Plaintiff v Defendants

1 The plaintiff, Mr Mehdi Khayyerzadeh, is a 55-year-old man who suffered injury to his lower back on 12 October 2016 whilst working as an IT installation engineer in the employ of the seventh defendant, NCR Australia Pty Ltd (NCR). Mr Khayyerzadeh had returned to Melbourne from an interstate work trip, when the handle of a heavy suitcase he was carrying broke, causing him to jerk his back (the incident).

2 Mr Khayyerzadeh subsequently made a WorkCover claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). This claim was accepted and Mr Khayyerzadeh received weekly payments of compensation and medical and like expenses. In July 2019, Mr Khayyerzadeh was advised that his weekly payments would be terminated on 16 November 2019, on the basis that weekly payments had been paid or were payable for a period of 130 weeks,[1] and that he had a current work capacity, or alternatively, that he had no current work capacity but it was not likely to continue indefinitely. Mr Khayyerzadeh issued proceedings challenging that decision in the County Court.

3 In addition, Mr Khayyerzadeh has an originating motion on foot in the County Court, in which he seeks leave to bring a common law proceeding for the recovery of pain and suffering and pecuniary loss damages for the injuries he suffered in the incident.[2] In order to do so, Mr Khayyerzadeh must demonstrate that he suffers a 'serious injury' as defined by the Act.[3]

4 At the request of NCR, the County Court referred medical questions to the Convenor of Medical Panels relevant to the two proceedings.[4]

5 Following an examination of Mr Khayyerzadeh, the Medical Panel delivered Certificates of Opinion (the Panel's Opinions), with accompanying Reasons for Opinion, in respect of each of the County Court proceedings. The Panel concluded that Mr Khayyerzadeh suffers from lumbosacrum dysfunction, together with a secondary adjustment disorder, and that such conditions are still materially contributed to by the accepted lower back injury suffered in the incident. However, the Panel considered that notwithstanding those persisting medical conditions, Mr Khayyerzadeh had the capacity to undertake alternative suitable employment.

6 Mr Khayyerzadeh seeks judicial review of the Panel's Opinions.[5] Mr Khayyerzadeh alleges that in reaching such Opinions, the Panel failed to take into account a relevant consideration, namely whether or not he was suffering from an organic pain syndrome. He further alleges that in 'staying silent on whether or not the diagnosis of an organic pain syndrome had been considered', the Panel failed to provide adequate reasons. Mr Khayyerzadeh seeks an order in the nature of certiorari quashing the Panel's Opinions, together with an order in the nature of mandamus remitting the referred medical questions to a differently constituted medical panel.

7 For the reasons that follow, Mr Khayyerzadeh has failed to satisfy me in respect of either ground of review. I therefore dismiss the application.

8 On or around 7 December 2016, Mr Khayyerzadeh made a WorkCover claim under the Act in relation to the incident.

9 On 2 July 2019, the authorised agent of NCR notified Mr Khayyerzadeh of its intention to terminate his entitlement to weekly payments from 16 November 2019. Mr Khayyerzadeh disputed this decision by lodging a request for conciliation with the Accident Compensation Conciliation Service (the ACCS).[6] On 6 November 2019, the ACCS certified that there was a genuine dispute in relation to the termination of Mr Khayyerzadeh's weekly payments.

10 On 20 May 2021, Mr Khayyerzadeh commenced a Magistrates' Court proceeding seeking reinstatement of the weekly payments (the weekly payments proceeding).

11 On 21 May 2021, Mr Khayyerzadeh lodged a serious injury application pursuant to Part 7 of the Act, in which he sought consent from the Victorian WorkCover Authority to institute common law proceedings. That application was rejected. On 28 September 2021, Mr Khayyerzadeh filed an originating motion in the County Court seeking leave to bring proceedings for the recovery of damages for pain and suffering and pecuniary loss (the serious injury proceeding).

12 Thereafter, the weekly payments proceeding was transferred to the County Court. On 10 March 2022, Judge Purcell made orders that the weekly payments proceeding and the serious injury proceeding be heard together, and referred medical questions to the Convenor in respect of those proceedings.

13 The Panel was subsequently convened by Dr Peter Gibbons, the first defendant in this proceeding. Mr Khayyerzadeh was examined by a five member Panel on two separate occasions. On 8 June 2022, he was examined by psychiatrists Dr Julian Freidin and Dr Eli Kotler, and on 16 June 2022 by rehabilitation physician Professor Peter Disler, neurosurgeon Professor Gavin Davis, and orthopaedic surgeon Dr Peter Gard. These Panel members are the respective second to sixth defendants in this proceeding. As is the usual arrangement, the first to sixth defendants adopted a Hardiman[7] position, in that they did not take an active role in the proceeding and indicated by way of correspondence that they would abide by the decision of the Court.

14 The Panel's Opinions and Reasons were delivered on 3 August 2022. Whilst the medical questions and answers relevant to each proceeding differed, the Panel's Reasons given in each proceeding were substantially the same.

