Withers v Chalmers Industries Pty Ltd
[2020] VSC 635
•29 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05740
| GORDON WITHERS | Plaintiff |
| v | |
| CHALMERS INDUSTRIES PTY LTD | First Defendant |
| and | |
| ASSOCIATE PROFESSOR PETER GIBBONS as THE CONVENOR OF MEDICAL PANELS | Second Defendant |
| and | |
| ASSOCIATE PROFESSOR ALEXANDER HOLMES, DR DENNIS HANDRINOS, DR SUSANNE HOMOLKA, DR ANDREA BENDRUPS, and MR PETER WILDE | Third to Seventh Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2020 |
DATE OF JUDGMENT: | 29 September 2020 |
CASE MAY BE CITED AS: | Withers v Chalmers Industries Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 635 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Claimed injury admitted by employer in Magistrates’ Court proceeding – Panel’s opinion that worker did not suffer claimed injury – Whether Panel assessed wrong injury – Whether Panel failed to have regard to employer’s admission – Whether Panel’s departure from parameters of dispute between parties procedurally unfair – Whether Panel’s reasons adequate – Jurisdictional errors established – Whether relief should be refused because worker acquiesced in or contributed to errors – Whether questions should be reconsidered by differently constituted Medical Panel – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 304.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr AG Uren QC with Mr LBR Allan | Arnold Thomas & Becker |
| For the First Defendant | Mr MF Fleming QC with Mr RD Kumar | Minter Ellison |
HER HONOUR:
Gordon Withers began working for Chalmers Industries Pty Ltd as a forklift driver in August 2012. He has not worked since 13 January 2016, when he felt sudden ‘unendurable’ pain in his thoracic back while driving his forklift on an uneven surface.
On 17 October 2016, Mr Withers made a claim for weekly payments of compensation and payment of medical and like expenses in respect of this injury, under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). His 2016 claim was rejected by Chalmers’ claims agent on 21 November 2016.
In September 2018, Mr Withers commenced a proceeding against Chalmers in the Magistrates’ Court of Victoria, disputing its rejection of his 2016 claim. In that proceeding, he claims to be entitled to compensation in respect of an injury arising out of or in the course of his employment with Chalmers on 13 January 2016, namely:[1]
(a)symptomatic exacerbation of a pre-existing T6 compression fracture and its associated T5-10 segment degeneration with residual thoracic back pain and referred pain in the chest; and
(b)consequential exacerbation of a pre-existing adjustment disorder with mixed anxiety and depressed mood.
[1]Magistrates’ Court Complaint and Statement of Claim dated 18 September 2018, [3].
Chalmers admits that Mr Withers suffered this injury in January 2016, but does not admit that he continues to suffer from it, and denies that he is incapacitated for work.
On 16 July 2019, at Chalmers’ request, Magistrate Wright referred a number of medical questions for the opinion of a Medical Panel under s 274 of the WIRC Act. A Medical Panel was convened to consider the referral, comprising Associate Professor Alexander Holmes, psychiatrist, Dr Dennis Handrinos, psychiatrist, Dr Susanne Homolka, occupational and environmental physician, Dr Andrea Bendrups, rheumatologist, and Mr Peter Wilde, orthopaedic surgeon.
The Panel provided its certificate of opinion and a written statement of reasons on 6 December 2019. The effect of its opinion, which is set out in full below, is that Mr Withers is not entitled to compensation in respect of his January 2016 injury.
In this proceeding, Mr Withers seeks judicial review of the Panel’s opinion. He contends that the opinion was affected by jurisdictional error in several respects. His core complaints are, first, that the Panel assessed the wrong injury and, second, that it did not appreciate that Chalmers had admitted the January 2016 injury. He also contends that the Panel failed to accord him procedural fairness, and gave inadequate reasons for its opinion. Mr Withers seeks an order in the nature of certiorari quashing the Panel’s opinion, and an order in the nature of mandamus, that the Convenor of Medical Panels convene a differently constituted Medical Panel to consider the referred medical questions.
For the reasons that follow, I have concluded that the Panel’s opinion did not answer the referred questions, failed to have regard to Chalmers’ admission of the claimed injuries, and was procedurally unfair in its departure from that admission. The Panel’s opinion will be quashed, and the referred medical questions remitted for reconsideration by a differently constituted Medical Panel.
Previous claims
It is significant that the 2016 claim is one of three claims made by Mr Withers under the WIRC Act arising out of his employment with Chalmers.
On 27 February 2015, he made a claim for compensation for an injury suffered on 5 February 2015, when he felt a sudden onset of pain in his chest, after driving his forklift over a bump. The 2015 claim was accepted by Chalmers’ claims agent. Mr Withers returned to work within a fortnight and was able to resume his normal duties. Although his pain improved over time, he continued to suffer pain in his chest and thoracic spine. The cause of this ongoing pain was unclear, and no firm diagnosis was reached by Mr Withers’ treating doctors during 2015.
