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Supreme Court of Victoria |
Last Updated: 21 June 2021
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01813
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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ADMINISTRATIVE LAW – Judicial Review – Medical Panel –
Workplace incident – Termination of ongoing entitlements
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Exacerbation injury to thoracic and lumbar spine – Extensive prior
incidents of injury – Nature of workplace
exacerbation – Resolution
of exacerbation – Whether panel demonstrated path of reasoning –
Workplace Injury Rehabilitation & Compensation Act 2013 (Vic) –
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 –
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
– Chang v Neill & Ors [2019] VSCA 151.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Arnold Thomas & Becker
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For the First Defendant
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Landers & Rogers
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1 Mr Matthews (the worker) was in
receipt of WorkCover payments for a back injury that had occurred in September
2004 (the Workplace Incident). When his weekly payments and medical
expenses were terminated in 2018, he commenced proceedings in the
Magistrates’ Court
of Victoria. The Magistrate referred questions to a
medical panel (the Panel) in accordance with the Workplace Injury
Rehabilitation & Compensation Act 2013 (Vic) (WIRC Act). The
opinion of the Panel had the effect of conclusively determining the proceeding
adverse to the worker on the question of ongoing
entitlements. The plaintiff
seeks orders quashing the Panel’s certificate of opinion dated 24 February
2020 (Opinion) and remitting the referred medical questions to a
differently constituted medical panel.
2 The Panel,
constituted by Dr McRae, Mr O’Loughlin, Associate Professor Chalkiadis and
Dr Grant, who are the second to fifth
defendants, have taken no part in the
proceeding in accordance with a Hardiman letter dated 30 March
2021.[1] The first defendant employer
is the contradictor.
3 The claim form had identified
the injury as occurring on 27 September 2004 when unloading and lifting computer
monitors off the
back of a truck. He had been working in this employment since
February 2004. The injuries in the Magistrates’ Court pleadings
were for
injury to the thoracic and lumbar spine with a consequential pain syndrome and
consequential psychiatric injury. The defence
pleaded that the plaintiff has a
current work capacity, and if he did not, then any incapacity does not result
from, nor is materially
contributed to, by the
injury.
4 The worker had previous claims for back and
other injuries from work incidents and car accidents. He also suffered an
injury in
a subsequent car accident on 24 December 2005 in which he suffered
significant unrelated injuries included injury to his cervical
spine.
5 It was in this context that the Panel
provided its answers to the following questions:
Question 1: What is the nature of the Plaintiff’s medical condition, including any sequelae, relevant to the following alleged injuries:
Answer: The Panel is of the opinion Mr Matthews is suffering from chronic axial musculoskeletal pain in the setting of past thoracic crush fractures, multiple motor vehicle accidents, including a motor vehicle accident requiring hospitalisation after the alleged injuries, osteoporosis and previous workplace injuries causing age-related, constitutional degenerative thoracic spine changes. The Panel is of the further opinion that he suffered a now-resolved symptomatic exacerbation injury of his thoracic spine at the time of his alleged injuries, and he is now suffering no medical condition of his lumbar spine, thoracic spine or consequential pain syndrome relevant to the claimed injuries.
The Panel is also of the opinion that Mr Matthews has a mild chronic Adjustment Disorder arising secondary to chronic pain and physical restrictions attributable to his now resolved physical injuries, his relationship breakdown and his ongoing medical, non-injury-related diagnoses.
Question 2: What is the extent to which any physical or mental condition of the Plaintiff results from or is materially contributed to by any and if so which of the said injuries?
Answer: The Panel is of the opinion that Mr Matthews’ symptomatic exacerbation injury of his thoracic spine in the setting of past thoracic crush fractures, multiple motor vehicle accidents, osteoporosis and previous workplace injuries causing age related, constitutional degenerative thoracic spine changes, resulted from and was materially contributed to by his claimed injury, however no longer results from or is materially contributed to by the claimed injury.
The Panel is also of the opinion that Mr Matthews’ mild chronic Adjustment Disorder was and still is materially contributed to by his physical injuries (which have now resolved).
Question 3: As at the date of the Medical Panel’s examination of the Plaintiff, does the Plaintiff have:
Answer: In the Panel’s opinion Mr Matthews has no present inability arising from an injury such that he is not able to return to his pre-injury employment.
Question 4: If the plaintiff has no current work capacity, is such incapacity likely to continue indefinitely?
Answer: Not applicable
Question 5: If applicable, whether the Plaintiff’s incapacity for work, if any:
Answer: Not applicable
6 There are nine grounds for review. In
essence most address error in the Panel’s answer to Question 1 and the
conclusion that
the worker suffered a ‘now resolved symptomatic
exacerbation injury of his thoracic spine’ in the Workplace
Incident.[2] The first five grounds
in various ways attack this conclusion on the basis that there was no evidence
of pre-existing symptoms or
signs of back pain and limitation prior to the
incident and that the Panel failed to have regard to relevant material which
demonstrated
a lack of any signs or symptoms of back pain prior to the Workplace
Incident.[3] The further three
grounds attack the conclusion that the symptomatic exacerbation injury had
resolved on the same bases of no evidence
or a conclusion not open to the Panel
or reliance on irrelevant material. The final ground addresses a failure to
explain a path
of reasoning to the conclusion
reached.
