Plaintiff v Defendants

1 The plaintiff, Ms Corina Foenander, now aged 63 years, seeks to bring a medical negligence claim against the first defendant arising from her medical management following a coronary angiogram conducted at the Monash Medical Centre on 7 October 2022. She says that she was required to lie on her back for a prolonged period during and after the angiogram ('incident'). She says that she developed back pain when lying on her back and that the pain persisted after she went home. As a result of the angiogram, she suffered a thrombosis of the right femoral artery, a right groin region scar and numbness and decreased sensation in the right leg.

(a) Ms Foenander cannot recover damages for non-economic loss unless she has suffered a significant injury.

(b) an injury (other than a psychiatric injury) is a significant injury if a medical panel has determined under Division 5 of the Act that the degree of impairment of the whole person resulting from the injury satisfies the threshold level;

(c) the relevant threshold level is 5% or more;

(d) the degree of impairment is assessed in accordance with the Guides;[1]

(e) regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury; and

(f) unrelated injuries or causes are disregarded in making an assessment.[2]

3 Following a referral dated 19 August 2024 ('referral'), a medical panel ('panel') was convened to determine whether the degree of impairment resulting from the physical injury to Ms Foenander satisfied the threshold level.[3]

4 On 8 January 2025, the panel published its determination and reasons ('determination') concluding that the degree of whole person impairment resulting from the injuries sustained by Ms Foenander did not attain the threshold level.

5 By an originating motion filed on 4 March 2025, Ms Foenander seeks judicial review of the determination. Her main contention is that the question whether pain syndrome affected her back and right leg was a mandatory relevant consideration and that the panel committed jurisdictional error when it failed to take pain syndrome into account in making its determination. Ms Foenander did not press a second contention to the effect that the panel failed to give an adequate statement of reasons.

6 The referral to the panel described the incident as 'Medical management post‑coronary angiogram' and the injury alleged to have been suffered as:

Right leg-pain, numbness, lack of sensation, cold; Psychological sequelae.

7 The referral was accompanied by a report of Dr Blombery, a vascular surgeon, dated 7 June 2023 ('Dr Blombery's report'), a certificate of assessment dated 2 July 2023 signed by Dr Blombery ('certificate of assessment') and voluminous medical records. In the certificate of assessment Dr Blombery stated that he was satisfied that the degree of impairment resulting from Ms Foenander's injury (other than psychiatric injury) satisfied the threshold level.

8 Dr Blombery described Ms Foenander as having an extensive history of atherosclerotic disease affecting her coronary and carotid arteries as well as other disorders. He described atherosclerosis affecting her carotid arteries as the most relevant problem relating to her. He described Ms Foenander's extensive history of ischaemic heart disease as including:

(a) a myocardial infarction in 2013 resulting in coronary intervention of the left circumflex artery followed by two further interventions to the right coronary artery;

(b) a further myocardial infarction in May 2020 resulting in a coronary intervention to the left circumflex artery following severe recurrent in‑stent narrowing;

(c) a myocardial infarction in November 2020 which required an intravascular ultra‑sound guided intervention to treat a complete occlusion of the right coronary artery; and

(d) an episode of unstable angina in September-October 2022 followed by further interventions.

9 On 7 October 2022, Ms Foenander undertook a coronary angiogram through the femoral artery and right groin. Following this procedure at the Monash Medical Centre, manual pressure and a FemStop were required to stop bleeding. Dr Blombery said that after discharge Ms Foenander stated that her right leg felt different with only a slight pulse detected. The problem continued and on 17 October 2022, she undertook a right leg vascular ultrasound. On 25 October 2022, she undertook a thrombectomy of the femoral artery with a patch graft done to the area as well. It was noted during surgery that the Angio‑Seal was in the lumen of the common femoral artery and was the cause of the thrombosis. Circulation was restored to the right leg including the groin. Ms Foenander was discharged from hospital on 28 October 2022, but her right leg continued to feel abnormal.

10 Dr Blombery said that after surgery, Ms Foenander developed a new problem with lower back pain for the first time. She subsequently experienced persistent pain in the lower back, and continuing pain in her leg. A doctor in Heidelberg said that the leg pain was caused by nerve damage due to the lack of blood supply after the angiogram.

11 Dr Blombery said that an MRI scan of the lumbosacral spine performed on 23 January 2023 to investigate the back pain showed a 6mm grade 1 anterior listhesis at L4/5 from advanced facet joint arthropathy in the lumbar spine with mild impingement at the existing left L4 nerve roots. There was significant facet joint arthropathy at other levels as well.

12 Dr Blombery reported that when he saw Ms Foenander, she complained of ongoing lower back pain which was present all the time and kept her awake from sleep. She emphasised that she never had any back problems prior to the surgery. She told Dr Blombery that when she walked for four minutes, her back pain began radiating to the right leg into the thigh and calf and that it improved with rest. She rated the pain overall as 7/10 but it could be up to 9/10. Dr Blombery said that she saw a pain management doctor who told her that she probably needed a nerve block of some form done but that had not been done.

13 Dr Blombery said that Ms Foenander had ongoing discomfort in her right leg mainly in the thigh when she is sitting. Her right foot was numb, and she could not feel objects particularly in her toes. Her right foot still became cold.

14 Dr Blombery said that Ms Foenander was unable to look after her grandchildren, go on walks, dance, play sports or garden. She was limited to driving locally because of her right foot problems. She was assisted by the council in house cleaning.

