Plaintiff v Defendants

(a) Mr Sahin had injured his back in an incident at work on 6 or 7 December 2017 ('the incident injury') but that injury had resolved by the time the Panel conducted its examination;

(b) Mr Sahin's back injury at the time of its examination did not result from and was not materially contributed to by any injury at work; and

(c) Mr Sahin was suffering from a mild adjustment disorder with depressed and anxious mood and that that adjustment disorder had been materially contributed to by the incident injury, but that it was not severe enough to impede his ability to work.

3 Mr Sahin's originating motion contains four grounds on which it is alleged the opinion should be quashed, but as the argument was developed at hearing, grounds 1 to 3 essentially boiled down to a single contention. Mr Sahin contends that the Panel erred because it:

(a) had failed to consider or properly consider the possibility that the nature of Mr Sahin's work from May 2014 and up to the time of the incident injury had materially contributed to his back injury ('the nature of employment contention'); and

(b) had failed to give consideration to a chronic pain syndrome of psychiatric origin ('the chronic pain syndrome contention').

4 For the reasons which follow, I have concluded that Mr Sahin has established the chronic pain syndrome contention and for that reason it is appropriate to grant orders quashing the opinion of the Panel and remitting the medical questions in respect of which the opinion was given to a differently constituted medical panel to be reconsidered in accordance with law.

5 Mr Sahin was employed by Car Servicing and You Pty Ltd in May 2014. His initial employment was as a tyre fitter and then in late 2014 he commenced his apprenticeship as a mechanic.

6 Mr Sahin alleges that in the period between May 2014 and 6 or 7 December 2017 his duties involved him in heavy lifting, including of tyres.

7 Mr Sahin's description of the circumstances of the incident injury is that on 6 or 7 December 2017 the usual tyre fitter was away and Mr Sahin had a work day where he had to fit between 15 and 20 tyres of various sizes. All those tyres had to be manually handled. Mr Sahin was manually handling a wheel in the course of changing a heavy tyre when he suffered a sudden onset of lower back pain but kept working that day. The following day he was suffering back pain and struggling to walk. Nonetheless, he went into work but was unable to complete his shift and has not been able to work in any form since.

8 On 20 May 2021 Mr Sahin lodged a serious injury application pursuant to Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('the Act'). On 10 September 2021 the first defendant, the Victorian WorkCover Authority ('VWA'), advised Mr Sahin that it would not issue a certificate under s 335(2)(c) of the Act.

9 Mr Sahin then commenced proceedings in the County Court of Victoria on 13 September 2021 seeking leave pursuant to s 335 of the Act to institute proceedings for damages in respect of injuries he alleged were sustained in the course of his employment with Car Servicing and You Pty Ltd.

10 On 15 September 2022 the County Court made orders that certain medical questions be referred to the Panel pursuant to s 274(1)(b) of the Act.

11 The Panel was asked 15 questions. On 2 March 2023 the Panel provided substantive answers to five of those questions and then in the light of those answers, answered the remaining questions 'not applicable'. Reproduced below are the questions and answers of those portions of the opinion where the Panel has provided a substantive answer to a question which was posed:

Question 1: What is the nature of the medical condition (if any) of the:

(a) spine;

(b) psychiatric/psychological state?

Answer: In the Panel's opinion the worker is suffering from constitutional symptomatic lumbosacral spine spondylosis.

The Panel also considers that the worker is suffering from a mild adjustment disorder with depressed and anxious mood.

Question 2: Are any, and if so which, of the medical conditions identified in response to question 1 permanent (i.e. likely to persist for the foreseeable future)?

Answer: In the Panel's opinion the constitutional symptomatic lumbosacral spine spondylosis, and the mild adjustment disorder with depressed and anxious mood are both permanent.

Question 3: Do any, and if so which, of the medical conditions identified in response to question 1 result from, or are they materially contributed to by:

(a) The low back injury that the Plaintiff sustained in the course of his employment from May 2014 to 7 December 2017 at Car Servicing and You Pty Ltd?

(b) The low back injury that the Plaintiff sustained in the incident at work on 6 or 7 December 2017, when changing a tyre?

Answer: The Panel is of the opinion that the Plaintiff's current medical condition of the spine, namely the symptomatic lumbosacral spine spondylosis, does not result from, and is not materially contributed to by the low back injury that the Plaintiff sustained in the course of his employment from May 2014 to 7 December 2017 at Car Servicing and You Pty Ltd, or the low back injury that the Plaintiff sustained in the incident at work on 6 or 7 December 2017, when changing a tyre.

