Plaintiff v Defendants

2 As pressed at the hearing, the grounds of the application are that the panel committed a jurisdictional error by failing to take into account a relevant consideration and erred in law on the face of the record by failing to provide adequate reasons for the opinion. It will only be necessary to determine the second of these grounds.

3 The opinion of the panel was expressed under s 313(1) on a reference of questions by the Magistrates' Court of Victoria under s 274(1)(b)(i) of the Act in a proceeding by Ms Trpceva challenging the decision of Spotless's claims agent that she was not entitled to weekly payments of compensation. The critical question for the panel's determination was whether Ms Trpceva was suffering from a back injury to which her employment with Spotless had contributed.

4 The questions referred to the panel and the answers given were as follows:

Q1. What is the nature of the Plaintiff's medical condition relevant to the following alleged injuries:

(a) recurrence, aggravation, acceleration, exacerbation or deterioration of lumbar disc disease;

(b) recurrence, aggravation, acceleration, exacerbation or deterioration of the lumbar spine at L 4/5;

(c) anxiety and depression?

The Panel is of the opinion that the Plaintiff is suffering from symptomatic lower lumbar degenerative change with referred symptoms to the left lower extremity but without objective clinical evidence of radiculopathy and an Adjustment Disorder with depressive features.

Q2. Was the Plaintiff's employment in fact or could it possibly have been a significant contributing factor to any of the alleged injuries?

In the Panel's opinion, the Plaintiff's employment was not in fact, and could not possibly have been, a significant contributing factor to the Plaintiff's current low back or psychiatric condition by way of any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease in any way.

Q3. Does the plaintiff have:

(i) a current work capacity; or

(ii) no current work capacity;

And if yes to (i) would the restricted duties she was performing prior to the 20 September, 2012 of five hours per day for three days per week with breaks of 10 minutes each hour and a lifting limit of 1 kg constitute suitable employment?

In the Panel's opinion the Plaintiff has no present inability arising from an injury such that she is not able to perform her pre-injury employment.

Q4. Does the incapacity for work if any result from or is it materially contributed to by the alleged injuries and which of them, considering each injury separately?

Not applicable.

As can be seen, the panel determined that Ms Trpceva was suffering from a back injury with symptoms down her left leg and that her employment with Spotless had not contributed to, and she had no incapacity for work arising from, that injury. The practical consequence of the opinion is that Ms Trpceva's proceeding in the Magistrates' Court will fail.

5 Among other things, the panel was given documents relating to Ms Trpceva's work history and medical conditions and also a summary of agreed facts. That summary was in the following terms:

1. The plaintiff was born in Macedonia on 29 March 1954 and is currently aged 60 years.
2. The plaintiff attended school in Macedonia to the age of 16. The plaintiff migrated to Australia in 1973. Between 1973 and 1990 the plaintiff returned to Macedonia on a number of occasions before finally settling permanently in Australia.
3. The plaintiff was employed as a cleaner at the Northern Hospital from 1998 and for the Defendant from 2004.
4. The plaintiff's usual cleaning duties prior to November 2009 included lifting garbage bags and bins, vacuum cleaning, lifting/moving goods in the storeroom, dusting, spot cleaning with a machine and using a scrub and buff machine.
5. On or about 24 November 2009 the plaintiff suffered a work related right shoulder injury. The plaintiff subsequently took proceedings for common law damages for pain and suffering and loss of earning capacity for the right shoulder injury.
6. From late 2009, the plaintiff returned to work on modified duties and reduced hours. The modified duties included dusting, wiping and emptying small office bins. The plaintiff's work hours were reduced from 4.00 pm ― 12.00 am five times a week to 4.00 ― 9.00 pm with 10 minute rest breaks per hour, three times a week with a 1kg lifting restriction.
7. After further investigation of the plaintiff's shoulder, the plaintiff was diagnosed with 'right supraspinatus tendonosis with a large full thickness tear'. The plaintiff underwent surgery performed by Mr John Owen, Orthopaedic surgeon on 23 September 2010. The plaintiff's claim for her shoulder injury was thereafter resolved on 17 September, 2012.
8. On 20 September, 2012 the Plaintiff claimed compensation for injury to the low back, left leg and stress and anxiety which occurred on 21 February, 2012.
9. The plaintiff continued to work up to February 2012 in lighter duties. On 21 February 2012 the plaintiff attended her local general practitioner, Dr Jim Ristevski with lumbar pain. The plaintiff underwent a CT scan which demonstrated a 'multilevel disc and facet degeneration, moderate to marked spinal canal stenosis at L4/5, right-sided foraminal stenosis at L5/6 and left sided foraminal stenosis'. The plaintiff was prescribed various medications for the pain including lyrica, endep and panadol.
10. The plaintiff was referred to orthopaedic surgeon Mr Roderick Cunningham, and underwent an MRI on 3 May 2013. The MRI demonstrated a 'L5/S1 quite marked facet joint degenerative change and a focal disc extrusion centrally on the background of a broad based disc protrusion causing a moderate central canal stenosis and moderately severe subarticular recess stenosis bilaterally'.
11. The plaintiff continued to suffer from lumbar pain and was referred for a specialist neurological assessment with Dr Armin Drnada in September 2013. Mr Drnada organised a second MRI of the plaintiff's lumbar spine where a 'multi level disc pathology' was noted. The plaintiff's two discs were found to be 'degenerated at L4/5 with mild lateral stenosis due to hypotrophy of the ligaments'.
12. The plaintiff was recommended surgery to assist with the radiculopathy. The plaintiff was booked for a 'L5/S1 partial facetectomy, microdisectomy and instrument fusion' on 18 March 2014 but due to unforeseen exigencies was unable to undergo this procedure.
13. The plaintiff last worked with the defendant on 23 August, 2012.

With respect to Ms Trpceva's back injury, the summary (and the referred questions) leaves open the question of when and how that injury was sustained.

6 Section 313(2) of the Act requires the panel to provide a written opinion as to referred questions and also a written statement of reasons for that opinion. As regards the statement of reasons, the issue arising in the present case concerns the panel's reasoning in relation to the onset of symptoms relating to the back injury.

7 After setting out Ms Trpceva's employment and medical history, the panel said (page 4 of the statement):

she first began to experience symptoms in her left leg (intermittent numbness) from 2008 and low back symptoms from late 2009. She said there was no specific incident of injury in the workplace but rather a gradual onset of mild intermittent numbness in her left leg (without low back pain) that gradually worsened over the ensuing years without any specific incident of rapid symptom progression.

It can be seen that the panel here has set out (without reservation) Ms Trpceva's account that she first began to experience symptoms in her left leg 'from 2008'. At that time she was working full time as a cleaner for Spotless and had been for many years. This account is plainly consistent with her contention that the back injury was work related.

8 However, the panel went on to answer question 2 adversely to Ms Trpceva without again referring to the left leg symptoms experienced by her in 2008. In this connection, the panel stated (on page 5):

the onset of the Plaintiff's low back symptoms occurred during a period of time when she was on restricted hours and modified duties for her right shoulder injury and not when she was working a full time 40 hour week undertaking normal pre-injury duties including use of scrubbing/cleaning machines.

The difficulty with this statement is that Ms Trpceva told the panel, and it recorded this information without reservation, that she experienced the symptoms in her left leg in 2008 about one year (or more) prior to her injuring her shoulder and going onto light duties in late 2009, that is, at a time when she was working full-time for 40 hours per week undertaking normal pre-injury duties.

The Panel noted an absence of history from the Plaintiff of prior low back pain complaints prior to 2009 when the Plaintiff was undertaking a full range of normal duties ... There is no history of specific workplace injury with the Panel noting onset of symptoms whilst on modified duties and progressive worsening of symptoms without improvement in symptoms on cessation of employment.