15 Dr Blombery said that in addition to the other issues Ms Foenander had a history of gastro‑oesophageal reflux disease and chronic kidney disease.

16 After addressing Ms Foenander's extensive history of coronary artery disease, and the effects of the angiogram on 7 October 2022, Dr Blombery said:

Ms Foenander has a separate problem of the development of back pain radiating to the right leg which began immediately after the vascular surgery that was performed to treat the thrombosed common femoral artery on 25 October 2022. That has been persistent since that time. An MRI scan of the lumbar spine shows that she has extensive degenerative changes in the lumbar spine which were previously asymptomatic. The development of back pain immediately after the surgery suggests that during the surgery, there was aggravation of those degenerative changes possibly related to stresses to the back during positioning of the patient before and during the procedure. There was no evidence of lack of blood supply to the spinal area contributing to that ongoing back pain.

It is my opinion that the aggravation of the pre‑existing degenerative changes has also been complicated by the development of a pain syndrome in the affected area with sensitisation of pain nerve pathways. That mechanism of central sensitisation applies in more than 50% of patients who have persistent low back pain as does Ms Foenander.

In regard to prognosis, in my opinion the prognosis for recovery from the effects of sensory neuropathy pain in her leg is very poor and is unlikely to change in the foreseeable future. Her prognosis from the point of view of her low back pain is also poor. She needs to attend a pain specialist and be assessed with trials of antineuropathic medication such as pregabalin and gabapentin as well as possible infusions and other treatments for her chronic pain.

...

She is going to need ongoing treatment for chronic pain and should be assessed by a pain specialist doctor in regard to what options are available.

17 In written submissions dated 19 August 2024, the first defendant's solicitors disputed that Ms Foenander's impairment satisfied the threshold level. They submitted that the panel was required to disregard any pre-existing injuries and the impairment flowing from them when assessing impairment arising from the injury.

18 The first defendant's solicitors quoted the injury listed in the certificate of assessment and noted that Dr Blombery also reported ongoing impairment and restriction related to degenerative changes to the lumbar spine. They submitted that any symptoms and impairment directly arising from the degenerative changes to Ms Foenander's lumbar spine and/or pain syndrome ought to be disregarded, as these were not caused by the alleged fault of the first defendant.

19 In written submissions dated 27 November 2024, Ms Foenander's solicitors summarised the history of her condition, and Dr Blombery's impairment assessment. They submitted that it was open to the panel to find that the degree of impairment resulting from the physical injury alleged in the claim satisfied the threshold level.

20 The panel set out its observations and findings at length in the determination. It noted the injuries alleged in the referral and in the prescribed information form and described Ms Foenander's medical history in detail.

21 The panel made extensive and frequent references to the pain symptoms suffered by Ms Foenander, recording that she informed it that:

(a) she developed back pain when required on 7 October 2022 at the Monash Medical Centre to lie on her back for a prolonged period for the angiogram and the period following the angiogram, and that the pain persisted after she went home;

(b) on the Sunday afternoon after she went home, she went shopping and suffered severe pain in her right thigh and back causing her to sit down and cry;

(c) at this time, she suffered back pain that was not that bad;

(d) due to the severity of her right groin pain which was 'unbearable', her boyfriend offered to carry her to the car;

(e) on 21 October 2022, she attended Dandenong Hospital and was kept waiting for four hours. She suffered severe back and right thigh pain with no pain below her right knee;

(f) after walking for two minutes, she now suffers back pain which goes down her right leg;

(g) she cannot carry more than two kilograms in weight because of back and right leg pain;

(h) she suffers pain in her right groin, and her right groin is swollen where she had right groin surgery performed;

(i) her right foot swells and the back pain radiates down her right leg;

(j) her right groin is not numb but is painful to touch;

(k) her right groin pain does not radiate;

(l) her symptoms are staying the same and she had no plan to undergo further or new treatments or surgery;

(m) she currently suffers severe back pain when she does any activity, but it is not bad when she does 'nothing';

(n) when she walks, she suffers severe pain in her right buttock and right thigh after a couple of minutes;

(o) the site of her back pain was just to the left of the sacroiliac joints bilaterally (as considered by the panel);

(p) if she lies down, she suffers a stabbing back pain;

(q) when walking she develops back pain and needs to sit down for about 30 minutes and can then walk again;

(r) she sees her GP when she suffers severe pain;

(s) at the time of the panel examination, she was suffering 5 out of 10 in severity of back pain that at its worst was 10 out of 10 in severity;

(t) when she awakens from sleep, she suffers more stiffness and pain than she did previously;

(u) she suffers some pain in the back when she moves in bed, or crosses her legs;

(v) she suffers back pain and right leg pain when sitting or driving, and is unable to drive;

(w) shoes other than Hush Puppies or Asics are associated with the development of back pain;

(x) back pain is her worst problem and was at its worst at about the time of the angiogram;

(y) prior to the incident she had never suffered from back problems; and

(z) it is hard for her to care for her grandchildren because of back discomfort.

22 The panel found in its physical examination that Ms Foenander suffered from continuing discomfort and pain, noting that:

(a) on palpation, the lower or distal extremity of the right groin scar was tender;

(b) Ms Foenander suffered right groin discomfort on palpation;

(c) Ms Foenander suffered discomfort on palpation of the right gluteal muscles;

(d) on testing range of motion, midline lower back pain was described;

(e) on testing range of motion of the lumbar spine, lower back pain was described on right lateral flexion of the lumbar spine; and

(f) there was widespread discomfort on palpation of the back.