15 The Panel's Opinion in relation to the serious injury proceeding reads as follows:

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

1. lumbar spine;

2. psychiatric/psychological state?

Answer: In the Panel's opinion the Plaintiff has:

1. Lumbosacral dysfunction resulting from an aggravation of lumbar spondylosis on a background of previously diagnosed haemangioendothelioma, currently considered to be in remission;

2. An adjustment disorder with mixed anxiety and depressed mood, of mild severity.

Question 2 Do any and if so which of the conditions found in answer to question 1 result from, or are they materially contributed to by any lumbar spine injury suffered by the Plaintiff between 1 May 2014 and 11 October 2016?

Answer: In the Panel's opinion the Plaintiff has no current condition resulting from any injury suffered by the Plaintiff between 1 May 2014 and 11 October 2016.

Question 3 Do any and if so which of the conditions found in answer to question 1 result from, or are they materially contributed to by, the accepted lumbar spine injury suffered by the Plaintiff on 12 October 2016.

Answer: The Panel concluded that the aggravation of lumbar spondylosis and the adjustment disorder with mixed anxiety and depressed mood result from and are materially contributed to by the accepted injury on 12 October 2016.

Question 4 Are any and if so which of the conditions found in answer to questions 2 and 3 permanent, meaning likely to last for and through the foreseeable future?

Answer: In the Panel's opinion the lumbosacral dysfunction resulting from an aggravation of lumbar spondylosis and the secondary adjustment disorder with mixed anxiety and depressed mood are permanent.

Question 5 Having regard to the lumbar spine injury as found by the Panel in question 2 and or 3 (stating which, and disregarding any psychological/psychiatric consequences), does the plaintiff have:

1. a 'current work capacity';

2. 'no current work capacity'?

Answer: In the Panel's opinion:

1. Yes

2. No

Question 6 If yes to question 5(a), having regard to the lumbar spine injury (disregarding any psychological/psychiatric consequences):

1. What employment would constitute 'suitable employment' for the Plaintiff?

2. For how many hours per week is the Plaintiff capable of working in such 'suitable employment'?

3. If the number of hours per week as stated in answer to question 5(a) is less than full-time (i.e. 38 hours per week), will the plaintiff be capable of working a greater, and if so what, number of hours per week in such 'suitable employment' in the foreseeable future?

Answer: In the Panel's opinion:

1. The Plaintiff has capacity for work as IT Project Manager and/or IT Project Officer.

2. As the Plaintiff has not worked for several years and is likely to be physically deconditioned, ideally he should participate in a graduated return to work program, initially commencing with four hours of work, three times weekly;

3. The Plaintiff should be able to progress to full-time work over a three-month period.

Question 7 If yes to question 5(b), having regard to the lumbar spine injury (disregarding any psychological/ psychiatric consequences), is the incapacity of the plaintiff likely to be permanent (meaning likely to last for the foreseeable future)?

Answer: Not applicable

Question 8 Having regard to any psychiatric/psychological injury found by the Panel in questions 2 and 3 does the plaintiff have:

1. a 'current work capacity';

2. 'no current work capacity'?

Answer: In the Panel's opinion:

1. Yes

2. No

Question 9 If yes to question 8(a), having regard to the psychological/psychiatric injury :

1. What employment would constitute 'suitable employment' for the plaintiff?

2. For how many hours per week is the plaintiff capable of working in such 'suitable employment'?

3. If the number of hours per week as stated in answer to question 8(a) is less than full-time (i.e. 38 hours per week), will the plaintiff be capable of working a greater, and if so what, number of hours per week in such 'suitable employment' in the foreseeable future?

Answer: Having regard to the psychological/psychiatric injury alone, the Panel considered that the Plaintiff has no present inability arising from an injury such that he is not able to return to his pre-injury or alternate suitable employment.

Question 10 If yes to question 8(b), having regard to the psychological/psychiatric injury, is the incapacity of the plaintiff likely to be permanent meaning likely to last for the foreseeable future?

Answer: Not applicable

16 The Panel's Opinion in respect of the weekly payments proceeding included consideration of the combined impact of both Mr Khayyerzadeh's physical and mental conditions, and, notwithstanding its conclusion that those conditions were still materially contributed to by the accepted lower back injury, the Panel determined that from 16 November 2019 to the date of its examination, Mr Khayyerzadeh had a current work capacity.

17 The Panel set out the following issues in dispute between Mr Khayyerzadeh and NCR:

• The nature of [Mr Khayyerzadeh's] low back condition and consequential psychological condition and if these conditions are materially contributed to by the accepted injuries;
• Whether [Mr Khayyerzadeh] has a current work capacity, and if not, whether any such incapacity is likely to continue indefinitely; and
• Whether any such incapacity is materially contributed to by the accepted injuries.

18 The Panel then detailed the history of injury provided by Mr Khayyerzadeh, together with his subsequent management, and current treatment.

19 Mr Khayyerzadeh's symptoms as at the time of the examination were set out as follows:

[Mr Khayyerzadeh] told the Panel that currently he has constant pain in the midline of his lower back, extending down as far as the sacrum. He said that the pain extends down through his buttock to his left groin, down the antero-lateral aspect of the left leg as far as the knee, and occasionally down to the ankle; he does not get pain in his feet. He has intermittent pins and needles in his anterior left thigh.

