1 which is on a background of minor disc prolapse bulges at L4/L5 and L5/S1 …
2. Facet arthropathy L4/L5 and L5/S1.
3. Trapezius fasciitis because of chronic neck pain.
4. Chronic regional pain syndrome with chronic pain in the neck and lower back.
The Panel disagreed with these diagnoses, based on its own assessment and examination findings.
In dealing with Mr Putrus’s claimed psychiatric injuries, under the heading, ‘Current Psychiatric Symptoms’, the panel again noted Mr Putrus’s complaints of pain. Under the heading, ‘Mental State Examination’, the panel said:
Mr Putrus presented as a well-groomed young man with styled hair and trimmed beard.
• He occasionally stretched his back and neck but otherwise didn’t look in overt discomfort. He appeared calm and collected during the interview and his speech and behaviour was expressive and spontaneous.
• He maintained good eye contact and an adequate rapport developed for the purposes of the assessment.
• He displayed a reactive and euthymic affect without abnormality. There was very little to suggest symptoms of trauma or psychosis.
• He spoke about some depressive themes and anxious cognitions, but only when prompted and not with much conviction.
• He described pre-occupation with pain and associated functional limitations.
Under the heading, ‘Psychiatric Diagnosis’, the panel said:
The Panel noted the psychology entries contained within the Dorset Rehabilitation Centre Team assessment. It appears from this document that Mr Putrus had some emotional symptoms with lowered mood, reduced engagement, reduced pleasure in interests and housework since the back injury. Some sleep and appetite disturbance were noted along with a sense of hopelessness but no suicidal ideation. The psychologist wrote that there was a lack of energy and fear for the future but that outcome measures indicated that emotional distress was in the normal range.
The outpatient rehabilitation discharge summary indicated that Mr Putrus exhibited themes of mistrust and avoidance in group therapies. The Panel was unable to find other mention of significant psychological symptoms or treatment in the referral documents. It is noted that Mr Putrus apparently denied symptoms of anxiety or depression according to the report of independent medical examiner Vaidya Bala dated 15 January 2016.
Based on Mr Putrus’ presentation, history and collateral information, the Panel concluded that Mr Putrus is not currently suffering from a diagnosable psychological or psychiatric condition.
The judge’s reasons
The critical conclusions of her Honour, which are identified in the VWA’s proposed grounds of appeal, were set out at Reasons [16] and [91]. At Reasons [16], the judge said:
For the reasons that follow, I have formed the view that the Panel fell into reviewable error in failing to set out a path of reasoning which supported its opinion. While the reasoning in respect of the organic or physical medical opinion was on its face appropriate, that was only part of the task and the Panel did not properly engage with potential psychiatric diagnosis in circumstances where it accepted [Mr Putrus’s] ongoing complaints of pain. Additionally, in part because the Panel failed to set out its path of reasoning overall, the Court cannot be satisfied that it intellectually engaged with the claim for psychiatric injury, being chronic pain syndrome.
At Reasons [91], her Honour said:
The reasoning in respect of the organic opinion was not in error. However, that was only part of the task and in respect of the combination of the conditions on which it was required to provide its opinion and reasons, the Panel did not properly engage with the psychiatric (mind) condition of the plaintiff. Having accepted the plaintiff continued to have pain, which was not able to be explained by an organic reason, in circumstances where a psychological or psychiatric condition was raised it was incumbent on the Panel to consider the ongoing complaints of pain, and fully engage in the potential diagnosis of chronic pain syndrome. As they did not, there is failure to take into account a relevant consideration which it was required to do and the decision of the Panel cannot stand.
In relation to the adequacy of the panel’s reasons, the judge said:
It is difficult to glean the rationale for the rejection of any ongoing medical or psychiatric diagnosis in the face of [the panel’s] apparent acceptance of the ongoing pain symptoms experienced by [Mr Putrus].[4]
[4]Reasons, [64].
