Plaintiff v Defendants

Supreme Court of Victoria|2016-12-21|Before: CAVANOUGH J

ADMINISTRATIVE LAW - Judicial review - Procedural fairness - Adequacy of reasons - Jurisdictional error - Workers' Compensation - Medical panel - Application to quash opinion of medical panel - Opinion quashed

1 The plaintiff, Mr Rodney Pearce, applies for judicial review of a certified opinion dated 20 October 2014 given by a Medical Panel comprising the first to fifth defendants. The plaintiff so applies under Order 56 of the Supreme Court (General Civil Procedure) Rules.

2 The opinion consists of a set of four medical questions and the answers thereto given by the Panel. The questions were referred to the Panel by the Magistrates' Court of Victoria (at Wangaratta) in the course of a proceeding brought by the plaintiff against his former employer, Network Personnel Pty Ltd, which is the sixth defendant in the present judicial review proceeding. The seventh defendant is the employer's WorkCover insurer, QBE Workers Compensation (Vic) Ltd.

3 In the underlying proceeding in the Magistrates' Court, the plaintiff seeks to overturn a decision made by the seventh defendant to terminate, as from 8 September 2012, the making to the plaintiff of weekly payments of compensation under the Accident Compensation Act 1985 ('the ACA'), being payments which had commenced in 2008 in respect of injury to the plaintiff's back sustained in the course of his employment on 9 July 2008.

4 The proceeding in the Magistrates' Court was commenced in December 2013. As from 1 July 2014, most of the provisions of the ACA relating to dispute resolution were relocated - in largely the same form - to the Workplace Injury Rehabilitation and Compensation Act 2013 ('the WIRCA'). The referral to the Medical Panel was lodged on 7 August 2014.[1] The referral cited s 45 of the ACA as the provision under which the medical questions were referred. However, by that date, s 45 had been repealed and replaced by corresponding provisions in the WIRCA. It became common ground before me[2] that, having regard to the relevant transitional provisions,[3] the medical questions that were referred to the Panel should be treated as having been referred under the relevant provision of the WIRCA[4] and that the Panel's opinion should be treated as having been given under Division 3 of Part 6 of the WIRCA.

5 During the interlocutory stages of the present judicial review proceeding, factual, legal and procedural issues arose out of an allegation made by the plaintiff that the Medical Panel must have misheard or misunderstood or overlooked what the plaintiff allegedly communicated to the Panel orally about the progress of his medical condition in a certain respect. Apparently, the Convenor of Medical Panels took the view that these issues had implications for the general functioning of Medical Panels. As a result, solicitors and senior and junior counsel were instructed to represent the members of the Medical Panel in this matter, as well as in another proceeding (Mann v ISS Facility Services Pty Ltd)[5] in which similar issues had arisen. For a time, Mann was listed to be heard together with this proceeding. Detailed written submissions concerning the issues that had arisen were filed on all sides in both Mann and the present case. However, prior to the scheduled joint hearing date, Mann settled. When the present case came on for hearing, senior and junior counsel for the members of the Medical Panel appeared, but only to inform me that the issues of concern to the Panel had been resolved between the parties, and that counsel sought leave to withdraw accordingly.[6] Leave to withdraw was granted. Hence, in effect, the first to fifth defendants ultimately reverted to the standard course of agreeing to abide the decision of the Court.[7]

6 The plaintiff's originating motion has undergone several amendments. The last of them was made, with leave, by the filing, after the hearing, of a Further Further Amended Originating Motion.[8] Ground 1 of that document alleges a denial of procedural fairness. Ground 2 alleges that the Panel's statement of reasons was inadequate.[9] Ground 3 alleges jurisdictional error (variously characterised).

7 Shortly stated, the remaining issues (as between the plaintiff and the sixth and seventh defendants) are:

(a) under ground 1, whether the Panel failed to accord procedural fairness to the plaintiff by allegedly failing to give him a reasonable opportunity to be heard in connection with a conclusion to which it came, namely that the plaintiff's only work-related injury was a soft tissue injury to his back which had now resolved;

(b) under ground 2, whether the Panel's statement of reasons was legally inadequate by virtue of alleged obscurity; and

**(c) under ground 3, whether the Panel's reasons and opinion should be interpreted as involving - **

(i) an understanding on the part of the Panel that the plaintiff had said to the Panel, in an unqualified way, that his back condition had 'improved 100%'; and

(ii) a finding or findings based on such an understanding,

and, if so, whether, in those respects, the opinion involved jurisdictional error (variously characterised).

8 These issues involve some overlap. However, my short conclusions are:

(a) The Panel did fail to accord procedural fairness to the plaintiff, as alleged under ground 1;

(b) In addition, the Panel's statement of reasons is legally inadequate on account of its obscurity in certain respects, as alleged under ground 2;

(c) However, the Panel's opinion and reasons should not be interpreted in the particular way or ways suggested by the plaintiff under ground 3. Therefore, there is no foundation for the complaint of jurisdictional error.

In consequence, I consider that the Panel's opinion should be quashed and that the matter should be reheard and re-determined by a Panel differently constituted.

9 In order to understand and deal with the parties' contentions, it is necessary to refer to the history of the plaintiff's claims in some detail. All of the matters to which I am about to refer were mentioned in the material that was before the Medical Panel.

10 In May 2008, the plaintiff was in engaged by the sixth defendant (a labour hire company) to work as a labourer at an abattoir in Yarrawonga. On 9 July 2008, the plaintiff was bending forward to unload some tubs of meat hooks from a pallet when he felt the onset of low back pain. Radiological investigations done in July 2008 showed that the plaintiff had what was described as a '[s]mall focal right sided disc prolapse at L5/S1' and 'some mild[10] central canal stenosis at L4/5'.[11]

11 The plaintiff lodged a WorkCover claim form on 18 July 2008 for weekly payments and medical and like expenses pursuant to s 103 of the ACA, describing his injury as 'lower back' and identifying 'back buttocks and both legs' as the affected parts of his body.[12] That claim was accepted by the seventh defendant and the plaintiff commenced receiving weekly compensation payments.

