Wortel v Disler
[2023] VSC 646
•8 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 02138
| MAX WORTEL | Plaintiff |
| v | |
| PROFESSOR PETER DISLER & ORS | Defendants |
| (in accordance with the attached schedule of parties) |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2023 |
DATE OF JUDGMENT: | 8 November 2023 |
CASE MAY BE CITED AS: | Wortel v Disler |
MEDIUM NEUTRAL CITATION: | [2023] VSC 646 |
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ADMINISTRATIVE LAW — Judicial review — Medical panel — Workplace injury compensation — Panel’s opinion and statement of reasons as to injury — Whether Panel misconstrued medical question and addressed injury too narrowly — Whether Panel’s opinion that employment could not possibly have been a significant contributor to injury was open to be reached — Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 302, 304.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | A Saunders with J Clark | Zaparas Lawyers |
| For the Defendant | M Fleming KC with C Viney | Hall & Wilcox |
HIS HONOUR:
Overview
The plaintiff seeks judicial review to quash an opinion certified by a medical panel constituted by the first to fifth defendants (the Panel) on medical questions referred by the County Court of Victoria pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) in a proceeding under pt 6 of the WIRC Act.[1]
[1]The proceeding was brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. The plaintiff also sought a consequential order for remitter of the matter to be redetermined by a differently constituted medical panel, relying on Toyota v Bendrups & Ors [2016] VSC 718.
The plaintiff was a ‘worker’ within the meaning of the WIRC Act. He claimed compensation for injury arising out of or in the course of his employment. The claim was refused. The plaintiff commenced a proceeding under pt 6 of the WIRC Act in the County Court, and the County Court referred medical questions for the opinion of a medical panel.
In this proceeding, the plaintiff contended that the Panel misconstrued a medical question and thereby answered the wrong question, narrowing its consideration of the plaintiff’s injuries and its consideration of subsequent questions, and falling into jurisdictional error. The plaintiff also contended that, in determining its opinion on the same questions, the Panel reached a conclusion that was not open on the evidence before it.
I have decided that neither of the grounds pressed by the plaintiff is made out. The proceeding must therefore be dismissed.
Relevant provisions of the WIRC Act
Part 5, div 2 of the WIRC Act establishes an entitlement for workers to weekly payments and medical and like expenses in various circumstances. Such an entitlement may arise for a period of incapacity from a work-related injury even in the absence of permanent impairment.
The entitlement to compensation is relevantly set out at s 39 of the WIRC Act as follows:
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.
…
(3) Subject to section 7(1) and section 40(2) and (3), if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or the worker's dependants are entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.
…
An essential element of such a claim is an injury arising out of or in the course of employment, or an injury from a gradual process due to the nature of employment. ‘Injury’ is defined in s 3 of the WIRC Act as meaning:
any physical or mental injury and, without limiting the generality of that definition, includes—
(a) industrial deafness; and
(b) a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); and
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
Under pt 6 of the WIRC Act, s 264(1), the County Court has a general jurisdiction relevantly to inquire into, hear and determine any question or matter arising under the WIRC Act out of a decision of an employer. Section 274 of the WIRC Act provides that, in exercising jurisdiction under pt 6, a court may refer a ‘medical question’ to a medical panel for an opinion under pt 6 div 3.
The kinds of medical questions that can be referred pursuant to s 274 of the WIRC Act are set out in s 3. There are 15 defined categories of medical question, including (emphasis added):
(h) a question whether a worker’s employment was in fact, or could possibly have been—
(i) a significant contributing factor; or
(ii) a contributing factor—
to an injury or alleged injury, or to a similar injury…
The words I have emphasised, ‘or could possibly have been … a significant contributing factor’, assumed significance in this case. The parties did not explain how or in what circumstances the mere possibility that employment significantly contributed to an injury would entitle a worker to compensation. However that may be, one of the medical questions in this case employed this phrase.
Under s 302 of the WIRC Act, the function of a medical panel was ‘to give its opinion on any medical question in respect of the injuries arising out of, or in the course of, or due to the nature of, employment referred by the court.’ Under s 304, a person or body referring a medical question to a medical panel was required to give to the Convenor of Medical Panels a document specifying ‘the injury or alleged injury to, or in respect of, which the medical question relates’ and ‘the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute’, as well as copies of all documents relating to the medical question in the possession of that person or body. Under ss 313(1) and (2), the Panel was required to form its opinion in respect of each medical question and to ‘give a certificate as to its opinion and a written statement of reasons for that opinion’. Under s 314, the opinion would have binding effect on the outcome of the County Court proceeding.
