Medical Panel not convinced by complaints of pain-Supreme Court upholds Panel's findings

Danica Miletic v ANZ Banking Group Limited [2022] VSC 240

The decision of the Supreme Court on judicial review instigated by the Plaintiff considered whether the opinion expressed by the Medical Panel was sufficiently comprehensive in accounting for the Plaintiff’s complaints of pain.

Background

The Plaintiff is employed with ANZ as a Customer Care Consultant. She submitted a serious injury application seeking leave to bring a claim for Common Law damages for pain and suffering and economic loss alleging injuries to the right wrist, right elbow, right shoulder, left elbow and mind arising due to alleged overuse of a computer mouse at work.

The Plaintiff’s serious injury application was rejected. She issued proceedings in the County Court and a referral to the Medical Panel was arranged to address medical questions relevant to the nature and extent of the Plaintiff’s alleged injuries.

The Medical Panel concluded that the Plaintiff sustained soft tissue injuries to the right wrist, right elbow and left elbow that had resolved, with no current intrinsic medical condition. The Medical Panel found no intrinsic medical condition of the right shoulder. The Medical Panel identified an adjustment disorder with depressed mood and anxiety that was mild in severity.

The Plaintiff sought judicial review of the Medical Panel opinion in the Supreme Court. The Plaintiff’s principal contention was that in addressing the medical questions the Medical Panel did not deal lawfully with the Plaintiff’s complaints of pain.

Decision

No intrinsic medical condition

In finding that the Plaintiff did not have a current intrinsic physical condition, the Plaintiff contended that the Medical Panel unduly limited the scope of the relevant question.

The Court found that the  Medical Panel did not mistake the scope of the relevant question and noted that statutory medical questions were subject to statutory limitations as to form. It was appropriate for any referred medical questions to respect the distinction between physical and mental injuries. The Court held that there was nothing untoward in the use by the Medical Panel of the word “intrinsic” in providing answers to the questions posed.

Absence of express reference to pain

The Plaintiff’s principal contention was to the effect that the Medical Panel

• accepted the Plaintiff’s complaints of pain,

• pain is a medical condition and therefore,

• the Medical Panel should have accepted that “the Plaintiff was suffering from a medical condition being pain” (i.e. pain as described by her).

The Plaintiff relied on statements or comments from the Medical Panel’s Statement of Reasons relating to complaints of pain. Centrally, the Court found that those statements and comments did not indicate acceptance on the part of the Medical Panel of the Plaintiff’s complaints of pain. Instead, the Court found that following careful expert consideration of all of the material, it did not accept that the Plaintiff was experiencing any actual pain from the alleged physical injuries.

The Court noted that the Medical Panel found that the Plaintiff had an adjustment disorder with depressed mood and anxiety which may have involved some delusions of pain or some fear of pain. The condition was mild in severity and very far from commensurate with the extent of her complaints of pain.

Having reached those conclusions, the Court did not need to decide whether pain is a separate condition that merits its own diagnosis or a symptom that is at least subjectively indicative of a medical condition.

The Court dismissed the proceedings and ordered that the Plaintiff pay the Defendant’s costs.

The Judgment can be viewed here: https://aucc.sirsidynix.net.au/Judgments/VSC/2022/T0240.pdf