He said that the pain also intermittently extends into his right groin but not down the right leg; he said that the pain is always worse on the left than the right side, however.

[Mr Khayyerzadeh] told the Panel that the pain is present from the time that he gets up in the morning, persists through the day and wakes him 3-4 times at night. He said that although he does have some days when the pain is not as severe as others, he is never pain-free.

He said that because of the pain he finds it difficult to sit or stand for more than 10 to 15 minutes and he finds walking painful and does not walk for exercise. He is able to drive his car but limits this to about 2-3 km once or twice a week.

20 Next, the Panel detailed its physical examination of Mr Khayyerzadeh:

[Mr Khayyerzadeh] had an antalgic gait, favouring his left leg. He was able to stand and take a few steps on his heels and toes but reported back pain while doing so.

He had a normal spinal posture with no asymmetry, guarding or visible spasm of the paraspinal muscles at rest or on movement. He described a slight increase in symptoms in his back with axial pressure.

[Mr Khayyerzadeh] reported a perception of tenderness on very light palpation over the sacrococcygeal region but not over the lumbar spine.

All active movements of the lumbar spine were symmetrically reduced, [Mr Khayyerzadeh] reporting pain throughout all movements of the spine.

On neurological examination, there was normal power (although he reported back pain when this was tested), no evidence of muscle wasting and symmetrical deep tendon reflexes in his lower limbs. On sensory examination of his lower limbs he reported reduced perception to light touch and pinprick over the whole right leg and the right side of the lower abdomen, and an increased sensory perception on the right side (the side of greater symptoms) which the Panel considered to be inconsistent with a dermatomal distribution.

The Panel concluded that there was no evidence of lower limb radiculopathy on clinical examination.

21 The Panel reviewed the various radiological investigations performed subsequent to the incident. The Panel also detailed correspondence and medical opinions relevant to Mr Khayyerzadeh's previous condition of a haemangioendothelioma of the sternum, diagnosed in or around 2003.

22 In relation to Mr Khayyerzadeh's physical condition, the Panel concluded that Mr Khayyerzadeh had 'lumbosacral dysfunction resulting from an aggravation of lumbar spondylosis on a background of previously diagnosed haemangioendothelioma, currently considered to be in remission.'

23 The Panel detailed its psychiatric examination of Mr Khayyerzadeh, and noted his current circumstances and symptoms, together with his treatment and personal history. The Panel stated that it conducted a mental state examination of Mr Khayyerzadeh, and detailed its findings.

24 In respect of Mr Khayyerzadeh's psychiatric condition, the Panel stated that it had considered the nature and severity of Mr Khayyerzadeh's mood symptoms and concluded that he is suffering from an adjustment disorder with mixed anxiety and depressed mood, of mild severity. Further, it stated that:

... the Panel considered whether [Mr Khayyerzadeh] might suffer from a DSM-IV chronic pain disorder or a DSM-V somatic symptom disorder with predominant pain. The Panel considered that while [Mr Khayyerzadeh] did report the experience of persistent pain, he did not display the usual behaviours of those with a psychogenic pain disorder. His anxiety was focussed on a range of concerns, not only the seriousness of his physical health and his pain. He was not excessively seeking pain treatments by taking increasing doses of pain medication, requesting surgery, or seeing multiple practitioners to find a resolution for his pain. The presence of pain was not dominating his interpersonal relationships although his low mood and frustration that others did not understand his was situation was having some impact. The Panel therefore concluded that he did not suffer from a chronic pain disorder or somatic symptom disorder with predominant pain.

25 The Panel considered that, as Mr Khayyerzadeh's lumbar spine pain was a consequence of his employment, it followed that the adjustment disorder with mixed anxiety and depressed mood resulted from, and was materially contributed to by, the injury. Further, the Panel noted that '[a]s [Mr Khayyerzadeh's] pain causing the adjustment disorder persists, the condition is permanent.'

26 Thereafter, the Panel considered Mr Khayyerzadeh's capacity for work. In its Reasons given in respect of the serious injury proceeding, the Panel considered Mr Khayyerzadeh's physical and psychiatric conditions separately.[9]

27 The Panel stated that it discussed with Mr Khayyerzadeh the possibility of him returning to work, and noted that whilst he said he was 'very keen to do so', Mr Khayyerzadeh believed that he would not be able to work 'because of the pain.'

28 In relation to Mr Khayyerzadeh's capacity for his pre-injury work, the Panel noted Mr Khayyerzadeh reported, and it accepted, that his work as an installation engineer 'demanded frequent driving and air travel', had been 'physically demanding', and required him to 'carry heavy bags containing tools to carry out repair jobs.'

