Voss v Downes-Brydon
[2020] VSC 815
•3 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04344
| WENDY JOY VOSS | Plaintiff |
| v | |
| DR JENNY DOWNES-BRYDON | First Defendant |
| PROFESSOR PETER GATES | Second Defendant |
| ASSOCIATE PROFESSOR MIRON GOLDWASSER | Third Defendant |
| DR JULIAN FREIDIN | Fourth Defendant |
| ACE AIRPORT PARKING PTY LTD | Fifth Defendant |
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| JUDGE: | Ginnane J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 June 2020 |
| DATE OF JUDGMENT: | 3 December 2020 |
| CASE MAY BE CITED AS: | Voss v Downes-Brydon |
| MEDIUM NEUTRAL CITATION: | [2020] VSC 815 |
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JUDICIAL REVIEW – Medical Panel – Opinion as to worker’s medical condition – Whether Panel obliged to have regard to evidence of chronic pain condition – Relevant considerations – Findings of inconsistency in worker’s evidence – Whether Panel denied worker natural justice – Whether Panel’s determination was unreasonable, irrational or illogical – Whether reasons adequate – Workplace Injury Rehabilitation and Compensation Act 2013, s 284.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota | Shine Lawyers |
| For the Fifth Defendant | Mr J Gorton QC, with Ms F Spencer | Thomson Geer |
HIS HONOUR:
The plaintiff, Ms Wendy Voss seeks judicial review of the Opinion dated 3 August 2019 (‘Opinion’) of a Medical Panel constituted by four doctors, the first to fourth named defendants (‘Panel’), under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’).
Ms Voss seeks orders quashing the Panel’s Opinion and remitting the referred medical questions to a differently constituted Medical Panel to be reconsidered in accordance with law.
Background
Ms Voss was born in 1971 and has four adult children. She has had various working roles, including office administrative roles, cleaning, hospitality, and as a driving instructor. In June 2012, she commenced work as a car park attendant and cashier for the fifth defendant, Ace Airport Parking Pty Ltd at Tullamarine Airport (‘Ace’). I will refer to Ace as the defendant. She worked around 36 hours a week. Her duties included liaising with courtesy bus drivers, organising valet parking, coordinating the car wash services, assisting customers to enter and exit the car park via a boom gate, and working on a computer.[1]
[1]Transcript of Proceeding, Voss v Downes-Brydon (Supreme Court of Victoria, S ECI 2019 04344, Ginnane J, 17 June 2020) 9 (‘T’).
On 14 February 2013, Ms Voss was working at Ace’s premises when a security boom gate lowered down on her, striking her head and right shoulder. The Panel described her account of the incident as follows:
Ms Voss said that as she was running back to the office to answer the phone she passed through a boom gate which lowering and hit her on the head. She said it hit a hair clip which she was using to fasten her hair on the right side of her head and then scraped down the side of her face into the top of her right shoulder. She said that she was “knocked to crouching” before being pushed down by the gate (the incident).
She said that “this was not the first time someone was hit”.
She said that she was in “a lot of pain” and was bleeding from her head and the graze on her face. She said that initially she had pain on the top of her head and the right side of her head and pins and needles at the back of the neck to both sides of the head.[2]
[2]Court Book, Voss v Downes-Brydon (Supreme Court of Victoria, S ECI 2019 04344, Ginnane J, 17 June 2020) 22 (‘CB’).
She ceased work that day and went to see her general practitioner, Dr H Sood, who certified her unfit for work. She was away from work for about three weeks.
Ms Voss returned to work on 4 March 2013 and the following day completed a worker’s compensation form,[3] which was accepted by Ace’s authorised Workcover agent, Xchanging Integrated Services Victoria Pty Ltd (‘Agent’). This allowed her to receive weekly payments and medical and like expenses.
[3]CB 77-80.
By notice on 19 December 2018, Ms Voss’ entitlement to the medical and like expenses was withdrawn by the Agent as from 25 January 2019 on the grounds that her injuries had resolved and her employment no longer materially contributed to any incapacity for work. Soon after, on 24 January 2019, the Agent also rejected her request for the funding for a spinal cord stimulator due to the work related injury being resolved. Dr N Christelis, her treating pain specialist, had recommended that she use the spinal cord stimulator. Those two notices were disputed and were referred to the Accident Compensation Conciliation Service, which referred medical questions to the Panel.
The Panel’s Opinion
On 27 June 2019, members of the Panel, Dr J Downes-Brydon (General Practitioner and first defendant), Professor P Gates (neurologist and second defendant) and Associate Professor P Goldwasser (orthopaedic surgeon and third defendant), examined Ms Voss. Then, on 24 July 2019, she was examined by Dr J Freidin (psychiatrist and fourth defendant).
The Panel formed its Opinion having regard to: (1) the documents and information referred in Enclosures A and B including, inter alia, medical reports, notices and statements; and, (2) the history provided by Ms Voss and the Panel’s examination findings at the physical and psychiatric examinations referred to above.
On 3 August 2019, the Panel delivered its opinion and answers to the questions referred. Those questions and the Panel’s answers were:
Question 1What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed head and cervical spine injury.
Answer: The Panel is of the opinion that the worker is no longer suffering from any physical medical condition following a resolved soft tissue injury of the neck relevant to the claimed head and cervical spine injuries. The Panel is of the opinion that the worker is suffering a pre-existing adjustment disorder with mixed anxiety and depressed mood which was exacerbated by the injury of February 2013 and the exacerbation has not resolved.
Question 2What is the extent to which any medical condition of the worker
(a) resulted from or was materially contributed to by:
(b) results from or is materially contributed to by:
any and if so which of the claimed injuries?
Answer: In the Panel's opinion the worker's now resolved soft tissue injury of the neck:
(a) resulted from and was materially contributed to by; and
(b) no longer results from or is materially contributed to by:
the claimed head and cervical spine injuries.
In the Panel's opinion the worker's exacerbation of pre-existing chronic adjustment disorder with mixed anxiety and depressed mood resulted from and was and still is materially contributed to by the (now resolved) claimed physical injuries.
Question 3Do you consider the following medical, personal and household or occupational rehabilitation service(s) or proposed medical, personal and household or occupational rehabilitation service(s) appropriate for the worker's injury and or condition?
(i) Spinal-cord stimulator
Specify service duration and frequency if necessary.
Answer: As the Panel considers that the worker is no longer suffering from any physical medical condition relevant to any claimed head and cervical spine injuries, the Panel makes no findings regarding the provision of a spinal-cord stimulator for the worker.[4]
[4]CB 18-9.
The Panel noted that Ms Voss’ current symptoms and capacity were:
Ms Voss describes ongoing symptoms which include:
· Headaches;
· Constant neck pain and headaches which spread down the back of her right arm onto the proximal part of the extensor side of her forearm;
· Neck stiffness – she reported that warm weather helps this symptom to improve;
· Constant pins and needles at the base of her skull and midline of her neck;
· “My neck pain is the worst” – she rated it 4-5 out of 10 on a visual analogue scale where zero was no pain and 10 is severe pain;
· Intermittent tingling in the fingers of her right hand;
· She described no specific right shoulder symptoms or restriction.[5]
[5]CB 27.
