Plaintiff v First Defendant Second Defendant Third Defendant

2 The plaintiff commenced a proceeding in the Magistrates' Court seeking to establish that she was entitled to have the weekly payments continue.[1] In her statement of claim, she alleged that the incident at work had led to compensable injury of her 'left upper limb (including but not limited to the left elbow)'. Acting under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRCA), a magistrate referred four 'medical questions' to a medical panel for a binding opinion. The questions were framed by reference to the issues arising under s 93C of the ACA. Those issues in turn involved the definitions of 'no current work capacity' and 'suitable employment' as they stood in s 5 of the ACA at the relevant time,[2] as follows:

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;

...

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker's pre-injury employment; and

(iii) the worker's age, education, skills and work experience; and

(iv) the worker's place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

3 The questions referred to the panel, and the answers given as set out in the panel's certified opinion dated 6 January 2015, were as follows:

Question 1. What is the nature of the Plaintiff's medical condition relevant to the injuries alleged in the Statement of Claim dated 12 May 2014 and, in particular:

(a) Injury to the left upper limb (including but not limited to the left elbow); and

(b) Psychological and/or psychiatric injury (including but not limited to stress, anxiety and depression).

Answer: In the Panel's opinion the Plaintiff is suffering from:

(a) persistent symptoms, residual dysfunction and surgical scarring of the left elbow following a common extensor disruption surgically treated; and

(b) a Chronic Adjustment Disorder with depressed mood;

Question 2. Does the Plaintiff have no current work capacity?

Answer: No.

Question 3. If yes to 2, is the plaintiff likely to continue indefinitely to have no current work capacity?

Answer: Not applicable.

Question 4. If yes to 3, does the plaintiff's no current work capacity result from or is it materially contributed to by any and which if so which of the alleged injuries?

Answer: Not applicable.

The panel also provided a written statement of reasons pursuant to s 313 of the WIRCA. If the opinion of the medical panel stands, the plaintiff will be unable to succeed in the proceeding in the Magistrates' Court.

4 On 6 March 2015 the plaintiff commenced the present proceeding, being an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005[3] for judicial review of the certified opinion given by the medical panel. The first defendant is the plaintiff's former employer. The second defendant is the deputy convenor of medical panels. The third defendant is the medical panel as it was constituted for this matter.

5 The plaintiff's case before this Court has been significantly altered from time to time. Initially, the plaintiff's originating motion contained five grounds of alleged error, designated (a) to (e). Within a few days, five additional grounds were added (paragraphs (f)-(j)). As matters then stood, the ten grounds were, in substance, directed at two things - first, the way in which the panel had dealt with the plaintiff's complaints about her left shoulder and, second, the fact that the panel had found her capable of performing the duties of two specified types of employment. There was no complaint about the panel's findings concerning her claimed mental injury. In the usual way, the second and third defendants advised the court and the other parties that they would take no active part in the proceeding. A timetable was then set for the filing of evidence and submissions by the plaintiff and the first defendant. The steps contemplated by the timetable were completed with the filing and service of the first defendant's responsive outline of submissions on 23 June 2015. However, in September and October 2015, without obtaining prior leave, the plaintiff filed further affidavits which, in substance, complained that the panel had taken insufficient time and care in interviewing and examining the plaintiff and had failed in any event to take into account information she had provided to the panel by way of history. The first defendant indicated that it would object on various grounds to reliance by the plaintiff on these affidavits. The matter then came on before me for trial on 17 December 2015. Only the plaintiff and the first defendant appeared. The first defendant pressed its objections to the new affidavits, including an objection on the ground that the affidavits travelled beyond the scope of the plaintiff's originating motion as amended to that time. The plaintiff then applied for leave to make further substantial changes to the originating motion and for an adjournment. She also sought leave to file and serve yet more affidavit material and new written submissions. In the end, there was no opposition by the first defendant to these applications, subject to the plaintiff being required to pay the costs thrown away. However, having regard to the nature of the plaintiff's new contentions, it was accepted that the second and third defendants should be served with the additional material and afforded an opportunity to appear on the resumption of the hearing, if so advised. I made orders accordingly, and included a timetable for the filing of further affidavit material and submissions.

