Zachariadou v Downes-Brydon
[2021] VSC 425
•19 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 00843
| CHRISTINA ZACHARIADOU | Plaintiff |
| v | |
| DR JENNY DOWNES–BRYDON & ORS (according to the attached schedule) | Defendants |
---
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 February 2021 |
DATE OF JUDGMENT: | 19 July 2021 |
CASE MAY BE CITED AS: | Zachariadou v Downes-Brydon |
MEDIUM NEUTRAL CITATION: | [2021] VSC 425 |
---
JUDICIAL REVIEW – Medical Panel – Claimed injuries to bilateral hands and wrists – Whether Panel acted on an incorrect material finding of fact – Whether a jurisdictional error – Procedural fairness – Reliance on facts without formally notifying worker of their possible significance – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 40(3)(c), 303.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Zaparas Lawyers |
| For the Fourth Defendant | Ms F C Spencer | Russell Kennedy |
HIS HONOUR:
The plaintiff, Ms Christina Zachariadou, seeks judicial review of a Medical Panel’s Opinion of 18 December 2019 insofar as it dealt with questions concerning claimed injuries to her hands and wrists. The Opinion also concerned claimed injuries to her left shoulder and right foot, but the Panel’s answers to those questions are not in dispute.
The dispute that has led to this proceeding arises from the Panel’s answers to medical questions raising the issue of whether Ms Zachariadou’s employment was a significant contributing factor to the aggravation of her pre-existing osteoarthritic condition of her bilateral hands and wrists.
The plaintiff was born in 1962 in Greece. She was employed by the fourth defendant, Steinhoff Bedding Pty Ltd (‘the employer’), Moorabbin, in its mattress manufacturing factory as a machinist from July 2015 until 4 January 2018. As described in more detail later, she operated a sewing machine with foot pedals, to sew fabric into mattress covers and had to push, pull, press and pinch the fabric with her hands, thumb and forefinger in order to hold it in place. The fabric weighed between 3 and 5 kg.[1] She is right-hand dominant.
[1]Court Book, Zachariadou v Downes-Brydon & Ors (Supreme Court of Victoria S ECI 2020 00848, Ginnane J, 4 February 2021) 58 (‘CB’).
She worked long hours six days a week, with five shifts of 10 hours and a Saturday shift of five hours, so amounting to 55 hours a week.
At the time of her examination by the Panel in November 2019, Ms Zachariadou was aged 57. She came to Australia in 2013 due to an economic crisis in Greece. She is married with three adult children and grandchildren all of whom live in Greece. She visited them from time to time, a matter that received some attention by the Panel and in this proceeding.
Ms Zachariadou’s amended grounds for seeking judicial review were first that in determining its opinion on the referred medical questions, the Panel fell into jurisdictional error, by making two fundamental mistakes of fact that each went to a central issue relevant to determining its opinion in answer to Questions 1(a), 2 and 3. The fundamental mistakes were that in determining its opinion on those referred questions, the Panel ‘took into account certain factual material in such a manner as to misconstrue its nature [and] effect’[2] and that material ‘was evidently central to the Panel’s determination of its opinion in answer to questions 1(a), 2 and 3, being part of one of the five intermediate findings relied on by the Panel’.[3] The factual material, the nature and effect of which the Panel misconstrued, was:
(a) in finding that the plaintiff’s wrist and hand symptoms had their ‘probable onset whilst on holidays’ which ‘misconstrued the nature and effect of the history given by the plaintiff as to the timing of a three-week absence from work (on holiday), relative to her first attendance on her GP’, such that the Panel did not perform its statutory duty actually or constructively. ‘Properly construed, the history was that no such logical finding could be made’;[4]
(b) Alternatively, accepting that the above finding was a mis-reference to a finding that the plaintiff’s ‘symptoms worsened when away from work (presumably in October 2016), then that finding too, misconstrued the above history in the same manner’.[5]
[2]Amended Originating Motion [11].
[3]Ibid.
[4]Ibid.
[5]Ibid.
Ms Zachariadou was given leave to amend her first ground during the hearing. The amendment altered it from a ‘no evidence’ ground to a ground that the Panel had failed to perform its statutory duty by misconstruing certain important material.
Ms Zachariadou’s second ground alleges that the Panel denied her procedural fairness.
The Panel’s Certificate of Opinion, contained the questions referred to it by a Magistrate and its answers in the following terms:
Question 1What is the nature of the Plaintiff’s medical condition relevant to the alleged injuries, namely:
(a) Bilateral hand and wrist
(b) Left shoulder
(c) Right foot
Answer: In the Panel’s opinion the Plaintiff is suffering from
(a) Resolved soft tissue injury of the hands and wrists in the setting of constitutional degenerative arthritis of the hands which has been surgically treated
(b) Constitutional calcific tendinitis of the left shoulder
(c) Resolved soft tissue injury of the right foot
Relevant to the alleged injuries.
Question 2Was the Plaintiff’s employment in fact or could it possibly have been a significant contributing factor to any, and if so which, of the injuries alleged?
Answer: In the Panel’s opinion the Plaintiff’s employment was in fact a significant contributing factor to her resolved soft tissue injuries of the hands and wrists and resolved soft tissue injury of the right foot.
Question 3 To what extent has any medical condition (and if so which) resulted from or has been materially contributed to by (and if so, which of) the alleged injuries?
Answer: In the Panel’s opinion the Plaintiff’s resolved soft tissue injuries of the hands and wrists and resolved soft tissue injury of the right foot was but is no longer materially contributed to by the alleged bilateral hand and wrist and right foot injuries.
Question 4Is the worker’s incapacity for her preinjury duties materially contributed to by any condition identified in answer to question 1(b) or 1(c).
