Plaintiff v First Defendant

1 The plaintiff, Ms Danica Miletic, brings a challenge, by way of judicial review, to a certified opinion given by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act') on 17 July 2020. The Panel had five members - an occupational and environmental physician, a rheumatologist, an orthopaedic surgeon and two psychiatrists.[1] They comprise the second to sixth defendants.

2 In 2002 Ms Miletic commenced employment with the first defendant, ANZ Banking Group Limited ('ANZ'), as a customer service consultant.[2] In 2015 she claimed statutory compensation under Part 5 of the Act from ANZ for alleged injuries to her 'right wrist/elbow/arm' due to alleged 'overuse' of a computer mouse at work.[3] ANZ accepted liability and made payments in respect of right lateral epicondylitis; and, subsequently, in respect of bilateral epicondylitis and secondary psychological injuries.[4] Various components making up Ms Miletic's payments ceased in July and September 2017 pursuant to decisions made under Part 5. Ms Miletic's remaining payments ceased pursuant to a decision made in December 2018.[5] The several decisions to cease Ms Miletic's payments are not presently under challenge.

3 In June 2019 the plaintiff commenced a 'serious injury application' against ANZ in the County Court of Victoria under Part 7 (more particularly s 328) of the Act.[6] By that application she sought leave to bring a proceeding for common law damages for pain and suffering and economic loss in respect of alleged injuries that largely corresponded with the alleged injuries in respect of which she had for a time received statutory compensation.[7] To obtain leave she needed to demonstrate that she had a 'serious injury' within the meaning of s 325 of the Act.

4 On or about 10 February 2020,[8] at the request of ANZ, a judge of the County Court dealing with the serious injury application referred certain medical questions to a medical panel pursuant to s 274 and Division 3 of Part 6 of the Act.[9] The answers given by the Panel to those medical questions, which comprise the opinion referred to above, were largely unfavourable to the plaintiff's prospects of success in the serious injury application. Hence the present challenge.

5 The plaintiff's principal contention is that, in addressing the medical questions, the Medical Panel did not deal lawfully with the plaintiff's complaints of pain.[10] In my view, that contention is misconceived. I am not satisfied that any of the plaintiff's grounds of challenge to the opinion of the Medical Panel have been made out. The application for judicial review will be dismissed.

6 Omitting formal parts, the Panel's certificate of opinion reads as follows:

Question 1

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

(a) Right wrist;

(b) Right elbow;

(c) Right shoulder;

(d) Left elbow;

(e) Mind?

Answer:

The Panel is of the opinion that the Plaintiff, Ms Miletic, is suffering from:

(a) Right wrist soft tissue injury now resolved, with no current intrinsic medical condition of the right wrist.

(b) Right elbow soft tissue injury now resolved, with no current intrinsic medical condition of the right elbow.

(c) No intrinsic medical condition of the right shoulder

(d) Left elbow soft tissue injury now resolved with, no current intrinsic medical condition of the left elbow.

(e) Adjustment disorder with depressed mood and anxiety, which is mild in severity

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:

The Panel is of the opinion that the adjustment disorder with depressed mood and anxiety, which is mild in severity is permanent (i.e. likely to persist for the foreseeable future).

Question 3

Was the Plaintiff's employment from 2010 to August 2017 a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any:

(a) Right wrist injury;

(b) Right elbow injury;

(c) Right shoulder injury;

(d) Left elbow injury?

Answer:

The Panel was of the opinion that the Plaintiff's employment from 2010 to August 2017 was not a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing right wrist, right elbow, right shoulder or left elbow injury.

Question 4

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

Answer:

The Panel is of the opinion that the adjustment disorder with depressed mood and anxiety, which is mild in severity, currently results from and is materially contributed to by the initial right wrist, right elbow and left elbow soft injuries (which have subsequently resolved).

Question 5

Considering only the right upper limb injuries, and disregarding any psychiatric consequences of physical injury:

(a) Does the Plaintiff have capacity for her pre-injury employment?

(b) Does the Plaintiff have capacity for suitable employment?

(c) If yes to Question 5(b), what employment would constitute suitable employment?

(d) If yes to Question 5(a), and/or (b), for how many hours per week can the Plaintiff perform such employment?

(e) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1(a), (b) or (c)?

(f) If yes to question 5(e), is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

(a) The Panel concluded that considering only the right upper limb injuries, and disregarding any psychiatric consequences of physical injury, the Plaintiff, Ms Miletic, has a capacity for her pre-injury employment.

(b) Not applicable.

(c) Not applicable.

(d) Not applicable.

(e) Not applicable.

(f) Not applicable.

Question 6

Considering only the left elbow injury, and disregarding any psychiatric consequences of physical injury:

(a) Does the Plaintiff have capacity for her pre-injury employment?