Mr Withers ceased working after the January 2016 injury, which similarly occurred while driving a forklift on an uneven surface. In April 2016, Chalmers’ claims agent rejected his claim for reinstatement of weekly payments in respect of his 2015 claim, on the basis that his incapacity for work was not due to a work-related injury. Mr Withers disputed this decision and medical questions were referred to a Medical Panel. The First Panel gave its opinion on 21 August 2016, which was that Mr Withers was suffering from a chronic pain disorder and, as a result of his chronic pain and ‘changes to his life’,[2] an adjustment disorder with mixed anxiety and depressed mood. The First Panel concluded that Mr Withers was not incapacitated for work.
[2]Reasons of the First Panel dated 21 August 2016, 9.
On 14 February 2017, Mr Withers made a claim for impairment benefits in respect of the January 2016 injury, which he described as injury to his thoracic spine, shoulders and chest, gastrointestinal disorder, and psychological injury. His 2017 claim was rejected. Again, he disputed this decision and medical questions were referred to a second Medical Panel.
The Second Panel gave its opinion on 6 August 2018, which was that Mr Withers had symptomatic exacerbation of a pre-existing T6 compression fracture and its associated T5-10 segment degeneration with residual thoracic back pain and referred pain in his chest. The Second Panel found that this condition was triggered by the vibration and jarring of his spine while driving a forklift for Chalmers, and that his employment on 13 January 2016 was a significant contributing factor. The condition had not resolved. The Second Panel also concluded that Mr Withers was suffering from an exacerbation of a pre-existing adjustment disorder with mixed anxiety and depressed mood, which was materially contributed to by the injury to his thoracic spine.
The injuries diagnosed by the Second Panel are the injuries claimed by Mr Withers and admitted by Chalmers in the Magistrates’ Court proceeding in relation to his 2016 claim.
The Panel’s opinion and reasons
Seven medical questions were referred for the Panel’s opinion. Those questions, and the Panel’s opinion in relation to each question, were set out in the Panel’s certificate of opinion dated 6 December 2019. The opinion of the Panel was given by the presiding member, Dr Homolka, after discussion with the other members, as follows:
Question 1.What is the nature of the Plaintiff’s medical condition(s) (if any) relevant to the following injuries as alleged in paragraph 3 of the Statement of Claim:
a.Symptomatic exacerbation of a pre-existing T6 compression fracture and its associated T5-10 segment degeneration with residual thoracic back pain and referred pain (to) the chest;
b.Consequential exacerbation of a pre-existing adjustment disorder with mixed anxiety and depressed mood
(“the said injuries”).
Answer:a. In the Panel’s opinion the Plaintiff is currently not suffering from any intrinsic medical condition of the thoracic spine attributable to any alleged injury.
b.In the Panel’s opinion the Plaintiff is currently suffering from a chronic adjustment disorder.
Question 2.In any, and if so what, period between 13 January 2016 and 11 July 2018, did the plaintiff have an incapacity to perform his pre-injury employment?
Answer:The Panel is of the opinion that in the period between 13 January 2016 and 11 July 2018 the Plaintiff had no present inability, arising from an injury, such that he was unable to perform the full duties and hours of his pre-injury employment.
Question 3.If yes to any part of question 2, did such incapacity result from, or was it materially contributed to by any, and if so which, of the said injuries?
Answer:Not applicable.
Question 4.In any, and if so what, period from 7 August 2018 up to and including the date of the Panel’s examination, did/does any physical or mental condition suffered by the plaintiff result form, or was/is it materially contributed to by any, and if so which, of the said injuries?
Answer:The Panel is of the opinion that in the period from 7 August 2018 up to and including the date of the Panel’s examination the Plaintiff’s current psychiatric medical condition of chronic adjustment disorder resulted and still results from, and was/is materially contributed to by the alleged consequential exacerbation of a pre-existing adjustment disorder with anxiety and depressed mood injury.
Question 5.In any, and if so what, period from 12 July 2018 up to [and] including the date of the Panel’s examination, did/does the plaintiff have no current work capacity?
Answer:No.
Question 6.If yes to question 5, did/does such incapacity result form, or was/is it materially contributed to by any, and if so which, of the said injuries?
Answer:Not applicable.
Question 7.If yes to question 6, was/is such incapacity likely to continue indefinitely?
Answer:Not applicable.
The Panel began by saying that it had formed its opinion with regard to the documents and information referred to it in ‘Enclosure A’, the history provided by Mr Withers, and the examination findings elicited by the Panel at its examinations of Mr Withers. The documents provided to the Panel with the referral included a joint statement of the parties under s 304(a) of the WIRC Act, written submissions from both Chalmers and Mr Withers, and the complaint and statement of claim and the amended defence in the Magistrates’ Court proceeding. There were also radiology reports, numerous medical reports, a vocational assessment, and the certificate and reasons of the First Panel and the Second Panel.
The psychiatrists on the Panel, Associate Professor Holmes and Dr Handrinos, saw Mr Withers on 1 November 2019. The other members of the Panel, Dr Homolka, Dr Bendrups, and Mr Wilde, examined him on 4 November 2019.
