Plaintiff v Defendants

2 On 21 June 2016 the plaintiff was employed by the first defendant as a herd manager when she was kicked by a cow and suffered a crush injury of her left hand (the incident). Pain and swelling ensued. She applied ice and completed her shift.

3 On the following day, the plaintiff attended hospital in Warrnambool. Her hand was x-rayed. At some point there was the suggestion of an occult scaphoid fracture. The plaintiff's injury was treated conservatively.

4 The plaintiff claimed worker's compensation. Her claim was accepted.

5 At several points in 2016 the plaintiff underwent radiological investigations, and in 2017 she underwent a bone scan and an MRI scan. The suggestion that there was a fracture seems to have faded.

6 At some point the plaintiff returned to some form of work with her employer. Her employment was terminated in about mid-2017. She has not worked since.

7 The plaintiff gave birth to a son in about 2018. It seems that the birth was traumatic.

8 In the period between the incident and late 2019, several medical practitioners expressed the opinion that the plaintiff was suffering from complex regional pain syndrome type 1.[1] In that regard, in September 2019 the plaintiff's general practitioner, Dr Carison, reported that the plaintiff would be unable to perform her pre-injury duties for the foreseeable future and was unable to be retrained as she struggled with 'severe daily pain' and the effects of 'regular sedating analgesics'. Dr Carison expressed the opinion that the prognosis in respect of the plaintiff's condition was 'very poor'.[2]

9 On the other hand, several other medical practitioners could find no sign of complex regional pain syndrome.[3]

10 In October 2016, Dr Long, consultant occupational physician, posited a 'chronic pain syndrome' and suggested management of the plaintiff in a multidisciplinary team including a pain physician, after she had developed 'generalised sensory dysfunction involving most of the left side of her body soon after undergoing a localised injection procedure for her hand'.[4]

11 Considerably later, in June 2018, Dr Karna, rheumatologist, considered that there was a resolved soft tissue injury and that the plaintiff presented with 'a psychogenically driven chronic pain syndrome'.[5]

12 It is not evident that the plaintiff ever received treatment from a psychologist and no psychologist reported.

13 Only one psychiatrist reported: Dr Van Ammers. He saw the plaintiff on two occasions - in September 2017 and July 2018 - and, on each occasion, stated, in substance, that she did not suffer from any 'work related mental disorder'. In his opinion, there was no psychiatric diagnosis and, psychiatrically, the plaintiff had 'a full work capacity'. Consequently, he considered there to be 'no requirement for psychiatric or psychological treatment'. In respect of several identified 'suitable employment' options, Dr Van Ammers stated that from 'a psychological perspective, she is able to perform all of those vocational options'.[6]

14 Dr Van Ammers was later provided with the report of Dr Karna, and in a further letter dated 18 September 2018 expressed views stated in full below in connection with the plaintiff's submissions directed to ground 1.[7]

15 A short time later, in October 2018, the plaintiff attended Dr Bones, consultant occupational physician. Dr Bones recorded the plaintiff as having given a history of 'ongoing pain in her left hand in the area of the left thumb and base of the first finger'. The plaintiff claimed to have 'good days and bad days'. Dr Bones noted the plaintiff's medications and also recorded the limitations that she claimed, including being unable to 'hold a cup or a can' or to 'push up her body weight with her left palm' or to 'carry the baby with both arms'.[8]

16 Dr Bones was the only medical practitioner who was shown surveillance video footage of more than 57 minutes taken of the plaintiff in September 2018.[9] Dr Bones recorded her observations of the film and also recorded her observations on examination of the plaintiff's left hand -

Skin colour and temperature is comparable to that of the right hand. There were no observable colour changes or episodes of swelling during assessment and examination. There was no unequal hair distribution on the forearms.[10]

17 Dr Bones considered that the plaintiff was 'actively restricting movements of her left hand and fingers'. Dr Bones described the plaintiff's difficulty in using her hand in examination as 'functional in nature', although it seems to me to be debateable precisely what she meant in the context in which that description was used.[11]

18 Dr Bones formed the view that the plaintiff's left hand and wrist was 'entirely normal today'. She concluded that the plaintiff had 'sustained a soft tissue injury to the left hand in the course of her employment and that this injury has now fully resolved'. Dr Bones was unable to explain the reported on-going pain.[12]

19 Dr Bones was of the opinion that the plaintiff could return to her work in her pre-injury duties and hours and that she could undertake the vocational options identified.[13]

20 By notice dated 25 October 2018, the plaintiff's entitlement to weekly payments of compensation was terminated with effect from 26 January 2019. The notice of termination referred to, among other things, the substance of the surveillance undertaken in September 2018, as well as to the opinions of Dr Van Ammers and Dr Bones.[14]

21 The plaintiff commenced proceedings in the Magistrates' Court in which she claimed injury in the incident in June 2016 and, as a result, no current work capacity, which was said to be likely to continue indefinitely. Among other things, the plaintiff claimed weekly payments of compensation from 26 January 2019 to continue in accordance with the Act and a declaration as to the first defendant's liability for complex regional pain syndrome.[15]

22 In her statement of claim, the plaintiff stated particulars of injury as follows:

(a) soft tissue/ligamentous injury to the left hand/wrist;

(b) occult scaphoid fracture;

(c) tendinosis of the ECU (ie, extensor carpi ulnaris);

(d) complex regional pain syndrome;

(e) 'consequential; psychological injury'.[16]

23 The first defendant obtained further surveillance film of the plaintiff's activities in September 2019.[17]

24 On 18 November 2019, a magistrate referred seven 'medical questions' to a medical panel (the Panel).[18]

25 The Panel was constituted by a general practitioner, orthopaedic surgeon, rheumatologist and a psychiatrist.

26 The plaintiff attended the Panel on 6 February 2020. She was examined jointly by the general practitioner, orthopaedic surgeon and rheumatologist and separately by the psychiatrist.

27 The plaintiff and first defendant each provided written submissions to the Panel,[19] together with various written medical opinions and other documents including vocational material.