(b) Does the Plaintiff have capacity for suitable employment?

(c) If yes to question 6(b), what employment would constitute suitable employment?

(d) If yes to question 6(a), and/or (b), for how many hours per week can the Plaintiff perform such employment?

(e) Does any incapacity for work result from or is it materially contributed to by any, if so which, physical condition identified in response to question 1(d)?

(f) If yes to question 6(e), is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

(a) The Panel concluded that considering only the left elbow injury, and disregarding any psychiatric consequences of physical injury, the Plaintiff, Ms Miletic, has a capacity for her pre-injury employment.

(b) Not applicable.

(c) Not applicable.

(d) Not applicable.

(e) Not applicable.

(f) Not applicable.

Question 7

Disregarding any physical injury:

(a) Does the Plaintiff have capacity for her pre-injury employment?

(b) Does the Plaintiff have capacity for suitable employment?

(c) If yes to question 7(b), what employment would constitute suitable employment?

(d) If yes to question 7(a) and/or (b), for how many hours per week can the Plaintiff perform such employment?

(e) Does any incapacity for work result from or is it materially contributed to by any, if so which, psychiatric condition identified in response to question 1?

(f) If yes to question 7(e), is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?

(a) The Panel concluded that disregarding any physical injury, the Plaintiff, Ms Miletic has a capacity for her pre-injury employment

(b) Not applicable.

(c) Not applicable.

(d) Not applicable.

(e) Not applicable.

(f) Not applicable.

7 In her originating motion for judicial review dated 14 September 2020, in the grounds pertaining to Question 1, the plaintiff first complains, in effect,[11] about the use by the Panel of the word 'intrinsic' in its answer to Question 1. The plaintiff contends that the Panel thereby unduly limited the scope of the question that it was actually asked. That contention is repeated in the plaintiff's written outline of submissions dated 4 February 2021.[12] It is repeated again in the plaintiff's written reply submissions dated 29 March 2021.[13]

8 There is no merit in this complaint. The Panel did not mistake the scope of Question 1 by answering it, in part, in terms of 'intrinsic' medical conditions. Statutory medical questions are subject to limitations as to form and are required to be relevant.[14] They should be read against that background,[15] as the Panel no doubt understood. With respect to the present case, the relevant background or context includes the statutory scheme relating to the referral of medical questions under the Act and the statutory scheme relating to serious injury applications made under the Act.

9 The Act defines 'medical question', and in doing so it provides for 15, and only 15, categories of medical questions.[16] The first of the categories of medical question stated in the definition is 'a question as to the nature of a worker's medical condition relevant to an injury or alleged injury'.[17]

10 The question set out as Question 1 in the present case can only fall within that first stated category of medical question, and then only if one assumes that the question is directed to relevant injuries or relevant alleged injuries of the plaintiff. Otherwise, Question 1 would be invalid and inoperative.[18] No one in the present case suggests that. Accordingly, Question 1 is properly understood as a question about the nature of the medical condition (if any) of the plaintiff relevant to an injury or alleged injury of the plaintiff's right wrist, right elbow, right shoulder, left elbow or mind, as the case may be.

11 It can be seen immediately that Question 1 distinguishes between medical conditions relevant to physical or anatomical injuries (or alleged injuries) of the plaintiff, on the one hand, and mental injuries (or alleged injuries) of the plaintiff, on the other hand. Corresponding distinctions are made within and as between Question 5, 6 and 7 of the referral. The making of these distinctions is a well understood consequence of the statutory scheme relating to serious injury applications.[19] The expression 'serious injury' is defined, exhaustively, in s 325(1) of the Act. Four categories of 'serious injury' are provided for. Only two of them are presently relevant, namely the 'paragraph (a)' category, being 'permanent serious impairment or loss of a body function' and the 'paragraph (c)' category, being 'permanent severe mental or permanent severe behavioural disturbance or disorder'. Importantly, paragraph 325(2)(h) provides that 'the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise'.[20]

12 In her serious injury application, the plaintiff was relying on both paragraph (a) and paragraph (c) of the definition of 'serious injury' in s 325(1) of the Act.[21] However, by virtue of the statutory requirements just mentioned, it was appropriate for any referred medical questions to respect the distinction between physical injuries and mental injuries.