Ms Voss told the Panel that none of the treatments she had received had provided her with any sustained improvement in her symptoms of central neck pain and persisting pins and needles and that her day-to-day functionality did not improve.[6] The Panel noted that the her medical imaging was unremarkable, normal and showed no significant pathology.[7]
[6]CB 25.
[7]CB 29.
The Panel’s physical diagnosis of Ms Voss was as follows:
Physical diagnosis
The Panel noted Ms Voss' description of the incident of injury which occurred on 14 February 2013, and the degree of inconsistency in her description of the event, the sequelae, her symptoms, her response to treatment, her symptoms and capacity over the weeks following the incident of injury and her ability to commence fulltime employment in alternative employment within weeks of the incident. The Panel noted that similar inconsistency is reflected in contemporaneous reports and subsequent medicolegal reports and documents over the following months and years. The Panel noted its findings on physical examination of Ms Voss which were not indicative of any ongoing physical medical condition of the head or neck. The Panel noted completely unremarkable medical imaging.
The Panel concluded that Ms Voss is no longer suffering from any physical medical condition following a resolved soft tissue injury of the neck relevant to the claimed head and cervical spine injuries.[8]
[8]CB 29.
The Panel’s psychiatric diagnosis of Ms Voss was:
Psychiatric diagnosis
The Panel considered that Ms Voss had a pre-existing adjustment disorder with mixed anxiety and depressed mood which was exacerbated by the injury of February 2013 and the exacerbation has not resolved. The Panel considers that her current chronic adjustment disorder was mixed anxiety and depressed mood is in part a consequence of her claimed head and cervical spine injury and in part a consequence of a range of personal issues including witnessing the assault on her partner in 2012 and conflictual relationships with her partners over the years.
In reaching its conclusion regarding her psychiatric diagnosis, the Panel considered reports received with referral material including that of independent medical examiner, psychiatrist, Dr Krapivensky 2 October 2018 noted a range of inconsistencies and psychological events impacting Ms Voss’ presentation including:
·Ms Voss’ statement in support of a WorkCover claim against Abey for bullying and harassment outlines lots of ill health and other family stressors, but no reference was made to neck or shoulder pain between May 2013 and April 2015;
·In an assessment report by independent medical examiner, psychiatrist, Dr Senadipathy dated 23 June 2015, who was assessing for the WorkCover claim against Abey, Dr Krapivensky notes that Dr Senadipathy makes no reference to any incident reported related to the boom gate or neck or shoulder pain;
·In March 2016 her partner Dean left her after years of severe psychiatric illness;
·Claimed prolonged periods of time off work lasting from weeks to years with claimed exacerbations of multiple sclerosis that has not actually been confirmed.
Dr Krapivensky felt unable to make a firm diagnosis due to the range of inconsistencies.
In a report dated 8 October 2018, Dr Nicole Phillips, psychiatrist, concluded that Ms Voss is suffering from a chronic adjustment disorder with depressed and anxious mood relevant in part to the claimed injuries.
Based on its assessment of Ms Voss, the Panel reached a different conclusion to that of Dr Krapivensky in respect of a diagnosable psychiatric condition relevant to the claimed injuries and formed a similar conclusion to that of Dr Phillips.[9]
[9]CB 31-2.
Medical evidence referred to in the Panel’s reasons
Under the heading ‘further independent assessments’, the Panel noted that:
Ms Voss lodged a serious injury claim in or about December 2017 which was rejected.
She was assessed by a number of independent medical examiners including:
·Mr Drnda, neurosurgeon, who noted in his report dated 5 September 2018 that she initially sustained a soft tissue injury to her head, face, right side of the neck and right shoulder but recovered from these and is affected by other medical conditions and a psychological condition. He opined “there is no impairment at this stage that has arisen out of or in the course of her employment with ACE”.
·Dr N Krapivensky, psychiatrist, who assessed her on 20 and 26 September 2018. In her report dated 2 October 2018, Dr Krapivensky was unable to make a firm psychiatric diagnosis due to “various inconsistencies in the history provided which were also evident in various documents”.[10]
[10]CB 26.
Under the heading ‘Psychiatric diagnosis’, the Panel stated:
The Panel considered that Ms Voss had a pre-existing adjustment disorder with mixed anxiety and depressed mood which was exacerbated by the injury of February 2013 and the exacerbation has not resolved. The Panel considers that her current chronic adjustment disorder with mixed anxiety and depressed mood is in part a consequence of her claimed head and cervical spine injury and in part a consequence of a range of personal issues including witnessing the assault on her partner in 2012 and conflictual relationships with her partners over the years.
In reaching its conclusion regarding her psychiatric diagnosis, the Panel considered reports received with referral material including that of independent medical examiner, psychiatrist, Dr Krapivensky 2 October 2018 noted a range of inconsistencies and psychosocial events impacting Ms Voss' presentation including:
· Ms Voss' Statement in support of a WorkCover claim against Abey for bullying and harassment outlines lots of ill health and other family stressors, but no reference was made to neck or shoulder pain between May 2013 and April 2015;
· In an assessment report by independent medical examiner, psychiatrist, Dr Senadipathy dated 23 June 2015, who was assessing for the WorkCover claim against Abey, Dr Krapivensky notes that Dr Senadipathy makes no reference to any incident reported related to the boom gait or neck or shoulder pain;
· In March 2016 her partner Dean left her after years of severe psychiatric illness;
· Claimed prolonged periods of time off work lasting from weeks to years with claimed exacerbations of multiple sclerosis that has not actually been confirmed.
Dr Krapivensky felt unable to make a firm diagnosis due to the range of inconsistencies.
In a report dated 8 October 2018, Dr Nicole Phillips, psychiatrist, concluded that Ms Voss is suffering from a chronic adjustment disorder with depressed and anxious mood relevant in part to the claimed injuries.
Based on its assessment of Ms Voss, the Panel reached a different conclusion to that of Dr Krapivensky in respect of a diagnosable psychiatric condition relevant to the claimed injuries and formed a similar conclusion to that of Dr Phillips.[11]
[11]CB 31-2.
Under the heading ‘Material contribution of the claimed injuries to her current physical medical condition’, the Panel stated:
The Panel considered a range of reports in determining the material contribution (if any) of the claimed injuries to her (now resolved) soft tissue injury of the head and neck region:
· Independent medical examiner, neurosurgeon, Mr Armin Drnda in his report dated 5 September 2018, notes that she suffers from other conditions including "multiple sclerosis-like condition" and depression, which can trigger neck pain among other problems. There is a factor of natural degeneration of the cervical spine which could also trigger symptoms. There was nothing documented in the MRI imaging reports that could indicate that injuries to her neck resulted in significant injury to the spine. "This was an injury to the soft tissues that over time would have resolved". He noted there was no record in her GP notes of neck symptoms between 19 March 2013 and 24 November 2014. He concluded that any soft tissue injury of her head and neck which may have occurred at the time of the claimed injuries resolved;
· Independent medical examiner, neurosurgeon, Mr Patrick Lo in his report dated 16 March 2016, ultimately concluded "the injury has ceased to be an active causal factor and is no longer a cause of incapacity". He concluded that "the worker's compensable injury has now resolved";
· Independent medical examiner, neurosurgeon, Dr David Wallace in his report dated 21 October 2018, noted "no neurological abnormality" on examination and noted that CT scan of her cervical spine dated 26 February 2013 which showed no abnormality and was identical to a previous scan on 12 October 2009;
· GP Dr Harish Sood in his report dated 9 April 2019 considers her condition is totally related to the claimed work incident.
