Applicant v Respondents

Supreme Court of Victoria|2008-02-20|Before: KAYE J

ADMINISTRATIVE LAW - Judicial review of Medical Panel - Determination by Panel under Part VBA of Wrongs Act 1958 (Vic) - Whether Panel has power to determine that applicant not injured - Whether Panel bound to comply with rules of natural justice - Effect on applicant's right to claim damages for non-economic loss - Adequacy of Panel's reasons.

1 The applicant, by originating motion, seeks judicial review, under s 3 of the Administrative Law Act 1978, of a decision of a Medical Panel constituted under Division 5 of Part VBA of the Wrongs Act 1958 ("the Act"). That decision was contained in a certificate issued by the Medical Panel dated 31 May 2007. The effect of the decision of the Panel is to preclude the applicant from claiming damages for non-economic loss at common law against the first respondent, Coles Supermarkets Australia Pty Ltd, in respect of injuries which he alleges he sustained on 13 October 2006. He seeks an order quashing the decision of the Medical Panel.

2 The applicant alleges that he sustained a number of injuries as a result of slipping in a puddle of water while attending the premises of the first respondent at Mooroolbark on 13 October 2006. He alleges that, as a result of that fall, he suffered injuries to his neck, lower back, right shoulder, right elbow and right ankle, together with aggravation of a pre-existing gastrointestinal condition and psychiatric injury. As required by Part VB of the Act, the solicitor for the applicant served on the first respondent a Certificate of Assessment signed by Mr Peter Mangos, surgeon, pursuant to s 28LN of the Act. In response, the first respondent, pursuant to s 28LWE, referred the following question to the Medical Panel: "Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?"

3 On receipt of that referral, the second respondent, as the Deputy Convenor of Medical Panels, appointed a Panel comprising the third respondent (an occupational physician), the fourth respondent (an orthopaedic surgeon) and the fifth respondent (a gastroentorologist), to consider and determine the medical question which had been raised by the referral. The second respondent also arranged appointments for the applicant to be examined by the third and fourth respondents on 16 April 2007, and by the fifth respondent on 23 May 2007. The solicitors for the applicant provided the Medical Panel with a number of documents, including a medical report from Mr Mangos dated 21 February 2007, and two reports from Ms J Allen, a physiotherapist, dated 31 October 2006 and 14 November 2006 respectively.

4 Subsequently, the third respondent, as presiding member of the Medical Panel, signed a Certificate of Determination pursuant to s 28LZG(2)(a) of the Act ("the Certificate") and Reasons for the Determination ("the Reasons"), each dated 31 May 2007. The Certificate stated that the Panel had determined that the degree of whole person impairment, resulting from the physical injuries to the applicant alleged in the claim, did not satisfy the "threshold level" prescribed by the Act. The applicant seeks judicial review of that decision on three broad bases, namely, that the Panel did not comply with the Act and with the AMA Guides, secondly, that the Panel failed to provide adequate reasons for its conclusions, and, thirdly, that the Panel failed to comply with the requirements of natural justice. Before turning to the applicant's submissions in greater detail, it is necessary to summarise the relevant provisions of the Act, the materials which were placed before the Panel, and the reasons given by the Panel for its decision.

5 Part VBA was introduced into the Wrongs Act by the Wrongs and Limitation Acts (Insurance Reform) Act 2003. As indicated by its title, that Act was part of a raft of legislative changes introduced in Victoria in 2002 and 2003, which had a significant effect on the rights of injured persons to recover damages at common law.

6 Section 28LE provides that a person is not entitled to recover damages for non-economic loss in respect of an injury caused by the fault of another person, unless the person injured has suffered a "significant injury". Section 28LF defines the term "significant injury". For present purposes, it provides that an injury is a significant injury if the degree of impairment of the whole person assessed by an approved medical practitioner satisfies the "threshold level", or, if a Medical Panel has been appointed, the Medical Panel has determined that the degree of impairment of the whole person resulting from the injury satisfies the threshold level. Section 28LB defines "threshold level", in respect of an injury other than a psychiatric injury, as permanent impairment of more than five percent. Section 28LH provides that the assessment of the degree of impairment must be in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th Edition) as modified by or under Part VBA of the Act (the "AMA Guides").

7 It is not necessary to set out the relevant provisions of Part VBA of the Act at length. Section 28LN provides for an approved medical practitioner to provide to the person seeking an assessment a Certificate of Assessment. Section 28LT provides that the claimant must serve on the respondent a copy of that assessment on which the claimant intends to rely. Under s 28LW(2)(b) the respondent is entitled to refer a medical question, raised by the medical assessment, to a Medical Panel.