29 Based on the physical condition of his lumbosacral spine, the Panel then stated:

As the Panel considered that [Mr Khayyerzadeh] would be limited with respect to lifting and carrying heavy bags, it was the opinion of the Panel that he would not currently have the capacity to carry out all aspects of his pre-injury employment and that return to work in this capacity could place him at risk of further exacerbation or aggravation of his spinal condition. The Panel thus concluded that [Mr Khayyerzadeh] has a current incapacity for his pre-injury employment.

30 In respect of Mr Khayyerzadeh's capacity for alternative suitable employment, based on the physical condition of his lumbosacral spine, the Panel reviewed the functional demands and requirements of the proposed suitable employment options identified in the vocational reports. The Panel noted:

...with respect to suitable alternate employment, while acknowledging [Mr Khayyerzadeh's] perception of ongoing pain, the Panel also considered that [Mr Khayyerzadeh]:

• had normal spinal posture with no asymmetry, guarding or visible spasm of the paraspinal muscles;
• was able to stand and take a few steps on his toes and heels;
• had no evidence of radiculopathy or other diagnosable neurological condition on clinical examination;
• had undergone radiological investigation between 2017 and 2021 and this showed relatively mild degenerative intervertebral disc and facet joint changes with relatively mild neuroforaminal stenosis, with no progression in the radiological features over the interval period;
• had returned to work on modified/light duties in December 2016 and continued performing that work until 9 June 2017 when he was made redundant from his employment.

31 Having considered those matters, the Panel concluded that, notwithstanding Mr Khayyerzadeh's perception of pain, he 'could manage work that does not demand heavy lifting or repetitive bending, and which would allow him to change his posture frequently.' The Panel considered that work as an IT project manager or IT project officer constituted suitable employment options as both roles were consistent with those restrictions, as well as his skills and experience.

32 The Panel acknowledged that Mr Khayyerzadeh had not worked for several years and was physically deconditioned. The Panel considered that Mr Khayyerzadeh should therefore participate 'in a graduated return to work program, initially commencing with four hours of work, three times weekly and progressing to full-time work over a three-month period.'

33 In respect of Mr Khayyerzadeh's psychiatric injury alone, the Panel concluded that Mr Khayyerzadeh could work in any employment for which he had the training, skills, and physical capacity, and that he had no current incapacity for his pre-injury or alternative suitable employment.

34 Whilst Mr Khayyerzadeh's further amended originating motion raised five grounds of review, at hearing he only persisted with two grounds: a failure by the Panel to consider a mandatory relevant consideration, namely whether Mr Khayyerzadeh was suffering from an organic pain syndrome; and inadequate reasons on the basis of the Panel's 'silence' on whether or not it had considered that diagnosis.

Ground 1: Failure to consider a mandatory relevant consideration

35 Mr Khayyerzadeh's primary complaint was that the Panel, in considering the nature of his physical condition, failed to have regard to whether or not he suffered from an organic pain syndrome, and this was a mandatory relevant consideration for the Panel.

36 Mr Khayyerzadeh submitted that the starting point for judicial review is consideration of the Panel's statutory function.[10] Here, the Act provides that the Panel's function is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment.[11] It was submitted that given the Panel was asked to determine the nature of Mr Khayyerzadeh's condition and his current work capacity, this necessitated its consideration of relevant diagnoses, including that of an organic pain syndrome.

37 It was also put that an examination of all the facts and circumstances of the case revealed that this was a matter that the Panel was required to consider and intellectually engage with.[12]

38 Mr Khayyerzadeh referred to the following matters to support the above submissions:

(a) Whilst it was accepted that an organic pain syndrome was not pleaded as an injury in Mr Khayyerzadeh's serious injury application nor the weekly payments proceeding, it was submitted there was material before the Panel which 'flagged' the possibility of a pain syndrome. Namely, a report of neurologist and clinical neurophysiologist, Dr Janaka Seneviratne, dated 20 July 2018 in which he recommended neuropathic medication and review of Mr Khayyerzadeh's future work capacity by a pain specialist. Further, reports from occupational physicians Dr Michael Baynes and Dr Robyn Horsley, and psychiatrist Dr Remy Glowinski, were said to have 'signalled' the possibility of pain syndrome.

(b) Mr Khayyerzadeh was treated by pain physician, Dr Richard Sullivan, who was of the opinion that spinal surgery (followed by spinal cord stimulation) would offer little to Mr Khayyerzadeh, and recommended an outpatient-based pain management program as a treatment option. It was submitted that the treatment direction recommended by Dr Sullivan indicated the presence of a pain disorder.

(c) Mr Khayyerzadeh's symptoms of pain were not explainable by the Panel's physical examination.

(d) The diagnosis of a pain syndrome was raised in Mr Khayyerzadeh's submissions to the Panel.

(e) Mr Khayyerzadeh's credibility was not in issue, and there was no suggestion that he was feigning his symptoms.

(f) Mr Khayyerzadeh's perception of pain could not be explained from a psychological disorder.