Based on its assessment of Ms Voss, noting that there is now no physical medical condition of her head and neck, The Panel formed a similar view to Mr Drnda and Mr Lo and concluded that Ms Voss suffered a soft tissue injury of the head and neck which resulted from and was materially contributed to by the claimed physical injuries, but this was temporary in nature and has since resolved.
The Panel therefore concluded that Ms Voss is no longer suffering from any physical medical condition which results from or is materially contributed to by the claimed injury.[12]
[12]CB 32-3.
Ms Voss’ medical history
The Panel referred to Ms Voss’ medical history before and after the work accident. It included medical issues arising from a number of incidents. But the Panel does not appear to have treated any of the history, other than the work accident, as decisive in the answers to the questions that it gave in its Opinion.
Ms Voss has had a number of past medical issues which have, to some extent, been investigated and treated. They included the possible diagnosis of multiple sclerosis and what the Panel described as unspecified neurological disturbances which both predated and post-dated the work accident. In 2012 she was involved in a motor vehicle accident and her chest and right neck were a ‘bit sore’ afterwards. In November 2012 she sustained post-traumatic stress disorder after she witnessed her partner being assaulted.[13]
[13]CB 21.
At the same time as the work accident, her partner was an inpatient in rehabilitation in North Park Facility and required support and it was an emotionally challenging time for her. After the work accident she had right knee surgery in October 2013. She had a flare up of an unspecified neurological disturbance in January 2014. She had a horse riding accident in July 2014. Another flare up of unspecified neurological disturbance occurred in March 2015. She was involved in a domestic incident where she was physically assaulted in October 2015. She also has had treatments for her neck and shoulder pain, which are discussed later in this judgment.
Medical Evidence before the Panel
I will next briefly mention the substance of the medical reports and opinions that were provided to the Panel. I will consider some of them in greater detail when considering Ms Voss’ grounds for judicial review.
Dr Christelis, a pain specialist, who was Ms Voss’ treating specialist, recommended that she use a spinal cord stimulator and sought approval for its funding. He reported on 22 October 2018 that she had a downward spiral of chronic pain.[14] He described chronic pain as pathological pain or maladaptive response to tissue inflammation or neurological damage. On 9 December 2018, he reported that Ms Voss had ongoing pain that was severe in nature and prevented her from living a normal life. The pain was neuropathic in nature; there was a greater than 90 per cent likelihood of a neuropathic component of the pain.[15]
[14]CB 146.
[15]CB 83.
Mr P Lo, a consultant neurosurgeon, was an independent expert. In his report of 16 March 2016 he expressed the opinion that Ms Voss suffered from a complex pain syndrome with underlying degenerative spinal condition which may have been exacerbated by the workplace incident. She had additional issues relating to anxiety, depression and generalised pain.
Dr Sood is Ms Voss’ general practitioner and reported that she continued to have significant pain and impairment of her daily living activities due to the 2013 injury. She has persistent headaches and requires daily analgesia, muscle relaxants and anti-inflammatories to cope with the pain.
Mr A Drnda, a consultant neurosurgeon, prepared a report for defendant. He considered that Ms Voss’ soft tissue injuries to her face, head, neck and right shoulder had a clear connection to the work injury. He considered that they would have resolved over time and had been taken over by other conditions, but that Ms Voss had developed a chronic pain syndrome.[16]
[16]CB 101.
Mr D Wallace, a neurosurgeon, prepared a report for Ms Voss’ solicitors. He considered that she had no neurological abnormality.
Mr P Mutton, a consultant occupational physician prepared a report on behalf of the Agent. He considered that Ms Voss appeared to have sustained a significant injury while working at Ace that he thought was contributing to her current condition, that the injury had not resolved leading to the diagnosis of a pain syndrome.[17]
[17]CB 94.
Mr A Barmare, an orthopaedic surgeon, prepared a report on behalf of Ms Voss and said she suffered from chronic pain.[18] He said that there were signs of a chronic regional pain syndrome with chronic pain in the right upper limb.[19]
[18]CB 179.
[19]CB 135.
As mentioned, there was also evidence of Ms Voss’ psychological or psychiatric condition. Dr N Phillips, a psychiatrist, whose report was prepared on behalf of Ms Voss, diagnosed a chronic adjustment disorder with depression, anxiety and a chronic pain condition.[20] The Panel accepted that diagnosis. Dr Phillips also said that Ms Voss was suffering consequences as a result of the injuries, as she was living with a chronic pain condition and that there was a strong association between chronic pain and chronic mood disturbance.[21]
[20]CB 160, 162.
[21]CB 162.
In contrast, Dr N Krapivensky, a consultant psychiatrist and independent examiner, said that Ms Voss’ current diagnosis was not clear, as she was an unreliable historian, who possibly deliberately misrepresented her history.[22]
[22]CB 110.
Ms M Pangallo, a psychologist, prepared a report for Ms Voss’ solicitors. She said that when she attended two appointments in July and September 2018 that her pain was having a significant impact on her lifestyle and her ability to perform normal activities of daily living.[23] Ms Pangallo left the practice and did not consult with Ms Voss thereafter.
[23]CB 187.
There were also reports from occupational therapists.
Judicial review grounds
The grounds relied on by Ms Voss are as follows:
1.The Medical Panel committed an error of law in the face of the record and/or jurisdictional error, by:
a.failing to take into account relevant considerations, by failing to properly encourage with; and/or
b.failing to engage in an actual intellectual process with; and/or
c.failing to place any adequate weight on:
the medical materials before it, which indicated the Plaintiff was suffering from a chronic pain condition which was materially contributed to by a compensable injury to the cervical spine.
2.Further or alternatively, the Medical Panel erred in failing to accord procedural fairness or natural justice – in that it failed to provide the Plaintiff with an opportunity to comment before rendering its Opinion, such Opinion failing to identify any chronic pain condition which was materially contributed to by a compensable injury to the cervical spine, against a weight of medical evidence to the contrary.
3.Further or alternatively, the medical panel’s determination lacked an evident or intelligible justification and/or was irrational and/or illogical and/or unreasonable in that it failed to identify any chronic pain condition which was materially contributed to by a compensable injury to the cervical spine against a weight of medical evidence to the contrary.
4.The reasons of the medical panel are inadequate.[24]
[24]CB 7.