6 A further amended originating motion and additional affidavit material were duly filed and served by the plaintiff. In response, the first defendant filed and served an affidavit exhibiting notes that had been made by certain members of the medical panel while interviewing and examining the plaintiff, copies of which had been made available by the second and third defendants. The plaintiff then filed and served further written submissions and the first defendant responded in kind. Save as indicated above, the second and third defendants took no further active part.

7 The trial resumed before me as a part heard matter on 7 March 2016. In preparation for the hearing, I read and considered all of the material (including submissions) that had been filed, including all of the new material. At an early stage, the plaintiff's counsel announced that the plaintiff was abandoning the grounds relating to her left shoulder, being grounds (a) and (b). At a later stage of the hearing, with the concurrence of the parties, I indicated to them my provisional views on the issues that were then extant. I indicated that, subject to any further submissions that may be made, I saw little or no merit in any of the plaintiff's grounds and submissions save possibly as to one point. That one point was then discussed at some length with counsel for both parties. Thereafter, counsel for the plaintiff said, in effect, that he was prepared to permit the case to go to judgment on the point in question, thereby abandoning the remainder of the plaintiff's grounds and submissions, whilst at the same time acknowledging that I had given no indication, much less any assurance, that the plaintiff would be successful on the point.

8 The outstanding point is whether the statement of reasons given by the panel for its certified opinion is inadequate in a certain respect. In particular, the question is whether the statement of reasons is inadequate insofar as it relates to the nature and extent, and the work capacity consequences, of the pain and disability said to have been experienced by the plaintiff as a result of her compensable injury.

9 In substance, the plaintiff puts her assertion that the panel's statement of reasons is inadequate as follows. She says that the statement of reasons shows that the panel accepted everything she told the panel about her symptoms and about the effect of those symptoms on her ability to work and on her activities of daily living; that such acceptance was plainly inconsistent with the panel's finding that she could perform the duties of the two specified jobs, namely education aide and class room support worker/before and after school care coordinator; and that nowhere does the panel recognise or explain the apparent inconsistency.

10 The claim that the panel accepted everything the plaintiff said about her symptoms and their effects is based mainly on two things. First, on page 7 of the statement of reasons, the panel says:

The Panel is of the opinion, based upon its interview with the worker that it could rely on the history provided by her in conjunction with the other material available and the examination findings in order to reach its conclusions.

Second, the panel does not anywhere say in terms that it does not accept any particular thing said to it by the plaintiff.

11 The panel's statement of reasons records the plaintiff as having told the panel that she was suffering significant pain and disability. It includes the following passage:[4]

The Plaintiff told the Panel that currently she continues to experience constant symptoms of left elbow pain located over what she demonstrated as the outer aspect and back of the elbow. She said that movements generally as well as lifting activities all increase her symptoms of left elbow pain which is relieved by the use of either a heat pack or ice pack. She described symptoms of pins and needles that envelop the whole of the left hand. She said that she experiences constant symptoms of left wrist pain and described a lack of strength of the left arm. She described constant swelling of the left elbow and left wrist, which she said improves towards the end of the day. She described constant swelling of the fingers of the left hand, which she [sic] increased towards the end of the day.

She also described constant symptoms of left shoulder pain located diffusely around the shoulder and radiated up into the left side of the neck. She said that she regularly develops headaches. She said that shoulder movements generally as well as above shoulder height activities all increase her symptoms of left shoulder pain, which is relieved by the application of either heat or ice packs. She said that activities such as washing her hair and dressing, personal care and personal hygiene are all limited by shoulder pain. She described limitation of all left arm activities and depended on the regular assistance of her daughter. She said that sleep is regularly disturbed by shoulder and left arm pain and that she sleeps poorly because of pain.

12 In the light of the principles stated by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak,[5] I am not persuaded that the panel's statement of reasons is inadequate.

13 The paragraph in which the panel said that it could 'rely on', among other things, the history provided by the plaintiff must be read in context. In particular, it must be read in the context of the immediately preceding paragraph in which the panel said that it considered that 'no additional medical imaging or other investigations were necessary for it to assess the worker's current condition and answer the medical questions'. In combination, these two paragraphs indicate that when the panel said that it could 'rely on', among other things, the plaintiff's history, it meant that it needed no more than that history and those other things in order to assess the matter and to answer the medical questions.