7 For the reasons that follow, I have
concluded that the Panel’s reasons did not disclose a path of reasoning so
as to understand
the conclusions that they reached as to the nature of the
alleged injury and its cessation. This inadequacy makes it impossible
to
determine whether or not there was legal error in the considerations that the
Panel was obliged to have regard to and whether
or not there was some evidence
upon which their conclusions were based.
Identifying the injury - Question 1
8 The Panel commenced its reasons by
noting Mr Matthews to be a difficult historian with a complex medical history,
which included
multiple spinal injuries and other medical conditions. It noted
that his answers were inconsistent or often provided unrelated information.
In
addition to Mr Matthews’ own answers, the Panel had access to voluminous
medical material including medical records and
reports from various treating
practitioners and medico-legal examiners both before and after the Workplace
Incident.
9 Allowing that the Panel found Mr Matthews
to be a difficult historian, I will commence with a summary of the documentary
material
before the Panel as to the prior injuries, symptoms and restrictions.
This fell into two categories: those reports that predated
September 2004 and
dealt with pre-existing injuries, and those since 2004 dealing with the
pre-existing situation, the Workplace
Incident and the subsequent motor vehicle
accident. It is useful at this stage to focus on the material at and before
September
2004.
10 The claim form had identified
previous pain and disability in the area of his present injury and described
this as ‘previous
back injury long time
ago’.[4] The initial medical
certificate identified ‘strained upper thoracic T5-6 spine, mild strain to
lumbar spine’. As to
previous history it said, “past history of
crush fractures T8/T9 probably unrelated to current
problem”.[5] The medical
certificate was provided by the Monash Emergency Department, the plaintiff
having been driven there from work because
of his symptoms.
The prior history of spinal injury
11 Before the Workplace Incident, the
earliest documented episode of back pain is a Workers’ Compensation Claim
in Queensland
in 1981 when Mr Matthews was 20 years old. He suffered a low back
strain lifting heavy bags of flour. There was some reference
to sciatic pain
into the legs. An orthopaedic registrar wrote that on review there were no
neurological deficits and no abnormality
on x-ray. The medical consensus was a
ligamentous and muscular strain. A series of reports from the treating general
practitioner
at the time, Dr Allchin, document persistent pain continuing until
his last report in October 1982. In that last report, he confirms
the ongoing
nature of symptoms since their commencement in August 1981 and that recent
events were not a recurrence. This seems
to be a reference to Mr
Matthews’ recent attempt to start a business driving a tip truck, which he
found was work he could
not handle because the activity worsened his level
symptoms.
12 In 1983, Mr Matthews attended Dr
Allchin following a motor vehicle accident in which he was hit from behind in a
stationary car.
He was said to have a low back and neck strain. Nothing
further was noted regarding this incident.
13 In
1984, Mr Clifford examined Mr Matthews for medico-legal purposes. He recorded a
history of back pain commencing when lifting
a jack in 1979 which led to a week
off work with a second episode of injury lifting bags of flour, in 1981. He
noted the time off
work and the attempt at the tip truck business towards the
end of 1982. Since that time, the worker was said to have had various
forms of
employment but was unemployed from 1983, and was currently volunteering at
Yooralla and hoping to obtain paid work. He
presently had some pain, worse with
activity, for which he was taking no pain medication. He had near full range of
movement and
an x-ray at the time showed no abnormality. Mr Clifford thought he
was fit for work in any field which did not require moderately
heavy lifting.
He attributed most of the problems to the 1981 injury. He opined that the
injury did not relate to any pre-existing
condition and will not worsen without
further injury.
14 From the documents it appears
that in May 1984 Mr Matthews commenced work with City of Moorabbin and on 21 May
1984 he suffered
a work injury of a strained back while removing a cement saw
from a trailer.
15 A letter from State Insurance
Office refers to a workplace accident on 29 May 1985, where Mr Matthews suffered
a ‘slipped
and torn disc’ while stepping from his truck. The claim
involved weekly payments for one week and total medical expenses of
$150. An
x-ray was taken as part of that claim. Dr Allchin also reported in relation to
this injury describing it as substantially
resolved by 6 June
1985.
16 Next there was a motor vehicle accident on
22 August 1985. The plaintiff was the driver when he was struck by a vehicle
that turned
right into his path of travel. The County Court Writ issued in
relation to that accident claimed injury to the cervical and lumbar
spine and
compression fracture of T8 among other particularised injuries. His employment
at the time was said to be as a council
worker and particulars of special damage
in the statement of claim modestly claimed that he was unable to work for one
week following
the collision and that he may have a diminution in capacity for
particular employment activities.
17 In December
1985, Dr Allchin provided a medical report in relation to injuries sustained in
this latest motor vehicle accident.
X-rays at that time revealed a compression
fracture of the 8th dorsal vertebra and evidence of Scheuermann’s disease
but no
injury in the lumbar or cervical spine. Within two days, neck pain had
cleared and some mid-dorsal pain consistent with the compression
fracture
remained. Having described the various incidences of injury thus far, Dr
Allchin stated in December 1985 that:
It would be thus reasonable to assume that these three episodes [1981, the March 1983 car accident and May 1985] would have left some residual disability which was aggravated in the accident on 21 August 1985. The injury to his dorsal spine and the compression fracture of his 8 dorsal vertebra was certainly caused by this accident and will be responsible for a degree of permanent disability.[6]
18 Mr Clifford examined Mr Matthews for a
second time in May 1986. By that time the worker had improved. He remained
working at
a local council as a driver and was studying at RMIT. He had some
thoracic pain and occasional lumbar pain that did not worry him
significantly.