28 On 7 March 2020, the Panel published its certificate of opinion accompanied by its reasons.[20] The questions posed and answers provided were as follows -

Question 1 What is the nature of the Plaintiff's medical condition relevant to the injuries referred to at paragraph 4 of the Statement of Claim, namely:

(a) Soft tissue/ligamentous injury to the left hand/wrist;

(b) Occult scaphoid fracture;

(c) Tendinosis of the ECU;

(d) Complex regional pain syndrome;

(e) Consequential psychological injury?

Answer: (a) Now resolved soft tissue injury of the left hand/wrist

(b) No medical condition

(c) No medical condition

(d) No medical condition

(e) No psychiatric condition

Question 2 In the period 26 January 2019 until the date of the Medical Panel's examination, did any (and if so which) of the medical conditions identified in response to question 1 result from or were they materially contributed to by the left hand injury sustained in June 2016?

Answer: In the period 26 January 2019 until the date of the Medical Panel's examination, the soft tissue injury of the left hand/wrist did not result from and was not materially contributed to by the claimed left hand injury sustained in June 2016 as it had resolved prior to this date.

Question 3 As at the date of the Medical Panel's examination, do any (and if so which) of the medical conditions identified in response to question 1 result from or are they materially contributed to by the left hand injury sustained in June 2016?

Answer: As at the date of the Medical Panel's examination there is no condition physical or psychiatric which results from or is materially contributed to by the claimed injuries.

Question 4 In the period from 26 January 2019 to the date of the Medical Panel's examination, did the Plaintiff have:

(a) A current work capacity?

(b) No current work capacity?

Question 5 If "yes" to question 4(b), at any, and if so what time, in the period from 26 January 2019 to the date of the Medical Panel's examination:

(a) Did the Plaintiff's incapacity result from or was it materially contributed to by any, and if so which, of the medical conditions identified in response to question 1?

(b) Was the Plaintiff's no current work capacity likely to continue indefinitely?

Answer: Not applicable.

Question 6 As at the date of the Medical Panel examination, does the Plaintiff have:

(a) A current work capacity?

(b) No current work capacity?

Question 7 If "yes" to question 6(b), at any, and if so what time, in the period from 26 January 2019 to the date of the Medical Panel's examination:

(a) Does the Plaintiff's incapacity result from or is it materially contributed to by any, and if so which, of the medical conditions identified in response to question 1?

(b) Is the Plaintiff's no current work capacity likely to continue indefinitely?

29 The Panel's reasons recorded the history provided by the plaintiff, including a diagnosis of complex regional pain syndrome made by the plaintiff's local general practitioner. The plaintiff is recorded as having told the Panel that 'over time she had a gradual increase of pain in her left wrist, and her left hand and forearm gradually turning purple'.[21]

30 The Panel recorded the 'current status' of the plaintiff's left wrist, forearm and fingers as follows:

The plaintiff continues to experience a constant, burning pain, which increases intermittently for a period of one hour to days at a time. The pain is situated in the whole of her left wrist, left forearm and all fingers of her left hand. She has numbness of the whole of her left hand. She has tingling and abnormal sensation on the inside of her left thumb. The plaintiff's range of motion of the left hand varies. The plaintiff said the movements can be normal if she is heavily sedated or on a good day. She said she is able to use her left hand on occasions, if heavily sedated. She said the left hand goes deep purple four to six times per week when she has pain. She said her nails grow slowly on the left side. She said the hair on the left hand has stopped growing and she started shaving the hairs on the right to compensate. The left hand becomes very sweaty and cold whenever she has pain. The hand also goes white at times. Hot weather flares up the colour changes and pain, and in cold weather there is a "real problem".[22]

31 In respect of those complaints, the plaintiff gave a history that, among other things, she was 'unable to lift more than 1 kilogram with her left hand' and that she was 'able to lift her two year old son, mainly with the right hand, with the left hand assisting, despite the pain in her left hand'.[23]

32 The plaintiff told the Panel that she takes Nurofen, Panadeine Forte, Endone and Lyrica and that she wears a Tubigrip over her left wrist on occasions.

33 The Panel discussed the vocational options with the plaintiff and noted that she 'wants her hand fixed before contemplating any work'.[24]

34 The plaintiff is recorded as having cried throughout the physical examination. The Panel was, however, 'unable to identify any particular movement of the left wrist which caused pain'. The Panel made several further observations, including that there was normal callous formation and work stains consistent with normal use of both hands, no sweating or glossiness suggestive of complex regional pain syndrome, normal passive movements of the fingers, no wasting of the muscles and normal circumferential measurements of the forearm.[25]

35 The Panel then referred to the surveillance films, which it viewed together with the plaintiff. The Panel recorded that the 2018 film showed the plaintiff using her left hand to rock a pram, hold a drink, push herself off the ground, raise to her mouth, adjust her sitting position and clap 'all without any indication of pain or restriction of movement'. The Panel also referred to the 2019 video which showed the plaintiff using both of her hands to pick up a child. The Panel considered that there was 'no evidence of pain or decrease of use of the left arm or hand in the two videos'. In response to the videos, the Panel recorded the explanation proffered by the plaintiff, namely that she had been 'heavily sedated'.[26]

36 The Panel considered the radiological investigations and thereafter recorded the psychiatric assessment.

37 In respect of the latter, the Panel noted the plaintiff's claims of 'severe pain in her left hand' and to have 'totally changed as a person'. The plaintiff was quoted as saying that she is 'in pain constantly; with flareups it's worse; nothing stops' and that she was 'depressed and anxious'.[27]

38 The Panel recorded that the plaintiff had been referred to a counsellor, but had not attended. The plaintiff is recorded as having told the Panel: 'I know what the cause is; it's my hand; I know why I'm depressed; why talk to someone about it?'.[28]

39 The Panel further noted that the plaintiff was having 'no psychiatric or psychological treatments', but also noted the medications that the plaintiff said that she was currently taking. [29]

