Spotless Facility Services Pty Ltd v Trpceva [2016] VSCA 217

Court of Appeal (Vic)|2016-09-15|Before: Mr J, Osborn JA, Beach JA, Ferguson JA

ADMINISTRATIVE LAW - Judicial review - Appeal - Medical panel - Reasons - Adequacy of reasons - Whether reasons of medical panel adequate - Trial judge held medical panel's reasons inadequate - Reasons adequate - Application for leave to appeal granted - Appeal allowed.

ACCIDENT COMPENSATION - Workplace Injury - Referral to medical panel - Challenge to medical panel's determination - Trial judge quashed medical panel's determination - Trial judge erred in quashing medical panel's determination - Application for leave to appeal granted - Appeal allowed.

1 Ms Trpceva is a 61 year old woman who formerly worked for Spotless Facility Services Pty Ltd ('Spotless') as a hospital cleaner.

2 In November 2009, she suffered a work-related injury to her right shoulder involving a large full-thickness tear to the supraspinatus tendon. After an absence from work, she returned to modified duties and reduced hours. She ultimately underwent surgery to her shoulder in September 2010 and then returned to work on lighter duties.

3 On 21 February 2012, she reported to her general practitioner, Dr Ristevski, that she was suffering left-sided lumbar pain and left-sided thigh and leg pain.

4 In September 2012, she completed a Worker's Injury Claim Form, citing injury to her low back and left leg, together with stress and anxiety. In that form, the injury was said to have occurred and been 'first noticed' by her on 21 February 2012. In answer to the question 'what happened and how were you injured?', she wrote:

Heavy cleaning duties over time lifting/moving garbage bags + bins, confidential bins, goods in storeroom, spot cleaning with machine, scrub and buff machines

5 Subsequently, the relevant WorkCover insurer rejected the claim on the ground that she had not sustained an injury arising out of or in the course of her employment.

6 In June 2013, she commenced a proceeding in the Magistrates' Court alleging that she had suffered injury to her lower back and left leg together with anxiety and depression:

in and throughout the course of her employment with [Spotless] ... and with a designated injury date of 21 February 2012.

7 Spotless denied that Ms Trpceva had sustained an injury arising out of or in the course of her employment or to which employment was a significant contributing factor.

8 On 28 November 2014, Magistrate Wright referred medical questions to a medical panel pursuant to s 274(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 ('the WIRC Act').

9 On 19 March 2015, a Panel presided over by Associate Professor Peter Gibbons relevantly expressed the following opinions:

Question 1: What is the nature of [Ms Trpceva's] medical condition relevant to the following alleged injuries:

(a) recurrence, aggravation, acceleration, exacerbation or deterioration of lumbar disc disease;

(b) recurrence, aggravation, acceleration, exacerbation or deterioration of the lumbar spine at L415;

(c) anxiety and depression?

Answer: The Panel is of the opinion that [Ms Trpceva] is suffering from symptomatic lower lumbar degenerative change with referred symptoms to the left lower extremity but without objective clinical evidence of radiculopathy and an Adjustment Disorder with depressive features.

Question 2: Was [Ms Trpceva's] employment in fact or could it possibly have been a significant contributing factor to any of the alleged injuries?

Answer: In the Panel's opinion, [Ms Trpceva's] employment was not in fact, and could not possibly have been, a significant contributing factor to [Ms Trpceva's] current low back or psychiatric condition by way of any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease in any way.

10 The Panel also provided detailed written reasons for these opinions pursuant to its obligation under s 313(2) of the WIRC Act.

11 In May 2015, Ms Trpceva instituted a proceeding in the Supreme Court seeking an order in the nature of certiorari quashing the Panel's opinion.

(a) the Panel committed jurisdictional error by making a finding which was not open to it;

(b) the Panel failed to take into account a relevant consideration, namely that Ms Trpceva had suffered from leg numbness since 2008;

(c) the Panel erred in law on the face of the record by failing to provide adequate reasons for its opinion.