After noting the joint statement, the statement of claim, the parties’ submissions, and that the injuries to be assessed included an injury to the thoracic spine and a consequential psychological/psychiatric injury, the Panel summarised the contents of the joint statement:
The Panel also noted that it is agreed that the Plaintiff:
· was born on 20 January 1972 and commenced full-time employment as a forklift driver with the Defendant in 2012;
· lodged a compensation claim in respect of an injury described as “sudden onset of thoracic pain” sustained on 5 February 2015, (“the first claim”) for which liability was accepted;
· resumed his full pre-injury duties on 16 February 2015 and had his entitlements in relation to the first claim terminated effective 1 June 2016, on the basis that the accepted “injury was a temporary aggravation of an underlying non work-related condition”;
· disputed the termination of his entitlements under the first claim and was assessed by a Medical Panel, who provided an opinion dated 21 August 2016;
· lodged a compensation claim in respect of an injury “described as a compression fracture to the vertebra” sustained on 13 January 2016 (“the second claim”) for which liability was rejected on the basis that his “employment was not a significant contributing factor to the claimed injury”;
· lodged a permanent impairment benefits claim in respect of thoracic spine, shoulders, chest, gastrointestinal disorder and psychological injury injuries sustained on 13 January 2016 (“the permanent impairment claim”) for which liability was rejected; and
· disputed the decision to reject liability for the permanent impairment claim and was assessed by a differently constituted Medical Panel, who provided an opinion dated 6 August 2018.
The Panel noted that Mr Withers had commenced Magistrates’ Court proceedings in which he disputed the decision to reject liability for the second claim, which formed the basis of the issues in dispute and the reasons for the referral. It concluded the introduction to its reasons by noting the opinions of the First Panel and the Second Panel. It had confirmed with Mr Withers the accuracy of the history outlined in the reasons of the First Panel.
There followed a detailed account of the relevant history, under the headings ‘Pre-injury Employment’, ‘History of Incident’, ‘Subsequent History’, ‘Current Status’, ‘Activities of Daily Living’, ‘Current Treatment’, and ‘Past History’. Under the heading ‘History of Incident’ the Panel set out details of the incident on 5 February 2015 that gave rise to the first claim. The first mention of the injury on 13 January 2016 was in the third paragraph under the hearing ‘Subsequent History’, where the Panel recorded:
The Plaintiff told the Panel that although he continued at work, he struggled to cope due to severe pain in his thoracic back, and he said that on 13 January 2016 “the pain became unbearable” and he was again certified unfit for work.
The Panel set out its observations made during a physical examination of Mr Withers, and then summarised the available imaging. An MRI scan of the thoracic spine dated 13 September 2019 demonstrated ‘a compression fracture of the T6 vertebra, with approximately 50% loss of vertebral body height’. The Panel noted that both of the previous Panels had described the collapse of the T6 vertebral body as consistent with a long-standing compression fracture.
In its discussion and conclusions concerning Mr Withers’ physical injury, the Panel noted and summarised the opinions of the First Panel and the Second Panel. It also noted that it was not bound to apply the conclusions of the previous Panels.[3] The Panel continued:
The current Panel considered the Plaintiff’s history of the onset and progression of his symptoms, its clinical examination findings, the radiological evidence, and the opinions of those medical examiners who have examined and/or treated the Plaintiff, as expressed in the various reports that were included with the Referral material.
The Panel noted that the Plaintiff initially experienced an acute onset of chest pain in the course of his employment duties with the Defendant as a consequence of the incident on 5 February 2015 but returned to work and continued to perform his full pre-injury duties, that over the subsequent months his chest pain improved but he experienced a gradually increasing thoracic back pain, that on 13 January 2016 his thoracic back pain increased to the extent that he was unable to continue at work, and that despite no longer being in the workforce, his pain has persisted without remission from that time until the present.
The Panel also noted the radiological evidence of a pre-existing T6 compression fracture demonstrated on a CT scan of the chest performed on 9 February 2015, four days after the incident, and its clinical examination findings on 4 November 2019, which revealed a minor dysfunction of the thoracolumbar spine that the Panel considered to be inconsistent with the nature, extent, distribution and persistence of the pain symptoms described by the Plaintiff. The Panel noted the Plaintiff’s description of the mechanism of the incident on 5 February 2015, which involved driving a forklift over a bump, and his description of the events on 13 January 2016, which involved an increase in the severity of pre-existing thoracic back pain whilst operating a forklift, but without any specific incident.
The Panel considered that the Plaintiff had sustained a soft tissue injury to his anterior chest, on a back ground of a pre-existing T6 compression fracture, as a result of the incident on 5 February 2015, the effects of which have resolved. The Panel acknowledged that the Plaintiff has radiological evidence of a pre-existing compression fracture of his T6 vertebra, but the Panel also considered that he now presents with complaints of pain which are inconsistent with, and cannot be explained by this medical condition, or by any aggravation, exacerbation, acceleration, deterioration or recurrence of this condition in any way.