40 A mental state examination was undertaken, in respect of which the Panel stated -

On mental state examination, the plaintiff presented as a 24-year old female of medium height and build, with heavy makeup and dyed hair. The worker sat with a stiff posture, with her left arm in a fixed flexed position across her waist. She was hesitant and suspicious in her demeanour, with limited rapport. She was hesitant with replies, providing at time minimal detail. Her affect was restricted in range and reactivity. Her mood was suspicious, anxious and mildly depressed. The plaintiff was preoccupied in detailing her difficulty coping with her injury, persistent pain, and the impact and her occupational and physical functioning. There were additional themes of aggrievement and embitterment regarding the management of her claim, and lack of support by her employer. The plaintiff described intermittent lowered mood, sleep disturbance, prominent pain focus, irritability, sedative side-effects from her current medication, and erosion of self-esteem. The plaintiff reported that she is hopeful that an intended ketamine infusion will provide some pain relief. There was no evidence of suicidal thoughts or plans, and no evidence of delusions or psychosis. Insight was limited, and judgement was affected by her pain and somatic focus. There was no evidence of perceptual disorder, and no impairment of intellect. There was no impairment of cognition at interview.[30]

41 The surveillance was thereafter referred to and the physical capabilities recorded in the film were noted, as was the plaintiff's explanation.

42 In respect of psychiatric diagnosis and conclusions, the reasons of the Panel stated as follows:

The Panel concluded the plaintiff's psychological symptoms had varied in severity in the context of persistent pain symptoms and somatic focus, loss of the relationship with her partner and aggrievement in the management of her injury by the claims insurer but based on the medical material and exam findings were not and are not currently of a severity or persistence to warrant a psychiatric diagnosis.

The Panel concluded the plaintiff has no current diagnosable psychiatric disorder relevant to the injuries referred to in the Statement of claim as "Consequential psychological injury" and accordingly has a work capacity from a psychiatric perspective.[31]

43 The Panel then referred to aspects of the reports of Dr Van Ammers and stated that it had come 'to a similar conclusion' based upon its examination findings.[32]

44 In respect of the physical diagnosis, the Panel stated:

Based on the referral material, the history provided by the plaintiff and the Panel's own examination findings, the Panel considers that the plaintiff suffered a soft tissue injury to her left hand/wrist in the incident, however having regard to the nature of the initial condition, the reports of Dr Bones and Dr Karna who could not find any diagnosable condition and the Panel's experience and understanding of the nature and progression of soft tissue injuries, the Panel considered the soft tissue injury would have resolved prior to 26 January 2019. The Panel therefore concluded the plaintiff's soft tissue injury has now resolved.

The Panel considered there is no evidence of a scaphoid fracture on the provided imaging investigation reports and the Panel concluded there is no medical condition relevant to the claimed occult scaphoid fracture.

The Panel found no abnormality of the extensor muscles on the ulnar side of the left wrist. The Panel concluded there is no medical condition relevant to the claimed tendonosis of the ECU (extensor carpi ulnaris).

The Panel found no current evidence of complex regional pain syndrome. The Panel considered the left wrist pain is fluctuating, there is no skin change, the colour change is minimal and not in a glassy-type appearance seen with CRPS, there are good signs of use namely callosities and work stains, there is no wasting of any muscles of the left upper extremity including the left forearm and hand muscles and there is no vasomotor instability. The Panel concluded there is no evidence of complex regional pain syndrome.

The Panel considered all of the radiology, reports and the examination findings and notes the current complaints of pain and symptoms. Despite these complaints the Panel was unable to find any diagnosable medical condition relevant [to] the claimed injuries.

The Panel further concluded that based on the history provided, medical material in the referral and the examination findings, the plaintiff has not suffered any psychological condition that warrants psychiatric diagnosis relevant to the claimed consequential psychological injury.

45 In light of the above, the Panel concluded as follows:

The Panel concluded that in the period 26 January 2019 until the date of the Medical Panel's examination, the soft tissue injury of the left hand/wrist did not result from and was not materially contributed to by the claimed left hand injury sustained in June 2016 as it had resolved prior to this date.[33]

46 From that point, the Panel concluded that the plaintiff had a work capacity for her pre-injury duties and therefore had a current work capacity.

47 The Panel had regard to various aspects of the medical material before it. The Panel disagreed with several identified medical opinions, but said that it had come to an opinion similar to that expressed by Dr Bones.

48 In the course of that survey of the material, the Panel noted specifically that Dr Karna had referred to a 'psychogenically driven chronic pain syndrome' and that Dr Wood had referred to a 'maladaptive response to a soft tissue crush injury' and 'chronic regional pain syndrome'. In that regard, it stated -

The Panel considered that based on the examination findings, she does not meet the diagnostic criteria for a chronic pain syndrome and noted Drs Karna and Wood had not seen the surveillance video which shows the plaintiff using her left hand and wrist without any hesitation, pain or restriction of movement.[34]

49 By amended originating motion dated 1 September 2020, the plaintiff sought judicial review of the opinion of the Panel based on eight grounds stated as follows (particulars omitted):

1 The Medical Panel did not answer the question that was put to it in Question 1, which it was required by law to answer.

2. The Medical Panel's Answers to Questions 4 to 7 depend on its Answer to Question 1.

3. The Medical Panel's Answers to Questions 4 to 7 are based on its opinion that the Plaintiff can perform the duties of her pre-injury employment, which is in turn based on the surveillance videos of 1 September 2018 and 14 September 2019, as is stated on page 15 of the Reasons.

4. The Medical Panel did not explain its path of reasoning for its answers to Questions 4 to 7, in that it did not explain why the activities in which the Plaintiff was engaged in the surveillance videos were a reason for her being fit for her pre-injury employment, or having a current work capacity, or not having no current work capacity, as required by Wingfoot Australia Partners v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [28] and [48].

