Plaintiff v Defendants

2 Mr Hartill-Law suffered injuries on 13 February 2019 when he was assaulted at his workplace by an inebriated patron. He had commenced work at Pat's Italian Restaurant at Mt Buller in January 2019. He sustained a left ankle dislocation ligamentous injury and a number of other injuries not relevant to this proceeding. He was born on 13 December 1973 and was aged 45 at the time of injury.

3 He made a claim for compensation for weekly payments and medical expenses which was accepted. Before the Panel was a brief letter from the first defendant to the conciliation officer, described as an employer submission.[3] The letter advises that from June to September 2019, Mr Hartill-Law was working elsewhere at Mount Buller (at Cattleman's Restaurant), and was no longer employed by Stratford (VIC 1) Pty Ltd.

4 Dr Slater, an orthopaedic surgeon practising in Albury, consulted the plaintiff in March 2020 regarding ongoing left ankle symptoms and, with the benefit of an MRI scan performed shortly after this, diagnosed a torn anterior talo-fibular ligament in the left ankle. On 14 May 2020, he performed a left ankle arthroscopy and Brostrom reconstruction to repair the ligamentous damage.

5 On post-operative review on 8 July 2020, Dr Slater was satisfied with the left ankle's progress and described the left ankle as stable. Right ankle pain and swelling was noted and an MRI scan was arranged. One consequence of the left ankle injury had been an altered gait which was said to have led to right ankle symptoms.

6 The right ankle had suffered previous injuries. Dr Slater had obtained a history of a fall at work with a different employer in North Queensland approximately twelve years earlier (the Queensland work injury). That fall caused a right ankle injury that was operated on twice, requiring open reduction and internal fixation of an ankle fracture. The history obtained from the worker by the Panel also included an initial right ankle injury sustained playing cricket more than 20 years ago which required an arthroscopy. The MRI arranged by Dr Slater led to a diagnosis of post-traumatic arthritis of the right ankle joint and non-union of the joint.

7 Dr Slater made a request dated 28 July 2020 that the WorkCover insurer fund proposed right ankle surgery, intending to perform a distraction arthroplasty, removal of plates, exploration of medial malleolus and application of illazarov frame.

8 By notice dated 27 August 2020, the WorkCover claims agent rejected the request noting that the claim was for a left ankle injury and the proposed surgery was to the right ankle. A conciliation request was lodged. In that context, a medical examination was arranged with Dr David Hayes to consider the question of liability for a right ankle injury and whether the proposed surgery should be approved. What was clear by the time Dr Hayes reported was that the right ankle was said to be an injury consequential to the left ankle injury.

9 By the time of the conciliation referral to the Medical Panel on 23 December 2020 the agent had accepted the liability for the right ankle condition secondary to the altered gait as a result of the left ankle injury. It is not clear precisely when that concession was made but I infer it was on receipt of Dr Hayes' report, which concluded that the worker sustained:

(a) Left ankle ligament rupture;

(b) Exacerbation of post traumatic osteoarthritis in right ankle secondary to the left ankle injury.

10 As to the disputed surgery request, the Panel was asked two questions. The first question is explicit that the right ankle injury is an accepted injury. The questions and the Panel's answers were as follows:

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the accepted right ankle injury?

Answer: In the Panel's opinion the worker (Mr Hartill-Law) suffered an exacerbation of pre-existing post traumatic osteoarthritis of his right ankle, the exacerbation of which has now resolved and is suffering from pre-existing post-traumatic osteoarthritis not attributable to the claimed right ankle injury.

Question 2: Do you consider the proposed medical service, namely a right ankle distraction arthroplasty, removal of plates and explore of medial malleolus surgery appropriate for the worker's injury and/or condition?

Answer: Not applicable.

11 The worker's Originating Motion identifies seven grounds of review. Two grounds broadly deal with procedural matters: a denial of natural justice by concluding that the exacerbation injury had resolved when that question could not have been anticipated by the plaintiff, and providing an opinion that extended beyond the questions asked of the Panel. It was said that the questions were directed at the appropriateness of the proposed surgery not at the causation of the present right ankle symptoms.[4]

12 The remaining five grounds attacked the Panel's conclusions that the right ankle exacerbation injury had resolved and the condition was now attributable to the underlying post traumatic osteoarthritis caused by the Queensland work injury. The conclusions were said to be unreasonable, illogical and irrational,[5] were conclusions for which there was no probative evidence,[6] and were arrived at without realistic and genuine consideration or were otherwise given with reasons that were inadequate.[7]

13 Finally, the conclusion was said to be wrong as a matter of law. This ground was based upon the Panel having concluded that the present right ankle condition was not related to altered gait because the plaintiff would have suffered the same symptoms in the absence of the exacerbation. This conclusion was said to be wrong in law on application of the principles in Darling Island Stevedoring and Lighterage Co Ltd v Hankinson.[8]

14 Dr Slater's records were before the Court. Those documents revealed that on 8 July 2020 he wrote to the worker's GP:

Scott has made good progress after surgery. He is having a minor medial ankle pain on rotation. Ankle is now stable. Now has pain in the right ankle. Had fracture in the ankle 12 years ago. Fell down a 'wash-out' area. Has had pain in the area after this current episode. Pain is at the anterior aspect of the ankle joint. There is marked swelling as well. Suggest a MRI scan be performed on the right ankle.