The Panel is of the further opinion that the Plaintiff's mild adjustment disorder with depressed and anxious mood is secondary to his claimed low back injury of 6 or 7 December 2017 and that that psychiatric injury is materially contributed to by that low back injury.

The Panel also considered that the worker's mild adjustment disorder with depressed and anxious mood was not and is not materially contributed to by his employment at Car Servicing and You Pty Ltd from May 2014 to 7 December 2017.

Question 4: Does any medical condition identified in response to question 1(a) (excluding any psychological or psychiatric consequences of such condition) result in or materially contribute to the Plaintiff having:

(a) A "current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ("the Act")?

(b) "No current work capacity" within the meaning of the Act?

Answer: Given that the Panel concluded that the Plaintiff's current lower back condition does not result from, nor is it materially contributed to, by any claimed injury, then the Panel also concludes that there is no present inability arising from an injury such that the Plaintiff is not able to return to his pre-injury employment.

...

Question 10: Does any psychological or psychiatric medical condition identified in response to question 1(b) result in or materially contributed to the Plaintiff having:

(a) a "current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)("the Act")?

(b) "no current work capacity" within the meaning of the Act?

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

12 In Victorian WorkCover Authority v Jamali ('Jamali')[1] the Court of Appeal sets out a range of principles which apply to an application for review of a medical panel opinion:

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

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

(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;

(d) Determining whether a matter has been taken into account is a matter of fact and not of surmise;

(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; and

(f) A Medical Panel is under no obligation to explain why it did not reach an opinion it did not form.[2]

13 As in Jamali the relevant questions I have to consider in relation to the chronic pain syndrome contention are:

(a) Was the Panel obliged to consider the possibility of Mr Sahin suffering a chronic pain syndrome of psychiatric origin?; and

(b) If the answer to (a) above is yes, did the Panel give proper consideration to this issue in the opinion?

14 If on a fair reading of the opinion and the reasons, bearing in mind the 'caveats and constraints' referred to in paragraph 12, I conclude the answer to each of the questions in paragraph 13 is yes, then an order in the nature of certiorari will be appropriate.

Was the Panel obliged to consider a chronic pain syndrome?

15 I have concluded that the Panel was required to give consideration to whether Mr Sahin had suffered a psychiatrically based chronic pain syndrome:

(a) it is raised in his amended particulars of injury of 9 September 2022;

(b) it is referred to in the draft statement of claim under 'Particulars of injury';

(c) it is specifically referred to in the Mr Sahin's outline of submissions to the Panel; and

(d) it was raised in the medical materials provided to the Panel, including reports from Dr Baynes, Dr Chowdary, Dr Krapivensky, Dr Barton, Dr Dooley and Dr Woodgate.

16 In this regard, the circumstances of this case are relevantly indistinguishable from those which existed in Victorian WorkCover Authority v Putrus ('Putrus')[3] and Jamali.

17 The VWA said however that in one critical respect the decisions in Putrus and Jamali were distinguishable. It said in each of Putrus and Jamali that the medical panel had found no basis for any physical cause of the pain which the worker was experiencing.[4] This was contrasted with the Panel's reasons ('reasons') in this case where, at page 15, the Panel concluded:

Given that the alleged injury to the lumbar spine occurred over five years ago, the current Panel therefore concluded that any soft tissue injury of the lumbar spine sustained by the Plaintiff, has now resolved, and that his current symptoms of the lower back are due to his underlying and pre-existing constitutional symptomatic lumbar spondylosis.

18 In those circumstances the VWA contended that Putrus and Jamali were distinguishable and having provided an explanation for Mr Sahin's pain there was no obligation on the Panel to specifically consider a chronic pain syndrome. I do not accept this submission.

19 The finding on page 15 has to be contrasted with the Panel's earlier findings in relation to its physical examination of Mr Sahin. Significantly, at page 11 of the reasons the Panel records that its physical examination suggested 'there is a significant non-organic component to his low back pain'.

20 I do not regard Putrus and Jamali as limited in their application only to circumstances where no finding of a physical basis for pain has been made. That is to read them too narrowly. The critical question is whether in the particular circumstances of the matter before the medical panel it was necessary to consider the diagnosis of a chronic pain syndrome. In some cases a finding of a physical cause for pain might obviate the need to give consideration to a chronic pain syndrome but that is not this case. In the circumstances of the finding on page 11 of the opinion and in conjunction with the materials which were before the Panel which suggested the possibility of a non-organic chronic pain syndrome, it was incumbent upon the Panel to at least give consideration to the possibility of a chronic pain syndrome.