23 Given its observations and findings, the panel concluded that Ms Foenander was suffering from four organic or physical injuries potentially caused in the manner to be alleged in the claim. It described them as:

(a) a soft tissue injury of the lower back on a background of degenerative disease of the lumbar spine;

(b) thrombosis of right femoral artery, with a subsequent right leg ischemia, treated surgically and now resolved, with no right leg vascular sequelae;

(c) a right femoral or groin region scar with associated tethering of the skin; and

(d) discomfort and decreased sensation in the distribution of the cutaneous branch of the right femoral nerve.

24 The panel found that each medical condition and its sequelae had stabilised but that only the thrombosis had resolved. The panel did not find that Ms Foenander suffered from pain syndrome.

25 The panel then conducted an impairment assessment stating that it had acted in accordance with the Guides as required by the Wrongs Act.[4]

(a) the right lower limb in accordance with Section 6.8 of Ch 6;

(b) the lower extremity impairment attributable to right leg changes pursuant to Table 14 of Ch 6;

(c) the right groin and thigh in accordance with Section 3.2k of Ch 3 including light touch and pinprick sensation;

(d) the appropriate lower extremity impairment attributable to right thigh changes pursuant to Table 68 of Ch 3 and Table 20 of Ch 4;

(e) Ms Foenander's lumbosacral spine in accordance with Tables 70 and 72 of Ch 3 using the Diagnosis Related Estimates (DRE) Model; and

(f) the appropriate class of whole person impairment for scarring and disfigurement of right thigh, leg and groin in accordance with Sections 13.4 and 13.5 and Table 2 of Ch 13 of the Guides.

(a) the degree of whole person impairment resulting from the spinal injury to Ms Foenander alleged in the claim is permanent but not 5% or more and therefore does not satisfy the threshold level; and

(b) after combining the whole person impairment attributable to all of the physical injuries to Ms Foenander alleged in the claim using the formula on page 322 of the Guides, the degree of whole person impairment resulting from the spinal injury and/or the physical injuries to Ms Foenander alleged in the claim is permanent, but is not more than 5%.

28 The panel observed that it had come to a different conclusion from that expressed by Dr Blombery who had concluded that the threshold level had been attained. It said that it did so based on its examination including its physical examination, the information provided in the attachments to its determination and its experience and expertise.

29 The panel said that it had not found it necessary to:

(a) assess whether there was any unrelated impairment to be disregarded in accordance with s 28LL (3) of the Wrongs Act;

(b) make a finding in relation to the issue of whether Ms Foenander's current physical condition was caused by the circumstances of the incident; or

(c) determine if Ms Foenander's symptoms referable to the lumbar spine should be disregarded.

30 Part VBA of the Wrongs Act contains the relevant statutory provisions.

31 Section 28LWE of the Wrongs Act provides that a respondent to a certificate of assessment may refer a medical question in relation to the assessment to a panel within a specified time frame.

32 Section 28LB of the Wrongs Act defines 'medical question' in relation to a claim for damages to mean a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level.

33 Section 28LE of the Wrongs Act states that a person cannot recover damages for non-economic loss for personal injury caused by the fault of another person unless the person has suffered a 'significant injury'.

34 Section 28LF of the Wrongs Act relevantly states that significant injury (other than psychiatric injury) is significant injury if a panel has determined under Div 5 that the degree of impairment of the whole person resulting from the injury satisfied the threshold level.

35 Section 28LH(1)(a) of the Wrongs Act provides for the degree of impairment is to be assessed in accordance with the Guides.

36 Section 28LJ of the Wrongs Act provides that regard is not to be had to secondary psychiatric or psychological impairment, and states:

In assessing a degree of impairment of a person under this Part, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.

37 Section 28LL of the Wrongs Act sets out the method by which a panel is required to assess the impairment of injuries resulting from the same incident, and provides:

(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.

(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides...

(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.

38 Section 28LB of the Wrongs Act defines the 'AMA Guides' as the:

A.M.A. Guides means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part ...

39 Part VBA Div 5 of the Wrongs Act sets out the powers and procedures to be adopted by a panel.

40 Section 28LZ (1) and (2) of the Wrongs Act provide:

(1) A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.

(2) A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.

A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.

42 Section 28LZI of the Wrongs Act limits appeals in relation to assessments and determinations and provides:

(1) No appeal on the merits may be made to a court from an assessment or determination of a Medical Panel under this Division.

(2) Nothing in subsection (1) affects any right of a court to grant any other relief or remedy in relation to an assessment or determination of a Medical Panel under this Division.

43 The Guides define the term 'impairment' to mean the loss, loss of use, or derangement of any body part, system, or function.[5] Impairments are defined as:

conditions that interfere with an individual's 'activities of daily living', some of which are listed in the Glossary (p. 315). Activities of daily living include, but are not limited to, self-care and personal hygiene; eating and preparing food; communication, speaking, and writing; maintaining one's posture, standing, and sitting; caring for the home and personal finances; walking, travelling, and moving about; recreational and social activities; and work activities.[6]

In general, the impairment percents shown in the chapters that consider the various organ systems make allowance for the pain that may accompany the impairing conditions.[7]

45 Under the subheading 'Pain' in Chapter 4 of the Guides dealing with nervous systems, the following appears to like effect:

Impairment due primarily to intractable pain may greatly influence an individual's ability to function. Psychological factors can influence the degree and perception of pain: different individuals in similar circumstances may be impaired by pain to different degrees.