Scott has an old fracture which was operated on 12 years ago. He had two surgeries first surgery didn't realign the joint so had to be revised. MRI scan post-traumatic arthritis of the ankle joint possible non union at the ankle joint. Scott is a deer hunter and stands all day at work. We have discussed distraction arthroplasty vs arthroscopic debridement. Will also need removal of the plate and explore the medial malleolus. Would like to proceed with a regenerative technology due to work environment and hobbies.

On 27 August 2020, Dr Slater provided a certificate stating:

Right ankle significantly exacerbated by adjacent left ankle work injury. The left ankle post surgery has increased Scott's pain in his right ankle, both are creating worsening issues as time progresses.

15 Before the Panel the plaintiff denied any recreational deer hunting. Nothing turns on this.

16 Dr Slater's request for approval of the surgery was silent as to whether the surgery was to address an exacerbation or underlying condition.

17 Dr Slater also provided a report addressed to the plaintiff's lawyers which answered a number of specific questions. The letter of instruction seeking the report was dated 6 October 2020. The report was provided by email on 24 November 2020. As to diagnosis it reported the left ankle injury from the 2019 assault at work and the earlier right ankle fracture injury twelve years earlier. It provided a summary of treatment provided. As to the right ankle it said:

Scott returned for review on 8 of July 2020 his left ankle was doing well after the surgery and was now stable. He also complained of right ankle pain and advised he had fractured his right ankle 12 years ago after he fell down a wash out area at work. Up until now his right ankle pain had been asymptomatic... Scott returned on 28 July 2020 to review the right ankle MRI scan. The MRI scan showed post traumatic arthritis of the right ankle joint and possible non union at the ankle joint. We discussed Scott's occupation and how this was quite physically demanding i.e. would be required to stand for long periods of time.

...

At the moment Scott is unable to perform many of the above tasks due to his pain. He is unable to stand or walk for long periods of time and has complained that when he over exerts himself his right ankle ceases up which results in him being non weight bearing for days at a time.

...

He will require Distraction Arthroplasty surgery on his right ankle for his post traumatic arthritis.

There was no other material addressing Dr Slater's view as to the nature of the exacerbation or the need for surgery.

18 The medical report of Dr Hayes upon which the acceptance of liability was based did address this question. Having concluded that the left ankle sustained a ligament rupture and was caused by the work incident, he concluded that the right ankle suffered an exacerbation of post-traumatic osteoarthritis. As to causation of the right ankle condition he said that the right ankle condition has flared up due to altered gait which itself was due to the left ankle injury. Dr Hayes obtained a history of the right ankle as follows:

He also stated that he has developed right ankle pain because of favouring his right ankle. He stated that 12 years ago he had open reduction and internal fixation of an ankle fracture in Cairns and that since walking around with his painful ankle, that this ankle has become symptomatic.

19 Dr Hayes then described the right ankle as an aggravation of the pre-existing arthritis, appearing to use aggravation and exacerbation interchangeably. Specific questions were asked as to diagnosis, causation, whether injury impacted a pre-existing injury or disease. Question 4 asked whether employment remained a materially contributing factor. This was answered no.

20 On the central question of whether the proposed surgery was appropriate, Dr Hayes was asked:

Q5 Is performing the proposed surgery or procedure an appropriate way to treat the worker's injury or medical condition? Please explain why.

No. Firstly, the mechanism by which the right ankle has flared up is one recent contributor but, particularly given the x-rays and MRI scan, it is clear that there was a well-established osteoarthritis in the right ankle joint to begin with. The treatment that has been proposed... should still be considered in the experimental phase... Hence for the reasons of the surgery itself, and of the circumstances, I do not believe this surgery to the right ankle is appropriate.

Q6 Is there any treatment besides the proposed surgery or procedure that is reasonable and appropriate for the worker to treat their injury or medical condition?

The right ankle may have one injection of local anaesthetic and steroids to settle any inflammation. Whilst the patient has been limping on the left ankle, one would expect the left ankle will continue to improve and any residual right ankle symptoms are due to the primary right ankle condition.

21 The Panel noted the injuries originally accepted and the subsequent acceptance of liability for a right ankle condition secondary to altered gait as a result of left ankle injury. It then noted the circumstances in which the injuries occurred, the fact that for various reasons, including his injuries, the worker did not return to employment with the first defendant but returned to work in another position between June and September 2019. The Panel described attendance on the worker's general practitioner who diagnosed left ankle injury and referred him for physiotherapy treatment. The worker described ongoing left ankle pain limiting ability to stand and walk through this period, and that he strapped his ankle but had no other treatment.

22 The worker described attending Dr Slater in March 2020 and undergoing left ankle surgery on 15 May 2020. Post-surgery, he was on crutches for a short time and used a moon boot for 10-12 weeks. He may have also had physiotherapy. The Panel recorded an appointment on 8 July 2020 with Dr Slater where the worker complained of right ankle pain and the request for right ankle surgery that followed. This was the first report of right ankle pain in the material before the Panel.