12 On or around 27 March 2009, the plaintiff was seen for treatment by Dr Todhunter, who noted that the plaintiff suffered ongoing lumbosacral pain, right leg sciatica in the L5, S1 distribution and significant groin pain. Dr Todhunter recommended undertaking a right L5, S1 transforaminal epidural injection 'to see if the sciatica component can be reduced'.[13]

13 On 9 June 2009, Dr Todhunter administered the recommended epidural injection. This gave the plaintiff moderate relief. On 25 August 2009, Dr Todhunter gave the plaintiff a second epidural injection because he had had 'increasing pain again down the thigh and medial branch nerves leg [sic] which appears to be in the L5 distribution'.[14]

14 On 28 October 2009, the plaintiff participated in an independent medical examination with Dr Malcolm Brown. Dr Brown reported that the plaintiff appeared to have 'chronic discogenic low back pain, and although he continues to have symptoms, I do not believe these are severely disabling'.[15]

15 On 12 November 2009, the plaintiff lodged a claim for permanent impairment benefits under s 98C of the ACA for: 'Lumbar disc lesion, chronic low back pain, back immobility, referred leg pain, feet and arms'. The body parts affected were listed as 'back, leg, feet, arms and groin'.[16] On 2 February 2010, by letter, the seventh defendant accepted liability for 'the claimed lumbar disc lesion'.[17] It rejected liability for 'the claimed chronic low back pain, back immobility, referred leg pain, feet and arms'.[18] It stated in its letter of decision that the reason for the rejection of these latter claimed conditions was that they were 'regarded as symptoms and not injuries'.[19] The seventh defendant made a payment of $10,250 to the plaintiff as a permanent impairment benefit[20] under s 98C of the ACA.[21]

16 On 16 February 2010 (which was about six months after the second epidural injection), Dr Todhunter reported that the plaintiff was experiencing increasing pain in his back 'which was not as such a [sic] problem at the start'.[22] Dr Todhunter continued:

He still gets pain in the thighs but not below the knees.

He is quite disabled by his pain but able to undertake little [sic] physical activity.

Dr Todhunter also recommended that the plaintiff pursue a pain management program.[23]

17 By a written notice dated 4 June 2012, the seventh defendant terminated the plaintiff's weekly payments, effective 8 September 2012. Relying, apparently, on s 93C of the ACA, the seventh defendant advised the plaintiff that his payments had been terminated because:[24]

you are no longer incapacitated for work.
weekly payments have been paid or payable to you for a total of 130 weeks (whether consecutive or not), and:

you have a current work capacity

alternatively, you have no current work capacity but it is not likely to continue indefinitely

18 In the termination notice, the seventh defendant referred to various documents and medical reports.[25] After referring to the abovementioned report of Dr Brown relating to his examination of the plaintiff on 28 October 2009, and to Dr Brown's diagnosis of 'discogenic low back pain', the termination notice continued:[26]

Dr Geary, [your] General Practitioner, provided a medical report on 13 January 2010 and provided the opinion that you were suffering from chronic back pain, although you were fit for modified duties. You were being certified with certificates of capacity which reflected this.

An [Independent Medical Examination] also took place with Dr Poppenbeek on 31 August 2010 and a report was provided on the same day. Dr Poppenbeek was in agreement with the diagnosis provided by Dr Brown in 2009. Dr Poppenbeek was of the opinion that you would be able to return to alternative duties with restrictions, although he did raise a concern in relation to your psychiatric condition.

On 25 August 2011, you participated in an [Independent Medical Examination] with Mr Scott and a report was provided on the same day. In relation to your capacity for employment, Mr Scott stated that you were unfit for pre-injury duties and hours, although you have a limited capacity for alternative employment with restrictions.

You also participated in an [Independent Medical Examination] with Dr Rose on 25 August 2011 following a report of same date. The opinion of Dr Rose was that you were suffering from schizophrenia, although this condition was constitutional in nature and not related to employment. Dr Rose also stated that in relation to your psychiatric condition alone, you were fit to return to your pre-injury employment.

Based on the opinion of Dr Rose, you were issued with a notice ceasing your entitlement to weekly compensation and medical and like expenses for your psychiatric condition, effective 23 October 2011. You lodged conciliation in relation to this matter, although withdrew the request at a later date.

A medical report was requested from Dr Geary and a response was provided on 19 October 2011. Dr Geary was of the opinion that occupational rehabilitation would be helpful in returning to suitable employment.

The termination notice proceeded to record that, in consequence of the medical opinions received, the plaintiff was referred to a vocational assessment provider which identified certain 'suitable employment options'.[27] According to the notice, Mr Scott (one of the abovementioned independent medical examiners) then reviewed the vocational assessment and reported that he remained of the opinion that the plaintiff was fit for light work with restrictions. It was noted that, on the other hand, Dr Geary continued to provide the plaintiff with ongoing certificates of capacity stating that he was unfit for all work. It was then mentioned that the plaintiff had indicated a desire to participate in certain retraining. The termination notice summed up as follows:[28]

Taking into consideration the above information, QBE believes that you are no longer incapacitated for suitable employment and that you have a current work capacity. However, if found that you have no current capacity for employment, which we deny, this is not likely to continue indefinitely. Consequently, you are no longer entitled to weekly payments, pursuant to the Accident Compensation Act 1985, effective 8 September 2012.

19 In my opinion it is fair to say that the gist of the sixth and seventh defendants' position at that time was to the effect that, although the plaintiff had suffered a work-related injury, symptoms of which continued, he nevertheless had some capacity for work.[29]

20 As mentioned above, in December 2013 the plaintiff brought proceedings against the employer (the present sixth defendant) in the Magistrates' Court in Wangaratta disputing the seventh defendant's determination and seeking reinstatement of his weekly payments of compensation.

21 In paragraph 3 of the statement of claim in the Magistrates' Court, the plaintiff pleaded that on or about 9 July 2008 he had sustained injury in the course of his employment with the employer. The following particulars of injury were given:[30]

Lumbar disc lesion.