8 Division 5 of Part VBA of the Act contains the provisions relating to the powers and procedures of a Medical Panel. Such a Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.[1] The Panel is entitled to ask a claimant to meet with it and answer questions, to supply to the Panel copies of all documents in the possession of the claimant relating to the medical question, and to submit to a medical examination by the Panel or a member of the Panel.[2] After making the assessment, the Panel is required to give the claimant and the respondent its determination of the medical question[3]. If the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level, but must not state the specific degree of impairment.[4] A determination by the Medical Panel that the degree of impairment resulting from an injury satisfies the threshold level, or does not satisfy the threshold level, must be accepted by a court, in any proceeding on a claim, as a determination that the injury is or is not a significant injury for the purposes of Part VBA[5].

9 It is next necessary to refer to the materials which were placed before the Panel. As required by s 28LN of the Act, Mr Mangos provided a certificate certifying that the applicant has a whole person impairment of greater than five percent under the AMA Guides, and confirming that he had made a diagnosis as follows:

10 The applicant also provided to the Panel a copy of a report of Mr Mangos dated 21 February 2007. That report was in the usual form. It set out the history of the applicant's injury. The report then summarised Mr Mangos' findings on examination, and in particular stated the degree of movement elicited by Mr Mangos in respect of each of the joints in respect of which the doctor found injury. In his summary and conclusion, Mr Mangos identified the same injuries as those stated in his certificate. He expressed the view that the applicant had definite partial permanent impairments, that his injuries had stabilised, and that the applicant had in excess of five percent physical impairment in accordance with the AMA Guides.

11 In her first report, Ms Allen, the physiotherapist, noted the applicant's complaints of injury, and stated her findings on examination of the plaintiff's mid-thoracic and lumbar regions. She noted that she had treated the plaintiff twice, and considered that the applicant should commence to take anti-inflammatory medication. The second report by Ms Allen is brief, and is not relevant to the present application.

12 The reasons of the Panel commenced by summarising the applicant's description of the incident in which he was injured. It also noted that the applicant had had previous problems with his neck and lower back, and that he had a history of gastro-oesophageal symptoms. The report then noted the findings by the Panel on physical examination. The relevant findings of the Panel, which were relied on by counsel for the applicant, were: there was generalised tenderness throughout the right side of the neck, right arm, right shoulder, thoraco-lumbar spine, and both feet and ankles; there was some minor limitation of right shoulder movements; there was "near full range" of movement of both feet and ankles, with no evidence of any ligament injury; there was a generalised limitation of neck and back movements, with reported complaints of pain; and there was no neurological deficit in the upper or lower limbs, with normal reflexes, sensation and power.

13 The Panel then commented on the radiology. The main points relied upon by counsel for the applicant were as follows:

The MRI scan of the right ankle was reported by the radiologist to show a small joint effusion;
There was no radiology reported in relation to the right shoulder.

14 At the end of the reasons, the Panel stated its conclusions, the relevant parts of which were as follows:

"The Panel concluded that the claimant is suffering from an aggravation of pre-existing thoracolumbar spondylosis without radiculopathy. He also has continuing symptoms of gastritis and constipation. The Panel considers these medical conditions are stable.

Despite the complaint of symptoms, the minor cervical spine changes shown on the CT scan, the minor degenerative changes of the right elbow shown on MR1, the small joint effusion of the right ankle shown on MR1, the Panel considers there is no clinical evidence of persisting injury to the neck, right shoulder, right elbow or ankles ...

The Panel conducted an Impairment Assessment using the (AMA Guides) ... as required by section 28LH of the Wrongs Act 1958.

The Panel assessed the impairment of the thoracolumbar spine in accordance with the Specific Procedures and Directions in section 3.3f on page 101 of the Guides.

The Panel assessed the appropriate whole person impairment for the thoracolumbar spine in accordance with tables 70 and 74 of chapter 3.

As the Panel was able to assess the claimant's thoracolumbar spine impairment in accordance with the Diagnosis-related Estimates (DRE) method of impairment assessment, use of the Range of Motion method was considered inappropriate.

The Panel assessed the appropriate whole person impairment resulting from the claimant's gastrointestinal condition in accordance with sections 10.2 to 10.5 of chapter five.

The Panel used the combined values chart to combine the whole person impairments and disregarded the degree of whole person impairment that was pre-existing as a consequence of the claimant's pre-existing gastrointestinal condition.