Background facts
The plaintiff was born on 28 June 1953. He commenced employment with the sixth defendant, Serco Traffic Camera Services (Vic) Pty Ltd (Serco), in November 2009. The plaintiff was employed by Serco as a mobile road safety camera operator.
The plaintiff commonly worked shifts of 9.5 hours per day (being three sessions each lasting for approximately 3 hours per session). He was required to stay in the car to which the camera was attached for the duration of each session. He was generally seated in the front passenger seat of the car. Whilst seated he was required to operate a laptop computer which was usually placed on his knees. He held his neck in a flexed position for extended periods.
The plaintiff presented to a general practitioner on 29 April 2020, and at that time it was documented that, amongst other things, he had ‘milder chronic upper neck pain and occasionally some tingling down the right arm — seeing osteopath’. There were records of consultations with osteopaths on 21 May 2020 and 1 June 2020 in the material placed before the Panel, to which I refer in more detail later in these reasons.
On 19 August 2020, the plaintiff attended his general practitioner, Dr Lim. Dr Lim noted that the plaintiff reported experiencing right sided arm radiculopathy, and referred the plaintiff for an MRI.
On 20 August 2023, the plaintiff attended an MRI appointment. The MRI report noted cervical spondylosis, which was severe at the C5/6 vertebrae with a large posterior disc bulge and moderate central canal stenosis and cord compression. The report noted multilevel foraminal stenosis, which was more severe on the right at C3/4, and bilateral C4/5, C5/6, and on the left at C6/7. The vertebrae were compressing the corresponding nerve roots.
On 25 August 2020, the plaintiff ceased work. On or about 26 August 2020, the plaintiff lodged a claim for compensation with WorkSafe Victoria. The plaintiff sought ongoing weekly payments of compensation and medical and like expenses. The plaintiff alleged that he suffered injury by way of ‘Cervical spondylosis with radiculopathy/nerve impairment. Lumbar spine spondylosis’. The claim form alleged that the injuries were sustained as a result of ‘sitting in mobile camera car for extended periods of time over 10½ years. Repetitive strain on neck operating laptop computer on knees’.
On 10 September 2020, Dr Lim wrote to orthopaedic surgeon, Dr Rahim, requesting a consultation. Dr Rahim saw the plaintiff on September 11, 2020, and again on 8 October 2020. Dr Rahim recommended the plaintiff undergo spinal surgery in the form of a C4/5 and C5/6 anterior cervical decompression and fusion.
By a letter dated 18 September 2020, Mr Jeremy Russell, neurosurgeon, made a request to Serco’s claims agent EML VIC Pty Limited (EML) for approval for a C5/6 anterior cervical discectomy and fusion upon the plaintiff.
Serco, by a notice dated 2 October 2020 from EML, rejected the claim for compensation on the following basis:
You have not sustained an injury arising out of or in the course of your employment. Your employment is not a significant contributing factor to your claimed injury.
On 17 October 2020, the plaintiff underwent this surgery, performed by Dr Rahim. The plaintiff reported benefits following surgery, with resolution of his right arm pain. Following the surgery, the plaintiff reported experiencing mild tingling in the proximal right arm but no other right upper limb symptoms.
On 11 December 2020, the plaintiff issued proceedings in the County Court of Victoria, in effect challenging Serco’s decision to reject the plaintiff’s claim and seeking orders for payment of weekly payments from 25 August 2020 and payment of medical and like benefits, including the cost of his surgery.
By a written referral dated 14 October 2021, Judge Wischusen referred eight medical questions to a medical panel for opinion, pursuant to s 274 of the WIRC Act. The referral included the information required by s 304(a) of the WIRC Act and was accompanied by a bundle of documents and other materials relating to the medical questions, pursuant to s 304(b) of the WIRC Act.
