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[2017] VSC 648
Supreme Court of Victoria
2017-10-31
J FORREST J
Original judgment source is linked above.
JUDICIAL REVIEW - Medical Panel - Compensable injury - Asserted failure to provide adequate reasons - Whether Panel took into account irrelevant considerations - History taken by Panel in issue - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - Wingfoot v Australia Partners Pty Ltd v Kocak.
1 A Medical Panel comprising the First, Second, Third, and Fourth Defendants ('') concluded that the plaintiff, Ms Fotini Karabinis, had not suffered a compensable injury within the meaning of the (Vic) (''). The injury, to her left shoulder, was alleged to have occurred in the course of her employment with Spotless Management Services Pty Ltd (''), the fifth defendant, at the Alfred Hospital between 2013 and 2015.
2 Ms Karabinis now seeks judicial review of the Panel's decision, alleging that the Panel:
(a) failed to provide adequate reasons - in essence asserting that the Panel did not explain why it discounted Ms Karabinis' work as a cause of her injury; and
(b) took into account irrelevant considerations in reaching its decision - primarily asserting that the work history the Panel took from Ms Karabinis was significantly incorrect and that this amounts to jurisdictional error.
3 In my view, neither ground is made out. My reasoning now follows.
4 Ms Karabinis was born in Greece in 1972 and commenced employment with Spotless on 29 January 2013.
5 She initially worked as a casual cleaner, and from approximately May 2013, worked on a full-time basis at the Alfred Hospital.
6 In September 2013, Ms Karabinis complained of pricking in the top of her left shoulder. CT scans carried out in December 2014 showed no abnormality. In May 2015, Ms Karabinis attended a GP for the first time, Dr Haralambakis, complaining of left shoulder and upper arm pain.
7 On 26 May 2015, an ultrasound and x-ray of her left shoulder revealed calcific tendonitis of the supraspinatus tendon of the left shoulder with no tear.
8 On 2 August 2015, Ms Karabinis lodged a Workcover claim, which asserted that the injury to her left shoulder was caused:
by 'heavy lifting over the course of my employment' and identified 'ordinary cleaning tasks' as the tasks she was performing when she was injured.
9 On 1 September 2015, Ms Karabinis was reviewed by an orthopaedic surgeon, Dr Chiu.
10 On 21 September 2015, Ms Karabinis was certified by her GP as unfit to perform any duties and has not returned to work.
11 On 9 September 2016, EML, the agent of the Victorian Workcover Authority ('VWA'), advised Ms Karabinis that it rejected her claim for payments under the Act on the grounds that she had not sustained an injury arising out of or in the course of her employment.
12 Ms Karabinis referred the agent's decision to the Accident Compensation Conciliation Service and on 24 November 2016, pursuant to s 313 of the Act, two questions were referred to the Panel. The referral was accompanied by a number of documents, notably medical certificates and reports - set out in the attachment to the referral.
13 On 7 December 2016, EML filed with the Medical Panel a submission, which urged the Panel to conclude that:
(a) if the worker is suffering from a left shoulder condition, it is not materially contributed to her claimed injuries on 21 June 2015 and therefore the claimed weekly payments and medical like expenses is not appropriate;
(b) if the worker is suffering from the psychiatric condition, it is not materially contributed to her claimed injuries on 21 June 2015 and therefore the claimed weekly payments and medical like expenses is not appropriate.
(b) Dr Dianne Neill, a psychiatrist, on 13 December 2016; and
(c) Dr Jenny Downes-Brydon, Dr Andrea Bendrups and Dr Craig Mills, on 14 December 2016.
15 The Panel provided its opinion and accompanying reasons on 31 January 2017.
16 Ms Karabinis filed an originating motion seeking judicial review on 3 April 2017. An amended originating motion was subsequently filed on 21 August 2017.
18 The fifth defendants filed an affidavit of Benjamin Russell, solicitor, sworn on 11 September 2017, which annexed the notes (both in original and in a transcribed form) of the Panel members taken on 14 December 2016.[3]
19 The Certificate of Opinion contained the questions and answers as follows:
Question 1: What is the nature of Ms Karabinis' medical condition (including any sequelae) relevant to the claimed left shoulder injury and psychological injury?
Answer 1: In the Panel's opinion, the worker is suffering from a partially treated constitutional calcific tendonitis of the left shoulder, complicated by capsulitis and from an adjustment disorder with depressed mood, which is mild in severity and has partially resolved.
Question 2: If the Panel is of the opinion that Ms Karabinis' medical condition is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, was her employment in fact or could it possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?