Ground 1 – Failure to take into account relevant considerations
Ms Voss’ submissions
The crux of Ms Voss’ first ground is that the Panel erred by failing to properly consider whether she was suffering from a chronic pain condition that was materially contributed to by a compensable injury to the cervical spine. She submitted that the Panel failed to engage in an active intellectual process with the fundamental issue of whether she was suffering from a compensable chronic pain condition or was suffering compensable ‘sequelae’ being a chronic pain condition. She contended that the fundamental issue of diagnosing a pain syndrome, and its causal nexus to employment were ‘squarely raised’ before the Panel in the wealth of material provided to it. Despite much of the material mentioning a chronic pain syndrome, the Panel did not address it.
The first ground was also argued in the alternative that the Panel committed jurisdictional error by either asking itself the wrong question, or failing to properly engage with the answer in relation to the first medical question.
Many of the witnesses supported the honesty of the plaintiff and her account of her injuries. Dr Christelis said there was a 90 per cent likelihood of a neuropathic component to her pain. He sent the plaintiff for appropriate treatment and carried out appropriate medical procedures. Other doctors diagnosed a pain syndrome, including Mr Lo, the independent examiner, who diagnosed a chronic pain condition with an underlying degenerative condition. Dr Mutton and Mr Drnda expressed similar opinions as did Dr Sood, her general practitioner. The Panel did not address these opinions. The Panel did not mention Mr Barmare’s report that Ms Voss was suffering from ‘chronic axial cervical pain with signs of chronic regional pain syndrome with chronic pain in the right upper limb’. [25]
[25]CB 135.
The Panel’s reasons did not deal with whether Ms Voss suffered a pain syndrome as a consequence of her physical injury in 2013. Although the Panel found that there was no longer a physical injury, it did not say whether there was a physically based pain syndrome.
The Panel carried out only half of its task by dealing with the physical condition of the pain Ms Voss suffered. It is possible to have an organic or psychological pain syndrome and a pain syndrome does not fit precisely into either a physical or psychological condition. The Panel did not consider whether the plaintiff was suffering from a psychological injury, being a compensable psychologically-based pain disorder. That would be either a Chronic Pain Disorder (under DSM-IV) or a Somatic Symptom Disorder (under DSM-V). Nor did the Panel consider whether there was a ‘sequelae’ which includes any pain disorder associated with psychological factors resulting from the claimed injuries.[26]
[26]Aged Care Services v Kontopoulos [2017] VSC 684 [34]-[43], [64], [71], [82]-[83].
Ms Voss submitted that the Panel failed to consider whether she may be currently suffering, or previously suffered from a compensable psychological pain disorder. This issue was not considered in the Panel’s reasons, which had concluded that Ms Voss had a chronic adjustment disorder. Ms Voss contended that this was a mandatory matter for the Panel to consider, having regard to the materials before it which raised the possibility of a compensable chronic pain condition that was either neuropathic or psychological in origin. A review of the examination notes taken by Dr Freidin during Ms Voss’ psychiatric examination revealed that she did not refer to the possibility of her suffering from a psychological pain disorder.
Counsel for Ms Voss referred to authorities that a Panel must take into account issues of medical conditions squarely raised by the material, including of course the medical opinions, for example, Khan v Romas (‘Khan’).[27] However, a distinguishing feature of Khan was that there were written submissions provided to the Panel which specifically drew the Panel’s attention to the issues concerned. Nonetheless, it was Ms Voss’ submission that the issue of whether she was suffering a chronic pain condition was ‘squarely raised’ before the Panel in the medical evidence and her draft statement of claim described it. The wording of the first medical question required consideration of the issue, not least by referring to the ‘sequelae’ of the injury.
[27][2017] VSC 731.
Defendant’s submissions
The defendant submitted that Ms Voss’ first ground must fail because the Panel formed its opinion as it was required to do, after considering the medical evidence.[28] The Panel had to consider whether funding should be granted for a spinal cord stimulator because she had a persisting neurological injury. The Panel included a specialist neurologist, so it was likely that it would have considered neurological organic issues. Another Panel member was an orthopaedic surgeon, who would have considered any physical condition that Ms Voss suffered. The Panel did not find that Ms Voss had a physical complex regional pain syndrome and it did not have to decide why she had chronic pain. Her presentation and description of events contained inconsistencies.
[28]See CB 26, 32-3.
The basis of Ms Voss’ case to the Panel was that she had a neurological disorder that needed an implant of the spinal cord stimulator. The Panel referred to the evidence of all the neurological experts. Secondly, the Panel’s physical examination of Ms Voss did not reveal any ongoing physical medical condition of her head or neck. Thirdly, there was completely unremarkable medical imaging.
The defendant submitted that the appropriate diagnosis was a matter for the Panel to determine in the application of its members’ medical knowledge and expertise. The Panel undertook a careful and detailed review of the documents and had performed its statutory duty. The Panel referred to Mr Lo’s opinion and to the opinion of the other doctors on whom the plaintiff relied. The Panel did not have to address each aspect of every medical opinion before it. There is no basis for inferring that the Panel overlooked the issue of sequelae.
Mr Lo’s evidence was unclear as to whether he was referring to a physical or psychological condition. Mr Drnda suggested that her condition was not physical.
The defendant submitted that the Panel had considered whether the plaintiff had a persisting neurological injury. The Panel did not have to refer in its written reasons to every piece of evidence before it or explain why it did not reach the same diagnosis that had been formed by other practitioners. The failure of the Panel to set out all the matters in its reasons does not lead to the inference that they were not considered. The Panel’s failure to do something it was not required to do, such as explain why it did not reach the same diagnosis that had been formed by other practitioners, was an unsound basis upon which to infer that the Panel failed to consider the alternative diagnosis. There was no basis to infer that the Panel overlooked the issue of sequelae or consequential medical conditions because the Panel’s opinion in answer to question one specifically identified a secondary psychiatric condition, of an adjustment disorder, which had arisen as a consequence of the plaintiff’s initial physical injury and which had persisted notwithstanding the resolution of that injury. The plaintiff’s attempt to rely on the fourth defendant’s examination notes was misconceived. The Panel was not required to expressly refer to Ms Voss’ statement of claim filed in a different dispute. Ms Voss was basically complaining that the Panel diagnosed a consequential adjustment disorder rather than a consequential pain disorder.
No psychiatrist said that Ms Voss had a psychologically driven pain syndrome. The Panel was under no obligation to consider whether she suffered from a somatic symptom disorder in accordance with DSM–V.
Ground 1 – Analysis
A medical panel is bound to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred questions.[29] It can be inferred that the medical panel ‘did not take account of’ the fundamental issue[30] for reasons including that it was such a fundamental issue had been considered, one would expect that it would have been referred to.[31]
[29]Ibid [60].
[30]Ibid [63].
[31]See, eg, Omerasevic v Kotzman [2016] VSC 383. See also Combined Enterprises Pty Ltd v Brister [2016] VSC 807 [27]; Sensis Pty Ltd v Jones [2018] VSC 754 [60].
Neave JA in Ryan v The Grange at Wodonga Pty Ltd[32] considered in detail a Medical Panel’s duty to consider issues raised by the documents provided to it, stating:
If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[33]
[32]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 (‘Ryan v The Grange’).
[33]Ibid [60] (Santamaria JA agreeing at [112], Ginnane AJA agreeing at [113]) (citations omitted) (emphasis added).