13 In this context, it can be seen that there was nothing untoward in the use by the Medical Panel of the word 'intrinsic' in providing its answers to the questions in paragraphs (a), (b), (c) and (d) of Question 1 of the referral. Those paragraphs were to be understood as asking about, only, the physical or anatomical condition - or, in other words, the intrinsic condition - of the specified parts of the plaintiff's body. The fact that there was a separate question, set out in paragraph (e) of Question 1, about the condition of the plaintiff's mind confirms this. As the plaintiff's senior counsel seemed at the oral hearing to accept,[22] the Panel's answers to paragraphs (a) to (d) inclusive of Question 1 meant that, in the Panel's opinion, the plaintiff was not currently suffering from any physical or anatomical medical condition in her right wrist, right elbow, right shoulder or left elbow. Those answers were fully responsive to the questions asked. Hence, the plaintiff's first ground fails.

Absence of express reference to pain in answers to Question 1

14 The plaintiff's next, and most prominent, complaint is to the effect, broadly speaking, that:[23]

(a) the Medical Panel accepted the plaintiff's complaints of pain;

(b) pain is a medical condition;

(c) therefore, it was not open to the Panel not to state, in answer to Question 1, that the plaintiff was suffering from a medical condition being pain (i.e. pain as described by her).

15 As a related matter, the plaintiff contends that the Panel's answers to Questions 2-7 would or might have been different had the Panel answered Question 1 in terms of the plaintiff's (alleged) pain.[24]

16 In these respects, the plaintiff relies principally on the judgment of Moore J in Emmelmann v Thomson Geer Services Pty Ltd ('Emmelmann').[25]

(a) the Panel did not accept that the plaintiff was suffering from pain as described by her;

(b) in any event, Question 1 did not require that any accepted pain of the plaintiff be referred to, separately and expressly, as a medical condition;

(c) it was open to the Panel to answer Question 1 in the manner it did.

18 The plaintiff submits that her documentary case as presented to the Panel was based wholly or mainly on alleged pain; and also that the Panel's statement of reasons dated 17 July 2020 shows that it accepted that the plaintiff suffered from pain in the ways described by her doctors in the medical reports and in the ways described by her in her interviews with, and during her examinations by, the members of the Panel.[26]

19 It is true that the plaintiff's documentary case to the Panel was largely based on alleged pain. Principally, the plaintiff relied on alleged persistent pain from alleged physical injuries to her right wrist, right elbow and left elbow. On the other hand, before the Panel, she virtually abandoned any reliance on her alleged right shoulder injury. She appeared to accept that any right shoulder injury had been caused by an accidental fall at home and, in any event, that it had completely resolved.[27] Before this Court the plaintiff hardly pressed any suggestion that the Panel had erred in relation to her right shoulder.[28]

20 The plaintiff's documentary material before the Panel also included some suggestions that what she had described as physical pain (or fear of physical pain) might be attributable, at least in part, to a mental injury, such as a 'Somatic Symptom Disorder with predominant pain',[29] or '[c]hronic pain syndrome'.[30]

21 On the other hand, there was documentary material before the Panel that included expert opinion from an occupational physician to the effect that the plaintiff had no physical problems whatever and that she was engaging in illness behaviour and exaggeration of presentation,[31] together with expert opinion from a psychiatrist to the effect that the plaintiff had no diagnosable mental disorder and that the plaintiff's complaints were borne of anger arising from a perception of injustice towards her on the part of the ANZ Bank and others.[32]

22 In this Court, the plaintiff relied most heavily on certain statements or comments in the Panel's statement of reasons relating to complaints of pain made by the plaintiff during her interviews with, and examinations by, the Panel. Those statements and comments are quoted in paragraph 12 of the plaintiff's initial written outline of submissions. It is unnecessary to set them all out. Clearly, in my opinion, and as the ANZ submits, those statements and comments did not indicate acceptance on the part of the Panel of the plaintiff's complaints of pain. Quite the opposite. The Panel referred to 'diffuse' tenderness to palpation, indicating a non-anatomical distribution.[33] It referred to 'give-way weakness', again indicating a lack of genuineness or accuracy on the part of the plaintiff in relation to tests of power of her limbs.[34] Nowhere in those statements and comments did the Panel say that it accepted any of the plaintiff's complaints of pain. It did no more than note what Ms Miletic said about her alleged pain. Further, there were numerous other statements and comments in the Panel's statement of reasons that indicated, and supported, a conclusion on the part of the Panel that the plaintiff had no current physical injury and no current physical pain.[35]

23 Ultimately, in oral submissions before me, senior counsel for the plaintiff appeared to acknowledge that the Panel certainly did not indicate anywhere that it actually accepted any of the plaintiff's complaints of pain as being actual products of any persisting physical injury.[36] Putting aside any contention relating to the adequacy of the Panel's statement of reasons,[37] the burden is on the plaintiff, in this proceeding for judicial review, to demonstrate that the Panel erred in law or committed jurisdictional error. It is insufficient to show that the Panel might have done so.[38] In any event, my view is that the Panel was not merely neutral or unclear as to the plaintiff's complaints of pain. Rather, the language used by the Panel in its statement of reasons indicates that it did not accept that there was any persisting pain emanating from the plaintiff's right wrist, right elbow, right shoulder or left elbow. Moreover, the answers given by the Panel to paragraphs (a), (b), (c) and (d) of Question 1 are quite inconsistent with the plaintiff's contention that the Panel accepted her complaints of actual physical pain.[39]

