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[2018] VSCA 124
Court of Appeal (Vic)
2018-05-16
Forrest J, Osborn JA, Santamaria JA, Beach JA
Original judgment source is linked above.
[2017] VSC 648 (J Forrest J)
ADMINISTRATIVE LAW - Appeal - Judicial review - Medical panels - Reasons - Adequacy of reasons - Whether reasons disclosed panel's path of reasoning - No error in judge's conclusion that reasons adequate.
ADMINISTRATIVE LAW - Appeal - Judicial review - Jurisdictional error - Whether medical panel erred in recording worker's history - Whether medical panel mistook worker's history - Judge's finding that not satisfied that panel made factual error - No error in judge's conclusion that jurisdictional error not made out.
ACCIDENT COMPENSATION - Appeal - Medical panel - Evidence - Medical panel's notes tendered to prove history given by worker to panel - Conflicting evidence from worker - Judge not accepting worker's evidence - No error in judge's conclusions - Appeal dismissed.
1 Between January 2013 and August 2015, Ms Fotini Karabinis ('the applicant') was employed as a cleaner, at the Alfred Hospital, by Spotless Management Services Pty Ltd ('Spotless'), the fifth respondent.
2 In August 2016, the applicant made a WorkCover claim in relation to her employment with Spotless. In her claim form,[1] the applicant alleged that she had sustained injury to her left shoulder and psychiatric injury. The injuries were alleged to have been caused by 'heavy lifting over the course of [her] employment'.
3 In September 2016, EML Vic Pty Ltd ('EML'), as agent for the Victorian WorkCover Authority, rejected the applicant's claim, contending that the applicant had not sustained an injury arising out of or in the course of her employment.
4 The applicant referred EML's decision to the Accident Compensation Conciliation Service and, on 24 November 2016, pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act') two medical questions were referred to a medical panel for an opinion under div 2 of pt 6 of the Act. The medical questions were:
5 On 31 January 2017, a medical panel comprising the first, second, third and fourth respondents ('the Panel') answered the medical questions as follows:
The Panel provided its answers to the medical questions in a certificate of opinion pursuant to s 313 of the Act. In a separate document, headed 'Reasons for Opinion', the Panel set out its reasons for its answers to the medical questions.
6 In the proceeding at first instance, the applicant sought judicial review of the Panel's decision. The applicant alleged that the Panel:
(a) failed to provide adequate reasons - in essence asserting that the Panel did not explain why it discounted the applicant's work as a cause of her injury; and
(b) took into account irrelevant considerations in reaching its decision - primarily asserting that the work history the Panel took from the applicant was significantly incorrect and that this amounted to jurisdictional error.
7 The judicial review proceeding came on for hearing before J Forrest J on 25 September 2017. On 31 October 2017, his Honour delivered judgment dismissing the applicant's proceeding.[2]
8 The applicant now seeks leave to appeal against the order dismissing her proceeding for judicial review. The applicant's proposed grounds of appeal are as follows:
(a) the Reasons did not explain the actual path of reasoning by which the Medical Panel had formed its Opinion,
(b) the Reasons did not explain the actual path of reasoning by which the Medical Panel had formed its Opinion, in sufficient detail to allow a court to see whether it had made an error of law.
(a) why it rejected work as a cause or contributing factor to the applicant's left shoulder injury,
(b) why it considered that the cause of the applicant's left shoulder injury was constitutional,
(c) why it preferred the constitutional explanation over that of compensable injury.
9 The Panel comprised four medical practitioners: Dr Andrea Bendrups, a rheumatologist; Mr Craig Mills, an orthopaedic surgeon; Dr Diane Neill, a psychiatrist; and Dr Jenny Downes-Brydon, a general practitioner. The Panel members examined the applicant on 13 and 14 December 2016. On 13 December, the applicant was examined separately by Dr Neill. On 14 December the applicant was examined jointly by Dr Bendrups, Mr Mills and Dr Downes-Brydon.