Answer: In the Panel’s opinion the worker’s incapacity for her pre-injury duties is not materially contributed to by her constitutional calcific tendinitis of the left shoulder or her resolved soft tissue injury of the right foot.[6]
[6]CB 54-55.
The Medical Panel
The Panel consisted of a general practitioner, a rheumatologist and an orthopaedic surgeon. They each examined the plaintiff on 28 November 2019. They were assisted by a professional Greek language interpreter.
The Panel noted that Ms Zachariadou had made two work related claims: the first on 11 January 2018 for ‘advanced erosive osteoarthritis affecting both wrists’ which she attributed to strenuous repetitive strain at work. The second on 2 July 2019 was for left shoulder and right foot injuries. The Agent rejected both claims, the first on the basis of a report by independent medical examiner Dr Isaac Taubman and the second on the basis that it was out of time.
The Panel’s description of Ms Zachariadou’s medical history
The Panel recorded the following medical history of Ms Zachariadou. She informed them that several years previously she injured her right fourth finger and her left index finger was caught in a machine. Otherwise, before commencing work at the mattress factory, she had no other history of hand or wrist injuries, dysfunction or condition nor of any shoulder or foot condition.
Upon arriving from Greece, she lived first in Darwin. Her medical history as provided to the Panel suggested that she experienced ‘general body soreness in Darwin’. There was also reference to her thumbs being more ‘problematic’. Ms Zachariadou had no recollection of any such medical issue in Darwin and said that she did not see a doctor there other than for visa purposes.
She moved to Melbourne and on 23 March 2015 consulted Dr Brian Pliatsos, a general practitioner, at Hanover St, Medical Centre in Oakleigh, which became the clinic where she usually consulted general practitioners. She complained of the painful swollen base of her first metacarpals bilaterally. Although the doctor ordered x-rays, she did not pursue them because her symptoms settled. Ms Zachariadou considered the pain at that time was due to the different climate in Melbourne.
Ms Zachariadou’s employment history
Ms Zachariadou had worked as a seamstress in Greece. Upon arriving in Melbourne, she worked for a few months repairing and altering garments. In July 2015, she commenced work with Steinhoff Bedding Pty Ltd, the fourth defendant.
I have previously summarised Ms Zachariadou’s work tasks, but will now describe them in more detail. She made mattress covers. This required her to push and pull fabric, while sitting, reaching for and handling material, especially with her thumb and forefinger in a pincer grip. She had to carry sheets of fabric to her work bench and sew them using a sewing machine with foot pedals. She used the palm of her right hand to press down on the thin sheet of material next to the needle while her left hand folded the thick material and brought it together with the other sheet. As the two sheets of material passed through the sewing machine, she held both edges tightly pinching them with her thumbs and index fingers. As she reached a corner, she rotated the material, by pressing firmly on it with her left elbow The fabric was up to 8 metres in length, but was cut to size. She sewed up to 40 large pieces of fabric per shift. Sometimes she had to install zippers which involved applying tape and using a dragging and pulling action. She was required to wear steel toed boots in the workplace. She worked 55 hours a week.
Ms Zachariadou said that because her allotted sewing machine was faulty she had to force part of the material through it and drag the remainder with her left elbow and upper arm, thereby putting a significant strain on her left shoulder. Because of the age and disrepair of the machine, the foot pedal was stiff and hard to operate. Its needle was too low and created further strain for her hands. Towards the end of 2016, Ms Zachariadou was moved to another sewing machine which lessened the force required to pull the two pieces of material together.
The Panel’s summary of Ms Zachariadou’s account of her hand and wrist injuries
Ms Zachariadou told the Panel that by early to mid-2016, after 12 months working at the mattress factory, she started to suffer wrist and hand pain worsening over the course of the day and getting better when she was away from work. The pain was at the base of both thumbs, although the right more than the left. The onset of the pain was gradual and was not associated with any specific incident of injury.
Ms Zachariadou told the Panel that she purchased some firm supportive gloves at a chemist to help ‘stabilise’ her hand and they helped somewhat. She said that she would start the day without symptoms in the hands and wrists, but her hands would be sore by lunchtime.
Ms Zachariadou’s symptoms whilst away from work
The Panel recorded that Ms Zachariadou initially said that in about mid October 2016 she went to Greece for three weeks because her daughter was due to have a baby. The Panel asked her whether that break from work reduced her symptoms at all. The Panel noted that after she commenced work in the mattress factory, her first presentation to a doctor with hand and wrist symptoms was to Dr John Malios on 25 October 2016, which appeared to be after she had returned from three week’s holiday. This suggested that her symptoms worsened whilst she was away from work. The Panel recorded that Ms Zachariadou then gave a number of different accounts of when she visited her daughter in Greece, and could not clarify whether it was prior to the birth of the grandchild, after the birth or whether she was there at all in 2016. She was unable to tell the Panel the year in which her grandchild was born, whether it was 2016 or 2017.
Medical treatment
As mentioned, on 25 October 2016, Ms Zachariadou consulted Dr John Malios, a general practitioner in Hughesdale, who made a provisional diagnosis of basal thumb osteoarthritis and referred her to a hand surgeon, Mr Stephen Tham.
The Panel noted that in November 2016, Mr Tham took a history of Ms Zachariadou which included that she had suffered symptoms in the thumbs for the previous 18 months. He diagnosed arthritis involving the trapezial metacarpal joints of the right and left base of her thumbs and noted that gripping and pinching would exacerbate the symptoms, though without causing the problem.