24 These circumstances are sufficient to distinguish the present case from Emmelmann.[40] In that case, the relevant defendant conceded, and Moore J found, that the Medical Panel was to be taken to have accepted Ms Emmelmann's history and contemporary experience of spinal pain (and to have found that Ms Emmelmann did not suffer from any psychiatric or abnormal psychological condition).[41]

25 In Emmelmann, Moore J observed that a person's continuing experience of pain is 'capable' of being described as a 'medical condition' within the 'ordinary meaning' of that term.[42] Putting together the acknowledged pain in Ms Emmelmann's spine and the 'ordinary meaning' of 'medical condition', Moore J concluded that it had not been open to the Panel in that case to determine (as it had purported to do) that Ms Emmelmann had no physical medical condition of the spine.[43] As already mentioned, the present case is very different, because the Medical Panel did not accept Ms Miletic's complaints of actual physical pain. Further and in any event, I would not treat the judgment in Emmelmann as laying down any universal proposition that wherever a Medical Panel is asked about the medical condition of a person in relation to an injury or alleged injury of the person, the Panel is obliged, if it finds actual pain associated with such injury, to answer the medical question by expressly and separately referring to the pain as a medical condition. For example, depending perhaps on the precise wording of the medical question, it may well be sufficient for the Panel to give a diagnosis of the relevant body part in anatomical terms. It may well be open to the Panel merely to take into account the accepted pain as being an indicator or symptom of a particular medical condition. These are matters on which a Medical Panel is entitled to apply its own medical expertise and experience.[44]

26 For those reasons, it was open to the Medical Panel in the present case to provide the answers that it did provide to the questions set out in paragraphs (a), (b), (c) and (d) of Question 1 of the referral.

27 There remains, however, an issue to be considered in relation to the Panel's answer to the question in paragraph (e) of Question 1.

28 For reasons corresponding to those already given, paragraph (e) of Question 1 was to be read and understood as asking the following question:

What is the nature of the plaintiff's medical condition (if any) relevant to any relevant injury or alleged injury of the plaintiff's mind?

29 Again, the context supplied by the plaintiff's underlying claim in the County Court was relevant. In serious injury applications, applicants are required by Ministerial directions to file a draft statement of claim. On or about 28 June 2019, Ms Miletic did so.[45] Her statement of claim includes stated 'Particulars of Injury'. In addition to the particulars of her alleged physical injuries, the statement of claim sets out particulars of her alleged mental injuries, as follows:[46]

(e) Chronic pain syndrome.

(f) Depression.

(g) Adjustment disorder with anxious and depressed mood.

These descriptors were apparently based on various medical reports that had been assembled by the plaintiff.

30 Ms Miletic argues that the Medical Panel was not bound or confined by the terms of her pleadings in the County Court. She submits that a broad approach was necessary, taking into account that plaintiffs are often permitted to amend their pleadings in court.[47] She cites remarks made by John Dixon J in Summers v Director of Housing[48] to the effect that, in that case, the proper approach was not to identify the injury 'in a restricted or narrow way'. Summers was a case arising under the 'significant injury' provisions of Part VBA of the Wrongs Act 1958 (Vic). As John Dixon J himself observed in the passage cited by Ms Miletic, Mr Summers' statement of claim was not a document that played any role in the statutory scheme under Part VBA. The position under the Act is different. Nevertheless, I will assume that a broad approach, admitting the possibility of future amendments to the pleadings, was likewise called for in the present case.

31 As indicated above, during the oral hearing senior counsel for the plaintiff seemingly came to acknowledge that the plaintiff's complaints about the Panel's findings on physical pain could not succeed; and he began to give more emphasis to the Panel's approach in relation to the plaintiff's mental condition.[49] In effect, he submitted that the Panel was obliged to determine that the plaintiff was suffering sensations of pain in her mind to an extent that fully corresponded with the extent of her complaints of actual, physical pain; and that the Panel's omission to give an answer along those lines to Question 1(e) represented error of law or jurisdictional error. He submitted in the alternative that the Panel did not expressly say in its reasons that the plaintiff did not suffer such sensations of pain in her mind; and that, therefore, the Panel had constructively failed to exercise its jurisdiction.[50]

32 In Barwon Spinners Pty Ltd v Podolak,[51] the Court of Appeal pointed out that, in serious injury applications,[52] having regard in particular to the then equivalent of s 325(2)(h) of the Act, it does not avail a worker whose complaints of pain from physical injury have been rejected or discounted to say that ultimately all pain and suffering lies in the mind.