10 As we have already observed, on 31 January 2017, the Panel provided its certificate of opinion, containing the Panel's answers to the two medical questions referred to it, and the Panel's reasons.
11 The Panel's reasons commenced with a recitation of the issues as follows:
The panel noted from the referral and from submissions by the parties provided with referral material that, on or about 11 in August 2016, the worker lodged a claim for injury to her left shoulder and a psychological condition sustained as a sequelae to the claimed left shoulder injury over the course of her employment as a cleaner.
The panel noted that by notice dated 9 September 2016 the Authorised Agent has rejected the worker's claim. The worker disputes this decision and this forms the basis of the issues in dispute and reason for referral to the Medical Panel.
12 The Panel then went on to record the applicant's history as follows:
The worker told the Panel that she commenced work with a cleaning firm in or about January 2013 initially on a casual basis, working at least full time and sometimes more from May 2013.
The worker described the nature of her cleaning duties in a hospital to the Panel. She said that when she first commenced the job she worked cleaning isolation rooms and operating theatres. She said that her duties required her to mop up and down walls, take down privacy curtains for washing, clean beds and side tables, remove linen from beds and clean bathrooms. She said that she had to collect rubbish and move bags of linen. The worker said that the work was fast paced but that she enjoyed it. The worker told the Panel that she cleaned 20 to 25 rooms in an eight hour shift. The Panel specifically clarified how the worker could achieve such targets and the worker considered that she was efficient in the performance of her duties.
The worker told the Panel that prior to commencing work as a cleaner in January 2013 and during the first 1.5 years of her work cleaning isolation rooms and theatres, she had no particular problems with her upper limbs. She said that she did not require any time off work during the first 1.5 years at work for shoulder or upper limb problems and had never previously had injuries or conditions of her upper limbs.
13 The Panel described a further complaint relating to soreness of the applicant's eyes, and her requests for a change in duties, which resulted in the commencement of 'relieving duties' in or about May 2015. The Panel's description of the 'relief duties' was as follows:
The worker told the Panel that when she requested a change of duties there was no specific position available for her so that she was forced to take on 'relieving duties'. She described the nature of her duties as a 'relieving cleaner' which commenced in or about May 2015. She said that she was sometimes required to clean operating theatres, intensive care unit, some offices or the stairs. She said that when she cleaned the stairs she started at the ground floor and worked up to the eighth floor. She said that she had to dust, sweep, mop, and wipe the rails. She told the Panel that when cleaning theatres and the intensive care unit she had to prepare the kitchen, move some stock, vacuum offices, put rubbish out and move linen bags out of the operating theatres three or four times per shift.
The worker told the Panel that she considered that the work she had performed in the isolation wards was more physically demanding than work as a relieving cleaner although she enjoyed the isolation ward work more.
The worker told the Panel that in or about May 2015 she developed the onset of a new pain in her left shoulder. She said it was not like the 'pricking in the top of the shoulder' which she had experienced in or around September 2013.
14 The Panel noted that the applicant undertook a supervisory cleaning role between July 2015 and August 2015, which was less physically demanding. The Panel also noted, however, that the applicant had been unable to work from September 2015. The Panel then described the applicant's symptoms and treatment to the date of their examinations, including her then current symptoms.
15 The Panel outlined its findings on physical examination of the applicant. Then followed the Panel's description of the diagnostic imaging which it inspected and noted:
16 The Panel then discussed the applicant's history, its findings on physical examination and the medical imaging in the following terms:
The Panel noted and accepted the history given by the worker of the nature of her work tasks as a cleaner of isolation wards from January 2013 until or about May 2015 involving fast paced repetitive use of the upper limbs with reaching above the shoulder. The Panel also noted the history given by the worker of an absence of significant left shoulder symptoms during the period of her employment as a cleaner of isolation wards and noted that she ceased this employment due to an unrelated eye condition. The Panel noted and accepts the history given by the worker of less physically demanding duties as a relieving cleaner from or about May 2015 which required a reduction in reaching with the shoulders. The Panel noted and accepts the history given by the worker of the onset and progression of left shoulder pain and dysfunction in or about May 2015 and of the failure of the symptoms to settle despite ceasing work activities. The Panel noted its findings on physical examination of the worker which are currently dominated by non-organic findings. The Panel noted changes on medical imaging of the worker's left shoulder which are entirely consistent with findings of the calcific tendinitis which has been complicated by the development of capsulitis.