Like the earlier statement, these statements are not consistent with Ms Trpceva's account of experiencing left leg symptoms in 2008 when working full-time performing ordinary duties, remembering that the panel accepted that these symptoms related to the back injury.

10 As submitted on behalf of Ms Trpceva, the obligations of a panel to provide a statement of reasons were discussed in Wingfoot Australia Partners Pty Ltd v Kocak.[1] In doing so, French CJ, Crennan, Bell, Gageler and Keane JJ emphasised that, under the legislation, it is for the panel to form and give the opinion:

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.[2]

Further, their Honours said that the function of the panel is not arbitral or adjudicative but to give the 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.[3] 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.[4]

Lastly, they said that the statement of reasons must set out the actual path of the panel's reasoning:

The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.[5]

French CJ, Crennan, Bell, Gageler and Keane JJ went on to state that a failure to do so may result in the opinion being quashed for error of law on the face of the record:

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.[6]

11 Relying upon these principles, it was submitted for Ms Trpceva that, in a critical respect, the path of the panel's reasoning was not sufficiently set out. In particular, the panel did not set out any reasoning in relation to the left leg symptoms experienced by her in 2008. Although the panel accepted (indeed opined) that those symptoms were related to the back injury, it simply did not further advert to this matter after noting her account without reservation. The panel opined that Ms Trpceva's back injury was degenerative and became symptomatic after she went onto light duties (due to an unrelated shoulder injury in late 2009). But it did so without stating how it had reasoned towards this opinion given Ms Trpceva's account of the earlier presence of the left leg symptoms.

12 Resolution of this issue is complicated by the relevant content of the submissions made on behalf of Ms Trpceva and Spotless to the panel. The submissions made on behalf of Ms Trpceva were based upon symptoms experienced by her in her lower back and left leg 'since approximately April 2010' (para 11). This is obviously not a submission that Ms Trpceva was symptomatic in 2008. But that is the account that she gave the panel on examination. Given the questions referred for opinion, it is reasonable to think that the panel would set out its reasoning with respect to this account, especially because it was generally submitted on behalf of Ms Trpceva that her lower back injury had resulted from 'the heavy and repetitive work activities undertaken throughout the course of her employment with the defendant' (para 20). Yet it did not.

13 The submission made on behalf of Spotless was that (para 12):

There are no records of back pain reported by the Plaintiff prior to November 2009 when she commenced restricted duties. The present claim is for back pain commencing on 21 February, 2012. It is submitted that if the Plaintiff has low back symptoms these symptoms are age related degenerative symptoms not caused by the restricted duties she was performing for 15 hours per week over 3 days. It is to be remembered the Plaintiff had hourly breaks whilst performing this employment.

This was a more specific submission than the submission made for Ms Trpceva. It directly asserted that there were no records of back pain prior to November 2009. This expressly raised for the panel's opinion the issue of the date of onset of Ms Trpceva's symptoms. The account that Ms Trpceva gave to the panel (that she was symptomatic in 2008) was not consistent with this submission. In the context of addressing this submission and given the questions referred for the panel's opinion, it is reasonable to think that the panel would set out its reasoning with respect to this account, which it did not.

14 Resolution of this issue is also complicated by the state of the medical and other evidence with respect to the onset of Mr Trpceva's symptoms. Clearly, there was medical evidence to support the panel's conclusion that her low back symptoms began in late 2009 at about the time that she suffered the (unrelated) shoulder injury. However, there was also medical evidence to support a conclusion that Ms Trpceva may have been symptomatic from 2008, as she said she was. The radiological evidence, for example, evidenced the deterioration in her lower back, but left open the date of the onset of the symptoms. Further, the report of Dr Ristevski that Ms Trpceva's low back injury was work related was based upon evidence that her symptoms arose from 2009 but is consistent with those symptoms arising from 2008. The panel's statement of reasons do not go into those matters from the point of view of that earlier date of onset.