In the same month, she had plastic moulded splints for her right side constructed and fitted. Immediately thereafter, she had ‘discomfort not pain’ for one and a half months and rated the discomfort at 1-2/10 on a scale where 0 was no symptoms and 10 was severe symptoms. However, after a couple of months things started to get worse, but not because of any new duties, or any new injury. She was ‘under a lot of pressure’.
In 2017, she started to notice swelling in the base of her thumbs and this caused dysfunction of her hands to the extent that she could not hold a glass of water and had to stop driving. Despite the severity of her symptoms, she continued with her work.
On 7 September 2017, she attended Dr Iris Rafalia, a general practitioner at the Hanover St practice, with worsening bilateral pain affecting the base of the thumbs. She was referred for orthopaedic assessment at the Monash Medical Centre surgical unit and underwent blood tests, with showed that inflammatory markers were within normal range. But, she said ‘I was told my hands would be paralysed if there was any more damage and that frightened me’.[7]
[7]CB 60 and 245. I note that a fortnight later on 21 September 2017, Ms Zachariadou consulted Dr Rafalia and told her that she was leaving for Greece for two weeks because it was her grandson’s christening CB 244.
On 4 January 2018, Ms Zachariadou resigned from work and has not worked since. She told the Panel that she felt unable to keep working due to the severity of the symptoms in her hands. By the time she finished work, her hand and wrist symptoms rated 9-10/10 on the scale mentioned.
Surgery to the wrists and hands
Ms Zachariadou told the Panel that between finishing work in January 2018 and undergoing surgery to the right wrist and hand on 12 April 2018 her symptom level dropped only slightly to 8/10 even though she was not using her hands for work. The symptoms in her left thumb and wrist worsened, despite being 9-10/10 when she finished work, and she attributed this to using her left hand more to compensate for her right hand which was out of action.
On 12 April 2018, Associate Professor Leong performed right thumb trapezial and APL suspension sling surgery on Ms Zachariadou, which she paid for herself. She received physiotherapy after the surgery but ‘tendinitis kept recurring’. She experienced some improvement in her right-sided symptoms, to a best rating of 5-6/10. In November 2018, she self-funded left-sided surgery and underwent ‘two different operations’.[8] Associate Prof Leong undertook left thumb trapezial and APL suspension sling surgery and stabilisation of the left thumb MCP joint with a volar plate advancement and K-wire. Ms Zachariadou said that after the surgery on the left side her symptoms gradually improved to a level of 5-6/10.
[8]CB 61.
Upon a further consultation in February 2019, Associate Professor Leong considered that Ms Zachariadou had good functioning of both thumbs and wrists bilaterally. She complained of some mild tendinitis affecting the extensor carpi radialis longus on the dorsum of the right and left forearms. She was having hand therapy. Since that review by Associate Professor Leong, she has not received or undertaken any further or different treatment to her left or right hands, wrists or thumbs.
Ms Zachariadou told the Panel that she has ongoing pain in both her left and right wrists and hands, but not all the time. She has no strength in her hands and wrists and cannot do much with them. The Panel noted that she described being able to work at the mattress factory despite her symptom level being 9-10/10, but, the Panel noted that she later told them that her right wrist and hand symptoms were 4-5/10. She said that her left hand symptoms could reach 10/10 when she undertook particular activities, for example two weeks previously when pouring water into a pot to boil spaghetti. She did not describe current forearm pain and did not describe specific sensory alteration in the thumbs or the hands. She was doing very little in the home and her husband cooks and drives. She takes simple analgesics such as Panadol for pain symptoms
The Panel’s examination of Ms Zachariadou
The Panel conducted a physical examination of Ms Zachariadou and recorded the following matters. It noted many inconsistencies in the history she gave, despite her being assisted by a professional Greek interpreter. Thus on examination while Ms Zachariadou was distracted she demonstrated a far greater range of motion of her wrists, hands and left shoulder than when she was being formally examined. The Panel noted her ability to propel herself around the examination bed by pushing on dorsiflexed wrists and hands, though on formal examination of the range of motion of the right and left wrists and hands, her demonstrated range was far less and she indicated pain on movement. On examination of the right wrist and hand, the Panel noted normal contour and alignment of the metacarpophalangeal joints, interphalangeal joints and wrists. There was no callus and the skin of the hands was smooth. There was minor right-sided thenar wasting. She indicated tenderness to palpation in the region of the snuffbox. The metacarpophalangeal joints and distal interphalangeal joints were all non-tender. Provocative tests for De Quervain’s tenosynovitis was negative. The Panel noted a 3.5 cm well-healed mobile surgical scar on the radial aspect of the right wrist with minor dimpling. There was no associated sensory deficit or alteration about the scar or indicated in any other part of the right hand.
On examination of Ms Zachariadou’s left wrist and hand, the Panel noted mild changes of osteoarthritis in the proximal interphalangeal joint of the fifth finger. The distal interphalangeal joints of the left hand were all normal. She demonstrated mild reduction in range of motion of the metacarpophalangeal joint of the thumb associated with pain, as well as tenderness on palpation. There was mild thenar wasting. She indicated some restriction in flexion of the left wrist due to pain. The Panel noted a 4 cm well-healed longitudinal surgical scar of the left wrist. Sensory examination of the left wrist revealed no consistent sensory alteration.
Medical imaging
The Panel reviewed medical imaging of Ms Zachariadou, including an X-ray of her hands dated 28 October 2016. The Panel considered that the imaging demonstrated normal wrist, normal metacarpophalangeal joints, severe changes bilaterally at the carpometacarpal joints of the thumbs with total loss of joint space and subluxation of carpal bones. There was evidence of an old fracture of the right fourth finger.