The Panel concluded that the worker is suffering from partially treated constitutional calcific tendinitis of the left shoulder, complicated by capsulitis.
17 The Panel then recorded that it had undertaken a mental status examination of the applicant, with the assistance of a Greek interpreter. The Panel said:
The Panel considered that the worker is suffering from an adjustment disorder with depressed mood, which is mild in severity and has partially resolved with treatment and with improved shoulder function.
The Panel considers that the worker's adjustment disorder has arisen as a result of the left shoulder condition.
The Panel noted that the worker has radiological evidence of very mild age related degenerative changes of the left shoulder by way of mild acromioclavicular joint osteophytosis. At the time of the examination the worker indicated no tenderness in the region of the acromioclavicular joint. The Panel also noted the worker's description of the nature of duties leading up to and at the time of the onset of the worker's left shoulder symptoms in or about May 2015. The Panel noted the widespread pain and sensory symptoms described by the worker that have persisted over time, which the Panel considers disproportionate to the history of injury, and unrelated to any objective physical findings or radiological imaging. The Panel noted the worker's complaints of symptoms which the Panel considered to be entirely consistent with the course of a constitutional condition which is characterised by ongoing pain of a fluctuating nature.
19 Having noted the matters just extracted, the Panel expressed its conclusion in the following terms:
Based on its examination of the worker and its consideration of the material contained in the referral including the medical imaging the Panel concluded that the worker's left shoulder condition has not been affected in any way by her employment. As the Panel concluded that the worker's physical condition has not been affected by her employment the Panel also concluded that the worker's subsequent psychological condition has not been affected by her employment in any way at all.
The Panel concluded that the worker's employment was not in fact and could not possibly have been a significant contributing factor to the worker's partially treated calcific tendinitis of the left shoulder, complicated by capsulitis and an adjustment disorder with depressed mood, which is mild in severity and has partially resolved or to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
20 The Panel then noted the following reports provided within the referral material:
21 Having noted these reports, the Panel said that it disagreed with the opinions of Dr Pullen and Dr Haralambakis that the injury was work related. The Panel concluded its reasons, saying:
The Panel disagrees with Drs Pullen and Haralambakis regarding the nature of the worker's conditions of the left shoulder (and therefore her consequential psychiatric condition) and considers that the worker's physical symptoms and presentation are entirely due to constitutional unresolved soft tissue factors and not to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
22 At trial, the applicant submitted that the Panel's reasons were inadequate because they did not explain why the Panel rejected the applicant's work as a contributing factor to her injury.
23 The applicant also submitted that the Panel fell into jurisdictional error when it acted on a wrong history (and one which the applicant contended that she did not give to the Panel). In support of that submission, the applicant swore two affidavits describing her examinations by the Panel and the history she gave. The critical point of dispute concerned the Panel's statement in its reasons that the work the applicant first performed in the isolation wards was more physically demanding than the work the applicant subsequently performed as a relieving cleaner. The applicant swore that in fact she said the opposite to the Panel, and that the work as a relieving cleaner was more physically demanding.
24 In response to the applicant's affidavits, Spotless tendered the handwritten notes (and typed transcripts) of the four members of the Medical Panel. The issue in dispute was dealt with in the notes of Dr Bendrups, Mr Mills and Dr Downes-Brydon. The notes of Dr Bendrups contained the statement 'isolation job was more physically demanding but she enjoyed it more'. The notes of Mr Mills contained the statement 'reliever was easier than isolation'. Originally the word 'harder' was used, but this was crossed out and the word 'easier' was written above it. The notes of Dr Downes-Brydon included the following:
Isolation was easier/best, enjoyed more but more physically demanding.