The Panel was convened on 17 February 2022 in respect of physical injury, and on 3 March 2022 in respect of psychiatric injury. The Panel comprised a rehabilitation physician, a neurosurgeon, an orthopaedic surgeon and two psychiatrists.
There was a large volume of material, including medical records and expert reports, that were submitted by the parties for the Panel’s consideration. All this material was admitted into evidence in this proceeding.[2]
[2]Reports submitted included medical records of North Ringwood Medical Centre; medical records of Spine and Orthopaedic Centre; medical records of Maroondah Osteopathy; MRI reports dated 20 August 2020 and 26 September 2021; treating doctor reports prepared by Dr Anthony Lim, General Practitioner, Stuart Patten, Physiotherapist, Dr Jeremy Russell, Neurosurgeon, Mr Rex Rahim, Spinal and Orthopaedic surgeon; an expert report prepared by Dr Meena Mittal, Pain Physician dated 2 February 2021 (briefed by the plaintiff); expert reports prepared by Professor Richard Bittar, Consultant Neurosurgeon (dated 7 January 2021 and 28 July 2021); an expert report prepared by Dr Terence Saxby, Consultant Orthopaedic surgeon dated 28 September 2020 (briefed by the sixth defendant through its agent, EML).
The focus of this material was the plaintiff’s cervical spondylosis (intervertebral disc condition) and foraminal stenosis causing nerve compression. To that extent, the material was not relevant to the grounds of review pressed by the plaintiff. All the expert reports were related to conditions that were ultimately not controversial in this judicial review proceeding.
On 14 April 2022, the Panel gave a Certificate of Opinion recording its opinions in respect of the referred medical questions.
The questions asked of the Panel, and the opinions given in response, were as follows:
Question 1: As at the date of the Medical Panel examination what is the nature of the Plaintiff’s current medical condition of the:-
(a)neck;
(b)mind?
Answer:In the Panel’s opinion the Plaintiff has:
(a)cervical spine dysfunction resulting from multilevel facet joint and intervertebral disc degeneration with associated foraminal stenosis, surgically treated;
(b)an adjustment disorder with mixed anxiety and depressed mood.
Question 2:Was the Plaintiff’s employment with the defendant throughout the course of his employment from November 2009 to August 2020, in fact or could it possibly have been, a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation and/or deterioration of any injury to the –
(a)neck; or
(b)mind?
Answer:In the Panel’s opinion the Plaintiff’s employment with the defendant throughout the course of his employment from November 2009 to August 2020 was not in fact and it could not possibly have been, a significant contributing factor to the alleged neck or mind injury or to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition affecting the cervical spine or mind in any way.
Question 3: Does any and, if so, which physical or mental condition enquired of in question 1 result from or is materially contributed to by any, and if so which injury enquired of in question 2.
Answer:No.
Question 4: During any (and if so, which) part of the period from 25 August 2020 to the date of the Medical Panel assessment, did the Plaintiff have an incapacity for work as a mobile road safety camera operator?
Answer: In the Panel’s opinion the Plaintiff had no incapacity for work as a mobile road safety camera operator from 25 August 2020 to the date of the Medical Panel assessment resulting from the alleged injuries.
Question 5:Did, or does, any incapacity for work enquired of in Question 4 result from, or is, or was it materially contributed to by any condition identified in question 2?
Answer:No.
Question 6:Were the medical and like services in the form of:
(a)GP consultations;
(b)surgical consultations;
(c)operative treatment in the form of a C4/5 and C5/6 anterior cervical discectomy and fusion;
(d)medication
appropriate and adequate?
Answer:In the Panel’s opinion:
(a)Not applicable;
(b)Not applicable;
(c)Not applicable;
(d)Not applicable;
Question 7:Are the medical and like services in the form of:
(a)GP consultations;
(b)medication
appropriate and adequate?
Answer:In the Panel’s opinion:
(a)Not applicable;
(b)Not applicable;
Question 8:If yes to question 5 and/or 6, with what frequency should the medical and like service be provided?
Answer:Not applicable.
Analysis
Applicable legal principles
Certain principles must be borne in mind in approaching judicial review of a medical panel decision on grounds such as the present ones.[3]
[3]See generally Sidiqi v Kotsios [2021] VSCA 187, [29]-[64] (Sidiqi).