The Panel concluded that the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim is not more than five percent and is permanent."

15 The grounds for review of the decision of the Panel are contained in an order of Master Efthim made 9 July 2007. Those grounds are as follows:

"a The Medical Panel noting the Applicant demonstrated a minor restriction of the right shoulder movement and right ankle movement failed to give any or any adequate reasons as to whether they examined the Applicant's right shoulder and right ankle for the purposes of providing an AMA assessment;

If the Medical Panel performed an examination of the right ankle and/or right shoulder in compliance with the AMA Guides ..., they failed to record what the examination findings were and whether the assessment warranted a zero impairment or any other impairment.

The Medical Panel failed to record whether the Applicant warranted an assessment for either:

The Medical Panel failed to take any or any adequate account of the Applicant's medical condition as set out in the medical reports, particularly with respect to the right shoulder, as documented in the report from Mr Mangos dated 21 February 2007.
If the Medical Panel did consider Mr Mangos' report, then the Panel failed to document why Mr Mangos' assessment was not, at the time of the examination, relevant.
The Medical Panel failed to state what the AMA assessment was for:

The Panel fell into error in determining that the Applicant had no injury to, inter alia, the right shoulder, right ankle and neck, instead of assessing the claimed injuries pursuant to the AMA Guides.
The Second Respondent failed to organise for a psychiatrist to be part of the Panel and therefore the Panel failed to consider and assess the Applicant's claimed injury of anxiety and depression."

16 At the commencement of submissions, Ms MacTiernan, who appeared on behalf of the applicant, informed me that the applicant did not rely on any ground which related to his gastrointestinal condition or his psychiatric injury.

17 Ms MacTiernan commenced by submitting that the Panel had failed to comply with the Act and the AMA Guides, in that it had failed to make any impairment assessment of the injuries complained of by the applicant to his neck, right shoulder, right elbow and ankles. Ms MacTiernan submitted that, in accordance with the Act and the Guides, the Panel was obliged to make an assessment of the impairment to each of those alleged injuries using a goniometer, and to document its findings. The Panel had failed to do so, because it had expressed the conclusion that there was "no clinical evidence of persisting injury to the neck, right shoulder, right elbow or ankles". Ms MacTiernan submitted that the Panel had no power to make such a finding. She submitted that it was beyond the jurisdiction of a Medical Panel to determine whether a claimant has suffered any of the injuries relied upon and complained of by that claimant. Rather, she submitted, the Panel must make an assessment of the impairment, if any, arising from the injuries alleged by a claimant. She submitted that, as distinct from the role of a Medical Panel under the Accident Compensation Act, the role of a Panel under the Wrongs Act is quite limited. In support of that submission, she referred me to the second reading speech by the then Treasurer, Mr Brumby, in which he stated that the definition of "medical question" had been formulated "to make it clear that the Panel's assessment is based on the injuries that the claimant has cited in his or her claim", and that issues of causation are left to the parties or to the Court. The Treasurer then stated that the wording of the "medical question" was designed to ensure that the Panel certificate "relates to the required 'above/below threshold' response and does not drift into other issues". Accordingly, Ms MacTiernan submitted that the Panel had acted beyond the jurisdiction of the Act, and had thereby fallen into jurisdictional error.

18 In the alternative, Ms MacTiernan submitted that, if a Panel does have the power to conclude that a claimant does not have an injury as alleged, the Panel failed to provide any adequate reasons for reaching the conclusion that the applicant has no injury to his neck, right shoulder, right elbow and ankles. In particular, Ms MacTiernan focused on the finding by the Panel that there was no clinical injury to the right shoulder. She referred me to the report of Mr Mangos, to the lack of any radiological examination of the right shoulder, and to the finding of minor limitation of right shoulder movement on examination by the Panel. She submitted that the Panel had failed to provide any adequate reasons why, in those circumstances, it concluded that there was no clinical evidence of persisting injury to the right shoulder. Nor did the Panel provide any reasons why it differed from the conclusion of Mr Mangos that the applicant did suffer injury to the neck, shoulder, elbow and ankles. Ms MacTiernan further submitted that the Panel had failed to provide proper reasons why it found no injury to the ankles, notwithstanding the evidence on radiology of some effusion to the joints, and the finding of some limitation of movement of the feet and ankles.

19 Ms MacTiernan further submitted that the Panel had failed to comply with the principles of natural justice or procedural fairness, in reaching the conclusion that the applicant did not suffer the injuries alleged by him. Ms MacTiernan argued that it was incumbent upon the Panel, if it reached such a conclusion, to permit the applicant to respond, and also for the applicant to provide, or for the Panel to arrange for the applicant to undergo, radiological examination of the shoulder.