Chronic low back pain.

Back immobility.

Referred leg pain.

Pain, restriction of movement and incapacity of the lumbar spine.

Production, aggravation, acceleration and exacerbation of lumbar disc degeneration.

Sciatic. [sic]

Nerve root irritation.

Nervousness.

Anxiety.

Depression.

22 The defence of the employer (the sixth defendant) was dated 28 February 2014.[31] In response to paragraph 3, the employer pleaded:

SAVE THAT IT ADMITS by claim form dated 18 July 2008 the plaintiff made a claim in respect of his 'back, buttocks and both legs' for which liability was accepted IT OTHERWISE DOES NOT ADMIT the allegations contained in paragraph 3.

23 Paragraph 7 of the statement of claim was in the following terms:

The plaintiff's incapacity for employment results from or was materially contributed to by the injuries.

24 In response to paragraph 7 of the statement of claim, the employer pleaded:

SAVE THAT IT DENIES the plaintiff has been incapacitated since 8 September 2012 and that any incapacity since has resulted from or has been materially contributed to by his work related injuries IT OTHERWISE ADMITS the allegations contained in paragraph 7.

25 Paragraph 8 of the statement of claim was as follows:

On or about 22 March 2010 the defendant accepted liability pursuant to s.98C of the Act for lumbar disc lesion sustained by the plaintiff on 9 July 2008 and paid to the plaintiff permanent impairment entitlements.

26 The response by the sixth defendant to paragraph 8 of the statement of claim was:

SAVE THAT IT SAYS liability for the plaintiff's lumbar disc lesion was accepted by notice dated 2 February 2010 IT OTHERWISE ADMITS the allegations contained in paragraph 8.

27 Paragraph 12 of the statement of claim was as follows:

As at 4 June 2012, and at the date of commencement of these proceedings, the plaintiff is incapacitated for work, has no current work capacity and such is likely to continue indefinitely.

28 The sixth defendant responded to that allegation in the following terms:

12 IT DENIES the allegations contained in paragraph 12.

Particulars

The defendant intends to adduce medical and lay evidence in support of its denial of the allegations contained in paragraph 12.

(a) The plaintiff has a current work capacity;

(b) Alternatively, if the plaintiff does not have a current work capacity, which is denied, it is not likely to continue indefinitely; and

(c) The plaintiff is not entitled to the relief sought.

29 Notwithstanding that the sixth defendant thought fit to include the specific allegations contained in paragraph 13 of its defence, it did not anywhere expressly plead that the plaintiff was no longer suffering from a work-related injury. Whether it may be said to have done so implicitly is a matter to which I will return in due course.

30 On 27 May 2014 the parties, by their solicitors, settled and signed off on the form of four proposed medical questions, as follows:[32]

What is the nature of the medical condition of the Plaintiff's:
1. Injury to the lower back;
2. Mental state.
Does the Plaintiff have a current work capacity?
If no to the preceding question, is such incapacity likely to continue indefinitely?
If no to Question 2, does the Plaintiff's incapacity for work result from or is it materially contributed [sic] by any, and if so which, of the claimed injuries?

31 On the same day (27 May 2014), pursuant to s 65(6A) of the ACA,[33] the parties' solicitors jointly produced a statement of agreed facts for provision to the Medical Panel as part of the referral. The statement of agreed facts was in the following terms:[34]

The injuries to which the medical questions relate are ('claimed injuries'):

(a) injury to the lower back; and

(b) psychological sequelae.

Agreed facts

The facts relevant to the medical questions as agreed are:

the plaintiff is 42 years of age, having been born on 20 March 1972; 2. The plaintiff suffered injury to his lower back on 9 July 2008 when he bent forward to lift a crate of meat hooks of a pallet;

On or about 18 July 2008, the plaintiff submitted a claim for weekly payments of compensation and medical and like expenses in respect of his 'back, buttocks and both legs' to the defendant ('the claim'). The defendant/its authorised insurer accepted the claim in respect of the claimed lumbar disc lesion.

By notice dated 4 June 2012 the defendant/its authorised insurer determined that the plaintiff's weekly payments of compensation would be terminated from 8 September 2012. 2. The determination was made on the grounds that: 1. the plaintiff had a current work capacity; 2. alternatively, if the plaintiff does not have a current work capacity, it is not likely to continue indefinitely. 3. The plaintiff seeks reinstatement of his weekly payments on the ground that he has no current work capacity.

32 As indicated above, it was not until 5 August 2014 that the Magistrates' Court actually sent the referral to the Medical Panel. In addition to the medical questions themselves and the statement of agreed facts, the referral included all of the medical reports and other documents to which I have so far referred, together with various other documents.[35]

33 Among the various additional documents, there were written submissions to the Panel prepared on behalf of each party. The employer's submissions were prepared and served first. They are dated 21 July 2014. I will return to them when I come to determine the procedural fairness complaint specifically, but I should mention now that the employer's submissions did not expressly raise any contention that the plaintiff no longer had a work-related back injury.

34 The submissions to the Medical Panel on behalf of the plaintiff were dated 22 July 2014. They did not include any express assertion that the plaintiff's back condition was work related. They simply assumed that. They betrayed no consciousness that the matter was, or might be, in issue. They concentrated on making a case that the plaintiff had no capacity for work and that his incapacity would continue indefinitely. The employer did not deliver any reply to the plaintiff's submissions.

35 The plaintiff was examined by the Medical Panel on 30 September 2014.[36] He was examined first by three members of the Panel, being a general practitioner, a rheumatologist and an orthopaedic surgeon. Later the same day, he was examined by the two remaining members of the Panel, being two psychiatrists.

36 Omitting formal parts, the Medical Panel's certificate of opinion dated 20 October 2014 is in the following form:

Question 1 What is the nature of the medical condition of the Plaintiff's:

Injury to the lower back;
Mental state.

Answer a. In the Panel's opinion the Plaintiff suffered a soft tissue injury of the lumbosacral spine, in the setting of pre-existing constitutional lumbosacral degenerative disease, without radiculopathy, but the soft tissue injury has now resolved.

b. The Panel is of the opinion that the Plaintiff is suffering from schizophrenia but this condition is not attributable to the claimed back injury.