Answer 2: In the Panel's opinion the worker's employment was not in fact and could not possibly have been a significant contributing factor to the worker's partially treated constitutional calcific tendonitis of the left shoulder, complicated by capsulitis and an adjustment disorder with depressed mood, which is mild in severity and has partially resolved or to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
20 The reasons of the Panel which accompanied the certificate were, commencing with a recitation of the issues as follows:
The panel noted from the referral and from submissions by the parties provided with referral material that, on or about 11 in August 2016, the worker lodged a claim for injury to her left shoulder and a psychological condition sustained as a sequelae to the claimed left shoulder injury over the course of her employment as a cleaner. The panel noted that by notice dated 9 September 2016 the Authorised Agent has rejected the worker's claim.
The worker disputes this decision and this forms the basis of the issues in dispute and reason for referral to the Medical Panel.
21 The Panel then went on to record Ms Karabinis' history:
The worker told the Panel that she commenced work with a cleaning firm in or about January 2013 initially on a casual basis, working at least full time and sometimes more from May 2013.
The worker described the nature of her cleaning duties in a hospital to the Panel. She said that when she first commenced the job she worked cleaning isolation rooms and operating theatres. She said that her duties required her to mop up and down walls, take down privacy curtains for washing, clean beds and side tables, remove linen from beds and clean bathrooms. She said that she had to collect rubbish and move bags of linen. The worker said that the work was fast paced but that she enjoyed it. The worker told the Panel that she cleaned 20 to 25 rooms in an eight hour shift. The Panel specifically clarified how the worker could achieve such targets and the worker considered that she was efficient in the performance of her duties.
The worker told the Panel that prior to commencing work as a cleaner in January 2013 and during the first 1.5 years of her work cleaning isolation rooms and theatres, she had no particular problems with her upper limbs. She said that she did not require any time off work during the first 1.5 years at work for shoulder or upper limb problems and had never previously had injuries or conditions of her upper limbs.
22 The Panel described a further complaint relating to soreness of Ms Karabinis' eyes and her requests for a change in duties, which resulted in the commencement of 'relieving duties' in or about May 2015. The Panel's description of the 'relief duties' is as follows:
The worker told the Panel that when she requested a change of duties there was no specific position available for her so that she was forced to take on "relieving duties". She described the nature of her duties as a "relieving cleaner" which commenced in or about May 2015. She said that she was sometimes required to clean operating theatres, intensive care unit, some offices or the stairs. She said that when she cleaned the stairs she started at the ground floor and worked up to the eighth floor. She said that she had to dust, sweep, mop, and wipe the rails. She told the Panel that when cleaning theatres and the intensive care unit she had to prepare the kitchen, move some stock, vacuum offices, put rubbish out and move linen bags out of the operating theatres three or four times per shift.
The worker told the Panel that she considered the work she had performed in the isolation wards was more physically demanding than work as a relieving cleaner although she enjoyed the isolation ward work more.
The worker told the Panel that in or about May 2015 she developed the onset of a new pain in her left shoulder. She said it was not like the "pricking in the top of the shoulder" which she had experienced in or around September 2013.
23 The Panel noted Ms Karabinis undertook a supervisory cleaning role between July 2015 and August 2015, which was less physically demanding, however she had been unable to work from September 2015.
24 The Panel then described her symptoms and treatment to date, including her current symptoms.
25 The Panel conducted a physical examination and outlined its findings.
26 Then follows the Panel's description of the diagnostic imaging which it inspected and noted:
27 The Panel also noted the following reports provided within the referral material:
28 The Panel's reasoning was that Ms Karabinis's injury was not a compensable injury under the Act:
The panel noted and accepted the history given by the worker of the nature of her work tasks as a cleaner of isolation wards from January 2013 until or about May 2015 involving fast paced repetitive use of the upper limbs with reaching above the shoulder. The Panel also noted the history given by the worker of an absence of significant left shoulder symptoms during the period of her employment as a cleaner of isolation wards and noted that she ceased this employment due to an unrelated eye condition. The Panel noted and accepts the history given by the worker of less physically demanding duties as a relieving cleaner from or about May 2015 which required a reduction in reaching with the shoulders. The Panel noted and accepts the history given by the worker of the onset and progression of left shoulder pain and dysfunction in or about May 2015 and of the failure of the symptoms to settle despite ceasing work activities. The Panel noted its findings on physical examination of the worker which are currently dominated by non-organic findings. The Panel noted changes on medical imaging of the worker's left shoulder which are entirely consistent with findings of the calcific tendinitis which has been complicated by the development of capsulitis.