The judge noted that medical question 1 required the panel to state the nature of the medical condition of Mr Putrus’s back, lumbar spine and mind. Her Honour concluded that the panel ‘acquitted that task in respect of the organic reasons for [Mr Putrus’s] pain’.[5] Her Honour then said:
However, the Panel had to deal with both the organic and the psychiatric condition of the plaintiff. Having found no organic reason for the pain, and I accept there is sufficient reasoning and logical flow to support this finding and diagnosis, they also had to deal with the plaintiff’s psychiatric condition. The apparent acceptance of the complaints of symptoms and pain squarely raises this issue.
It appears from the reasoning provided that there was no finding of a diagnosable psychiatric condition which would account for the ongoing pain. That said, the Panel does not expressly engage with the potential for the plaintiff to be diagnosed with chronic pain syndrome.
I do not consider that the Reasons provided have dealt with the connection between the ongoing pain and any psychiatric condition.[6]
[5]Ibid [67].
[6]Ibid [68]–[70].
In dealing with whether the panel had failed to take into account a relevant consideration, the judge said that while Mr Putrus’s medical condition appeared to be primarily based on an organic reason for his ongoing symptoms of pain, Mr Putrus’s claim also included a claim that his ongoing pain might be psychiatrically based.[7] The judge said that she did not consider that the rejection by the panel of Dr Barmare’s opinion that Mr Putrus suffered from chronic regional pain syndrome was sufficient to show that the panel engaged with the question of whether Mr Putrus suffered from a psychiatrically caused chronic regional pain syndrome.[8] Her Honour then said that, having regard to the material before the panel, ‘including all of the medical reports and the draft statement of claim and their examination and acceptance of [Mr Putrus’s] ongoing complaint of symptoms’, a psychiatrically-based chronic pain syndrome was a relevant consideration which the panel was bound to take into account.[9]
[7]Ibid [81]–[82].
[8]Ibid [83]–[85].
[9]Ibid [86]–[88].
The parties’ submissions
Under proposed grounds 1 and 3, the VWA contended that a psychiatrically-based chronic pain syndrome was not a relevant consideration requiring active intellectual consideration by the panel. Under proposed ground 2, the VWA contended that, in all the circumstances of the case, the panel’s reasons were not inadequate. In support of these contentions, the VWA submitted that it was important to note the following features of the material that was before the panel:
(1)Mr Putrus’s serious injury application specified (in addition to his claimed back/spinal injury) a ‘psychological and/or psychiatric injury’. That injury of the mind was not further described or identified.
(2)While the draft statement of claim pleaded ‘chronic pain disorder and/or syndrome’ and ‘pain syndrome’, it did not specifically identify a psychiatrically-based pain syndrome. As the VWA put it, ‘the only particular of injury that was obviously psychological or psychiatric in nature’ was ‘anxiety and depression’.
(3)Mr Putrus’s submissions to the panel explained his pain by reference to ‘an identifiable organic condition’, which resulted in him losing sleep and having feelings of hopelessness regarding his work potential in the future due to his injury. There was no submission to the effect that Mr Putrus’s pain was the result of a psychiatrically-based pain condition.
(4)Before the panel, Mr Putrus did not rely on any report from a psychologist or psychiatrist. While the reports of the ‘physical doctors’ included some references to chronic pain and the possibility of a chronic pain condition of undefined origin, none of the medical reports diagnosed a psychiatrically-based pain syndrome.
The VWA submitted that, having regard to the features of the material before the medical panel identified above, this Court should conclude that, while the panel was bound to consider whether Mr Putrus was suffering from a psychological condition of the kind raised by the material — one in the nature of depression and anxiety, with symptoms such as stress, sleep difficulties and feelings of hopelessness — it was not bound to give active intellectual consideration to whether he had some unidentified chronic pain syndrome of psychiatric origin.
The VWA also submitted that it was ‘plain from the reasons that the panel did not form the opinion that Mr Putrus had a psychiatrically-based pain condition’. It then submitted, consistently with authority, that a medical panel is not required to explain why it did not form an opinion that it did not reach.[10]
[10]See, for example, Dundar v Bas [2019] VSCA 315, [46]–[51].