[3]Referring to McVey v [61]–[62].
The Panel rejected a diagnosis of chronic pain syndrome because, ‘notwithstanding the Plaintiff’s complaints of persistent pain, he does not satisfy the diagnostic criteria for a diagnosis of chronic pain syndrome’. It then set out its conclusions in relation to Mr Withers’ claimed physical injury:
The Panel therefore concluded that the Plaintiff has radiological evidence of a compression fracture of the T6 vertebra, but this condition is pre-existing and not attributable to any claimed injury.
The Panel concluded that the Plaintiff is not currently suffering from any intrinsic physical medical condition attributable to the alleged symptomatic exacerbation of a pre-existing T6 compression fracture and its associated T5-10 segment degeneration with residual thoracic back pain and referred pain to the chest injury, and the Panel also concluded that this has been the case in the period from 13 January 2016 up to and including the date of the Panel’s assessment.
The Panel therefore also concluded that in the period from 7 August 2018 up to and including the date of the Panel’s assessment, any physical medical condition claimed by the Plaintiff did not and does not result from, and was/is not materially contributed to by any alleged injury.
Although Mr Withers’ claim was in respect of an aggravation or exacerbation of his T6 compression fracture, and not the fracture itself, the Panel explained why it considered the fracture was a long-standing injury that pre-existed the incident.
Turning to his claimed psychiatric injury, the Panel set out the history obtained from Mr Withers during the psychiatric assessment and its observations made during the psychiatric examination it conducted. It noted the opinions of the First Panel and the Second Panel, that Mr Withers was suffering from an adjustment disorder with mixed anxiety and depressed mood, and that the Second Panel considered that disorder to result from his physical injury. The Panel concluded:
Based on its own psychiatric examination of the Plaintiff on 1 November 2019 the current Panel agreed with the second previous Panel that the Plaintiff’s psychiatric symptomatology does not satisfy the diagnostic criteria for a diagnosis of chronic pain disorder, and the Panel formed the view that the Plaintiff has developed a chronic adjustment disorder in the context of his persisting pain resulting from the incident that occurred on 5 February 2016.
The Panel therefore concluded that the Plaintiff is currently suffering from a chronic adjustment disorder, and the Panel also concluded that in the period from 7 August 2018 up to and including the date of the Panel’s assessment, the Plaintiffs current psychiatric medical condition of chronic adjustment disorder resulted/results from and was/is materially contributed to by the alleged consequential exacerbation of a pre-existing adjustment disorder with mixed anxiety and depressed mood.
The Panel considered Mr Withers’ psychiatric condition to be mild, with no effect on his work capacity at any time from 13 January 2016 to the date of the Panel’s assessment. Since the Panel was of the view that Mr Withers was not suffering from any compensable physical medical condition of the thoracic spine, it considered there was no physical or psychiatric medical condition that precluded him from performing the full duties and hours of work of his pre-injury employment with Chalmers, at any time between 13 January 2016 and its assessment. On the questions concerning Mr Withers’ capacity for work:
The Panel therefore concluded that in the period between 13 January 2016 and 11 July 2018 the Plaintiff had no inability, arising from an injury, such that he was unable to perform the full duties of his pre-injury employment with the Defendant, and the Panel also concluded that any claimed incapacity during this period did not result from and was not materially contributed to by any alleged injury.
The Panel further concluded that in the period from 12 July 2018 up to and including the date of the Panel’s assessment the Plaintiff had/has no inability, arising from an injury, such that he was unable to perform the full duties of his pre-injury employment with the Defendant, and the Panel also concluded that any claimed incapacity during this period did not/does not result from, and was/is not materially contributed to by any alleged injury.
The Panel concluded its reasons by noting several medical opinions that Mr Withers was unable to work, as well as his own submissions to that effect. It confirmed that it had formed a different opinion based on its own physical and psychiatric examination.
Did the Panel assess the wrong injury?
Mr Withers contended that the Panel fell into jurisdictional error by assessing his claim on the basis that it related to the injury of 5 February 2015, rather than the injury of 13 January 2016. The claimed jurisdictional error was characterised variously as the Panel failing to answer the referred questions, asking itself the wrong question, failing to have regard to a relevant consideration, taking into account an irrelevant consideration, and making a material mistake of fact. In oral submissions, he characterised the claimed error as a material mistake of fact.[4]
[4]Relying on Chang v Neill[2019] VSCA 51, [92].
He drew attention to the following features of the Panel’s reasons that, he submitted, made it evident that the Panel had incorrectly answered the referred medical questions by reference to the February 2015 injury and not the January 2016 injury:
(a) The history set out under the heading ‘History of Incident’ referred only to the February 2015 injury. The 5 February 2015 incident was repeatedly referred to in the Panel’s reasons as ‘the incident’.
(b) The January 2016 injury was mentioned under the heading ‘Subsequent History’. The Panel’s description of that subsequent history, at several points in its reasons, was of the pain due to the February 2015 injury getting gradually worse, until it became unbearable on 13 January 2016. The reasons do not record that there was a separate, specific incident on 13 January 2016 that aggravated or exacerbated Mr Withers’ pre-existing thoracic spine injury.