39 It was submitted that the culmination of the aforementioned factors made consideration of an organic pain syndrome a mandatory relevant consideration by the Panel, which was fundamental to inform the Panel in its determination of Mr Khayyerzadeh's work capacity. It was submitted that based on the lack of any express reference to an organic pain syndrome in the Reasons, or any reference that might indicate there was some intellectual engagement with the issue, the Court could be satisfied that the Panel did not consider this mandatory consideration. It was put that this was a material error given the connection between the Panel's diagnosis of Mr Khayyerzadeh's condition and its conclusion as to Mr Khayyerzadeh's capacity to work.

40 NCR urged me to reject this ground, and submitted that an organic pain syndrome was neither a mandatory consideration, nor a fundamental issue which the Panel was required to consider. NCR submitted that, in any event, the Panel's Reasons were 'replete with references to pain', and there could be no doubt that the Panel had considered Mr Khayyerzadeh's reported symptoms of pain. NCR invited me to reject Mr Khayyerzadeh's suggestion that the doctors' reports supported a organic pain syndrome as an exclusive diagnosis, submitting instead that those reports did no more than reveal brief references to chronic pain. Further, NCR submitted that the Panel was not required to 'go through and exclude any alternative diagnosis one by one.'

41 In recent times, there have been numerous decisions in this Court at first instance,[13] and in the Court of Appeal,[14] which raise the issue of whether a medical panel, in answering questions posed to it, was required to consider a worker's specific medical condition resulting from a workplace injury. Many of these decisions involved an allegation that the relevant medical panel failed to consider whether the claimant suffered a chronic pain syndrome, be it physically and/or psychiatrically based.

42 In Victorian WorkCover Authority v Putrus,[15] the Court of Appeal considered an appeal in respect of whether a medical panel had erred in failing to consider as a mandatory relevant consideration whether the worker had suffered a psychiatrically-based chronic pain syndrome, and whether its reasons were adequate. The medical panel found that Mr Putrus suffered from mild degenerative changes in his lumbosacral spine which did not result from, and were not materially contributed to by, any injury. It also found that Mr Putrus was not then suffering from any diagnosable psychological or psychiatric condition. In circumstances where the medical panel accepted Mr Putrus' reports of ongoing pain, Mr Putrus alleged that the medical panel did not intellectually engage with his claim that he suffered a psychiatric injury, being a chronic pain syndrome, and that it failed to set out an appropriate path of reasoning.

43 In a joint judgment, Beach, Kennedy JJA and J Forrest AJA stated:

It is well-settled that a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider, and that consideration could have materially affected its decision, or if it fails to give genuine consideration to fundamental issues raised by the facts of the case. Thus a medical panel examining a worker in accordance with the provisions of the Act is required to consider:

• the medical questions referred to the panel;
• the submissions of the parties (if provided);
• the document provided by the parties, required by s 304(a) of the Act, specifying the alleged injury and the agreed facts and disputed facts;
• the documents relating to the medical questions, provided by the parties pursuant to s 304(b) of the Act; and
• matters arising out of the medical panel's examination of the worker (including the worker's history, evidence as to any investigations, tests, studies or the like, and the panel's findings on examination).[16]

44 The Court concluded that on a fair reading of the material before the medical panel (including a draft statement of claim in which Mr Putrus claimed to suffer a 'chronic pain disorder and/or syndrome' and 'pain syndrome') the issue of whether Mr Putrus suffered a psychiatrically-based chronic pain syndrome was squarely raised. Accordingly, the medical panel was required to consider whether Mr Putrus suffered this condition. The Court held:

The panel's reasons do not refer to, and there is no discussion in respect of, any psychiatrically-based pain syndrome from which Mr Putrus might have been suffering. In circumstances where the panel was required to intellectually engage with that part of Mr Putrus's claim, the only conclusion that can be reached is that the panel failed to consider this mandatory relevant consideration.[17]

45 Most recently, in VWA v Jamali,[18] the Court of Appeal considered an appeal in circumstances similar to that of Putrus - whether a medical panel had failed to consider whether the worker suffered an alleged psychiatrically-based chronic pain syndrome. The medical panel found that Mr Jamali had a 'resolved soft tissue injury of the lower back and a non-specific lower back pain' and 'an adjustment disorder with anxiety and associated conduct disturbance'. Mr Jamali alleged that the medical panel was required to consider the possibility that his symptoms, pain and disability were caused by, or associated with, a chronic pain syndrome of psychiatric origin, and that it failed to give proper consideration to this issue in forming its opinion.

46 In a joint judgment, Beach JA, J Forrest and Tsalamandris AJJA set out the following principles relevant to judicial review of a medical panel:[19]

(a) a court must ensure that it does not fall into the trap of engaging in a merits review;[20]

(b) the court should be extremely careful when analysing the reasons of an expert Medical Panel charged with answering medical questions;[21]

(c) in determining whether a decision-maker has had regard to a mandatory consideration, failure to especially refer to the matter does not necessarily lead to the inference that it was not considered;[22]

(d) determining whether a matter has been taken into account is a matter of fact and not of surmise;[23]

(e) the reasons provided by a Medical Panel should not be construed minutely and finely with an eye keenly attuned to the perception of error;[24] and

(f) a Medical Panel is under no obligation to explain why it did not reach an opinion it did not form.[25]