15 In her affidavit to the panel, Ms Trpceva stated that her low back symptoms preceded her shoulder injury (para 4), albeit that those symptoms occurred 'from late 2009'. Her account to the panel was that the symptoms had occurred from 2008 (that is, before the shoulder injury) which, as I have already emphasised, the panel noted without reservation. It is also reasonable to think that, given the different accounts and the questions referred for opinion, the panel would set out its reasoning with respect to the differing accounts. It did not.

16 I accept without hesitation the submission made by Spotless that the merits of the answers given by the panel to the referred questions were for the panel to determine and that the statement of reasons of the panel must be read beneficially. These undoubted principles of law were stated in Gamble v Emerald Hill Electrical Pty Ltd[7] by Maxwell P and Cavanough AJA as follows:[8]

Axiomatically, there is no scope on judicial review for a reconsideration of the merits of the decision under review. As Brennan J said in Attorney-General (NSW) v Quin:[9]

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power ... The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

That basal principle underpinned the well-known statement of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[10] describing:

the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

The court described as 'well settled' the propositions enunciated by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd as to 'the practical restraints on judicial review'.[11] The court on judicial review should not be' concerned with looseness in the language ... nor with unhappy phrasing"[12] of the reasons of an administrative decision-maker, and should not construe the reasons for decision 'minutely and finely with an eye keenly attuned to the perception of error'.[13] These propositions have been frequently applied in judicial review proceedings ever since.[14]

17 Relying upon these principles, Spotless submitted, in writing and orally, that the medical and other evidence, and the submissions made on behalf of Ms Trpceva and Spotless, did not require the panel positively to state its reasoning with respect to her being symptomatic from 2008. The statement of reasons of the panel disclose its path of reasoning towards the conclusion that her back condition was degenerative, not work-related. It could not be said that the panel had ignored her account that she was symptomatic from 2008 because the statement expressly mentions it. It was open to the panel to find, as it did, that Ms Trpceva became symptomatic during a period of time when she was on restricted hours and modified duties in respect of the shoulder injury.

18 I accept the submission made for Spotless that there was evidence upon which the panel could have found, as it did, that Ms Trpceva's back injury became symptomatic after her shoulder injury occurred in about November 2009. But this finding necessarily involves consideration of the whole of the evidence with respect to that subject, including Ms Trpceva's account that she became symptomatic from 2008. Within the scope of its jurisdiction to opine, the panel might (after due consideration) reject that account as false, unreliable or contrary to the whole of the evidence. Alternatively, the panel might accept it. The consequences of rejecting or accepting the account are for the panel to consider and determine. But the path of the panel's reasoning would not be sufficient without disclosing its reasoning in relation to this issue. Even read beneficially, as it must be, the statement of reasons of the panel does not set out, implicitly or explicitly, how it so reasoned. I am therefore driven, with some reluctance, to conclude that the statement is not detailed enough to enable this court to see whether the opinion of the panel does or does not involve an error of law. There are no discretionary reasons for refusing relief. Therefore the opinion must be quashed by an order in the nature of certiorari for error of law on the face of the record and the referred questions will be remitted to a differently constituted panel for opinion in accordance with law.

[1] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot').

[3] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 645 (Winneke P).

[4] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47].

[7] (2012) 38 VR 45.

[9] (1990) 170 CLR 1, 35-6.

[10] [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) ('Liang').

[11] [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ) ('Pozzolanic').

[12] Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), citing Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).

[13] Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[14] See, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 66, [23] (Gleeson CJ and Hayne J dissenting) 119 [200] (Kirby J); Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, 42 [123] (Kirby J); Bennett v R [2010] VSCA 280 (22 October 2010) [27] (Weinberg JA and Ashley JA agreeing); compare Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764; (2012) 206 FCR 576, 588-9 [36] (Flick J); Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277, 295 [57] (Marshall, North and Flick JJ).