14 This interpretation of the sentence in question is fortified by other particular parts of the statement of reasons and by the tenor of the statement as a whole. In particular, the panel's observations relating to its physical examination of the plaintiff showed that the panel did not accept that there was an organic basis for all of the plaintiff's claimed symptoms.

15 As to the plaintiff's left upper limb generally, shortly after the long passage quoted above, the panel noted 'normal contours of the Plaintiff's neck'. It went on to say that the range of motion of the neck was not restricted, and that all movements evoked 'reference' to left shoulder pain. The use of the word 'reference' in this context tends to indicate, in my view, that the panel did not necessarily accept that there was an organic basis for all of the complaints of left shoulder pain. Next, the panel noted that the plaintiff had initially held her left shoulder lower than her right shoulder, but had then resumed and maintained normal symmetrical posture of both shoulders. Muscle mass of both shoulders was observed to be well preserved and symmetrical. The panel noted that the range of motion of the left shoulder was mildly reduced in all planes and all movement evoked 'reference' to shoulder and left sided neck pain at 'minimal' range of motion. Again, I would read this as suggesting the absence of any organic basis for the 'reference' to pain, at least in some cases. To the same effect, the panel noted that the plaintiff located her pain 'diffusely' around the left shoulder.

16 On turning to the examination of the plaintiff's left elbow, the panel said - consistently with its comments concerning the plaintiff's neck and left shoulder - that all movements of the left elbow evoked 'reference' to elbow and left shoulder pain and that provocative tests in the left arm evoked 'reference' to left shoulder pain. Range of motion was noted to be restricted in flexion and extension.

17 The panel noted normal grip strength of the right hand but variably reduced grip strength of the left hand. However, it observed that it did not consider this to be significant. Grip strength testing of the left hand evoked 'reference' to left shoulder and arm pain. Neurological examination revealed normal reflexes in both upper limbs and no evidence of focal muscle weakness or atrophy. The statement of reasons continued:[6]

The panel noted that minimal superficial palpation and soft touch all produced a heightened sense of pain diffusely around the left shoulder and along the length of the left arm, into the hand, in a non-dermatomal distribution, which the Panel considers to be consistent with allodynia. There was no evidence of connective tissue disorders in the upper limbs.

Neurological examination of the upper limbs revealed normal reflexes and sensation. Pulses were present in both upper limbs and the skin was warm to the touch and displayed normal sudomotor activity and normal colouration. There was evidence of equal usage of both hands.

The Panel noted the Plaintiff's global pain response to all movements of the left shoulder and to the physical examination generally.

18 The panel's observation that the plaintiff's response to the physical examination was 'consistent with allodynia' is not completely clear, as different medical dictionaries give different meanings, or shades of meaning, for the term 'allodynia'. The definition advanced by the first defendant is from Taber's Cyclopaedic Medical Dictionary, which states the meaning as 'the perception of an ordinarily painless stimulus as painful'. This definition is notably silent as to whether or not the perception of pain referred to is a genuine experience of pain, and as to whether or not the cause of the perception of pain can have an organic basis. The first defendant submitted orally that the reference to a 'perception' of pain meant that the term referred only to non-organic pain and any such pain was a matter for psychiatric assessment. In support, the first defendant drew attention to the panel's abovementioned reference to the plaintiff's 'global pain response' to the physical examination generally.

19 On the other hand, the plaintiff contended in her written submissions that the meaning of 'allodynia' intended by the panel was 'extreme tenderness of the skin resulting from nerve damage causing hypersensitivity of pain receptors in that area', citing the Oxford Concise Medical Dictionary.[7] However, it is tolerably clear that this meaning was not the one intended by the panel. It made no reference to nerve damage. Quite the opposite. As indicated above, it said that neurological examination of the upper limbs revealed 'normal reflexes and sensation'. Nevertheless, none of the numerous medical dictionaries which I have consulted suggests that 'allodynia' means a knowingly false claim of pain.