Pain may be related to conditions as diverse in their causes, characteristics, and outcomes as angina pectoris, periodic (migraine) headache, a bone spur on the os calcaneus, and trigeminal neuralgia.

In some instances, pain will affect the proper functioning of a specific organ system. In the Guides, impairment percents shown in the chapters considering the various organ systems make allowance for the pain that may accompany the impairing conditions.[8]

46 In VWA v Putrus, the Court of Appeal referred to the use of the expressions 'chronic pain syndrome' and 'pain syndrome' observing that they are sometimes used by medical practitioners in different senses. The use of one of these terms may convey a physically-based pain condition, or in a different context an entirely psychiatrically or psychologically based condition or more often than not a condition that is both physically and psychiatrically based.[9]

47 The present case reflects these observations. The parties in submissions and Dr Blombery used the terms 'pain syndrome' and 'chronic pain syndrome' in varying ways with different shades of meaning.

48 Medical panels are constituted to assess impairment from injuries under both Pt 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') and Pt VBA of the Wrongs Act. Under s 304 of the WIRC Act, a person or body referring a medical question to a panel must give the convenor a document specifying the injury or alleged injury to, or in respect of, which the medical question relates; and the facts or questions of fact relevant to the medical question that the person or body is satisfied has been agreed and those facts or questions that are in dispute. Under s 274 of the WIRC Act, medical questions may be referred by a court of its own motion, or at the request of a party. A court has discretion as to the form in which a medical question is referred to a panel, but must not refer a medical question to a panel if it appears that the opinion of the panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court. A wide range of medical questions can be referred to a panel under the WIRC Act.

49 By contrast, the only medical question that can be referred to a panel under Pt VBA of the Wrongs Act is the question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level.

50 Panel referrals under Pt VBA of the Wrongs Act differ from those under Pt 6 of the WIRC Act in another way. Under s 28LJ of the Wrongs Act, psychiatric or psychological injury, impairment or symptoms are not to be considered in assessing the degree of impairment if they arise as a consequence of, or secondary to a physical injury. In simple terms, the effect of s 28J is to exclude psychiatric or psychological impairments secondary to a physical injury from consideration by a panel when determining whether the threshold level has been reached.

51 In their written submissions, the parties referred to s 28LJ but briefly. I will summarise some authorities relating to s 28LJ or like provisions in other legislation.

52 In Transport Accident Commission v Lincoln, the Court of Appeal observed that the introduction of a similar provision into the Accident Compensation Act 1985 (Vic) had led to a practice by assessing psychiatrists and psychologists of dividing the psychiatric or the psychological consequences flowing from an injury into 'primary' and 'secondary'. There was a well-recognised distinction between impairment referable to an organic cause (that is anatomic and/or physiological factors) and a functional overlay on the other. The Court described 'functional overlay' as 'an emotional aspect of an organic disease' which may appear as 'an overreaction to an illness and is characterised by symptoms that continue long after clinical signs of the disease have ended'.[10] J Forrest J in Dixon v Hacker was required to determine whether the panel had erred by considering secondary psychological or psychiatric impairments which it was required to ignore.[11] J Forrest J held that the panel had not referred to:

Such typical and well-known secondary psychiatric conditions such as 'reactive depression', 'functional overlay' or 'chronic pain syndrome'[12]

53 In Vision Precast Pty Ltd v Ferguson, Daly AsJ referring to Hacker, described the purpose of s 28LJ of the Wrongs Act as to quarantine from any assessment of psychiatric injury any impairment or symptoms secondary to a physical injury.[13]

54 In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis, Maxwell P discussed the meaning of the term 'chronic pain syndrome' and like terms which he described as a 'somatoform disorder' not fully explained by a general medical condition, or another mental disorder and causing clinically significant distress or impairment in social, occupational, or other areas of functioning.[14] Neave JA referred to the need to 'disentangle' the physical and psychological consequences of the injury.[15] In Jayatilake v Toyota Motor Corporation Australia Ltd, the Court of Appeal described the notion of 'disentanglement' by stripping away pain suffered by physical or physiological impairment from impairment which was psychological or psychiatric as capable of misunderstanding.[16] A court might well be able to conclude, considering all of the evidence, that on the probabilities a plaintiff had suffered a physically-based impairment which satisfied the statutory test even though identification of the precise quantum of a supervening psychological overlay had not been attempted, or was in the real world impossible.[17]

55 Finally, in Jovceva v Transport Accident Commission, the Court of Appeal referred to the discussion by Maxwell P in Stamboulakis of the terms 'chronic pain syndrome' and 'pain disorder' as having been based on the materials that were put before the Court in that case. The reasons of the Court in Stamboulakis were not authority for the meaning of what was essentially a medical diagnosis.[18]

56 The principles that govern the review by courts of decisions of panels are not in dispute and are well established.

57 The function of a panel is to give its own opinion on the medical question referred to it. It is obliged to afford procedural fairness and may place weight on a medical opinion supplied to it in forming and giving its own opinion. The function of a panel is neither arbitral nor adjudicative. It does not choose between competing arguments or opine as to the correctness of other opinions on that medical question. It does not decide disputes or make up its mind by reference to competing medical opinions. Rather, the panel's function in every case is to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[19]

