|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Victoria |
Last Updated: 7 May 2021
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
|
|
|
|
|
|
|
|
|
---
|
JUDGE:
|
|
|
WHERE HELD:
|
|
|
DATE OF HEARING:
|
|
|
CASE MAY BE CITED AS:
|
|
|
MEDIUM NEUTRAL CITATION:
|
ADMINISTRATIVE LAW – Application for extension of time under
r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015
(Vic) – Whether special circumstances exist – Garrett v Legal
Services Commissioner [2015] VSC 465, referred to – Application by a
worker to quash the opinion of a medical panel concerning the medical condition
of the worker
– Whether the panel identified an evidentiary basis upon
which it could be positively satisfied of its conclusion – Alcoa
Holdings Ltd v Lowthian [2011] VSC 245, referred to – Wilson v
Liquorland Australia Pty Ltd [2014] VSC 545 and Bazouni v State of
Victoria [2019] VSC 407, distinguished – Leemark Fire Protection
Pty Ltd v Malios [2014] VSC 654, applied – Whether the panel failed to
take into account relevant considerations – Whether the panel took account
of
irrelevant considerations – Adequacy of reasons – Whether the
panel failed to disclose a path of reasoning to its conclusion
– Dundar
v Bas [2019] VSCA 315, referred to – Wingfoot Australia Partners
Pty Ltd & Anor v Kocak & Ors [2013] HCA 43; (2013) 252 CLR 480, referred to –
Accident Compensation Act 1985 (Vic) ss 91(7)(c) and 98C –
Application for judicial review dismissed.
---
|
APPEARANCES:
|
Counsel
|
Solicitors
|
|
For the Plaintiff
|
Maurice Blackburn
|
|
|
|
|
|
|
For the First Defendant
|
IDP Lawyers
|
Introduction and background
1 The plaintiff (‘Ms Wojcik’)
has applied for the Court to quash the opinion of the third defendant, the
members of a
medical panel (‘Panel’), with respect to a heart
condition said to have been aggravated during the course of her employment
with
the first defendant (‘employer’). As the application was commenced
more than sixty days after the date of the Panel’s
opinion
(‘Opinion’), Ms Wojcik requires an extension of time pursuant
to r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015
(Vic) (‘Rules’).
2 Ms Wojcik commenced
with the employer as an interstate manifest clerk in or about late 2012. During
the course of her employment
from the latter part of 2013, Ms Wojcik was
subjected to a stressful work environment and suffered bullying and
harassment.[1]
3 In
2006, Ms Wojcik consulted a cardiologist after developing chest pains. No
treatment was prescribed, and her symptoms abated.
An electrocardiogram
(‘ECG’) in 2011 disclosed no abnormalities. There is a conflict in
the materials as to when she
later developed chest pains, but it was no later
than early 2014, following which she attended the same cardiologist. Further
investigations
resulted in the discovery of cardiac dysfunction, and on
6 October 2014 she underwent cardiac bypass surgery. She ceased employment
in July 2014, and has not engaged in regular employment since. She reports
intermittent chest pain, shortness of breath, fatigue
and aching limbs and
joints. She suffers from a number of other physical and psychological
conditions, and is now in receipt of
a Disability Support
Pension.
4 On or about 1 September 2016, Ms
Wojcik completed a WorkCover Worker’s Injury Claim Form in respect of her
heart condition.
5 On or about 31 March 2017, Ms
Wojcik made a claim for an impairment benefit for non-economic loss pursuant to
s 98C of the Accident Compensation Act 1985 (Vic)
(‘Act’) with respect to “work-related stress leading to
aggravation of a heart
condition”.[2]
6 On
5 September 2017, Professor Michael Jelinek, a cardiologist, examined
Ms Wojcik for the purposes of enabling the employer’s
claims agent,
CGU Workers’ Compensation (Vic) Ltd (‘CGU’) to make an
assessment of her application for an impairment
benefit.
7 Professor Jelinek prepared a detailed
report (‘Jelinek report’), observing that “this is an
incredibly complex
case which has taken me many hours of evaluation”. In
relation to the question of permanent impairment, he concluded as follows:
The effects of her cigarette smoking and pre-existing arthritis existed before the accidental discovery of [myocardial infarction] by ECG done for psychiatric reasons. I regard these factors of being of major importance in limiting Joanne’s walking ability. These factors would account for 28% of the pre-existing impairment.
Thus, [Ms Wojcik] has 2% work-related permanent impairment.
8 Ms Wojcik was also assessed by Dr Steven
Adlard, a psychiatrist. Dr Adlard also prepared a detailed report based
upon his examination
of Ms Wojcik and his review of her extensive medical
records. Dr Adlard opined that Ms Wojcik suffered from an
exacerbation of a
pre-existing panic disorder with agoraphobia, an exacerbation
of a pre-existing depressive disorder, and a recurrence of a pre-existing
problem gambling, with a whole-person impairment of twenty per cent, half
of which was attributable to her employment with the employer.
9 The combined effect of the assessment of Ms
Wojcik’s physical and psychiatric injuries provided a whole-person
permanent impairment
of twelve per cent. Based upon these
assessments, Ms Wojcik did not satisfy the threshold level for compensation
for either her
physical or psychiatric impairment said to be referrable to her
employment.
10 On 12 September 2017, CGU issued a
determination with respect to Ms Wojcik’s impairment benefits claim. CGU
determined that
Ms Wojcik suffered whole-person physical impairment of
two per cent and psychiatric whole person impairment of
ten per cent, comprising
a combined physical and psychiatric
whole-person impairment of twelve per cent. Ms Wojcik subsequently
disputed this determination,
insofar as it concerned the physical assessment,
and accepted the psychiatric assessment.
The Panel and its reasons
11 On 9 November 2017, CGU referred the following questions to the Panel:
12 In her letter to the Panel enclosing the referral materials (‘referral letter’), the claims manager for CGU stated, among other things, as follows:
In respect of the accepted exacerbation of a pre-existing psychiatric condition leading to aggravation of a heart condition injury, liability is accepted only for the incident of 1 January 2014, and not in respect of any unrelated cause. In this respect, we note the following:
13 The referral letter concluded as follows:
We ask that the Panel draw their attention to the following evidence that validates the agent determination of impairment:
When providing its reasons, pleasure ensure the Panel specifically addresses the above matters.
14 The Panel was constituted by Dr Jack
Owczarek, a general practitioner, and Dr Peter Habersberger, a
cardiologist.
15 At the time, Ms Wojcik was
represented by Tim Connor Law. Both parties provided medical reports and
written submissions for the
consideration of the Panel (‘referral
materials’), which are in evidence in this proceeding. CGU relied upon
the submissions
made in the referral letter, extracted above.
16 In a letter to the Panel dated 16 November
2017, Tim Connor Law submitted in summary, as follows:
(a) Ms Wojcik claims a permanent impairment benefit in relation to work-related stress which led to the aggravation of her heart condition;
(b) as part of the assessment process, Ms Wojcik was examined by Professor Jelinek;
(c) in his report dated 8 September 2017, Professor Jelinek concluded that Ms Wojcik sustained an “asymptomatic apical myocardial infarction” falling within Class 3 of Table 6, Chapter 6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘Guides’);
(d) Professor Jelinek accepted that Ms Wojcik’s employment was a significant contributing factor to the myocardial infarction;
(e) Ms Wojcik’s categorisation as having a Class 3 injury, to which her employment was a significant contributing factor, should entitle her to be assessed as having 30 per cent impairment in accordance with Table 6, Chapter 6 of the Guides;
(f) Professor Jelinek regarded Ms Wojcik’s pre-existing arthritis as of major importance in determining her walking ability and therefor concluded that this factor, along with Ms Wojcik’s history of smoking accounted for 28 per cent of the pre-existing impairment;
(g) any reference to Ms Wojcik’s arthritis is irrelevant, as it is unconnected to her myocardial infarction;
(h) Ms Wojcik’s history of smoking is also not relevant, given Professor Jelinek accepted that Ms Wojcik’s employment was the significant contributing factor to the onset of her myocardial infarction.
17 In a further letter to the Panel dated 6 December 2017, CGU stated as follows:
The report of Dr Jeremy Hammond Cardiologist, from October 2016, said that Ms Wojcik reported being diagnosed with coronary artery disease, subsequently undergoing coronary artery bypass surgery. He said a combination of factors had caused her atherosclerosis, including a long history of smoking and hypertension and he said that “it is plausible that her workplace may have acted as an aggravating factor, to underlying condition of coronary atherosclerosis.”
The worker was examined by Dr Adlard on 30/08/2017 and in his report Dr Adlard noted: the worker has a prolonged psychiatric history going back to 1998, when she was involved in a motor vehicle accident. From the supplied material and the history given by Ms Wojcik, she has a pre-existing Panic Disorder with Agoraphobia, along with recurrent periods of depressed mood, likely recurrent Major Depressive disorder based on the notes. She has been treated with antidepressants probably continually from 1989 onwards and has seen four separate psychiatrists and a psychologist. There is a background history of excessive gambling. She has a range of medical problems in the past as well and he notes she first had cardiac symptoms in 2006, her sister had a heart attack in her late 30’s, she has a history of hypertension and she has been a smoker throughout her life. Dr Adlard suggests, given her multiple risk factors and multiple stressful life events well before the workplace issues, that the impact of the psychological stress she suffered in late 2013/early 2014 (incident) on her coronary artery disease is possibly minimal.
In consideration of the above, we consider that apportionment of impairment applied by Dr Jelinek, ie 28% pre-existing impairment and 2% work related impairment is correct.
....
18 Ms Wojcik was examined by the members
of the Panel on 8 February 2018.
19 The Panel
provided the Opinion on 15 February 2018. The Panel concluded as follows:
(a) Ms Wojcik has a three per cent whole-person impairment resulting from the accepted exacerbation of a pre-existing psychiatric condition leading to the aggravation of a heart condition injury when assessed in accordance with s 91 of the Act. The degree of impairment is permanent; and
(b) Ms Wojcik does not have an accepted injury which resulted in a total loss injury mentioned in the table in s 98E(1) of the Act.
20 The Panel provided reasons for the Opinion, canvassing the following matters:
(a) the background to Ms Wojcik’s claim against the employer, being her psychiatric and heart conditions;
(b) her medical history;
(c) her occupational history;
(d) her work capacity;
(e) her current symptoms;
(f) the Panel’s review of the cardiac investigations carried out in relation to Ms Wojcik;
(g) a report of the Panel’s examination of Ms Wojcik;
(h) the Panel’s review of the report of the Jelinek report;
(i) the Panel’s consideration of the other medical reports and submissions provided to it; and
(j) the Panel’s conclusions and opinion as to Ms Wojcik’s whole-person impairment.
