Plaintiff v Defendants

3 In 2014, Mr Mackinlay brought proceedings in the Magistrates' Court seeking payments of compensation pursuant to s 93 of the Accident Compensation Act 1985 (Vic) for injuries to his right hand and arm. The Magistrate, at the request of one of the parties, referred four medical questions to the Medical Panel in April 2015.

4 The Panel was comprised of three members, Mr Karna, a rheumatologist, Mr Corlett, a plastic surgeon and Dr Adlard, a psychiatrist. In August 2015, the Panel issued a certificate with accompanying reasons. It determined that Mr Mackinlay's injuries to his right hand and wrist with an associated psychological reaction were not related to his employment. The inevitable consequence of this finding, if it remains intact, is that Mr Mackinlay's claim for compensation will be dismissed.

5 Mr Mackinlay argues that the decision of the Panel is attended by jurisdictional error and a denial of procedural fairness; accordingly, it should be quashed and remitted to a freshly constituted Medical Panel. He alleges that there are three specific grounds of error, which I will set out in a moment. There is also a half-hearted complaint of inadequacy of reasons.

6 I have concluded that Mr Mackinlay is correct in relation to one ground only. I think that, based on the Panel's own findings, it should have concluded that Mr Mackinlay sustained a compensable injury - albeit one of a limited nature. Grounds two, three, and four will be dismissed.

7 The Panel which determined the questions should reconsider its answers to the compensable injury issue - and related questions - in light of these reasons.

8 At the commencement of the hearing, I gave leave to Mr Mackinlay to amend his originating motion to include a fresh ground of review[2] (which he ultimately succeeded on). In precis, he makes the following complaints:

• the Panel should have concluded that there was a compensable injury in the form of a laceration to the right middle finger with consequential pain and disability (the first ground);
• the Panel relied too heavily on a DVD depicting Mr Mackinlay's duties to the exclusion of other material in determining the nature of Mr Mackinlay's work (the second ground);
• the Panel, in concluding that the cause of Mr Mackinlay's significant right hand disability was due to longstanding diabetes and thyroid disease, rather than work related carpal tunnel syndrome, denied Mr Mackinlay procedural fairness as he could not have reasonably anticipated such a finding (the third ground); and
• the reasons of the Panel are inadequate (the fourth ground).

9 I will deal with the first three points in some detail. The fourth ground is hopeless. The reasons of this expert 'non-lawyer' panel are totally comprehensible with a clear path of reasoning[3] - indeed, they provide the foundation for the attack on the other three grounds. In the context of this case, Gillard J's illuminating description of this ground of appeal as 'the refuge of the desperate' is apt.[4] It is not necessary to say anything more about this complaint.

10 Mr Mackinlay was employed by Sargeant from January 2011 until January 2014. His duties involved driving and loading/unloading trucks.

11 On 22 January 2014, Mr Mackinlay lodged a claim for weekly payments and medical and like expenses pursuant to the Accident Compensation Act 1985 (Vic) (the old Act), alleging an injury to his right hand which was said to have occurred in November 2012, and again in April 2013. The claim form, which did not state a specific date of injury, describes the injury as follows:

Right hand. Tendon middle finger - spur on previous broken bone. Pain in hand and arm.

12 In February 2014, this claim was rejected by the claims agent of Sargeant.

13 Mr Mackinlay lodged a further claim in September 2014 - this one pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the new Act). The claim form describes the injury as being a 'right carpal tunnel syndrome' suffered by 'gradual process throughout the course of employment'.

14 In September 2014, this claim was also rejected by the claims agent.

15 Mr Mackinlay then issued proceedings against Sargeant in the Magistrates' Court seeking weekly payments of compensation. On 30 March 2015, a Further Amended Statement of Claim was filed, which contained the following particulars of injury:

Injury to the right hand

Fracture to the right fifth metacarpal

Right carpal tunnel syndrome

Thickening of the flexor sheath of the right middle finger

Chronic adjustment disorder with anxiety and depression

Chronic pain disorder.

16 On 21 April 2015, his Honour Magistrate Garnett referred four medical questions to the Medical Panel for opinion pursuant to s 274 of the new Act. The questions (and answers subsequently provided by the Panel) were as follows:

Question 1: What is the nature of the plaintiff's medical condition relevant to the injuries alleged in paragraph 5 of the Amended Statement of Claim [particulars omitted]?

Answer: In the Panel's opinion, the Plaintiff has right hand symptoms associated with a neurological deficit as a complication of long standing diabetes and thyroid disease.