20 Ms MacTiernan then turned to the findings by the Panel in relation to the thoraco-lumbar spine. She submitted that the Panel was required to state in its reasons the percentage restriction by reason of the injury to the thoraco-lumbar spine. She contended that there is a distinction between the determination by the Medical Panel contained in its certificate, and the reasons for its decision, so that s 28BZG(4), which prohibits the Panel from stating the specific degree of impairment in its determination, does not apply to the reasons provided by the Panel for making the determination. Ms MacTiernan further submitted that, in breach of the Act and the AMA Guides, the Panel failed to document, in its reasons, its precise finding of impairment in respect of the thoraco-lumbar spine under tables 70 and 74 of the Guides.

21 In response, Mr Fleming, who appeared on behalf of the first named respondent, submitted that the Panel was not required to make any impairment assessment in relation to the applicant's neck, shoulder, elbow and ankles, because there was no injury identified by the Panel in respect of which such an assessment, under the AMA Guides, might be made. Mr Fleming submitted that, in finding that the applicant had no "persisting" injury, the Panel made a finding, either that any injury which the applicant had was not attributable to the accident of which he complained, or, alternatively, that he had no injury other than a transient injury at the time of the examination, and thus he did not have a permanent injury as required by Part VBA of the Act. In either event, the Panel was empowered to make such a finding. Section 28LL(3) of the Act specifically provides that impairments from unrelated injuries or causes are to be disregarded in making an assessment. In any event, various provisions of the Act make it plain, he submitted, that the degree of impairment to be assessed by the Panel must result from an injury.

22 Accordingly, Mr Fleming submitted that the Panel was not required to make and record any findings in relation to impairment of the neck, shoulder, elbow and ankles. Indeed, he submitted, it is clear from the reasons of the Panel that they attributed a "zero" degree of impairment, since, in the absence of injury to those body parts, there could be no impairment resulting from any injury to them. He further submitted that the Panel, in its reasons, stated that it had assessed the injury to the thoraco-lumbar spine under table 70 and 74 of the AMA Guides. He contended that the effect of s 28LZG(4) of the Act is to preclude the Panel from expressly stating the degree of impairment assessed in relation to the back. For, he argued, if the Panel had expressed such a finding in its report, it would thereby, contrary to s 28LZG(4), be stating the specific degree of impairment found by it. Indeed, and in any event, Mr Fleming submitted that it is possible to infer, from the reasons of the Panel, the category of impairment applied to the injury to the applicant's back under Table 74 of the AMA Guides, namely, the impairment applicable to impairment IIA, which is five percent of the whole person.

23 Mr Fleming further submitted that the Panel did give adequate reasons in relation to its finding that the applicant had no persisting injury in respect of his neck, shoulder, elbow and ankles. He submitted that it was not necessary for the Panel to give elaborate reasons. The applicant had been examined by members of the Panel, who are expert medical practitioners. It is clear from their reasons, he submitted, that those practitioners reached a different view to that expressed by Mr Mangos in his report. He further submitted that, where a Panel takes a different view than the view of a medical practitioner on whose report an applicant relies, it is not ordinarily necessary for the Panel to deal expressly with the contrary opinion expressed by that practitioner. Mr Fleming relied on a statement to that effect by Forrest J in Clarke v National Mutual Life Insurance Limited[6]. He contended that it was implicit from their report that, as a result of their examinations of the applicant, the members of the Panel differed from the views expressed from Mr Mangos.

24 Mr Fleming further submitted that, if I were to conclude that the Panel had not given sufficient reasons for its conclusions, I should not quash the reasons and the decision. Rather, I should require the Panel to provide further reasons. In support of that submission, he relied on the dictum of Brennan J in Repatriation Commission v O'Brien[7] and a similar statement by Bongiorno J in Brambles Industries Limited v Nisselle & Ors[8].