21 In relation to Ms Wojcik’s history, the Panel noted the following:
(a) it is accepted that Ms Wojcik sustained an injury described as exacerbation of a pre-existing psychiatric condition leading to aggravation of a heart condition during the course of employment, with a designated injury date of 1 January 2014;
(b) in 1988, Ms Wojcik was involved in a motor vehicle accident, as a result of which she developed significant psychiatric sequelae, including a panic disorder and depression. Ms Wojcik consulted a number of psychiatrists and psychologist and was prescribed a range of anti-depressant medications;
(c) in 1995, Ms Wojcik was diagnosed with hypertension during her pregnancy;
(d) in 2006, she developed chest pain in the setting of anxiety and attended cardiologist Dr Mark Krawczyszyn, but received no treatment. Her symptoms fully resolved and she had no further pain until early 2014. However, the Panel noted a letter from Dr Krawczyszyn dated 17 February 2014 stated that Ms Wojcik “has had chest pain for about three years and it has slowly been getting worse”. Ms Wojcik told the Panel that this statement was incorrect;
(e) Ms Wojcik had an ECG on 26 November 2011, which, apart from non-specific T-wave flattening in the anterior leads, did not show any abnormalities;
(f) in late 2013 Ms Wojcik experienced significant psychological distress as a result of workplace bullying and harassment;
(g) towards the end of December 2013, Ms Wojcik’s treating psychologist requested a routine ECG because Ms Wojcik was taking Tofranil for the treatment of her psychiatric condition. The ECG, dated 27 December 2013 showed sinus rhythm at the rate of 93 bpm and widespread anterolateral T‑wave inversions in the pre-cordial leads, which the Panel considered was a new and abnormal finding when compared to the previous ECG in 2011;
(h) in late December 2013 or early January 2014 Ms Wojcik developed chest pain and shortness of breath on exertion, and underwent the following cardiac investigations:
(i) an ECG on 12 February 2014, which revealed mild segmental left ventricle systolic dysfunction with apical hypo kinesis and no other significant abnormalities;
(ii) a CT calcium scoring test which returned a score of zero; and
(iii) a stress-echocardiogram on 16 May 2014, which indicated left anterior descending (‘LAD’) territory ischaemia with a mildly reduced exercise capacity and moderate segmental left ventricle diastolic dysfunction;
(i) on 28 August 2014, Ms Wojcik underwent cardiac catheterisation which revealed small LAD with subtotal occlusion, collateralised from small right coronary artery (‘RCA’) with tight mid-vessel lesion;
(j) Ms Wojcik underwent cardiac bypass surgery, and the operation report dated 6 October 2014 described two coronary artery bypass grafts;
(k) Ms Wojcik has suffered from intermittent chest pains since the bypass operation. She presented to various hospital emergency departments on 20 December 2014, 13 July 2015 and 12 February 2016 but there was no evidence of myocardial infarction on any occasion;
(l) Ms Wojcik was investigated with stress-echocardiograms on 16 May 2015 and 8 August 2016 and both tests were negative for ischaemia;
(m) in December 2017 she lost consciousness and fell at home. She was investigated with ECGs, troponins and a brain CT scan which were normal;
(n) Ms Wojcik commenced smoking at the age of 17 and smoked approximately 25 cigarettes per day. She quit smoking at the time of her cardiac bypass surgery but resumed smoking fourteen months later and at the time of the Panel’s examination was smoking twenty cigarettes per day;
(o) in 2008 she was diagnosed with sleep apnoea and began using a continuous positive airway pressure machine following her cardiac bypass surgery; and
(p) Ms Wojcik’s sister suffered a heart attack at the age of 37.
22 The Panel described the current
symptoms and treatments reported to them by Ms Wojcik, including
intermittent chest pains, joint
pain, poor sleep, and shortness of breath, along
with the medications taken by Ms Wojcik and the medical practitioners she
consults
on a regular basis.
23 The Panel went on to
report upon its examination of Ms Wojcik, as follows:
The worker weighed 75 kilograms and she was 154.4 centimetres tall (body mass index of 31.4 indicating obesity). Recumbent blood pressure was recorded initially at 128/64 mmHg in later at 122/70 mmHg. Standing blood pressure was 120/78 mmHg. The heart rate was 96 bpm and the rhythm was regular. Jugular venous pressure was not elevated. The chest was clear on auscultation. There were two heart sounds and no murmurs. Ankles were not swollen. Here was no radio-femoral pulse delay. Distal lower limb pulses were present and of normal amplitude.
24 The Panel reviewed biochemistry and investigation reports, as follows:
The Panel noted the biochemistry report dated 14 July 2010 by Dr Ken Sikaris who reported cholesterol of 5.1 mmol/L, triglycerides of 4.0 mmol/L, HDL cholesterol of 0.94 mmol/L and LDL cholesterol of 2.3 mmol/L which the Panel considered indicated dyslipidaemia
The Panel also noted the following investigation reports contained in the referral:
25 The Panel went on to state as follows:
The Panel concluded that the worker is suffering from an aggravation of pre‑existing, asymptomatic ischaemic heart disease, surgically treated, in the setting of family history of ischaemic heart disease, hypertension, sleep apnoea, dyslipidaemia and smoking history, and surgical scarring, relevant to the accepted exacerbation of a pre-existing psychiatric condition leading to aggravation of a heart condition injury.
26 The Panel provided the following reasons for its conclusion:
The Panel assessed 30% whole person impairment for low Class 3 impairment for coronary heart disease where the patient has a history of myocardial infarction documented by appropriate laboratory studies and the patient has recovered from coronary artery surgery but continues to require treatment and has ongoing symptoms after moderately heavy physical exertion, pursuant to Table 6 of Section 6.2 of Chapter Six of the Guides.
The Panel also assessed impairment for surgical scarring in accordance with Sections 13.4 and 13.5 of Chapter Thirteen and considered that the scar is tender, the scarring is clearly visible, treatment is required for the scars but there is no limitation in the performance of activities of daily living due to the scarring. The Panel concluded that there is a Class 1 skin impairment on 1% whole person impairment resulting from the surgical scarring when assessed pursuant to Table 2 of Chapter Thirteen.
The Panel considered that there is no other medical condition or impairment attributable to the accepted exacerbation of a pre-existing psychiatric condition leading to aggravation of a heart condition injury when assessed in accordance with the Guides.
The Panel understands that, in performing the task of assessing any unrelated impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing or unrelated impairment which is to be disregarded.
In forming its view regarding apportionment for any unrelated condition the Panel noted that the worker has strong family history of ischaemic heart disease, past history of dyslipidaemia, hypertension, sleep apnoea and prolonged smoking. The Panel considered that ischaemic heart disease is a constitutional condition with multifactorial determinants such as a genetic predisposition (family history and past history of dyslipidaemia), contributing medical conditions (hypertension and sleep apnoea), in addition to lifestyle/environmental influence (cigarette smoking). While the Panel acknowledges that psychological distress can at times unmask previously asymptomatic underlying ischaemic heart disease, the Panel is of the opinion that the overall effect of psychological distress on ischaemic heart disease is relatively insignificant. The Panel considered the worker’s family history, her concurrent medical conditions and unrelated smoking history and concluded that the worker was likely to develop symptomatic heart disease at some stage irrespective of the psychological distress being present due to any accepted workplace injury.
The Panel therefore estimated a pre-existing permanent impairment for the coronary heart disease of 28% whole person impairment which is attributed to the above mentioned unrelated factors and which ought to be disregarded in accordance with Section 91(7)(c) of the Act.
The Panel subtracted the pre-existing, unrelated coronary heart disease impairment (28% whole person) from the current coronary heart disease impairment (30% whole person), resulting in a current coronary heart disease impairment of 2% whole person impairment, attributable to a the accepted exacerbation of a pre-existing psychiatric conduction leading to aggravation of a heart condition injury with a designated date of injury of 1 January 2014.
The Panel considers that estimating the pre-existing impairment based upon its experience and expertise, its interview with the worker, the history provided by her, and the material available in the referral, provides the worker with an accurate evaluation of the pre-existing, unrelated impairment resulting from her coronary heart disease condition.
Using the Combined Values Chart the Panel combined the Chapter Six and Chapter Thirteen impairments to a total impairment of 3% whole person. The Panel therefore concluded that the worker has a 3% whole person impairment resulting from the accepted exacerbation of a pre-existing psychiatric condition leading to aggravation of a heart condition injury when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
27 The Panel noted that it reached the same conclusion in relation to whole person impairment based on cardiac impairment as Professor Jelinek, save that Professor Jelinek did not assess any impairment related to the surgical scarring. On the day following the publication of the Opinion, Tim Connor Law wrote to Ms Wojcik. This letter (‘Tim Connor Law letter’) stated as follows:
YOUR WORKCOVER CLAIM
We confirm that we have now received the Certificate of Opinion from the Medical Panel regarding your physical impairment. A copy of the Certificate and Reasons dated 15 February 2018 is enclosed.
The Medical Panel’s Decision
We advise that you have not been successful at the Medical Panel. The Medical Panel has concluded that you have a 3% whole person impairment resulting from the accepted exacerbation of a pre-existing psychiatric condition leading to aggravation of a cardiac condition.
The Medical Panel assessed you as having a 30%, whole person impairment for the coronary heart disease as well as a 1% impairment for the surgical scarring. However, the Medical Panel concluded that you have a strong family history of ischaemic heart disease and a history of dyslipidaemia, hypertension, sleep apnoea and prolonged smoking. The Medical Panel noted that the overall effect of psychological distress on ischaemic heart disease is relatively insignificant in your case. It was concluded you would have likely developed symptomatic ischaemic heart disease at some stage irrespective of your workplace psychological distress, in consideration of your family history, concurrent medical conditions and unrelated smoking.
Accordingly, the Medical Panel concluded that the pre-existing impairment for the cardiac condition amounted to 28%, which was subtracted from the 30% impairment.
The Determination
We confirm that WorkSafe initially determined your psychiatric impairment at 10% and your physical impairment at 2%. As both of your physical and psychiatric injuries were below the threshold, you were not entitled to an impairment benefit.
We confirm that the subject of the Medical Panel examination related to your cardiac condition.
As the Medical Panel has re-assessed your physical impairment at 3%, you have still been assessed at below the threshold and you will not be entitled to receive an impairment benefit
Appeal
We confirm that the Medical Panel’s opinion is binding on the insurer.
A decision of the Medical Panel can only be appealed if there is evidence that the Medical Panel incorrectly applied the applicable legislation. A Medical Panel decision cannot be appealed on the facts alone.
An appeal of a decision of the Medical Panel would involve considerable time and money as it would be necessary to make an application to court. As part of this process, it would also be necessary to seek an opinion from a senior barrister. We estimate that obtaining an opinion from a barrister would cost approximately $1,000.00. In addition to the barrister’s fees, there would be further costs involved with our preparation of the case as well as the application to court. We advise that would not be able to assist with the application on a no-win no-fee basis.
Given the factors laid down by the Medical Panel in justifying the apportionment, we do not consider that there is any basis to appeal the decision. We do not consider that we would obtain a different opinion from a barrister.
28 The Tim Connor Law letter then went on to advise Ms Wojcik about the (poor) prospects of her serious injury application and claim for common law damages against the employer, stating as follows:
In light of the Medical Panel’s opinion, we consider that it is difficult to pursue a serious injury application in relation to both your cardiac and psychiatric conditions.