Question 2: Was the plaintiff's employment with the defendant a significant contributing factor to any and if so which of the alleged injuries?

Answer: No.

Question 3: if yes to (2), does the plaintiff have a capacity for his pre injury duties?

Answer: Not applicable

Question 4: If yes to (2), to what extent does this incapacity result from or is materially contributed to by any and if so which of the alleged injuries?

Answer: Not applicable.

17 The referral to the Panel in April 2015 included the information required by s 304(a) of the new Act and was accompanied by the usual voluminous bundle of documents, including a raft of medical reports, statements (signed and unsigned), investigation reports, and claims for compensation.

18 Although nothing significant turns upon the legislation, it is helpful to understand how the new and old Acts deal with claims for compensation and referrals to Medical Panels - at least in precis. I am indebted to counsel for both parties who steered me through the thickets of two extraordinarily large and complex statutes.

19 In summary, the schemes interact as follows: the new Act commenced on 1 July 2014. Sections 5 and 6 of the new Act contain transitional provisions - so, injuries occurring prior to 1 July 2014 are still covered by the old Act. Accordingly, the old Act, although repealed, is still used for the purposes of entitlement in a case such as this. However, for any matters relating to return to work, dispute resolution, or self-insurance, part 6 of the new Act applies. So, given there was a referral to the Medical Panel after 1 July 2014, the dispute resolution division of the new Act applies.

20 Medical and employment material was lodged by each party, as well as submissions as to the manner in which the Panel should answer the questions posed by the Magistrate.

21 The submissions on behalf of Mr Mackinlay were succinct and directed to one issue - the development of carpal tunnel syndrome of the right hand and its relationship to Mr Mackinlay's employment. No submissions were made in respect of any other injury or condition of the right hand.

22 On the other hand, the submissions on behalf of Sargeant were wide ranging and dealt with a number of issues, which included the following assertions:

(a) Mr Mackinlay has 'underlying constitutional vulnerability' and presents a 'complex clinical picture' of non-compensable explanations for his pain and restrictions - including diabetes, neuropathy, obesity, heart disease, lumbar spine issues, and previously depression;

(b) the development of carpal tunnel syndrome of the right hand is due to Mr Mackinlay's underlying constitutional vulnerability;

(c) the effects of the injury to Mr Mackinlay's right finger after the laceration on 8 April 2013 ceased after successful treatment;

(d) the claimed mechanism for the bone spur is unclear and unsubstantiated;

(e) the nature of Mr Mackinlay's work as heavy was an incorrect characterisation;

(f) Mr Mackinlay's history of spinal injury may explain his hand condition; and

(g) there was no compensable psychological injury from which Mr Mackinlay suffers.

23 As mentioned, the Panel concluded that any triggering of the right middle finger and the right carpal tunnel syndrome were not related to Mr Mackinlay's employment.

24 As to the work performed by Mr Mackinlay, the Panel viewed a DVD which purported to show Mr Mackinlay's duties, and noted that:

(a) Mr Mackinlay's work involved 'bucking and unbuckling the straps, opening and closing the side curtains, sliding and at times lifting the gates and roof supports';

(b) the loading was carried out by others with a fork lift; and

(c) the average deliveries per day was two, sometimes up to four (depending on trip length).

25 In relation to Mr Mackinlay's medical history, the Panel noted that Mr Mackinlay:

(b) has been taking thyroxin for hypothyroidism for approximately 20 years; and

26 The Panel referred to Mr Mackinlay's infection to his right middle finger, which was due to a minor laceration occurring in April 2013, and said:

(a) it resolved quickly after a course of antibiotics;

(b) his hand function subsequently returned to normal; and

(c) there was no relationship between that injury and the later triggering of the finger, which occurred in November 2013.

27 As to the diagnosis of carpal tunnel syndrome of the right hand, the Panel said:

(b) while an electromyography suggested compression in the carpal tunnel, there was an absence of clinical correlation.

28 In its conclusion regarding the cause of the development of carpal tunnel syndrome, the Panel found that:

(a) Mr Mackinlay's duties did not involve the kind of movements known to be associated with its development; and

(b) therefore, there is no relationship between his work and development of the syndrome.

29 Finally, in relation to any ongoing right hand symptoms, the Panel found that:

(a) work did not contribute to the symptoms in any way;

(b) they are associated with Mr Mackinlay's diabetes and thyroid disease; and

(c) any exostosis (growth of tissue on a bone) of the right middle finger is related to a previous injury - the July 2012 fracture (which was not in dispute before the Panel).