(c) The Panel gave its opinion that, as a result of the incident on 5 February 2015, Mr Withers had suffered a soft tissue injury to his anterior chest, on a background of a pre-existing T6 compression fracture, the effects of which had resolved.
(d) In explaining why the T6 compression fracture was a pre-existing injury, the Panel referred to a CT scan performed on 9 February 2015 ‘four days after the incident’, which revealed no evidence of any acute injury but rather a long-standing fracture. Later in its reasons, under the heading ‘Work Capacity’, the Panel again made the point that the T6 fracture pre-dated ‘the accepted work injury on 5 February 2015’.
(e) The Panel diagnosed Mr Withers as suffering from a chronic adjustment disorder ‘in the context of his persisting pain resulting from the incident that occurred on 5 February 2016’.[5]
(f) At no point did the Panel acknowledge or refer to Chalmers’ admission that Mr Withers had sustained injury in the course of his employment on 13 January 2016, and that his injuries were as alleged in the statement of claim.
[5]Chalmers accepted that there was a typographical error in this date, and that it should have read ‘5 February 2015’.
Chalmers submitted that it was clear from the Panel’s reasons that it understood the questions referred to it and that it distinguished between the events of 5 February 2015 and 13 January 2016. It said that it was appropriate and necessary for the Panel to set out its understanding of the incident on 5 February 2015, since that incident caused the onset of Mr Withers’ chest pain. However, it pointed to two places in the reasons where the Panel noted the increase of Mr Withers’ pain symptoms on 13 January 2016, without specific incident.
Chalmers acknowledged that, in a key passage in which the Panel concluded that his complaints of pain could not be explained by his pre-existing T6 fracture,[6] there was no specific reference to 13 January 2016. However, it submitted that it was implicit in that conclusion that the Panel rejected the alleged ‘symptomatic exacerbation’ of the fracture on 13 January 2016. Chalmers also acknowledged that the conclusion of the Panel’s psychiatric assessment was that Mr Withers had an adjustment disorder in the context of persisting pain resulting from the incident on 5 February 2015. This meant that the Panel’s answers to referred questions 1(b) and 4 did not relate to the January 2016 injury, which was an error in Mr Withers’ favour.
[6]The last paragraph in the extract of the Panel’s reasons at [22] above.
Chalmers emphasised that the Panel’s reasons should be read fairly, as a whole, and in context, that the Panel’s reasons are meant to inform, and that overzealous judicial review must be eschewed.[7]
[7]Relying on Maimonis v Bourke [2019] VSCA 302, [51]; Dundar v Bas [2019] VSCA 315, [48], [51]; Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [8]–[9].
Consideration
I accept that the reasons of the Panel must not be read ‘minutely and finely with an eye keenly attuned to the perception of error’.[8] Rather, they should be read beneficially, with due allowance for the fact that the Panel is a non-legal, expert tribunal.[9]
[8]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble, [9], [20].
[9]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29]; Maimonis, [51].
While I have read the Panel’s reasons as generously as I can, I am satisfied that the Panel gave its opinion in relation to the wrong injury — that is, it did not answer the referred questions concerning the admitted injury of 13 January 2016. The structure of the Panel’s reasons indicates that it assessed the 5 February 2015 injury, and considered the exacerbation of his pain symptoms on 13 January 2016 to be no more than ‘subsequent history’ relevant to the earlier injury.
The Panel’s conclusion that Mr Withers was not suffering from any aggravation or exacerbation of his pre-existing T6 fracture followed immediately after its conclusion that the soft tissue injury sustained on 5 February 2015 had resolved. I do not accept Chalmers’ submission that it was implicit in this conclusion that he suffered no injury on 13 January 2016. Nowhere in the Panel’s reasons did it record that on 13 January 2016 Mr Withers experienced a sudden onset of severe pain in his thoracic spine while driving his forklift over uneven ground. The Panel’s descriptions of the circumstances in which he ceased work on 13 January 2016 were of an increase in pain due to the injury suffered as a result of ‘the incident’ on 5 February 2015. In other words, the Panel described a gradual worsening of pain symptoms between Mr Withers’ return to work in February 2015 and when he stopped work on 13 January 2016 because ‘the pain became unbearable’. The Panel does not appear to have appreciated that the referred questions concerned a claim for a new and discrete injury that occurred on 13 January 2016.[10]
[10]As discussed below, the Panel also did not appreciate that the January 2016 injury was admitted by Chalmers.
It is also significant that the Panel answered the questions concerning Mr Withers’ psychiatric condition by reference to the 5 February 2015 injury only. While that might have been an error in his favour, it is a clear indication that the Panel was focused on the wrong injury.
For those reasons, I find that the Panel failed to perform its statutory function because it did not answer the referred questions concerning the injury suffered by Mr Withers on 13 January 2016. It gave its opinion in relation to his earlier injury of 5 February 2015, which was not what it had been asked to do. This amounted to a jurisdictional error by the Panel.[11]
[11]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351.