23 The Panel observed a right ankle injury sustained more than twenty years ago while playing cricket, which required arthroscopy but which subsequently settled. It noted the Queensland work injury, involving fractures of the medial malleolus and lower end of the fibular, which required two episodes of surgery, leaving him with a plate and screws in the distal fibula. The right ankle symptoms from this injury also 'gradually settled'.

24 The Panel recorded the current right ankle condition as 'massive pain more so on inside than outside', a feeling of something 'wedged' in front of the ankle joint, and intermittent pins and needles in whole of the right foot and the ankle feeling unstable. The Panel recorded that the plaintiff uses a moon boot or compression brace to ease pain. Treatment includes voltaren, panadeine forte, occasional endone, melatonin, rest, ice and limiting activity to control symptoms. On occasion, the plaintiff uses a walking stick in his right hand and uses a compression brace and moon boot for symptoms in his left and right ankles.

25 A physical examination was conducted. The Reasons set out:

On physical examination the Panel noted Mr Hartill-Law walked with a tentative gait. There was a swelling of both his ankles more so on the right side. The left-sided swelling was mainly below the outer aspect of his left ankle joint. There was left calf wasting. He was able to stand on the toes of both feet. He had normal sensory appreciation in both calves and feet.

Examination of his left ankle revealed 0 degrees of dorsiflexion with 40° of plantarflexion. There was 20° of inversion of his left hind foot and only a jog of eversion. He had two arthroscopy scars as well as a 3cm scar over the outer aspect of his left ankle joint.

Examination of his right ankle joint revealed 0 degrees of dorsiflexion with 35° of plantarflexion. There was 20° of inversion of his right hind foot and 0 degrees of eversion. He had a long scar over the distal third of his right fibula and a scar over his medial malleolus consistent with his surgery in Cairns. He has right ankle arthroscopy scar(s) consistent with his previous ankle arthroscopy 20+ years ago.[9]

The Panel reviewed the radiological investigations including the plain X-rays and MRI of his right ankle dated 8 July 2020. These showed a fibrous union of the medial malleolus fracture, large anterior and posterior tibial osteophytes, small talar osteophytes, full thickness loss of cartilage on the anterior 1/3 of the ankle joint with bone bruising in the tibia, preserved talar shape and most of its cartilage, except the anterior ¼. The subtalar and talo-navicular joint were preserved. There was a plate on the fibular with 7 screws, showing union and remodelling of the previous fibula fracture.

The Panel did not consider any additional diagnostic imaging necessary in order for it to be able to compete its assessment of Mr Hartill-Law and answer the medical questions.[10]

27 Under the heading, 'discussion and diagnosis', the Panel commenced by stating that it relied on the history given in conjunction with other material and the examination findings to reach its conclusions.

28 It dealt first with the prior right ankle injuries, noting that symptoms settled with time after each injury. By reference to the 8 July 2020 plain X-ray and MRI it observed the previous fracture of the medial malleolus had not united solidly and there was established osteoarthritis in the right ankle joint. The Panel noted the history first given of the right ankle pain to the surgeon on 8 July 2020.

The Panel also noted that he had the altered gait pattern (due to his left ankle injury causing him to limp) for some 16 to 17 months before his right ankle related symptoms had occurred. The Panel also considered the natural progression of the previous right ankle condition following the injury in the Cape York region, which had required two episodes of surgery to fix the fractures and had resulted in a non-union of his medial malleolar fracture.

The Panel concluded the worker (Mr Hartill-Law) may have suffered an exacerbation of pre-existing post traumatic osteoarthritis of his right ankle. The Panel considers this exacerbation would have resolved with time and the current symptoms experienced in the right ankle are that of the natural progression of his pre-existing post-traumatic osteoarthritis which is not attributable to the claimed injury in any way.[11]

30 Finally, the Panel turned to the two orthopaedic opinions before it: those of Dr Slater and Dr Hayes. Of Dr Slater's report it said:

The Panel came to a similar conclusion to the right ankle diagnosis of post-traumatic arthritis after considering the above factors.[12]

31 The Panel concludes its opinion was also similar to that reached by Dr Hayes:

...in that the pre-existing condition of the right ankle was likely exacerbated, however based on the recent examination findings the Panel concluded that such exacerbation had now ceased'.[13]

32 Thus, the parameters of the dispute were of narrow compass. Was the proposed surgery for an accepted exacerbation of post traumatic arthritis of the right ankle?