The first ground: was the conclusion of 'no injury' in answer to question two open on the evidence?[5]

30 The injuries which the Panel was required to consider included an injury to the right hand. In its reasons, it concluded:

The Panel noted that the Plaintiff sustained an infection in his right middle finger following a minor laceration at work in April 2013. The Panel noted that the infection settled rapidly with intravenous antibiotic treatment and that his hand function returned to normal. The Panel noted that the Plaintiff did not develop triggering in his right middle finger until November 2013, some 7 months later. The Panel considered that there was no relationship with any triggering of the right middle finger and the previous infection which was short lived and had resolved completely.[6]

31 Given the conclusion in the emphasised part of the extract at [30], it was not open to the Panel to reach a 'no injury' answer to question 2 in the certificate. The alleged injuries requiring consideration by the Panel included an injury to the right hand and the Panel found there was a work-related infection of the right little finger. That finding must inevitably lead to the conclusion that there was a compensable injury to the right finger.

32 It follows that the answers to the questions, and particularly question two, are inconsistent with the reasons. It is also apparent that question one would be answered differently and questions three and four would need to be reconsidered.

33 I should add this: one cannot be overly critical of the Panel's answers. Mr Mackinlay's submissions did not mention the laceration and focused solely on the carpal tunnel syndrome and its consequences. Sargeant's submissions were also primarily directed at disassociating Mr Mackinlay's work from the development of carpal tunnel syndrome. However, ironically, its submissions did identify the injury to the right finger and the short-term nature of its effects.

The second ground: reliance on the DVD and inaccurate medical history[7]

34 Mr Mackinlay argues that the DVD depicts an 'erroneous history' of his duties, which were, in reality, significantly more demanding than shown on the DVD - and that this constituted taking into account an irrelevant consideration.

35 In the particular supporting this ground, Mr Mackinlay asserts that he was asked various questions by the Panel about his duties and that the Panel wrongly recorded that the DVD accurately depicted his duties.

The worker told the Panel that he had worked as a truck driver with Sargeant Transport from November 2011, driving B double trucks. He said that his work involved buckling and unbuckling the straps, opening and closing the side curtains, sliding and at times lifting the gates and roof supports. He said that the loading was done by other workers with a fork lift. He said that he would average 2 deliveries per day but sometimes up to 4, if the trips were short....

... The Panel viewed, together with the Plaintiff, a video of the type of work involved in buckling, unbuckling, opening and closing of the side curtains of a B double truck. The Plaintiff confirmed that that was the type of duties he performed.

The Panel noted the Plaintiff's type of work and considers that it did not involve prolonged forceful twisting and pressure known to be associated with the development of carpal tunnel syndrome and considered therefore that there is no work relationship with any alleged right carpal tunnel syndrome by any production, recurrence, aggravation, exacerbation, acceleration or deterioration.

Similarly, the Panel considers the nature of his work did not contribute to any production, recurrence, aggravation, exacerbation, acceleration or deterioration of any alleged triggering or thickening of the flexor sheath of the right middle finger...[8]

37 The Panel also noted at page 3 of its reasons that it took into account the history given by Mr Mackinlay and the documents provided to it.

38 Mr Mackinlay asserts that the Panel ignored his evidence that the DVD did not show all of his work duties. However, the reasons clearly demonstrate that the Panel considered that the DVD merely depicted 'the type of work' he performed. This does not mean that the Panel ignored Mr Mackinlay's account.

39 Moreover, the DVD was only part of the evidence before the Panel as to Mr Mackinlay's work duties. It had his own account of his tasks (which it noted), other histories given to doctors, investigators' reports, which included descriptions of the system of work, photographs of the truck, and statements of Mr Mackinlay and other employees as to his work duties - all of which it said that it took into account.

40 Even if it was accepted (which I do not) that the Panel had erred in its understanding of the scope of Mr Mackinlay's work duties, in the circumstances of this case, this constitutes a factual error and does not necessarily amount to jurisdictional error.[9]

41 In truth, this complaint is not one of jurisdictional error - but a suspicion that the Panel placed too great an emphasis on the DVD.

42 Next, the criticisms made of the Panel's history of Mr Mackinlay's diabetes and thyroid history are both minimal and pedantic. It is clear, as it stated, that the Panel based its opinion correctly on a 'long standing' history of insulin dependent diabetes.[10]

43 Finally, although it is not part of the originating motion, I reject counsel for Mr Mackinlay's suggestion that the Panel was obliged to make further inquiries of Mr Mackinlay as to his work duties.