Mr Clifford noted the 1985 x-ray showing thoracic region Scheuermann’s
disease and no lumbar abnormality.
The previous problem was described as
‘all but settled’.[7] He
thought the Scheuermann’s was the cause of the thoracic pain rather than
the earlier work injury or car accident.
19 Mr
Critchley also examined him in 1986 in relation to the 1985 car accident. He
opined Mr Matthews had suffered a soft tissue
injury to his neck and back and
was making a satisfactory recovery, prognosticating for a full
recovery.
20 In August 1986 he had been medically
examined in relation to the 1985 motor vehicle accident by Mr Wale, a surgeon.
He gave a
history of the 1983 motor accident which led to no time off work or
medical treatment. He was diagnosed with a flexion and extension
injury in the
1985 car accident which had resolved ‘almost
completely’.[8] Further
improvement was expected with him becoming pain free over
time.
21 A 1986 Work Injury Claim form noted a
strained muscle in the side of back suffered by the plaintiff when catching a
machine falling
off a trailer on 7 November 1986 while working for the local
Council.
22 When seeing the plaintiff again in
August 1988, Mr Wale obtained a history that he had been working between March
and May 1988
as a landscape gardener, which involved a lot of heavy lifting. He
observed a good recovery from the 1985 motor vehicle accident
and return to an
occupation with a large physical input. However, he also observed the
complication of a further recent motor vehicle
accident which had left the
plaintiff’s right leg in a cast.
23 That motor
vehicle accident had occurred on 23 May 1988 (the 1988 accident) when the
plaintiff was driving home from his work with the Council. His occupation at
that time was listed as bluestone worker.
He fractured his left clavicle, right
ankle, damaged his right knee, left ankle, right shoulder and lost part of an
ear. There
was initially no mention of back or neck pain in the documentation
relating to this accident.[9] He
received weekly payments until they were terminated in January
1992.
24 In disputing that termination, a medical
report by Dr Fredman[10] (from the
same clinic as Dr Allchin) was prepared. He noted that Mr Matthews had been a
patient of that clinic since at least 1966
(at which time he would have been
five years old). That report made clear that Mr Matthews had been working for
Moorabbin Council
between 1984 until about 1987 and thereafter as a bluestone
mason initially part-time from August 1987 and then full-time from March
1988
until the 1988 accident. Prior to that work, he also had a stint as a
self-employed mechanic. He detailed psychiatric problems
during this time which
had not precluded him from work. It confirmed an ongoing incapacity for work by
reason of the injuries related
to the 1988 accident. By 1992, Dr Fredman
included a lumbar spine and sacro-iliac joint strain in the complaints since the
1988
accident. It confirmed he was working and not needing attention for
physical disability in the years prior to May
1988.[11]
25 In
its determination of the dispute in April 1992, the WorkCare Appeals Board (the
WAB) affirmed the decision to terminate weekly payments concluding that
the physical injuries no longer precluded him from carrying out
his pre-injury
duties and that his psychiatric condition would preclude him from returning to
employment but was unrelated to the
1988
accident.
26 There was a discharge summary from a
psychiatric admission in 1989. He had significant psychiatric and criminal
issues at that
time. It was recorded that he trained as a motor mechanic and
enjoyed that work until the car accident (presumably a reference to
the 1988
accident) which he could no longer do because of leg
pain.
27 On 3 April 1999, an x-ray report, addressed
to Dr Fredman, was conducted of the whole spine and abdomen. The only spinal
abnormalities
noted were the longstanding compression fractures at T8 and T9.
There was no indication as to the reason for the
investigation.
28 There are no other contemporaneous
medical documentation regarding pre-accident
symptoms.
29 The Panel obtained a history from Mr
Matthews that from the late 1980s he moved into the computing and information
technology field.[12] It was clear
that this followed retraining during rehabilitation from the 1988 accident.
Subsequent injury
30 Subsequent to the Workplace Incident,
the plaintiff was involved in a further motor vehicle accident on 24 December
2005 (2005 accident). He was a passenger in a stationary vehicle that
was rear ended. His Transport Accident Commission claim form referenced an
existing
thoracic spine injury for which he was receiving physiotherapy,
hydrotherapy, he was seeing both a general practitioner and specialists
and was
taking oxycodone, diazepan, mobic and nexium.
31 The
injuries received in this accident were identified by the Alfred hospital as
neck injury, closed head injury and headache.
The Panel’s Reasons
32 In the reasons for its Opinion, the
Panel set out a section headed ‘History Provided by Mr Matthews’,
which dealt with
what the Panel was told about the worker’s employment
with the first defendant and the circumstances of the Workplace Incident.
It
references both the Workplace Incident and a history of a “twinge”
felt some days earlier when moving heavy furniture.
It otherwise does not
reference symptoms of back pain while working in computing and information
technology with the first defendant
or
otherwise.
33 It then set out details of other
injuries under a heading ‘Past Spinal Injury History’. It appears
to be drawn from
documentation and there is nothing to indicate that any part of
that history was obtained from Mr Matthews during his attendance
at the
Panel.