The Panel concluded that the worker is suffering from partially treated constitutional calcific tendinitis of the left shoulder, complicated by capsulitis.
29 The Panel also undertook a mental status examination:
The Panel considered that the worker is suffering from an adjustment disorder with depressed mood, which is mild in severity and has partially resolved with treatment and with improved shoulder function.
The Panel considers that the worker's adjustment disorder has arisen as a result of the left shoulder condition.
Based on its examination of the worker and its consideration of the material contained in the referral including the medical imaging the Panel concluded that the worker's left shoulder condition has not been affected in any way by her employment. As the Panel concluded that the worker's physical condition has not been affected by her employment the Panel also concluded that the worker's subsequent psychological condition has not been affected by her employment in any way at all.
The Panel concluded that the worker's employment was not in fact and could not possibly have been a significant contributing factor to the worker's partially treated calcific tendinitis of the left shoulder, complicated by capsulitis and an adjustment disorder with depressed mood, which is mild in severity and has partially resolved or to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
31 The Panel specifically rejected the opinions of two doctors that the injury was work related:
The Panel disagrees with Drs Pullen and Haralambakis regarding the nature of the worker's conditions of the left shoulder (and therefore her consequential psychiatric condition) and considers that the worker's physical symptoms and presentation are entirely due to constitutional unresolved soft tissue factors and not to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
32 Section 39(1) of the Act provides a worker with an entitlement to compensation 'if there is caused to the worker an injury arising out of or in the course of any employment, ...'. Injury is defined in s 3 and includes 'a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease'.
33 Section 40(3)(c) of the Act then precludes an entitlement to compensation 'unless the worker's employment was a significant contributing factor to the injury' where it arises of 'a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease'.
34 While a 'medical question' is defined in s 3 of the Act, it is Division 3 of Part 6 of the Act which sets out the manner in which a Medical Panel, constituted under the Act, is to give its opinion on a 'medical question' relating to injuries arising out of, or in the course of, or due to the nature of, employment. The body referring a medical question must provide the 'Convenor' of the Medical Panel with: a document detailing the injury or alleged injury and the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those that are in dispute; and copies of all documents in its possession relating to the medical question.[4]
35 The Medical Panel may ask a worker to meet with it and answer questions; supply copies of documents in his or her possession, which relate to the medical question; and submit to a medical examination by the Medical Panel or one of its members.[5] A Medical Panel is not bound by rules or practices as to evidence and is required to act informally and speedily as proper consideration of the reference allows.[6]
36 Section 302(1) of the Act, at the time the relevant questions were referred to the Panel, provided that a Medical Panel is 'to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by a Conciliation Officer...'.
The Medical Panel fell into jurisdictional error by taking into account, in answering both Questions, irrelevant considerations which it was bound by law to disregard when determining its Opinion.
(a) that the Plaintiff had told the Panel that she considered that the work she had performed in the isolation wards was more physically demanding than her earlier work as a relieving cleaner, when she had not told them that such was the case;
(b) that the Plaintiff had told the Panel that in or about May 2015 she developed the onset of a new pain in her left shoulder, which was not like the 'pricking in the top of the shoulder' which she had experienced in or around September 2013, when she had not told the Panel that either were the case;
(c) that the Plaintiff's duties as a relieving cleaner from or about May 2015...required a reduction in reaching with the shoulders, when she had not told the Panel that such was the case.
The Medical Panel fell into jurisdictional error by failing to take into account, when answering both Questions, considerations it was bound in law to consider when determining its opinion.
(a) that the Plaintiff had told the Panel that from about September 2013 she had experienced mild left shoulder pain, increasing in late 2014 and becoming worse in May 2015, when she attended her doctor and received a cortisone injection to her left shoulder, that she had reported her condition to her employer in May 2015 but with no change in her duties, that she experienced worse pain and numbness in her left hand in June 2015 when loading bagged linen into a skip after lifting the skip lid, that her left shoulder pain was thereafter worse and continuous:
(b) that this history was in substance recounted by Dr Haralambakis in his report dated 12 July 2016;
(c) that the Plaintiff told the Panel that in April/May 2015 her duties were changed to those of a relieving cleaner because of bleach affecting her eyes, that his [sic] work was harder than her previous isolation ward work because of the tasks that it entailed, and what those tasks were,
(d) that information contained in medical imaging which had been supplied to the Panel, was as follows:
(e) that medical reports provided to the Panel were to the effect that the cleaning work which the Plaintiff had done since January 2013 was capable of causing her left shoulder injuries and symptoms, or of causing the recurrence, aggravation, acceleration, exacerbation or deterioration of those symptoms or injuries;
(f) that medical reports provided to the Panel were to the effect that the condition of the Plaintiff's left shoulder and its progress was consistent with having been caused by the trauma of the work which she had done for the Second Defendant from January 2013, and that work was capable of causing those injuries or symptoms, or of causing the recurrence, aggravation, acceleration, exacerbation or deterioration of those symptoms or injuries.