The fundamental issue in that case was whether the worker’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition’. Her Honour observed that there was ‘nothing in the Reasons which indicates that the Panel considered whether what they described as “minor pain” would worsen if the [worker] returned to work and performed the same duties which had initially aggravated her shoulder condition’.[34] Her Honour concluded:
Although the Panel referred to its own examination of the appellant and the views of her treating doctors and Mr White, its Reasons do not indicate that the Panel undertook any meaningful consideration of the effect which a return to work could have on aggravating the pre-existing injury. The Medical Panel was not required to explain why it took a different view from [the consultant physician] and [the worker’s treating general practitioner] about the appellant’s capacity to return to her pre-injury duties. However, it was required to explain how it had taken account of the chronology of events and why it had not inferred from its own finding that the injury was an aggravation of a pre-existing condition that, if the appellant returned to the same work, it was likely that she would again experience an aggravation of her shoulder condition.[35]
[34]Ibid [70].
[35]Ibid [71].
It is appropriate to note that the definition of chronic pain syndrome is not precise. Richards J stated in Mailton Holdings Pty Ltd v Jussy,[36] that:
In contrast to these two psychiatric disorders, the parties agreed that there is no generally agreed definition of either chronic pain syndrome or fibromyalgia. The terms are used by different doctors in different ways to mean different things. The imprecision of these terms, and other terms used by doctors to refer to chronic pain that does not have an obvious organic cause, is an ongoing source of difficulty for judges. Depending upon context, they can refer to a condition that is physical, or one that is psychiatric, or one that is a combination of both.[37]
[36][2019] VSC 421 and on appeal Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281 [45] (Beach and Ashley JJA).
[37]Ibid [23] (emphasis in original). Her Honour noted that the position was different with complex regional pain syndrome.
In my opinion, the Panel did not properly consider whether Ms Voss suffered from a chronic pain syndrome or condition following injuries that she suffered in the work accident and which was ‘relevant to the claimed head and cervical spine injury’. It therefore failed to consider a fundamental or central issue raised in the material provided to it relating to Ms Voss’ medical condition, including ‘any sequelae’, as required by questions one and two. It failed to consider a relevant consideration.
The Medical Panel was not required to expressly address all evidence and issues, only those that were ‘squarely raised’ on the evidence or ‘fundamental’ to the answering of the referred questions.[38] But the authorities establish that a failure to expressly refer to a relevant consideration, or to give it weight, can enable an inference to be drawn that it was not taken into account.[39] The Panel was required to give each relevant matter genuine consideration.[40]
[38]Ryan v The Grange (n 32) [60], [71] (Neave JA); Omerasevic (n 31).
[39]Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424, 440 [84]. See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 330 [5]; Ryan v The Grange (n 32) [63].
[40]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) LGERA 99; [2011] FCAFC 59, [44] (Emmett, McKerracher and Foster JJ), citing Tickner v Chapman (1995) 57 FCR 451, 462; 89 LGERA 1, 12 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [105].
The reason why the questions were referred to the Panel is significant in considering whether the Panel correctly approached the answers it gave to them. Dr Christelis diagnosed Ms Voss as suffering from a chronic pain syndrome. He considered that it was a physical or organic condition and therefore sought a spinal cord stimulator to help that condition. So the question of whether Ms Voss suffered from a chronic pain syndrome that was relevant to, or sequelae to, the claimed head and cervical spine injuries was central to the Panel’s task. The Panel’s concluded that Ms Voss was no longer suffering from any physical medical condition relevant to any claimed head and cervical spine injury. But relevant to that conclusion was whether Ms Voss suffered from a chronic pain syndrome or condition, which was a ‘physical medical condition’. There was plenty of evidence that she did. The Panel, of course, did not have to accept that evidence or give reasons for accepting one medical opinion over another. Nor did it have to conclude that any such condition was materially contributed to by the work injury. But it had to deal with the issue that medical evidence raised, because the diagnosis of a physical pain condition had caused the request for the spinal cord stimulator which in turn had led to the questions being referred to the Panel. It was a central issue in the material presented to the Panel.
It was significant that there was medical evidence before the Panel that although the soft tissue injury caused by the work injury had resolved it had led to the chronic pain condition. Also significant is that some of the medical opinions considered that the soft tissue injuries caused by the work injury, although resolved, had led to the chronic pain syndrome, which at the least was a sequelae. Thus Mr Lo, an independent examiner, whose opinion is considered in detail below, stated that the work injury was still materially contributing to Ms Voss’ condition ‘as that event has aggravated the underlying degenerative spinal condition with a resultant development of a complex pain syndrome’.[41] The Panel appears not to have considered whether there was a possible link between the work incident and a chronic pain syndrome of organic or neuropathic physical nature.
[41]CB 91.
The Panel’s failure to deal with the fundamental issue of the chronic pain syndrome appears clearly from its consideration of Dr Christelis’ and Mr Lo’s evidence. Dr Christelis is the treating pain specialist seen regularly by Ms Voss. He is a Fellow of the Faculty of Pain Medicine of The Australian and New Zealand College of Anaesthetists.
In a lengthy report prepared for the case manager on 22 October 2018, Dr Christelis set out in detail his treatment of Ms Voss. She first consulted him in February 2016. On 7 April 2018, she presented with significant pain, dysfunction and fallout following an injury at work in February 2013 in which a boom gate fell on her vertex and right shoulder. She had a right C6-C7 nerve route block which did not change anything and he was informed that there was some crush fractures of T8 and some endplate changes at T12. He stated that a scan performed by Mr Maarten had indicated some change at the C5-C6 joint on the left side, although the main complaint was right sided. He saw some brain scans which were taken due to a mild and untreated form of multiple sclerosis. He stated that ‘Ms Voss complained of pain in the vertex, neck, trapezius muscles, in the suprascapular region and scapular pain, of persistently moderate-to-severe intensity. There were some neuropathic features’.[42]
[42]CB 146.
He also stated:
Miss Voss had entered a downward spiral of chronic pain. She had significant functional limitation and was not doing much physically. She was unable to drive, do housework, washing, look after her hair and enjoy herself. She informed me she was waiting bilateral knee replacement and continued to smoke.[43]
[43]CB 146-7.
At the initial examination, Dr Christelis concluded:
She might have had some sort of whiplash injury. She certainly had some facet tenderness, but she also had some widespread pain, weakness, stiffness, deconditioning, fear avoidance, and other features of fallout from chronic pain.[44]
[44]CB 147.
He devised an initial treatment plan with modifications to Ms Voss’ medication.
Dr Christelis noted that chronic pain was commonly triggered by an acute injury or disease, and was usually perpetuated by factors other than the cause of the pain. Perpetuating factors include stress, environmental and emotive factors. Pain should be considered to be chronic when it persists for longer than one month following anticipated tissue healing or the pain continues for greater than three months. Chronic pain is considered pathological pain and it is a maladaptive response to tissue inflammation and neurological damage and causes pain of no biological value.