47 The Court observed the 'task of determining whether a particular matter is one which the decision-maker is bound to take into account begins and ends with the statute.' It stated:

The WIRC Act does not expressly identify any or all of the matters which must be taken into account by the Medical Panel. Thus, the manner in which the Medical Panel exercises its discretion in giving its opinion, and the matters it must consider in expressing that opinion, are to be determined by reference to the terms of the Act and any implication to be drawn from the relevant provisions of that Act.[26]

48 The Court considered it relevant that where questions are referred for the purpose of determining if a worker suffers a serious injury, the medical panel's answers may curtail or eliminate a worker's ability to bring a common law proceeding.[27]

... the nature of the inquiry undertaken by the Medical Panel in the context of the serious injury provisions of that Act and the consequences of its opinion - formed on the basis of material required to be given to it as well as its own conclusions - means this: where there is a serious contention about a particular condition (and its diagnosis) said to be a result of the impugned work activity, it is necessary for the Medical Panel to consider that specific claim.

So, if it is alleged that the Medical Panel failed to undertake that task, it will be necessary for the court engaging in judicial review to ascertain whether, on a fair reading of all the material before the Medical Panel (including its own examination, investigations and conclusions), the contention was sufficiently relevant to the alleged injury and was squarely raised.[28]

50 Applying that reasoning to the medical panel's opinion in respect of Mr Jamali, the Court concluded that whether Mr Jamali's back pain was the result of a chronic pain syndrome of psychiatric origin was a mandatory relevant consideration.[29]

51 Thereafter, the Court considered whether the medical panel had failed to take into account this mandatory consideration in forming its answers to the medical questions. In doing so, the Court acknowledged the need to exercise restraint in determining if such a failure has occurred.[30]

The relevant test has been described at times as whether the decision-maker engaged in an 'active intellectual process' or 'proper, genuine and realistic consideration' of the matter which, it is alleged, was required to be considered. However, superior courts have regularly warned that this form of analysis creates a risk of impermissibly engaging in merits review.[31]

53 Of particular significance in Mr Jamali's claim, the psychiatric examination was conducted prior to the physical examination.[32] When the medical panel's reasons were viewed in its entirety, the Court considered that the reasons gave:

the clear impression of two separate medical reports (one physical and one psychiatric) being amalgamated, without due consideration of how the matters contained in one report might impact upon the other.[33]

54 The Court thereafter concluded that the medical panel had fallen into jurisdictional error in failing to consider a mandatory relevant consideration.

55 Applying the above principles to the present application, Mr Khayyerzadeh has failed to satisfy me that the Panel was required to give proper consideration to the question of whether he suffered an organic pain syndrome. The Panel formed an opinion that Mr Khayyerzadeh suffers from lumbosacrum dysfunction, and that his symptoms are unlikely to resolve, with or without treatment. In its Reasons, the Panel acknowledged Mr Khayyerzadeh's perception of pain, and considered that his physical condition restricted his ability to undertake heavy lifting and repetitive bending, and that he needed to be able to change his posture frequently. In view of the Panel's conclusion that Mr Khayyerzadeh suffers from an organic physical condition, and the identification of associated restrictions, I am not satisfied that the Panel was required to separately consider an alternative diagnosis of an organic pain syndrome.

56 Mr Khayyerzadeh relied upon a culmination of factors to support his submission that the Panel was required to consider whether he suffered an organic pain syndrome. However, none of these factors, whether viewed separately or collectively, are sufficient to render this a mandatory matter which the Panel was required to consider. The medical reports relied upon by Mr Khayyerzadeh refer to his complaints of pain and detail treatment options for his symptoms, but none of the doctors expressly diagnose Mr Khayyerzadeh as suffering an organic pain syndrome. In any event, in performing its statutory task, the Panel was not required to explicitly identify and opine on every competing medical opinion contained in the referral materials before it.[34]

57 Mr Khayyerzadeh's submission that his symptoms of pain were not explainable by the Panel's physical examination is misconceived, and an attempt at merits review. The Panel noted Mr Khayyerzadeh's reports of pain and tenderness during its physical examination of him. In respect of its sensory examination of Mr Khayyerzadeh's lower limbs, whilst the Panel considered this to be inconsistent with a dermatomal distribution, the Panel did not state that Mr Khayyerzadeh was feigning his symptoms. Thereafter, the Panel stated that it accepted that Mr Khayyerzadeh's symptoms have persisted since the date of the incident, and considered that this was consistent with the development of an aggravation of lumbar spondylosis. There is no basis to contend that this somehow gave rise to an obligation on the Panel to separately consider whether Mr Khayyerzadeh suffers an organic pain syndrome.

58 The diagnosis of an organic pain syndrome was not raised in Mr Khayyerzadeh's submissions to the Panel, nor was it pleaded as an injury in either of the County Court proceedings. It was far from being a matter that was in serious contention before the Panel. The submissions to the Panel were in keeping with what the Panel ultimately concluded - Mr Khayyerzadeh suffered a lower back condition in the incident, which persists and continues to cause him ongoing pain and restrictions in his work capacity. Mr Khayyerzadeh's contention that he asked the Panel to consider whether he suffers an organic pain syndrome must be rejected.