34 In the ‘Past Spinal Injury
History’ section the Panel identified the 1979 and 1981 injuries. The
reasons then stated:
He was involved in several motor vehicle and work related accidents with various spinal injuries between about 1983 and 2005.[13]
35 The Panel went on to list the 1983 and 1985 car accidents and the slip from the truck in May 1985, a work incident in June 1986[14] and the November 1986 falling equipment claim. The Panel then continued:
He had a further motor vehicle accident about 23 May 1988, which resulted in a fractured left clavicle and right ankle and right tibial spine. He was hospitalised for about five days after a motor vehicle accident about 24 December 2005 when he was a front seat passenger in a vehicle hit from behind, and which included head trauma without loss of consciousness. After these past back pain episodes, he had ceased all analgesic medications, and was taking none prior to the incident.[15]
36 Although the 1988 accident did not
involve any discrete injury to the spine, the Panel made reference to Dr
Fredman’s recorded
complaint of lumbar spine strain and the worker’s
history as given to the WAB, and appears to have included time after that
accident as a period producing lower back pain. The reason for including the
2005 accident immediately prior to summarising the
situation prior to the
incident is not apparent.
37 From this material,
evidence of back pain between 1979 and 1986 included both times of persisting
pain and other occasions of pain
that settled quickly. The Panel made specific
reference to the WAB’s history that he ‘continued to suffer with
lower
back pain down both legs into his knees and ankles. When his back pain is
severe he has to lie down to reduce that pain’ and
the reference to Dr
Fredman’s findings of tenderness of the lumbar spine and both sacroiliac
joints, and sciatica in both legs
from the S1 nerve
root.[16] The Panel had no other
material before it as to back pain or other signs or symptoms from 1992 until
2004, save for the normal x-ray
report of
1999.
38 The Panel then set out the current
symptoms, and medication use, again noting no use of analgesia
‘immediately’ prior
to the incident. It set out its findings from
both the physical and psychiatric examinations and gave a recitation of all the
radiological
reports both before and after September
2004.
39 The Panel then set out its assessment. It
considered that the examination demonstrated significant non-organic illness
behaviour
and behavioural features of protective pain behaviour. As to the
injury sustained in the work incident it concluded:
... that Mr Matthews suffered a symptomatic exacerbation of chronic, post-traumatic pain secondary to multiple previous back injuries sustained in motor vehicle and work-related accidents that has since (after more than 14 years) resolved. Following a more recent motor vehicle accident in 2005, after the incident, Mr Matthews’ pain symptoms have increased as supported by the report of his treating psychologist and his increased analgesic requirements. The Panel considers that his underlying constitutional condition is now causing his current symptoms.[17]
40 As to the present medical condition the Panel concluded that:
... he is now suffering from chronic axial musculoskeletal pain as a result of past thoracic crush fractures, multiple motor vehicle accidents, including a motor vehicle accident requiring hospitalisation after the incident, and osteoporosis. The Panel further concluded that Mr Matthews is suffering no medical condition of his lumbar spine, thoracic spine or consequential pain syndrome relevant to the claimed injuries.[18]
41 The worker submitted that the history
of spinal injury as outlined above provided no evidence from which the Panel
could conclude
that what occurred in September 2004 was a ‘symptomatic
exacerbation of chronic, post traumatic
pain’.[19] He further
submitted that the history relevantly demonstrated an absence of signs and
symptoms of thoracic or lumbar back pain for
a substantial period of time prior
to 2004 and this was disregarded.
42 The first
defendant submitted that the characterisation of the injury as an exacerbation
injury did not assume any particular pre-existing
level of signs or symptoms.
Rather by its description as a ‘symptomatic exacerbation injury’ in
answer to Question 1,
the Panel referred to the type of injury and not to an
exacerbation of symptoms.
Analysis
43 In oral argument the defendant took me to the very clear statements of Kitto J in Federal Broom Co Pty Ltd v Semlitch[20] as to the nature of an exacerbation injury. Construing the definition of injury, which included injury by way of aggravation, acceleration, exacerbation or deterioration, the Court said each of the four qualifying words were not synonymous with each other. As applied to a psychiatric disease, Kitto J said of an exacerbation injury:
It is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development.[21]
44 Kitto J approved the trial judge’s wording:
There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.[22]
45 The word directs attention on the
experience of the disease rather than the underlying mechanism or progress. In
Semlitch, the exacerbation was evidenced by the onset of a new delusion
which caused an incapacity for work. Kitto J used the illustration
of salt
rubbed into a wound, making the wound sting but not altering the wound, as an
example of an exacerbation injury.
46 The analysis
is helpful. Considering the application of salt in this case to be the
occurrence of the Workplace Incident, the
question can then be posed –
what symptoms did the Panel consider were intensified or increased, or what new
symptom was introduced,
by the Workplace Incident? By reference to its reasons,
the Panel answered this by identifying the underlying wound as ’chronic,
post traumatic pain secondary to multiple previous back injuries’
sustained in identified accidents. In context, this cannot
logically be a new
symptom of pain but an intensification of previous pain, which was already
considered by the Panel to be chronic
in
nature.
47 This is, in my view, borne out by the
reasons in a number of ways. First, a fair reading of the reasons as a whole
describes a
continuum from the time of the initial work injuries. The Panel
commenced its summary of the past episodes of injury as quoted above
at 34 as a
period between 1983 and 2005. It concludes with the statement quoted above at
35 that after all these he had ceased all
analgesic medication and was taking
none prior to the Workplace Incident. Inexplicably, the Panel seems to have
included the 2005
accident in these
episodes.
48 Second, the Panel qualified the period
of no use of analgesia for back pain to a time ‘Immediately prior
to the incident’, which at least inferentially suggests it acted on the
understanding that
between 1992 and 2004 analgesic use for back pain continued.