Dr Christelis also stated that chronic pain has a number of long-term detrimental consequences. It leads to suffering, changes in cognition as well as changes in emotional and mental health, including depression and anxiety and other premorbid mental disorders which may be treated or worsened. It causes a reduction in quality of life and level of function. All types of chronic pain generally lead people to seek medical help but they are often not treated effectively.
Dr Christelis arranged for Ms Voss to participate in a pain management program at the Epworth Hospital between November 2016 and early 2017, which she attended twice weekly for 8 weeks. The program gave her a better range of movement of her cervical spine and the sensitivity settled down; but he considered she still had a long way to go. In April 2017, and again in June 2017, he performed medical branch blocks–cervical. In September 2017 and May 2018, he performed radio frequency neurotomy–cervical. The radio frequency neurotomy provided pain relief for 8 months but after the second such procedure, she had significant post-procedure neuropathic pain right sided which was very slow to settle. Dr Christelis asked Ms Voss to trial some Endep Nocte and thought spinal cord stimulation could be considered. He was to perform a paravertebral block under ultrasound on 12 November 2018.
In December 2018 he wrote to Xchanging Case Manager, requesting approval for spinal cord stimulation (SCS)/Implantable Therapy for Ms Voss. His diagnosis of Ms Voss was: chronic neck, shoulder upper arm pain (right side) following work related accident, refractory, positive neuropathic features, pain detect 19; functionally limited secondary to the pain and inability to return to work.[45]
[45]CB 81.
The Panel referred to Dr Christelis’ opinion as follows. Under the heading ‘Interventional and Other Treatments for the Neck’, the Panel’s reasons state:
She referred to pain management specialist Dr Christelis in or about February 2016. He prescribed Lyrica (for neuropathic pain) and recommended a pain management program. She told the Panel that she undertook a “rehabilitation course at Epworth”. She said that she undertook no regular hydrotherapy or ongoing physical therapies.[46]
[46]CB 25.
Under the heading ‘Request for Spinal Cord Stimulator’ the Panel’s reasons state:
The Panel noted from referral material that on 9 December 2018, treating pain management specialist, Dr N Christelis requested approval from the Agent for a spinal cord stimulator as a management of her “Chronic neck, shoulder, upper arm pain (right side) positive neuropathic features”.
Dr Christelis noted in his request that her treatment so far includes:
·Medications including Tramadol, Diazepam, Mersyndol, Celebrex, Lyrica, Cymbalta, Norflex;
·Pain Management Epworth;
·Interventional therapy including C7 nerve root sleeve injection, cervical radiofrequency neurotomy x 2 and paravertebral blocks x 2.[47]
[47]CB 27.
The significance of Dr Christelis’ report is that he was the treating doctor and it was his request for a spinal cord stimulator that led to the decision of the Panel. It is clear that Dr Christelis regarded the chronic pain syndrome as presenting physical symptoms and not just being psychological, as it had neuropathic features.
In my opinion, the Panel did not properly consider the matters raised by Dr Christelis and the other doctors who diagnosed a chronic pain syndrome or condition. Those opinions required consideration when the Panel was answering questions one and two. If the Panel had considered that Ms Voss suffered from such a condition, it would then have had to decide if it was materially contributed to by the work accident. Whatever conclusion the Panel might have reached on these issues, it did not perform its function by concluding that the soft tissue injuries suffered in 2013 had resolved. There was more to consider than that conclusion.
Similar comment can be made about the Panel’s consideration of Mr Lo’s report of 16 March 2016. He is a paediatric and adult neurosurgeon. He examined Ms Voss as an independent expert. His report includes the following:
2. What is your diagnosis of the worker’s medical condition?
On balance and in my clinical opinion, I believe the patient suffers from a complex pain syndrome with an underlying degenerative spinal condition that may have been exacerbated by the workplace incident. She does not have any neurological defects but does have pain as a diagnosis.
3.Is the worker’s employment with ACE Parking P/L still materially contributing to the worker’s current condition?
I am still of the opinion that the worker’s employment with Ace Parking P/L with the resultant impact injury from the boom gate is still materially contributing to the worker’s condition as that event has aggravated the underlying degenerative spinal condition with a resultant development of a complex pain syndrome. I refer to my response to question 2 in the original report dated 10 September 2015.
4. Do you believe the worker is suffering from a pre-existing condition?
I am now of the opinion that the worker did suffer a pre-existing condition resulting from the stated motor vehicle accident as well as the multiple sclerosis diagnosis. Therefore, I believe the workplace accident did aggravate the pre-existing condition but, similar to my response to question 5 in the original report, I believe that the injury has ceased underlying to be an active causal factor and is no longer a cause of incapacity. The pre-existing degenerative condition, however, is likely the cause of her incapacity.
5. Has the worker’s compensable injury resolved?
From a structural point of view, the worker’s compensable injury has now resolved based on the additional information provided. However, the development of the pain syndrome continues to be inappropriately managed and would still recommend a multi-disciplinary pain management service review.
6.If the worker has an incapacity for work, does that incapacity still result from, or is it materially contributed to by, the compensable injury?
As eluded to in my response to questions raised in the previous report regarding the incapacity, my opinion is that the subject should be receiving an appropriate treatment from a multi-disciplinary pain management group prior to any decision being made about her incapacity. She has severe overall and generalised pain that is limiting her ability to attend the workforce in relation to her pre-injury occupation. There is a great deal of psychological effect from the injury that may limit her attendance to pre-injury occupation and this will be better sorted with a psychologist and a multi-disciplinary pain management service prior to returning.
From a structural point of view, however, there is no neurological deficits or structural instabilities. Therefore, similar to my recommendation with the stated restrictions, I believe that the subject may have capacity for modified duties such as office-based duties in which it does not impact greatly on her cervical spine.
7.In your clinical opinion, does the worker currently have capacity to undertake the full pre-injury hours and duties?
Limitation here is with her complex pain syndrome which will require a pain management approach. The incapacity to return to full pre-injury duties and hours related largely to her pain syndrome as opposed to any neurological defects. Therefore, I am still of the opinion that the worker does not have a current capacity to undertake full pre-injury hours and duties but modification and restrictions may allow her to perform tasks in a modified manner.
8.If the answer is no to question 7, please provide a timeframe when you believe the worker will be fit to resume her pre-injury duties?
In my clinical opinion and on balance, if the subject is able to receive appropriate multi-disciplinary pain management, along with psychological assistance and treatment, she may be able to return to pre-injury duties. I would recommend at least 2 months of such therapies before considering a return to work.[48]
[48]CB 90-2 (emphasis in original).
The Panel’s reference to Mr Lo’s report was as follows:
Independent medical examiner, neurosurgeon, Mr Patrick Lo in his report dated 16 March 2016, ultimately concluded ‘the injury has ceased to be an active causal factor and is no longer a cause of incapacity’. He concluded that the worker’s compensable injury has now resolved’.[49]
[49]CB 32.
That quote is the first sentence of Mr Lo’s answer to question five, where after stating that the worker’s compensable injury was now resolved. He went on to say:
the development of the pain syndrome continues to be inappropriately managed and would still recommend a multi-disciplinary pain management service review.[50]
[50]CB 91.