A CT of her left wrist and hand on 13 December 2017 showed a cortical irregularity and a large subchondral cyst measuring one cm in maximal dimension at the base of the first metacarpal associated with joint space narrowing and periarticular bony debris. It also showed gross degenerative and hypertrophic change of the left trapezium also involving articulation between the trapezium and the base of the second metacarpal and associated entheseal changes at the articular margin. It also showed severe osteoarthritis involving the CMC joint. An ultrasound of the right wrist and thumb taken on 21 January 2019 noted that she complained of pain over the MCP joint. There was slight thickening of the flexor carpi radialis tendon.
Diagnosis
The Panel considered the following matters in forming its diagnosis of Ms Zachariadou’s bilateral wrist and hand:
•The description of the nature and extent of Ms Zachariadou’s employment duties requiring movement and opposing actions of the fingers and thumb but without exposure to vibration, forceful movements, use of scissors or other equipment in the hands.
•Her period of time performing the work tasks over only 2 ½ years.
•Evidence of established pre-existing degenerative disease of the carpometacarpal joints at the base of both thumbs prior to commencement of employment at the mattress factory.
•The history given by Ms Zachariadou of probable onset whilst on holidays of back ground symptoms with a gradual increase in these background symptoms and dysfunction at the base of the thumbs despite cessation of work, and failure of these symptoms to settle to any extent with cessation of work tasks which is entirely consistent with the symptom pattern of progressive degenerative disease.
•Her description of some wrist and hand symptoms which were not present of a morning, worsened by the middle of the day after performance of work tasks and settled when away from work and would be consistent with the nature of presentation of soft tissue injuries.[9]
[9]CB 64-65.
In submissions, Ms Zachariadou’s counsel described these matters as the Panel’s five intermediate findings.
The Panel stated that Ms Zachariadou’s condition of constitutional degenerative arthritis of the thumbs had been treated surgically, with minimal residual dysfunction.
The Panel concluded that Ms Zachariadou was suffering from resolved soft tissue injuries of the tissues about the wrists, thumbs and fingers of both hands in the setting of constitutional degenerative changes of the carpometacarpal joints of both thumbs which had been treated surgically, but not from any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing constitutional degenerative changes of the carpometacarpal joints of both thumbs.
Contribution of employment to claimed injuries
The questions referred to the Panel required into consider any contribution of Ms Zachariadou’s employment to her alleged medical conditions of the bilateral hand and wrist, left shoulder and right foot conditions. The Panel considered medical reports received with the referral material including that:
•Treating plastic and hand surgeon Associate Professor Leong considered work may have aggravated or accelerated osteoarthritis in both her CMC joints of the right and left thumb.
•Treating hand surgeon Mr Stephen Tham report dated 7 April 2019 considered that the trapezial metacarpal joint arthritis at the bases of both thumbs was not caused by work but that work duties may have worsened her symptoms.
•Treating GP Dr John Malios considered she had a constitutional arthritic condition of the hands and work likely caused an aggravation.
•Medical examiner, surgeon, Dr Charles Flanc considered the wrists and shoulder conditions were related to the nature of her work duties.
•Medical examiner Mr Anthony Menz considered work aggravated and accelerated the osteoarthritic condition in her hands.
•Dr Taubman, consultant physician in General medicine report dated 30 January 2018 with supplementary report 4 June 2018 noted prominent osteophytes and almost total joint space loss consistent with long-standing condition in the hands. He concluded “The bilateral hand condition is a chronic long-standing constitutional medical condition and not an injury, aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative medical condition. The left shoulder condition is constitutional in origin and not an injury.” He considered both conditions are not related to recent employment.
•Medical examiner occupational physician Dr Mary Wyatt did not think that work contributed to the advancement of the osteoarthritis noting the relative short duration of the work activities. Work may have exacerbated her symptoms. …
•Treating hand therapist Jayne Street 28 March 2019 considered work was a significant contributing factor to the hand conditions. She noted the CMC joint of the thumb was under most load and pressured when performing adduction and lateral pinch-type activities. The duties described with use of heavy materials and sewing machine use she considered were exact examples of movements that were known to aggravate and accelerate the symptoms of CMC joint osteoarthritis.
…
The Panel stated that it had again considered:
•The nature and extent of her work tasks and her period of performance of these work tasks for only 2 ½ years.
•The long-standing nature of the degenerative changes noted on medical imaging in her hands predating the onset of her symptoms.
•The (often inconsistent) description of initial presenting symptoms in the hands with no morning stiffness, onset of symptoms during the performance of tasks and resolution of symptoms when the tasks were ceased, and the initial improvement of symptoms with splinting.[10]
[10]CB 66-67.
The Panel concluded that, based on its assessment of Ms Zachariadou and its combined experience and expertise, that her employment was in fact a significant contributing factor to now resolved soft tissue injuries of the hands and wrists in the setting of constitutional degenerative arthritis of the hands which has been surgically treated. The Panel was of the opinion that her employment was not in fact, nor could possibly have been, a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing constitutional degenerative arthritis of the hands and wrists.[11] The Panel reached a similar conclusion to that of Dr Taubman in this respect.
[11]Workplace Injury Rehabilitation and Compensation Act 2013 s 40(3)(c).
Incapacity for work
The Panel concluded that Ms Zachariadou was no longer suffering from any physical medical conditions materially contributed to by her employment. Any incapacity she might have for work was not materially contributed to by any intrinsic physical medical condition attributable to any claimed injuries.
Ms Zachariadou’s submissions
Ms Zachariadou’s case was that her employment at the fourth defendant’s mattress factory had been a significant contributing factor to an aggravation of her pre-existing osteoarthritic condition.[12]
[12]Transcript of Proceedings, Zachariadou v Downes-Brydon & Ors (Supreme Court of Victoria S ECI 2020 00848, Ginnane J, 4 February 2021)T 11 (‘T’).