The documentary evidence does not reveal a basis for such a finding
and the
reasons do not disclose such a history having been obtained from the
worker.
49 Third, and perhaps critically, the Panel
disagreed with the opinion of the general practitioner who had been treating Mr
Matthews
since the late 1990’s on the question of the onset of symptoms.
Dr Christiansen took over treatment of Mr Matthews since the
retirement of Dr
Fredman in the mid-90s.[23] In
January 2007, Dr Christiansen wrote to QBE workers compensation in respect of
the 2004 WorkCover claim in these terms:
Mr Matthews has asked that I confirm his serious injury to you. He is severely limited in most physical activities by a permanent painful kyphoscoliosis. This has been stable for some twelve (12) months after a progressive worsening since his injury.
As you are aware he has compression fractures of four (4) thoracic vertebrae. Every treatment modality suggested by myself and his specialists has been well complied with but of no use.
He is not fit for gainful employment for the foreseeable future.[24]
50 Dr Christiansen said Mr Matthews was
unable to work again, and that “this was the case after his thoracic spine
injury –
he is kyphotic and stiff and requires constant narcotics for
pain”.[25] The Panel made
particular reference to this report.
51 The Panel
took issue with Dr Christiansen’s opinion and did not accept his
attribution of thoracic pain and stiffness to
the 2004 Workplace Incident. It
considered that the kyphoscoliosis and compression fractures pre-dated the
Workplace Incident.
Both may well have pre-dated the incident. However it went
on to say:
The Panel noted that Dr Christiansen attributes Mr Matthews’ symptoms to the incident, but the Panel notes the pre-existing symptoms and signs from prior to the incident.[26]
52 The Panel then recorded a number of
reports written by Dr Christiansen all documenting chronic and intractable
pain, [27] stooped posture and need
for narcotic medication commencing from the incident in 2004, and reporting [Mr
Matthews’] 1980s motor
vehicle accident and associated T8 vertebral crush
fracture, and emphasising his thoracic spine
pain.
53 The Panel came to a view about symptoms
prior to September 2004 contrary to that consistently expressed by Dr
Christiansen since
2005.[28] It was
entitled to reach that conclusion, but at the very least it was obliged to make
clear a path of reasoning as to why the Panel
reached a different conclusion as
to symptom onset. A bald statement noting ‘pre-existing symptoms and
signs from prior to
the
incident’,[29] as an
explanation for disagreeing with Dr Christiansen’s observation without
qualification is not a path of reasoning. Neither
the documentation provided
nor the history obtained from the worker demonstrated the continuation of
chronic symptoms and signs persisting
until shortly before or at the time of
Workplace Incident. The Panel was not simply disagreeing with Dr
Christiansen’s opinion
as to causation, it was also disagreeing with Dr
Christiansen’s report that as a matter of fact symptom onset on
presentation
to him dated from September
2004.
54 Fourthly and similarly, the Panel expressed
its disagreement with Dr Gassin’s assessment in his 2019 medico-legal
report.
Dr Gassin reported that the worker had a history of early 1980s back
pain, and made reference to the 1988 and 2005 car accidents
with the injuries as
claimed. He concluded that Mr Matthews was known to have pre-existing changes
in his thoracic spine and felt
it probable that the Workplace Incident
aggravated these conditions. The Panel said Dr Gassin was told ‘Mr
Matthews relate[s]
the onset of his thoracic back pain to the performance of a
specific duty at work on 27 September
2004....’.[30] The Panel said
that it is:
... satisfied there is sufficient evidence that this premise is incorrect, so it came to a different conclusion to Dr Gassin.[31]
55 Nowhere do the reasons identify what
factors amounted to the sufficient evidence upon which the Panel was so
satisfied.
56 Indeed the Panel continued to then
repeat the form of words when noting and disagreeing with the opinion of Dr
Slesenger. It said:
The Panel noted the opinion of Dr Slesenger, Specialist Occupational Physician, dated 18 March 2019 in which he stated “Mr Matthews advised that he was injured during the course of his employment”. The past history he obtained included an episode of lower back pain some 30 years ago, treated with a steroid injection, resolving completely without recurrence until the injury under consideration”. The Panel is satisfied there is sufficient evidence that this premise is incorrect, so it came to a different conclusion to Dr Slesenger.[32]
57 Clearly that history as quoted is
incomplete and inaccurate although Dr Slesenger also had, and made reference to,
x-rays predating
2004 that demonstrated crush fractures in the thoracic spine.
It is unclear whether the Panel was disagreeing with the stated premise
that an
injury occurred at work in 2004 or an unstated premise that Dr Slesenger
attributed the crush fractures to be related to
the 2004 injury. Either way,
nowhere is the sufficient evidence identified from which the Panel reasoned to
its own different conclusion.
58 Subsequent
medico-legal opinions were many. The completeness or accuracy of the history
they recorded was variable. The Panel
is not required to explain its
disagreement with other opinions but it is obliged to set out the basis for
arriving at its own conclusions.
It is entitled to and indeed required to act
upon its own expertise and clinical judgment. That includes its own findings of
fact
as to matters of history. As to matters of history, it is obliged to set
out those relevant findings so as to understand the basis
for its own
conclusion.