Question 2 Does the Plaintiff have a current work capacity?

Answer: In the Panel's opinion the Plaintiff has no present inability arising from an injury such that the Plaintiff is not able return [sic] to his pre-injury employment.

Question 3 If no to the preceding question, is such incapacity likely to continue indefinitely?

Answer: Not Applicable.

Question 4 If no to question two, does the Plaintiff's incapacity for work result from or is it materially contributed to by any, and if so which, of the claimed injuries?

Answer: In the Panel's opinion any incapacity for work which the Plaintiff now has does not result from and is not materially contributed to by any claimed injury in any way.

37 As required by the applicable legislation, the Panel provided a statement of reasons.[37] It bore the same date (20 October 2014) as the certified opinion. The plaintiff, in his written submissions to this Court, summarised the statement of reasons of the Medical Panel so far as he considered necessary for the purposes of his contentions. The first part of the plaintiff's summary is as follows (emphasis as added by the plaintiff):[38]

The Panel 'noted' that the referral to the Medical Panel was made in the context of an accepted injury to Mr Pearce's back;

The Panel summarised Mr Pearce's description of the injury and his treatment:

The Plaintiff said his back pain persisted and he was referred to an orthopaedic surgeon and had MRI scans taken, but no operative treatment was advised.

[The Plaintiff said he] was referred to a pain management physician and received two epidural injections, the first providing no benefit but the second, in August 2009, improved his back pain for about 18 months. He said he also received advice about exercises for his back from an exercise physiologist.

The Plaintiff said he is 'hundred percent better now', but later explained that his back pain has been worse since the 'epidural wore off'.

...

The Panel noted the medical report of Mr Falkenberg dated 29 October 2008, which stated:

...I saw him back in 1993 when an MRI scan was performed for work injury. He said that that pain eventually settled and he worked for some years without discomfort.

...

The MRI back in 1993 was done at St Vincent's Hospital and showed disc abnormality at L2/3 and L5/S1. Unreported on the 1993 MRI but visible to my examination on those films were these Schmorl's Nodes which are end-plate weaknesses in the various vertebrae making him predisposed to multi-level disc degeneration.

The Panel recorded Mr Pearce's description of his current condition:

The Plaintiff told the Panel that he currently continues to experience a constant, deep and sharp pain in the middle of his lower back, which spreads along the inside of both his legs to his toes. He said he also has a constant numbness at the front of his right thigh, a cold feeling in his toes and muscle cramps in his legs. He said sneezing, walking longer than 45 minutes, bending, lifting more than 4 kg, and sitting or standing longer than 45 minutes all tend to aggravate the lower back pain. He said he has normal urinary and bowel control.

The Panel set out details of medications taken by Mr Pearce, his education and work history and his response to various vocational options. The Panel recorded its findings from its physical examination of Mr Pearce, and the contents of the radiological reports.

38 It is desirable to interpose here the full terms of the Panel's reporting of its findings from the physical examination, together with the full terms of the Panel's comments on the radiological reports and together with the ensuing paragraph of the statement of reasons, as follows:

On physical examination the Panel noted the Plaintiff walked freely and was able to rise on his toes and heels. Tenderness was reported on palpation of the sacrum in the midline. There was no palpable muscle spasm. The range of movement of the lumbosacral spine was slightly restricted in forward and lateral flexion, though equally to both sides. Extension produced a report of pain in the sacral area. Rotation was normal and bilaterally equivalent. Neurological examination of the lower limbs revealed collapsing weakness throughout and reported sensory reduction to pinprick in a variable and non-anatomical distribution. Reflexes were symmetrical. There was no muscle wasting. Slump test was negative bilaterally. The Plaintiff was able to sit normally. Examination of the Plaintiff's hips revealed mild bilateral restriction in flexion, and flexion in adduction and external rotation, suggestive of an unrelated bilateral hip degenerative process.

The Panel reviewed the following medical imaging investigations of the lumbosacral spine:

CT scans dated 15 July 2008, which showed narrowing of lumbar disc spaces from L2/3 to L5/SI; and
MRI scans dated 30 October 2008, which showed Schmorl's nodes in 1-4 vertebrae, L2/3 disc dessication with narrowing, no frank spinal stenosis in L4/5 but mild foraminal stenosis at that level, left greater than right, and small focal L5/S1 disc protrusion.

The Panel considered that no further imaging or other medical investigations were necessary for it to answer the medical questions.

The Panel viewed a surveillance DVD dated 18 September 2010 with the Plaintiff, in which the Plaintiff was seen driving, and getting in and out of a car. The Plaintiff identified himself as the person filmed and said he was not aware of being surveyed. The Panel considered that the Plaintiff's activities were consistent with his presentation.

39 As the plaintiff noted in the remaining part of his summary of the Panel's reasons, the Panel then turned to its conclusions relating to the plaintiff's back condition. It did so in the following two paragraphs (emphasis, again, as added by the plaintiff):

The Panel considered the Plaintiff's long history of lumbosacral degenerative changes dating back to 1993 as reported by Mr Falkenberg, the nature of the Plaintiff's medical condition, its onset and progress, its successful improvement after an epidural injection in August 2009 and subsequent resolution of symptoms for about 18 months, the provided history by the Plaintiff that his back pain improved 100% since the incident, no demonstrable neurological deficit from the Panel's examination, the location of the back pain reported over lower sacral, rather than lumbosacral, area, the examination findings of no neurological deficit, normal posture and ability to sit normally.

On the basis of its expertise and experience and the above considerations, the Panel concluded that the Plaintiff suffered a soft tissue injury of the lumbosacral spine, in the setting of pre-existing constitutional lumbosacral degenerative disease, without radiculopathy, but the soft tissue injury has now resolved.