25 Mr J Gorton appeared for the second respondent. Appropriately, he did not take an adversarial position on the appeal, but helpfully drew my attention to a number of relevant matters. The third, fourth and fifth defendants, by a letter from their solicitors, took no part in the hearing, and indicated that they would submit to such orders as should be made by the Court.[9]

Power of Medical Panel to make finding of no injury to neck, shoulder, elbow and ankles

26 The first question is whether the Panel had the power, under the Act, to make a finding that there was "no clinical evidence of persisting injury to the neck, right shoulder, right elbow or ankles". That issue raises an anterior question, namely, as to the meaning of that finding. Ms MacTiernan submitted that the Panel had made a finding that the applicant had no injury at all to the neck, right shoulder, right elbow and ankles. Mr Fleming advanced alternative interpretations of the Panel's finding. He submitted that the Panel did make a finding of injury, but found that that injury was not caused by the accident of which the applicant had complained. Alternatively, he submitted that the finding meant that the applicant had no injury other than a transient injury, which, by definition, would not be permanent, as required by the Act.

27 The meaning of the phrase "no clinical evidence of persisting injury" is, to some extent, ambiguous. In construing a Panel's reasons, it is important to bear in mind that the reasons are written, not by lawyers, but by medical practitioners, expressing the views of those practitioners as to clinical findings made by them on their examinations of the applicant, in the light of any other relevant information before the Panel relating to the applicant. Consequently, a "beneficial construction" is accorded to the reasons of Panels[10]. In my view, the Panel's reference to "no persisting injury" was a reference to an injury which was not still extant at the time of examination by members of the Panel. The Panel acknowledged that there may have been some temporary or transient injury sustained by the applicant, but that, notwithstanding the applicant's complaint of symptoms, and minor changes shown on radiology, the Panel considered that there was no clinical evidence of injury which had persisted up to that time in relation to the neck, right shoulder, right elbow or ankles. Thus, the Panel proceeded on the basis that, there being no injury to those areas of the body, no impairment assessment was to be made in respect of them.

28 That construction of the Panel's reasons enlivens the issue whether the Panel had the power to make a finding that the applicant did not have injuries to the neck, shoulder, elbow or ankles. Ms MacTiernan submitted that the jurisdiction of the Medical Panel was confined to determining the degree of impairment in respect of injuries alleged by an applicant. She submitted that it was not within the remit of a Panel to determine whether an applicant had any injury as alleged by that applicant. Rather, she submitted, the Panel must accept the allegation of injury, and make a determination as to the degree of any impairment resulting from that alleged injury.

29 Ms MacTiernan submitted that the role of the Medical Panel is to determine a "medical question" referred to it. She relied on the definition of "medical question" in s 28LB, namely:

"'Medical question' in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level."

Ms MacTiernan placed considerable emphasis on the phrase "from the injury to the claimant alleged in the claim" in that definition. She submitted that, by defining a medical question as one which related to the degree of impairment from an "alleged" injury, rather than from an injury as found by a Panel, the Act confined the Medical Panel to the determination of the degree of impairment, without making any finding as to whether or not the applicant had suffered any of the injuries alleged. Ms MacTiernan submitted that such a construction of the Act is consonant with the intention of the legislature, as expressed by the Treasurer, to which I have already referred, namely that the drafting of the definition of "medical question" was designed to ensure that the Panel's certificate relates only to the question of whether the impairment was above or below the threshold, and that the Panel does not "drift into other issues".

30 In my view, the submission by Ms MacTiernan involves reading too much into the inclusion of the word "alleged" in the definition of "medical question" in s 28LB. The inclusion of the word "alleged", in the definition, was necessary in order to identify the particular injury (or injuries) in respect of which the impairment assessment is to be made. In the absence of the adjective "alleged", the definition would otherwise be meaningless. I do not consider that, properly construed, the definition of "medical question" operates to confine a Medical Panel to determining impairment, without first determining whether an applicant has an injury from which such impairment resulted.

31 It is important to bear in mind that the role of the Panel, as identified in the Act, is to determine whether the degree of impairment of the whole person "resulting from the injury" is above the threshold level. A number of provisions make express reference to the assessment, first by the approved medical practitioner, and then by the Panel, of the degree of impairment "resulting from the injury".[11] Section 28LZG(4) requires that the determination of the Medical Panel must (where appropriate) "state whether the degree of impairment resulting from the injury satisfies the threshold level ... ". Axiomatically, an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment, notwithstanding that the Panel could not elicit any evidence of injury.