The Medical Panel committed an error of law on the face of the record by providing Reasons for Opinion which are inadequate, as the Medical Panel failed to provide Reasons sufficient to show its actual path of reasoning either at all, or in sufficient detail to show how it arrived at its certified Opinion and whether its opinion does or does not involve any error of law.
38 The obligation of a Medical Panel in its provision of reasons was set out by the High Court in Wingfoot[7] in relation to the Accident Compensation Act 1985 (Vic) ('ACA'). The Court noted that the obligation flowed from the terms of the ACA which are substantially repeated in the Act:[8]
The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision making by an expert body for no additional legal benefit and no identified systemic gain.
39 Significantly, for the purpose of this case, the Court then stated:[9]
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
... A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.
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'. It must be 'adequate to enable a court to see whether the opinion does or does not involve any error of law'. 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'.
41 The articulated complaint of Ms Karabinis is that the Panel's reasons were insufficient in demonstrating the path of reasoning 'either at all, or in sufficient detail to show how it arrived at its certified Opinion and whether its opinion does not does not involve any error of law'.[12] I do not accept this proposition.
42 First, it is abundantly clear from the Panel's reasons that it understood its task - to determine whether Ms Karabinis' left shoulder injury was compensable - in the sense that it was an injury within the meaning of s 3 of the Act that gave rise to compensation[13] or whether it arose from constitutional factors unrelated to work.[14] That choice was stark and is demonstrated by the conflict in the medical opinions provided to the Panel which it identified in its reasons.
43 Second, the reasons explain in considerable detail the work performed by Ms Karabinis, the diagnostic imaging examined by the Panel, the opinions of the various medical professionals who had provided reports considered by the Panel and its conclusion that Ms Karabinis did not suffer a compensable injury as her condition was constitutional and not work related. It said, consistent with the requirements of the Act, that her employment was not a significant contributing factor. That path of reasoning is clearly exposed and, in my opinion, enables the Court readily to determine whether the Panel properly considered the issues as required by the Act.
44 Third, I do not accept, as was contended by senior counsel for Ms Karabinis, that it was necessary for the Panel to explore why it rejected work as a cause or contributing factor to the left shoulder injury, or, as counsel put it, why it preferred the constitutional explanation over that of compensable injury. Simply put, that is not the purpose of the provision of reasons in a case such as this. The statements of principle of the High Court in Wingfoot[15] makes that clear. It is clear from the Panel's reasons that it undertook its task as it was required to - that is, to determine (on the history provided by Ms Karabinis, the medical material available to it, on its own examination and then applying its expertise to that body of evidence) whether Ms Karabinis had suffered a compensable injury. The Panel correctly set out the provisions of the Act that it was required to consider and ultimately concluded that there was no compensable injury. It was not required to do any more than that. The Panel clearly demonstrated that it had given appropriate consideration to the issues referred to it and applied the provisions of the Act.
45 Whilst it may have been preferable for the Panel to explain why it rejected Ms Karabinis' work as a contributing factor to the injury it was unnecessary for the purpose of complying with its obligations to provide adequate reasons. I accept that in the context of the review of a judicial decision, as opposed to that of an administrative decision maker, such an explanation, even if perfunctory, may have been necessary. But that would be to apply the wrong test, as Wingfoot makes clear.[16] Simply put, it was not necessary for the Panel to go into any further detail as to why it did not accept that there was a compensable injury of the left shoulder. Indeed, the reasoning of the Panel in this case, when compared to that in Wingfoot, does not need resort to implication.[17] The Panel made it abundantly clear that it considered the alternative diagnoses and rejected that of compensable injury.
46 Finally, the argument of Ms Karabinis raises a vice which courts are regularly warned by appellate courts (including the High Court) to avoid:[18] the overzealous examination of the reasons for the decision of an expert body which has, it is clear, considered the two alternative hypotheses as to the cause of Ms Karabinis' left shoulder injury condition.
Was there jurisdictional error on the part of the Panel?