20 Before returning to these aspects of the panel's statement of reasons, I should record that the panel also reported in detail on its psychiatric assessment and mental state examination of the plaintiff.[8] The panel noted that the plaintiff reported feeling depressed after her injury and that she felt like she had lost her independence. The plaintiff told the panel that she was frustrated by 'her loss of role in the family and her pain'. The plaintiff reported that she had attended a psychologist on a monthly basis through 2013 until early 2014, when funding for these sessions was ceased by the insurer, and that she had been prescribed antidepressants by her general practitioner. The panel noted that the plaintiff said she 'would like to return to work and that her principal impediment has been the pain'. Subsequently, the panel stated that it had 'noted and considered' the plaintiff's concerns that prior to the development of her depression she had believed herself capable of working, but that 'following the onset of depression she was no longer confident and believed that she was not capable of working'.[9] However, the panel's diagnosis of the plaintiff was that she was suffering from a Chronic Adjustment Disorder with depressed mood that was attributable to the claimed injuries, but that this would not affect her capacity for work. Although the panel recorded, earlier in its opinion, that the plaintiff had informed the panel that 'her depressed mood makes her left arm pain worse',[10] the panel did not, in its statement of reasons,[11] make any diagnosis of, or indeed reference to, a non-organic pain syndrome that might explain the plaintiff's reported pain. However, as indicated above, the plaintiff has not at any stage suggested that the panel's statement of reasons was inadequate in relation to the psychiatric aspects of the matter.[12]

21 It is unfortunate that the panel did not spell out what it meant by 'allodynia' and did not make fully clear whether it accepted all of the plaintiff's various complaints of pain. However, in the end, these are matters of little or no significance. The panel's path of reasoning to its critical conclusion is sufficiently clear.

22 Of all the matters complained of by the plaintiff to the panel, only her elbow condition and her Chronic Adjustment Disorder with depressed mood were considered by the panel to be attributable to the work place injury. That much is clear from the panel's answer to question 1 and from various parts of the panel's statement of reasons, especially at pages 7, 9 and 10 thereof, including the statement[13] that the plaintiff was 'not now suffering from any physical medical condition of the left shoulder, attributable to the claimed injury'. The panel specified the elbow condition as the only physical condition to be considered in applying the statutory definitions of 'suitable employment' and 'no current work capacity'.[14] It stated twice[15] that it was considering incapacity arising from the plaintiff's work-related physical and medical conditions only, to the exclusion of other medical conditions. Moreover, the plaintiff no longer challenges the entitlement of the panel to conclude that the only relevant medical conditions were the elbow condition and the mental condition.[16]

23 The panel's conclusion as to the nature and the effects of the plaintiff's elbow injury was expressed as follows:

The Panel concluded that the worker is suffering from persistent symptoms of pain, residual dysfunction and surgical scarring of the left elbow following a common extensor disruption surgically treated.

Thus the panel accepted that the elbow injury produced pain; that the pain symptoms were 'persistent'; that there was 'residual dysfunction'; and that there was surgical scarring following the operation on the plaintiff's elbow.

24 However, as the panel recognised, the critical issue was whether, as a result of the compensable injuries, the plaintiff had 'no current work capacity'.

25 In this regard, the panel turned first to the plaintiff's mental condition. It discussed the material before it relating to this. For the reasons which it gave, it decided, as indicated above, that the plaintiff's Chronic Adjustment Disorder with depressed mood did not, of itself, affect her capacity for work.[17] As is also indicated above, the plaintiff does not challenge this finding.

26 The task thus left for the panel was to assess, in the context of the plaintiff's mental condition, the impact of her elbow injury on her capacity for work. This involved, amongst other things, questions of medical judgment and of degree. In this regard, the panel expressly took into account a range of specified considerations,[18] all of which were relevant, as the plaintiff acknowledges. The panel accepted that the plaintiff was not fit to return to her previous position in the employ of the first defendant. It then turned to the requirements of the four occupations which had been suggested as being suitable for the plaintiff. These suggestions were contained in a detailed report which had been provided by a qualified organisation, namely IPAR, which had in turn interviewed the plaintiff herself for this purpose. The plaintiff and her legal advisers had been in possession of the IPAR report at all relevant times.[19] The panel noted that each of the four positions was classified as typically light and as not involving heavy lifting or above shoulder height activities and as providing needed rest breaks as negotiated. However, the panel noted that for two of the positions additional training would have been required. It excluded those two positions accordingly. On the other hand, no additional training was required for either of the other two positions, namely education aide and class room support worker/before and after school care coordinator. The panel determined that either of those two roles would be within the plaintiff's 'residual functional capacity to undertake'. More particularly, the panel observed that, based on its analysis of the functional requirements of the identified jobs in conjunction with the criteria for suitable employment, it considered that the 'nature, extent, and severity' of the plaintiff's relevant physical and psychiatric conditions were such that she was capable of performing suitable duties in either of the two specified positions on a reliable and consistent basis. From that, the panel concluded that the plaintiff had a current work capacity.