In response to the VWA’s submissions, Mr Putrus supported the reasoning of the judge. He submitted that a psychiatric injury giving rise to the pain from which he suffers was ‘squarely raised’ and was one of the ‘fundamental issues raised’ by the facts of the case.[11] In making that submission, Mr Putrus relied upon the text of the medical questions, the injuries pleaded in the draft statement of claim, the joint statement of issues, a number of statements made in medical reports provided to the panel and the submissions made to the panel.
[11]See Chang v Neill (2019) 62 VR 174; [2019] VSCA 151, [74]–[100] (‘Chang’); Sidiqi v Kotsios [2021] VSCA 187, [61] (‘Sidiqi’).
As to the inadequacy of the panel’s reasons, Mr Putrus submitted that this inadequacy was caused by the medical panel’s failure to take into account, and intellectually engage with, the question of whether his pain was psychiatrically-based.
The medical panel material in more detail
Having regard to the submissions of the parties in this Court, it is necessary to look more closely at the material provided by the parties to the medical panel. Specifically, it is necessary to refer further to some of the medical reports and the submissions made by the parties to the medical panel.
As the VWA accepted, a number of the medical reports provided to the panel included references to chronic pain (as a symptom) and the possibility of a chronic pain condition of undefined origin. Specifically:
•In a report dated 12 July 2016, Dr Bala, a consultant physician in rehabilitation medicine with a subspecialty interest in chronic pain management, diagnosed Mr Putrus as suffering from ‘chronic, persistent lower back pain syndrome’, and of having symptoms which were ‘secondary to multiple factors involving physical, functional and psychosocial issues, which are the components of chronic pain syndrome’.
•In his report dated 11 December 2018, Mr Barmare, an orthopaedic surgeon, diagnosed Mr Putrus as suffering from ‘chronic regional pain syndrome with chronic pain in the neck and lower back’.
•In a report dated 13 October 2016, Dr Blombery, a consultant physician specialising in vascular disease, expressed the opinion that there was ‘a component of pain sensitisation phenomenon present where there is sensitisation of pain nerve pathways’. Dr Blombery noted that Mr Putrus had already had treatment with multidisciplinary therapy at the Dorset Rehabilitation Centre, which he said was ‘quite appropriate’. He also said that Mr Putrus’s current symptoms or medical condition was an ‘aggravation of the previously asymptomatic degenerative changes augmented by a pain syndrome’.[12]
•In his 4 April 2018 report, Associate Professor Buzzard, a surgeon, expressed the opinion that there was no significant physical basis for Mr Putrus’s presentation, saying: ‘To that extent there is a functional overlay’.
•In a report dated 14 March 2017, Mr Gale, a general and trauma surgeon, expressed the opinion that Mr Putrus had probably suffered a musculo-ligamentous strain injury, and that his condition was ‘probably compromised to some degree by significant underlying psycho-social factors’. Mr Gale said that Mr Putrus’s continued complaints of discomfort ‘could be a component of a secondary pain state of some type’.
[12]Emphasis added.
In his submissions to the medical panel, Mr Putrus contended that, after examining him and considering the submissions made to it, the panel should conclude that:
[Mr Putrus] continues to suffer the effects of either an unresolved soft tissue injury to his lumbar spine, or an aggravation of pre-existing degenerative changes, together with a psychological component to his claim.[13]
[13]Emphasis added.
In its submissions to the medical panel, under the heading ‘Plaintiff’s Medical Condition: Psychiatric’, the VWA noted that Mr Putrus did not describe any psychiatric symptoms in an affidavit sworn by him on 6 April 2018 or a statement made by him and attached to an earlier affidavit. The VWA also submitted that there was no medical evidence of Mr Putrus suffering from any form of psychiatric condition. The VWA then noted Associate Professor Buzzard’s reference to ‘functional overlay’, and Dr Bala’s reference to chronic lower back pain which was disproportionate to Mr Putrus’s spinal anatomy and initial soft tissue injury. The VWA submitted that these views were not the views of a psychiatrist and merely reflected the inability of Associate Professor Buzzard and Dr Bala to explain Mr Putrus’s complaints on a physical or organic basis.