13 The matter came on for trial before Bell J, who concluded that the Panel's findings of fact were open to it, but that the Panel's statement of reasons was inadequate and that it was unnecessary to consider the grounds of review further.

14 Spotless now seeks leave to appeal Bell J's decision on the grounds that:

The primary judge erred in concluding that the statement of reasons of the Medical Panel was 'not detailed enough to enable this court to see whether the opinion of the panel does or does not involve an error of law'.
His Honour erred in making findings of fact, alternatively in stating propositions of fact, which were not open ... .[1]
His Honour's reasons for judgment are not adequate.

15 For the reasons set out below, we would uphold the appeal on ground 1. In our view, his Honour erred in his conclusion that the Panel's reasons were inadequate. We would grant leave to appeal and allow the appeal.

16 To explain our reasons for coming to this conclusion, it is necessary, first, to go to the Panel's reasons and, secondly, to the basis of the trial judge's reasoning.

17 The Panel first referred to aspects of agreed background facts:

The Panel noted from the Summary of Agreed Facts that the Plaintiff was born in Macedonia on 29 March 1954 (currently 60 years of age) and was employed as a cleaner at the Northern Hospital from 1998 and for the defendant from 2004. On or about 24 November 2009 the Plaintiff suffered a work-related right shoulder injury taking proceedings for common-law damages for pain and suffering and loss of earning capacity for the right shoulder injury. The Plaintiff's claim for her shoulder injury was thereafter resolved on 17 September 2012. From late 2009 the Plaintiff returned to work on modified duties and reduced hours and underwent operative intervention to the right shoulder on 23 September 2010. On 20 September 2012 the Plaintiff claimed compensation for injury to the low back, left leg and stress and anxiety. It is agreed that the Plaintiff continued to work up to February 2012 in lighter duties and on 21 February 2012 attended her local general practitioner with lumbar pain undergoing CT scans and referral to an orthopaedic surgeon and later for special neurological assessment with Dr Armin Drnda in September 2013. Surgery was recommended but due to unforeseen exigencies the Plaintiff was unable to undergo this procedure.

18 After referring to the procedural background to the referral, the Panel went on to summarise the history which it took from Ms Trpceva with the assistance of a professional Macedonian language interpreter:

The Plaintiff confirmed that she was employed by [Spotless] as a cleaner working at the Northern Hospital outlining the nature of her pre-injury (pre-right shoulder injury) duties. She described working on a full-time capacity undertaking general cleaning duties involving wards and administration areas and included mopping and vacuuming in addition to using scrubbing and buffing machines. She described a full range of cleaning duties that also involved dusting, surface cleaning and emptying of waste and garbage bins. The Plaintiff told the Panel that following the injury to her right shoulder her hours were reduced from 8 hours per day over a five-day working week to 5 hours per day with 10 minute rest breaks per hour over a three-day working week. She also told the Panel that she worked modified duties that was 'just dusting' and emptying 'small rubbish bins' using her left hand. She described general office cleaning involving dusting, wiping and emptying of small office bins.

The Plaintiff told the Panel that she had not suffered with any prior injuries to her low back nor any specific injuries to her low back during her period of employment at the Northern Hospital or with [Spotless].

The Plaintiff told the Panel that she sustained a work-related injury to her right shoulder in November 2009 requiring operative intervention on 23 September 2010. She said that following the work related injury to her right shoulder in November 2009 she was placed on restricted hours and modified duties and remained on modified duties with periods of time lost from work due to her right shoulder and requirement for operative intervention until February 2012 when she sought medical attention for her low back. The Plaintiff told the Panel that she attributed her low back and left leg symptoms to the nature of her employment that required lifting and moving of garbage bags and bins, moving of heavy confidential waste bins, spot cleaning with a machine and use of scrubbing and buffing machines.