Judicial review proceedings are not concerned with merits review. It is not open to argue, as it is on an appeal by way of rehearing, that the decision reached by the primary decision-maker was contrary to compelling inferences to be drawn from the evidence as a whole.[4]
[4]Sidiqi [30], citing Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, 686–7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
The starting point for judicial review must be a consideration of the Panel’s statutory function. The primary function of a medical panel is to form an opinion with respect to questions referred to it. The secondary function is to certify answers to those questions and state reasons for them.[5]
[5]Sidiqi [32].
Insofar as a medical panel’s primary task is to answer the medical questions asked of it, it will generally be required to form a medical opinion as to injury, and then to assess the consequences relating to capacity to work.[6] Generally a medical panel will not do so vacuum: it will need to form an understanding of the injuries accepted or disputed as being compensable so that it understands what is being asked of it.[7]
[6]Sidiqi [33], citing Wingfoot Australia Pty Ltd v Kocak (2013) 252 CLR 480, 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (Wingfoot v Kocak).
[7]Akers v Namatjira Trading Pty Ltd; Akers v Goodcorp Pty Ltd [2021] VSC 856, [57] citing Smith v Mann (1932) 47 CLR 426, 452.
Specialist medical knowledge is fundamental to the function of the medical panel, and any opinion expressed by the medical panel is, or should be, materially informed by its expertise.[8]
[8]Sidiqi [34]–[37].
A medical panel is not bound by the rules of evidence, and can inform itself on any matter relating to the issue referred to it, in any manner it sees fit.[9] A medical panel has a broad discretion with respect to its chosen manner and method of evaluating the facts in a particular case. It is for the medical panel itself to determine what information is sufficient for it to form its opinion with respect to a medical question.[10]
[9]Sidiqi [38]–[39].
[10]Sidiqi [38]–[41].
A medical panel’s decision will be subject to judicial review if it does reach a conclusion of fact that was not open to it, but this is a high hurdle, because the panel will generally have drawn on its expertise.[11]
[11]See generally Sidiqi [40]–[51].
The two grounds of judicial review
The plaintiff’s originating motion raised four grounds of review, however at the commencement of the hearing the plaintiff abandoned the third and fourth grounds of the originating motion and confirmed that the originating motion was confined to the first and second grounds only.
By his first ground, the plaintiff argued that, in addressing Question 2, the Panel had impermissibly restricted itself to only the plaintiff’s condition as described in the answer to Question 1 and identified as the ‘alleged injury’, namely ‘cervical spine dysfunction resulting from multilevel facet joint and intervertebral disc degeneration with associated foraminal stenosis, surgically treated’.
The plaintiff contended that:
… in determining its option on Question 2 (and thus the consequential questions), … the Medical Panel conceived of its task too narrowly. It focussed on the ‘alleged injury’ – the injury identified by it in answer to Question 1. In doing so, it failed to consider whether the worker’s employment was in fact, or possibly could have been, a significant contributing factor to any other injury to the neck, especially a soft-tissue injury.
By his second ground, the plaintiff contended that it was not open to the Panel to find that the plaintiff had no injury to which his employment could not possibly have been a significant contributing factor.
Did the Panel address the wrong injury?
In support of his first ground of judicial review, the plaintiff contrasted the wording of Question 1 and Question 2, pointing out that Question 2 was wider in scope in two ways. Firstly, it relevantly required attention to be given to ‘any’ injury to the neck, and was not limited to the injury claimed or alleged by the plaintiff. In this regard, the plaintiff contended that the Panel failed to form a view about whether the plaintiff had, at any point after 25 August 2020, ‘any’ form of injury (or injuries) to the neck, and therefore failed to properly exercise its function in responding to Question 2 and the subsequent questions. Secondly, Question 2 was not limited to injury that existed at the time of the Panel’s assessment of the plaintiff. The plaintiff argued that there might have been an injury that was resolved before the Panel’s assessment took place.
During the hearing, the plaintiff referred to written submissions he had made to the Panel, which only identified an ‘aggravation of previously asymptomatic cervical spondylosis’ and which did not refer to a muscular or soft tissue injury. The plaintiff contended that the Panel, in referring to the ‘alleged injury’ and only addressing the ‘alleged injury’, must have confined its attention to the injury the Plaintiff identified in the submissions he made to the Panel.