40 The Panel's statement of reasons then dealt with its psychiatric assessment of the plaintiff. Thereafter, the Panel concluded its statement of reasons as follows:[39]

The Panel therefore concluded that the Plaintiff is no longer suffering from any physical medical condition of his back which is related to the claimed back injury, and the Plaintiff has not suffered and does not suffer from and [scil, any] psychiatric condition attributable [scil, to] the claimed lower back injury, although he is suffering from pre-existing constitutional lumbosacral degenerative disease and an unrelated schizophrenia psychiatric condition.

The Panel therefore concluded that the Plaintiff has no present inability arising from an injury such that he is not able to return to his pre-injury employment and any alleged incapacity for work does not now result from and is not materially contributed to by the claimed back injury.

The Panel noted the report of Dr S G Geary, general practitioner, dated 13 January 2010, in which he writes:

'He's presently fit for modified duties and has been certified for same'.

The Panel noted the report of Mr Kenneth Brearley, dated 16 April 2014, in which he writes:

'The precise diagnosis is not possible. The presumed diagnosis is as before, namely mechanical lumbar pain as a result of L4-5 and particularly, L5-S1, internal disc disruption...

...

He is so disabled that he cannot return to work in his pre-injury employment or any suitable employment. The fact is that there is no employment that is suitable for this man because of his ongoing severe back pain. He has 'no current work capacity'.'

The Panel differed in its opinion to that of Mr Brearley on the basis of evidence of the Plaintiff's pre-existing degenerative disease of lumbar spine provided in Mr Falkenberg's report, which Mr Brearly [sic] did not have, and the Plaintiff's presentation at the Panel's examination.

The plaintiff's affidavit as to his examination by the Medical Panel

41 In this proceeding, the plaintiff has sworn an affidavit relating to what was said during his first examination by the Medical Panel. So far as presently relevant, the plaintiff deposes:[40]

During the examination the Medical Panel asked me if I had had any medical treatment for my injury. In response I said that I had had two epidural injections. I explained that the first did not work and that I had a second epidural later and got relief from it for about 18 months. I told the panel that it was a success and that I felt a lot better than when the injury happened. I said that I was 100% better than what I was, but I was still not 100%.
The doctors then asked about my back pain in general terms, which I answered. This was after or shortly after the question about medical treatment. I told them about my constant deep and sharp pain in my lower back and that I couldn't stand and had shaking and symptoms down my leg and into my groin. I told them that I did exercises and that the epidural only did so much.
The doctors did not ask any more questions about the epidurals and did not ask me specifically about the effect of epidurals on my leg or groin pain nor in relation to my back pain.
I refer to page 7 of the opinion of the Medical Panel dated 20 October 2014 and in particular to paragraph 4 of that page, where the Medical Panel refers to the 'successful improvement' of my medical condition 'after an epidural injection in August 2009 and subsequent resolution of symptoms for about 18 months'.
Although I did say to the Medical Panel that my back improved following the second epidural, at no point during the examination did I say to the Medical Panel that my back symptoms ceased entirely after the second epidural. I did get relief from the second epidural. The pain down my legs went away. But I still had back pain. I would still get cold feet and had difficulty standing for long periods. That's how things were for the period of about 12 to 18 months after the epidural.

42 The active defendants do not challenge these (or any) parts of the plaintiff's affidavit.[41]

43 In Humphries v Allianz Australia Workers Compensation (Vic) Ltd,[42] I noted that the legal principles relating to an allegation of procedural unfairness on the part of a Victorian Medical Panel were well established; and I set out and adopted the recent statement of those principles by J Forrest J in Toyota v Bendrups[43]. I would once again adopt that statement of those principles, without repeating it.[44]

44 Applying those principles, I accept the plaintiff's submission that the Medical Panel's conclusion about his back condition was unexpected and could not reasonably have been anticipated; and that the plaintiff was denied a fair opportunity to address the matter.

45 The defendants have not submitted that the expression 'soft tissue injury' was used in relation to the plaintiff in any medical report, submission or other document that was put before the Medical Panel or that otherwise came to the attention of the plaintiff or his advisors prior to the publication of the Medical Panel's opinion. Nor have I been able to find any such reference in the evidence.

46 What the relevant defendants do say is that the plaintiff's original work-related injury was frequently described in the material as a 'disc lesion' and his pain as 'discogenic'; and they submit that the phrase 'soft tissue injury' encompasses discal injury, especially when, as here, the full phrase used is 'soft tissue injury of the lumbosacral spine'.[45]

47 However, the relevant defendants do not cite any medical dictionary or any other source in support of this proposition. From the bar table,[46] senior counsel for the relevant defendants asserted that an intervertebral disc is a soft tissue. That was so, he contended, in comparison to the bones of the spine. He observed that a disc has a fibrosis on the outside and a nucleus pulposus on the inside. He described the nucleus pulposus as a 'gel like material', with a texture similar to toothpaste, and said that it was enclosed in something akin to a rubbery bag. It was not inflexible. Even externally, it was soft. It acted as a shock absorber, among other things. It had room to move. In response to a jarring event, it would bulge a little bit to absorb pressure. If a person were to bend, then the discs compress or expand, depending on whether the movement is forward or backward. So, counsel contended, the disc is a soft tissue.

48 To my mind, however, it is by no means clear that this Medical Panel, in concluding that the plaintiff had suffered 'a soft tissue injury of the lumbosacral spine in the setting of pre-existing constitutional lumbosacral degenerative disease', intended to convey that the plaintiff had suffered an injury to one or more of his intervertebral discs. If that was indeed the Panel's intention, it is surprising that it did not use terminology consistent with the terminology that had been repeatedly used in the material before it. It is surprising that it did not use the word 'disc' or any variant of it. In my view, it is more likely that the Panel intended to refer to muscles, tendons or ligaments connected to the plaintiff's spine, not to his intervertebral discs. Indeed, to read the Panel's language as referring to discs would not be in harmony with any relevant dictionary definitions I have been able to find, either in general dictionaries or medical dictionaries. It would be quite inconsistent with the following definitions contained in The Australian Concise Oxford Dictionary (4th edition, 2004), read together:

'soft tissues': tissues of the body that are not bony or cartilaginous.