19 There is no controversy as to the sequence of Ms Trpceva's work duties. The Panel referred next to the history of her symptoms:

In relation to her low back and left leg the Plaintiff was unsure of exact dates but believes she first began to experience symptoms in her left leg (intermittent numbness) from 2008 and low back symptoms from late 2009. She said there was no specific incident of injury in the workplace but rather a gradual onset of mild intermittent numbness in her left leg (without low back pain) that gradually worsened over the ensuing years without any specific incident of rapid symptom progression. She said that she noticed left-sided low back pain associated with the left leg numbness as the years progressed. She attributed the onset of low back symptoms to the generally heavy nature of her work as a cleaner. The Panel noted the Plaintiff's affidavit sworn on 20 November 2014 which indicates that she definitely had lower back symptoms that were present from late 2009 and in early 2010 she had some symptoms down her left leg and the side of her foot with investigations in April2010 for symptoms in her left foot. The affidavit indicates that as her right shoulder began to improve after surgery her back symptoms became more noticeable. The Panel noted from the contemporaneous medical records of the Plaintiff's general practitioner that she was seen on 24 April 2010 with left lateral ankle pain and swelling which had been severe for the past week and she was sent for x-rays of the left ankle which the Panel noted was reported as normal in an entry dated 29 April 2010. The Panel considered that left lateral ankle pain with swelling, as recorded by the Plaintiff's general practitioner is more consistent with a local condition at the left ankle rather than referred pain from the low back as the general practitioner noted swelling which would not be the case for referred pain from the low back. The Plaintiff told the Panel that, at this time, she had been using steel wool to clean which she placed beneath her foot and cleaned with rotary movements of her left leg and foot.

20 We interpolate that it is the initial history of symptoms recorded in this paragraph which was central to the reasoning of the trial judge.

21 The Panel went on to elaborate Ms Trpceva's history as follows:

The Plaintiff told the Panel that her low back symptoms were initially intermittent but gradually worsened over time becoming more noticeable as time progressed but without any history of focal symptomatic worsening or injury. The Plaintiff told the Panel that her back was stiff and sore on waking and at other times during the day but also at work whilst using her left hand to dust. The Panel noted that the onset of the Plaintiff's low back symptoms occurred during a period of time when she was on restricted hours and modified duties for her right shoulder injury and not when she was working a full time 40 hour week undertaking normal pre-injury duties including use of scrubbing/cleaning machines. The Plaintiff told the Panel that she continued at work undertaking her modified duties on restricted hours with Increasing low back and left lower extremity symptoms until they reached a severity that she sought medical attention in February 2012. She said there was no specific incident of injury occurring in February 2012 but rather a gradual progression of symptoms over time. The Plaintiff told the Panel that she believed she remained at work until mid-2012 and has not returned to work since this time due to ongoing low back symptoms. The Plaintiff told the Panel that she ceased work in mid-2012 due to worsening low back and left leg symptoms and not as a result of her right shoulder injury.

22 The Panel's finding, which it noted, as to the onset of Ms Trpceva's low back symptoms was entirely consistent with the initial oral evidence of Ms Trpceva to the effect that her low back symptoms emerged in late-2009. That date was also entirely consistent with Ms Trpceva's affidavit evidence. In turn, Ms Trpceva's evidence to the Panel was that, despite the onset of back pain, she continued at work performing modified duties until February 2012.

23 The Panel then dealt with Ms Trpceva's treatment and further progress:

In relation to treatment for her low back the Plaintiff told the Panel that she was referred for CT scans and for orthopaedic and later neurosurgical review. She said she was sent for MRI scans and advised that she may benefit from surgical intervention. She said that surgery had been planned initially for the end of 2013 but the hospital cancelled the surgery. She said that further surgical intervention was planned for March 2014 but she delayed this as she had commenced physical therapy treatment and she wanted to see whether this would improve her symptoms. She said she has not undergone any surgical intervention and not received any nerve root injections. The Plaintiff told the Panel that she currently attends for physiotherapy twice monthly.

The Plaintiff told the Panel that despite cessation of employment in 2012 her low back symptoms have continued to worsen over time.

The Plaintiff told the Panel that she is currently prescribed Lyrica (75 mg once a day), paracetamol tablets (as required), Endep (10 mg at night) and also uses a rubefacient/anti-inflammatory cream locally applied. She said she is also prescribed Atacand and Ostelin Vitamin D.