33 A medical panel is required to afford natural justice, including the provision of a fair hearing.[14] A fair hearing includes alerting the parties to any unexpected conclusion contemplated by a decision maker that is not obviously raised by the material before it, to allow the parties an opportunity to respond.[15] A conclusion that could not be anticipated might also be one which goes beyond the questions asked of a Panel such that consideration of the issue might not reasonably be anticipated by the questions.[16]

34 The plaintiff challenges the Panel's conclusion that the exacerbation injury had resolved. He submits that this conclusion and the consequential finding that now 'he is suffering from pre-existing post traumatic osteoarthritis not attributable to the claimed right ankle injury' extends beyond the dispute referred by the parties. The dispute was limited to whether the proposed surgical procedure is appropriate for the injury and/or condition. It was not whether the right ankle condition was or was not a result of the left ankle condition. The acceptance of a right ankle injury, and the acceptance that the mechanism of that injury (being the altered gait) attributed to the left ankle injury, meant that questions of causation were no longer in dispute. Not being in dispute, the parties did not contemplate that 'liability was on the table'[17] such that the Panel might come to the conclusion that his present symptoms were not caused by the exacerbation injury. This conclusion was something that had 'come out of the blue', to use the phrase adopted by Cavanough J in Barrett Burston Malting Co v Kotzman & Ors.[18] It was a conclusion that extended beyond the questions asked.

35 Further, the plaintiff submitted that the material before the Panel did not put the plaintiff on notice that the exacerbation might have resolved. Gait had not returned to normal and the medical report of Dr Hayes, upon which the acceptance of liability for injury was based, expressed the view that (as at November 2020) the exacerbation was continuing. To the extent that Dr Hayes concluded that employment was no longer a materially contributing factor,[19] the plaintiff contended that this answer was irreconcilable with the balance of the report, but in any event, in itself that answer was insufficient to give notice that causation was in issue. There was no question about the cause of the medical condition, and opinion as to its cause was not necessary for the purpose of answering question 2.[20] The Panel should not have addressed the issue and in doing so was going beyond the boundary of the dispute before it.

36 The first defendant submitted that the parameters of the dispute, and the material before the Panel, did contemplate the question of whether the accepted exacerbation injury continued. As the question was open on the known material the Panel was not required to expose its thought processes or seek comment on provisional views.[21] This submission was founded, first, on the basis that the term 'exacerbation' is synonymous with a worsening of a condition which may be temporary or permanent, so resolution or continuity generally might be anticipated.[22] Second, implicit in the first question to the Panel as it was framed, was a consideration of the ongoing causal connection between current medical conditions and their relevance to the accepted right ankle injury.[23] Next, the fact of acceptance of an exacerbation injury did not foreclose the possibility that, in forming its own expert opinion, the Panel might reach a conclusion that the exacerbation had resolved. That possibility was said to be real in light of the content of Dr Hayes' report.

37 As a result of these submissions, the first defendant urged the Court to conclude that the plaintiff could and should have anticipated consideration by the Panel of any resolution of the exacerbation.

38 The dispute before the conciliator and referred to the Panel was concerned with liability for a particular type of surgery. Part 5 Division 7 of the WIRC Act deals with compensation for medical and like services. By s 224(1) it provides that:

If there is caused to a worker an injury which entitles a worker to compensation, the Authority or a self-insurer and the employer...is liable...to pay as compensation, in addition to any other compensation payable under this Act -

(a) The reasonable costs of the road accident rescue services, medical, hospital, ... services received because of the injury; (emphasis added)

39 Thus an inquiry as to whether the surgery was reasonably necessarily had to address two matters: first, whether the right ankle injury entitles the worker to compensation, and second, whether the proposed surgery is to be received because of that injury. The first aspect was resolved by the agent's acceptance of liability. I accept that by the agent's acceptance, compensability was no longer in dispute, and the parties would not anticipate that the threshold question of compensability might be revisited by the Panel.

40 However, the acceptance of liability is in the context of two undisputed pieces of evidence: first, the mechanism of injury is consequential - the altered gait from the compensable left ankle injury. Second, the injury for which the surgery is proposed is to an ankle that has well-established post-traumatic osteoarthritis already present. Given these two pieces of information, the second aspect - whether the surgery is to be received because of the compensable right ankle injury - remained in dispute. The Panel necessarily had to consider whether the proposed surgery was to address a continuing injury caused by gait disturbance.

41 From the material before the Panel it is clear in my view that the question of whether the surgery was to address the exacerbation is squarely raised. Dr Hayes describes the compensable injury as a 'flare up'; inflammation which he expects will settle. It is true that dispute raised by the questions and the medical material before the Panel did not canvas whether or not the exacerbation had resolved, as it might do when incapacity is in issue. But it did require the Panel to consider whether surgery was to be received because of the injury. That squarely raised the questions as to duration and potential resolution of the compensable injury.

42 Dr Slater's decision to operate was made shortly after the onset of symptoms and on receipt of MRI. The surgery contemplated included ankle joint fusion or joint replacement as well as the surgery actually decided upon.[24] His reference to the physical demands of the plaintiff's occupation is at least arguably concerned with potential future problems posed by the underlying condition of the ankle more than settling the present symptoms whose onset is due to altered gait. At the time Dr Slater's opinion was sought, both compensability and the need for surgery were in issue.[25] Dr Slater's report was provided on 24 November 2022 during that period. Whilst clearly causation of the exacerbation was no longer in dispute, what did remain was the question of whether surgery was needed to treat that exacerbation. Dr Slater's opinion on this question is unclear as he was not directly asked the question.

43 Dr Hayes anticipated that surgery to the left ankle would lead to a reduction of symptoms and the eventual cessation of any symptoms attributable to gait disturbance. Dr Hayes specifically addressed what, in his view, might be required to treat the 'flare up'.