The Panel used part of Mr Lo’s assessment in the following passage:
Based on its assessment of Ms Voss, noting that there is now no physical medical condition of her head and neck, The Panel formed a similar view to Mr Drnda and Mr Lo and concluded that Ms Voss suffered a soft tissue injury of the head and neck which resulted from and was materially contributed to by the claimed physical injuries, but this was temporary in nature and has since resolved.
The Panel therefore concluded that Mr Voss is no longer suffering from any physical medical condition which results from or is materially contributed to by the claimed injury.[51]
[51]CB 33.
But these quotations refer only to part of Mr Drnda and Mr Lo’s opinions. The Panel’s reasons do not consider the many references in Dr Christelis’, Mr Lo’s and Mr Drnda’s reports that Ms Voss suffered from a chronic pain syndrome which had substantial physical effects on her. Thus Mr Drnda, who considered that Ms Voss had recovered from the injury to her head, neck and shoulder, wrote:
Ms Voss is significantly affected with her past medical issues and the boom gate injury was part of it. The boom gate injury was significant for several months after the accident. However, in my opinion currently, her lack of enjoyment of life and what affects her daily activities is related largely to her psychological status, chronic pain syndrome and other medical conditions.[52]
[52]CB 101.
When Mr Drnda’s report is considered with Dr Christelis’, Mr Lo’s , Mr Mutton’s and Mr Barmare’s, a substantial issue arose of whether the work accident materially contributed to Ms Voss developing a chronic pain syndrome or condition of organic or neuropathic nature. A related issue was whether if Ms Voss developed such a condition, it was a sequelae of the soft tissue injuries she suffered from the work injury.
There were of course other reports, including Mr Wallace’s, that Ms Voss did not suffer from any neurological condition. But, the issue of whether she suffered from a chronic pain syndrome with physical dimensions as a result of the accident was a significant part of her case. After all, Dr Christelis, the treating pain specialist, was seeking interventions that might assist her physical condition. The Panel’s reasoning does not consider that significant issue.
It was certainly open to the Panel not to accept Ms Voss’ account of her reduced range of motion of the cervical spine because of inconsistencies in her evidence or presentation, matters which are considered in respect of ground two. But, its finding of inconsistency was not a reason for not considering the great deal of medical evidence that she suffered from a chronic pain condition. Most of the doctors who had examined her, accepted her account either expressly or impliedly. So, the finding of inconsistencies does not justify or explain why the Panel did not consider that central issue of whether or not she was suffering from a physical chronic pain syndrome or condition.
Nor do the Panel’s reasons suggest that it considered whether Ms Voss suffered from an organic or physical chronic pain condition in reaching its conclusion that she suffered from a pre-existing chronic adjustment disorder resulting from, and still materially contributed to, by the resolved ‘claimed’ physical injuries. That conclusion was based on the psychiatrist’s, Dr Phillip’s, report. She concluded that the consequences from a psychological perspective of Ms Voss’ injuries were ‘the ongoing chronic pain, sadness and frustration at not being able to fully undertake all the activities of daily living, sleep disturbance and fatigue, and other symptoms’.[53] But she also considered that:
With respect to performing activities of daily living, it is predominantly the consequences of her physical injuries that are impairing these rather than her psychiatric ones.[54]
[53]CB 162.
[54]CB 162.
The Panel’s relied on Dr Phillips’ report to reach its conclusion about Ms Voss’ psychiatric condition, but the report also supported the medical opinions that Ms Voss was suffering from a physical condition: ‘the consequences of her physical injuries’. Moreover, Dr Phillips was another specialist who appears to have accepted the truth of Ms Voss’ history and indeed based her diagnosis on it. Her report suggests that a chronic pain condition can be both physical and psychological. The DSM-IV and the DSM-V support that approach.
The question of whether Ms Voss suffered from a physical medical condition as distinct from a psychological condition was of particular significance. This is because the referral of the questions to the Panel followed Dr Christelis’ request for approval for the funding of the spinal cord stimulator to treat a physical pain condition.
I will now consider another of Ms Voss’ submissions on her first ground. She submitted that the Panel failed to consider whether she was suffering from a compensable, psychologically-based pain disorder. But I do not consider that contention to be established. The Panel included a specialist psychiatrist who examined Ms Voss separately from the other Panel members. The Panel’s psychiatric diagnosis was based on Dr Phillips’ opinion that Ms Voss was suffering from a chronic adjustment disorder with depressed and anxious mood relevant in part to the claimed injuries. The Panel’s reasons refer to Ms Voss’ mixed anxiety and depressed mood. They also refer to the report of Dr Krapivensky and to a report by an independent medical examiner, Dr Senadipathy. Counsel for the plaintiff pointed out that there is a psychologically based pain disorder under the DSM-V, being a somatic symptom disorder. That disorder is what used to be called the chronic pain disorder under the DSM-IV.
However, I accept the defendant’s submission that Ms Voss’ case was that she had a neurological or physical disorder that required a spinal cord stimulator implant. She was not contending that she had a psychologically driven pain disorder and no doctor had so diagnosed. The Panel did consider whether Ms Voss had a psychiatric condition of a pain disorder and concluded that she had a chronic adjustment disorder. The plaintiff has not established that the Panel failed to consider whether she suffered from a psychologically based pain disorder.
But I do not accept the defendant’s submission that the Panel’s consideration of a psychologically based pain disorder means that it must have properly considered and rejected the question of whether Ms Voss suffered from a physical chronic pain condition. While pain conditions may fall under both categories, for the reasons I have given, I have concluded that the Panel did not consider the issue of central importance in answering the referred questions of whether she suffered from a physical pain condition for which a spinal cord stimulator was appropriate.
Ms Voss has established her first ground. It involved a jurisdictional error or error of law on the face of the record which entitles her to remedies in the nature or certiorari and mandamus requiring the re-answering of the questions by a differently constituted Panel.
Ground 2 – Failure to accord procedural fairness or natural justice
Plaintiff’s submissions
Ms Voss’ second ground was that the Panel failed to accord her natural justice or procedural fairness by depriving her of an opportunity to comment on a fundamental issue, namely, whether she had a chronic pain condition, and any ongoing physical medical condition. Further, in circumstances where the Panel had made findings based in part on its physical examination on the basis of inconsistencies, it neglected or deprived her of the benefit of inviting her to make submissions on that point before delivering its opinion.
The Medical Panel referred to ‘the degree of inconsistency in her description of the event, the sequelae, her symptoms, her response to treatment and capacity over the weeks following the incident of injury and her ability to commence fulltime employment in alternative employment within weeks of the incident’. The Panel noted that similar inconsistencies were reflected in contemporaneous reports and subsequent medico legal reports and documents over the following months and years.[55]
[55]CB 29.
The Panel noted that Ms Voss, she demonstrated significantly reduced range of motion of the cervical spine on formal examination, in contrast to the range and fluidity of motion that she demonstrated on distraction during the interview.[56] The Panel noted its findings on physical examination of Ms Voss, which were not indicative of any ongoing physical condition of the head or neck. The medical imaging was completely unremarkable.[57]
[56]CB 28.
[57]CB 29.