5. It was not open to the Medical Panel to come to the Opinions contained in its Answers to Questions 4 to 7.

6. The Opinions contained in the Medical Panel's Answers to Questions 4 to 7 are not supported by logical grounds.

7. The Medical Panel did not, in respect of its Answers to Questions 4 to 7:

1. engage in an 'active intellectual process', in which each relevant matter received genuine consideration, or as a matter of substance give the matter of the Plaintiff's employment capacity of (sic) the appropriate consideration;

2. undertake the analytical process held to be required in Richter v O'Driscoll (sic: Driscoll) (2016) 51 VR 95 at [74]-[78] and [105], by reason of which the Medical Panel was required to show that it had given consideration to 's (sic: the plaintiff's) capacity to return to work in employment in a 'meaningful way', as a settled member of the workforce, including whether an employer would take the Plaintiff on with her disabilities.

8. The Medical Panel's Answers to Questions 4 to 7, and its conclusion that the Plaintiff had a capacity for the activities required for her pre-injury work, with the pain and pain related restrictions that she stated that she had, were unreasonable.[35]

50 The plaintiff's grounds are essentially directed to the Panel's answer to question 1, particularly question 1(e) to which the Panel answered 'no psychiatric condition', and, otherwise, and in several different ways, to the Panel's answers to questions 4 to 7 (inclusive) which broadly concern the issue of work capacity.

51 It follows that the plaintiff's grounds do not directly challenge the Panel's determination that she suffered a 'now resolved soft tissue injury of the left hand/wrist'. Nor is there a challenge to any part of the Panel's answers 1(b) to (d), to the effect that there was no occult scaphoid fracture, tendinosis of the ECU or complex regional pain syndrome.

52 Further, there is no direct challenge to the Panel's answer 2, to the effect that in the period 26 January 2019 until the date of examination the soft tissue injury of the plaintiff's left hand/wrist did not result from and was not materially contributed to by the claimed left hand injury sustained in June 2016 because it had earlier resolved.

53 Finally, there is no direct challenge to the Panel's answer 3, to the effect that at the date of examination there was no condition physical or psychiatric which results from or is materially contributed to by the claimed injuries.

54 I should note that the second to sixth defendants indicated that they would abide the decision of the Court and did not otherwise participate in the proceeding.

55 Various principles relevant to a judicial review of the opinions of a medical panel were recently surveyed by the Court of Appeal in Sidiqi v Kotsios.[36] Of particular present relevance, the Court of Appeal confirmed that -

(a) judicial review proceedings are not concerned with merits review;

(b) such a review must commence with a consideration of the statutory function of such a panel, which is to form an opinion with respect to the questions referred to it and state the reasons for the answers given;

(c) the parties to the underlying questions or matter may supply a panel with material relevant to the opinion sought, including making submissions on the basis of the material provided;

(d) the function of a panel is, however, not adjudicative or arbitral - its function is to form its own opinion on the medical questions referred to it applying its own medical experience and expertise;

(e) for these reasons, it will be difficult to conclude that an opinion was not open to a medical panel if its opinion was materially informed by its expertise;

(f) a medical panel is not bound by the rules of evidence and may inform itself on any matter relevant to the issues referred to it and in any manner it sees fit;

(g) it follows that a panel has a 'broad discretion as to the manner in which it evaluates the facts in a particular case' and, 'in a fundamental sense' it is for the panel to determine what information is sufficient to found an opinion with respect to a medical question; and

(h) a panel is not required to arrive at scientific certainty but to arrive at its opinion on the balance of probabilities.[37]

56 Further, and the course of and in connection with the survey referred to above, the Court of Appeal elaborated upon grounds of review based in contentions to the effect that the opinion of a panel was 'not open', as well as grounds directed to complaints of 'legal unreasonableness', irrationality, illogicality, failure to give genuine consideration and legally deficient reasoning.[38]

57 For completeness, I should note that the plaintiff relied upon established principles relating to judicial review for jurisdictional error.[39]

58 The central proposition advanced by the plaintiff in respect of ground 1 is that in answering 'no psychiatric condition' to question 1(e), the Panel erred in failing to answer the 'precise question' posed to it, namely the nature of the plaintiff's 'medical condition' and specifically whether she had suffered ´consequential psychological injury'.

59 In oral argument, Senior Counsel for the plaintiff submitted as follows -

the panel, instead of answering (e) as to psychological injury, which is what they were asked to do, answered as to "no psychiatric condition" and thus have not answered the question which was asked, purely on the basis of a comparison of the words in the question and with the word in the answer.[40]

60 In part, that proposition was developed by reference to differing dictionary definitions for the words 'psychological' and 'psychiatric'. Further, in oral argument, Senior Counsel for the plaintiff submitted that -

if (e) is to be read as meaning no psychological condition, then that can only be done if "psychiatric" covers the entire gamut of "psychological", and there's no evidence to that effect. That would be a matter of medical science, as to which there is no evidence whatsoever.[41]

61 In that regard, it was submitted that by 'negativing' psychiatric conditions, the Panel had left open and not answered the question posed concerning conditions 'which are not psychiatric' and, specifically, 'psychological injuries'.[42]

62 The significance of that error was said to be apparent in the Panel's own reasons, in which, it was submitted, the Panel had concluded that the plaintiff had a 'psychological condition'.[43]

63 A further error, it seemed to be suggested, was in the Panel reasoning that the psychiatric symptoms involved were 'not of a severity or persistence to warrant a psychiatric diagnosis'.[44] That demonstrated, it was effectively said, that the approach of the Panel was erroneously narrow.

64 In this regard, it was essentially submitted that question 1(e) should have been answered by reference to 'a psychological disorder, which the panel found she had'.[45] That 'disorder' or 'condition' was later in argument identified as having been 'the pain in her hand'.[46]

65 Interleaved within this pathway of argument, Senior Counsel for the plaintiff submitted that it had not been open to the Panel to conclude that there was no 'psychological injury'. In that regard, it was essentially submitted that -

(a) the Panel had found that the plaintiff had suffered a soft tissue injury that had resolved, and found no other physical injury;

(b) the Panel must be taken to have accepted the plaintiff's history of left hand and wrist pain;

(c) the Panel had evidence of such a 'psychological condition' - in the reports of Dr Wood, Dr Karna and Dr Van Ammers; and

(d) the Panel had itself accepted that the plaintiff had such a 'condition' or 'disorder'.