24 After summarising further discussion that the Panel had with Ms Trpceva concerning her capacity for work, the Panel went on to summarise her current complaints of symptoms:

The Plaintiff told the Panel that currently she experiences left-sided low back pain that radiates as an intermittent burning pain to her left buttock and to the posterior aspect of her left thigh. She described numbness over the lateral aspect of her left foot and intermittent 'cramping' of her toes. She said that numbness can involve the entirety of her left leg. The Plaintiff described a sitting and walking tolerance of 60 to 90 minutes and pain aggravated by bending and lifting. She said that she is uncomfortable standing in one position and tends to keep moving and that pain is eased with a warm shower. The Plaintiff described difficulty rising from a sitting position as her left leg becomes numb after prolonged sitting. She described nightly disturbance of sleep due to low back pain but she remains independent in her activities of daily living.

25 The Panel then set out its findings on physical examination of Ms Trpceva:

On physical examination the Panel noted that the Plaintiff walked with a slow and hesitant gait limping slightly on her left leg. She described low back pain on attempting to heel and toe weight bear but the Panel noted that she was capable of both heel and toe weight bearing. There was a normal lumbar lordosis and she stood without scoliosis or lateral list. Active ranges of lumbosacral movement were grossly restricted by complaint of pain and inconsistent with more normal active ranges of motion identified when distracted and on changing position and posture. There was no obvious spasm/guarding. Widespread tenderness was reported on palpation centrally over the lumbar spine but maximal over the lower lumbar spine. Neurological assessment of the lower extremities identified normal and symmetrical reflexes with downgoing plantar responses. Assessment of sensation to pinprick and blunt identified reported global diminution of sensation to pinprick in a stocking (non-dermatomal) type distribution below the left knee. Assessment of power identified give-way/collapsing weakness over multiple myotomes in both lower extremities but without evidence of focal myotomal weakness. There was no clinical evidence of focal unilateral wasting. The Panel noted no overt wasting of the right scapular or periscapular musculature.

26 It further summarised the results of the medical imaging provided to it:

The Panel reviewed all available diagnostic imaging and reports. X-rays of the left ankle dated 27 April 2010 were considered normal. CT scans of the lumbar spine dated 23 February 2012 were reported to show multilevel disc and facet joint degeneration. At L4-5 there is moderate to marked canal stenosis and rightsided foraminal stenosis and at L5-S1 there is moderate central canal stenosis and moderate left sided foraminal stenosis. MRI scans of the lumbar spine dated 3 May 2013 were reported to show a small bony canal at L4-5 along with moderate facet joint degenerative change and a broad-based disc protrusion combining to cause moderately severe central canal stenosis and moderately severe bilateral proximal exit foramina/ stenosis. At L5-S1 there is quite marked facet joint degenerative change and a focal disc extrusion centrally on the background of a broad-based disc protrusion causing moderate central canal stenosis and moderately severe subarticular recesses stenosis bilaterally. MRI scans of the lumbar spine dated 12 October 2013 were reported to show findings consistent with multilevel disc and facet joint degeneration with moderate to severe central canal stenosis at L4-5 and severe compromise of the exiting left L5 nerve root at L5-S1 and moderate to severe central canal stenosis with compromise of both traversing 81 nerve roots. The Panel viewed the scans and agreed with the content of the reports.

The Panel did not consider any additional diagnostic imaging necessary in order for it to be able to complete its assessment of the Plaintiff and answer the medical questions.

Based upon the Plaintiff's history and the Panel's findings on examination and review of imaging and imaging reports the Panel concluded that the Plaintiff is suffering from symptomatic lower lumbar degenerative change with referred symptoms to the left lower extremity but without objective clinical evidence of radiculopathy.