58 The statement of reasons of a panel must explain the actual path of reasoning by which the panel arrived at the opinion it in fact formed on the medical question referred to it. The actual path of reasoning must be explained in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[20]

59 A panel is under no duty at common law to give reasons. It performs a medical, and not a judicial function. The relevant provisions of the Wrongs Act require the panel to provide a written determination on the question of whether the degree of impairment satisfied the threshold level, but not written reasons for that determination.[21]

60 The principles that relate to judicial review of panel determinations are equally well-established.

61 When considering an application for judicial review of a panel's decision, a court should:

(a) undertake judicial review and not merits review;

(b) not be overly zealous in considering the panel's reasons;

(c) be mindful that a panel is comprised of medically qualified professionals, not lawyers or judges; and

(d) give the panel's reasons a beneficial construction.[22]

62 A panel's reasons must be read fairly, as a whole and in context. The standard of reasons required of a panel is not to be equated with the standard of reasons required of a judge giving reasons for a final judgment after the trial of an action in court.

63 While it is commonplace for panels to state that they have considered all aspects of the definitions contained in the applicable legislation, such an incantation is no answer to demonstrable deficiencies in a panel's understanding of the content of those terms or exposition of its path of reasoning in a particular case.[23]

64 Judicial review of panel decisions relating to pain syndrome and chronic pain syndrome are many and varied, and to a very large degree turn on the particular facts of the case.

65 In Khan v Romas, the panel appointed under the WIRC Act failed to refer to chronic pain syndrome in its reasons in circumstances where many of the medical reports provided to the panel dealt with the issue. Daly AsJ held that the fact that chronic pain syndrome was no longer a recognised disorder under the relevant psychiatric guide was not fatal to the claim.[24] As the chronic pain issue whether organic or psychological was quite frequently referred to in the claimant's submissions to the panel, the panel was bound to deal with it. Its failure to do so was a failure to take a relevant mandatory consideration into account.[25]

66 In Ayana v Qantas Airways Ltd,[26] Gorton J reviewed the decision of a panel appointed under the WIRC Act on the basis that it had failed to consider chronic pain syndrome, or give an adequate statement of reasons.

67 Gorton J noted that the phrase 'chronic pain syndrome' could refer either to an organic or psychiatric condition, and that the issue as to whether Mr Ayana had a genuine non-organic pain syndrome and the related issue of credit were squarely raised in the material before the panel. However, the panel in its reasons did not expressly state whether it thought that Mr Ayana had that condition. Gorton J held that he was not positively satisfied that the panel simply failed to consider the question whether Mr Ayana had a genuine non-organic pain syndrome. However, the panel's reasons failed to explain the actual path of reasoning in sufficient detail to see whether the panel had considered whether Mr Ayana had a genuine non-organic pain condition. They failed to explain the actual path of reasoning in sufficient detail to see whether the panel's opinion contained an error of law.[27]

68 Gorton J discussed the tension that arose between the principle that a panel must set out its reasoning process in sufficient detail to allow the court to ascertain whether that process involved an error of law, and the principle that a panel is not obliged to give reasons to explain why it did not reach an opinion it did not form. Gorton J held that the tension was resolved by giving priority to the former principle.[28]

69 In VWA v Putrus, a proceeding under the WIRC Act, the judge did not find any error in the panel's reasoning that Mr Putrus suffered from mild degenerative changes in his lumbosacral spine which were not materially contributed to by any injury, and that he was not then suffering from any diagnosable psychological or psychiatric condition. However, she held that the panel did not properly engage with the psychological/psychiatric condition alleged by Mr Putrus and failed to set out a chain of reasoning supporting its opinion that Mr Putrus did not suffer from a diagnosable psychological or psychiatric condition.[29]

70 On appeal, the Court of Appeal held that Mr Putrus's primary claim before the panel was that he suffered from an organic back or spine injury. He also alleged in the alternative there was a psychological component to his claim, which was not limited to anxiety and depression. In his draft statement of claim, he claimed to have suffered a 'chronic pain disorder and/or syndrome' and a 'pain syndrome'. These terms were sometimes used by medical practitioners in different senses. In context, the use of one of these terms or an equivalent might convey a physically-based pain condition. In a different context, what might be conveyed is an entirely psychiatrically or psychologically based condition. The court added that more often than not, what was conveyed by the terms was a condition that was both physically and psychologically based.

71 In the event, the court agreed with the judge that on a fair reading of the material before the panel, the issue whether Mr Putrus suffered a psychiatrically based claim was squarely raised. In the circumstances, the court concluded that the panel failed to consider whether Mr Putrus suffered from a chronic pain condition which was a mandatory relevant consideration. It had not determined or intellectually engaged with the question of whether the pain that Mr Putrus was suffering from was psychiatrically based.[30]

72 In Sidiqi v Kotsios, the panel accepted that as the result of a workplace injury the claimant suffered from a chronic pain syndrome affecting his lower back coupled with a mild chronic adjustment disorder with mixed anxiety and depressed mood, and that his conditions relevantly were permanent. Nevertheless, it found that the claimant had current work capacity for the purposes of the WIRC Act.[31]

73 Given these circumstances, the Court of Appeal held that the panel had material before it (including its examination of the claimant) and it was open to it to reach the opinion that it did in its expert capacity. There was a logically probative basis for the opinion which it formed. A rational evaluation of the material did not compel a contrary conclusion to that reached by the panel in its expert capacity. Acceptance of the fact that the claimant suffered from permanent pain symptoms was not inconsistent with a balanced positive conclusion as to the claimant's work capacity.[32] Leave to appeal was refused.