66 In my view, no significant part of the plaintiff's submissions in respect of ground 1 can be accepted.

67 It may, of course, be accepted that the dictionary definitions of the words 'psychological' and 'psychiatric' are different. It does not follow, however, that the Panel erred in answering question 1(e) to the effect that there was 'no psychiatric condition'.

68 In their ordinary meanings, the word 'psychological' means 'of the mind' and the word 'psychiatric' means 'relating to mental illness or disease'.

69 In context, the former may be given content by the latter. That may particularly be so in an instance such as the present when the issue was any 'injury' of the mind, and when that issue was being considered by a Panel constituted by expert medical practitioners including a psychiatrist.

70 In that sense, in my view, for the Panel to answer 'no psychiatric condition' to question 1(e) was readily to answer question 1(e) as stated. In that, when enquiring of 'consequential psychological injury', question 1(e) inevitably focussed attention upon the existence of any illness or disease of the mind. That was a psychiatric issue.

71 Accordingly, the answer given - 'no psychiatric condition' - was to state quite plainly that there was no injury (or 'condition') of the mind consequential upon the incident and/or soft tissue injury suffered by the plaintiff in the incident in June 2016.

72 For these reasons, I do not accept that 'no psychiatric condition' must be taken to cover 'all mental conditions' - psychiatric and psychological - in order to be taken to answer the question posed to the Panel.[47] In the present context, the issue addressed by the question was clear enough: whether there was a psychologically based pain condition constituting an 'injury' or 'condition'. To say, in answer, 'no psychiatric condition', was to answer that question.

73 In a strict sense, it seems to me to follow from the above that the plaintiff's contentions in respect of ground 1 may be rejected. However, in light of the more elaborate nature of the submissions advanced by Senior Counsel for the plaintiff at the hearing, I will address some further aspects of those submissions.

74 In that regard, I do not accept that the Panel either accepted or was, in effect, compelled to accept any opinion evidence before it from Dr Wood, Dr Karna or Dr Van Ammers to the effect that the plaintiff was suffering either a psychiatrically or psychologically based chronic pain syndrome which manifested itself in chronic pain and disability in her left hand and wrist.

75 As I have already indicated, the Panel included a psychiatrist and the function of the Panel was to express its own opinion for the reasons that it gave, not to adjudicate between its opinion and any opinions expressed by others.

76 In any event, Dr Wood is a sport and exercise medicine physician and Dr Karna is a rheumatologist. Both may be said to have raised the question whether a psychologically based chronic pain syndrome was present. Neither is, however, a psychiatrist.[48]

77 Dr Van Ammers is a psychiatrist and, as I have noted, his were the only psychiatric reports before the Panel. No psychologist reported.

78 In his first report, dated 23 September 2017, Dr Van Ammers recorded the plaintiff as having said that her previous GP had sent her to a psychiatrist, Dr Graeme Ridley. The plaintiff was recorded as having said that Dr Ridley's opinion had been 'very clear that there was nothing wrong with her'.[49] No report seems to have been provided to the Panel from Dr Ridley.

79 To Dr Van Ammers, the plaintiff reported that her hand was 'generally painful, that it was a constant aching, as if it was in a vice'. She also reported numbness and pins and needles in her fingertips. Dr Van Ammers also noted that she was taking Panadeine Forte, Lyrica for her endometriosis and Nortriptyline as adjunctive to her pain medication.[50]

80 In this context, Dr Van Ammers noted that the plaintiff herself agreed with the suggested diagnosis of complex regional pain syndrome. Dr Van Ammers then stated as follows -

Ms Moutray adamantly stated to the examiner that she does not have psychological issues contributing to or ensuing from her physical injury. The examiner could not detect sufficient premorbid vulnerabilities in the psychological domain that could explain abnormal illness behaviour or could contribute to a Pain Disorder. She does not present with psychiatric symptoms as a consequence of her ongoing injury.[51]

81 On the second occasion, in July 2018, Dr Van Ammers had the report of Dr Wood, but had not yet been provided with the report of Dr Karna. On that occasion, Dr Van Ammers stated, relevantly, as follows -

The findings on examination and the conclusions at this assessment are the same as when Ms Moutray was examined in September 2017. There is insufficient indication of a Pain Disorder, there not being notable pre-existing vulnerabilities. She does not demonstrate any psychiatric condition because of her now chronic hand pain. She is very clear in her mind that it has a physical cause. She appears to be more interested in procedures that may address the problem and is less inclined to pain management strategies.[52]

82 I should, perhaps, note that Dr Van Ammers used or considered both words - 'psychological' and 'psychiatric' - in his reports. Indeed, in the first of the above passages, Dr Van Ammers seems to have considered the 'psychological' to inform the presence of anything 'psychiatric'.

83 In any event, after examining the plaintiff for a second time and reporting in July 2018, Dr Van Ammers was given the report of Dr Karna which raised the issue of a 'psychogenically driven chronic pain syndrome'.[53] Dr Van Ammers was asked specific questions and answered as follows -

1. Based upon your recent examination do you believe that Nikita presents with a psychogenically driven chronic pain syndrome?

If Dr Karna's opinion regarding the nature of her condition is accepted, specifically the absence of physical pathology or CRPS, then it is reasonable to postulate that she has a chronic Pain Syndrome. Although not by definition, clinical experience suggests that such syndromes are often psychogenically driven. The examiner was cautious in making conclusions regarding previous physical health problems which were of a somewhat atypical nature and wanted to be careful in the absence of full documentation and his own lack of professional expertise in the field of neurology. Nonetheless, there have been previous events where Ms Moutray presented with atypical physical symptoms, not concordant with anatomical basis, and she adamantly disagreed with that documentation or that she was under stress at the time. This does hint at a tendency to somatised behaviour with repressed underlying psychological issues.

2. If Nikita is suffering from a psychologically driven chronic pain syndrome, is this related to her employment, and if so, how does this relate to her employment?