32 Section 28LL(3) states that impairments "from unrelated injuries or causes" are to be disregarded in making an assessment. Accordingly, a Panel is required to reach some conclusion as to the cause of a particular impairment elicited by the Panel. Contrary to the contention of Ms MacTiernan, the Panel is not confined to determining impairments. For the purposes of s 28LL(3), the Panel must make some determination as to the cause of the impairment. Similarly, for the purposes of determining the medical question, and providing a determination under s 28LZG(4), the Panel must identify the injury in respect of which it makes a determination. In the absence of an injury, there can be no determination of a degree of impairment "resulting from the injury". Thus, the Act contemplates that the Panel, in answering a medical question, must first determine whether the applicant actually suffers from the injury complained of. It follows that the Panel did have power to determine, in this case, that there was "no clinical evidence of persisting injury to the neck, right shoulder, elbow or ankles" of the applicant. I therefore reject the submission by Ms MacTiernan that the Panel had failed to comply with the Act and the AMA Guides by failing to make any impairment assessment of the injuries complained of by the applicant to his neck, right shoulder, right elbow and ankles.

Reasons for Panel finding no injury to neck, shoulder, elbow and ankles

33 My conclusion, that the Panel did have the power to determine that the applicant did not have a persisting injury to his neck, shoulder, elbow and ankles, brings me to the second principal submission advanced by Ms MacTiernan, namely, that the Panel failed to give adequate reasons for that finding.

34 Section 8(1) of the Administrative Law Act provides that a "tribunal" shall, if requested, furnish to any person affected by a decision a statement of its reasons for the decision. Section 2 of the Act defines "tribunal" to mean a person or body of persons (not being a court of law or a tribunal constituted or presided over by a judge of the Supreme Court), who, in arriving at the relevant decision, is required to act in a judicial manner to the extent of observing one or more of the rules of natural justice. In Masters v McCubbery & Ors[12], the Court of Appeal held that a Medical Panel, to which a court had referred certain medical questions under s 125 of the Accident Compensation Act 1985, is a "tribunal" for the purposes of the Administrative Law Act, and therefore is required to give adequate reasons for its conclusions, when requested to do so, under s 8(1). Mr Fleming pointed out that, in the two decisions which have so far related to the adequacy of reasons of a Medical Panel under Part VBA of the Wrongs Act [13], it was assumed, but not expressly decided, that Masters v McCubbery applies to the procedures of Medical Panels under Part VBA of the Wrongs Act. However, Mr Fleming did not submit that such a Panel is not bound by the Administrative Law Act, and in particular by s 8, to provide reasons for its decision.

35 In my view, the reasoning of the Court of Appeal in Masters v McCubbery is applicable, mutatis mutandis, to a Medical Panel constituted under Part VBA of the Wrongs Act. In Masters v McCubbery, Winneke P, who wrote the leading judgment, held that a Medical Panel under the Accident Compensation Act was bound to comply with the rules of natural justice, since the findings contained in the "opinions" of such Medical Panels might bind the parties and the Court, and thus dispose of issues raised by the worker and placed by him before the Court for its determination.[14] Since such a Panel has the power to "destroy, defeat or prejudice" a worker's "rights, interests or legitimate expectations"[15], the Medical Panel is bound to act with procedural fairness, and hence is a "tribunal" for the purposes of s 2 of the Administrative Law Act [16]. Under Part VBA of the Wrongs Act, a Medical Panel, in answering a medical question, is making a decision which will determine the right of an injured applicant to claim common law damages for non-economic loss in respect of that injury. As such, the Medical Panel has the power to destroy, defeat or prejudice the applicant's rights, interests or legitimate expectations, and thus, in my view, is bound by the rules of natural justice. Accordingly, under s 8(1) of the Administrative Law Act, the Panel, when requested, is required to furnish adequate reasons for its decision.

36 The next question is whether the Panel gave adequate reasons for determining that there was no clinical evidence of persisting injury to the neck, right shoulder, right elbow or ankles.

37 In Masters v McCubbery, Winneke P stated, in respect of the obligation of a Medical Panel to provide opinions:

"... they are not obliged to overwhelm themselves with the provision of elaborate reasons. As I have already pointed out, they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably ... ."[17]

38 Since Masters v McCubbery, there have been a number of cases at first instance in which the question of the adequacy of a Medical Panel's decision has been considered. In Clarke v National Mutual Life Insurance Limited[18], Forrest J considered those cases, and helpfully identified the key principles which are relevant to an application for review based on the failure to provide adequate reasons. They include:

"• The Panel is an expert tribunal, whose members are chosen for their experience and their findings need to be viewed in that light (cf a non-expert tribunal).

The reasons provided that those of a Tribunal not that of a judicial body must be viewed from that perspective.
The reasons of the Panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.
The reasons of an administrative decision maker such as the Panel are meant to inform and an over zealous judicial review is to be eschewed. The reasons should not be over analysed.

• Judicial review should not be used to conduct a merits review.