...
Noted nature of duties in isolation more demanding but she said no symptoms.
25 The applicant gave evidence before the judge that her affidavits were true. The applicant was cross-examined by senior counsel for Spotless for approximately 15 minutes. There was no issue of credit. At the height of the cross-examination, it was put to the applicant that, in giving evidence that the relieving work was more difficult than the isolation work, the applicant was 'remembering what the jobs were actually like' and 'not remembering what [she] told the panel'. The applicant did not accede to these propositions.
26 The judge commenced his reasons with a description of the background facts and issues.[3] The judge then referred to relevant authority and in particular, the High Court's decision in Wingfoot Australia Partners Pty Ltd v Kocak.[4] The judge noted that Wingfoot concerned the standard required of written reasons given by a medical panel under s 68 of the Accident Compensation Act 1985 and that the provisions of s 68 were now to be found in the Act.[5] The judge then set out the following passages in Wingfoot, adding emphasis to two parts of the High Court's reasons:
The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision making by an expert body for no additional legal benefit and no identified systemic gain.
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
... A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[6]
27 The judge then recorded the applicant's complaint that the Panel's reasons were insufficient in demonstrating the Panel's path of reasoning 'either at all, or in sufficient detail to show how it arrived at [its opinion] and whether its opinion does [or] does not involve any error of law'.[7] The judge then said that he did not accept this proposition, and gave the following reasons:
First, it is abundantly clear from the Panel's reasons that it understood its task - to determine whether Ms Karabinis' left shoulder injury was compensable - in the sense that it was an injury within the meaning of s 3 of the Act that gave rise to compensation or whether it arose from constitutional factors unrelated to work. That choice was stark and is demonstrated by the conflict in the medical opinions provided to the Panel which it identified in its reasons.
Second, the reasons explain in considerable detail the work performed by Ms Karabinis, the diagnostic imaging examined by the Panel, the opinions of the various medical professionals who had provided reports considered by the Panel and its conclusion that Ms Karabinis did not suffer a compensable injury as her condition was constitutional and not work related. It said, consistent with the requirements of the Act, that her employment was not a significant contributing factor. That path of reasoning is clearly exposed and, in my opinion, enables the Court readily to determine whether the Panel properly considered the issues as required by the Act.
Third, I do not accept, as was contended by senior counsel for Ms Karabinis, that it was necessary for the Panel to explore why it rejected work as a cause or contributing factor to the left shoulder injury, or, as counsel put it, why it preferred the constitutional explanation over that of compensable injury. Simply put, that is not the purpose of the provision of reasons in a case such as this. The statements of principle of the High Court in Wingfoot makes that clear. It is clear from the Panel's reasons that it undertook its task as it was required to - that is, to determine (on the history provided by Ms Karabinis, the medical material available to it, on its own examination and then applying its expertise to that body of evidence) whether Ms Karabinis had suffered a compensable injury. The Panel correctly set out the provisions of the Act that it was required to consider and ultimately concluded that there was no compensable injury. It was not required to do any more than that. The Panel clearly demonstrated that it had given appropriate consideration to the issues referred to it and applied the provisions of the Act.
Whilst it may have been preferable for the Panel to explain why it rejected Ms Karabinis' work as a contributing factor to the injury it was unnecessary for the purpose of complying with its obligations to provide adequate reasons. I accept that in the context of the review of a judicial decision, as opposed to that of an administrative decision maker, such an explanation, even if perfunctory, may have been necessary. But that would be to apply the wrong test, as Wingfoot makes clear. Simply put, it was not necessary for the Panel to go into any further detail as to why it did not accept that there was a compensable injury of the left shoulder. Indeed, the reasoning of the Panel in this case, when compared to that in Wingfoot, does not need resort to implication. The Panel made it abundantly clear that it considered the alternative diagnoses and rejected that of compensable injury.