59 The circumstances of this case are in contrast to that of Mr Putrus and Mr Jamali. As detailed above, whilst the respective medical panels did not question the genuineness of their reports of pain, both Mr Putrus and Mr Jamali were found not to suffer a persisting physical injury. In the context of those findings and given the material provided to the respective medical panels, in each case the court was satisfied that it was mandatory for the medical panel to consider whether the worker suffered a psychiatric pain condition. Here, however, the Panel found Mr Khayyerzadeh suffers from a physical condition. The Panel acknowledged Mr Khayyerzadeh's perception of pain, and did not express disbelief as to its genuineness. Further, the Panel expressly considered and concluded that Mr Khayyerzadeh did not suffer from a chronic pain disorder or somatic symptom disorder with predominant pain.

60 In view of the above, I am not satisfied that, in the circumstances of this case, it was mandatory for the Panel to consider whether Mr Khayyerzadeh was suffering from an organic pain syndrome. I therefore reject this ground.

61 Mr Khayyerzadeh submitted that the Panel's Reasons were insufficient in respect of its diagnosis of his condition. Noting a medical panel's statutory obligation to provide reasons for its opinion in respect of a referral under the Act, the reasons must be sufficient to enable the Court to determine whether a medical panel's opinion involves an error of law.[35] If the Court is 'left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply' with the requirements of the Act.[36] The Panel was required to explain its 'actual path of reasoning in sufficient detail' to enable the Court to ascertain if there was such an error.[37]

62 Having regard to the Reasons, it was submitted that, in this case, the Court is left with two possibilities to explain Mr Khayyerzadeh's complaints of pain: either the Panel considered that he was feigning his symptoms (despite no material to suggest that he was) or that the Panel failed to consider an organic pain syndrome as a possible diagnosis.

63 Mr Khayyerzadeh relied on the decision of Gorton J in Ayana v Qantas Airways,[38] and submitted that it involved a similar set of factual circumstances, save that Mr Ayana claimed the medical panel in his case had failed to have regard to a possible diagnosis of a genuine non-organic pain condition. In Ayana, Gorton J observed that:

... In ordinary circumstances, reasons will not be sufficient if they merely create in the Court a suspicion that a panel has had regard to a relevant matter. This is particularly important where the uncertainty derives from an absence of an express reference to a mandatory consideration in a set of reasons. The reasons themselves must be read, in their full context, with an open mind as to whether or not the decision-maker has erred, including with an open mind as to whether or not the decision-maker has made an obvious or surprising error. That is not to say that the reasons ought to be read with an eye to error; rather, they must be read on their merits. The Court may draw inferences, and in many cases this will include an inference that a panel has considered a matter to which it has not explicitly referred. But starting with a presumption that a panel would not ordinarily fail to consider a relevant matter, and then in effect relying on this to justify an inference that the matter was considered despite it not being explicitly referred to at the relevant part of the reasons, can be both circular and unfair. Of course, each case will turn on its own particular circumstances, and there may be cases where the error, if it occurred, would be so surprising and obvious that a conclusion may be reached that it did not occur ...[39]

64 Further, in respect of a medical panel's assessment as to a claimant's reliability, Gorton J stated that:

... if a medical panel has formed the view that a claimant is unreliable, and that finding is relevant to the diagnosis that it has reached or an opinion it has formed, then it ought to state as much in its reasons. On a matter as central as whether or not a claimant is feigning symptoms, the parties and the Court should not, ideally, be left in a position where they are required to draw inferences or to reason backwards from the diagnosis reached.[40]

65 Mr Khayyerzadeh alleged that, as in Ayana, the Court was left in a position where it could only draw inferences as to whether the possibility of (in this case) an organic pain syndrome had been considered by the Panel, or whether the Panel formed the view that Mr Khayyerzadeh was feigning his symptoms. Mr Khayyerzadeh submitted that, in view of the above, I should be satisfied that the Panel's Reasons were inadequate.

66 NCR submitted that the Panel explained itself sufficiently, and had no obligation to explain why it did not reach an opinion it did not form.

67 For the reasons given above, I am not satisfied that the Panel was required to consider whether or not Mr Khayyerzadeh suffered an organic pain syndrome. As was established by the High Court in Wingfoot Australia Partners v Kocak,[41] the Panel was not obliged to explain why it did not reach an opinion it did not form.[42]

68 The framing of this ground of review is an impermissible attempt at merits review. In answering the questions asked of it, the Panel was required to make an evaluative judgement as to Mr Khayyerzadeh's capacity for work, informed by the Panel's examination, interview with Mr Khayyerzadeh, and review of the referral material, and by applying its own medical experience and expertise. In explaining its opinion in respect of Mr Khayyerzadeh's capacity for work the Panel stated that, notwithstanding Mr Khayyerzadeh's perception of ongoing pain, it considered that he could manage work provided it did not involve heavy lifting, repetitive bending, and allowed him to change posture frequently. Whilst Mr Khayyerzadeh may be aggrieved by this determination, it is not for the Court to engage with the merits of the Panel's expert judgement.