The reasons of the Panel do not need to advert in detail to those matters it has taken into account."[19]

39 In support of her submissions that the Medical Panel failed to provide adequate reasons for its conclusions relating to the neck, shoulder, elbow and ankles, Ms MacTiernan contended that the Panel had failed to provide any or any sufficient reason why it differed from the conclusions expressed by Mr Mangos in his report. There can, however, be no inflexible rule whether a Panel needs, in its reasons, to advert expressly to a contrary opinion stated in a report put before it. The question whether a Medical Panel is required to respond specifically to a contrary opinion contained in a medical report must depend on the particular circumstances of the case. More often than not, the Panel's reasons for rejecting a contrary opinion may be inferred from the reasoning contained in the Panel's decision. However, in some cases, there may be a particular circumstance which necessitates that the reason for rejecting the contrary opinion be expressed in the Panel's decision. One such case was Clarke v National Mutual Life Insurance Limited[20], in which Forrest J found that the Panel's failure to deal with the contrary conclusions of the treating general practitioner and the treating psychiatrist constituted a failure by the Panel to provide adequate reasons for its opinion. In reaching that conclusion, his Honour noted that ordinarily the reasons provided by a Medical Panel will implicitly explain why the Panel has not accepted a contrary opinion put to it. However, in the circumstances of that case, where the impairment occurred more than a decade previously, it behoved the Panel to provide reasons why it did not accept the contemporaneous opinions of the treating practitioners.

40 Similarly, in Pyle v Nisselle & Ors[21], Smith J held that there was a failure of the Panel to provide adequate reasons for its opinion, because it had failed to explain why it rejected the opinions of a number of experts which had been put before it. In that case, there was a sharp difference of opinion between the experts for the worker, and the experts for the employer, whose reports had been put before the Panel. His Honour described the difference of opinion as a "classic conflict of view between experts who subscribe to different schools of thought".[22] The report of the Panel failed to give any explanation as to why it rejected the views of the experts on which the worker relied. In those circumstances, and given the conflict between the experts, his Honour held that the Panel had failed to give adequate reasons for its conclusions.

41 With those principles in mind, I turn to the question whether the Panel failed to provide adequate reasons for its finding that the applicant had no persisting injury to his neck, right shoulder, right elbow and ankles.

42 Ms MacTiernan submitted, first, that the Panel had failed to give adequate reasons for finding that there was no clinical evidence of persisting injury to the applicant's right shoulder. She pointed to the finding by the Panel of some minor limitation of right shoulder movements, and to the diagnosis by Mr Mangos, in his report, of right shoulder tendonitis. Ms MacTiernan submitted that, in light of the finding of limitation of movement, the Panel had failed to explain why it nonetheless found that there was no evidence of persisting injury to the right shoulder, given the contrary view expressed by Mr Mangos in his report. Ms MacTiernan particularly pointed to the circumstance that the Panel had not obtained an ultrasound of the applicant's right shoulder.

43 In my view, the reasons for the conclusion by the Panel in relation to the right shoulder are sufficiently clear. The Panel found that there was "some minor" limitation of the applicant's right shoulder movements. It is clear that the Panel formed the view that that finding, alone, was insufficient to enable it to make a finding of persisting right shoulder injury. Ms MacTiernan's submission placed substantial emphasis on the finding of "limitation of right shoulder movements", but glossed over the fact that that finding was described by the Panel as "minor". When that adjective is taken into account, and given due weight, it is evident that the Panel considered that that limitation was insufficient to indicate a persisting injury to the right shoulder.

44 In his report Mr Mangos found "some diminished range of movements through discomfort" of the right shoulder. In particular, he noted that the applicant flexed 140 degrees, extended 30 degrees, abducted to 110 degrees, adducted 30 degrees, internally rotated 35 degrees and externally rotated 85 degrees. I interpolate that, under the AMA Guides, the normal range of movement is flexion 180 degrees, extension 50 degrees, abduction 180 degrees, adduction 50 degrees, internal rotation 90 degrees and external rotation 90 degrees. Although the Panel did not specifically state why it did not accept Mr Mangos' conclusion, it is clear that, in finding only "some minor limitation of right shoulder movements", the Panel was able to elicit a materially greater range of movements of the applicant's right shoulder than that found by Mr Mangos on his examination. When Mr Mangos' report is read alongside the finding by the Panel, of only "minor" limitation of right shoulder movements, it is, in my view, evident why the Panel did not accept the finding by Mr Mangos of right shoulder tendonitis. I also note that the Panel expressly found that there was no neurological deficit in the upper limbs, with reflexes, sensation and power all being normal. In those circumstances, it was, I consider, implicit in the reasons of the Panel that it did not elicit sufficient limitation of the right shoulder movements, or any other clinical signs, to enable it to reach the same diagnosis as Mr Mangos, namely right shoulder tendonitis.