47 Although there are a raft of complaints in the written grounds, the primary complaint articulated by Senior Counsel at the hearing was that the Panel fell into jurisdictional error in relation to its assumptions of fact regarding the work duties performed by Ms Karabinis in 2015. Ms Karabinis swore two affidavits concerning her examination and attendance on the Panel.[19]
48 The short point raised by Counsel was a misapprehension or mistake by the Panel as to Ms Karabinis' account to it about the nature of her duties in and after May 2015. The Panel in its reasons noted that from January 2013 until May 2015, Ms Karabinis had carried out heavier work in the isolation ward, which she preferred, to that in the relieving ward. She was transferred to the relieving ward and performed lighter tasks up until August 2015, at which time she ceased work. This it was said, and I accept correctly, constituted a significant part in the Panel's reasoning in rejecting the proposition that Ms Karabinis had suffered a compensable injury.
(a) when does a material mistake by an administrative decision maker amount to an irrelevant consideration sufficient to amount to jurisdictional error; and
(b) did the Panel commit such an error in its assumptions of fact in relation to Ms Karabinis' work duties.
50 To put it less obliquely, Ms Karabinis says that she told the Panel the opposite of that which was recorded by the Panel (i.e. her work became heavier, not lighter, when she changed jobs from the isolation ward to relieving cleaning in 2015). She also makes a number of other complaints about the history taken by the Panel - all of which she says in the originating motion amount to jurisdictional error.
51 As to the first point, there is a line of authority in this State of decisions of single judges,[20] as well as the Court of Appeal, in which errors in history taking by the members of a Medical Panel may, depending on the circumstances of the case, constitute an irrelevant consideration, giving rise to jurisdictional error.
52 On the other hand, it is accepted that an administrative decision maker is entitled to go factually wrong within jurisdiction and not be amenable to review as Hayne J noted in Re Refugee Review Tribunal; Ex parte Aala:[21]
In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded. As was noted in Craig v South Australia, that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
It is contended that to characterise any erroneous fact-finding by a panel for the purpose of a medical history, regardless of the nature of the error or oversight, as failing to take into account a mandatory consideration, or taking into account consideration no matter it was bound to disregard and thus jurisdictional error on that account is wrong in law.
I accept that this proposition; indeed I doubt whether it was in issue in this case. The real point is where to draw the line between a factual error that is within jurisdiction and one which amounts to jurisdictional error.
54 In Ryan v The Grange at Wodonga Pty Ltd & Ors,[22] the Court of Appeal held that a Medical Panel will have committed jurisdictional error if it fails to take into account a matter it was bound to consider, in circumstances where that failure materially affected the decision itself. Neave JA (with whom Santamaria JA and Ginnane AJA agreed) said of the cognate provisions of the ACA:[23]
Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker's answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker's answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.
A court must proceed carefully when reviewing an administrative decision on the ground that the decision-maker did not have regard to a relevant consideration "lest it exceed its supervisory role by reviewing the decision on its merits". As Kyrou J (as he was then) observed in Milwain v Sim, when reviewing a Medical Panel decision which was ultimately held to have ignored relevant considerations:
[T]his Court must be careful not to cross the line between judicial review and merits review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.
In my opinion, a proper reading of the decision of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd, discloses Neave JA's analysis as follows:
(a) A medical panel is bound to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred questions.
(b) The fundamental issue arising from the referral material, in the circumstances of that case, was whether the worker, by returning to her work duties, would aggravate her pre-existing shoulder injury.
(c) The reasons of the medical panel did not deal with the fundamental issue of 'whether the appellant's return to her pre-injury duties would further aggravate her pre-existing shoulder condition'.
(d) Her Honour inferred that the medical panel 'did not take account of' the fundamental issue - presumably on the basis that:
(i) it was not expressly referred to in the reasons; and
(ii) if such a fundamental issue had been considered, one would expect that it would have been referred to.
(e) The medical panel, by failing to deal with the fundamental issue, for the purpose of answering Question 2, had failed to fulfil its statutory function of forming its opinion on the medical question referred to it. Speaking colloquially, I infer her Honour as concluding that, given its significance to the referred question, the medical panel had failed to have regard to the elephant in the room. This constituted jurisdictional error.
56 For reasons I will now set out, I adopt this analysis of the effect of Ryan[26] and accept that the relevant error or fact must be fundamental and go to the issue that the Panel is bound to consider in order for it to give rise to jurisdictional error.
57 This approach is exemplified by the decision in Milwain v Sim.[27] In that case, Kyrou J found that the Medical Panel had not taken into account the worker's description of the nature of her work and the medical evidence relating to it. Having been persuaded that such an error had been made, and given that the question to be determined by the Panel was whether employment had significantly contributed to the injury, his Honour held that the Medical Panel had committed jurisdictional error. This was a fundamental issue required to be determined by the terms of the legislation.