To be entitled to common law compensation, you must satisfy two requirements:
1. That your injuries are assessed as being a serious injury; and
The law provides a number of definitions of a physical serious injury. The one that applies to your cardiac condition is “permanent serious impairment or loss of body function”. As you have not reached an impairment rating of 30% or more, you do not automatically satisfy the definition of serious injury for your cardiac condition.
A serious injury application can still be made if the level of impairment is less than 30%. However, you must convince the Victorian Workcover Authority as to why you satisfy the definition of serious injury. In your case, we do not consider that there is any reasonable prospect of succeeding with a claim for serious injury in relation to the cardiac condition, given that the dominant factors contributing to the cardiac condition are not related to the workplace stressors.
...
By way of reminder, any application for a common law claim must be made within 6 years of the date of injury. This means that, should you decide to submit a serious injury application, it must be lodged with the Victorian WorkCover Authority by 1 January 2020.
...
Termination of Weekly Payments
By way of update, we confirm that on 15 February 2018, we made an application to the insurer for the reinstatement of your weekly payments after the second entitlement period (or 130 weeks). As part of this application, we enclosed the reports that you provided us with in support of your incapacity to work.
Although there may be some argument in support of the reinstatement of the weekly payments, in light of the Medical Panel’s opinion that your condition is constitutional in nature, we consider that reinstating your weekly payments would be a difficult task.
In the event that the insurer decides to reject your application for the reinstatement of weekly payments, the matter would be referred to conciliation. We do not consider that there would be any reasonable prospect of success at conciliation and it would be unlikely that you would be given a further referral to the Medical Panel.
It is our overriding responsibility to advise our clients as to whether their matter has a reasonable prospect of success. Given the decision and reasons of the Medical Panel, we do not consider that your matter has any reasonable prospect of success. Accordingly, we consider that it would be inappropriate to charge you costs associated with the reinstatement application when we believe that the application has no reasonable prospect of success.
...
29 Soon after sending the Tim Connor Law letter, Tim Connor Law ceased to act for Ms Wojcik.
Ms Wojcik’s grounds of review and the evidence
30 Ms Wojcik commenced this proceeding by way of originating motion on 9 April 2020 which included the following grounds of review:
(a) the Medical Panel failed to properly apply Wilson v Liquorland Australia Pty Ltd [2014] VSC 545 in that it failed to identify an evidentiary basis on which it could positively be satisfied of the pre-existing impairment which was to be disregarded;
(b) the Medical Panel failed to take into account a relevant consideration, namely the Plaintiff’s denial of a pre-existing impairment relating to her heart condition;
(c) the Medical Panel failed to take into account a relevant consideration, namely an ECG taken on 26 November 2011 report by the Panel to “not show any abnormalities”, and an ECG on 27 December 2013 (after the workplace stress had commenced) reporting what “the Panel considered was a new and abnormal finding when compared with the previous ECG in 2011”;
(d) the Medical Panel failed to take into account a relevant consideration, namely the absence of pre-existing impairment in arriving at its determination;
(e) the Medical Panel took into account an irrelevant considerations [sic], namely evidence of pre-existing ischaemic heart disease which was asymptomatic prior to the claimed stress at work, in arriving at its determination;
(f) the Medical Panel erred in the interpretation and application of the AMA Guides to the Evaluation of Permanent Impairment (4th Ed);
(g) the Medical Panel failed to provide adequate reasons, and failed to disclose an adequate path of reasoning, for its fining of pre-existing impairment related to the Plaintiff’s heart condition.
31 In addition to the Opinion and the Panel’s reasons, and the referral materials, Ms Wojcik relied upon the following evidence:
(a) an affidavit sworn by her solicitor, Ms Katherine Wilson on 8 April 2020, which exhibited Ms Wojcik’s impairment benefits claim, the Jelinek report, the CGU determination, the referral documents, the Opinion and the Tim Connor Law letter; and
(b) an affidavit sworn by Ms Wojcik on 8 April 2020 in support of her application for an extension of time, which exhibited the Tim Connor Law letter, as well as correspondence from Ellis Palmos lawyers dated 24 July 2019 and Shine lawyers dated 14 October 2019.
32 In her affidavit, Ms Wilson deposed, in summary, as follows:
(a) following a meeting with Ms Wilson on 28 October 2019, Ms Wojcik obtained her files from RCT and delivered the files to Maurice Blackburn on or about 18 November 2019;
(b) after considering Ms Wojcik’s claim, she formed the view that an application for judicial review of the Panel’s determination may have reasonable prospects of success;
(c) on 11 December 2019, she advised Ms Wojcik that advice should be sought from a barrister before proceeding further, and Ms Wojcik instructed Ms Wilson to proceed with obtaining that advice;
(d) on 4 February 2020, in the course of a conference, senior counsel for Ms Wojcik recommended that an application be made for judicial review of the Panel’s determination and that there were reasonable grounds for such an application;
(e) she believes there are special circumstances which warrant orders extending the time within which Ms Wojcik be permitted to bring her application for judicial review. The length and reason for the delay is explained by Ms Wojcik’s lack of knowledge of her entitlement to seek judicial review of the Panel determination, and by her extensive but unsuccessful efforts to obtain further legal assistance between 15 February 2019 and 28 October 2019; and
(f) until senior counsel’s recommendation on 4 February 2020, Ms Wojcik was not aware that she had reasonable grounds to seek judicial review.
33 In her affidavit, Ms Wojcik outlined the history of her claim and her examinations by Professor Jelinek and the Panel and deposed, in summary, as follows:
(a) she now believes the Panel determination to be wrong at law because in the years prior to the events during the course of her employment with the employer, her heart condition was asymptomatic and was therefore not causative of any impairment;
(b) it is Ms Wojcik’s understanding that the palpitations, nausea, chest tightness and arm tingling she experienced in 2006 related to her stress and anxiety condition;
(c) Ms Wojcik underwent ECGs on 26 November 2011 and 26 May 2012, and it is her understanding that she was referred for these tests as a precautionary measure because of the medication she was taking for her psychiatric condition;
(d) Ms Wojcik was not experiencing any chest pains, palpitations, other heart or chest complaints or any other impairment as a result of any cardiac condition at the time of those ECGs;
(e) the stress and anxiety at work became particularly severe in the latter half of 2013, and in the context of work-caused or aggravated stress, anxiety and depression, her general practitioner, Dr Fraser considered changing her anti‑depressant from Tofranil to Fluoxetine. In preparation for the change, Dr Fraser ordered another ECG;
(f) on 31 December 2013, her psychiatrist, Dr Ashish Mordia, wrote to Dr Fraser indicating that her medication had recently changed from Tofranil to Fluoxetine and stated “I understand that her recent ECG is indicating some abnormality without any history of cardiac symptoms of clinical significance”;
(g) Ms Wojcik had not been experiencing any symptoms of cardiac problems nor any impairment caused by cardiac problems prior to that ECG;
(h) Dr Krawczyszyn’s statement in his letter dated 17 February 2014 that Ms Wojcik has “chest pain on exertion for about three years and it has been slowly getting worse” was incorrect;
(i) since approximately early 2014, she has been experiencing very considerable cardiac symptoms, which have not been relieved completely by the cardiac catheterisation and bypass surgery;
(j) it is her understanding that the Panel fell into error by making a deduction for pre-existing impairment because her cardiac condition was asymptomatic and not causative of any impairment until she sustained further cardiac injury as a result of the stress and anxiety arising during the course of her employment with the employer;
(k) at the time of the Panel decision she was represented by Tim Connor Law;
(l) on 19 February 2018, she received the Tim Connor Law letter;
(m) on or about 3 August 2018, she consulted Ms Carla Cipressi of Ryan Carlisle Thomas Solicitors (‘RCT’) in respect of notices from the authorised insurer terminating weekly compensation payments and medical expenses claimed by Ms Wojcik. RCT helped her to submit requests for conciliation to the Accident Compensation Conciliation Service and obtained her file from Tim Connor Law;
(n) she does not recall at any stage being provided with advice from RCT as to any action which could be taken in respect of challenging the Panel determination;
(o) after RCT ceased to act for her, on 8 July 2019, she contacted Slater & Gordon’s Werribee office to arrange an appointment, however, the appointment never eventuated;
(p) on 19 July 2019, she contacted Henry Carus & Associates, who advised by telephone that they would be unable to assist in respect of her WorkCover entitlements;
(q) on 19 July 2019, she contacted Ellis Palmos Lawyers seeking advice as to her WorkCover entitlements. She was requested to send in documents, including the Opinion and the Panel’s reasons;
(r) on 24 July 2019, she received a letter from Ellis Palmos Lawyers in respect of her possible common law entitlements;
(s) on 10 October 2019, she contacted Shine Lawyers, who advised that they would be unable to assist, which they confirmed in a letter to Ms Wojcik dated 14 October 2019;
(t) on 28 October 2019, she contacted Ms Wilson of Maurice Blackburn, who advised that in order to assess any entitlements Ms Wojcik would need to provide her previous files;
(u) she delivered her files to Ms Wilson on or about 18 November 2019;
(v) on 11 December 2019, she met with Ms Wilson, who advised that the possibility of reviewing the Panel determination should be investigated further, and that advice should be obtained from a barrister in this regard;
(w) on 4 February 2020, she met with senior counsel, Mr Ingram QC, who recommended that she seek the leave of the Court to extend time for the service of an originating motion seeking judicial review of the Panel determination, and indicated that there were errors of law in the Panel decision such that she should seek judicial review;
(x) on 21 February 2020 she met with Ms Wilson to discuss senior counsel’s advice and provided instructions to proceed with an application for judicial review of the Panel’s determination; and
(y) until senior counsel’s recommendation on 4 February 2020 and the subsequent discussion with Ms Wilson on 21 February 2020, Ms Wojcik was not aware that the best course of action was an application for judicial review, nor that she had reasonable grounds to seek judicial review of the Panel’s determination.
34 Ms Wojcik was required to attend Court
for cross-examination. In her oral evidence, she denied that she had spoken to
a barrister
prior to her conference with Mr Ingram QC on 4 February
2020. When put to her that in email correspondence with Ms Cipressi of RCT
in early 2019 Ms Cipressi stated that it was important for Ms Wojcik
to see a barrister to draw up paperwork for the serious injury
application and
Ms Wojcik replied that she was under the impression that the barrister was
quite confident about her case, Ms Wojcik
denied that she had spoken to a
barrister and stated she had no dealings with any barrister. Apart from
Ms Cipressi, the only other
person she spoke to about her claim during that
period was a senior lawyer at RCT.
35 Ms Wojcik gave
evidence that since her open heart surgery in October 2014, she has had
difficulties with her memory, and she does
not remember speaking to any
barrister engaged by RCT. Ms Wojcik gave evidence that RCT was looking at
the issue of serious injury
in January 2019 but did not commence a serious
injury application on her behalf. Ms Wojcik said RCT advised her they were
ceasing
to act in a letter dated 27 June 2019, stating they could not
represent her on a no‑win, no-fee basis and referred to the limitation
period for commencing a common law proceeding, being six years from the date of
injury.