The plaintiff’s submissions to the Court postulated a soft issue injury, the evidence for which was limited to two osteopath records on 29 May 2020 and 1 June 2020.
As the argument was developed at the hearing, the plaintiff contended that the Panel should have considered the possibility that the plaintiff, at least from a period in the past from August 2020 to some point prior to the medical examination by the Panel, was suffering from a muscular strain or soft tissue injury. The plaintiff relied in this regard on two records of treatment by osteopaths at Mooroolbark Osteopathy, the first made by Jessica Chooi dated 21 May 2020 and the second made by Jess White dated 1 June 2020.
The record made by Ms Chooi included the words:
Diagnosis query cervical disc? Thoracic outlet? Chronic CD to T4 postural strain with associated HT of pecs and scalenes.
The record made by Ms White relevantly included the text:
Diagnosis chronic CD to T4 postural strain with associated HT of pecs and scalenes? CX disc.
During the hearing, I asked the parties what meaning I should attribute to ‘HT’, but this remained unanswered. I interpret the notes as suggesting that there was a postural strain in the vicinity of the plaintiff’s spine from the cervical disc to thoracic spine (T4 level), with associated symptoms (perhaps tightness) in his pectoral and scalene muscles. The plaintiff submitted that in this context a postural strain should be understood as a soft tissue injury.
These references were the only references the plaintiff was able to point to in the material supporting his contention in his proceeding that there was evidence before the Panel of a soft tissue injury that it failed to address. I am not satisfied that either of these references can be regarded as evidence of a soft tissue injury.
The Panel’s reasons for opinion, under the heading ‘Diagnosis based on physical examination’ relevantly noted:
Based on the history taken by the Panel, its physical examination of the Plaintiff and its review of the attached documents and radiological investigations, the Panel concluded that the Plaintiff has cervical spine dysfunction resulting from multilevel facet joint and intervertebral disc degeneration with associated foraminal stenosis which was treated surgically. The Panel considered that there is current clinical evidence of mild left and right upper limb radiculopathy.
After referring to the plaintiff’s posture over ten years working as a speed camera operator, and also an incident in 2017, the Panel went on:
The Panel also considered that the Plaintiff had not reported symptoms in his neck and upper limbs until about 2018 when he attended an osteopath with burning and tingling in this right arm (at which time no physical diagnosis was confirmed), and that he was only definitively diagnosed with cervical spondylosis in August 2020.
The Panel also noted the radiological findings at that time with extensive multilevel facet joint and intervertebral disc degeneration and associated foraminal stenosis which was treated surgically in November 2020 with a good response of his right arm symptoms.
The Panel considered all of the above (including the working environment) and based on its cumulative experience and expertise, considered that the Plaintiff’s cervical spine condition represents the natural progression of an underlying, age consistent constitutional degenerative process, which is frequent in people of his age.
The Panel therefore concluded that the Plaintiff’s employment was not in fact, nor could it possibly have been a significant contributing factor to any claimed recurrence, aggravation, acceleration, exacerbation or deterioration of the Plaintiff’s claimed neck injury. In particular, the Panel's considered that the Plaintiff would have been likely to have developed neck symptoms far earlier in the course of his employment if his activities at work had been a significant contributing factor to any such recurrence, aggravation, acceleration, exacerbation or deterioration of the condition of his cervical spine.
The Panel noted the opinions expressed by the treating and health practitioners who had assessed the Plaintiff.
…
The Panel acknowledges that maintenance of the neck in a flexion position can be associated with muscle pain, but not that this leads to cervical disc degeneration or aggravation of pre-existing degeneration. Based on its cumulative experience and expertise, the Panel maintained its opinion that the development of the symptoms by the Plaintiff reflected the natural progression of an underlying, age-consistent constitutional degenerative process, which is frequent in people of his age.
The Panel also reviewed the report of Dr Terence Saxby dated 28 September 2020, and noted that Dr Saxby determined that “this is most likely an underlying degenerate change or a pre-existing condition and the progression is simple progression of the underlying degenerate condition.” For the reasons described above, the Panel reached a similar conclusion to Dr Saxby.