44 Until acceptance of liability for injury occurred, some time after 3 November 2020, the question of the link between gait disturbance and the need for surgery remained 'on the table'. It was a relevant question to have asked Dr Slater when requesting a report from him. It is difficult therefore to accept the proposition that, had the plaintiff's advisors appreciated the issue of persisting injury caused by gait was in dispute, they would have sought medical opinion.

45 The parties accepted that gait disturbance continued. However the gait alteration since the left ankle surgery was different in nature to that which existed prior to the surgery. The Panel accepted, consistent with the acceptance of injury, that limping over a 16-17 month period led to an exacerbation injury. The alterations to gait since the left ankle surgery were of a different quality - a short time of non-weight-bearing using crutches and 10-12 weeks using a moonboot on the left foot. The onset of right ankle symptoms occurred in this post-operative period.

46 The defendant submitted that additional reliance on the right ankle gave rise to symptoms in the post-operative period. I understood this submission to be that one could infer that the Panel's reasoning was that post-operative gait alteration acted cumulatively with the long-standing limp to exacerbate the pre-existing condition. I did not understand the submission to be that two periods of gait disturbance were alternate causes or explanations for the exacerbation. I accept the submission that the Panel considered the entirety of the continuing period of altered gait. By the time of the examination before the Panel, the plaintiff was described as having a 'tentative gait'. A stick, moon boot and braces were being used interchangeably to ameliorate the symptoms from both ankles.

47 While the material before the Panel did not raise the possibility that any exacerbation had already resolved, it squarely raised the issue that gait had caused a temporary exacerbation likely to resolve without the intervention of the proposed surgery. That was the gravamen of Dr Hayes' report. It could not be said that the issue of resolution of an accepted compensable injury could not have been anticipated, or that resolution whenever occurring might come about without the need for surgery.

49 The plaintiff's submissions canvassed the legal errors arising by paragraphs 8, 9 and 11 together under the description of legal unreasonableness, illogicality and irrationality.

50 The Panel concluded that the exacerbation injury was not a cause of his present right ankle symptoms because the exacerbation 'would have resolved with time' and, based upon the recent examination findings (which must be its own examination findings), that the exacerbation had now ceased. As a result, the current right ankle condition is not related to the accepted right ankle injury.

51 The plaintiff submits that the Panel's examination findings provide no basis for a conclusion that the exacerbation had ceased. The altered gait was a continuing matter and thus its causal effect must have been continuing. It was illogical in circumstances where the Panel accepted the ongoing nature of symptoms and altered gait. There was no evidence nor any intelligible justification for concluding that altered gait ceased to be a cause of the continuing symptoms in the right ankle.

52 The defendant submitted that the reasons do set out a basis for the conclusion that it reached. First, the pre-existing condition of the right ankle was set out, noting the previous fracture was not solidly united and the joint had well-established post-traumatic osteoarthritis. Second, the defendant drew attention to the nuance in the Panel's history of gait alteration as outlined above [44] in support of a submission that the Panel's conclusion was not illogical. It noted the right ankle symptoms had progressively worsened since onset in July 2020. Third, the defendant submitted that the conclusion that the exacerbation would have resolved over time and the attribution of continuing symptoms to the progression of the pre-existing condition was an application of the Panel's own experience and expertise, evidence upon which it was entitled to rely. Finally, as the Panel's conclusion was noted to be in agreement with aspects of Dr Slater and Dr Hayes' opinions, it was clearly not illogical nor irrational but one upon which medical minds were, to some extent, in agreement. The point of disagreement - the passage of time for resolution of the exacerbation injury - was the sort of medical opinion about which reasonable minds might differ. There was no evidence before the Panel that the exacerbation was permanent.

53 The availability of unreasonableness, illogicality or irrationality as grounds for review of administrative decisions, and whether the focus of those grounds is on the process of reasoning or the outcome, remains somewhat unsettled. The Court of Appeal in Sidiqi v Kotsios,[26] while not deciding whether these grounds of review are available, said it was difficult to see why legal unreasonableness should not apply to the formation of a medical panel opinion. Earlier in Ryan v The Grange at Wodonga,[27] accepting that the grounds were available in relation to findings of at least a jurisdictional fact,[28] the Court noted uncertainty as to the extension to fact-finding within jurisdiction and to decisions not involving the exercise of a discretion. In the trial division, a number of decisions have dealt with the grounds of unreasonableness, irrationality or illogicality on the basis that they are an independent ground focusing on the reasoning process and not just the outcome.[29] However, where unreasonableness may be concerned with the fact-finding process, caution is needed to avoid merits review. In Ryan v The Grange at Wodonga,[30] the Court of Appeal cited with approval the test applied by the trial judge to determine whether irrationality had been made out. A plaintiff:

...must satisfy me that no rational or logical decision-maker could have concluded, as the Medical Panel did, that the plaintiff is capable of performing her pre injury duties. She will be able to do so if she can demonstrate that the Panel's conclusion was based on reasoning that was not open to it or that the evidence before the Panel mandated a different conclusion.[31]

54 Therefore, for this ground to succeed there is to be no evidence, or no reasoning or intelligible justification, for the conclusion that the exacerbation itself had ceased. The plaintiff submitted that as the altered gait which was the cause of the exacerbation continued at the time of the Panel's examination, and as there had been no supervening event, there was no basis for the conclusion that the accepted injury had resolved. The history obtained by the Panel as to gait disturbance specifically noted problems described when working in the period between June and September 2019 as:

Ongoing problems while working including left ankle pain while standing, which had limited his ability to stand and walk. During this time he said he strapped his ankle but said he had no other treatment.