Did the Panel fail to have regard to Chalmers’ admission of the injury?
Mr Withers also contended that the Panel had failed to appreciate that Chalmers admitted that he suffered the claimed injury on 13 January 2016. He submitted that this was a mandatory relevant consideration that should have been the starting point of the Panel’s deliberations. Instead, the Panel’s reasons evinced no awareness of the admission.
Chalmers acknowledged its admission that Mr Withers had suffered injury arising out of or in the course of his employment on 13 January 2016, made in paragraph 3 of its amended defence. It accepted that the Panel’s opinion departed from that admission, which was not specifically mentioned in the Panel’s reasons. However, Chalmers disputed that the admission was a mandatory relevant consideration for the Panel. It further relied on the Panel’s statement that it had formed its opinion with regard to the documents and information referred to it in ‘Enclosure A’.[12]
[12]Relying on Vellios Electrical Contactors Pty Ltd v Barton [2014] VSC 664, [78]–[79].
Chalmers further argued that Mr Withers did not rely on the admission, and acquiesced in or contributed to the Panel overlooking it. Significantly, while the joint statement provided to the Panel noted that the basis for the referral was the rejection of the 2016 claim, it did not include any agreed fact in respect of the occurrence of injury on 13 January 2016. Chalmers also relied on the fact that Mr Withers’ written submissions to the Panel did not mention the admission. I understood this further argument to be directed to whether relief should be refused on discretionary grounds, rather than whether the Panel’s opinion was affected by jurisdictional error.
Consideration
In my view, Chalmers’ admission that Mr Withers suffered the claimed injuries on 13 January 2016 was something that the Panel was bound to take into account. Medical Panels are established under Pt 6, Div 3 of the WIRC Act, as an integral component of the mechanism for resolving disputes under the Act. Medical Panels are not asked to give medical opinions in the abstract; medical questions are referred to them to facilitate the resolution of some dispute that has arisen under the WIRC Act.[13] It follows that it is an essential feature of a Panel’s task under the WIRC Act to answer referred medical questions in the context of the dispute that gave rise to them.[14]
[13]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 207, 274, 284, 285, 574(11).
[14]Chang v Neill, [92]; Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [57]–[58].
Here, the pleadings in the Magistrates’ Court proceeding established the parameters of the dispute between the parties, within which the referred questions arose for determination. On the pleadings, there was no question whether Mr Withers had suffered injury in the course of employment on 13 January 2016. The questions in the Magistrates’ Court proceeding were whether his injuries had resolved, and whether, for what period, and to what extent he was incapacitated for work due to his injuries.
There is no sign in the Panel’s reasons that it understood that Chalmers admitted that Mr Withers suffered the claimed injuries at work on 13 January 2016, and that the issue was not in dispute. While the Panel referred to the statement of claim in its reasons, it did not mention the amended defence. This oversight is consistent with my earlier conclusion that the Panel provided its opinion in relation to his earlier injury, and not the admitted injury suffered on 13 January 2016.
Ordinarily, I would be prepared to accept at face value a Panel’s declaration that it had regard to all of the information and documents provided to it with the referral.[15] It is not necessary for a Medical Panel to refer in its reasons to every piece of evidence, every medical opinion, and every contention made by each party.[16] However, some matters are so significant that a Panel’s failure to refer to them indicates that they have been overlooked. An admission that an injury was suffered in the course of employment falls in the latter category — particularly if the Panel forms an opinion that is at odds with the admission.
[15]Maribyrnong City Council v Malios [2014] VSC 452, [48]; Vellios, [83].
[16]Vellios, [78]–[79].
Further, as I discuss below, procedural fairness required the Panel to give Mr Withers notice that it intended to depart from the parameters of the dispute established by the pleadings in the Magistrates’ Court procedure. The fact that it did not do so is another indication that it overlooked the admission.
It is unfortunate that the joint statement provided to the Panel with the referral did not mention the admission, and did not include as an agreed fact that Mr Withers had suffered the claimed injuries in the course of employment on 13 January 2016. Senior counsel for Mr Withers minimised the importance of joint statements required under s 304(a) of the WIRC Act, describing them as documents that ‘rarely tell anybody anything of any use at all’. I do not agree that they are so inconsequential. In this case, both sides could have taken better care to prepare a joint statement that gave the Panel a clear and comprehensive statement of the agreed facts and the matters in dispute.
Those observations do not change my conclusion that the proper performance of the Panel’s statutory task required it to have regard to the employer’s admission that the injuries were suffered in the course of employment. Its failure to do so amounted to jurisdictional error.
I address Chalmers’ submission about acquiescence or contribution below, in relation to the disposition of the proceeding.[17]
[17]See [61]–[64] below.
Was the Panel procedurally unfair?