59 True it is that the reasons are to be
read as a whole, and not scrutinised with zealotry to discern inadequate
reasons.[33] The reasons inform the
manner in which the questions have been answered by the Panel and need to be
sufficient to disclose whether
the Opinion does or does not involve any error of
law.[34] They are required only to
demonstrate the path of reasoning employed to arrive at the Opinion that the
Panel actually formed.[35]
60 I do not accept the first defendant’s
submission that the Panel concluded what had been sustained was an exacerbation
of
the thoracic spine condition which had associated symptoms and not that there
had been an exacerbation of symptoms. To the extent
that there is a discrepancy
between the language of the Panel’s answer, ‘an exacerbation
injury’, and the Panel’s
reasons, ‘a symptomatic exacerbation
of ...pain’, it was said to be explicable as merely loose language. The
defendant
submitted that properly understood, the phrasing in the reasons was
consistent with the answer given and did not assume a particular
level of
symptoms prior to the Workplace Incident. In my view the Panel’s
rejection of Dr Christiansen’s observation
makes this an unlikely
interpretation.
61 The distinction in wording
between the answer in the Opinion and the reasons is a distinction without a
difference. To the extent
that the role of the reasons is to explain the path
of reasoning to an ultimate conclusion they should be read consistently. The
reasons as a whole make clear that the Panel did proceed on the basis that the
worker had signs and symptoms persisting up until
shortly (or perhaps
immediately) before the incident, which included a degree of persisting pain.
62 If the various factors identified, both
traumatic and non-traumatic, gave rise to a conclusion that the worker suffered
a level
of signs and symptoms that persisted beyond the documented symptoms to
1992, and remained present thereafter until 2004, then the
Panel is obliged to
explain how it came to that conclusion. The history of the Workplace Incident
is replete with descriptions in
quotation marks of phrases presumably attributed
to the plaintiff’s own words but the history of other incidents is written
almost exclusively by reference to the documentation, and so does not deal in a
contemporaneous way with circumstances between 1992
and 2004. The Panel did not
say that it asked the worker about whether there were symptoms in his spine
persisting at any time after
1992 or about the quality of any persisting
symptoms. It may not be bound to accept the answer but in my view it was
appropriate
that it make that relevant inquiry for the purpose of arriving at
its Opinion. Nothing in the reasons indicates that it turned its
mind to that
substantial period of time or why it disagreed with Dr Christiansen’s
observations.
63 In Chang v Neill &
Ors,[36] the Court of
Appeal discussed a medical panel’s peculiar role to provide an informed
professional opinion on the medical questions
before it. It did so by reference
to the statutory scheme and the oft quoted observations in Wingfoot Australia
Partners Pty Ltd v Kocak.[37]
The Court said:
... a medical panel is required to provide an informed professional opinion on the medical questions referred to it. Where, in a given case, a medical panel considers that it is not able to provide such an opinion because of material deficiencies in the information available to it, it cannot ignore those deficiencies and proceed to reach an opinion which is not an informed professional opinion. Rather, in that situation, it is empowered by s 312(1)(a) of the Act to seek such further information as it requires to provide an informed professional opinion.[38]
As a matter of common sense, where a medical panel requires a worker to attend an examination for the purpose of obtaining information to assist it to answer the medical questions referred to it, the panel must direct and guide the discussion with the worker to ensure that the information that the panel considers relevant is elicited from the worker. In such a case, the panel could not simply leave it to the worker to determine what information should be provided to the panel. Rather the panel must ask such questions as it considers necessary to enable it to provide an informed professional opinion on the medical questions.[39]
64 The Panel needed to identify whether and what level of signs and symptoms continued in the time leading up the work injury for two reasons. First, using the analogy in Semlitch, it is for the purpose of identifying the wound to which the salt is applied. It may be that the underlying condition was symptomatic (including that it was painful) or was asymptomatic but restrictive in order to avoid the onset of further pain, or was asymptomatic and not restrictive. Semlitch makes clear an exacerbation injury may occur in all situations. The presence or the extent of symptoms will necessarily inform the nature of the exacerbation. It is also important as part of the reasoning for whether or not that exacerbation injury has resolved, which lay at the heart of Question 2.
Resolution of the exacerbation injury
65 The way in which the 2005 accident was
included in the chronology of prior events makes some of the reasoning confusing
although
there can be no doubt the Panel appreciated that it was a subsequent
event. Whatever the 2005 accident caused, it could have had
no bearing on the
worker’s condition at the time of the Workplace Incident. The relevance
of the 2005 accident was twofold.
One was that it fixed, by reference to the
claim lodged in December 2005, some contemporaneous evidence about the
persisting treatment
for thoracic pain including medication at that time. This
obviously was continuing at least from September 2004 but it could say
nothing
as to the state of affairs prior to that date. Second, although there was no
frank injury to the thoracic spine, only to
the cervical spine, there was from
that time a complaint of increased thoracic pain. The Panel accepted this
aspect of the history.
The Panel clearly thought that worsening thoracic pain
was relevant to its conclusion that the earlier exacerbation injury has
resolved. The reason for that relevance was at best
opaque.