It would seem reasonably obvious that if she has such a syndrome, it has developed subsequent to her hand injury and even though that injury has now resolved, it was the start of the chronic pain presentation. Although the underlying psychological variables, hypothesised to be present, may not be initially causative of the symptoms resulting from her injury, they are certainly contributing to the continuation of the condition.[54]

84 Senior Counsel for the plaintiff submitted that by the supplementary report Dr Van Ammers had 'changed his mind' and, it was said, had concluded that the plaintiff suffered from 'a psychological problem which was causing her difficulties'.[55]

85 Dr Van Ammers' supplementary report did not, however, specifically retract his earlier assessments to the effect that there was insufficient indication of a 'Pain Disorder'. Indeed, it may be said that Dr Van Ammers did not provide direct or clear answers to either of the supplementary questions posed.

86 In that regard, Dr Van Ammers commenced the supplementary report by acknowledging the reasonableness of the 'postulate' that the plaintiff has such a syndrome, but then referred to his own caution in assessment, the absence of full documentation and his lack of expertise in neurology. He concluded by acknowledging the 'hint at a tendency' without specifically stating that such a condition ought either be thought to exist or to be a complete or any explanation for the plaintiff's presentation.

87 Further, in respect of the second question posed, Dr Van Ammers again provided no direct answer and, indeed, in the first line, might be thought specifically to have no more than adverted to rather than answered the question 'if' the plaintiff has 'such a syndrome'.

88 For these reasons, in my view, Dr Van Ammers was expressing no concluded view about the presence of a psychogenically driven chronic pain syndrome in the plaintiff.

89 The Panel seems to have reasoned similarly to the above, as it referred to Dr Van Ammers' reports, including an aspect of the supplementary report, and said that it had come to 'a similar conclusion' based on its examination findings.[56] That conclusion cannot have been that the plaintiff had a chronic pain syndrome, as the Panel later referred to that specific suggestion, and the reports of Dr Karna and Dr Wood, and rejected such a view for the reasons there stated.[57]

90 At the very most, the views of Dr Wood, Dr Karna and whatever Dr Van Ammers was saying in his supplementary report were no more than open to consideration by the Panel. In that regard, no submission of the kind now advanced on behalf of the plaintiff was made to the Panel,[58] and whether that submission was specifically made to the Panel or not it was very much for the Panel to consider the evidence in light of both the other material before it and its own expertise. That, it plainly did.

91 As I have earlier noted, a related contention of the plaintiff was to the effect that the Panel had itself found that the plaintiff had a 'psychological condition', namely 'pain in her hand'.[59] What I have already said concerning the Panel's consideration of the views of Dr Wood, Dr Karna and Dr Van Ammers should be sufficient to make clear that in my view that contention cannot be accepted.

92 In any event, the plaintiff's contention was specifically directed to the 'mental state examination' recorded in the Panel's reasons and, in particular, the opening two paragraphs of the Panel's 'psychiatric diagnosis and conclusions' that read as follows -

The Panel concluded the plaintiff's psychological symptoms had varied in severity in the context of persistent pain symptoms and somatic focus, loss of the relationship with her partner and aggrievement in the management of her injury by the claims insurer but based on the medical material and exam findings were not and are not currently of a severity or persistence to warrant a psychiatric diagnosis.

The Panel concluded the plaintiff has no current diagnosable psychiatric disorder relevant to the injuries referred to in the Statement of claim as 'Consequential psychological injury' and accordingly has a work capacity from a psychiatric perspective.[60]

93 In my view, those passages, in which the Panel plainly concluded that the plaintiff did not have a 'psychiatric diagnosis' in respect of her hand pain, cannot fairly be read as expressing some residual finding by the Panel that the plaintiff nonetheless had a 'psychological condition' that was the source of her hand pain.

94 To me, the Panel was giving effect to no such distinction (if there ever were one) and making no such finding either in those passages or elsewhere in its reasons.

95 As I have endeavoured to explain, the Panel - like Dr Van Ammers - simply viewed the plaintiff's variable psychological symptoms as relevant to and informing the assessment required, namely whether or not there was a mental 'injury' or 'condition' relevant to her central claim of disability, namely the pain in her left hand and wrist.

96 In the present instance, that was a psychiatric issue, as psychiatry is the study of mental illness and disease, and the claim of a psychogenically based chronic pain syndrome is, perhaps unsurprisingly, a diagnosis to be made by a psychiatrist on the basis of diagnostic criteria. In that regard, the Panel plainly considered that the plaintiff did not satisfy the diagnostic criteria.

97 So much was essentially made clear by the Panel on the next page of its reasons, in the course of which it stated that -

The Panel considered all of the radiology, reports and the examination findings and notes the current complaints of pain and symptoms. Despite these complaints the Panel was unable to find any diagnosable medical condition relevant to the claimed injuries.

The Panel further concluded that based on the history provided, medical material in the referral and the examination findings, the plaintiff has not suffered any psychological condition that warrants psychiatric diagnosis relevant to the claimed consequential psychological injury.[61]

98 The present issue engages two further aspects of the plaintiff's submissions in respect of ground 1.

99 The first is the proposition that in the above passages relied upon by Senior Counsel for the plaintiff[62] the Panel 'dealt with the matter as though she's suffering from the condition of which she complains' and in a manner 'only consistent with acceptance of the [plaintiff's] pain'.[63] In advancing that submission, Senior Counsel relied upon observations made by Gorton J in Ayana v Qantas Airways Ltd.[64]

100 In Ayana, Gorton J addressed the circumstance in which there may well be a suspicion that the worker is feigning symptoms, but the reasoning of a panel avoids that issue such as to leave the reviewing court in the position of drawing inferences from the mere reaching of a diagnosis.