33 Nevertheless, for a time I was troubled about the fact that the Panel did not expressly say, in its statement of reasons, whether or not, or to what extent (if any), it accepted that there were sensations of pain in the plaintiff's mind.

34 However, on reflection, I am no longer troubled in that way.

35 I note that the plaintiff's principal case before the Panel was her physical injury case, not her mental injury case. She did submit reports by a psychiatrist, Dr Weissman, but those reports were not strongly supportive of her mental injury case. For example, Dr Weissman said that Ms Miletic 'was keen to read from her prepared notes' about symptoms;[53] that she had a 'pain- and symptom focus and preoccupation, with elevated health concerns';[54] that her preoccupation 'may or may not be disproportionate to the actual degree of discrete organic pathology';[55] that she had a 'chronic Adjustment Disorder with Anxious and Depressed Mood';[56] that there was a possibility that she had 'some' symptoms and features of somatic symptom disorder with predominant pain;[57] and that she harboured grievances about ANZ.[58]

36 Ms Miletic also submitted reports of a psychologist, Ms Verwey. The psychologist proceeded on the basis that Ms Miletic continued to have bilateral epicondylitis and struggled with chronic physical pain daily.[59] She considered that this precipitated an 'Adjustment Disorder with Mixed Anxiety, and Depressed Mood'. That psychiatric diagnosis was not very different from the Panel's psychiatric diagnosis given in answer to Question 1(e), but, of course, the Panel's physical diagnosis was quite different from that assumed by Ms Verwey.

37 The Panel plainly gave consideration to everything that was said by or on behalf of the plaintiff about pain. That is shown by the numerous references to the topic in the Panel's statement of reasons, as listed in both parties' written submissions. The assessment of that material for the purposes of the plaintiff's mental injury claim was just as much a matter on which the Medical Panel was entitled to apply its own medical expertise and experience as was the assessment of it for the purposes of the physical injury claim.

38 The Medical Panel included two psychiatrists among its five (specialist) members. The psychiatrists jointly interviewed and examined Ms Miletic on 9 June 2020, separately from the other members of the Panel. The Panel's reasons are detailed, and carefully expressed, in relation to all aspects of the matter. However, it is desirable to refer in particular to certain parts of the Panel's reasons relating to the psychiatric aspects of the matter, beginning with what the Panel said under 'Mental state examination':[60]

This examination took place by videoconference from Ms Miletic's home; due to COVID-19 restrictions. Audiovisual quality was satisfactory. Ms Miletic was well-groomed, kempt, alert, and attentive. She was wearing a splint on her right wrist and her left hand for the most of the interview was holding one side of the phone. She made good eye contact, seemed at ease and confident, and established modest rapport. There were no abnormal movements evident within the limited field of view, she sat comfortably, and there was no psychomotor agitation or retardation. She was not distressed or teary at any time. She said she had viewed the surveillance material with the physical Panel; she did not add any further comment.

She spoke spontaneously, expressively, fluently and discursively. Her mood was expressed as full of anxiety a lot of the time, flat and depressed. Objective affective quality was unimpaired, full in range including spontaneous humour, reactive, well communicated and lacking congruence with expressed mood. There was no disorder of thought form or possession. Thought content was injury, loss, worry about insecurity, and compensation focused. There were no psychotic features to thought or perception and no indication of current or recent suicidality. Insight was partial. Judgment was constrained by habitual negative cognitions. Attention, concentration and memory were unimpaired at clinical interview. Formal cognitive assessment was not undertaken.

39 Under 'Conclusion and diagnosis' the Panel said (as to the psychiatric aspects):[61]

The Panel is of the opinion that Ms Miletic is suffering from an adjustment disorder with depressed mood and anxiety which is mild in severity, and in the context of pre-existing personality vulnerabilities and anxious traits.

The Panel noted this diagnosis is concordant with that of her treating psychologist Ms Vewey [sic: Verwey] (27 October 2019) and medical examiner Dr David Weissman (3 July 2018, 6 August 2019). The Panel considered whether Ms Miletic's condition meets the criteria for Somatic Symptom Disorder with predominant pain as considered by Dr Weissman, or for Chronic Pain Disorder associated with a general medical condition and psychological factors, and concluded it does not.

The Panel noted the nature of the psychiatric condition, the current treatment and the clinical course. The Panel considered that Ms Miletic [sic] condition may potentially improve at some future time, but the Panel is not certain as to when or if any such improvement may occur in the foreseeable future. The Panel concluded that the condition is likely to persist for the foreseeable future, and thus it is permanent.