66 The confusion that arises from including
the 2005 accident as part of a narrative of prior events can be seen by the
Panel’s
treatment of events before and after this accident. When
describing the course of treatment following the 2004 incident the Panel
noted:
Mr Matthews “could not get out of bed for two or three days”, as he could not stand up due to shooting pain from his mid-thoracic area that pulsed down his spine, mainly down his right leg to the lateral toes. He consulted his general practitioner who referred him for physiotherapy, hydrotherapy and to an orthopaedic surgeon, who recommended conservative treatment. He was referred to a pain medicine specialist. He had a motor vehicle accident about 24 December 2005, which included head trauma, and required hospitalisation. He had ongoing headaches and neck and upper extremity pain symptoms. He was referred to a psychologist about the middle of 2005, and commenced antidepressant medication from about the middle of 2005. His shooting pains increased with frequency over time. He had physiotherapy, hydrotherapy and massage which made his neck and thoracic pain symptoms worse. He has not worked or tried to work since the incident.[40]
67 It is a paragraph that is
chronologically erratic and thereby unclear whether the Panel appreciated that
the psychological referral
and anti-depressant medication were wholly related to
the Workplace Incident injuries and not the 2005
accident.[41] To say that treatment
made thoracic and neck pain worse presumably relates only to treatment after
December 2005 as there was no
history of neck pain predating the 2005 accident.
Nor was there any suggestion that treatment prior to December 2005 was making
symptoms of thoracic or lumbar pain worse. The Panel made no effort to identify
or distinguish a level of symptoms between September
2004 and 23 December 2005,
or any change brought about by the intervention of the subsequent car accident.
Accepting that the thoracic
pain worsened from the time of the subsequent car
accident, how did the Panel reach the conclusion that the exacerbation from the
Workplace Incident had resolved?
68 The Panel
described present axial pain localised to the region of the past vertebral crush
fractures and the cervical spine (unrelated
to the Workplace Incident). It
noted the advancement of degenerative changes since the incident despite not
working afterwards and
having a substantial motor vehicle accident
subsequently.[42] The only
explanation for the resolution of injury in the context of continuing symptoms
was that:
...it has since (after 14 years) resolved.[43]
69 This conclusion was supported by two
opinions as to what, in the Panel’s own view, was now responsible for the
continuing
symptoms. The Panel concluded that the worker’s current
symptoms were now caused by his underlying constitutional condition
as set out
above at 39. By that conclusion all previous traumas dating back to 1981
including 2004 and any increase following the
subsequent car accident, appear to
no longer play any role in his symptoms. However, the Panel also concluded, as
set out at 40
above, that his present chronic pain was as a result of all of
those past work accidents and car accidents both pre and postdating
the
Workplace Incident and osteoporosis (diagnosed in 2006), but no longer from the
Workplace Incident. A path of reasoning was
called for that demonstrated how
these two seemingly contradictory conclusions as to the causation of his present
condition had been
arrived at in order to understand the Panel’s answer to
Question 2 and its reason for concluding that there had been resolution
of
symptoms relating to one prior incident. That reasoning in turn would be
relevantly informed by the findings of the Panel as
to the underlying injury
that had been exacerbated.
70 The ground of
inadequacy of reasons has been made out in relation to the answers to Questions
1 and 2. The Panel chose to characterise
the injury it identified as an
exacerbation injury and identified that which was exacerbated as pain that was
both chronic in nature
and post traumatic in origin. It did so, in answer to
Question 1, by referring compendiously to the context or setting of past crush
fractures, multiple motor vehicle accidents (some of which did and others did
not involve thoracic or lumbar spine injury), previous
work injuries and a
subsequent motor vehicle injury, as well as osteoporosis. Some or all of these
matters are described as causing
age-related, constitutional degenerative
thoracic spine changes. This provides little more than a list of factors that
require evaluation
in order to arrive at an appropriate answer to the question.
The reasons could have and should, but did not in my view, provide
a real
explanation of the way that any constitutional conditions and the consequences
resulting from various events up until 1988
were impacted upon by the Workplace
Incident. The conclusion, in the face of ongoing pain after the exacerbation
has ceased, and
in the circumstances of this complex presentation, required
greater explanation than simply that the passage of time has led to the
conclusion as to the causes of his present
symptoms.
71 In essence, the path of reasoning ought
to have addressed three fundamental stepping stones. One, the nature of the
underlying
condition as at September 2004; two, a description of the new or
intensified features that demonstrated the exacerbation injury;
and three, the
mechanism by which the passage of time and the significance of other causal
factors alone or in combination, has led
to any resolution of the exacerbation
injury.
72 These conclusions mean that it is not
strictly necessary to decide the no evidence grounds or whether relevant
material was overlooked.
A finding of fact made where there is no probative
evidence to support the finding amounts to a jurisdictional
error.[44] To say that a finding is
not reasonably open amounts to the same
thing.[45] This is to be
distinguished from a wrong finding of fact, which does not give rise to any
legal error. Where a Tribunal arrives
at its own expert opinion as a medical
panel is required to do, it may be more difficult to demonstrate that a finding
was not open
to it.[46] Indeed the
inadequacy of reasons makes it difficult to identify whether or not the Panel
did proceed in error in these ways.
73 Having said
that, there was clearly evidence that at times prior to 2004 the worker had
suffered thoracic and lumbar spine pain.
Although expressly referencing
‘pre-existing signs and symptoms’ which undoubtedly existed at some
point in time, the
inadequacy of reasons makes it difficult to determine the
question of whether a legal error of fact-finding has occurred. Equally,
to the
extent the Panel was said to have not taken into account a relevant
consideration (the state of the plaintiff’s thoracic
and lumbar spine
after 1992 until 2004), the reasons of the Panel premise signs and symptoms
being present at some stage prior.