Next, Mr Withers contended that the Panel denied him procedural fairness in forming an opinion outside the parameters of the dispute between the parties, without notice, and without giving him an opportunity to address its proposed departure from those parameters. He based this contention on the Court of Appeal’s recent decision in Wagstaff Cranbourne Pty Ltd v Hashimi,[18] in particular the following passage:[19]
The Panel was required to reach its own decision on these issues and was not bound by the opinions in the medical reports that were provided to it. However, the Panel was not free of all constraints in performing its task. Rather, it had to perform its task in accordance with the provisions of the WIRC Act and applicable legal principles. In particular, the Panel had to take into account the material provided to it, including the parties’ pleadings, submissions and medical reports.
The parties’ pleadings, submissions and medical reports established the parameters of their dispute. Procedural fairness required that the Panel form its opinion within those parameters and that, if it intended to treat as determinative a matter falling outside those parameters, it had to give the parties notice of its intention to do so and an opportunity to address the Panel on that matter.
[18][2020] VSCA 33.
[19]Wagstaff, [57]–[58].
Mr Withers’ solicitor, Lawrence Dent of Arnold Thomas & Becker, deposed that, if the Panel had put him on notice that they proposed making a finding that his client was not injured on 13 January 2016, he would have requested counsel to draw submissions to the Panel that argued this point directly, as he had to the Second Panel.[20] He exhibited a copy of the submissions made by Mr Withers to the Second Panel, which included detailed submissions in support of his claim that he suffered injury in the course of employment on 13 January 2016.[21] Mr Dent’s affidavit was tendered without objection and he was not cross-examined.
[20]Second affidavit of Lawrence Andrew Dent dated 10 July 2020, [14].
[21]Second affidavit of Lawrence Andrew Dent dated 10 July 2020, Exhibit LD-6.
Chalmers did not dispute that the Panel’s opinion departed from the admission in paragraph 3 of the amended defence. It argued that any failure to accord natural justice was not material to the outcome, because Mr Withers’ submissions to the Panel specifically addressed the question whether he had sustained injury on 13 January 2016. It also repeated its submissions to the effect that the departure was acquiesced in or contributed to by Mr Withers, and that certiorari should not be granted for that reason.
Consideration
Whether the Panel overlooked the admission, or deliberately disregarded it, procedural fairness required the Panel not to depart from the parameters of the dispute without warning Mr Withers that it might do so, and without giving him an opportunity to persuade it not to.[22] The Panel did not do that, with the result that it failed to give Mr Withers procedural fairness.
[22]Wagstaff, [57]–[58].
A want of procedural fairness amounts to jurisdictional error only if it was material to the outcome.[23] Chalmers disputed that there was a ‘realistic possibility’[24] that the Panel’s opinion could have been different if it had given Mr Withers an opportunity to make submissions against departing from Chalmers’ admission.
[23]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]–[49] (Bell, Gageler and Keane JJ), cf [92]–[95] (Nettle and Gordon JJ).
[24]SZMTA, [48] (Bell, Gageler and Keane JJ).
I have reviewed the submissions made on Mr Withers’ behalf to the Panel. I do not agree that they specifically addressed the question of whether he suffered a work-related injury on 13 January 2016. The submissions made under the heading ‘Submissions – significant contributing factor/Material contribution’ took as their starting point the Second Panel’s opinion that he was injured at work on 13 January 2016. Beyond noting that the Second Panel’s opinion was contrary to the thesis now advanced by independent medical examiner, Dr Michael Bloom, and that Dr Bloom had not been provided with the Second Panel’s opinion, the submissions did not seek to persuade the Panel that Mr Withers suffered a compensable injury on 13 January 2016. That is unsurprising, given Chalmers’ admission. The balance of the submissions concerned Mr Withers’ capacity for work.
Further, I accept Mr Dent’s evidence that, if he had been aware that the Panel was proposing to find that his client was not injured on 13 January 2016, he would have arranged for submissions to be made to the Panel addressing that point. The submissions made by Mr Withers to the Second Panel specifically addressed whether he suffered injury on 13 January 2016, in the following terms:
At no stage has any doctor questioned the veracity of the Plaintiff. The Medical Panel ought to accept the Plaintiff’s history in relation to what occurred on 13 January 2016.
Indeed, the note of Dr Silverstein of 18 January 2016 confirms that he hurt his back driving last week 13/1 all the bumps were affecting his back ….
This is consistent with the Plaintiff’s claim that on 13 January 2016 the Plaintiff was driving a particularly heavy forklift, mostly on a concreted area, which required the Plaintiff to regularly drive over potholes on this day. The Plaintiff’s history about this particular day ought be accepted, and he will explain to the Panel that on this particular day it was an extremely busy day and his symptoms became very severe by the end of this shift on this day.
Further, it is important to note that following the incident on 13 January 2016 the Plaintiff was unable to continue working and this was the precipitating date when the Plaintiff suffered a most significant aggravation which rendered him incapacitated for work.