74 In VWA v Jamali,[33] questions were referred to a panel under the WIRC Act to determine whether Mr Jamali had suffered a psychiatrically-based chronic pain syndrome. The panel determined that Mr Jamali had a resolved soft-tissue injury to the lower back and a non-specific back pain. He also suffered from an adjustment disorder with anxiety and associated conduct disturbance. The decision was quashed by an Associate Justice. On appeal, the Court of Appeal held that the Associate Justice was correct to conclude that the panel was required to consider Mr Jamali's contention that his continuing back symptoms were occasioned by chronic pain syndrome of psychiatric origin.

75 The Court of Appeal held that once the panel had concluded that Mr Jamali continued to suffer from non-specific back pain with a resolved soft-tissue injury, the next logical step was to endeavour to find a potential alternative explanation for the ongoing back pain that it had found was present. Chronic back pain of psychiatric origin was a ready explanation for Mr Jamali's ongoing back symptoms which the panel could not explain on a physical basis. The result was that there was no error on the part of the Associate Justice who was correct to find that the panel failed to consider a mandatory relevant consideration.[34]

76 In Khayyerzadeh v Gibbons, a panel appointed under the WIRC Act concluded the claimant had lumbosacral dysfunction resulting from an aggravation of lumbar spondylosis on a background of haemangioendothelioma then considered to be in remission. He also suffered from an adjustment disorder with mixed anxiety and depressed mood. In its reasons, the panel stated its opinion that the claimant suffered from lumbosacrum dysfunction and that his symptoms were unlikely to resolve with or without treatment. The panel acknowledged the claimant'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 change his posture frequently. The panel also accepted that the claimant's symptoms had persisted since the date of the incident and were consistent with an aggravation of lumbar spondylosis. In a judicial review application, the claimant submitted that the panel in considering his physical condition failed to consider whether he suffered from an organic pain syndrome and that this was a mandatory relevant consideration. Tsalamandris J held that the claimant had failed to show that the panel was required to consider the question of whether he suffered from an organic pain syndrome. The panel had held that the claimant suffered from an organic physical condition and had identified associated restrictions. It was not required to separately consider an alternative diagnosis of an organic pain syndrome.[35]

77 Tsalamandris J distinguished the decisions of Putrus and Jawali. While in those cases, the panel did not question the reports of pain, both Mr Putrus and Mr Jawali were found not to suffer a persisting physical injury. In each case, the court was satisfied that it was mandatory for the panel to consider whether the claimant suffered a psychiatric pain condition. In the case before her, Tsalamandris J held that the claimant's perception of pain was genuine and considered that he did not suffer from a chronic pain disorder or somatic symptoms disorder with predominant pain.[36]

78 In Sahin v VWA, the claimant injured his back in an incident at work. The injury had resolved by the time that the panel considered its examination. The panel determined that his back injury at the time of its examination did not result from and was not materially contributed to by any injury at work. It also determined that the claimant suffered from a mild adjustment disorder with depressed and anxious mood, and that the adjustment disorder had been materially contributed to by the incident but was not severe enough to impede his ability to work.

79 Watson J concluded that the panel was required to consider whether the claimant had suffered a psychiatrically based chronic pain syndrome. His Honour rejected a submission that the facts of Putrus and Jamali were distinguishable and having provided an explanation for the claimant's pain there was no obligation on the panel to consider a chronic pain syndrome. Watson J held that in some cases a finding of a physical cause for pain might obviate the need to consider a chronic pain syndrome. However, Watson J held that the materials before the panel suggested the possibility of a non-organic chronic pain syndrome, and it was incumbent on the panel at least to consider the possibility of a chronic pain syndrome.[37]

(a) the issue of pain syndrome was squarely raised for determination;

(b) the panel did not record in its reasons any determination that it had made in relation to pain syndrome;

(c) the panel did not advert to whether it had considered pain syndrome at all, or in any or what way, or considered that it was covered by Ch 15 of the Guides which is excluded; and

(d) the panel did not determine whether pain syndrome was simply a symptom or was itself an impairment under s 28LL of the Wrongs Act.

81 She submitted that pain syndrome was a relevant mandatory consideration as:

(a) the question of pain syndrome was raised squarely by the first defendant, and raised by Dr Blombery in his report;

(b) the panel repeated the relevant part of the respondent's submissions in its report;

(c) the panel was on notice that both pain and pain syndrome were required to be considered;

(d) in the absence of any explanation concerning pain syndrome by the panel, the reader was left to wonder what if any conclusion the panel made on that issue;

(e) it is unclear whether the panel thought that its diagnostic conclusion meant that it assessed and excluded pain syndrome or whether it thought that it was not relevant as a matter to be disregarded or anything at all to indicate how pain syndrome was addressed;

(f) the panel's failure to express a conclusion from its findings implied that it did not consider the question that it was asked to determine; and

(g) there was a failure to disclose an appropriate path of reasoning.

82 The first defendant submitted in substance that:

(a) chronic pain syndrome was not a mandatory consideration, and was not relevant or material to the panel's task of assessing impairment resulting from the injury here; and

(b) it cannot be concluded that the panel did not consider chronic pain syndrome.