27 The panel went on to observe that contrary views had been expressed by three medical practitioners whose reports were before the panel, but the panel noted that it had come to a different conclusion regarding the plaintiff's capacity for work.

28 In the end, it does not matter whether the panel accepted everything the plaintiff told the panel about the nature and extent of her pain and disability and about restrictions on her activities of daily living. The panel was entitled to, and plainly did, exclude from its assessment the plaintiff's complaints of pain, disability and restriction insofar as those complaints were not related to her elbow injury or her diagnosed Chronic Adjustment Disorder with depressed mood.[20] Insofar as the plaintiff told the panel that she would be unable to carry out the physical functions involved in the two occupational roles in question, the panel was not obliged to accept, and plainly did not accept, that any such inability could be related to the plaintiff's elbow injury or to her Chronic Adjustment Disorder with depressed mood or to the combined operation of those two conditions.

29 When read in light of the principles stated by the High Court in Wingfoot,[21] the statement of reasons given by the panel is not inadequate. I accept the submission put by the first defendant that whether or not the plaintiff had a current work capacity is an evaluative question on which medical opinions could reasonably differ. The reasons behind the formation of an opinion by a medical panel on an evaluative question of that nature often cannot be extensively articulated.[22] I am not persuaded that in this instance the panel has failed adequately to explain the path of reasoning that led to the answers it gave in its certified opinion of 6 January 2015. Indeed I am satisfied that, by its statement of reasons (read with the certificate of opinion itself), the panel has provided reasons for its opinion that are legally adequate.

30 For these reasons, the proceeding will be dismissed.

[1] Magistrates' Court of Victoria complaint E11580734 filed 12 May 2014.

[2] It is common ground that the definitions set out here were the applicable ones and there is no suggestion that the medical panel made any error in this regard.

[3] Now revoked and replaced by the Supreme Court (General Civil Procedure) Rules 2015.

[4] Panel's Reasons for Opinion dated 6 January 2015 ('Panel's statement of reasons'), 5.

[5] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot'), 497-505 [42]-[63], [67].

[7] Plaintiff's amended written submissions dated 15 June 2015, [8].

[11] Notes made by one of the panel members, Dr Pianta, an orthopaedic surgeon, indicate that he contemplated at one stage that the plaintiff might have a 'chronic pain disorder'.

[12] The plaintiff's contentions as to the alleged inadequacy of the panel's statement of reasons have never included any complaint relating to the panel's assessment of her psychological or psychiatric condition. Rather, those contentions have been limited to the plaintiff's physical condition only. See grounds 9(a), (b) and (d) and see paragraphs 10 and 16 of the plaintiff's amended written submissions dated 15 June 2015.

[16] As mentioned above, at an early stage of the hearing on 7 March 2016 counsel for the plaintiff abandoned all contentions relating to the plaintiff's left shoulder. Compare North v Homolka [2014] VSC 478 (Ashley JA) [64(4)], [65], [98].

[18] Ibid 9-10, the considerations being designated (i)-(viii) inclusive.

[19] Cf North v Homolka [2014] VSC 478 (Ashley JA) [32], [99]-[107]. The plaintiff initially directed numerous grounds and extensive submissions to the meaning of the IPAR report and to the use made of it by the panel, but, as indicated above, all of those grounds and submissions have now been abandoned.

[20] For a similar view, see Haq v Dodgshun [2015] VSC 450 (John Dixon J), esp at [53].

[21] [2013] HCA 43; (2013) 252 CLR 480, 497-505 [42]-[63], [67].

[22] Cf discussion regarding the adequacy of judicial reasons in relation to an assessment of the credibility of a witness in Woolworths Ltd v Warfe [2013] VSCA 22 [121]-[142], and the authorities there cited.