Ms Zachariadou submitted that the Panel made jurisdictional errors by making fundamental mistakes of fact or findings that were not open on the evidence and which were central to the Panel’s formation of its Opinion and answers to the referred questions. An error in making of a finding of fact that goes to a central issue is a jurisdictional error.[13] The fundamental error the Panel made was that its finding that her wrist and hand symptoms had their ‘probable onset while on holidays’ in Greece.
[13]Chang v Neil (2019) 62 VR 174, 200 [92].
Ms Zachariadou challenged that finding contending that there was no evidence to support it. The medical history she provided did not support it nor did it support any finding that her symptoms worsened when away from work. The history that she provided to Dr Malios and Mr Tham did not suggest that the onset of her symptoms occurred while she was visiting her daughter in Greece. The Panel misconstrued the nature and effect of the history she gave as to her three week absence from work on holiday and its connection with her first attendance on Dr Malios because of hand and wrist pain. The Panel’s finding about ‘probable onset’ played an essential part in the formation of its Opinion. The Panel therefore failed actually or constructively to perform its statutory duty.
Ms Zachariadou argued in the alternative that if the finding of a probable onset was a mis-reference to a finding that the worker’s symptoms ‘worsen[ed] when away from work’, then that finding too misconstrued her medical history.
The Panel recorded a history obtained orally from Ms Zachariadou that by early to mid-2016 she was suffering wrist and hand pain that ‘[worsened] over the course of the day and [got] better when she was away from work’. This suggested an aggravation of her osteoarthritis while at work. The Panel was unable to obtain a clear history from her of when she was away from work for three weeks and therefore could not and should not have made any clear finding about that issue.
In respect of her second ground, the procedural fairness ground, Ms Zachariadou again referred to the Panel’s finding that there was a probable onset of background symptoms whilst on holidays and thus when she was not working. The Panel’s findings on that issue and as to the timing of her trip were pivotal to its ultimate finding as to the sequence of events associated with her symptoms, their development and their connection with her work. It was a finding adverse to her and she should have been alerted to it and given the opportunity to comment on it, at least to confirm precisely when she was in fact overseas. The finding influenced the Panel’s conclusion that she was suffering from ‘resolved soft tissue injuries’ to her ‘wrists, thumbs and fingers … in the setting of constitutional degenerative changes’.
The Panel denied her procedural fairness in making those findings. It reached a conclusion that was adverse to her on that issue because of that finding. It found that her symptoms were ‘entirely consistent with the symptom pattern of progressive degenerative disease’.[14] But it failed to give her any opportunity to adduce additional evidence confirming when she travelled to Greece, which was an issue that she could not have anticipated. If given an opportunity, she could have provided evidence about that question which might have affected the Panel’s finding as to the timing of the onset of her symptoms. Procedural fairness required that the Panel give her such an opportunity.[15]
[14]CB 64.
[15]Calleja v Franet Pty Ltd [1999] VSC 202; Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248; Mackinlay v Corlett [2016] VSC 376.
The employer’s submissions
The employer, the fourth defendant, submitted that the Panel was required to decide what contribution, if any, Ms Zachariadou’s employment had to her claimed injuries. It relied on the Panel’s finding that she suffered soft tissue injuries that had resolved as a result of her work tasks. Ms Zachariadou did not challenge that finding.
Rather, she challenged the Panel’s finding that there was no aggravation of her pre-existing symptomatic constitutional osteoarthritis, which involved the diagnosis and aetiology of her condition, questions which were squarely within the Panel’s expertise and statutory function.
In its conclusions as to diagnosis, the Panel made a positive finding that the nature of Ms Zachariadou’s symptoms when at work, the fact that they were worsened by her work tasks and settled when she was away from work, were consistent with soft tissue injuries and not an aggravation of her progressive degenerative disease. Those symptoms led to her seeing Dr Malios in October 2016. Any symptoms she suffered at work were found by the Panel to be soft tissue injuries and did not support a finding of aggravation of her pre-existing osteoarthritis affecting her hands and wrists, which was part of the natural degeneration of her body.[16] The osteoarthritic condition was already symptomatic before she started work at the mattress factory. She only worked as a sewing machinist for two and a half years and for most of the last year she performed alternative lighter duties on a different machine.
[16]T 43-44.
The Panel considered that the pattern of the symptoms was consistent with the nature of the presentation of soft tissue injuries, and also significant was the persistence of her symptoms despite cessation of her work tasks. The Panel took into account the opinion of other practitioners contained in the referral material.
On the material, it was open to the Panel to infer that Ms Zachariadou’s worsening symptoms coincided with her holiday in Greece and led, on her return, to her seeking treatment from Dr Malios on 25 October 2016. The Panel’s finding about her travel to Greece was based on her evidence. But that finding should not be overstated in its significance to the formation of the Panel’s Opinion, as the Panel only relied on it to form its diagnosis and not in its conclusions about the contribution of her employment to the injuries claimed. The Panel’s conclusions were also based on Ms Zachariadou’s inconsistent description of symptoms and concerns about her reliability. The history taken by Dr Malios included that her symptoms had been becoming progressively more severe. The evidence entitled the Panel to interpret the general trajectory of her symptoms as not involving any settling of them, despite the cessation of her work tasks.
Any errors made by the Panel were not material errors and were not sufficiently important to establish that the Panel failed to perform its statutory function.