36 Ms Wojcik gave evidence that she does not
remember Ms Cipressi advising her in relation to the Panel’s decision, but
did
remember Ms Cipressi saying that she had discussed it with a barrister.
Ms Wojcik gave evidence that she had never seen any correspondence
from the
barrister, and did not know the name of the barrister referred to by
Ms Cipressi. Ms Wojcik gave evidence that Ms Cipressi
told her that
the barrister said Ms Wojcik had a strong case in negligence, but she could not
recall discussing the Panel determination
with
Ms Cipressi.
37 Ms Wojcik gave evidence that
she had a telephone conversation with Ellis Palmos Lawyers on 19 July 2019
in respect of her claim.
When put to her that the solicitor’s file notes
of that conversation record Ms Wojcik as having told the solicitor that
Ms
Wojcik had seen a barrister who had said she had a strong claim for
negligence, Ms Wojcik stated that she could not remember saying
that and
once again denied that she had seen a barrister prior to meeting with
Mr Ingram QC.
38 Ms Wojcik gave evidence
that Shine Lawyers and Ellis Palmos lawyers advised her that a common law claim
for damages must be issued
within six years, and that she first met with
Ms Wilson just before the expiration of the relevant period.
Ms Wilson was the first
person to tell her that it was possible to
challenge the decision of a medical panel. If she had known earlier that she
could challenge
the Panel’s determination, she would have done
so.
39 A bundle of documents obtained by the
solicitors for the employer from documents produced to the Court pursuant to
various subpoenas
were tendered into evidence for the purposes of the
cross-examination summarised above. The first document was a chain of emails
between Ms Wojcik and Ms Cipressi of RCT on 31 January 2019.
(I interpose to note that the Opinion was issued on 15 February 2018.)
Ms Wojcik had sent through some documents, and Ms Cipressi replied as
follows:
Hi Jo,
Thanks for sending those through.
I will need your help to clearly set out the bullying instances as ultimately, this is what I need to go back to a barrister with and most importantly, what we would need to spell out for a jury to point to your employer being on notice and therefore negligent in causing your injuries.
As I briefly set out in my last email, I require conversations/evidence in writing of times when you mentioned to your employer that you were struggling emotionally due to the bullying prior to lodging the General Protections claim and if you could send me through dot points of things you remember, that would be helpful.
40 Ms Wojcik replied as follows:
Hi Carla
Ok let me check my docs again for these.
Can we catch up soon to get things moving along please.
Regards
Jo
41 A few minutes later, Ms Cipressi wrote as follows:
Thanks Jo, it is very important.
The next step is to send you to a conference with the barrister to draw paperwork for the serious injury application. He has already looked at your file and has explained that we need to set out the negligence issues. This is where we are at now as when I went through the documents I had concerns that we will not meet the necessary criteria to establish negligence.
42 Ms Wojcik replied as follows:
Hi Carla,
You have me worried now. I understand that we need as much info as possible.
I was also under the impression that the barrister was very confident.
Regards
43 The email chain concluded with the following from Ms Cipressi:
Hi Jo,
Don’t want you to worry!
To clarify, the barrister was confident you would meet the criteria for serious injury, however to make the serious injury claim, we also need to establish firstly, ‘causation’. This means we must prove being that your injury was caused by the bullying (the barrister disagreed about the significant apportionment from your impairment benefit claim). There will be a fight about this given the medical panel agreed with Prof Jelinek.
The second criteria that we need to satisfy, is negligence. We need to prove both negligence and serious injury for you to be entitled to compensation.
If a Serious Injury claim is lodged, the barrister needs to include a document setting out the elements of negligence, hence why we need clear evidence of bullying and that your employer were on notice that you were at risk of sustaining psychological injury if the behaviour didn’t stop.
44 The second document in the bundle was a letter from RCT to Ms Wojcik dated 27 June 2019 (see paragraph 35 above), which stated as follows:
Your potential Common Law claim
We refer to your attendance with Carla Cipressi of our Werribee office on 27 June 2019.
We discussed that our firm would not be able to act on a ‘no win, no fee’ basis to pursue a common law claim against General Carrying Pty Ltd in relation to your injuries sustained in 2014.
We discussed that in order to be eligible for lump sum compensation for pain and suffering and potentially economic loss damages you are required to establish you have sustained a permanent serious injury by·reason of negligence on behalf of your employer. While we believe you would be successful in proving you have sustained a ‘serious injury’ within the meaning of the WorkCover legislation, we discussed that it would be very difficult to establish the link (‘causation’) between your current medical condition to the work-related injury by reason of the significant apportionment by the Medical Panel and opinion of Professor Jelinek. Similarly, we would face an argument in relation to negligence on behalf of your employer. Therefore, in the event you were awarded damages compensation, there is a potential that any damages will be significantly reduced for non-work-related factors.
We confirm you are able to obtain advice from another firm of solicitors in relation to your claim. Please note that the law in Victoria provides that all actions for common law damages arising out of workplace accidents must be instituted within a period of six (6) years immediately following the date of the injury. This means, in your case, that such proceedings will have to be issued on or prior to 31 December 2019. Failure to issue proceedings prior to that date will mean that your rights to common law damages arising out of this workplace accident will be barred forever.
As we will no longer continue to act on your behalf or proceed any further in relation to pursuing any lump sum claims in relation to your work related injury, we will accordingly close your file. Your file will then be held in our storage facilities for a period of seven (7) years after which time it will be destroyed.
45 The next document in the bundle was a file note made by Sarsha Lauterbach of Ellis Palmos Lawyers dated 19 July, some three weeks after RCT had ceased to act for Ms Wojcik. The file note recorded information said to have been provided by Ms Wojcik during an eighteen-minute telephone call. An extract of the file note follows:
...
...
She had a diary/chronology of events, medical reports and copies of docs. I asked her to send these to me over the weekend so I could review them and give her advice about any other entitlements she may have and whether we can assist her. She will email these this afternoon or over the weekend.
46 The final document was a file note made by Ms Lauterbach on 24 July 2019 after a short phone call, which stated as follows:
Telephone call to Joanne advising that we were unable to assist her in her claim. I explained that I did not think she would be able to prove negligence on the part of her employer. I said I would send her a letter via email shortly confirming this and the SLE[4] date which is she aware of as she raised it with me in our first. conversation. I wished her all the best and hoped she got better soon.
47 The evidence given by Ms Wojcik, the Tim Connor Law letter, and the documents referred to above indicate that:
(a) Tim Connor Law provided detailed and emphatic advice to the effect that the Panel’s determination was unimpeachable, and that as a consequence, her prospects of success in obtaining any further compensation were slim;
(b) between February 2018 and August 2018, Ms Wojcik took no steps to obtain legal assistance to pursue her claims against the employer;
(c) RCT acted for Ms Wojcik for ten months but took few, if any, steps to progress her claims. RCT shared Tim Connor Law’s pessimism about the viability of Ms Wojcik’s claims for compensation and common law damages. While the documents recording communications between Ms Wojcik and Ms Cipressi refer to conversations between Ms Cipressi and a barrister regarding a serious injury application and a common-law damages claim, the documents do not confirm one way or another whether Ms Wojcik actually met or spoke with that barrister;
(d) between July 2019 and October 2019, Ms Wojcik made several attempts to obtain legal assistance; and
(e) the Ellis Palmos file note indicates that during the time Ms Wojcik was represented by RCT, Ms Wojcik had direct contact with a barrister, but not conclusively so.
Procedural history
48 As previously noted, by the time the originating motion was issued on 9 April 2020, Ms Wojcik was nearly two years out of time to seek judicial review of the Panel’s determination, with the sixty-day period referred to in r 56.02 of the Rules expiring on or about 15 April 2018. In the first instance, the application for an extension of time was returnable before me on 12 August 2020. The employer indicated that it needed more time to issue subpoenas directed at Ms Wojcik’s former solicitors seeking documents relevant to the issue of what Ms Wojcik did and did not know about her right to seek judicial review of the Opinion. Following the hearing, I made orders to the effect that the substantive application for review be listed together with the application to extend time, along with consequential timetabling orders. Accordingly, the evidence and submissions filed by the parties addressed both the application for an extension of time and the substantive application for judicial review.
Ms Wojcik’s submissions
49 In her submissions, Ms Wojcik observed
that the general power conferred on this Court to extend or abridge any time
fixed by the
Rules by r 3.02 is conditioned by r 56.02(3), which
provides that an extension of time for the commencement of a judicial review
proceeding may only be granted in special circumstances.
50 Ms Wojcik submitted that, having regard to the
whole of the circumstances of her case, in particular, the fact that she had not
been given legal advice as to the time limits involved with seeking judicial
review, and her prospects of success, special circumstances
exist such as to
warrant granting her an extension of time. Ms Wojcik submitted that
following matters, taken together, amount to
special circumstances:
(a) the strength of her substantive case for judicial review of the Panel determination;
(b) the need for her impairment benefit to be assessed on a proper basis means that the interests of justice weigh heavily in her favour;
(c) the lack of prejudice to the employer of any extension of time;
(d) the reasons for delay; and
(e) the importance of counsel’s advice.
51 Ms Wojcik submitted that
“special circumstances” are to be assessed by reference to the whole
of the circumstances
outlined above, no one of which need be
“special” of itself,[5]
and those circumstances are not limited to circumstances connected with the
reasons for delay.
52 Ms Wojcik referred to the
decision of the Court of Appeal in Mann v Medical Practitioners Board of
Victoria[6]
(’Mann’) as authority for the proposition that having a
strongly arguable case of administrative or legal error is a relevant
consideration
in determining whether special circumstances exist.
Ms Wojcik went on to submit that her argument that the Panel’s
determination
has been tainted by jurisdictional error is overwhelmingly
strong.
53 In the alternative, Ms Wojcik
submitted that the Panel failed to provide adequate reasons, and failed to
disclose an adequate path
of reasoning for its conclusion that there was a
pre-existing impairment.
54 As for the purported
injustice to her of refusing an extension of time, Ms Wojcik went on to
submit that, if the Panel erroneously
deducted 28 per cent for an
alleged pre-existing impairment, then her whole-person impairment stands at
31 per cent, with the result
that she has been denied a considerable
lump sum benefit pursuant to s 98C of the Act, and has been denied a deemed
“serious injury” pursuant to s 134AB(15) of the Act.
Accordingly, allowing the Panel’s decision to stand will cause
considerable injustice to Ms Wojcik. Conversely,
no injustice to the
employer would arise from an order quashing the Panel’s decision and
remitting the matter back to a differently
constituted medical
panel.
55 Ms Wojcik submitted that Tim Connor Law
specifically advised her against “appealing” the Panel decision and
stated
“We do not consider that we would obtain a different opinion from a
barrister”. Ms Wojcik submitted that, having been
advised against
making an application for judicial review and seeking a barrister’s
opinion, it could not be said that the
delay has been caused by any fault of
hers.