Finally, the argument of Ms Karabinis raises a vice which courts are regularly warned by appellate courts (including the High Court) to avoid: the overzealous examination of the reasons for the decision of an expert body which has, it is clear, considered the two alternative hypotheses as to the cause of Ms Karabinis' left shoulder injury condition.[8]
28 The judge then turned to the applicant's alternative ground of jurisdictional error. After dealing with relevant authority, the judge said that he accepted that for an error of fact to give rise to jurisdictional error 'the relevant error or fact must be fundamental and go to the issue that the Panel is bound to consider'.[9] The judge then accepted that the error asserted by the applicant that in May 2015 she had changed from heavier duties to lighter duties (her case being that she told the Panel that she changed from lighter duties to heavier duties) was significant to the Panel's finding that there was no compensable injury.[10] The issue then became whether the applicant had established the factual error for which she contended.
29 The judge set out extracts from the notes of Dr Bendrups, Mr Mills and Dr Downes-Brydon as follows:
The notes of Dr Bendrups, the Chairperson:
In 2015 job changed because of the eyes. Not changed because of the shoulder.
Didn't have a position so did a relieving position, usually theatres, ICU or offices, stairs, mostly doing dusting, sweeping, mopping, windows.
In May 2015 pain increased. Top right shoulder and numbness left arm/patch on elbow and wrist, off and on, depending on what she did the day before. Also left hand became weak. Theatres and stairs, sweeping and mopping made the symptoms worse. Did not do much above head work. Isolation job was more physically demanding but she enjoyed it more. Vacuuming in offices was difficult. Theatre and ICU linen bags were heavy. Lifted half an hour after each operation, three times in the shift.
In May and 2015 noted increased pain. A new pain. Asked Dr for cortisone. Knew about it from other people. GP did ultrasound and CT scan. Team leader said she had to go on work cover. Pain was top of shoulder and numbness on top shoulder. Cortisone helped with pain for three months. Referred to specialist and on Workcover from August 2015. June/July worked 2 or 3 days per week. Normal duties. After Workcover application worked light duties. Given supervisory duties.
The notes of Mr Mills:
reliever was harder (this crossed out and the 'easier' written above)
Finally, the notes of Dr Downes-Brydon:
Doctor suggested to change duties due to red eyes/bleach mid 2015
Isolation was easier/best, enjoyed more but more physically demanding
These notes also include what I take to be an observation rather than a record of what was said:
-idiopathic calcific tendonitis complicated by capsulitis
Noted nature of duties in isolation more demanding but she said no symptoms.[11]
30 Having set out these notes, the judge then said that it seemed to him that the notes were consistent with the history contained in the Panel's reasons,[12] and that the notes made it 'clear that [the applicant] told the members of the Panel that the isolation work was more physically demanding than the relieving work and this is what appears in the reasons'.[13] Ultimately, the judge concluded that he was not persuaded (indeed he said he was 'powerfully persuaded to the contrary') that the Panel incorrectly recorded the history provided to it.[14]
31 Under proposed grounds 1-3, the applicant submitted that the primary judge erred in not finding that the Panel committed an error of law on the face of the record by providing reasons which did not explain the actual path of reasoning which led the Panel to its opinion. Alternatively, the applicant submitted that the judge erred in not finding that the Panel committed an error of law on the face of the record by providing reasons which did not explain the path of reasoning in sufficient detail to allow a court to see whether the Panel had made an error of law. Specifically, it was submitted that the judge erred in holding that it was not necessary for the Panel to explain why it rejected the applicant's work as a cause or contributing factor to the applicant's injury, or why it considered that the cause of the applicant's left shoulder injury was constitutional.
32 Spotless, on the other hand, submitted that there was no error by the judge in rejecting the applicant's complaint about reasons. It contended that the judge carefully identified the relevant principles and correctly applied those principles in determining that the Panel's reasons met the requisite standard.
33 Under proposed ground 4, the applicant submitted that the judge erred in not accepting the applicant's evidence that the Panel erred in its recitation of her history. It was submitted that the applicant's evidence should have been preferred over the notes of the members of the Panel. The applicant submitted (in accordance with her evidence) that the notes of Dr Bendrups were not made contemporaneously. The following points were made:
(1) The notes are not a transcript and do not contain a direct account of what the applicant actually said.