The third ground: denial of procedural fairness

45 Mr Mackinlay contends that he was denied a fair opportunity to be heard, in that he could not have reasonably anticipated the Panel's conclusion that his injury was the result of long standing diabetes and thyroid disease, as opposed to work related carpal tunnel syndrome.

46 In other words, according to Mr Mackinlay, the Panel's opinion 'came out of the blue' and had he been given notice of the Panel's working opinion, he would have sought to put further medical evidence before it and made further submissions.

47 Of course, it was the function of the Panel to provide its opinion on the material provided, coupled with its members' expertise. The High Court, in Wingfoot Australia Partners Pty Ltd v Kocak,[11] discussed the function of a medical panel as:

neither arbitral nor adjudicative: it was 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.[12]

48 It is trite that a Panel must afford parties procedural fairness. As Ashley JA in North v Homolka[13] stated:

It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material.[14]

49 In similar vein, Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman[15] said:

A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion - say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners - such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts.[16]

50 Throughout its reasons, the Panel expressed doubt in relation to the diagnosis of carpal tunnel syndrome. In addition to its own examination and assessment of Mr Mackinlay, it based this conclusion on the material before it; namely, the reports of Mr Mackinlay's treating doctor and rheumatologist, and the submissions of Sargeant, which I will now outline.

51 Dr Kostos, rheumatologist, in reports in February 2014 and February 2015, opined that both work and failed surgery contributed to Mr Mackinlay's 'current problems' and, inter alia, that:

(a) Mr Mackinlay's reported symptoms, which he claims to be from carpal tunnel syndrome, were atypical;

(b) it is well known that there is a strong association between thyroid complaints and diabetes, with carpal tunnel syndrome; and

(c) the nerve clinical studies suggest a 'generalised axonal neuropathy of the right upper extremity, presumably related to his diabetes'.

52 Then there was the report, referred to by the Panel, of Mr Mackinlay's treating doctor, Mr Robbins, who noted that:

(a) symptoms for carpal tunnel syndrome are 'nearly always relieved'; and

(b) Mr Mackinlay's case is odd, given that his complaints of pain 80% of the day in the ulnar side of his hand are unrelated to carpal tunnel syndrome.

53 The Panel also had before it Sargeant's submissions, set out at [22], which proposed an alternative cause of Mr Mackinlay's symptoms and referred the Panel to relevant medical material.

54 So, the Panel's findings were open as an alternative hypothesis as to the cause of Mr Mackinlay's hand disability. Accordingly, the findings were:

(b) not incapable of being reasonably anticipated; and

(c) patently open on the material provided to it.

Its findings - that Mr Mackinlay's injury was not work related, and that he did not suffer from carpal tunnel syndrome - did not come out of the blue, and were not novel in the sense that they could not have been envisaged by the parties.

55 Ultimately, the Panel arrived at a conclusion that was contrary to the interests of Mr Mackinlay. It did so on a basis that was not only open to it, but squarely raised by the medical material and submissions provided by the parties.

57 Mr Mackinlay has established jurisdictional error on the part of the Panel in relation to ground one. Each of the other grounds fails.

58 This is a case in which it is appropriate to remit the matter to the Panel as originally constituted. The Panel will have the guidance of these reasons in reassessing the answers to the four questions. It will be up to the Panel as to whether they wish to re-examine Mr Mackinlay or whether the information they have obtained on the original examinations provides sufficient material to answer the questions.

(a) There be an order in the nature of certiorari in relation to the Panel's opinion and reasons of 4 August 2015.

(b) The Panel's opinion and reasons of 4 August 2015 be quashed.

(c) The medical questions submitted to the Panel by his Honour Magistrate Garnett be determined by the same Panel according to law and in accordance with these reasons.

[1] The first to fourth defendants are the members of the Medical Panel who took a Hardiman (R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13) approach to the application.

[2] Amended Originating Motion dated 23 May 2016, paragraph 11.

[3] Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [22] - [29]; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 (French CJ, Crennan, Bell, Gageler and Keane JJ).

[4] George v Niselle [2005] VSC 177, [56].

[5] Amended Originating Motion dated 23 May 2016, paragraph 11.

[6] Reasons for opinion, M115/1468, p6 (Emphasis added).

[7] Amended Originating Motion dated 23 May 2016, paragraph 12.

[8] Reasons for opinion M115/1468, pages 4 and 6 (Emphasis added).

[9] Milwain v Sim [2009] VSC 75, [22]; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).

[10] Reasons for opinion M115/1468, p7.

[11] [2013] HCA 43; (2013) 252 CLR 480.

[13] [2014] VSC 478.

[15] [2013] VSC 248.