83 In support of the first submission, the first defendant contended that:

(a) the panel is required to make its own diagnosis of injury;

(b) Ms Foenander's argument amounts to merits review in respect of the various diagnoses that were made by the panel;

(c) the panel did not ignore the pain, symptoms and incapacity of Ms Foenander that it recorded in its reasons; and

(d) the panel had conducted an impairment assessment for all four impairments that it had found and linked up the diagnoses.

84 As to the relevance and materiality of chronic pain syndrome, the first defendant contended:

(a) the referral to the panel did not mention pain syndrome;

(b) the certificate of impairment issued by Dr Blombery one month after his report was written does not refer to chronic pain injury; and

(c) there is no mention of pain syndrome prior to Dr Blombery's report and the first defendant's submissions to the panel.

85 As to its submission that the panel did in fact take chronic pain syndrome into account, the first defendant submitted:

(a) the fact that the panel did not reach a diagnosis of chronic pain syndrome did not mean that it did not consider it;

(b) the panel copied out in its determination the part of the first defendant's written submission that referred to pain syndrome;

(c) the panel was not required to go through and list the diagnoses which it had thought about and dismissed; and

(d) the panel's reasons are not amenable to merits review.

(a) the first defendant put chronic pain syndrome in issue making it a mandatory consideration;

(b) Dr Blombery included pain syndrome in his assessment and came to a different conclusion to that of the panel;

(c) there was no way of knowing whether pain syndrome was considered;

(d) the phrase 'chronic pain syndrome' can refer to either an organic or psychiatric condition; and

(e) it was unsafe to assume that pain syndrome was factored into the diagnosis.

87 On 7 June 2023, Dr Blombery prepared a medical report following his examination of Ms Foenander. The report acknowledges the development of persistent back pain following surgery on 25 October 2022 which suggested that there had been aggravation of the extensive pre-existing degenerative changes to the lumbar spine as identified by an MRI scan. Dr Blombery opined that these changes had been complicated by the development of a pain syndrome in the affected area with sensitisation of pain nerve pathways. The prognosis for recovery from the effects of sensory neuropathy pain in her leg was very poor. Dr Blombery's diagnosis of Ms Foenander's condition included pain syndrome complicating the aggravated lumbosacral spine degeneration.

88 On 2 July 2023, Dr Blombery provided a certificate of assessment, indicating by ticking the box on a printed form that the degree of impairment resulting from her injury (other than psychiatric injury) satisfied the threshold level. Under the heading of 'Brief description of injury assessed', a handwritten description of her injury simply said 'R leg'.

89 The prescribed information form provided under s 28LT of the Wrongs Act to the first defendant was also brief and focussed on Ms Foenander's right leg condition describing her injuries as 'Right leg-pain, numbness, lack of sensation, cold' and as 'Psychological sequelae'. No mention of pain syndrome was made in either document.

90 The submission from the first defendant's solicitors dated 19 August 2024 disputed the impairment level and contended that any pre-existing injuries or the causes of impairment flowing from them had to be disregarded under s 28LL (3) of the Wrongs Act.

91 With the panel's examination due to take place on 12 December 2024, Ms Foenander's solicitors prepared a written submission dated 27 November 2024. The written submission provided the panel with a history of her condition, and a summary of Dr Blombery's impairment assessment. The submission does not mention pain syndrome.

92 As noted above, the panel's medical history makes numerous references to the pain sequelae of Ms Foenander's injuries and back condition. I have listed 26 such references.[38]

93 The panel also recorded changes to Ms Foenander's motor activity including:

(a) inability to walk for more than 2 minutes;

(b) inability to lift more than 2kg in weight;

(c) severe back pain during activities;

(d) back pain when lying down, moving in bed or crossing legs;

(e) pain when wearing shoes except for nominated softer shoes; and

(f) back discomfort when caring for her grandchildren.

94 From its physical examination, the panel recorded discomfort, pain and tenderness to her right groin, lower back, lumbar spine and right gluteal muscles.

95 The panel's examinations coupled with its experience and expertise caused it to conclude that Ms Foenander was suffering from four stabilised organic medical conditions only one of which had been resolved.

96 I first observe that secondary psychiatric and psychological injury, impairment, and symptoms to the physical injuries found by the panel were excluded from consideration under s 28LJ of the Wrongs Act. Neither party appears to have brought this provision to the attention of the panel.

97 Reading the panel's determination fairly, as a whole and in context, I conclude that the panel was most concerned to assess and record the symptoms and pain that Ms Foenander was experiencing and had experienced. It comprehensively recorded her medical history, the results of its physical examination, imaging reports and hospital notes of previous procedures undertaken. It noted the pain that she was suffering and the effect that it was having on her daily life and activities. The panel was alert to the pain that she experienced to her lower back, and to the discomfort and loss of sensation that she experienced to her right leg.

(a) the panel's frequent references in the determination to the pain and discomfort suffered by Ms Foenander;

(b) the mention of pain syndrome in Dr Blombery's report; and

(c) the mention of pain syndrome in the determination

it would be perverse and unreal to conclude that the three distinguished specialists who made up the panel somehow suffered a lapse of judgement or memory and overlooked pain syndrome. I find that the panel certainly did consider pain syndrome but did not include it in its accepted diagnoses. The diagnoses were comprehensive, embracing four organic injuries to Ms Foenander's lower back, right groin and leg. The four organic injuries potentially arose from the incident and explained the persistent pain that Ms Foenander experienced and her discomfort and loss of sensation to her right leg. It is hard to see what an additional finding of organic pain syndrome would materially have added to the organic injuries and impairments that the panel found existed and were potentially caused in the manner to be alleged in Ms Foenander's claim.