'disc' (meaning 2a): a layer of cartilage between vertebrae.

'cartilage' (meaning 1): a firm flexible connective tissue forming the infant skeleton, which is mainly replaced by bone in adulthood; gristle.

49 In Wingfoot Australia Partners Pty Ltd v Kocak,[47] the High Court appeared to accept that there is a significant distinction between an injury to a person's spine (treating an intervertebral disc prolapse as such an injury) and a 'soft tissue injury' affecting a person's back. The Court said:

As argument developed in this Court, it became apparent that the gist of the Worker's complaint about the adequacy of the statement of reasons is that the statement of reasons did not address the possibility that the degenerative changes resulting in the Worker's current condition were initiated on 16 October 1996 other than through soft tissue injury. His counsel submitted on his behalf that '[i]t is a perfectly possible situation that a traumatic event can cause a soft tissue injury to ligaments and muscles and so forth and also cause an injury to the spine'. That was, in the Worker's submission, the import of one of the medical reports, provided to the Medical Panel on behalf of the Worker, which was not addressed in the Panel's statement of reasons. The report, that of a neurosurgeon engaged by the Worker in 2009, expressed the opinion that what happened to the Worker on 16 October 1996 'would appear to be consistent with an injury to the cervical spine' and on that basis 'may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis'.

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.

50 In the present case, in my view, it is more likely than not that the Medical Panel was intending to refer to some unspecified injury to the muscles, tendons or ligaments in the plaintiff's back in finding that he had suffered (only) a 'soft tissue injury' at work in July 2008. It is true that the Panel did not expressly mention muscles or tendons or ligaments, but, as already mentioned, neither did the Panel expressly refer to the plaintiff's intervertebral discs in the critical paragraphs of its statement of reasons. Much less did the Medical Panel condescend to particulars as to which particular intervertebral disc or discs might have been injured by the plaintiff in July 2008. In those circumstances, the Panel could not be heard to complain that this Court has failed to divine its true intention in the present respects.[48]

51 In other words, it is more likely than not, in my view, that the Medical Panel concluded that the original disc lesion or lesions identified in the various radiological and medical reports (and previously accepted by the employer and the insurer as having been related to the incident on 9 July 2008) were not due to the incident at work at all, but rather resulted from pre-existing constitutional degenerative changes in the plaintiff's spine.

52 If this be the proper interpretation of the Medical Panel's opinion and reasons, then, plainly, the Panel reached a conclusion that the plaintiff could not reasonably have anticipated. The conclusion amounted to a diagnosis that had not been suggested by anybody. Had anybody suggested it, the plaintiff would have been entitled to obtain additional medical evidence and to make submissions contesting the proposed diagnosis. The plaintiff was afforded no such opportunity. A breach of the principles of procedural fairness would be clearly evident.

53 If, on the other hand, the Medical Panel's reference to a 'soft tissue injury' was intended to be a reference to a disc injury of the general kind identified in the various radiological and medical reports, nevertheless the Panel's conclusion that the injury had completely resolved was still a conclusion that the plaintiff could not reasonably have anticipated. On this view, the Medical Panel's conclusion amounted to a conclusion that any back injury and any associated pain or disability from which the plaintiff currently suffered was unrelated to the incident at work in July 2008. Again, nobody had advanced such a proposition prior to the Medical Panel's determination. In my view, the history of events set out above demonstrates that the relevant defendants at all times accepted that the plaintiff was suffering from an injury that was work-related.

54 It is true, as the relevant defendants submit,[49] that Dr Falkenberg in his report dated 29 October 2008 anticipated that over a 'long time' the plaintiff's back injury might 'settle naturally'; and that Dr Poppenbeek in a report dated 31 August 2010 had said: 'it is very difficult to state whether or not the patient's employment injury is still a cause. It is now just over 2 years since that injury and normally one would expect resolution of the discogenic pain. This has not occurred and I have no explanation within the realm of physical medicine, for this lack of improvement... Further evaluation including functional capacity evaluation and psychiatric assessment would be needed to objectively state whether employment is still a cause'.

55 However, Dr Falkenberg was reporting at a very early stage and his comment was highly tentative. Dr Poppenbeek was hardly unequivocal either. Moreover, as mentioned above, only a few months prior to Dr Poppenbeek's report, the seventh defendant had paid a permanent impairment benefit to the plaintiff for his 'lumbar disc lesion'. Further, Dr Poppenbeek himself was reporting some four years prior to the referral to the Medical Panel. In the meantime, the sixth and seventh defendants made it clear, repeatedly, that their concern was limited to the question of the extent of the plaintiff's work capacity or incapacity, as distinct from any suggestion that the plaintiff's injury no longer existed or was no longer related to the incident at work in July 2008. In that regard, I refer in particular to the termination notice dated 4 June 2012, to the employer's pleadings in the Magistrates' Court and to the employer's written submissions to the Medical Panel, all of which are referred to above.

56 I do not accept the submission made to me on behalf of the sixth and seventh defendants to the effect that the pleadings in the Magistrates' Court raised an issue as to whether the plaintiff's injury was work related. In my view, paragraph 3 of the statement of claim was purely formal. The employer's response to paragraph 3 was likewise purely formal. Indeed, in that response the employer expressly admitted that it had accepted liability in respect of 'back, buttocks and both legs', but 'otherwise' did not admit the contents of paragraph 3. The only real point of this formal non-admission was to distinguish between the plaintiff's back injury and some of its alleged sequelae. Further, in its response to paragraph 7 of the statement of claim, the employer explicitly recognises the plaintiff's 'work-related injuries'. Its responses to paragraphs 8 and 12 follow the same pattern.

57 It is true that in a report dated 27 March 2014, a time much closer to the referral to the Medical Panel, Dr Davison responded to the following specific question which had been asked of him by the relevant defendants' solicitors: 'To what extent do you consider the worker's injuries to still be work-related?' Dr Davison answered that question as follows:[50]

The claimant's symptoms have persisted since the date of injury. I am not convinced that there is a physical cause for the worker's condition as I suspect he has developed a chronic pain syndrome. The chronic pain syndrome has developed subsequent to a work-related injury and I would expect that there is therefore ongoing contribution from employment; however, I recommend that you obtain an opinion from a pain management specialist.