In respect of Ms Zachariadou’s second ground, the Panel did not fail to provide procedural fairness as she was aware of the purpose of her examination by the Panel. The fact that she gave a number of different accounts about her travel to Greece showed that she was aware of the importance of that issue or question. The Panel did not arrive at a diagnosis ‘out of the blue’ as she must have been was aware, while being questioned, of the relevance of the severity of her symptoms while she was away from work. Procedural fairness did not require the Panel to give her the opportunity to comment on its thought processes or provisional views before forming its assessment.[17]
[17]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 498-499 [9].
Legal Principles
The legal principle relevant to the first ground was discussed by the Court of Appeal in Chang v Neill.[18] In the joint judgment the Court of Appeal stated that:
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.[19]
[18](2019) 62 VR 174.
[19]Chang v Neill (2019) 62 VR 174, 200 [92].
The role of a Medical Panel in answering questions referred to it was described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[20] in the following passage:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[21]
[20](2013) 252 CLR 480.
[21]Ibid 498-499 [47].
Analysis
First ground - jurisdictional error
In my opinion, Ms Zachariadou has established her first ground of her amended originating motion, which was that the Panel took into account ‘certain factual material in such a manner as to misconstrue its nature and effect’. That factual material was the finding that the ‘worker’s wrist and hand symptoms had their probable onset while on holidays’.
Ms Zachariadou’s first amended ground arises from the Panel’s statement of one of the matters that it considered in forming its diagnosis:
The history given by Ms Zachariadou of probable onset whilst on holidays of back ground symptoms with a gradual increase in these background symptoms and dysfunction at the base of the thumbs despite cessation of work, and failure of these symptoms to settle to any extent with cessation of work tasks … is entirely consistent with the symptom pattern of progressive degenerative disease.[22]
[22]CB 64.
In this passage, the Panel misconstrued the history that Ms Zachariadou gave specially in concluding that she had a probable onset of background symptoms ‘whilst on holidays’.
The Panel did not describe or identify the nature and extent of the background symptoms which had their probable onset while Ms Zachariadou was on holidays.
The Panel also considered Ms Zachariadou’s description of some wrist and hand symptoms which were not present of a morning, worsened by the middle of the day after performance of work tasks and settling when away from work ‘and would be consistent with the nature of presentation of soft tissue injuries’.
On the basis of these and three other considerations which were not in dispute, the Panel adopted a diagnosis that Ms Zachariadou was suffering from resolved soft tissue injuries of tissues about the wrists, thumbs and fingers of both hands in the setting of constitutional degenerative changes of the carpometacarpal joints of both thumbs which have been treated surgically, but not from any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing constitutional degenerative changes of the carpometacarpal joints of both thumbs.
This led to the Panel’s answer to question one concerning the nature of Ms Zachariadou’s medical conditions, which was that she was suffering from resolved soft tissue injury of the hands and wrists in the setting of constitutional degenerative arthritis of the hands which has been surgically treated.
Ms Zachariadou’s medical records were before the Panel[23] and it is convenient to refer to some of them again to explain my conclusions. They included that on 23 March 2015, she attended Dr B Pliatsos at Hanover Street who noted that her work as a machinist had caused painful swollen first based metacarpals bilaterally.[24] On 25 October 2016 she attended Dr J Malios in Hughesdale.[25] The Panel’s questioning of Ms Zachariadou resulted in her initially stating that she travelled to Greece to visit her daughter in October 2016. The Panel appears to have combined that answer with the date of her attendance on Dr Malios and concluded that ‘in fact her symptoms worsened whilst she was away from work’[26] because of ‘the history given by Ms Zachariadou of probable onset while on holidays’. The fact that the holiday was in Greece, rather than somewhere else or even that she remained at home, was immaterial save that it might well have been thought that Ms Zachariadou would remember when she travelled for the birth of her grandchild. Her retreat from the initial date that she told the Panel appears, along with other matters, to have led it to conclude that her answers were unreliable. But more importantly, the Panel’s acceptance of her initial answer that the trip occurred in October 2016 led the Panel to refer in the diagnosis section of its reasons to ‘[t]he history given by Ms Zachariadou of probable onset whilst on holidays of back ground symptoms with a gradual increase in these background symptoms and dysfunction at the base of the thumbs despite cessation of work’. But Ms Zachariadou gave no such history. Her history, as the Panel elsewhere recorded, was that by early to mid-2016, after 12 months working at the mattress factory, i.e. at the latest in July 2016, that she started to suffer wrist and hand pain worsening over the course of the day and getting better when she was away from work, with pain at the base of both thumbs, and the right more than the left. There was no specific incident of injury and the onset of pain was gradual.
[23]CB 227-253.
[24]CB 253.
[25]CB 198.
[26]CB 59.
In essence, that was the history that she gave to Dr Malios on 25 October 2016, which led him to make clinical findings that were consistent with basal thumb osteoarthritis. While the Panel referred to her attendance on Dr Malios, it did not appear to treat his diagnosis as significant. Rather it placed weight on the date of the attendance to find that the probable onset of symptoms occurred whilst she was on holidays and not while she was at work. It wrongly attributed that history to Ms Zachariadou. The Panel apparently overlooked the significance of the history that she gave Dr Malios and which he recorded in his later report. It was that she had been working as a machinist and for the previous six months had noticed the onset of pain in both wrists and thumbs because of her work, that her work was difficult involving repetitive and forceful use of her arms, wrists and hands, that she had experienced the onset of pain in both thumbs that had become progressively more severe, she had pain extending up her forearms and that her symptoms would settle with rest. That history would place the onset of her symptoms as being at least by March 2016. Dr Malios stated that Ms Zachariadou presented with a history of bilateral osteoarthritis involving the carpometacarpal joints of both thumbs and said that this constitutional arthritic condition occurred in individuals who may have predisposing factors. He said that activities and work that place high stress on the thumb joint, particularly repetitive pinch gripping tasks, may result in an aggravation of the underlying constitutional condition causing the arthritic joints to become and remain symptomatic. He concluded that her work duties would have placed significant stress on the carpometacarpal joint of both thumbs. He considered that the repetitive and forceful pinch grip grabbing when feeding fabric into the machine, would have resulted in aggravation of her underlying constitutional condition. He said that the x-rays confirmed the presence of significant osteoarthritis involving the carpometacarpal joints in both thumbs. He stated that as he not consulted Ms Zachariadou since 2016 he could not provide an opinion regarding her current situation and capacity for employment. His report supported Ms Zachariadou’s contention that she had suffered an aggravation of an underlying constitutional condition while at work. Dr Malios’s report provided no basis for concluding that the history that she gave supported a ‘probable onset’ of symptoms while on holidays.