58 There is also support for this proposition in several recent decisions of the Federal Court (both single judge and appellate). For instance in Minister for Immigration and Border Protection v SZSRS, the Full Court of the Federal Court said: [28]
We should emphasise here that in coming to this conclusion, we do not endorse the primary judge's statement of principle at [15] (extracted earlier). We agree with the Minister's submission that it is possible to read paragraph [15] as amounting to a statement that jurisdictional error will necessarily be established if the ignored material is relevant ("might have had a bearing on the outcome of the review...not so insignificant that failure to take it into account could not have materially affected the decision"). That puts the matter too widely. The primary judge appears to conflate the question of whether the Tribunal made a jurisdictional error with whether relief should be refused in the exercise of the Court's discretion. As Robertson J made clear in SZRKT (at [97] and [122]), merely to ignore relevant material does not establish jurisdictional error. In relation to similar reasoning by the Federal Magistrate whose judgment was under appeal in SZRKT, Robertson J said:
122. For these reasons, although I do not agree with the reasoning of the federal magistrate I find that his Honour's conclusion and orders were correct. In particular, the proposition that it is always a jurisdictional error to ignore "relevant material" is too widely expressed as is the reasoning in [36] of the federal magistrate's reasons that it is always jurisdictional error unconsciously to ignore corroborative evidence.
We again respectfully agree. If the reasoning of the primary judge in paragraph [15] of the judgment amounts to a statement that it is always a jurisdictional error to ignore relevant material or corroborative evidence, we do not agree with that reasoning. However, for the reasons we have given, his Honour's conclusion and orders were correct.
59 To similar effect, in Minister for Immigration and Citizenship v SZRKT, the following was said by Robertson J: [29]
...The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
60 Then in BZAFI, Rangiah J held that where there was a failure to consider a particular piece of evidence, whether it amounted to jurisdictional error 'turns on its importance in the context of the application before the Tribunal'.[30] His Honour concluded that the material 'was of such central importance to the appellant's application that the Tribunal fell into jurisdictional error by failing to consider it'.[31]
61 At a state level, the New South Wales Court of Appeal said, in Rodger v De Gelder:[32]
The Panel's reasons disclose that it did not engage with the evidence of a complaint of the onset of thoracic pain at the time of and continuing after the motor accident. This was a matter of importance which related to its determination of a non-medical factual question. It is not to the point that the function of the Panel is to form and give its own opinion on the medical dispute referred to it by applying its own medical experience and its own medical expertise: Wingfoot Australia Pty Ltd v Kocak at [47]. Nor is it to the point that s 61(9), which is made applicable by s 63(6), only obliged the Panel to set out in its certificate the reasons for any finding of any matter certified in the certificate.
Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel's decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420 (Jordan CJ).
62 The end result of all this, I think, is that a Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a Panel has fallen into jurisdictional error. It is, therefore, a question of fact and degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in light of the ultimate decision and the basis for it, as articulated by the reasons.
63 I should finish on this point by noting that I do not accept, as mildly contended for by counsel for Spotless, that there may only be jurisdictional error where the decision is tainted by patent irrationality or illogicality in circumstances such as those identified by the High Court in Minister for Immigration and Citizenship v SZMDS.[33] That, I think, takes the point too far and is inconsistent with the authorities to which I have referred.
64 On the other hand, if the authorities relied upon by Ms Karabinis, such as Tralongo v Malios & Ors,[34] Cladingboel v Newcrest Mining Limited,[35] Ripper v Kotzman,[36] Jasky v Dr Cooney & Ors,[37] Smith v Commonwealth of Australia[38] and Mikhman v Royal Victorian Aero Club & Ors,[39] go so far (which I doubt) as to establish that any material discrepancy in the Panel's history taking, as opposed to a worker's account, gives rise to jurisdictional error, then I do not consider that accords with authorities to which I have referred.
65 The second point then is whether such a fundamental error occurred in the assumption of facts made by the Panel based on Ms Karabinis' history. The asserted error emphasised by counsel for Ms Karabinis was of a change of duties from heavier to lighter work in May 2015.
66 I accept that this issue was significant in the Panel's finding that there was no compensable injury. This finding features prominently in the reasons and appears to provide one of the bases for the Panel rejecting the contention that Ms Karabinis' work was a significant contributing factor to the injury.[40]
67 That, however, is not the end of the matter. It must still be determined whether the Panel got it wrong in terms of the history given by Ms Karabinis to the Panel - did the Panel mistakenly record the account provided by Ms Karabinis.