(2) The applicant gave sworn evidence and was cross-examined. The members of the Medical Panel gave no oral evidence and were not cross-examined. Moreover, the notes were hearsay evidence only.
(3) The applicant's honesty as a witness was not challenged. It was not put to the applicant that her evidence was a recent invention or that she was lying.
34 The applicant submitted that the correct approach to the issue was to ask whether the applicant's account of what she told the Panel was, or was not, more probable than the account recorded in the notes of the members of the Panel. It was submitted that it was unlikely that the applicant told the Panel something different from the actual circumstances of her employment. It was then submitted that it was, thus, more probable than not that the members of the Panel made an error in recording their understanding of what the applicant told them.
35 Spotless, on the other hand, submitted that the judge had the advantage of seeing and hearing the applicant. Moreover, the judge's reasons for failing to be persuaded by the applicant were cogent. It was contended that here is no basis for concluding that the judge erred in failing to be satisfied of the applicant's version of events.
36 Under proposed ground 5, the applicant contended that the judge erred in holding that an error of fact by the Panel had to be 'fundamental' before it could amount to jurisdictional error. In response, Spotless accepted that if the applicant could make out the factual error for which she contended then the applicant would have been entitled to relief. Spotless submitted that proposed ground 5 could not be made out because, notwithstanding the judge's statement about any error having to be 'fundamental', the judge proceeded on the basis that if the applicant's error was established then that error would constitute jurisdictional error. It was submitted that, in the circumstances, ground 5 was inutile.
Proposed grounds 1-3: the judge's conclusions about the adequacy of the Panel's reasons
37 The Panel's reasons commenced with a recitation of background circumstances, before moving to a description of the history given by the applicant to the Panel. The applicant's history was described in some detail, before the Panel then turned to its findings on physical examination. The Panel's findings on physical examination were appropriately detailed. The Panel then described the medical imaging, saying that it had viewed the imaging as well as the reports of the imaging provided with the referral material.
38 The Panel then identified specific matters of history that were relevant to the medical questions (and in particular question 2) that it was required to answer. Having noted all of the matters that the Panel considered relevant in answering the medical questions, the Panel expressed its opinion that the applicant's physical and psychological conditions had not been affected by the applicant's employment. Contrary to the applicant's submissions, the Panel also dealt with the issue of whether the applicant's employment caused any 'recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease'. This issue was resolved against the applicant.
39 In our view, the judge was correct when he said that the reasons disclosed the Panel's path of reasoning to its ultimate conclusion. The reasons disclose the significance of the Panel's findings on examination, the diagnostic imaging and the applicant's history, to the Panel's ultimate conclusion. We agree with the judge that, while it may have been preferable for the Panel to explain specifically why it rejected the applicant's work as a contributing factor to her injury, it was not necessary for the Panel to do this for the purpose of complying with its obligation to provide adequate reasons.[15] In our view, the Panel's reasons disclose its path of reasoning in the same way that the path of reasoning of the Panel in Wingfoot was held to have been adequately disclosed in that case.[16] While the resolution of the present proceeding cannot be determined by a mere comparison between the Panel's reasons and the reasons of another panel in another case, the analysis of the reasoning of the Panel in Wingfoot is instructive.
40 In Wingfoot, the High Court held that in order to exclude other possibilities it was sufficient for the medical panel in that case to make an implied finding that the worker suffered no further injury beyond the soft tissue injury which it expressly found had been sustained. The Court said:
The answer to the Worker's complaint lies in the implicit finding of the Medical Panel that the Worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question.[17]
41 The Panel's reasons disclosed that it considered the alternative diagnoses of the applicant's injury and rejected work-related causes. The matters that led to that conclusion were specifically noted in the Panel's reasons. They included, first, the fact that the most recent MRI scan of the left shoulder demonstrated an apparent reduction in the degree of calcification within the shoulder - a change which the Panel twice stated was 'entirely consistent' with calcific tendinitis. Secondly, the fact that the history of symptoms given by the applicant of ongoing pain of a fluctuating nature was also 'entirely consistent' with this diagnosis. This history included the onset and progression of left shoulder symptoms at a time when, according to the history taken by the Panel, the applicant was performing lighter work and the failure of the symptoms to settle despite the applicant ceasing work activities.