55 Despite there being little other direct history as to the extent of altered gait prior to surgery, the Panel accepted and proceeded on the basis that the left ankle injury caused the plaintiff to limp throughout the pre-operative period with the onset of symptoms occurring in July 2020.

56 Although both parties accepted that gait remained altered, as set out above the nature of that alteration changed with the occurrence of surgery and with the onset of right ankle symptoms. The Panel implicitly accepted that as both ankles were now symptomatic, that gait remained altered. But by describing the gait on examination as tentative, the Panel was, with deliberation in my view, describing something different to the earlier limping or favouring of the right leg to protect the injured left leg. Any such consideration has logical bearing on whether the exacerbation continues. The observation of gait was part of the physical examination.

57 The reports of Dr Slater do not record any matters regarding gait other than the post-operative instructions regarding crutches and moon boots. Dr Hayes did not conduct an examination (due to a consultation via video link being necessary) and obtained a history of right ankle pain because of the favouring of his right ankle. By the time of the Panel's examination, gait was limited by both ankles being substantially symptomatic. The Panel was entitled to, and in my view did, act on its own observation during examination of the plaintiff's gait to determine whether the injury (and its accepted cause) was relevant to the ongoing symptoms.

58 It may be that other aspects of the examination were also relevant. The specific findings for range of movement and sensory findings comparatively are similar in both ankles, save for left calf wasting. Both ankles were swollen, right more so than the left. The Panel did not elucidate whether or in what way these specific examination findings were relevant to its conclusion. It is, with respect, difficult to demonstrate that the Panel's examination findings, or any particular of them, could not rationally inform a medical opinion as to the plaintiff's current condition and its attribution. Those examination findings undoubtedly would be comprehended by a medical practitioner in a way that a court, without that expertise, might not appreciate. The submissions of the plaintiff did not grapple with the examination findings beyond a submission that the altered gait continued and therefore its causative effect must be continuing.[32]

59 Finally, the Panel noted its agreement as to diagnosis with Dr Slater. That diagnosis says nothing about the nature of the accepted injury. Next, the Panel agreed with the nature of the accepted right ankle condition as an exacerbation injury, and explicitly agreed with Dr Hayes' opinion that it would resolve with the passage of time. Agreement with aspects of the other specialist opinion before it makes it unlikely that either the reasoning process or the outcome of that reasoning is unreasonable, illogical or irrational.

60 To the extent that illogicality also covered a ground that there was no evidence from which to conclude that the exacerbation had ceased, it is also not made out. A ground of 'no evidence' is difficult to make out where the Panel applies its own expertise, including evidence from its own findings on examination. The length of time during which this gait alteration continued, when it became productive of symptoms and whether the alteration persisted or was changed were all relevant facts from which the Panel could and did draw expert conclusions as to the duration of an exacerbation from a particular cause.

61 Similarly, no ground is made out in regard to the lack of genuine or realistic consideration being given to the possibility of the exacerbation continuing because of a persisting change in gait at the time of examination. Since resumption of weight-bearing post-surgery, the plaintiff has developed worsening right ankle symptoms. By October, Dr Slater was recording a very swollen ankle and placed it in a moon boot. Severe ankle pain was preventing him from standing or walking for long periods. He was predominantly housebound and complained that when he overexerts himself his right ankle seizes up, resulting in him being non-weight-bearing for days at a time. The right ankle symptoms are not occurring in the context of a continuing limp favouring the right ankle in order to protect the left, rather the gait is impacted by two swollen and painful ankles, symptoms of which are worsening and the right one is known to be affected by post-traumatic osteoarthritis. The premise that a limp persisted is not the basis upon which the Panel acted. Nor is it the evidence before the Panel. The Panel did give consideration to the nature of the plaintiff's gait.

62 The plaintiff submits that the reasons of the Panel expose a conclusion that is incorrect as a matter of law. The plaintiff draws on the principle established in Darling Island Stevedoring and Lighterage Co Ltd v Hankinson[33] that the incapacitating effects of an injury do not cease merely because the plaintiff would have arrived at the same state of disability from the natural progression of the underlying disease. He submits that the Panel 'was not entitled to conclude that the accepted right ankle injury had ceased merely because he would have arrived at the same state of disability from the natural progression of his pre-existing post traumatic osteoarthritis'.