The reports of Mr Stephen Tham, a hand surgeon, from his examination on 23 November 2016, contained a similar history, although recorded that she had suffered symptoms in her thumbs for 18 months prior to the consultation, i.e. from June 2015, shortly before she commenced work at the mattress factory. Mr Tham diagnosed arthritis involving trapezial metacarpal joints of the right and left base of the thumb and noted that gripping and pinching would exacerbate the symptoms though without causing the problem. He concluded that Ms Zachariadou’s current capacity, arising from symptoms of arthritis at the base of both thumbs, was unlikely to have been caused by her work, however it was also likely that her work duties had worsened and aggravated her symptoms from the basal thumb arthritis. He said that she had not undergone any treatment as her symptoms were intermittent and worsened by gripping-type activities as a machinist. He concluded that it was likely that as her symptoms worsened, she would require surgical treatment, but suggested conservative measures until then because of her age and the lack of significant symptoms.
On 7 September 2017, Ms Zachariadou attended Dr I Rafalia at Hanover Street and said that she worked as a seamstress at a factory and reported worsening hand and wrist pain. The doctor noted that she was suffering from pain and had started to lose her grip strength and was dropping things.[27]
[27]CB 245.
These medical reports suggested an onset of symptoms when Ms Zachariadou was working and not while she was on holidays. She obtained splints, wore gloves and underwent surgery, but she still suffered symptoms at 5-6/10.
The Panel particularly relied on the opinion of Dr Taubman that Ms Zachariadou’s bilateral hand condition was a chronic long-standing constitutional medical condition and not an injury, aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative medical condition.[28] Dr Taubman considered that her conditions were not related to recent employment. However, in reaching the same opinion as Dr Taubman, the Panel misconstrued the medical history that Ms Zachariadou gave it.
[28]CB 143.
The employer submitted that any error that the Panel may have made about the probable onset of Ms Zachariadou’s symptoms did not matter because of the Panel’s conclusion that she had suffered soft tissue injuries that had resolved. Not every error in the taking of a medical history will be a jurisdictional error. But in my opinion, the Panel’s error in misconstruing Ms Zachariadou’s medical history involved a misunderstanding of the facts critical to its conclusion and was a constructive failure to carry out its duty. To apply the words in Chang v Neill,[29] Ms Zachariadou’s history of symptoms was ‘important’ to exercise of its statutory function and the Panel’s error was serious. In my opinion, this erroneous finding of ‘probable onset’ affected other parts of the Panel’s Opinion. It led the Panel to conclude that the employment was a significant contributing factor to Ms Zachariadou’s resolved soft tissue injuries of the hands and wrists, but not to any aggravation of her constitutional degenerative arthritis of her hands. This reasoning was particularly relevant to the Panel’s answers to questions 1(a), 2 and 3.
[29](2019) 62 VR 174, 200 [92].
The Panel’s central finding was that Ms Zachariadou’s employment was a significant contributing factor to ‘now resolved soft tissue injuries of the hands and wrists in the setting of constitutional degenerative arthritis of the hands which has been surgically treated’. But it reached that conclusion having made a diagnosis based on an incorrect understanding of the medical history that Ms Zachariadou gave. That diagnosis is likely to have had an effect on its conclusion that Ms Zachariadou’s ‘employment was not in fact, nor could possibly have been, a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing constitutional degenerative arthritis of the hands and wrists’. The fact that this medical history was incorrect was not a mere academic issue for there were a number of medical opinions concluding that her employment had aggravated her underlying condition. While the Panel had the duty to form its own medical opinion on the referred questions, in this case its conclusions were based on an incorrect construction of the history of her symptoms provided by Ms Zachariadou.
I do not accept the employer’s submission that the Panel’s finding of the probable onset of some of Ms Zachariadou’s symptoms was only as to her diagnosis and did not affect its findings as to the contribution of her employment to her injuries. The diagnosis expressly included the conclusion that there had been no aggravation of her pre-existing condition. That conclusion led to the finding that her employment was not, nor could possibly, have been a significant contributing factor to any aggravation of any pre-existing constitutional degenerative arthritis of her hands and wrists.
The Panel’s construction of the material concerning Ms Zachariadou’s medical history is likely to have been affected by its findings as to the probable onset of her symptoms, because its erroneous conclusion about the ‘probable onset’ of some systems pointed away from any work related aggravation of her osteoarthritis. Ms Zachariadou’s medical history was that the pain in her hand and wrists had worsened while she was working and before October 2016 and not when she was on holidays in Greece or anywhere else. That history, if properly identified and considered, may well have produced a different diagnosis and a different conclusion about whether her work had aggravated her osteoarthritis. I have used the word ‘aggravation’ because a number of the medical opinions considered that an aggravation or acceleration of her osteoarthritis was the cause of Ms Zachariadou’s pain. The statute recognizes ‘any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury’ as being a significant contributing factor to an injury.[30]
[30]Workplace Injury Rehabilitation and Compensation Act 2013 s 40(3)(c).