The VWA submitted to the medical panel that, apart from the pain management program with Dorset Rehabilitation Centre, no treating practitioner had seen fit to prescribe Mr Putrus with psychotropic medication (apart from a ‘single (short) prescription of Alepam’, which was prescribed in August 2016), or to refer Mr Putrus for treatment from a psychologist or psychiatrist. The VWA submitted that, given the matters to which it had referred, it should be concluded that Mr Putrus did not suffer from any form of psychiatric condition.
Under the heading, ‘Nature of the Plaintiff’s Medical Condition: Chronic Pain Disorder/Syndrome, Central Sensitisation or Pain Syndrome’, the VWA referred to its submissions already made, saying that it was ‘deal[ing] with these further alleged injuries appearing in the draft statement of claim as a matter of completeness’. The VWA then said:
Put simply, the defendant [VWA] submits there is no evidence of the plaintiff suffering such conditions apart from the now dated report of Dr Peter Blombery, [about which the VWA then made further submissions] …
…
Given the above matters, [the VWA] submits [Mr Putrus] does not suffer from central sensitisation, chronic pain disorder and/or syndrome or a pain syndrome’.
Consideration
It is well-settled that a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider, and that consideration could have materially affected its decision,[14] or if it fails to give genuine consideration to fundamental issues raised by the facts of the case.[15] Thus a medical panel examining a worker in accordance with the provisions of the Act is required to consider:
•the medical questions referred to the panel;
•the submissions of the parties (if provided);
•the document provided by the parties, required by s 304(a) of the Act, specifying the alleged injury and the agreed facts and disputed facts;
•the documents relating to the medical questions, provided by the parties pursuant to s 304(b) of the Act; and
•matters arising out of the medical panel’s examination of the worker (including the worker’s history, evidence as to any investigations, tests, studies or the like, and the panel’s findings on examination).
[14]In the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).
[15]Sidiqi [2021] VSCA 187, [61]; Swidryk Investments Pty Ltd v El-Najjar [2023] VSCA 11, [46] (‘Swidryk’).
There can be no doubt that Mr Putrus’s primary claim before the medical panel was that he suffered from an organic back or spinal injury. That said, it is also plain that he alleged, in the alternative, that there was a psychological component to his claim. Moreover, contrary to the submissions of the VWA, Mr Putrus’s claim in respect of psychological or psychiatric injury was not limited merely to anxiety and depression.
In his draft statement of claim, Mr Putrus claimed to have suffered a ‘chronic pain disorder and/or syndrome’ and a ‘pain syndrome’. As this Court has observed before, the use of the terms ‘chronic pain syndrome’ and ‘pain syndrome’ are sometimes used by medical practitioners in different senses.[16] In context, the use of one of these terms or an equivalent might convey a physically-based pain condition. In a different context, what might be conveyed is an entirely psychiatrically or psychologically-based condition. Perhaps more often than not, what is conveyed is a condition that is both physically and psychiatrically-based. Construing the draft statement of claim on its own, the references to ‘chronic pain disorder and/or syndrome’ and ‘pain syndrome’, while capable of encompassing both physically and psychiatrically-based conditions, more naturally convey a claim for conditions which are primarily of psychological origin. That said, the determination of what issues were properly raised for the medical panel’s consideration is not to be made by the mere examination of only one of the documents provided to the panel: all of the material provided to the panel must be examined appropriately, assuming it is relevant to the issues to be considered by the panel.
[16]See for example Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, 651–2 [3]–[7]; Sidiqi [2021] VSCA 187, [24].
While the medical material provided to the panel came from sources other than qualified psychologists and psychiatrists, that fact alone did not mean that such material was incapable of giving rise to, or did not raise, the issue of whether Mr Putrus’s claimed pain syndromes were, in whole or in part, psychiatrically based. Moreover, in determining whether an issue is one that a medical panel is required to consider and engage with, one does not merely look to see whether an opinion on that issue has been expressed by a medical practitioner with relevant expertise. Indeed, as this Court’s decision in Baumgartner v Victorian WorkCover Authority[17] shows, medical questions may be referred to medical panels in the absence of any medical material expressing a particular opinion on the medical question so referred.[18]
[17](2022) 66 VR 489 (‘Baumgartner’).