40 Under 'Material contribution', as to the psychiatric aspects, the Panel said:[62]

The Panel noted the nature of the psychiatric condition, and its onset. The Panel noted from the referral documentation that this claim was accepted in 2015, after the diagnosis of the right lateral epicondylitis condition. The Panel noted the clinical course of the psychiatric condition. The Panel noted the treatment undertaken, and that the clinical features have not remitted.

Therefore, the Panel concluded that the adjustment disorder with depressed mood and anxiety which is mild in severity, currently results from and is material [sic] contributed to by the right elbow injury (which has subsequently resolved).

41 Under 'Work capacity', under the heading 'Disregarding any physical injury', the Panel said:[63]

The Panel discussed with Ms Miletic the matter of her work capacity. She said she is motivated to keep working for financial and lifestyle and [sic] reasons and seeks to continue her employment in her present capacity. The Panel noted Ms Miletic copes adequately with working 19½ hours on two contiguous days, and that she said her key performance indicators match her colleagues although not her former call rate.

Ms Miletic nominated her physical symptoms as the chief limitation on her work capacity, saying that physically, she barely gets through the two days of working; she added 'concentration is part of the issue too'.

The Panel noted that psychiatrist examiner Dr George Mendelson concluded on two examinations of Ms Miletic, 30 August 2017 and 18 June 2019, that she was manifesting an understandable psychological reaction to complaints of persistent pain, related restrictions, and the current situation; and that her psychological symptoms did not meet the required threshold for any psychiatric diagnosis, noting that Dr Weissman made a 'borderline threshold diagnosis'. The Panel also noted that Dr Weissman at his examinations of Ms Miletic, 3 July 2018 and 6 September 2019, concluded Ms Miletic was suffering from symptoms of a chronic adjustment disorder with depressed mood and anxiety of mild to moderate severity, and of possible Somatic Symptom, Disorder, and for which specialist treatment including antidepressant medication was warranted.

The Panel took into consideration the mild degree of severity in breadth and depth of Ms Miletic's emotional, cognitive and behavioural symptoms and concluded that her psychiatric condition does not restrict her work capacity. Therefore, the Panel concluded that Ms Miletic has a capacity for her pre-injury employment, without any restriction on working hours.

42 It now seems to me that the Panel's statement of reasons, especially the passages quoted above, together with the limited nature of the plaintiff's own case on mental injury provide ample justification for, and sufficiently explain, the Panel's answer to Question 1(e). They do likewise for the Panel's answers to Questions 4 and 7.

43 More particularly, it now seems to me that the Panel, on the basis of careful, expert consideration of all the material before it, did not accept that the plaintiff was experiencing any actual pain from her alleged physical injuries, because those injuries had resolved; that her complaints about pain were, at best, inaccurate;[64] and that, rather, she had an adjustment disorder with depressed mood and anxiety (which, I interpolate, may have involved some delusions of pain or some fear of pain) which was mild in severity and which was thus very far from commensurate with the extent of her complaints of pain. Indeed, it was so mild that, in the Panel's opinion, it would not have precluded the plaintiff from returning to her previous full-time role at the Bank as a customer service consultant.

44 Accordingly, this (main) ground of the plaintiff's challenge to the Medical Panel's opinion, as well as the plaintiff's elaborations on and modifications of this ground, must fail.

Alleged failure to give proper consideration to relevant material

45 In paragraphs 12, 13 and 14 of her originating motion for judicial review, the plaintiff contended that the Panel did not answer Question 1 by reference to the 'tendernesses observed on the Medical Panel's examination'; that it ignored material as to the 'plaintiff's pain and its effects and the tendernesses observed on the Medical Panel's examination' and that it 'did not give any or any proper consideration to the plaintiff's case that the pain and its effects and the tendernesses observed on the Medical Panel's examination were medical conditions of the plaintiff's right wrist, right elbow, right shoulder or left elbow'. Little was said about these contentions in the plaintiff's written submissions; and they were not pressed, or hardly pressed, at the oral hearing. In any event, the contentions were hopeless, for the reasons I have already given. The Panel considered that the plaintiff's complaints of widespread 'tendernesses' were inconsistent with her claims of intrinsic or anatomical injuries. In the Panel's expert opinion, the plaintiff's 'tendernesses' were not in truth 'observed'. Her complaints of such tendernesses actually detracted from her case. They did not advance it. Nor is there any basis for the plaintiff's contention that the Panel did not give any or any proper consideration to the plaintiff's 'case' more generally.[65] As indicated above, it is plain that the Panel gave careful and proper consideration to all of the matters before it. These grounds fail.