69 I do not accept Mr Khayyerzadeh's characterisation of the Reasons as leaving the Court with only two possible explanations for his complaints of pain.[43] This submission ignores the Panel's actual findings - that Mr Khayyerzadeh suffers from a persisting lower back injury.

70 The case of Ayana is distinguishable from the present case. In Ayana, there was a clear issue as to the worker's credibility; the medical panel found no ongoing physical injury; and the defendant accepted that the medical panel was required to consider whether the worker suffered a genuine non-organic pain condition, as this had been squarely raised[44] by the material before the medical panel. In those circumstances, Gorton J held that the medical panel's reasons failed to explain the actual path of reasoning in sufficient detail for the Court to determine whether or not the medical panel had regard to the agreed mandatory consideration, and thus whether or not its opinion contained an error of law. However, in circumstances where I am not satisfied that the Panel was bound to consider whether Mr Khayyerzadeh suffered an organic pain syndrome, Ayana does not assist Mr Khayyerzadeh in his present application for judicial review. Further, unlike in Ayana, the Court here is not required 'to draw inferences or to reason backwards' from the diagnosis reached.

71 Vangelovski v Calco Timbers Pty Ltd[45] involved judicial review of a medical panel's determination that, 'notwithstanding' the worker's reports of ongoing pain in relation to his injured finger, the worker could return to his pre-injury employment. In holding that there was no error by the medical panel and that its reasons were adequate, O'Meara J observed that a medical panel, in forming its opinion as to a worker's capacity, can make an assessment without necessarily 'cavilling' with the plaintiff's own account:

In that sense, the true complexion of the plaintiff's experience of pain and other degrees of disability contributing to any incapacity arising from his left ring finger condition could be and evidently was assessed by the panel without specifically requiring it directly to cavil with the plaintiff's own account. That account accommodated various degrees of estimation and the panel's own estimation must have been heavily informed by its own observations, experience and expertise.[46]

72 So, too, is the case here. In answering the medical questions asked of it, and having found a persisting lower back condition, the Panel took specific note of Mr Khayyerzadeh's accounts of pain. In determining that Mr Khayyerzadeh had a capacity to undertake alternative suitable employment, the Panel was not required to directly cavil with Mr Khayyerzadeh's account of how his pain restricted him. Instead, the Panel was expected to make its own evaluative judgement as to his pain symptoms by applying its medical experience and expertise.

73 When read as a whole, the Panel's Reasons are not inadequate. For the aforementioned reasons, I reject this ground.

74 For those reasons, this proceeding must be dismissed.

75 I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.

PETER GIBBONS (in his capacity as convenor of Medical Panels)

DR JULIAN FREIDIN (in his capacity as member of the Medical Panel)

DR ELI KOTLER (in his capacity as member of the Medical Panel)

PROF PETER DISLER (in his capacity as member of the Medical Panel)

PROF GAVIN DAVIS (in his capacity as member of the Medical Panel)

DR PETER GARD (in his capacity as member of the Medical Panel)

[1] Based on calculations of the first and second entitlements pursuant to s 152 of the Act.

[5] Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.

[6] As at 1 September 2022, known as the Workplace Injury Commission.

[7] R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[8] For the ease of the reader, the Reasons in respect of the serious injury proceeding are described. Save for different references in respect of the questions asked and answers given, there is no substantive difference to the Reasons for the weekly payments proceeding.

[9] As noted at [16], in the weekly payments proceeding, both Mr Khayyerzadeh's physical and psychiatric conditions were relevant to the Panel's answers given to the referred questions regarding his capacity for work. However, in respect of this application for judicial review, there is no substantive difference between the two sets of Reasons.

[10] Citing Sidiqi v Kotsiosi [2021] VSCA 187.

[12] Citing Victorian Workcover Authority v Putrus [2023] VSCA 28.

[13] See for example Ayana v Qantas Airways Ltd [2021] VSC 500; Vangelovski v Calco Timbers Pty Ltd [2022] VSC 508.

[14] Most recently, Victorian Workcover Authority v Jamali [2023] VSCA 240.

[15] [2023] VSCA 28.

[18] As above (n 14). This judgment was delivered after oral submissions were made in this proceeding.

[20] Ibid, quoting Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42.

[21] Ibid, quoting Sidiqi v Kotsios [2021] VSCA 187, [32]-[41]. See also Swidryk Investments Pty Ltd v El-Najjar [2023] VSCA 11, [48].

[22] Ibid, quoting Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679-80. See, eg, Dundar v Bas [2019] VSC 469, [51].

[23] Ibid, quoting Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679-80.

[24] Ibid, quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2.

[25] Ibid, quoting Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 501-2 [55]-[56].

[34] Wingfoot Australia Partners v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47].

[35] Citing Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].

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

[38] [2021] VSC 500.

[41] [2013] HCA 43; (2013) 252 CLR 480.

[45] [2022] VSC 508.