[18]Ibid 504 [60], 505-6 [66], 507-8 [74]–[75].
More specifically, one does not look simply at the medical material provided to the panel to determine what issues are raised for the panel’s consideration. As stated above, a medical panel must consider the medical questions, the documents provided to it and the matters that arise out of its examination. In order to determine what issues arise, a medical panel considers the questions referred to it and the documents provided, as set out at para [37] above. In many cases consideration of those matters will reveal the issues required to be determined by the medical panel. In some cases, however, matters will arise during the course of the medical panel’s examination which may require the medical panel to consider an additional issue or issues.[19]
[19]But in such a case, if a ‘new’ diagnosis is made by the panel, then it will be necessary for the panel to give notice to the parties before determining the answers to the questions. See Wagstaff Cranbourne Pty Ltd v Hayshimi [2020] VSCA 33, [40].
In the course of argument in this Court, the parties referred to a number of decisions in which, on the facts in those cases, the particular court did (or did not) consider that a particular issue arose and required the particular medical panel to intellectually engage with that issue.[20] We did not find the references to the facts and results of these decisions particularly helpful. The fact that another court, in a case involving different circumstances, may or may not have concluded, on different material, that a psychiatrically based pain condition was a relevant matter, required to be considered by a different medical panel after examining a different worker, does not assist in the resolution of the present case. As in all cases, it is an examination of all of the facts and circumstances of the individual case which reveals whether a particular matter must be considered and intellectually engaged with by the relevant medical panel.
[20]Specifically, argument was addressed to the facts of, and conclusions expressed in, Khan v Romas [2017] VSC 731; Voss v Downes-Brydon [2020] VSC 815; and Ayana v Qantas Airways Ltd [2021] VSC 500.
Having conducted such an examination in the present case, we agree with the judge that, on a fair reading of all of the material provided to the medical panel, the issue of whether Mr Putrus suffered a psychiatrically-based chronic pain syndrome was squarely raised. It was raised by the draft statement of claim; the parties’ submissions to the medical panel (albeit more squarely in the VWA’s submissions than in Mr Putrus’s submissions); the medical material provided to the panel; the medical questions, and in particular that part of question 2 which asked whether ‘any medical condition of [Mr Putrus’s] … mind … as identified by the medical panel continue[d] to result from or be materially contributed to by injury suffered in employment …’;[21] and in the parties’ joint statement, where one of the issues in dispute was described as being, [t]he nature of any medical condition of [Mr Putrus’s] mind’.[22] Having regard to the terms of the draft statement of claim, the parties’ submissions to the panel and the medical material provided to the panel, the word ‘any’ as used in question 2 and in the joint statement required the medical panel to consider, not merely Mr Putrus’s claimed anxiety and depression, but also whether there was a psychiatric basis for any ‘chronic pain disorder and/or syndrome’, and any ‘pain syndrome’.
[21]Emphasis added.
[22]Emphasis added.
In oral argument, the VWA submitted that the panel’s reference to the opinion of Mr Barmare in its reasons, and its rejection of his opinion that Mr Putrus suffered from chronic regional pain syndrome, precluded a finding that the panel had failed to consider a psychiatrically-based chronic pain syndrome. We reject that submission. A fair reading of the panel’s reasons (and not an ‘overzealous examination’ of them, with ‘an eye keenly attuned to error’)[23] shows that, to the extent the panel considered the question of a chronic regional pain syndrome, its consideration was limited to a physically-based disorder. Moreover, the separate part of the panel’s reasons which dealt with psychiatric disorders contained no reference to the orthopaedic opinion of Mr Barmare, or indeed any chronic pain syndrome. In context, the rejection of Mr Barmare’s opinion involved no more than a rejection of the proposition that Mr Putrus suffered from a physically-based chronic pain syndrome. Alternatively, if the panel’s statement that it rejected Mr Barmare’s opinion that Mr Putrus suffered from a chronic pain syndrome included a rejection of the proposition that Mr Putrus suffered from a psychiatrically-based condition, then no reasons were given for that conclusion. In the absence of any reasoning relating to that conclusion, we would conclude that the medical panel had not intellectually engaged with the issue.