Adequacy of the Medical Panel's statement of reasons

46 In paragraph 15 of her originating motion for judicial review, in relation to (medical) Question 1, the plaintiff contended that the Panel did not in its reasons provide 'a proper path of reasoning' explaining why it was of the opinion that the plaintiff's 'pain and its effects' and 'the tendernesses observed on the Medical Panel's examination' were not medical conditions of the plaintiff's right wrist, right elbow, right shoulder, left elbow and mind.

47 In paragraph 20 of the same document, in relation to (medical) Questions 4-7, the plaintiff contended that Medical Panel did not provide a 'proper path of reasoning' explaining why it was of the opinion that the plaintiff had a capacity for pre-injury employment 'despite the plaintiff's pain and its effects' and 'the tendernesses observed on the Medical Panel's examinations'.

48 In her written submissions, the plaintiff did not advance any arguments in support of these grounds, expressing the view[66] that she was precluded from relying on them in this Court by the decision of the Court of Appeal in Colquhoun v Capitol Radiology Pty Ltd ('Colquhoun').[67] At the oral hearing, it was pointed out that Colquhoun did not apply to a matter arising under the Act.[68] Senior counsel was then offered, in effect,[69] an opportunity to advance arguments in support of any contention that the Panel's statement of reasons was legally inadequate. Senior counsel expressly declined the opportunity.[70]

49 In any event, for the reasons already given, any contention that the Panel's statement of reasons was inadequate would clearly have failed.[71]

Medical Question 3: recurrence, aggravation etc

50 In paragraph 18 of her originating motion, the plaintiff contended that Question 3 was not addressed to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing right wrist, right elbow, right shoulder or left elbow injury pre-existing the plaintiff's employment from 2010 to August 2017. In this regard, she contended, the Medical Panel misconceived and mistook the meaning of Question 3, and asked itself a wrong question or identified a wrong issue.

51 In her written outline, in this regard, the plaintiff did no more than repeat the terms of the pleaded ground. Her counsel made no reference to this ground at the oral hearing.

52 In my view, as a matter of language, it was open to the Panel to construe Question 3 as it did.

53 In any event, the plaintiff's complaint fails for lack of materiality.[72] As mentioned above, the underlying proceeding in the County Court was a serious injury application. On any construction of Question 3, it had no relevance to the serious injury application. Further, the Panel went on to determine, in answer to Question 4, that the plaintiff's adjustment disorder was causally linked to the injuries to her right wrist, right elbow and left elbow (which had subsequently resolved). That made Question 3 and the Panel's answer to it all the more immaterial. It would be wrong, and also pointless, to interfere with the Panel's opinion because of its answer to Question 3.

54 The proceeding will be dismissed. Presumably, costs should follow the event. I will make an order to that effect, but will reserve to the parties limited liberty to apply for a different order as to costs.

[1] Medical Panel's certificate of opinion: Court Book ('CB') 65.

[2] Medical Panel's reasons for opinion: CB 69.

[6] County Court Originating Motion dated 28 June 2019: CB 2-5.

[7] Ibid. See also undated Draft County Court Statement of Claim: CB 6-9.

[8] See date stamp on Schedule of Attachments to Referral: CB 86.

[9] Medical Panel's certificate of opinion: CB 65-68.

[10] See especially Ms Miletic's written outline of submissions filed 4 February 2021 ('Miletic Outline') [13]-[15], [22]-[24]: CB 33-36.

[11] In the originating motion, the plaintiff wrongly attributes to the Panel the use of the word 'extrinsic' as distinct from the word 'intrinsic': see Originating Motion paragraphs 9(a) and 10: CB 16-17.

[12] See Miletic Outline [18]-[21]: CB 34-35.

[13] Plaintiff's written reply submissions filed on 29 March 2021 ('Miletic Reply'), [11]-[13]: CB 62.

[14] Commonwealth v Mifsud [1965] HCA 56; (1966) 114 CLR 505, 512-3 (Windeyer J) cited in Silver Top Taxi Service v Fish [2006] VSC 448, [30] (Warren CJ); Isuzu General Motors Australia v Jordon [2000] VSCA 63; (2000) 2 VR 212, 217-218 [11]-[14] (Phillips JA; Brooking and Chernov JJA agreeing); Kamener v Griffin [2005] VSC 202; (2005) 12 VR 192, 210 [84]-[86] (Ashley J); Kakae v Westpot Consolidated Pty Ltd [2016] VSC 271, [51] citing Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 and [53] citing Smith v Mann [1932] HCA 30; (1932) 47 CLR 426, 444 (Starke J); Didani v Downes-Brydon [2021] VSCA 281, [38]-[48]; Baumgartner v Victorian WorkCover Authority [2022] VSCA 21, especially at [67]-[72].