The Panel also noted that on active range of motion of the cervical spine, in contrast to that observed during the interview, Ms Voss demonstrated symmetrical global reduction in all ranges. When she left the consulting room, she turned her head to the right to a much greater degree than during the formal examination.[58]
[58]Ibid.
The Panel also noted in respect of the psychiatric diagnosis that Dr Krapivensky felt unable to make a firm diagnosis due to the range of inconsistencies.[59] But, the Panel in fact stated it had reached a different conclusion to Dr Krapivensky and formed a similar conclusion to Dr Phillips.[60]
[59]CB 32.
[60]CB 32.
A number of other doctors and psychiatrists accepted Ms Voss’ description of the incident and her work injury and its effect on her. For instance, Mr Drnda described Ms Voss as pleasant and cooperative without signs of embellishment. Most of the other medical evidence did not comment one way or the other on her credibility.
Ms Voss also argued that, because the Panel formed an opinion contrary to the medical material before it, the Panel was required to invite her to comment on the issue before making its determination. To support this submission, she relied on cases including Barrett Burston Malting Co Pty Ltd v Kotzman[61] and Toyota Motor Corporation Australia Ltd v Bendrups,[62] which held that, in circumstances where the Panel’s Opinion is unexpected or comes ‘out of the blue’, the Panel must give the parties an opportunity to comment on the issue before reaching its conclusion. Ms Voss also relied on the observations in Jankulovska v Hayman[63] for the proposition that where a decision is significantly influenced by inconsistencies that the Panel found on examination, as a basis for finding that there was no ongoing physical medical condition, the Panel must give the plaintiff an opportunity to explain the inconsistencies.[64]
[61][2013] VSC 248, [48]-[52].
[62][2016] VSC 718, [30], [36]-[38].
[63][2017] VSC 752.
[64]Ibid [49]-[50], [60]-[62].
Relying on these authorities, Ms Voss argued that, given the weight of the material on this issue before the Panel, the Panel’s failure to reach the opinion that she was suffering from a chronic pain condition was one that ‘came out of the blue’. Thus, as this conclusion was unexpected, Ms Voss submitted that the Panel ought to have invited her to make submissions on this point before its opinion was reached. By failing to do this, the Panel did not accord procedural fairness to Ms Voss.
Furthermore, Ms Voss submitted that the Panel was significantly influenced by the perceived inconsistencies in her presentation, complaints and medical history. As these matters were interpreted in a way that was adverse to her, the Panel ought to have raised these issues with the parties and permitted them make submissions before it made its determination.
The defendant’s submissions
The defendant disputed that Ms Voss had been denied natural justice or procedural fairness. She should have been aware that the matters in dispute included whether her physical injuries had resolved and whether, she suffered from any, and if so, what psychiatric condition. This should have been clear from the letter terminating her entitlement to medical and like expenses, the Panel’s referral documents, a draft of which was provided to her solicitors and the medical opinions submitted to the Panel. The Panel’s conclusion that that the plaintiff’s soft tissue injury had resolved, that she was suffering from a secondary adjustment disorder and that there were inconsistencies in her presentation, reported complaints and histories did not come ‘out of the blue’, but were based on medical reports including from Dr Krapivensky, Dr Phillips and Mr Drnda.
Ground 2 – Analysis
In my opinion, the Panel did not deny Ms Voss natural justice or procedural fairness. The credibility of her account of the accident and her medical condition had been raised in Dr Krapivensky’s report. The purpose of the Panel examining Ms Voss was to form its own view on those matters. There was no obligation on the Panel to raise concerns they had about that issue when her credibility was already a matter for determination.
The Panel did not have to alert her to the fact that there were inconsistencies in her presentation, reported complaints and histories, which were reflected in the documents before the Panel, in particular the report of Dr Krapivensky.
The High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[65] upon which this submission was ultimately based , involved quite different facts. In that case the applicant was not notified that the Tribunal, when undertaking a review of a delegate’s decision, would reach its decision by reference to an issue other than those considered dispositive by the delegate.[66] But, if the key issues are known, ‘fairness does not require a judicial officer to make a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure’.[67] Unlike the situation in Jankulovska v Hayman,[68] this was a case where the consistency of the plaintiff’s account was in issue on the medical reports that she knew were before the Panel.
[65](2006) 228 CLR 152.
[66]See ibid 166 [48].
[67]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 69 [31] (Gleeson CJ and Hayne J). See also Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability, (Thomson Reuters, 6th ed, 2017) 561-2.
[68][2017] VSC 752.
Ground 3 – Unreasonableness, Irrationality and Illogicality
The plaintiff’s submissions
Ms Voss’ third ground was that the Panel’s Opinion was unreasonable, irrational or illogical, as it failed to conclude that the she had a compensable chronic pain condition, despite the medical evidence before it supporting such a diagnosis. Thus, counsel for the plaintiff submitted that the Panel’s determination, given the weight of the evidence to the contrary, was tainted by Wednesbury unreasonableness or irrationality.
The defendant’s submissions
The defendant submitted that the Panel’s conclusion was entirely rational and reasonable and squarely within its medical experience and expertise.
Ground 3 – Analysis
There is no force in the plaintiff’s submission that the Panel’s decision was unreasonable, irrational or illogical. I accept the defendant’s submission that the Panel’s decision does not fall into the category of Wednesbury unreasonableness. Nor does it fit within the concept of lacking intelligent justification that might lead to the conclusion that it was irrational or illogical.[69] It was based on the Panel’s examination of the plaintiff and its assessment of issues raised in the medical reports. Although, I have concluded that it did not properly address a fundamental issue, that does not lead to a conclusion that its opinion was unreasonable, irrational or illogical.
[69]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131].
Ground 4 – Inadequate Reasons
Ms Voss’ final ground was that the Panel’s reasons for Opinion were inadequate. She argued that there was a failure to provide sufficient reasons to satisfy the High Court decision in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’)[70] standard of reasons. The defendant submitted that the reasons were detailed and thorough.
[70](2013) 252 CLR 480.
Ground 4 – Analysis
I consider that the Panel’s reasons are adequate. The High Court decision in Wingfoot establishes that a Panel’s statement of reasons must explain the actual path of reasoning by which it reached its opinion. That path of reasoning must be explained in sufficient detail to enable a court and the parties to see whether the opinion involves a jurisdictional error of error of law. However, a Panel need not explain why it did not reach an opinion that it did not form.
In my opinion, the Panel’s path of reasoning is clear enough. It concluded that Ms Voss was no longer suffering from a physical medical condition relevant to her injuries in 2013, but was suffering from a psychological chronic adjustment disorder. I have found that the Panel failed to consider an essential issue, but that does not establish that its reasons were inadequate. Rather, the Panel’s reasons enable the detection of a jurisdictional error which I have found occurred and which is the subject of ground one.
The Panel did make a jurisdictional error, but it did not err by not adequately stating its path of reasoning. Ground four is not established.
Conclusion
The plaintiff has established ground one. An order in the nature of certiorari must issue quashing the Opinion of the Panel, and an order in the nature of mandamus issue, requiring a newly constituted Panel to answer the questions afresh according to law.
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