68 In my view, no such error has been shown to have been made by the Panel. This is so for the following reasons.
69 First, the evidence that the Panel 'got it wrong' must be cogent. The reviewing court is entitled to assume that the contents of the reasons (or, in this case the reasons supplemented by the contemporaneous notes) are correct unless persuaded otherwise. This accords with statements of principle in relation to the notes of Magistrates in lower courts. In Thomson v Cross,[41] the Magistrate supplied his notes to the Court where there was a dispute over some parts of the complainant's affidavit as to the evidence given in the Court of Petty Sessions. Sholl J said:[42]
Notwithstanding the practice whereby the affidavit of the party supporting the decision of the Court below is frequently preferred in case of a conflict as to what occurred there, I have no hesitation in the present case in relying on the magistrate's note in relation to the evidence which it covers. ... I apprehend that where a judicial officer such as a stipendiary magistrate takes an actual note of evidence during a hearing before himself, and makes it available, this Court will in general, unless some clear reason appears for supposing that there is some error or omission in it, accept it and act upon it in preference to the account given on affidavit by an interested party.
70 However, as Herring CJ noted in Scott v I'anson, 'the Court's duty, of course, on an order to review, as in all other proceedings, is to determine if it can where the truth lies.'[43]
71 As will become apparent there is no cogent reason to reject the history contained in the Panel's reasons.
72 Second, the contemporaneous, handwritten notes of the three Panel members taken at the time of the interview of Ms Karabinis, which I set out below, generally tally with the account contained in the Panel's reasons.[44]
In 2015 job changed because of the eyes. Not changed because of the shoulder.
Didn't have a position so did a relieving position, usually theatres, ICU or offices, stairs, mostly doing dusting, sweeping, mopping, windows.
In May 2015 pain increased. Top right shoulder and numbness left arm/patch on elbow and wrist, off and on, depending on what she did the day before. Also left hand became weak. Theatres and stairs, sweeping and mopping made the symptoms worse. Did not do much above head work. Isolation job was more physically demanding but she enjoyed it more. Vacuuming in offices was difficult. Theatre and ICU linen bags were heavy. Lifted half an hour after each operation, three times in the shift.
In May and 2015 noted increased pain. A new pain. Asked Dr for cortisone. Knew about it from other people. GP did ultrasound and CT scan. Team leader said she had to go on work cover. Pain was top of shoulder and numbness on top shoulder. Cortisone helped with pain for three months. Referred to specialist and on Workcover from August 2015. June/July worked 2 or 3 days per week. Normal duties. After Workcover application worked light duties. Given supervisory duties.
reliever was harder (this crossed out and the 'easier' written above)
Doctor suggested to change duties due to red eyes/bleach mid 2015
Isolation was easier/best, enjoyed more but more physically demanding
76 These notes also include what I take to be an observation rather than a record of what was said:
-idiopathic calcific tendonitis complicated by capsulitis
Noted nature of duties in isolation more demanding but she said no symptoms
77 The notes of the three doctors together , it seems to me, are consistent with the history contained in the reasons - which were published six weeks after Ms Karabinis was interviewed by the Panel. These notes and reasons are to be contrasted to Ms Karabinis' account of the meeting with the Panel.
78 In her first affidavit, Ms Karabinis says that the Panel made mistakes as to her history which included:
(b) she started work as a relieving cleaner in March 2015 not May 2015;
(c) she told the Panel that the work as a relieving cleaner was more physically demanding than that in the isolation ward; this job was harder because it involved more movements with more things to carry, shifting bins and lifting; and
(d) the pain in her left shoulder commenced in March 2015, not May 2015, and this resulted in her seeking treatment in May 2015.
79 Ms Karabinis' second affidavit contains further extensive and expansive details of her account to the Panel of her duties at Spotless, including those as a relieving cleaner and in the isolation ward. She maintained, in that affidavit, that she told the Panel that the relieving cleaning work was harder than that in the isolation ward and that in May 2015, she experienced worse pain in her left shoulder.
80 The critical part as noted by her counsel is the change of duties and (on Ms Karabinis' account) the heavier nature of the relieving work that she undertook in 2015. But that is not what the Panel recorded. Their contemporaneous notes (both independently and when combined) make it clear that she told the members of the Panel that the isolation work was more physically demanding than the relieving work and this is what appears in the reasons.[45] I accept that the notes accurately record what Ms Karabinis told the Panel and this is reflected in the reasons. I should add that I do not regard the alteration in Mr Mills' note as affecting this conclusion.