99 While it did not advert to pain syndrome in describing the diagnoses that it had reached, the panel made it quite clear what diagnoses it had found. I am satisfied that the panel fully considered Ms Foenander's injuries and impairments and arrived at its own comprehensive diagnoses. Its review of the pain suffered by Ms Foenander was exhaustive and necessarily embraced a wide consideration of the injuries and conditions from which she suffered and which might result in the ongoing pain, discomfort and loss of motion that she experienced.

100 I accept the first defendant's submission that it cannot be concluded that the panel did not consider chronic pain syndrome or pain syndrome generally. The fact that it did not ultimately reach a diagnosis of pain syndrome does not mean that pain syndrome was not considered. The panel's diagnoses are not amenable to merits review on appeal to this court. I also accept that the panel was not required to set out diagnoses which it had considered and not accepted. It gave its own opinion on the medical question referred to it based on its own experience and expertise. It is not required to explain why it did not reach an opinion it did not form.

101 I reject the submission made on behalf of Ms Foenander that the panel's failure to set out why it did not find that Ms Foenander suffered from pain syndrome necessarily meant that it did not consider the question that it was asked to determine, or that it failed to take into account a mandatory relevant consideration. To the contrary I am satisfied that it did consider the matters that it was asked to consider and set out its findings and conclusions in its determination.

102 There are some similarities between this case and that of Khayyerzadeh (a claim under the WIRC Act) where the claimant failed to show that the panel was required to give proper consideration to the question whether or not he suffered from an organic pain syndrome, and that of Sahin (also a WIRC Act claim) where Watson J held that the materials before the panel suggested the possibility of a non-organic pain syndrome which the panel needed to consider. In the present case, the panel looked exhaustively at Ms Foenander's impairments and pain symptoms and diagnosed that she suffered from organic injuries which explained the pain, discomfort and loss of sensation that she experienced. It is hard to see what organic pain syndrome would have added to the organic injuries accepted by the panel.

Is there a path of reasoning which permits the court to discern whether there was legal error?

103 There is no failure of logic or reasoning in what the panel did. It undertook a comprehensive medical examination and made a diagnosis of four organic injuries potentially arising from the incident. It gave its medical opinion. The panel then made its impairment assessment under the Guides as to each of the accepted impairments aggregating them into a whole person impairment assessment in the manner set out in the Guides. This part of the determination is not challenged. The panel did not find it necessary to consider the first defendant's submission to the effect that pre-existing degenerative changes to Ms Foenander's back condition should be disregarded.

104 The panel found that Ms Foenander suffered from four injuries. By their nature, they would result persistent organic pain. They caused significant impairments which the panel assessed under the Guides. I conclude that the determination manifests an appropriate path of reasoning and does not disclose or suggest that the panel made any error of law.

105 Pain syndrome was not mentioned in the referral, the certificate of assessment or Ms Fernander's submission to the panel. It was first mentioned only in Dr Blombery's report, and in the first defendant's causation submission to the panel. The panel mentioned pain syndrome in its determination but diagnosed organic causes which explained the ongoing pain symptoms that Ms Foenander was experiencing.

106 For the reasons given I am not satisfied that the grounds set out in the originating motion which were pressed have been established. Jurisdictional error by the panel has not been shown. The proceeding must be dismissed.

[1] American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) ('Guides').

[2] Wrongs Act ss 28LB, 28LF, 28LH, 28LJ, 28LL.

[3] The panel consisted of three specialists - a physician, consultant vascular surgeon and rheumatologist who are the second to fourth defendants in the proceeding. They did not appear at the trial and adopt the position outlined in R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.

[9] Victorian WorkCover Authority v Putrus [2023] VSCA 28, [39] (Beach and Kennedy JJA, J Forrest AJA) ('Putrus'); Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649, 651 (Maxwell P) ('Stamboulakis').

[10] Transport Accident Commission v Lincoln [2003] VSCA 67; (2003) 6 VR 199, [16], [18] (Winneke P; Batt JA and Warren AJA agreeing).

[11] [2007] VSC 342; (2007) 27 VAR 407, [4].

[13] [2021] VSC 808, [51].

[16] [2008] VSCA 167, [16] (Ashley JA, Neave JA and Pagone AJA agreeing).

[18] [2019] VSCA 105, [108] (Kaye, Niall and T Forrest JJA).

[19] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-499 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[21] Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58; (2013) 39 VR 296, 298 [6] (Maxwell P, Weinberg JA and Ferguson AJA).

[22] Bhelley v Coles Supermarkets Australia Pty Ltd & Ors [2022] VSC 446, [49] (Tsalamandris J).

[23] Dundar v Bas [2019] VSCA 315, [48]-[53] (Beach, McLeish and Ashley JJA).

[24] [2017] VSC 731, [55] (Daly AsJ).

[26] [2021] VSC 500.

[31] Sidiqi v Kotsios [2021] VSCA 187 (Beach, Kaye and Osborn JJA).

[33] [2023] VSCA 240 (Beach JA, J Forrest AJA, Tsalamandris AJA).

[35] [2023] VSC 647, [55].

[37] [2024] VSC 241, [18]-[20].