Even Dr Davison would relate the plaintiff's continuing experience of pain to the incident at work in July 2008, albeit possibly by medium of a chronic pain syndrome. Although Dr Davison's report of 27 March 2014 was included in the attachments sent to the Medical Panel, neither the question set out above nor the doctor's answer to it led the relevant defendants to depart from the position they had previously adopted (in the termination letter and in the Magistrates' Court pleadings) to the effect that there was an admitted connection between the plaintiff's work and his relevant injury. To the contrary, the written submissions by the employer to the Medical Panel dated 21 July 2014 maintained that position, as I read them. Senior counsel for the relevant defendants pointed out that the submissions contained a reference to Dr Davison's statement that he was 'not convinced' that there was a physical cause for the plaintiff's condition as he suspected that the plaintiff had developed a chronic pain syndrome.[51] I have already dealt with Dr Davison's report. Senior counsel did not suggest that there was anything else in the written submissions to the Panel that could conceivably cast any doubt on the then apparent position of the employer.[52]

58 Finally, senior counsel for the relevant defendants submitted that the plaintiff was effectively put on notice by the terms of question 1 itself that an outcome of the referral might be a finding that he was no longer suffering from a work-related injury to his lower back. Senior counsel contended that absent an issue as to whether the plaintiff's physical presentation was compensable, there would be no apparent point to the asking of question 1. I do not accept these submissions either. They are undermined by the terms of the statement of agreed facts, which was prepared at the same time as the questions and which directed attention exclusively to the issue of the extent of the plaintiff's current work capacity. In my view, the apparent point of question 1, so far as presently relevant, was to identify the nature of the plaintiff's medical condition in relation to the accepted injury to his back, and then only for the purpose of assessing the extent to which the condition of his back affected his capacity for work. Further, the referral did not include a medical question of a kind which is usually included in order to raise an issue as to the work-relatedness of a worker's injury.[53] In those circumstances, it behoved the Panel, before expressing any negative opinion as to the work-relatedness of the plaintiff's injury, to warn the plaintiff that the Panel might do so.

60 A Medical Panel's statement of reasons must set out 'the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself'.[54] It must be 'adequate to enable a court to see whether the opinion does or does not involve any error of law'.[55] The statement is to contain 'medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members' medical knowledge and experience'.[56]

61 In my view, the Panel's statement of reasons in the present case does not measure up to these requirements.

62 As indicated above, on balance, I consider it to be more likely than not that, by 'soft tissue injury', the Panel was referring to an injury to a part or parts of the plaintiff's back other than his intervertebral discs, such as in injury to his muscles, tendons or ligaments. However, the contrary interpretation of the Panel's opinion and reasons is quite open. This ambiguity alone makes the statement of reasons legally inadequate, in my view. The situation is compounded by the absence of particularity in the reasons. If the plaintiff's injury was not to his intervertebral discs, then which particular body parts were injured? If the injury was discal, which particular disc or discs sustained injury? By what particular mechanism or mechanisms might the discal injury have abated? This ambiguity and lack of particularity have unduly complicated the task of assessing the plaintiff's procedural fairness complaint and they have made it difficult to determine whether, or rather in what respect, the opinion 'does or does not involve an error of law'. In addition, these features of the statement of reasons have clouded the question whether the Panel's opinion was 'founded on an appropriate application of the members' medical knowledge and experience'.

63 Accordingly, I uphold ground 2. I do so without giving weight to the matters to which I will now turn under ground 3.

64 In my opinion, ground 3 is founded on a misreading of the Panel's opinion and reasons. It is tolerably clear to me that the Panel did not understand the plaintiff to have said to the Panel, in an unqualified way, that his back condition had 'improved 100%'. It is true that the Panel saw significance, for diagnostic purposes, in what the plaintiff had told the Panel about the benefits of the epidural injection in August 2009. However, in my view, the plaintiff has significantly overstated what the Panel derived from the statements made by the plaintiff during the first examination.

65 I accept the submissions of the sixth and seventh defendants relating to the interpretation of the Panel's reasons in this respect.[57] I agree with their submission that, on a proper analysis, there is little if any discrepancy in history as between what the plaintiff deposes to in his affidavit of 15 March 2015 and the history recorded by the Panel in its statement of reasons.

66 I agree with the sixth and seventh defendants that one should not read in isolation the first of the two paragraphs from the Panel's reasons quoted above in paragraph 39 (in which there is a reference to improvement by '100%'). Rather, that paragraph must be read in conjunction with the following two paragraphs which, although they are already set out above, I repeat for convenience:

The Plaintiff said he was referred to a pain management physician and received two epidural injections, the first providing no benefit, but the second, in August 2009, improved his back pain for about 18 months. He said he also received advice about exercises for his back from an exercise physiologist.

The Plaintiff said he is 'hundred percent better now', but later explained that his back pain has been worse since the 'epidural wore off'.

The sixth and seventh defendants emphasise the words 'improved' and 'worse' in these passages. They also emphasise the expression 'resolution of symptoms for about 18 months' in the abovementioned later passage from the Panel's statement of reasons.

67 I accept the relevant defendants' submission that the Panel does not say, or rely on a history, that the plaintiff's back pain completely went away for 18 months after the second epidural. The Panel records a history only that the plaintiff's back pain 'improved' after the second epidural. As the relevant defendants submit, the Panel then refers to 'resolution of symptoms' for about 18 months, which is consistent with what the plaintiff says he told the Panel about the resolution of leg pain for that period (affidavit, paragraph 12).

68 Again, I accept the relevant defendants' submission that further support for the view that the Panel did not assume a complete resolution of back pain following the second epidural is obtained from the Panel's noting that the plaintiff's back pain had been 'worse' since the epidural wore off, rather than that the back pain had, for example, 'returned'.