Based on the evidence to which I have referred, in my opinion, on the evidence presented, the Panel made incorrect findings of fact that the onset of Ms Zachariadou’s symptoms occurred while she was on holidays. That was a significant matter. It was one of five points recorded by the Panel as the basis on which it formed its diagnosis.[31] The matters mentioned in the first three dot points were not in dispute. They concerned the nature and length of her employment in the mattress factory and the evidence of pre-existing degenerative disease. The fourth was the finding of a medical history of probable onset of symptoms whilst on holidays and the fifth concerned the finding of symptoms consistent ‘with the nature of presentation of soft tissue injuries’. There was little reference in most of the medical opinions to soft tissue injuries.
[31]CB 64–65.
Later in the Panel’s reasons, when making findings as to the contribution of the Ms Zachariadou’s employment to her claimed injuries, it referred to her ‘often inconsistent’ description of initial presenting symptoms in the hands with no morning stiffness, onset of symptoms during the performance of tasks and resolution of symptoms when the tasks were ceased and the initial improvement of symptoms with splinting.[32] It seems clear that the Panel considered Ms Zachariadou’s account of her symptoms as unreliable. It found inconsistencies in the history she gave and, inconsistencies on examination of her as she presented with a far greater degree of motion in her wrists, hands and on the left shoulder while distracted and not under formal examination.[33] It is also found inconsistencies in her description of her symptom levels.[34]
[32]CB 67.
[33]CB 63.
[34]CB 62.
But the Panel’s finding of inconsistencies does not lessen the significance of the Panel’s misconstruction of Ms Zachariadou’s medical history and the timing of the onset of her symptoms. It cannot be assumed that if the Panel had correctly construed the accounts of her medical history, that it would have given the same answers to the questions referred to it.
In summary, I do consider that the conclusions reached by the Panel concerning Ms Zachariadou’s trip to Greece and the probable onset of her symptoms while on leave amounted to a constructive failure to perform its statutory function. The Panel’s statutory function was to give its opinion on questions including in this instance, whether a medical condition of Ms Zachariadou was caused or aggravated by her employment and work. It needed to consider and construe the material relevant to those questions. The Panel’s conclusion about the probable onset of the aggravation of her osteoarthritis while on the trip to Greece appears to have significantly influenced its conclusion that Ms Zachariadou was suffering from resolved soft tissue injuries and a progressive degenerative disease and not a workplace injury being an aggravation of that disease. But in reaching that conclusion the Panel did not properly consider the material before it relevant to Ms Zachariadou’s medical history and wrongly concluded that she first presented with symptoms in October 2016 and therefore the symptoms worsened when she was away from work. That assumption about her medical history was likely to have been incorrect as the reports of Dr Malios and Mr Tham attest. The fact that after commencing work in the mattress factory Ms Zachariadou first presented with symptoms of pain in her hands and wrists in October 2016 does not mean that the onset of her symptoms occurred about that time. By concluding that Ms Zachariadou first presented with symptoms to the general practitioner in October 2016 soon after their probable onset while she was on holidays, the Panel misconstrued the material relevant to her medical history in a way that is likely to have affected its answers to the questions it was required consider.
I do not consider that the Panel’s finding that Ms Zachariadou’s condition of the thumbs had been treated surgically with minimal residual dysfunction, or that by February 2019 after surgery Associate Professor Leong considered that she had good functioning of both thumbs and wrists bilaterally, are relevant to a consideration of the Panel’s answers. Nor do I consider relevant that Ms Zachariadou did not challenge the Panel’s finding of resolved soft tissues. The Panel’s failure to accurately identify the material concerning her medical history has resulted in it not performing its statutory duty when considering her claim that her employment was a significant contributing factor to her pre-existing arthritic condition of her bilateral hand and wrist.
Ground two – Procedural fairness
A Medical Panel’s obligation to provide procedural fairness was discussed by Kyrou J in Vegco Pty Ltd v Gibbons:[35]
A medical panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinion on medical questions. A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel’s own medical expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[36]
[35][2008] VSC 363.
[36]Ibid [23].
In many of the cases where a Panel has denied procedural fairness, it has resulted from the Panel basing its opinion on some critical fact that was not expected by the worker, nor capable of being reasonably anticipated and not patently open on the material.
I do not consider that any denial of procedural fairness occurred here. Ms Zachariadou was questioned by the Panel through an interpreter about when she had gone to Greece and whether her symptoms had first occurred in Greece causing her to consult Dr Malios. All of these matters were raised with her and I see no reason why the Panel denied her procedural fairness because of the process by which it made its finding about the timing of her trip to Greece. Of course, I have concluded that the use it made of that finding in combination with its erroneous understanding of Ms Zachariadou’s medical history did lead to it making the jurisdictional error identified in ground one.
Conclusion
The plaintiff has established ground one of her amended notice of motion. Orders in the nature of certiorari and mandamus should issue. Counsel for the employer raised the issue of what questions should be considered again by a new panel in the event that the plaintiff succeeded.[37] I will receive written submissions from the parties about that matter and the question of costs.
[37]T 3-4, 57.
SCHEDULE OF PARTIES
CHRISTINA ZACHARIADOU
Plaintiff - and –
DR JENNY DOWNS-BRYDON
First Defendant DR MARIE FELETAR
Second Defendant A/PROF MIRON GOLDWASSER
Third Defendant STEINHOFF BEDDING PTY LTD Fourth Defendant
0
5
0