101 That is not the present case. In the present instance it is plain from the reasons of the Panel - including the passages of reasoning specifically relied upon by Senior Counsel for the plaintiff - that the Panel did not accept the plaintiff's claims to it of 'constant', 'burning' and disabling left hand and wrist pain. In that regard, at the very least -

(a) the Panel's examination of the plaintiff's left hand, wrist and forearm did not support her claims of various symptoms associated with complex regional pain syndrome (including a forearm 'gradually turning purple');[65]

(b) in fact, the Panel's examination revealed many 'normal' features and, indeed, the Panel recorded that it 'was unable to identify any particular movement of the left wrist which caused pain';[66]

(c) the Panel viewed the surveillance films that displayed a sequence of identified activities and uses of the left hand and limb 'without any indication of pain or restriction of movement' and considered the films to reveal 'no evidence of pain or decrease of use of the left arm or hand';[67] and

(d) accordingly, at the conclusion of the first of the above paragraphs of reasoning relied upon by the plaintiff, the Panel stated quite plainly that, among other things, the current pain symptoms were not 'of a severity or persistence to warrant a psychiatric diagnosis'.[68]

102 In addition to the above, the Panel also referred to the report of Dr Bones - who was the only reporting doctor to have seen any of the surveillance videos. The Panel noted, specifically, that Dr Bones had been 'unable to explain the plaintiff's reported ongoing pain'. The Panel stated that it 'came to a similar opinion to that of Dr Bones'.[69]

103 In this context, while the Panel might be said to have acknowledged that the plaintiff made claims of pain in respect to her left hand and wrist, it was not necessary for the Panel to determine whether or not pain was genuinely claimed or alternatively being 'feigned'. What was important was that even if some degree of pain was present it was, upon the assessment of the Panel, including its evaluation of the surveillance films, not sufficiently severe or persistent so as to support any diagnosis of a chronic pain syndrome.

104 It follows that it was unnecessary for the Panel to form any concluded view about whether or not the plaintiff was 'feigning' pain. For the reasons that it gave, whatever the plaintiff said about her pain, the Panel simply did not accept that she was restricted to the required extent. That, the Panel quite plainly said. In the circumstances of the present case that was, in my view, perfectly sufficient.

105 The second relevant aspect follows from the first, namely the contention made by Senior Counsel that -

Whether or not you consider that she's got a chronic pain syndrome, it doesn't mean she doesn't have chronic pain.[70]

106 As a part of that submission, Senior Counsel seemed to be suggesting that the Panel found or should have found a psychologically based pain condition merely upon subjectively based claims of pain independently of any diagnostic criteria.[71] Indeed, the overall flavour of the submission was that in referring to the failure of the plaintiff to satisfy diagnostic criteria the Panel had, in effect, either erred or misdirected itself.

107 That submission was either the same as or a very near relative of a submission recently addressed, and rejected, by the Court of Appeal in Didani v Downes-Brydon.[72]

108 In Didani, the worker seems to have submitted that the panel was bound to look at his pain 'and not some other matter' and, seemingly, was 'bound to accept that pain (simpliciter) is a medical condition'.

109 The reasons of the Court of Appeal in Didani refer to the decision of the High Court in Military Rehabilitation and Compensation Commission v May, in which the plurality rejected the proposition that 'subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient'. The plurality noted that the Administrative Appeals Tribunal had accepted that Mr May felt 'unwell', but that was insufficient to establish that he had an 'injury' within the meaning of the Safety Rehabilitation and Compensation Act 1988 (Cth). As the plurality stated -

Mr May did not suffer from a diagnosable psychiatric disorder and no psychiatric disturbance could better account for his symptoms.[73]

110 In Didani, the Court of Appeal rejected the worker's submission and stated as follows -

If a medical panel is asked for an opinion as to whether any present medical condition is relevant to an injury that is only expressed in terms of a subjectively experienced symptom of pain, it is plainly appropriate for that panel to approach the question applying its medical understanding of the physiological (or psychiatric) change that was likely to have accompanied that subjective experience of pain.[74]

111 The reasoning of the Court of Appeal in Didani does not suggest that the present Panel made any error in considering whether the plaintiff's presentation engaged the diagnostic criteria for a psychogenically driven chronic pain syndrome.[75]

112 In that regard, of course, it is not irrelevant to note that the contention presently advanced - that there was some 'other' but essentially unspecified and undefined psychological pain condition that carried with it the very same symptomatology as a defined psychiatric or psychological chronic pain syndrome - was simply never suggested to the Panel or, indeed, developed in the evidence before it.

113 Whatever might be said about other cases and whether or not a panel can ever accept that a worker can be found to have suffered a 'psychiatric disturbance' as distinct from a 'diagnosable psychiatric disorder', there does not seem to me to have been any error in the Panel approaching the present issue in the manner in which it did

114 In that regard, if mere complaints of pain not engaging relevant diagnostic criteria in respect of recognised psychiatric disorders were to require serious consideration as constituting a 'psychological injury' for present purposes, manifold questions abound. If the 'psychological injury' concerned is not a recognised psychiatric condition with defined criteria, what is 'it'? What are the recognised features of 'it' and what may be said to differentiate it from a defined psychiatric chronic pain disorder? What pattern of symptoms might be said to present over time? How long might 'it' be expected to last? How can 'it' be best treated?

115 The existence of such questions demonstrates that, for the reasons identified, together with those identified by the Court of Appeal in Didani, the Panel made no error of the kind now contended.

116 In my view, none of the plaintiff's various arguments amount to any reviewable error affecting the Panel's determination of question 1. It follows that ground 1 must be rejected.

117 The substance of the plaintiff's criticism of the Panel's answers to questions 4 to 7 inclusive) amounts to the contention that it was insufficient for the Panel to have had regard to and acted upon the surveillance videos.

118 In particular, it was submitted that the following passage in the reasons of the Panel was 'a complete non-sequitur'[76] -

As the Panel concluded the plaintiff is no longer suffering from a soft tissue injury of the left and/wrist and is not suffering from any other physical or psychiatric condition, the Panel considered the plaintiff has a work capacity for her pre-injury duties and therefore had a current work capacity between 26 January 2019 to the date of the Medical Panel's examination and as at the date of the examination.