Without explanation of how that conclusion
is arrived at or how that premise affects the continuity or resolution of the
exacerbation
injury, the considerations that it did have regard to could not be
identified.
74 Finally, and for completeness, the
plaintiff put forward grounds of review based upon a misapplication of the
principles in Walsh v Department of Human
Services.[47] This was to meet
an attack that the Panel may be thought to have taken the view that there were
multiple causes for the worker’s
present condition and it thereby
disregarded the Workplace Incident. Walsh is a case dealing with
incapacity rather than identification or causation of injury. The Panel here
did determine there was an injury
that resulted from employment. The real
question was how it dealt with the identification and subsistence of that injury
in the
factual matrix of events. It is not necessary to consider the principles
set out in Walsh as to causation of
incapacity.
75 I will hear from the parties as to
the appropriate form of orders.
SCHEDULE OF PARTIES
Terry Matthews
Plaintiff
Com 1 International Pty Ltd First
Defendant
Dr. Roderick McRae Second
Defendant
Mr. Stanley O’Loughlin Third
Defendant
Associate Professor George Chalkiadis
Fourth Defendant
Dr. Chris Grant Fifth
Defendant
[1] In accordance with R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13.
[2] Medical Panel, Certificate of Opinion (Medical Panel Ref No. M119/2981, 24 February 2020), 12 (‘Medical Panel Reasons’).
[3] Grounds 1, 2 and 3 were directed at the Panel arriving at a different conclusion to Dr Christiansen as to the presence of pre-existing symptoms and signs at 2004, and say that there was no evidence on which the Panel could have reached its conclusion and this was a mistake of fact-finding that amounts to legal error. Grounds 4 and 5 were directed at relevant considerations and the failure of the Panel to take account of a relevant history of pre-existing back pain or its consideration of an irrelevant (in the sense of wrong) history of back pain.
[4] WorkCover Worker’s Claim Form, signed by Terry Peter Matthews, 18 October 2004 included in Joint Court Book, Terry Matthews v Com 1 International Pty Ltd & Ors, S ECI 2020 01813 (Supreme Court of Victoria, Forbes J) 131 (‘CB’).
[5] Dr Richard Christiansen, Southern Health - Monash Medical Centre, Medical Certificate, 27 September 2004 at CB 593.
[6] Dr Eric Allchin, Medical Report, 3 December 1985 at CB 406.
[7] Mr Maurice Clifford, Medical Report, 6 May 1986 at CB 404.
[8] Mr Roger Wale, Medical Report, 29 August 1986 at CB 410.
[9] Dandenong Hospital, Discharge Summary, 1 September 1988 at CB 577.
[10] Dr Malcolm Fredman, Medical Report, 7 April 1992 at CB 426.
[11] Report of Dr Fredman 7 April 1992.
[12] Medical Panel Reasons (n 2), 12.
[13] Medical Panel Reasons (n 2), 5.
[14] Which is not otherwise identified and matches no documented work or other incident.
[15] Medical Panel Reasons (n 2), 6.
[16] WorkCare Appeals Board, Notice of Decision (WorkCare Appeals Board Ref: 92/1110, 4 May 1992), 4-5 at CB 433-4.
[17] Medical Panel Reasons (n 2), 15.
[18] Ibid.
[19] Ibid.
[20] [1964] HCA 34; (1964) 110 CLR 626 (‘Semlitch’).
[21] Semlitch (n 20), 634 (Kitto J).
[22] Ibid.
[23] Dr Richard Christiansen, Medical Report, 27 April 2012 at CB 179.
[24] Letter from Dr Richard Christiansen to QBE Workers Compensation, 10 January 2007 at CB 175.
[25] Dr Christiansen, Medical Report, 27 April 2012 at CB 179. In context the thoracic spine injury refers to the 2004 Workplace Incident and not the 1988 motor vehicle accident when the fractures were diagnosed.
[26] Medical Panel Reasons (n 2), 14.
[27] Relevantly on 30 April 2009, 4 September 2012, and 4 July 2018.
[28] 8 February 2005 being the date of the earliest report of Dr Christiansen which noted approval by the insurer for the purchase of a thoracic spine brace.
[29] Medical Panel Reasons (n 2), 14.
[30] Medical Panel Reasons (n 2), 16.
[31] Medical Panel Reasons (n 2), 16.
[32] Medical Panel Reasons (n 2), 16.
[33] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45.
[34] Bakar v Gruma Oceania Pty Ltd [2014] VSCA 252 [47].
[35] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [48] (‘Wingfoot’).
[36] [2019] VSCA 151 [52] (Maxwell ACJ, Beach and Kyrou JJA) (‘Chang’).
[37] Wingfoot (n 35), 498-9 [47].
[38] Chang (n 36) [50].
[39] Chang (n 36) [52].
[40] Medical Panel Reasons (n 2), 5.
[41] This was made clear in the Psychology report of Ms Amanda Fothergill, 13 May 2006 at CB 190.
[42] This is the only comment dealing with the extensive radiological picture that was recited and there was no explanation about how this advancement was relevant to its conclusions about the exacerbation injury.
[43] Medical Panel Reasons (n 2), 15.
[44] Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321 (‘Bond’); Liberal Party of Australia (Victorian Division) v Rae [2019] VSCA 13.
[45] Bond (n 44) [97]; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390.
[46] S v Crimes Compensation Tribunal [1998] 1 VR 83, 90.
[47] [2014] VSCA 244; (2014) 44 VR 244.
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