42 As we have already observed, the Panel did not explain in express terms why it rejected the applicant's work as a contributing factor to her injury. For this reason we would grant the applicant leave to appeal in respect of proposed grounds 1 and 2. We would not, however, uphold the appeal on these grounds as we have concluded that the Panel's reasons met the standard required by law.[18]
43 We would refuse leave to appeal on proposed ground 3. There is no substance in this ground because the judge did not hold that it was 'sufficient for the purpose of providing adequate reasons that the Panel's reasons showed that it had given appropriate consideration to the issues referred to it and applied the provisions of the Act'. The judge plainly accepted that, to be adequate, the Panel's reasons had to disclose the Panel's path of reasoning.[19]
Proposed grounds 4 and 5: the judge's conclusions about jurisdictional error
44 The applicant's complaints under proposed grounds 4 and 5 reduce to a contention that the judge erred in not accepting the applicant's evidence about the history she said she gave to the Panel. Spotless accepted that if the applicant could make out that complaint, then the applicant would have established jurisdictional error. Spotless's concession conformed with the judge's reasons.[20] Spotless did not seek to contend, in this Court, that such an error (if established) did not amount to jurisdictional error.
45 Having reviewed all of the relevant evidence, the judge said that he was not persuaded that the Panel incorrectly recorded the applicant's history. Of significant importance to this conclusion were the notes of the Panel members Dr Bendrups, Mr Mills and Dr Downes-Brydon. The judge said that these notes made it clear that the applicant told the Panel that her earlier work (the isolation work) was more physically demanding than the work she performed later in time (the relieving work).[21] The judge then observed that the position of the applicant (who had an interest in the outcome of the proceeding) was to be contrasted with the position of the Panel members who, it could be 'readily assumed', were impartial.[22]
46 While it was not put to the applicant in cross-examination, or suggested by Spotless in submissions to the judge (or in this Court), that the applicant's evidence was knowingly false, the judge described the 'litany of complaints' made by the applicant in her affidavits about the history taking of the Panel members as 'unimpressive'.[23] The judge, who had the benefit of seeing and hearing the applicant, formed the 'distinct impression' that some of the applicant's affidavit evidence was an account of what the applicant 'now thinks happened at work, as opposed to what she told the Panel'.[24]
47 This Court is required to conduct a real review of the evidence for itself in order to determine whether the judge erred in not accepting that the Panel incorrectly recorded the applicant's history. Having conducted that review, we see no error in the judge's conclusion. Like the judge, we would reject the applicant's submission that Dr Bendrups' notes were not contemporaneous. We see no basis for a submission that any of the notes were not appropriately contemporaneous, or that they did not accurately record what the applicant said to the members of the Panel.
48 In our view, the judge was correct, for the reasons he gave,[25] to reject the applicant's case that the Panel incorrectly recorded the history given to it. Proposed ground 4 (along with proposed ground 5) must be rejected.
49 While we would grant leave to appeal on proposed grounds 1 and 2, the appeal must be dismissed.
SPOTLESS MANAGEMENT SERVICES PTY LTD Fifth Respondent
[2] Karabinis v Bendrups [2017] VSC 648 ('Reasons').
[4] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot').
[6] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 501-2 [54]-[56] (emphasis added by primary judge).
[8] Ibid [42]-[46] (citations omitted).
[16] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 502-5 [58]-[63].
[18] Ibid 499 [48], 501-2 [54]-[57].
Karabinis
Bendrups & Ors [2018] VSCA 124
(2013) 252 CLR 480