69 At the hearing, it was further submitted on behalf of the plaintiff that the Medical Panel's relevant conclusion could only be explained on the basis that the Panel had (mis)understood the plaintiff to say not only that he had recovered completely (100%) after the second epidural, but also that he remained completely (100%) recovered now, ie that he was no longer suffering any pain at all.[58] However, having regard to all of the material before the Panel, and in view of the Panel itself having acknowledged (towards the end of its statement of reasons) that the plaintiff was (now) 'suffering from' pre-existing constitutional lumbrosacral degenerative disease, there is no warrant whatsoever for this extreme interpretation of the Panel's statement of reasons.

70 Thus, as the relevant defendants submit, there was no 'material discrepancy' between the facts recorded by the Medical Panel and the facts stated to the Medical Panel by the plaintiff.[59]

71 It follows that there is no or no sufficient basis for the plaintiff's contentions that the Panel committed jurisdictional error in that it ignored a matter it was bound to take into account, or took into account a consideration it was bound to disregard, or made a finding that was not open on the evidence, or made a decision that was devoid of plausible justification (or was otherwise legally unreasonable). I need not and do not indicate any view as to whether, if any of these contentions of the plaintiff about the proper interpretation of the Panel's statement of reasons had been accepted, jurisdictional error (of any particular kind) would have thereby been established.[60]

73 The plaintiff having established a breach of the principles of procedural fairness, and that the Medical Panel's statement of reasons was legally inadequate, there should be an order in the nature of certiorari quashing the certified opinion of the Panel dated 20 October 2014.

74 Taking into account the grounds on which the plaintiff has succeeded and the fact that the Panel expressed its conclusions strongly, this is a case in which an appearance of unfairness would arise unless the medical panel was reconstituted. Accordingly there should also be an order in the nature of mandamus requiring that the referral made on 7 August 2014 be reheard and redetermined by a medical panel differently constituted.[61]

75 I will hear the parties on the question of costs.

[1] The referral is dated 5 August 2014, but bears a stamp indicating it was not received until 7 August 2014.

[2] Transcript of proceedings on 24 November 2015, 70 ('Transcript').

[3] See, in particular, s 6(6)(b) and s 6(8)(b) of the WIRCA.

[4] The relevant provision appears to be s 274 of the WIRCA.

[6] In particular, I was informed, in effect, that the last remaining issue of concern to the Medical Panel was the question of the admissibility of notes taken by members of the Medical Panel during examinations, but that it appeared that that issue would no longer arise because none of the other parties intended any longer to rely upon such notes in the present case.

[7] R v Australian Broadcasting Tribunal; Ex parte Hardiman & Ors (1980) 144 CLR 13.

[8] This document was filed on 2 December 2015.

[9] Ground 2 had been deleted by the plaintiff prior to the hearing, but was reinstated by leave granted at the hearing.

[10] Also described in the same report as 'moderate'.

[11] Radiology report dated 15 July 2008: CB 230.

[15] CB 79; cf the reference to Dr Brown's report in the seventh's defendant's termination notice dated 4 June 2012: CB 53.

[24] CB 53. The grounds cited by the seventh defendant for terminating the plaintiff's weekly payments reflect the matters referred to in s 93C of the ACA.

[29] Cf outline of plaintiff' submissions to this Court dated 8 May 2015 [10]: CB 262.

[35] See the schedule of attachments to the referral: CB 11-2.

[36] Affidavit of the plaintiff affirmed 18 March 2015 [5]: CB 324; Panel's reasons for opinion dated 20 October 2014: CB 3.

[38] Plaintiff's written submissions [15] (footnotes and sub-paragraphing omitted): CB 263-4.

[41] See sixth and seventh defendants' outline of submissions dated 3 June 2015 [16]-[17]: CB 277.

[43] [2016] VSC 718 [26]-[32].

[44] In Toyota v Bendrups, the referral occurred in May 2015 and yet it was expressed to have been made pursuant to s 45 of the ACA: see [2016] VSC 718 [2]; cf WIRCA s 6(6)(b) and s 6(8)(b). In any event, there being no presently significant difference between the provisions of the ACA relating to Medical Panels and the corresponding provisions of the WIRCA, I would proceed on the basis that the statement of principles by J Forrest J is fully applicable to the present case.

[45] Sixth and seventh defendant's written submissions [24]: CB 279. The phrase is used in the second of the two paragraphs quoted in paragraph 39, above, from the Panel's statement of reasons.

[48] Cf Harrison v Mansfield [1953] VicLawRp 60; [1953] VLR 399, 404.

[49] Sixth and seventh defendants' outline of submissions dated 3 June 2015 [27]: CB 280.

[53] Such a question has always been provided for in the definitions of 'medical question' in the ACA and the WIRCA: see ACA, s 5 (definition of 'medical question', paragraph (b)); WIRCA, s 3 (definition of 'medical question', paragraph (h)).

[54] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499 [48]; Spotless Facility Services Pty Ltd v Trpceva [2016] VSCA 217 [45].

[55] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 501 [53].

[56] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 661 (Callaway JA); Omerasevic v Kotzman [2016] VSC 383 [86] (Riordan J).

[57] Sixth and seventh defendants' outline of submissions dated 3 June 2015 [16]-[21]: CB 277-8.

[59] Cf plaintiff's written submissions dated 8 May 2015 [33].

[60] Cf Omerasevic v Kotzman [2016] VSC 383 [46]-[57], [74]-[76], [87]-[112] (Riordan J).

[61] Kapoor v Monash University [2001] VSCA 247; (2001) 4 VR 483, 498-9 [51]-[52]; Abbott v Eptec Victoria Pty Ltd [2011] VSC 267 [41]-[42] (Beach J, as his Honour then was); Richter v Driscoll [2016] VSCA 152 [133], [149]. Cf Davidson v Fish [2008] VSC 32 [19]-[21]; Vegco Pty Ltd v Gibbons [2008] VSC 363 [32]-[33]; Omerasevic v Kotzman [2016] VSC 383 [113]; Toyota v Bendrups [2016] VSC 718 [52]-[64] (J Forrest J).

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

At a glance

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Judgment (157 paragraphs)

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