56 Ms Wojcik went on to submit that in the
eighteen months following the Tim Connor Law letter, she sought assistance from
five law
firms before finally consulting her current solicitors. Ms Wojcik
submitted that, in view of her attempts to seek legal representation,
it could
not be said that she sat on her hands or was in any way dilatory. She submitted
further that the advice of Tim Connor Law,
together with the refusal of the
other law firms approached to properly investigate her entitlements, meant that
she was deprived
of counsel’s advice for approximately eighteen
months.
57 Ms Wojcik submitted that, upon receiving
her files, her current solicitors acted promptly in seeking advice from senior
counsel,
and that the conference with senior counsel on 4 February 2020 was the
first occasion on which Ms Wojcik was advised that there were
arguable
errors of law in the Panel decision and that she should seek review of the
Panel’s decision.
58 Ms Wojcik submitted that
she then promptly provided instructions to seek judicial review, and that the
reasons for delay, demonstrating
no fault on the part of Ms Wojcik, along
with the absence of counsel’s advice until February 2020 are important
factors this
Court ought consider when determining whether special circumstances
exist.
59 Ms Wojcik drew an analogy to the
principles governing the operation of s 23A of the Limitation of Actions
Act 1958 (Vic) (‘Limitation of Actions Act’), and
submitted that consequences of the inaction of the solicitors she consulted in
respect of her claim should not be visited
upon
her.
60 In respect of her substantive application
for judicial review, Ms Wojcik submitted that in order for the Panel to
comply with s
91(7) of the Act:
(a) it is impairment in the sense of permanent impairment from unrelated causes that is to be disregarded; and
(b) any assessment of unrelated impairment must be evidence-based and cannot be speculative.
61 Ms Wojcik relied upon the decision of Rush J in Wilson v Liquorland Australia Pty Ltd[7] (‘Wilson’), as follows:
It cannot simply be speculative. The Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which it then disregards. The panel is not bound by rules or practices as to evidence but it must act on the basis of evidence of some sort.
If the evidence is sufficient to demonstrate the existence of a pre-existing impairment from an unrelated injury or cause, then the Panel must, as best it can, determine the extent of that impairment so it can be disregarded and evaluate the impairment related solely to the compensable injury.[8]
62 Ms Wojcik submitted that there was no
evidentiary basis upon which the Panel could have derived a positive
satisfaction of an unrelated
impairment. Ms Wojcik submitted that she had
a pre-existing condition which was asymptomatic, which was rendered symptomatic
by
her employment, such that the impairment was solely caused by the
aggravation.
63 Ms Wojcik referred to the
decision of McDonald J in Bazouni v State of
Victoria,[9]
(‘Bazouni’) in which his Honour emphasised that impairment
from unrelated causes should only be disregarded where there is a sufficient
evidentiary basis to evaluate any unrelated
impairment.
64 Ms Wojcik referred to the following
statement by McDonald J in
Bazouni:[10]
The Panel stated that it had disregarded the ‘level of psychiatric impairment attributable to an unrelated injury or cause that is playing a part in the claimant’s current psychiatric impairment in accordance with s 28LL(3) of the Act’. However, the Panel’s reasons for determination do not disclose any evaluation of the nature of any impairment established by the evidence to be attributable to any unrelated injury or cause. As such, the approach adopted by the Panel did not conform with the requirement for evidence-based evaluation of unrelated impairment.[11]
65 Ms Wojcik submitted that the decision in Bazouni[12] has particular relevance to the present case, as in that case, the medical panel listed a “grab-bag” of unrelated issues, including the plaintiff’s difficult childhood, limited education, and history of alcoholism and domestic abuse and then speculated, without a sufficient evidentiary basis, that those unrelated issues must be a cause of the plaintiff’s psychiatric condition. Ms Wojcik submitted that in applying that reasoning to the current case the Panel made two clear errors:
(a) reasoning without a sufficient evidentiary basis that the unrelated issues must have contributed to Ms Wojcik’s injury; and
(b) reasoning without a sufficient evidentiary basis that the unrelated issues must therefore also be contributing to Ms Wojcik’s impairment.
66 Ms Wojcik submitted that, contrary to
the submission of the employer, the decision of this Court in Leemark Fire
Protection Pty Ltd v Malios,[13]
(‘Leemark’) should be distinguished from the present case.
In Leemark,[14] the employer
sought judicial review of a medical panel determination in circumstances where
the medical panel had failed to undertake
the apportionment required by
s 91(7)(c) of the Act. The relevant impairment suffered by the injured
worker was respiratory impairment
from left-sided pleural thickening caused by
workplace dust exposure and respiratory impairment caused by emphysema.
67 The weight of evidence concluded that the
emphysema was predominantly caused by smoking, and there was dispute about the
extent,
if any, to which employment had contributed to the emphysema. However,
it was not disputed that both the emphysema and the left-sided
pleural
thickening contributed to the relevant respiratory
impairment.
68 Ms Wojcik submitted that in
Leemark,[15] the Court held
that the medical panel fell into error by attributing the totality of the
respiratory impairment to the left-sided
pleural thickening caused by workplace
dust exposure, without making a determination as to the contribution to the
impairment by
the emphysema.
69 Ms Wojcik submitted
that the present case is entirely different, as Ms Wojcik does not have two
conditions contributing to her
cardiac impairment, but only one condition, being
ischaemic heart disease. Ms Wojcik submitted that the Panel accepted that
her employment
caused an aggravation of that condition, and it was that
aggravation which rendered a previously asymptomatic condition symptomatic,
such
that Ms Wojcik, who previously had no impairment, is now significantly
impaired. As a consequence, Ms Wojcik submitted the
precent case is more
akin to Wilson[16] and
Bazouni[17] than to
Leemark.[18]
70 Ms Wojcik
submitted that, in such circumstances, it is impermissible for the Panel to
speculate that a genetic predisposition,
other medical conditions, and lifestyle
and environmental influences may have caused her impairment, and stated that the
following
passage from the Panel’s reasons illustrated impermissible
speculation on the part of the Panel:
The Panel considered the worker’s family history, her concurrent medical conditions and unrelated smoking history and concluded that the worker was likely to develop symptomatic ischaemic heart disease at some stage.
71 Ms Wojcik submitted that this is clear
speculation as to the role that might be played by other factors “at some
stage”,
not the evidence-based proof required by the
authorities.
72 Ms Wojcik submitted that the absence
of evidence before the Panel that she had chest pain requiring her to attend Dr
Krawczyszyn
or any other medical practitioner between 2006 and late 2013 ought
to have been particularly persuasive of the lack of impairment
attributable to
any pre-existing ischaemic disease. In this regard, Ms Wojcik referred to
the statement of Rush J in
Wilson,[19] as follows:
There was no evidentiary basis by which the Panel could derive a positive satisfaction of pre-existing impairment. An underlying asymptomatic degenerative change does not provide any such evidentiary basis; it is not impairment.[20]
73 Ms Wojcik submitted that evidence of
past, but for many years asymptomatic ischaemic heart disease without evidence
of associated
pain or impairment could not provide such an evidentiary basis.
On the evidence before the Panel, it could not be said that Ms Wojcik
had
any impairment prior to or unrelated to the stressful events at work in
2013.
74 Ms Wojcik submitted that the Panel’s
observations to the effect that Ms Wojcik was likely to develop ischaemic
heart disease
at some stage irrespective of the workplace stress misapplied the
legal principles governing the assessment of unrelated impairment.
Ms Wojcik submitted that her heart condition was asymptomatic before the
claimed workplace events and symptomatic thereafter, and
therefore the degree of
impairment attributable to pre-existing ischaemic heart disease should have been
nil. There must have been
a prior impairment, not some asymptomatic or
underlying predisposition. As Ms Wojcik’s evidence has not been
challenged, how
could it be said that Ms Wojcik was suffering from an
impairment prior to commencing her employment with the employer?
75 Ms Wojcik submitted that, in disregarding a
level of impairment the Panel determined was due to pre-existing asymptomatic
ischaemic
heart disease, the Panel relied on an irrelevant consideration,
applied the wrong legal test and reached an erroneous conclusion.
The Panel
also failed to take into account the divergence between the results of the
pre-employment ECGs and the ECGs taken during
her
employment.
76 In relation to the adequacy of the
Panel’s reasons, Ms Wojcik submitted that the reasons failed to
disclose the nature of
any impairment, established by the evidence, attributable
to a cause other than her employment.
77 Ms Wojcik
submitted that the reasons demonstrate no analysis of what impairment, if any,
was caused by each of Ms Wojcik’s
family history, other medical conditions
and lifestyle/environmental influences.
78 Ms Wojcik
submitted further that there is no clear path of reasoning for the Panel’s
finding that the impairment from those
other conditions related to
28 per cent whole‑person impairment, nor is there any
explanation in the reasons for the Panel’s
rejection of:
(a) the considerable body of evidence of no impairment to Ms Wojcik prior to the workplace stressors;
(b) Ms Wojcik’s evidence that she had no symptoms between 2004 and early 2014; and
(c) the Panel’s own finding that any pre-existing ischaemic heart disease was asymptomatic.
79 Ms Wojcik submitted that the Panel’s reasons do not satisfy the standard laid down by the High Court in Wingfoot[21] and are therefore deficient.
The employer’s submissions
80 The employer submitted that, in order
to demonstrate special circumstances, justifying an extension of time, Ms
Wojcik must make
out circumstances that are not general in character and
something exceeding that which is usual or
uncommon.[22]
81 The
employer referred to the decision of Toohey J in Re Beadle and
Director-General of Social
Security,[23] as follows:
An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.[24]
82 In relation to the relevant principles, the employer referred to the decision of Derham AsJ in Lazarevic v Victoria Police,[25] as follows:
(a) [Rule 56.02(3)] requires the Court to be objectively satisfied that special circumstances exist;
(b) the existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c) the factors relevant to the exercise of the discretion under Rule 56.03(2) [sic] include, but are not limited to:
(i) the period of the delay;
(ii) the reason for the delay;
(iii) whether the plaintiff has an arguable case;
(iv) the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.[26]
83 The employer submitted that the fact that a plaintiff may demonstrate an error in the decision does not automatically result in a finding of special circumstances, as if it did, the time limit contained in the rule would be rendered otiose. The employer referred to the decision of the Court of Appeal in Glass (a pseudonym) v Chief Examiner,[27] as follows:
If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable to judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.[28]
84 The employer submitted that the public
interest in the finality of litigation underpins the sixty-day period set out in
r 56.02(3),
and that the extension sought in the present case is almost two
years, a significant delay which weighs heavily against granting
an extension of
time.
85 The employer went on to submit that Ms
Wojcik has not shown circumstances which are unusual, uncommon or exceptional
such as to
justify an extension of time. The employer submitted further that
the alleged injustice in allowing the Panel decision to stand
will only be a
relevant consideration if the decision is vitiated by legal error. The employer
submitted that the matters otherwise
relied on by Ms Wojcik, including lack of
any prejudice to the employer, are not sufficient to outweigh the substantial
delay and
the lack of any satisfactory explanation for the
delay.