28 There is no dispute as to the correctness of this diagnosis of Ms Trpceva's current condition.

The Panel noted evidence of multilevel lumbar degenerative change in imaging of the spine dated 23 February 2012, 3 May 2013 and 12 October 2013 which the Panel considered was long-standing, well established and would have pre-existed the onset of low back symptoms by many years. The Panel noted an absence of history from the Plaintiff of prior low back pain complaints prior to 2009 when the Plaintiff was undertaking a full range of normal duties. The Plaintiff offered a history that there was no specific incident of injury to her low back occurring at work but rather a gradual onset of initially left leg numbness and later low back symptoms that were initially mild and intermittent but which worsened over time and whilst she was on modified duties. These symptoms continued to progressively worsen without history of injury whilst the Plaintiff remained on modified duties and has continued to worsen despite cessation of employment in mid-2012.

30 We interpolate that we take this paragraph to state the critical evidentiary matters upon which the Panel relied in forming its opinions. Insofar as the emergence of symptoms was concerned, it was the absence of low back pain complaints prior to 2009 during the period Ms Trpceva was performing full duties, which the Panel identified as relevant. This fact was not in issue.

31 The Panel went on to express its conclusions based on the facts it had identified:

The Panel considered that the onset of low back symptoms with referred pain to her left lower extremity is entirely consistent with a gradual progression of constitutional degenerative changes in the low back. There is no history of specific workplace injury with the Panel noting onset of symptoms whilst on modified duties and progressive worsening of symptoms without improvement in symptoms on cessation of employment. An absence of improvement following cessation of employment argues against there being any specific and ongoing aggravating or exacerbating features related to employment. Reported worsening of symptoms in the absence of workplace duties similarly argues against employment being a significant contributing factor to the Plaintiff's injury or symptoms and is entirely consistent with the natural progression of constitutional degenerative change. Based upon the Plaintiffs history of gradual symptom onset entirely consistent with constitutional degenerative change, progression of symptoms whilst on modified duties for a right shoulder injury and continued progression of symptoms after cessation of work activities the Panel concluded that the Plaintiff's progression of complaint of low back symptoms over time reflected purely the natural effects of ageing in a low back demonstrated to have well established degenerative change prior to symptom onset and that the Plaintiff's employment generally and workplace injury to the right shoulder did not affect the low back and underlying degenerative change in any way.

The Panel therefore concluded that the Plaintiff's employment was not in fact, and could not possibly have been, a significant contributing factor to the Plaintiff's current low back condition with referred symptoms to the left lower extremity but without clinical evidence of radiculopathy by way of any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease in any way.

32 We further interpolate that the factual matters which the Panel expressly identified as the bases of its opinion were again not in issue, namely, gradual symptom onset, progression of symptoms whilst on modified duties, and continued progression of symptoms after cessation of work.

33 The Panel also directly addressed the principal medical evidence upon which Ms Trpceva relied:

The Panel noted the medical reports of Dr Jim Ristevski (treating general practitioner) dated 28 April 2014 in which he opines that the Plaintiff's employment was heavy in nature and most likely contributed to her back injury. The Panel disagreed with Dr Ristevski for the reasons outlined. The Panel also noted the medical report of Mr Armin Drnda (treating neurosurgeon) dated 24 September 2013 in which he indicates that the Plaintiff worked as a cleaner in the Northern Hospital for 16 years and was exposed to repetitive strain and there is no doubt that among other factors that this was a significant contributing factor. A subsequent report from Mr Drnda dated 21 October 2013 indicates that the Plaintiff is obese and that this is a major burden for her spine. The Panel considered that there are a number of factors contributing to the current condition of the Plaintiff's low back that are constitutional and not work related with the Panel again noting that the Plaintiff's low back symptom onset occurred in the presence of constitutional degenerative change and whilst on modified duties that were light nature and with restricted hours and not of a nature that they could cause any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease of the low back.

34 It can be seen that the Panel affirmed its core reasons and again referred to the time of onset of Ms Trpceva's low back symptoms.

The Panel noted the submissions of the Plaintiff and the Defendant and considers that the issues raised in their submissions have been addressed appropriately in the Panel's Reasons for Opinion.