63 The plaintiff relies on the words of Barwick CJ in Hankinson:

But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.[34] (underlining added by the plaintiff)

64 Similarly, Owen J said he could not accept the proposition that the decision maker should have found that after a short lapse of time the employment injury ceased to produce disabling effects. In Hankinson, the employment injury was the collapse of vertebrae while at work. As a result of an underlying but previously asymptomatic infection the vertebrae were vulnerable to collapse. The collapse allowed the spread of infection through the spine resulting in paraplegia. The reason Owen J could not accept the proposition that the employment injury produced disabling effects for only a short time was:

All the medical witnesses were of the opinion that it was that collapse [of the vertebrae] that caused the infection to spread and that the paralysis resulted therefrom. The only difference of opinion was whether the strain of lifting a heavy weight operating upon a weakened spine had caused the collapse of the vertebrae...or whether... the collapse was spontaneous and in no way related to the respondent's employment.[35]

65 The plaintiff's submission starts with the proposition that inferentially it is probable that the Panel considered the right ankle symptoms were not related to altered gait because he would have developed the same right ankle condition in any event due to pre-existing right ankle osteoarthritis. If this was in fact the reasoning it employed then that reasoning is wrong in light of the principles in Hankinson.

66 First, I am not persuaded that I should draw the inference as to the Panel's conclusion. The Panel expressly concludes that the compensable injury was an exacerbation injury that 'would have resolved with time'.

67 The Plaintiff invites an inference that the Panel concluded that symptoms were no longer related to altered gait because the symptoms would have developed in any event. Rather, the Panel in my view concluded that the right ankle would, in its natural progression, become symptomatic in time. It also concluded that the exacerbation caused by limping was likely to be temporary. The conjunctive link between the two - rejection of altered gait as a continuing cause because of acceptance of a now symptomatic underlying condition - is not to my mind a probable explanation. It flies in the face of the express finding of a temporary exacerbation. Instead the Panel's plain reading sets out two stand-alone propositions:

The Panel considers this exacerbation would have resolved with time and the current symptoms experienced in the right ankle are that of the natural progression of his pre-existing post traumatic osteoarthritis.

68 The Panel, having determined that the mechanism of injury gave rise to an injury that would resolve, then decided whether resolution had yet occurred as a matter of judgment. It did so essentially on the basis of its assessment that the impact of the altered gait had passed. It determined that the continuing symptoms were explicable by the pre-existing state of the ankle. I am not prepared to infer that these two conclusions were related as cause and effect in the way that the plaintiff seeks to link them.

69 Even if I am wrong and I were to accept that the Panel did reach a conclusion that the pre-existing condition in any event would have progressed to the same state, I do not accept that the Panel erred in its application of the principles in Hankinson. The court there was dealing with evidence that the exacerbation (or acceleration as described) had caused incapacity which was permanent. In those circumstances where resulting incapacity continued, it was irrelevant that the underlying condition, independently, would have brought the worker to the same state of incapacity.

70 Although this case is not dealing with a question of incapacity but of injury, the principle is still applicable. A question arises about the ongoing nature of the compensable injury, and therefore the entitlement to compensation for medical expenses. If the exacerbation has led to a worsening of the pre-existing condition, then while the cause of that exacerbation continues to contribute to the ongoing symptoms, reasonable treatment for that worsened state would be compensable.

71 Earlier in his judgment, before the passage relied on by the plaintiff set out above, Barwick CJ said of an injury:

If the resulting incapacity is temporary, and has ceased by the time the award is made, the award will be limited to that period of incapacity. If the incapacity is temporary but continuing at the date of the award, as a rule, the award will be expressed to continue during the incapacity, leaving the parties if need be, to litigate subsequently the time at which incapacity ceased; or the award may simply be made without limitation as to time... But the question in either case is whether the injury has ceased to cause incapacity. [36]

72 It is clear that the Panel accepted continuing and worsening right ankle symptoms. The plaintiff submitted that an acceleration of the vulnerable condition of the right ankle need only to have continued for it to be attributable to the altered gait.[37] That submission misses the point. The altered gait is the cause of an exacerbation. Whether altered gait continues to be a cause of symptoms is not answered affirmatively by the proposition that the symptoms are continuing. The answer to that question depends, in part, on the medical evidence of whether the exacerbation caused is likely to be temporary or permanent. That answer calls for medical judgment about the nature of the external event that has caused the exacerbation as well as the nature of the pre-existing condition.

73 Hankinson dealt with incapacity from an acceleration or exacerbation injury. That injury was medically accepted by all to have caused the paraplegia that gave rise to permanent incapacity. Indeed in Hankinson all five judges said the collapse of the vertebrae was properly considered injury simplicita and not injury in the extended sense. On either analysis one looked to the effects of the compensable injury and not the probable course of the pre-existing condition.

74 The Panel concluded that the effect of limping on the osteoarthritic right ankle was in effect transient or temporal. It therefore did not proceed from the starting point of an injury with permanent consequences. The Reasons remained focused on the effects of the compensable injury separate from the progression of the underlying disease.

75 Finally, there is nothing in the submission that Dr Hayes' answer to question 4 regarding material contribution of employment to injury (as set out above at [19]) is irreconcilable with the remainder of his report and is incorrect as a matter of law. In the context of his report as a whole I read this answer as saying no more than work materially contributed to the left ankle injury but the right ankle was a consequential injury not one directly contributed to by work. That answer is of little relevance to the Panel's consideration.