81 Third, whilst I accept that Ms Karabinis in her evidence before me endeavoured to give an accurate account of what she told the Panel, it necessarily comes from a partisan point of view. She knew when she swore her two affidavits this year that the Panel had, in part, rejected her case because of her account in relation to the change of duties. Her position is to be contrasted to that of the Panel, whose three members, it can be readily assumed, are impartial and had no preconceived view of Ms Karabinis' work history when they came to independently record her account. Moreover, the notes of the three doctors, each taken separately, generally tally both in terms of recorded chronology and the description of the duties of Ms Karabinis. The proposition that the three of them, separately recording notes, got the history wrong cannot be countenanced.
82 Fourth, the litany of complaints made by Ms Karabinis in her two affidavits (and particularly the second affidavit) about the history taking of the Panel members is unimpressive - particularly when compared with the contemporaneous notes of the Panel. I have the distinct impression that this affidavit contains Ms Karabinis' account to her solicitor of what she now thinks happened at work, as opposed to what she told the Panel.
83 I should add that Ms Karabinis could only remember one of the doctors taking notes as she provided her history and was adamant that the presiding member who questioned her did not take notes.[46] In fact, Dr Bendrups' notes are the most extensive.
84 Finally, I should deal with the question posed by Senior Counsel for Ms Karabinis: why would she tell them something that was patently inconsistent with her sworn account in this proceeding. That cannot be answered, although one could speculate readily. But the better question is why would the doctors, impartial as they were, have each made a similar note of Ms Karabinis' history on this point and then each signed off on the reasons.
85 It follows that I am not persuaded (indeed I am powerfully persuaded to the contrary) that the Panel incorrectly recorded the history provided to it.
86 The other substantive matter raised by counsel for Ms Karabinis was that the Medical Panel failed to take into account the medical imaging.[47] There is nothing in this point. Not only does the Schedule attached to the reasons contain references to the medical imaging having been considered by the Panel, but the reasons specifically advert to the imaging and what the Panel made of those studies. Indeed, it is clear that the members of the Panel not only read the reports of the imaging but also examined the scans themselves.[48] The response to this was Counsel's retort 'but what did they do with the information?', the answer to which, simply put, is that this does not go to any question of jurisdiction or jurisdictional error.
87 The other complaints set out at [38] were not, understandably, pressed by counsel for Ms Karabinis. The reality is that these were minor issues which, demonstrate the necessity to draw a line between those fundamental issues that go to questions of jurisdictional error and those that do not.
88 There is no inadequacy in the reasons provided by the Panel. There was no jurisdictional error on the part of the Panel.
[2] Sworn on 3 April 2017 and 8 August 2017, respectively.
[3] Counsel for Ms Karabinis initially objected to the tender made under s 69 of the Evidence Act 2008 but withdrew that objection in the course of the hearing.
[7] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot').
[9] Ibid 501 [55]-[56] (emphasis added).
[11] [2016] VSC 806 [60] (citations omitted).
[12] Plaintiff's Outline of Submissions [3]-[32].
[13] Sections 39 and 40 of the Act.
[15] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.
[17] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.
[18] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; [1996] 185 CLR 259, 272 and Pham v NRMA Insurance Ltd [2014] NSWCA 22 [16].
[19] Affidavits of 3 April and 8 August 2017.
[21] [2000] HCA 57; (2000) 204 CLR 82, 141 [163] (footnotes omitted).
[22] [2015] VSCA 17 ('Ryan').
[23] Ibid [60]-[61] (emphasis added) (citations omitted).
[25] Omerasevic v Kotzman [2016] VSC 383 [97] (citations omitted).
[28] [2014] FCAFC 16, [58]-[59] (emphasis added). See also BZAFI v Minister for Immigration and Border Protection [2015] FCA 771, [35]-[37] ('BZAFI').
[29] [2013] FCA 317; [2013] 212 FCR 99, 130 [111].
[30] BZAFI v Minister for Immigration and Border Protection [2015] FCA 771 [37].
[32] [2015] NSWCA 211 [108]-[109] (emphasis added).
[42] Ibid 636. See also Scott v I'anson [1958] VicRp 34; (1958) VR 204, 205-206.
[43] Scott v I'anson [1958] VicRp 34; (1958) VR 204, 206.
[44] The notes (with typed translations) are exhibits to the affidavit of Mr Russell.
[47] See para [38], above and see paragraph (d) of the grounds set out in the amended originating motion, filed 21 August 2017.
Karabinis
Bendrups & Ors [2017] VSC 648
(2013) 252 CLR 480
(2000) 204 CLR 82
(2010) 240 CLR 611