36 Three preliminary observations can be made about these reasons:

(b) the critical reasoning turned upon the combined assessment of Ms Trpceva's history, presentation on physical examination and the medical imaging;

(c) the Panel reasoned that medical imaging showed long-standing and well-established degeneration which, in the Panel's view, would have pre-existed the onset of low back symptoms by many years. Nevertheless, there was no history of low back pain complaints prior to 2009. The history of Ms Trpceva's development of symptoms was consistent with a gradual progression of constitutional degenerative changes. In particular, the gradual onset of symptoms, the gradual progression of symptoms whilst on modified duties and the continued gradual progression of symptoms after cessation of work, supported this conclusion.

37 The trial judge concluded that the Panel's reasons were inadequate because they did not address Ms Trpceva's oral evidence to the Panel that she first began to experience symptoms in her left leg from 2008.

38 In so concluding, his Honour quoted the paragraph recording the history given by Ms Trpceva but omitted the opening words:

In relation to her low back pain and left leg the plaintiff was unsure of exact dates but believes ...

It can be seen that the panel here has set out (without reservation) Ms Trpceva's account that she first began to experience symptoms in her left leg 'from 2008'. At that time she was working full time as a cleaner for Spotless and had been for many years. This account is plainly consistent with her contention that the back injury was work related.[2]

40 In turn, his Honour stated that the Panel went on to answer question 2 adversely to Ms Trpceva 'without again referring to the left leg symptoms experienced by her in 2008'.

I accept the submission made for Spotless that there was evidence upon which the panel could have found, as it did, that Ms Trpceva's back injury became symptomatic after her shoulder injury occurred in about November 2009. But this finding necessarily involves consideration of the whole of the evidence with respect to that subject, including Ms Trpceva's account that she became symptomatic from 2008. Within the scope of its jurisdiction to opine, the panel might (after due consideration) reject that account as false, unreliable or contrary to the whole of the evidence. Alternatively, the panel might accept it. The consequences of rejecting or accepting the account are for the panel to consider and determine. But the path of the panel's reasoning would not be sufficient without disclosing its reasoning in relation to this issue. Even read beneficially, as it must be, the statement of reasons of the panel does not set out, implicitly or explicitly, how it so reasoned. I am therefore driven, with some reluctance, to conclude that the statement is not detailed enough to enable this court to see whether the opinion of the panel does or does not involve an error of law. There are no discretionary reasons for refusing relief. Therefore the opinion must be quashed by an order in the nature of certiorari for error of law on the face of the record and the referred questions will be remitted to a differently constituted panel for opinion in accordance with law.[3]

42 There are, in our view, two difficulties with the trial judge's conclusions.

43 First, as Spotless submits, it is plain that, when the Panel's reasons are read as a whole, it did not unreservedly accept the history given by Ms Trpceva concerning symptoms in her left leg in 2008. Rather, the Panel made clear that what Ms Trpceva said was that she was unsure of this date but expressed a belief about it. The Panel immediately went on to refer to Ms Trpceva's affidavit evidence which described 'definite' low back pain late in 2009 and some symptoms in the left leg in early 2010.[4] The Panel then referred to the contemporaneous medical records and concluded that they did not confirm symptoms of referred pain in the leg in 2010. In our view, when they are read as whole, it is implicit in the Panel's reasons describing this history that the Panel did not accept as reliable Ms Trpceva's belief that she first experienced symptoms of numbness in her left leg in 2008. Moreover, it is unsurprising that the Panel did not dwell further on this aspect of the matter because the written submissions made to the Panel on behalf of Ms Trpceva were to the effect that Ms Trpceva had experienced symptoms in her lower back and left leg 'since approximately April 2010'. This is the date that the Panel addressed by reference to the contemporaneous records. The Panel concluded that, at that point in time, the symptoms described were not those of referred back pain.

44 More fundamentally, however, the Panel's central reasoning as to the probable course of Ms Trpceva's back condition was directly responsive to the definite history given as to the emergence of lower back pain in late-2009 and gradual symptomatic onset. There is no proper reason to conclude that that history, coupled with the findings upon examination and the medical imaging, did not justify the reasoning and conclusion which the Panel stated that it did actually adopt and reach. It was open to the Panel to base its opinion upon the complex of matters which it did.