Did the Panel fail to give proper consideration to a chronic pain syndrome?

21 The Panel gives no express consideration at all to the possibility of a chronic pain syndrome.

22 The VWA contended that elements of the Panel's reasons showed there had been a consideration of a chronic pain syndrome:

(a) at page 16 of the reasons the Panel notes that Dr Chowdary, a psychiatrist, arrived at the same diagnosis as the Panel had regarding a mild adjustment order; and

(b) at page 18 of the reasons the Panel said that it had noted the submissions of Mr Sahin and the VWA and 'considers that the issues raised in their submissions have been addressed appropriately' in the reasons.

23 The VWA says the reference to Dr Chowdary's conclusion regarding the adjustment disorder on page 16 of the reasons together with the fact that Dr Chowdary also concludes that Mr Sahin suffered from a chronic pain syndrome must mean that implicitly the Panel had considered and rejected the diagnosis of chronic pain. I do not accept that this is so. The fact that:

(a) Dr Chowdary makes the diagnosis of a chronic pain syndrome; and

(b) in that portion of the reasons where the Panel refer to his agreement with its diagnosis of an adjustment disorder, the Panel does not refer at all to Dr Chowdary's diagnosis of a chronic pain syndrome,

in my view demonstrates that the Panel were simply not addressing the diagnosis of a chronic pain syndrome at all.

24 The reference to page 18 takes the matter nowhere. It specifically refers back to other portions of the reasons as indicating those matters which the Panel regards as having been addressed appropriately. There is nothing in the balance of the reasons which indicates consideration of a diagnosis of a chronic pain syndrome.

25 It is possible that there are other explanations for "the significant non-organic component" to Mr Sahin's back pain but the failure to make any specific finding at all in that regard means it cannot be said that the finding on page 15 stands as an implicit rejection of any chronic pain syndrome.

26 In circumstances where the Panel was required to intellectually engage with this aspect of Mr Sahin's claim, the only conclusion that can be reached is that the Panel failed to take account of a mandatory relevant consideration.

27 In Jamali the Court said there was a 'further problem' with the way in which the medical panel had approached its task:

(a) It had conducted a psychiatric examination prior to the physical examination in circumstances where the claim of a pain syndrome was an alternative to the claim in relation to physical pain (and therefore arose only after a conclusion had been reached as to physical pain); and

(b) When viewed in their entirety the medical panel's reasons gave the impression of two separate reports.[5]

28 The VWA said Jamali was distinguishable from this case because the Panel's conclusions did not give the impression of two separate reports - the Panel expressing its conclusions in a single section of the reasons in an integrated way.

29 I accept that the reasons in this case do not give the impression of two separate reports amalgamated together but this does not take the VWA very far. The central question in each of Putrus and Jamali was whether a fair reading of the reasons of the medical panel demonstrated that it had given consideration to a chronic pain syndrome. In Jamali the 'further problem' with the way in which the medical panel approached its task was seen as a possible explanation as to why the medical panel in that case may have failed to consider a chronic pain syndrome. In other words, it provided additional confirmation of the failure to intellectually engage with a mandatory consideration.

30 In this case, whatever the explanation for its failure, I have held that having regard to all of the restraints and caveats regarding the approach to its reasons the Panel has simply failed to give consideration to a chronic pain syndrome.

31 In circumstances where I have upheld the chronic pain syndrome contention, it is unnecessary for me to consider whether the nature of employment contention is made good. No doubt Mr Sahin and the Victorian WorkCover Authority will be astute to ensure that their respective positions in relation to this issue are ventilated before the Panel which deals with Mr Sahin's injury on remittal.

32 For the reasons given above, the appropriate order is that the opinion of the Panel be quashed and the matter remitted to a differently constituted medical panel to be reconsidered in accordance with law.

[1] [2023] VSCA 240 ('Jamali').

[2] Jamali [62] (Beach JA, J Forrest and Tsalamandris AJJA) (citations omitted).

[3] [2023] VSCA 28 ('Putrus').

[4] Ibid [18] (Beach, Kennedy JJA and J Forrest AJA); Jamali [51].