86 Turning to the substantive application for
judicial review, the employer observed that s 91(7)(c) of the Act provides
that, for
the purposes of an assessment under s 98C, impairments from
unrelated injuries or causes are to be
disregarded.
87 The employer referred to the
decision of Niall JA in City of Melbourne v
Neppessen,[29] in which his
Honour set out the correct approach to assessing unrelated impairment under
s 28LL(3) of the Wrongs Act, which is in the same terms as
s 91(7)(c) of the Act. The employer submitted that the following
principles can be distilled from
his Honour’s summary of the relevant
legal principles (citations omitted):
(a) in making an impairment assessment, any impairment from an unrelated injury or case must be disregarded so as to ensure that the impairment assessment relates solely to that resulting from the compensable injury;
(b) it would be inconsistent with that obligation for a medical panel to assess the impairment at large without adverting to the potential for impairment to be caused by different injuries or causes;
(c) a medical panel is obliged to identify any impairment arising from an unrelated injury or cause, whether pre-existing or subsequently, and ensure that its estimate of impairment disregards any other impairment;
(d) in identifying the unrelated impairment, and in estimating its extent, the panel is not required to apply the guides;
(e) it is obliged to evaluate the unrelated impairment on the material presented to it and do its best to evaluate the extent to which that impairment is playing a part in the person’s current impairment;
(f) the process of attribution does not require the panel to speculate, but required it to disregard any impairment, either pre-existing or lost-dating the injury, which is established by evidence to have resulted from a cause other than the relevant injury;
(e) in Alcoa Holdings Ltd v Lowthian, J Forrest J said that it is open to medical panel to assess the overall level of impairment using the Guides (which may arise from more than once cause) and then isolate and disregard [quarantine] impairment which derives from an unrelated cause, this latter exercise involves matters of judgment and degree and need not be done in accordance with the Guides;
(h) it is also open to a medical panel, using its collective expertise and knowledge, to estimate the extent of the compensable injury related impairment after taking into account and disregarding non-related contribution to the impairment.
88 The employer submitted that the
approach taken by the Panel was in accordance with the approach described by J
Forrest J in Alcoa Holdings Ltd v
Lowthian.[30]
(‘Alcoa’)
89 The employer
submitted that the Panel assessed the overall level of impairment caused by Ms
Wojcik’s coronary heart disease
at thirty per cent using the Guides,
and then, using its professional skill and judgment, quarantined that part of
which it considered
was derived from unrelated causes. The employer submitted
further that the Panel identified those unrelated causes to be genetic
predisposition, other contributing medical conditions and
lifestyle/environmental influences. The Panel concluded that while
psychological
distress can at times unmask previously asymptomatic underlying
ischaemic heart disease, the overall effect of psychological distress
on
ischaemic heart diseases was relatively insignificant.
90 The employer submitted that, contrary to
Ms Wojcik’s submissions, the present case is distinguishable from
Wilson[31] and analogous to
Leemark,[32] as the present
case also involves impairment of an organ (here, the heart) by reason of a
progressive disease process attributable
to multiple causes over a lengthy
period of time. The employer submitted that, even if asymptomatic,
Ms Wojcik’s ischaemic
heart disease was an impairment of the heart.
The employer went on to submit that, in circumstances where her claim was for
aggravation
of underlying heart disease which had been overwhelmingly caused by
non-work factors, to assess her entitlement to an impairment
benefit without
deducting impairment resulting from other causes would result in compensation
being paid for the condition at large,
in contravention of ss 91(7)(c) and
98C of the Act.
91 The employer submitted that the
present case is also distinguishable from
Bazouni[33], as the medical
panel in Bazouni[34] failed
to show that it had taken the necessary step of determining whether the
unrelated issues were a cause of psychiatric impairment,
and wrongly regarded
itself as bound to apportion part of the plaintiff’s psychiatric
impairment on the basis he had been subject
to unrelated “issues”,
in circumstances where there was no evidence that those unrelated issues had
caused any impairment.
In contrast, the employer submitted that in the present
case, the Panel approached its assessment by assessing the impairment
attributable
to Ms Wojcik’s ischaemic heart disease at large and then
quarantining that part of which derived from unrelated causes. The
employer
submitted that the Panel expressly identified those unrelated causes, and its
conclusion that Ms Wojcik’s ischaemic
heart disease had
multifactorial causes was consistent with the other medical opinions in the
referral materials.
92 The employer submitted
further that Ms Wojcik’s submissions are predicated on a misconception of
what was in issue in
Leemark,[35] which is
instructive in the current case. The employer submitted that the error in
Leemark[36] was not that the
medical panel wrongly attributed all of the worker’s respiratory
impairment to only one of two extant conditions,
but that the medical panel
failed to disregard those parts of the respiratory impairment that is assessed
resulted from unrelated
employment or smoking (and not
emphysema).
93 The employer submitted that the Panel
carried out its assessment of impairment in accordance with s 91(7)(c) in
properly disregarding
impairment from causes unrelated to Ms Wojcik’s
employment.
94 The employer went on to submit that,
in respect of the errors claimed in grounds (a) to (f) of the originating
motion:
(a) the Panel’s reasons show that it had regard to Ms Wojcik’s account that the chest pain she had experienced in 2006 had resolved and that she did not experience further chest pain until early 2014, but this did not mean that her heart was not impaired by disease, such as the development of plaque in the coronary arteries necessitating surgery;
(b) the matters set out in grounds (c) of the originating motion are extracts taken from the Panel’s reasons, and there is no substance in the complaint that the Panel failed to take these matters into account;
(c) grounds (d) and (e) can only be sustained if it is accepted that Ms Wojcik’s lack of symptoms compelled the Panel to find that there was no pre‑existing impairment, and for the above reasons that argument cannot be sustained; and
(d) ground (f) is not developed in Ms Wojcik’s submissions, and the Panel’s impairment assessment involved no error in the interpretation or application of the Guides.
95 In relation to the adequacy of the Panel’s reasons, the employer submitted that the reasons are those of an expert tribunal, not a judicial body, and need to be viewed in that light. The employer submitted further that overzealous judicial review is to be eschewed, and a Panel’s reasons should be read fairly and as a whole in the context of the material before the Panel. The Panel referred to the following statement of Callaway JA in Masters v McCubbery,[37] to the effect that a medical panel must provide:
... medical reasons in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the member’s medical knowledge and experience.[38]
96 The employer submitted that Ms
Wojcik’s argument under this ground is contingent upon her principal
argument that there was
no impairment from unrelated injuries or causes to be
disregarded under s 91(7)(c) being accepted by this Court, and, for the
above
reasons, that argument should be
rejected.
97 The employer submitted that the
Panel’s reasons clearly explain that Ms Wojcik’s impairment
producing ischaemic heart
disease had developed over time, overwhelmingly as a
result of causes other that her psychiatric injury occasioned by work stresses.
The employer submitted that Ms Wojcik’s submissions are founded on a
misunderstanding of the Panel’s reasoning process,
which did not involve
any rejection of its own findings, and a misunderstanding of the task the Panel
is required to undertake in
disregarding unrelated
impairment.
98 In his submissions in reply, senior
counsel for Ms Wojcik submitted, in summary, as follows:
(a) in regards to Ms Wojcik’s application for an extension of time, “special circumstances” should be given a beneficial construction. A worker should know of their rights to seek judicial review and have those rights explained to them, preferably by experienced counsel;
(b) in regard to Ms Wojcik’s substantive application, it is possible to have a person who is heavily predisposed to injury, but what happens at work gives rise to the injury; and
(c) in the current case, Ms Wojcik developed chest pain and shortness of breath contemporaneously with the workplace bullying, and the results of the ECGs changed accordingly. There was no suggestion in the reasons that the Panel did not accept the history provided to them by Ms Wojcik, so it must follow that the workplace bullying was the cause of the change in the condition of Ms Wojcik’s heart.
Discussion
99 Accordingly, the issues in this application for review are whether:
(a) special circumstances exist such as to warrant the granting of an extension of time for the commencement of Ms Wojcik’s application; and
(b) if yes to (a), whether the Panel failed to identify an evidentiary basis on which it could be satisfied of the pre-existing impairment which was to be disregarded; and/or
(c) the Panel failed to take into account one or more of the following relevant considerations:
(i) Ms Wojcik’s denial of pre-existing impairment;
(ii) the ECGs taken on 26 November 2011, reported by the Panel to not show any abnormalities and 27 December 2013, reporting what the panel considered was a new and abnormal finding when compared to the ECG in 2011; or
(iii) the absence of pre-existing impairment;
(d) the Panel took into account an irrelevant consideration, namely evidence of pre-existing ischaemic heart disease which was asymptomatic prior to the claimed stress at work;
(e) whether the Panel erred in the interpretation and application of the Guides; and
(f) whether the Panel provided adequate reasons and disclosed an adequate path of reasoning for its finding of pre-existing impairment in relation to Ms Wojcik’s heart condition.
Extension of time
100 Rule 3.02 of the Rules provides relevantly as follows:
(1) The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time.
(2) The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.
101 Rule 56.02 of the Rules provides as follows:
(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
102 The parties’ submissions summarised the relevant legal principles concerning the meaning of “special circumstances”, which I do not understand to be in dispute. In Garrett v Legal Services Commissioner,[39] Derham AsJ summarised the relevant principles, as follows (citations omitted):
In Mann at first instance, Osborne J [sic] expressed the view that it was not appropriate to seek to define the meaning of the phrase “special circumstances“. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.
The requirement that the plaintiff show “special circumstances“ requires that he make out circumstances that are not “general in character“, but something exceeding “that which is usual or common“.
The authorities establish that r 56.02(3) of the Rules requires the court to be objectively satisfied that special circumstances exist. The existence of special circumstances is to be determined by reference to all the circumstances of the case. The factors relevant to the exercise of the discretion under the rule include, but are not limited to, the period of the delay, the reason for the delay, whether the plaintiff has an arguable case, the justice to both parties (which includes the prejudice to the parties) and the public interest in the finality of litigation.
It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being “special circumstances“, for if that were so there would be little practical point to the time limit contained in the Rule. On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
103 Taking all of the circumstances of
the case as a whole, if it were the case that any of Ms Wojcik’s
grounds of review were
made out, I would have granted an extension of time. I
accept that mere ignorance of one’s legal rights is not enough to justify
an extension of time. I agree the test under r 56.02 is stricter than the
test laid down by s 23A of the Limitation of Actions Act. I also do
not accept the submissions advanced on behalf of Ms Wojcik to the effect
that, as the Act is beneficial legislation,
an application for judicial review
of a determination of a medical panel for the purpose of furthering a
worker’s claim for
compensation should be treated more favourably or
leniently than another party seeking an extension of time under r 56.02.