[23]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; [1996] HCA 6.
The VWA’s submission that it was plain from the reasons that the panel did not form the opinion that Mr Putrus had a psychiatrically-based chronic pain condition, while literally correct, is not of assistance in the resolution of this proceeding. Plainly, from the absence of any statement in the panel’s reasons that it concluded that Mr Putrus had a psychiatrically-based chronic pain condition, it might be inferred that the panel formed no such opinion; and, as has been said before, a medical panel is not obliged to give reasons for an opinion which it did not form.[24] However, the question in the present case does not concern the failure to give reasons for an opinion which the panel did not form after having considered all of the matters it was required to take into account. The question is whether the panel actually considered a matter which it was required to take into account — namely, a chronic pain condition of psychiatric origin.[25]
[24]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 502 [56].
[25]See proposed grounds of appeal 1 and 3.
The panel’s reasons do not refer to, and there is no discussion in respect of, any psychiatrically-based pain syndrome from which Mr Putrus might have been suffering. In circumstances where the panel was required to intellectually engage with that part of Mr Putrus’s claim, the only conclusion that can be reached is that the panel failed to consider this mandatory relevant consideration. It follows that the judge was correct when she determined that the panel had erred in not taking into account the issue of a psychiatrically-based chronic pain condition; and erred in not intellectually engaging with Mr Putrus’s claim for psychiatric injury, being a chronic pain syndrome. The panel having failed to consider a psychiatrically-based pain condition, unsurprisingly, failed to provide any reasons for rejecting the existence of such a condition. The judge concluded that, in not providing reasons in respect of a relevant issue, the panel erred. For the reasons given above, the VWA’s complaints with respect to this conclusion must be rejected.
What we have said so far deals with the issues raised before the panel by the medical questions and documentary material provided to the panel by the parties. But the panel was also required to take into account matters arising out of its own examination of Mr Putrus. Mr Putrus’s history to the panel was one of continuing pain in his lower back. There is nothing in the panel’s reasons which suggests that the panel thought that Mr Putrus’s ongoing pain was anything other than genuine. Indeed, before the primary judge, counsel for the VWA made a lengthy submission to the effect that it was clear that the panel accepted Mr Putrus’s complaints of pain as genuine. A fair reading of the panel’s reasons supports that conclusion.
There is no express statement in the panel’s reasons as to the possible cause of Mr Putrus’s back pain. The question of whether there was a psychiatric cause for it is not addressed at all in the panel’s reasons. All that is said is that the panel ‘noted that medical imaging and clinical examination had failed to identify any ongoing significant injury and that apart from mild degenerative changes on the MRI scan there were no clinical signs or other evidence of injury to account for the ongoing complaints …’. While, as a matter of logic, one might speculate that the ‘mild degenerative changes’ referred to were capable of giving rise to pain of the level complained about by Mr Putrus, the lack of any discussion of this matter in the panel’s reasons do not permit this conclusion to be drawn. It is at least as likely that the panel concluded there was no physical explanation for Mr Putrus’s pain, leaving the only viable explanation for his accepted pain being one of psychological origin.
In any event, the pain which the medical panel found Mr Putrus to be suffering from on examination was an additional matter which, when taken into account with the terms of the medical questions and material provided to the panel, required the panel to deal, and intellectually engage, with so as to determine whether the pain, that the panel accepted Mr Putrus was suffering from, was psychiatrically-based.
Conclusion
Leave to appeal should be refused.
---
SCHEDULE OF PARTIES
VICTORIAN WORKCOVER AUTHORITY Applicant and MR ROBERT PUTRUS First respondent DR DAVID FISH Second respondent DR ARMIN DRNDA Third Respondent A/PROF SHARON VAN DOORNUM Fourth Respondent DR REMY GLOWINSKI Fifth Respondent
10
15
0