[15] Didani v Downes-Brydon [2021] VSCA 281, [46], [53].

[16] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('the Act') s 3 (definition of 'medical question').

[18] See the cases cited at n 14 above. See also and compare AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309, 314 {30]-[33] (Kyrou AJA, with whom Mandie and Bongiorno JJA agreed).

[19] See, generally, Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, especially at 664-5 [117]-[118].

[21] See Ms Miletic's particulars of injury pursuant to the orders of Judicial Registrar Gurry of the County Court dated 1 August 2019: CB 133-134.

[22] Transcript of proceedings in this Court ('T') 3, 24.

[23] Originating Motion paragraphs 10- 14: CB 17; Miletic Outline [22]-[25]: CB 35-37; Miletic Reply [10]: CB 62.

[24] Originating Motion paragraphs 16- 20: CB 18; Miletic Outline [27]-[31]: CB 37-38.

[25] Emmelmann v Thomson Geer Services Pty Ltd [2020] VSC 801 ('Emmelmann').

[27] Ms Miletic's written submissions to the Medical Panel dated 21 January 2020, [4]: CB 98; Medical Panel's reasons for opinion: CB 82.

[29] Report of Dr Weissman, psychiatrist, dated 6 September 2019: CB 168. See also CB 169-170.

[30] Report of Dr Amin, general practitioner, dated 14 November 2019: CB 175.

[31] Report of Dr Barton, occupational physician, dated 24 June 2019: CB 303-306.

[32] Reports of Dr Mendelson, psychiatrist, dated 30 August 2017 and 18 June 2019: CB 255, 281-282.

[33] Medical Panel's reasons for opinion: CB 76.

[35] For a listing of these, see ANZ written outline of submissions filed 25 February 2021 ('ANZ's outline') [8]: CB 45.

[36] T 5-7, 12, 15, 18, 20-21. Cf T 14, 16.

[38] Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J, Adam J agreeing); Ta v Thompson [2013] VSCA 344; (2013) 46 VR 10, 20 [50] (Osborn JA, Beach JA agreeing); Tan v Kotzman [2016] VSC 482, [29] (John Dixon J); Hart v Melbourne Underwater World Pty Ltd [2018] VSC 394, [35].

[39] See and compare Didani v Downes-Brydon [2021] VSCA 281, especially at [56]-[61].

[40] [2020] VSC 801.

[44] See and compare Didani v Downes-Brydon [2021] VSC 27, [47] (Keogh J); approved Didani v Downes-Brydon [2021] VSCA 281, [52].

[45] Draft undated Statement of Claim: CB 3-9.

[47] Ms Miletic's note filed on 14 May 2021 pursuant to the directions made on 28 April 2021, [5]-[7].

[48] [2012] VSC 395, [61].

[51] (2005) 14 VR 644, 664-5 [117].

[52] Whether the position is different in relation to claims for statutory compensation need not be considered here: compare Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626, 629, 633-634, 636-637, 639-342; Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176, 180; Clarke v National Mutual Life Insurance Ltd [2013] VSC 536, [47]-[55].

[53] Report of Dr Weissman dated 3 July 2018 ('2018 Weissman report'): CB 147.

[54] 2018 Weissman Report: CB 152; Report of Dr Weissman dated 6 September 2019 ('2019 Weissman Report'): CB 168.

[55] 2018 Weissman Report: CB 152; 2019 Weissman Report: CB 158.

[56] 2018 Weissman Report: CB 153; 2019 Weissman Report: CB 169.

[57] 2018 Weissman Report: CB 152; 2019 Weissman Report: CB 168-169.

[64] Compare Didani v Downes-Brydon [2021] VSC 27, [48]-[49], being a passage appropriately relied on by ANZ in [16] of its outline (CB 48) and being a passage later approved by the Court of Appeal in Didani v Downes-Brydon [2021] VSCA 281, [8], [28], [57]-[58].

[65] For the relevant principles, see Chang v Neill [2019] VSCA 151, [74]-[100]; Sidiqi v Kotsios [2021] VSCA 187, [61] and cases referred to there; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

[67] [2013] VSCA 58; (2013) 39 VR 296.

[69] T 46-50. The offer was mistakenly made in terms of an opportunity to amend the originating motion, which would not have been necessary.

[71] For the relevant principles, see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 497-502 [42]-[57], 505 [65]; Dunbar v Bas [2019] VSCA 315, [46]-[51]; Sidiqi v Kotsios [2021] VSCA 187, [63]-[64]; A & L Windows Pty Ltd v Yildirim [2022] VSCA 46, [29]-[31].

[72] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [29]-[31]; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, [2], [27]-[60].