Termination of Worker's Compensation Opposed by the Plaintiff
Moutray v The Union Pastoral Co Pty Ltd [2021] VSC 723 (9 November 2021)
The plaintiff claimed worker’s compensation after having a crush injury during her employment as a herd manager. Her claim was accepted. The plaintiff’s entitlement to weekly payments of compensation was later on terminated. The medical panel found that the plaintiff's soft tissue injury was resolved and that there was no psychiatric injury. The plaintiff contests such decision claiming that the reasons were inadequate. The Court, in adjudicating this dispute, assessed the consequential conclusions by the Panel concerning ‘current work capacity’.
Facts:
On 21 June 2016 the plaintiff was employed by the first defendant as a herd manager when she was kicked by a cow and suffered a crush injury of her left hand (the incident). Pain and swelling ensued. She applied ice and completed her shift. Upon examination of her hand at a hospital in Warrnambool, there was the suggestion of an occult scaphoid fracture.
The plaintiff claimed worker’s compensation. Her claim was accepted. At several points in 2016 the plaintiff underwent radiological investigations, and in 2017 she underwent a bone scan and an MRI scan. The suggestion that there was a fracture seems to have faded.
In the period between the incident and late 2019, several medical practitioners expressed the opinion that the plaintiff was suffering from complex regional pain syndrome type 1. In September 2019 the plaintiff’s general practitioner, Dr Carison, reported that the plaintiff would be unable to perform her pre-injury duties for the foreseeable future and was unable to be retrained as she struggled with ‘severe daily pain’ and the effects of ‘regular sedating analgesics’. In October 2016, Dr Long, consultant occupational physician, posited a ‘chronic pain syndrome’ and suggested management of the plaintiff in a multidisciplinary team including a pain physician, after she had developed ‘generalised sensory dysfunction involving most of the left side of her body soon after undergoing a localised injection procedure for her hand’.
In June 2018, Dr Karna, rheumatologist, considered that there was a resolved soft tissue injury and that the plaintiff presented with ‘a psychogenically driven chronic pain syndrome’. It is not evident that the plaintiff ever received treatment from a psychologist and no psychologist reported. By notice dated 25 October 2018, the plaintiff’s entitlement to weekly payments of compensation was terminated with effect from 26 January 2019. The notice of termination referred to, among other things, the substance of the surveillance undertaken in September 2018, as well as to the opinions of Dr Van Ammers and Dr Bones that the plaintiff could return to her work.
Issue:
Whether or not the panel gave adequate reasons for its decision.
Applicable law:
Sidiqi v Kotsios [2021] VSCA 187 - where the Court confirmed that a panel is not required to arrive at scientific certainty but to arrive at its opinion on the balance of probabilities.
Didani v Downes-Brydon [2021] VSCA 281 - stated that if a medical panel is asked for an opinion as to whether any present medical condition is relevant to an injury that is only expressed in terms of a subjectively experienced symptom of pain, it is plainly appropriate for that panel to approach the question applying its medical understanding of the physiological (or psychiatric) change that was likely to have accompanied that subjective experience of pain.
Ayana v Qantas Airways Ltd [2021] VSC 500 - Gorton J addressed the circumstance in which there may well be a suspicion that the worker is feigning symptoms, but the reasoning of a panel avoids that issue such as to leave the reviewing court in the position of drawing inferences from the mere reaching of a diagnosis.
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 - established principles relating to judicial review for jurisdictional error.
Analysis:
As the Panel concluded the plaintiff is no longer suffering from a soft tissue injury of the left and/wrist and is not suffering from any other physical or psychiatric condition, the Panel considered the plaintiff has a work capacity for her pre-injury duties and therefore had a current work capacity between 26 January 2019 to the date of the Medical Panel’s examination and as at the date of the examination.
It was ultimately submitted that the conclusion of the Panel concerning work capacity was variously ‘unreasonable’, ‘irrational’, lacking in ‘genuine consideration’ and unreasoned. However, the Panel watched films together with the plaintiff and was in a position to evaluate her responses against its own assessment, whilst mindful of its own findings on examination and other evaluations. Having undertaken such process, the Panel plainly stated that there was ‘no evidence of pain or decrease of use of the left arm or hand in the two videos’.
While the Panel might be said to have acknowledged that the plaintiff made claims of pain in respect to her left hand and wrist, it was not necessary for the Panel to determine whether or not pain was genuinely claimed or alternatively being ‘feigned’. Even if some degree of pain was present it was, upon the assessment of the Panel, including its evaluation of the surveillance films, not sufficiently severe or persistent so as to support any diagnosis of a chronic pain syndrome.
Conclusion:
The plaintiff’s various grounds and associated arguments must be rejected. The application for judicial review will be dismissed.