76 The final ground relied on by the plaintiff is that the Panel's reasons do not meet the Wingfoot[38] standard. That is, they do not explain the Panel's actual path of reasoning in sufficient detail to expose any error of law.

77 The plaintiff submits that the reasons fail to explain how or why it arrived at the conclusion that the exacerbation had resolved. He says that an explanation that the injury had ceased 'based on examination findings' does not provide a path of reasoning.

78 This submission fails to look at the reasons as a whole. The steps along the path of reasoning that the Panel takes are, first, an agreement with Dr Slater that the fracture in the Cape York incident led to a diagnosis of the post traumatic osteoarthritis. Second, it concluded that this pre-existing condition was likely exacerbated, agreeing with Dr Hayes on this point. Next, the Panel diverged from the view of

Dr Hayes that the exacerbation was not yet resolved. Dr Hayes' report contains very little information by way of current right ankle symptoms. The plaintiff submits that little time had passed between the report of Dr Hayes (November 2020) and the Panel's examination (February 2021). The reference to its recent examination findings was in the context of disagreeing with Dr Hayes as to the continuing exacerbation. Reading the reasons as a whole, I would accept that, as it said it did, the Panel took into account the history provided by the plaintiff, the radiology, the opinions of Dr Slater and Dr Hayes as well as its examination findings in arriving at diagnosis of both the underlying condition and the compensable injury.

79 I do not accept the submission that the Reasons require a reader to speculate about the Panel's conclusion. It was not necessary, or perhaps possible, for the Panel to pinpoint when the exacerbation injury ceased. It should be borne in mind the question of an ongoing exacerbation or its resolution was relevant insofar as it informed the purpose of the surgery. If the Panel had formed the view, like Dr Hayes earlier, that the exacerbation had not yet ceased, that in itself would not answer the question of whether the procedure was required because of that exacerbation. As a result of the Panel's conclusion in question 1, it did not need to grapple with whether for therapeutic reasons the surgery proposed was appropriate.

80 The proceeding will be dismissed. I will hear from the parties on costs.

[1] The Panel's Certificate of Opinion and their Reasons for Opinion pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is dated 10 April 2021 ('Panels Reasons').

[2] A submitting appearance was filed, and the second to fourth defendants took no active part in the proceeding by letter dated 5 July 2021 in accordance with the principles from R v Australian Broadcasting Tribunal, Ex Parte Hardiman & Others (1980) CLR 13.

[3] The letter was sent by email and dated 21 December 2020.

[4] Plaintiff, 'Originating Motion for Judicial Review', Hartill-Law v Stratford (VIC 1) Pty Ltd & Ors, S ECI 2021 02001, 7 June 2021, [6] and [7] ('OM').

[8] [1967] HCA 10; (1967) 117 CLR 19 ('Hankinson'); see also OM [9].

[14] Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635.

[15] Barrett Burston Malting Co v Kotzman & Ors [2013] VSC 248; Calleja v Franet Pty Ltd [1999] VSC 202; Midfield Meat Processing Pty Ltd v Fish [2015] VSC 195.

[16] ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590-591.

[18] [2013] VSC 248, [48].

[21] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 [9]; Schmael [2020] VSC 562, [48].

[22] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; [1964] 110 CLR 626; Hankinson (n 8) (as discussed below at [63]-[65]).

[23] That is, question 1 raised issues of cause and effect as discussed in Ventrice v Riva Plaster Pty Ltd [2008] VSC 415 and applied in subsequent cases including Kakae v Wetspot Consolidated Pty Ltd [2016] VSC 271.

[24] First Defendant, 'Affidavit of Lachlan McCullough', Affidavit in Hartill-Law v Stratford (VIC 1) Pty Ltd S ECI 2021 02001, 12 November 2021 which exhibited an undated report to the plaintiff's solicitors under LJM1.

[25] First Defendant, 'Affidavit of Lachlan McCullough', Affidavit in Hartill-Law v Stratford (VIC 1) Pty Ltd S ECI 2021 02001, 12 November 2021 and the letter of instructions was dated 6 October 2020 and included under exhibit LJM1.

[26] [2021] VSCA 187.

[27] [2015] VSCA 17.

[28] Discussing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [84]-[87].

[29] See Nguyen v Disler [2021] VSC 140 [10]-[14]; Schmael v Leach [2020] VSC 562, [36]-[37].

[30] Ryan v The Grange at Wodonga [2015] VSCA 17.

[32] Plaintiff, 'Plaintiff's Outline of Submissions in Support of Originating Motion', Submission in Hartill-Law v Stratford (VIC 1) Pty Ltd & Ors, S ECI 2021 02001, 28 September 2021, [44].

[33] [1967] HCA 10; (1967) 117 CLR 19.

[34] [1967] HCA 10; (1967) 117 CLR 19, 27 (Barwick CJ).

[36] Hankinson (n 8) 26 (Barwick CJ).

[37] Plaintiff, 'Plaintiff's Outline of Submissions in Support of Originating Motion', Submission in Hartill-Law v Stratford (VIC1) Pty Ltd & Ors, S ECI 2021 02001, 28 September 2021, [51].

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