In the period from 26 January 2019 to the date of the Medical Panel's examination, and as at the date of the Medical Panel examination, the plaintiff did not and does not have any incapacity for work which resulted from or was materially contributed to by the claimed injuries.[77]

119 In that, it was submitted that the Panel had not matched the plaintiff's 'pain condition and what results from that with the work she was previously doing'. Senior Counsel thereafter commenced upon a sequence of pleas and purported explanations in respect of the plaintiff's apparent presentation in a sequence of still photographs drawn from the video surveillance films, and also referred to the plaintiff's ingestion of medications.[78]

120 It was ultimately submitted that the conclusion of the Panel concerning work capacity was variously 'unreasonable', 'irrational', lacking in 'genuine consideration' and unreasoned.

121 The short answer to the present point, variously put, is that it is all premised in an assumption that the Panel accepted or should have accepted that the plaintiff had a 'pain condition'. For the reasons earlier identified, I do not accept that the Panel made any such finding or was required to make any such finding.

122 Further, and in respect to the particular suggestion concerning medications, it was evident in the first report of Dr Van Ammers, to which the Panel had regard, that the plaintiff had taken Lyrica in connection with her condition of endometriosis.[79] In that regard, the plaintiff is recorded as having said to the Panel: 'I've had endometriosis for 10 years; I know what pain is'.[80] That period must include the period in which she was working, including for the first defendant as a herd manager.

123 In any event, the Panel recorded and thus plainly took into account what the plaintiff said concerning her medications, their dosages and frequencies and asserted effects upon her.[81]

124 In this context, it was for the Panel to make of the surveillance material what it did. It watched the films together with the plaintiff and was in a position to evaluate her responses against its own assessment, whilst mindful of its own findings on examination and other evaluations. As I have earlier noted, the first film was more than 57 minutes in length.

125 Having undertaken the process described, the Panel plainly stated that there was 'no evidence of pain or decrease of use of the left arm or hand in the two videos'.[82]

126 In my view, in the circumstances presented and in light of the principles attending a review of the present kind, it was well open to the Panel to evaluate the films as it did. I do not accept that the Panel was, in effect, bound to find that the activities shown in the surveillance films were 'merely normal activities which she has not denied that she's able to do'.[83]

127 Nor do I accept that the deliberations of the Panel were confined only to the surveillance films.

128 In addition, and importantly, as is apparent in the very passages relied upon by the Senior Counsel for the plaintiff in the course of developing the present argument, the Panel found that there was now no relevant medical or psychiatric condition afflicting the plaintiff.

129 In the present case, no aspect of the approach adopted by the Panel - as revealed and explained in its reasons - presents as 'unreasonable', 'irrational', unreasoned or anything of the sort.

130 For these reasons, grounds 2 to 8 must be rejected.

131 The plaintiff's various grounds and associated arguments must be rejected. The application for judicial review will be dismissed.

132 I will hear counsel concerning the form of orders, and costs.

[1] See, for example, the reports of Dr Blombery (Court Book 'CB' 130), Associate Professor Vagg (CB134), Dr Carison (CB136) and Dr Long (CB146).

[3] See, for example, the reports of Dr Karna (CB188), Dr Wood (albeit that he 'labelled' the plaintiff as having 'chronic regional pain syndrome' which he said was 'merely descriptive': CB193) and Dr Low (who also did not think that there was a chronic regional pain syndrome: CB205 & 207).

[4] CB215-216. See also the report of Dr Barraclough dated 11 November 2016 (CB159-160).

[9] The Court Book contains a series of still photographs taken from the film (CB256-262), through which I was taken in the course of address by Senior Counsel for the plaintiff. I was informed that it was not necessary for me to view either of the films taken of the plaintiff's activities, Transcript ('T') 53.

[15] CB86-88. I note, in passing, that the statement of claim included a second dispute relating to the decision of the agent in respect of the plaintiff's separate claim for an impairment benefit.

[17] As to which, see the still photographs taken from the film at CB306-311.

[18] Cf., notice of request dated 7 November 2019 (CB59-60).

[19] As to which, see CB65-69 and CB70-82.

[36] [2021] VSCA 187 ('Sidiqi').

[38] Sidiqi, [37], [42] & [46]-[64]. I note that on the day prior to the hearing the representatives for the plaintiff provided the Court with a sequence of mostly first instance Federal Court decisions concerning topics such as legal unreasonableness, irrationality and 'failure to give genuine consideration'. In response, Counsel for the first defendant provided the Court with copies of Sidiqi v Kotsios [2021] VSCA 187 and Didani v Downes-Brydon [2021] VSCA 281.

[39] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 351 and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.

[42] T8. See also, CB36: 'it leaves open a psychological condition which does not warrant a psychiatric diagnosis'.

[45] T13. See also, T15: 'this is consistent with what the panel said about [the plaintiff] having a psychiatric condition'.

[48] Nor, for that matter, is Dr Long, who is a consultant occupational physician, or Dr Bones, who is also a consultant occupational physician. (In the latter regard, as I have noted, exactly what Dr Bones might be taken to have meant when using the expression 'functional in nature' seems to me to have been unclear and certainly debateable).

[61] CB54. See also, CB56: 'she does not meet the diagnostic criteria for a chronic pain syndrome'.

[62] That is, the passages extracted above at [92].

[64] [2021] VSC 500, [18(c)]. Senior Counsel also placed reliance upon Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].

[67] Ibid. See also, CB56: 'Drs Karna and Wood had not seen the surveillance video which shows the plaintiff using her left hand and wrist without any hesitation, pain or restriction of movement'.

[72] [2021] VSCA 281 ('Didani').

[73] [2016] HCA 19; (2016) 257 CLR 468, [57] & [66]-[68].

[78] T30-33 & 36-38. In written submissions (CB37) it was also submitted on behalf of the plaintiff that her account was 'corroborated by the history contained in the plaintiff's medical reports'. The Panel received those reports and referred to many of them in its reasons. More importantly, the Panel received and was in a position to assess the plaintiff's account for itself, especially as it undertook a physical examination of her and viewed the videos in her presence. The Panel was not bound to accept her account merely because some part or even all of that account had earlier been conveyed to one or more other medical practitioners.

[82] CB49. See also, CB56: 'Drs Karna and Wood had not seen the surveillance video which shows the plaintiff using her left hand and wrist without any hesitation, pain or restriction of movement'.