After setting out the medical treatment received by Mr Withers during 2016 and 2017, and referring to various reports of his treating orthopaedic surgeon, the submission concluded:
It is submitted that the weight of the evidence supports the Plaintiff suffering an injury (in the extended definition sense, as set out and permitted in the Act) on or about 13 January 2016 as he was exposed relevant compressive forces which are certainly consistent with the aggravation and/or acceleration at the very least of his back condition.
There was nothing resembling these submissions in the written submissions made on Mr Withers’ behalf to the Panel in this case.
Consistent with his submissions, the Second Panel’s opinion was that Mr Withers had symptomatic exacerbation of his pre-existing T6 compression fracture, with pain in his thoracic spine and chest, to which employment on 13 January 2016 was a significant contributing factor. That is enough to satisfy me that there was a realistic possibility that the Panel in this case might have reached a different opinion if it had had the benefit of submissions on whether Mr Withers suffered a work-related injury on 13 January 2016.
The procedural unfairness was therefore material to the outcome, and amounted to jurisdictional error.
Were the Panel’s reasons adequate?
Mr Withers’ final ground of review concerned the adequacy of the Panel’s reasons. This was put as an alternative to his other grounds of review, in case I was left in ‘real doubt’ whether the Panel had correctly performed its statutory functions.[25] If the Panel’s conclusions were open to more than one interpretation, he submitted that I should not speculate about its path of reasoning in order to resolve ambiguity or fill gaps.[26]
[25]Gruma Oceania, [47].
[26]Pearce v Lloyd [2016] VSC 806, [62]; Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].
The written statement of reasons provided by a Medical Panel under s 313(2) of the WIRC Act must explain the Panel’s ‘actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law’.[27] Unfortunately, I could follow this Panel’s path of reasoning well enough to see that it involved several errors of law. The Panel’s reasons disclosed all too well that it did not perform its statutory function in accordance with law, but the reasons themselves were not deficient.
[27]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [55].
Disposition
I have concluded that the Panel’s opinion was affected by jurisdictional error in three respects. It did not answer the referred questions, it failed to have regard to Chalmers’ admission that Mr Withers suffered the claimed injuries in the course of employment, and it was procedurally unfair in its departure from that admission. Any of these errors is a sufficient basis to quash the Panel’s opinion, and remit the medical questions for further consideration.
Chalmers submitted that I should decline to make an order in the nature of certiorari, because Mr Withers acquiesced in or contributed to the Panel disregarding or departing from the admission. I do not accept that submission.
The evidence did not establish that Mr Withers acquiesced in the Panel’s departure from Chalmers’ admission. Although the joint statement did not refer to the admission, the Magistrates’ Court pleadings were included in the material provided to the Panel with the referral, and should have been considered by it. The Panel also had the written submissions of both parties, which were made on the basis that the January 2016 injury was admitted, consistent with the opinion of the Second Panel.
Further, I accept the evidence of Mr Dent that he believed that the issues in dispute before the Panel ‘related only to what had become of that injury since, and the plaintiff’s capacity for work’.[28] That belief was consistent with the pleadings and with the medical questions referred to the Panel. The solicitors for the parties gave rather different accounts of the discussions that preceded the referral. However, there was nothing in the evidence of Chalmers’ solicitor, Daniel Schram of Minter Ellison, that indicated any acquiescence on behalf of Mr Withers. Mr Schram did not recall any discussion about limiting the issues to be referred to the Panel. He believed that, if he said anything, it was to the effect that Chalmers ‘did not propose to refer a medical question about whether employment on 13 January 2016 was a significant contributing factor to [Mr Withers’] injuries’.[29] As he pointed out, no such question was referred to the Panel.
[28]Second affidavit of Lawrence Andrew Dent dated 10 July 2020, [13].
[29]Affidavit of Daniel Schram dated 7 August 2020, [10].
The joint statement provided to the Panel, agreed between the parties, probably contributed to the Panel overlooking the admission. It should have, but did not, include as an agreed fact that Mr Withers suffered the claimed injuries in the course of employment on 13 January 2016. However, both parties bear responsibility for the omission. I am not persuaded that it is a reason to refuse the relief sought by Mr Withers, in respect of the serious errors that affected the Panel’s opinion. I will make an order in the nature of certiorari, quashing the Panel’s opinion.
Mr Withers also sought a direction that the medical questions be reconsidered by a differently constituted Medical Panel. Such a direction should, in my view, only be given where there is some feature of the original Panel’s conduct or reasons that would make it unfair, or give the appearance of unfairness, if the questions were to be remitted to the same Panel.[30]
[30]Vegco Pty Ltd v Gibbons [2008] VSC 363, [33]; Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [54]–[55].
Here, there is clearly such a feature. The errors made by the Panel in giving its opinion in answer to the referred questions were serious, involving more than a failure to provide adequate reasons. It gave an opinion adverse to Mr Withers, without answering the referred questions, and denied him procedural fairness. For the same Panel to reconsider the referred questions would give the appearance of prejudgment and unfairness to Mr Withers. I will make an order in the nature of mandamus, remitting the referred medical questions for consideration by a differently constituted Medical Panel, in accordance with law.
I will hear the parties on the question of costs.
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