45 The Panel's reasoning disclosed a clear path by reference specifically to the history given of absence of lower back pain prior to late-2009, coupled with the other evidence objectively available to it. It stated the basis of its opinion and it was not required to do more. As discussed by the High Court in reference to the cognate scheme in the Accident Compensation Act 1985:

The reasons that ... the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.[5]

46 It follows that the reasons ground upon which the trial judge found for Ms Trpceva should have been rejected.

47 The proposition that the Panel's findings of fact were not open to it was not pressed at trial and was rejected by the trial judge. It is not pursued before us.

48 It remains to address the last ground of review which, as we have noted, the trial judge found it unnecessary to consider. This is the proposition that the Panel failed to take into account the history given by Ms Trpceva of leg symptoms in 2008. There are a series of answers to this proposition.

49 First, the statement of a belief as to symptoms in circumstances where Ms Trpceva was 'unsure of exact dates' was something the Panel was entitled to address on the evidence as a whole, and, in particular, on the basis of Ms Trpceva's own affidavit evidence concerning the issue and the contemporary medical records. This is what the Panel did.

50 Secondly, the evidence of leg problems in 2008 was vestigial. As Spotless submits:

(a) The claim form completed by [Ms Trpceva] stated that the condition was first noticed on 21 February 2012;

(b) [Ms Trpceva] first reported low back and left leg symptoms to her treating medical practitioners on 21 February 2012;

(c) Mr Roderick Cunningham recorded a history in early 2013 that [Ms Trpceva's] symptoms of left-sided sciatica had been 'present for about 2 years';

(d) Similarly, Mr Armin Drnda recorded a history in September 2013 of 'probably two years of back pain and pain in the left leg';

(e) Dr Gregory White recorded a history from that 'since the shoulder injury she also developed pain in her left shoulder, her back, and her left leg';

(f) Mr Michael Troy recorded a history that 'she had problems with her back in mid-2012 and it was mostly severe in September 2012, by which time she had pain down the left leg';

(g) At a vocational assessment conducted in mid 2011 it was noted that 'she has lower back pain which travels down her left leg which she stated may be due to the fact that while she was working she used to use steel wool to buff the floor with her leg and could have added to the symptoms';

(h) As noted by the Panel, the affidavit of [Ms Trpceva] sworn 20 November 2014 was to the effect that she 'had lower back symptoms that were present from late 2009' and that in early 2010 she 'had some symptoms down my left leg and the side of my foot';

51 Thirdly, the case put to the Panel by way of written submission was based upon the emergence of back pain and associated leg pain in April 2010 and no reference was made to alleged symptoms of leg pain in 2008.

52 Fourthly, the Panel did in fact record the evidence Ms Trpceva gave and there is no reason to suppose that it did not take account of it, having regard to the circumstances as a whole which we have set out above.

53 For the above reasons, the application for leave to appeal should be granted, the appeal allowed, the orders of the trial judge set aside and, in lieu thereof, the respondent's proceeding should be dismissed.

54 It is unnecessary to further address grounds 2 and 3 of appeal, save to note that, insofar as it is submitted the trial judge materially misstated propositions of fact, it seems to us that that submission goes critically to his Honour's characterisation of aspects of the Panel's reasons which we have addressed in our discussion of ground 1. Insofar as ground 3 is concerned, we do not accept that his Honour's reasons were inadequate. The real question in this appeal is whether his Honour erred for the reason raised by ground 1.

[1] It is not necessary in these reasons to set out the specific findings in respect of which complaint is made.

[2] Trpceva v Spotless Facility Services Pty Ltd [2016] VSC 233 ('Reasons') [7].

[4] The stated purpose of the affidavit was that Ms Trpceva wished to clarify 'when I was having symptoms and what those symptoms were over time'. Affidavit sworn 20 November 2014 [12].

[5] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499 [48].

Workplace Injury Rehabilitation and Compensation Act 2013

Compensation Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)