I read the findings of the Panel as excluding the possibility of a soft tissue injury. The Panel identified the injury in question — cervical spine dysfunction resulting from multilevel facet joint and intervertebral disc degeneration with associated foraminal stenosis, which it found was unrelated to the plaintiff’s employment. In doing so, the Panel did not mention any other injuries. In the circumstances of this case, this implies that the Panel considered that no other injury was present. This is hardly surprising given the lack of any real evidence of any other form of injury.
The first ground of the originating motion is not made out.
Did the Panel reach a conclusion that was not open to it in forming its opinion?
By his second ground of judicial review, the plaintiff contended that, in determining its opinion on Question 2, the Panel fell into jurisdictional error by reaching a conclusion that was not open on the evidence. The plaintiff contended that, given the Panel’s finding that the plaintiff had suffered pain in the neck, it could not have been open to the Panel to find that it was not possible that his employment was a significant contributor to a muscular injury or strain in the nature of a soft tissue injury.
The plaintiff submitted that, relevantly, the Panel made the following three key findings:
(a) The plaintiff had worked for over 10 years as a mobile road safety camera operator. His duties comprising three daily shifts of approximately 3 hours each during which time he had been seated in the front passenger seat looking down at a laptop computer on his knees with his neck flexed forward, intermittently looking up to observe the road and turning around so that he could retrieve items from the back seat;
(b) The Panel determined, on its own expertise, ‘that maintenance of the neck in a flexion position can be associated with muscle pain’; and
(c) The plaintiff did in fact develop neck pain, along with other symptoms, suggestive of injury contemporaneous with his employment.
Question 2 included the words drawn from paragraph (h) of the definition of ‘medical question’ in s 3 of the WIRC Act, namely whether the worker’s employment was in fact or could possibly have been a significant contributing factor to the injury.
The plaintiff argued that, because the Panel had found he suffered from pain, it followed that it must be at least possible that he had sustained an injury related to his work. That meant that it was not open to the Panel to find that it was impossible that employment had been a significant contributor to an injury.
The plaintiff relied on Mackinlay v Corlett[12] for the proposition that, in certain circumstances, it is not open to a medical panel to reach conclusions that a particular injury was not the result of a significant contribution by a worker’s employment.[13]
[12][2016] VSC 376 (Mackinlay).
[13]Mackinlay [31]–[33].
Counsel for the plaintiff supported this submission with reference to various medical records wherein the plaintiff had complained of pain. These records were contemporaneous with the plaintiff’s employment.
The plaintiff argued that, because the Panel had found that maintenance of the neck in a flexion position can be associated with muscle pain, this must ’inevitably lead to the conclusion that there was a compensable injury’ to the neck.[14] As such, so the argument went, it was not open to the Panel to form the opinion that there had been no injury.
[14]Mackinlay [31].
The submission that the Panel’s finding of muscle pain means that it was not open for the Panel to find that there is no soft tissue injury is not supported by any authority.
On the contrary, applicable authorities suggest that the merely subjective experience of symptoms without an underlying physiological change would not be an injury.[15] This suggests that pain may be experienced without an injury being sustained.
[15]Didani v Downes-Brydon [2021] VSCA 281, [39]; Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 483 [57]–[62] (May).
Further, the findings by the Panel that the plaintiff experienced pain, and that maintenance of the neck in a flexion position could cause pain, did not require the Panel to accept that he had suffered a soft tissue injury as well as the injury constituted by his spinal condition. The Panel could well have concluded that the pain experienced by the plaintiff was associated with the spinal condition expressly identified by the Panel, or a combination of this injury and maintenance of the plaintiff’s neck in a flexion position at work, without being caused by a soft tissue injury.
For these reasons, the second ground of the amended originating motion is not made out either.
Conclusion
Neither of the grounds of review have been made out. It follows that the proceeding must be dismissed.
I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
PLAINTIFF: | |
| MAX WORTEL | Plaintiff |
DEFENDANTS: | |
| PROF PETER DISLER | First Defendant |
| PROF GAVIN DAVIS | Second Defendant |
| DR TRAVIS PERERA | Third Defendant |
| DR SAMARI JAYARAJAH | Fourth Defendant |
| DR SUDEEP SARAF | Fifth Defendant |
| SERCO TRAFFIC CAMERA SERVICES (VIC) PTY LTD | Sixth Defendant |
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