That
said, however, the wealth of jurisprudence concerning the entitlements of
workers under the Act and its predecessor and successor
legislation illustrates
the degree of complexity of the field in which an injured worker has to
navigate, and the dependence upon
people in the position of Ms Wojcik upon
lawyers to assist them in that process, such that Ms Wojcik’s
evidence that she did
not understand that it was open to her to challenge the
determination of the Panel can be readily accepted, and her lack of knowledge
and understanding is a factor relevant to the exercise of the decision to extend
time.
104 Ms Wojcik’s evidence to the
effect that she had no advice from any lawyer about the vulnerability of the
Opinion to challenge
was credible, and was not seriously undermined by
cross-examination. The emails between Ms Cipressi and Ms Wojcik are
equally consistent
with Ms Wojcik having seen a barrister and her not
having seen a barrister. The reference in the Ellis Palmos file note to
Ms Wojcik
having seen a barrister is not conclusive evidence that she did
in fact do so. The solicitor may well have misinterpreted what Ms
Wojcik
said, or Ms Wojcik may have overstated the level of involvement of counsel
in her case in order to encourage Ellis Palmos
to take on her case. Common
sense suggests that a person in the position of Ms Wojcik would recall
meeting a barrister, and, given
that the parties have had access to the files of
Ms Wojcik’s previous solicitors through the subpoena process, I can
infer
that there is no record of any conference or other communication between
Ms Wojcik and any barrister.
105 Further, I
accept that upon becoming aware that she could seek judicial review of the
Opinion, Ms Wojcik acted promptly in instructing
her current solicitors to
issue the proceeding. Accordingly, no fault for the period of delay between her
first contact with Maurice
Blackburn in October 2019 and the date this
proceeding commenced (9 April 2020) ought be sheeted home to
Ms Wojcik.
106 Further, the employer has not
identified or relied upon any evidence of specific prejudice of any delay,
understandably, given
the wealth of documentation about Ms Wojcik’s
current and prior medical conditions, noting that the court book in this
proceeding
exceeds two thousand pages in length. Further, as a favourable
determination of a medical panel is, at this stage at least, only
relevant to
Ms Wojcik’s claim for an impairment benefit, the limitation period
for any common law claim having expired, no
factual inquiry into what occurred
during the course of Ms Wojcik’s employment is required for the
purpose of the application
for review of the Opinion, or for the purpose of any
remitted hearing, as in its submission to the Panel, CGU relied upon the
referral
materials, and in particular, the medical reports. No doubt more
up-to-date reports could be readily obtained by either party if
the matter was
remitted to a different medical panel.
107 Given the
limitation period for any claim for common law damages has expired, and in the
absence of any evidence that an application
to extend the limitation period has
been or will be made, Ms Wojcik’s claim for an impairment benefit is
her only opportunity
to seek compensation in a lump sum for her injuries. It
does not seem to be in dispute that Ms Wojcik has suffered and continues
to
suffer significant impairments to her health (in the lay sense, rather than the
legal sense). The real issue in dispute is whether
her impairments are work
related. Accordingly, while I accept that the matter is finely balanced, if her
poor health and lack of
legal advice precluded her from pursuing an otherwise
meritorious claim, that would be sufficient to amount to special circumstances
justifying an extension of time.
108 For
completeness, while the matter was not the subject of any evidence or agreement,
it is by no means clear-cut that, in the
event an extension of time was refused,
that Ms Wojcik would have a claim against either or both of Tim Connor Law
or RCT in negligence,
such that refusing an application for an extension of time
could be justified on the basis that relief would be available
elsewhere.
109 However, the main difficulty facing
Ms Wojcik’s claim for an extension of time is that her grounds of
review, while arguable,
are not made out, rendering an extension of time
futile.
The legislative framework, and general principles
110 Section 98C(1) of the Act provides relevantly, as follows:
(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
111 Section 91(7) of the Act provides relevantly as follows:
For the purposes of section 98C-
...
(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment.
112 The grounds upon which a decision-maker or tribunal (such as the Panel) may have fallen into jurisdictional error are (non-exhaustively) set out in the following statement in the decision of the High Court in Craig v South Australia:[40]
If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material , to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.[41]
113 The question of how a medical panel is intended to deal with the question of apportioning a claimant’s impairment between compensable and non-compensable causes has been the subject of considerable attention in the authorities. In Lingenberg v Gallichio,[42] the Court of Appeal approved the decision of J Forrest J in Alcoa[43] to the effect that s 91(7) of the Act requires a medical panel to disregard (that is, exclude) any degree of impairment from an unrelated inquiry or cause as best it can, and in undertaking that assessment, it is not bound to do so in accordance with the Guides. In Alcoa,[44] J Forest J said that:
... an unrelated injury means a separate or discrete injury not connected to the compensable injury – be it to the same part of the body as that affected by the compensable injury or to a separate part.[45]
114 Further, where there is evidence of a pre-existing impairment of the same body part under consideration, the following applies:
... if the evidence is sufficient to demonstrate the existence of a pre-existing impairment from an unrelated injury or cause, then the Panel must, as best it can, determine the extent of that impairment so it can be disregarded and evaluate the impairment related solely to the compensable injury.[46]
115 Significantly, his Honour stated
that, if there is evidence of pre-existing impairment a medical panel cannot, in
its discretion,
ignore the effect of that pre-existing impairment. In order to
fulfil its statutory duty, it must take that pre-existing impairment
into
account.
116 Turning now to the first ground of
review relied upon by Ms Wojcik, I accept the employer’s submission that
the present
case is distinguishable from
Wilson,[47] where Rush J
held that an incident whereby the plaintiff slipped and fell awkwardly activated
an “otherwise quiescent
pathology”.[48] In contrast,
in the current case, the Panel concluded that the relevant injury (being
ischaemic heart disease) was a constitutional
condition with multifactorial
causes.
117 The Panel’s reasons make clear
that the Ms Wojcik’s ischaemic heart disease was not a dormant pathology
activated
solely by the workplace stressors suffered by Ms Wojcik during
the course of her employment with the employer. The reasons provide
relevantly:
In forming its view regarding apportionment for any unrelated condition the Panel noted that the worker has strong family history of ischaemic heart disease, past history of dyslipidaemia, hypertension, sleep apnoea and prolonged smoking. The Panel considered that ischaemic heart disease is a constitutional condition with multifactorial determinants such as a genetic predisposition (family history and past history of dyslipidaemia), contributing medical conditions (hypertension and sleep apnoea), in addition to lifestyle/environmental influence (cigarette smoking). While the Panel acknowledges that psychological distress can at times unmask previously asymptomatic underlying ischaemic heart disease, the Panel is of the opinion that the overall effect of psychological distress on ischaemic heart disease is relatively insignificant. The Panel considered the worker’s family history, her concurrent medical conditions and unrelated smoking history and concluded that the worker was likely to develop symptomatic heart disease at some stage irrespective of the psychological distress being present due to any accepted workplace injury.
118 In satisfying itself of the matters
set out in the above passage, the Panel had regard to the evidence of Ms Wojcik,
her medical
history, and the reports of Ms Wojcik’s treating practitioners
in the referral materials, including the ECGs conducted on 26
November 2011
and 27 December 2013 and the Jelinek report. In the passage of the reasons
extracted above, the Panel has articulated
the evidentiary basis by which it
derived a positive satisfaction of Ms Wojcik’s pre-existing
impairment. The Panel’s
conclusion that Ms Wojcik was likely to
develop symptomatic heart disease regardless of the psychological stress due to
any accepted
workplace injury was arrived at from the material before it, using
the Panel’s skill and expertise, and therefore the Panel
cannot be said to
have failed to articulate an evidentiary basis for that conclusion in the sense
referred to by Rush J in
Wilson.[49] I do not accept
that the Panel impossibly conflated impairment with susceptibility to
impairment. Rather, the Panel relied upon
a considerable body of medical
evidence (in addition to its own expertise) to the effect that Ms Wojcik
suffered from an underlying
cardiac
impairment.
119 Nor does Ms Wojcik’s evidence
that, between 2006 and 2013 her heart condition was asymptomatic undermine the
evidentiary
basis relied upon by the Panel for its conclusions. The Guides
relevantly define impairment as “A loss, loss of use, or derangement
of
any body part, organ system, or organ function”. A lack of symptoms does
not therefore, of itself, necessarily preclude
there being an impairment, in the
relevant sense, if there is a degradation in the condition or function of the
heart over time.
In other words, notwithstanding Ms Wojcik’s
evidence as to her lack of symptoms, the Panel set out the evidentiary basis
upon
it which concluded that there was, nevertheless, 28 per cent
actual pre‑existing impairment. In this regard, it is notable
that the
conclusions of the Panel are broadly consistent with the findings in the Jelinek
report, and the report of Dr Jeremy Hammond
dated 21 October 2016 contained
in the referral materials, which provided relevantly, as follows:
The condition of coronary atherosclerosis will have developed over time due to a combination of factors. These include a long history of smoking 20 to 25 cigarettes per day, in addition to a longstanding history of hypertension.
120 In my view, the submissions advanced on behalf of Ms Wojcik impermissibly conflate impairment with symptomatic presentation. As observed by senior counsel for the employer, heart disease, like cancer, can be a silent killer. Remembering that the statutory definition of impairment includes the “derangement” of a body part, organ system, or organ function, the dictionary definition, relevantly, is as follows:
derange (deranged, deranging). ... 2. to disturb the condition, action or functions of ...
deranged 1. disordered.
derangement 1. the act of deranging. 2. disarrangement; disorder.
121 Given that Ms Wojcik’s
impairment did not involve any loss or loss of use of a body part or organ, any
adverse change in
the condition or function of the heart, even in the absence of
symptoms, must arise out of a “derangement” of the heart.
The
members of the Panel, based upon the history given by the worker, the voluminous
medical reports provided to them, and their
specialist expertise, formed what
seems to me to be an unremarkable opinion that the development of plaque in the
coronary arteries
and the consequent impairment of the function of the heart was
caused by a range of non-work-related factors. While Ms Wojcik’s
work environment and the resultant stress may have unmasked a pre-existing
impairment, the Panel considered, as it was entitled to
do, that the workplace
stress did not cause her impairment, and it identified the evidence upon which
that conclusion was based.
122 Contrary to the
submissions advanced on behalf of Ms Wojcik, in my view, this case is on
all fours with the decision of Williams
J in
Leemark,[50] rather than the
decision of Rush J in
Wilson.[51] In
Leemark,[52] the relevant
employer successfully argued that a medical panel was in error in discounting
the effect of a worker’s smoking
history upon his diagnosed respiratory
conditions. The employer submitted that:
... the panel had inappropriately focussed upon the question whether the worker had previously been incapacitated by any respiratory symptoms and equated prior injury or cause and unrelated injury or cause. The reasons show that it did not ask itself whether the worker’s smoking was also a cause of the impairment it had assessed.[53]
123 Her Honour agreed, stating as follows:
In my view, there was evidence before the panel of respiratory impairment from the unrelated injuries or causes of the worker’s continuing smoking and prior exposure to asbestos in previous employment. The panel was obliged by s 91(7)(c) of the Act to disregard those parts of the worker’s impairment resulting from any unrelated employment or smoking. It failed to do so and erred in law.
There is no complaint about the panel’s assessment of the severity of the worker’s impairment under Chapter 5 of the Guides and its classification of that impairment. The employer objects however to the panel attributing his whole person impairment to left sided pleural thickening caused by workplace dust exposure, without making a determination of the contribution to that impairment made by his continuing smoking and or the continuing effects of relevant exposure in his earlier employment and disregarding that contribution.
The panel showed that it had failed to make the necessary determination by restricting itself to a determination as to the effects of prior, as opposed to concurrent, injury. It also failed to comply with its obligations by not taking into account any effects of unrelated injury which might have revealed themselves after the November 2005 investigations cited by the panel.
There was evidence which the panel accepted as to both the worker’s asbestos exposure in past unrelated employment and as to his past and continuing smoking. The panel had evidence too of the expert opinions from Dr Robertson and others, to which I have already referred, to the effect that the worker’s respiratory impairment was attributable to both the unelated previous employment and to his past and continuing smoking.[54]
124 Similarly, in the current case, the
Panel evaluated the impact of a range of factors which may have caused
Ms Wojcik’s cardiac
disease, and concluded that her workplace stress
was only one of a number of causative
factors.
125 In contrast, in
Wilson,[55] the claimant had
tripped and fallen in a store and had suffered injuries to her upper arm and
neck, and consequently, the onset of
a chronic pain syndrome and/or a complex
regional pain syndrome. The medical panel had regard to a CT scan of the
claimant’s
cervical spine and concluded that there was a level of
impairment related to constitutional spondylosis due to unrelated causes which
the medical panel should disregard, notwithstanding the uncontradicted history
given to the medical panel was to the effect that
the claimant had not
experienced any pain or injury to her right shoulder or neck prior to the fall.
His Honour held as follows:
Whilst the Panel correctly identified the legal principles, in my opinion it failed to properly implement those principles in determining pre-existing impairment of the plaintiff’s cervical spine to be disregarded. There was no evidentiary basis by which the Panel could derive a positive satisfaction of a pre-existing impairment. An underlying asymptomatic degenerative change does not provide any such evidentiary basis; it is not an impairment. The ‘constitutional spondylosis’ demonstrated by the CT scan Report alone, with no evidence of any associated injury, pain or impairment, could not be considered as providing such evidentiary basis. I do not accept that an impairment arising from an aggravation of a pre-existing, silent, cervical degeneration can be said to be an impairment from an unrelated cause. In my opinion, s 28LL(3) of the Act cannot be interpreted as permitting an injury and impairment in fact caused by the Incident to be disregarded.[56]
126 His Honour then went on to consider
the question of whether the existence of a pre‑existing spinal pathology
compelled the
medical panel to conclude, as it did, that the relevant incident
did not trigger or cause an aggravation of an “otherwise quiescent
pathology”, and concluded that there was no evidentiary basis identified
for the medical panel to so conclude.
127 Such a
conclusion is readily comprehensible in the context of an orthopaedic injury,
where a specific incident or work practices
and/or work environment might render
a previously asymptomatic underlying condition symptomatic, in circumstances
where the symptoms
themselves are productive of impairment, that is, the
inability to use, or fully use, the affected body part. In such cases, it
is
commonplace for the conclusion to be drawn that notwithstanding the existence of
a pre-existing abnormality or propensity, the
impairment has been caused or
aggravated by the incident or environment concerned. However, when one is
concerned with a progressive
disease, which may well develop for some time
before any symptoms appear, which of itself satisfies the definition of
impairment
prior to becoming symptomatic, the Panel is entitled to, and indeed
must, assess the evidence of a range of causative factors, and,
to the best of
its ability, disregard those causative factors not related to the relevant
incident or employment, which is what the
Panel did here. Indeed, if the Panel
had not evaluated the role of these other matters in contributing to the
impairment of the
function and condition of Ms Wojcik’s heart, but
only focussed upon Ms Wojcik’s experience of symptoms, the Panel may
well have fallen into the same kind of error affecting the decision of the
medical panel in
Leemark.[57]
128 For
completeness, the current case can also be distinguished from the reasoning in
Bazouni,[58] where
McDonald J held that a medical panel’s finding to the effect that a
claimant’s psychiatric impairment had been
caused by unrelated
“issues” was unreasonable and/or irrational. In
Bazouni,[59] there was no
evidence that these “issues” had caused any prior impairment,
indeed, the evidence was to the contrary.
In the current case, there was
medical evidence to the effect that Ms Wojcik’s cardiac impairment
was likely to have developed
over a period of time, as a result of a range of
factors.
129 Accordingly, Ms Wojcik has failed to
establish her first ground of review.
130 Ms
Wojcik’s next grounds of review, (b) to (d), being that the Panel failed
to take into account relevant considerations,
namely Ms Wojcik’s denial of
pre-existing impairment, the ECGs taken on 26 November 2011 and 27 December
2013, and the absence
of pre-existing impairment, may be taken together. My
finding above that the Panel considered each of these matters in establishing
its evidentiary basis for its conclusions are dispositive of each of these
grounds and therefore they must each fail. For similar
reasons, ground (e) must
also fail.
131 As for ground (f), no submissions
were advanced to the effect that the Panel erred in their interpretation or the
application
of the Guides. From my reading of the reasons, that ground of
review has no substance and must fail.
132 As for
ground (g), the relevant principles in regard to adequacy of reasons were
summarised by the Court of Appeal in Dundar v
Bas,[60] as follows (citations
omitted):
First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel’s path of reasoning, and to enable a court to see whether the Panel’s opinion involved any error of law.
Second, the standard of reasons required of a medical panel is not to be equated with the standards of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.
Third, as a corollary —
a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.
Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.
Fifth, a panel’s reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.
Sixth, ... if a conclusion was to be reached that the worker had an ability to engage in employment which required one or more duties which had been generically described in a computer print-out, the Panel was ‘required to give some practical content to the job involved, in order that its conclusion was capable of being examined’. That was no more than Wingfoot required.
Seventh, it is a commonplace for panels to state that they have considered ‘all aspects’ of the definitions of ‘suitable employment’, ‘current work capacity’, and ‘no current work capacity’. Such a ritual incantation, however, could be no answer to demonstrable deficiencies in a panel’s understanding of the content of those terms or exposition of its path of reasoning in a particular case.[61]
133 Ms Wojcik’s submission that the
Panel’s reasons are deficient by reason of an absence of analysis of what,
if any
impairment each of Ms Wojcik’s family history, other medical
conditions and lifestyle environment factors have caused, and
a lack of a clear
path of reasoning for the finding that impairment from those other factors
amounted to a 28 per cent whole person
impairment must also be
rejected. As previously noted, the Panel has produced detailed, cogent and
thorough reasons which set out
the basis upon which it reached its conclusions
as to Ms Wojcik’s pre-existing impairment, and expressly engaged with Ms
Wojcik’s
evidence as to her lack of symptoms between 2006 and 2014 and the
results of the ECGs conducted in 2011 and 2013.
134 That the Panel considered that the ECG
undertaken in 2011 did not show any
abnormalities[62] and acknowledged
that Ms Wojcik was asymptomatic prior to 2014 does not necessitate a conclusion
that the Panel has therefore failed
to explain its reasons for rejecting
Ms Wojcik’s contention that the sole, or predominant, cause of her
heart disease was the
workplace stressors she endured in 2013. As discussed
earlier in these reasons above, it was open to the Panel to conclude that
there
was a pre-existing impairment, notwithstanding that such impairment did not
manifest in symptoms.
135 I agree with the
employer’s submissions to the effect that the Panel’s reasons
clearly explain that Ms Wojcik’s
impairment had developed over time
largely as a result of causes other than psychological injury. The
Panel’s reasons disclose
a clear pathway to its conclusions and therefore
comply with the Wingfoot[63]
standard.
136 It follows that the Panel has
discharged its obligations to act in accordance with the requirements of
s 91(7)(c) of the Act and
that Ms Wojcik’s application for judicial
review must be dismissed.
SCHEDULE OF PARTIES
|
|
|
|
|
S ECI 2020 01760
|
|
|
|
|
|
|
|
BETWEEN:
|
|
|
|
|
|
|
|
|
GIOVANNA WOJCIK
|
Plaintiff
|
|
|
|
|
- v -
|
|
|
|
|
|
GENERAL CARRYING PTY LTD
|
First Defendant
|
|
|
|
|
ASSOCIATE PROFESSOR PETER GIBBONS (Convenor of Medical Panels)
|
Second Defendant
|
|
|
|
|
THE MEDICAL PANEL (Constituted by Dr Jack Owczarek and Dr Peter
Habersberger)
|
Third Defendant
|
[1] For present purposes, it is not necessary to determine whether Ms Wojcik’s allegations are proven, or are accepted as being true. I have proceeded on the basis that Ms Wojcik’s allegations of bullying and harassment are true, and that they have had a deleterious impact upon her health.
[2] As the agreed date of injury predated the commencement of the relevant provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), her entitlements are assessed in accordance with the Act.
[3] Of the Act.
[4] I assume that the “SLE date” is the date upon which the statutory limitation period for any common law claim was due to expire, being 1 January 2020.
[5] Citing Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors [2013] HCA 43; (2013) 252 CLR 480 (‘Wingfoot’) at [35]-[36].
[8] Ibid [25].
[9] [2019] VSC 407. This decision concerns a determination of a medical panel governed by the Wrongs Act 1958 (Vic), (‘Wrongs Act’). The provisions of the Act and the Wrongs Act governing the assessment of impairment are in similar, but not identical terms.
[10] Ibid.
[11] Bazouni [17].
[12] Ibid.
[14] Ibid.
[15] Ibid.
[20] Ibid [29].
[21] [2013] HCA 43; (2013) 252 CLR 480.
[22] Referring to Mann at [5], [8].
[23] (1984) 6 ALD 1.
[24] Ibid 3.
[25] [2014] VSC 497, upheld on appeal in Lazarevic v Victoria Police [2015] VSC 13.
[26] Lazarevic [35].
[28] Ibid [71]. See also Wurth Australia Pty Ltd v Gallichio (2010) 34 VAR 37.
[34] Ibid.
[36] Ibid.
[37] [1995] VICSC 209; [1996] 1 VR 635.
[38] Ibid, 661.
[40] [1995] HCA 58; (1995) 184 CLR 163.
[41] Ibid, 179.
[42] [2013] VSCA 143; (2013) 40 VR 60.
[44] Ibid.
[45] Ibid [61].
[46] Ibid [76(a)].
[48] Ibid [34].
[49] Ibid.
[53] Ibid [81].
[54] Ibid [90]-[93].
[56] Wilson, [29].
[59] Ibid.
[61] Ibid [47]-[53].
[62] Aside from non-specific T-wave flattening in the anterior leads.
[63] [2013] HCA 43; (2013) 252 CLR 480.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VSC/2021/233.html