45 Ms MacTiernan placed some store on the fact that the Panel had not had access to any radiology in relation to the right shoulder. I note, however, that neither did Mr Mangos. It is not evident to me how the absence of such radiology has the result that the Panel failed to give adequate reasons. It may, or may not, have been preferable for the Panel to have obtained such radiology. However, I emphasise that this not a review of the decision of the Panel "on its merits". Rather, the question which I must determine is whether the Panel gave adequate reasons for its finding that there was no evidence of persisting injury to the right shoulder. For the reasons I have set out above, I consider that it did.

46 Ms MacTiernan also submitted that the Panel had failed to provide sufficient reasons for its finding of no persisting injury to the ankles. Ms MacTiernan referred to the findings of a "near full range" of movement of both feet and ankles by the Panel, from which she inferred that the range of movement had been less than normal. Ms MacTiernan also referred to the MRI scan of the right ankle dated 30 October 2006, which had been reported by the radiologist to show a small joint effusion. Ms MacTiernan submitted that, given those findings, the Panel ought to have explained why, nonetheless, it reached the conclusion there was no persisting injury to the ankles.

47 Again, Ms MacTiernan's submissions failed to take into account the use of the adjectives which preceded the findings of the Panel in respect to the ankles. While the finding of a "near full range" of movement of both feet and ankles, theoretically, implies some limitation of range of movement, nonetheless such a finding is of a minor type. Similarly, the finding on the MRI scan was of "small" joint effusion. It is implicit in the reasons of the Panel that those two findings were insufficient to entitle it to make a finding of any persisting injury to the ankles. I note that Mr Mangos, in his reports, made similar findings in relation to the ankles. His findings were that the movements to the ankles on both sides were "a little restricted" by discomfort and that there was "slightly" reduced range of movements on both sides of flexion and dorsi extension, and inversion and eversion. It is implicit in the report of the Panel that, unlike Mr Mangos, it was of the conclusion that such findings were insufficient to justify a finding of bilateral ankle ligamentous strain.

48 The same observations, which I have made above, may be applied to the finding by the Panel of no persisting injury to the neck and right elbow. It is clear that in each case the Panel concluded that the findings made on examination, and on radiology, were insufficient to support a finding of persisting injury to either those two parts of the body. The findings on examination by the Panel, in respect of the elbow and neck, were similar to those made by Mr Mangos. Again, it is implicit in the report of the Panel that, notwithstanding the minor findings elicited by the Panel and Mr Mangos on examination, it did not share the same view of Mr Mangos that those findings respectively justified a diagnosis of musculo-ligamentous strain of the neck or of right elbow strain.

49 Ms MacTiernan next submitted that the Panel failed to document in its reasons the percentage of impairment by reason of the injury to the thoraco-lumbar spine. She submitted that the reasons for the decision of the Panel were therefore inadequate. Further, she submitted that, by failing to document such findings, the Panel had failed to comply with the AMA Guides.

50 There are two short answers to that submission. First, in my view, s 28LZG(4) precluded the Panel from stating, in its reasons, the specific degree of impairment to the thoraco-lumbar spine. Ms MacTiernan sought to avoid the application of that section, by submitting that the reasons for decision of the Panel are different and distinct from the determination of the Panel under Part VBA. That distinction is both artificial, and unsound. Section 10 of the Administrative Law Act provides that any statement by a tribunal of its reasons for its decision shall be taken to form part of the decision. In my view, by virtue of that section, the reasons of the Panel form part of its determination, and thus they are susceptible to the proscription against stating the degree of impairment contained in s 28LZG(4). Secondly, and in any event, I agree with Mr Fleming that, in this case, it is possible, by a process of inference, to identify the category of impairment applied by the Panel to the applicant's back pursuant to Table 74 of the AMA Guides. Based on the findings by the Panel as to the nature of that injury - aggravation of thoraco-lumbar spondylosis without radiculopathy - the Panel must have assessed the degree of impairment as falling under category IIA in Table 74.

51 Finally, Ms MacTiernan submitted that where, as here, the Panel was minded to make a determination against the applicant, he should have been advised, and should have been afforded the opportunity to respond and, if necessary, put further material before the Panel. Ms MacTiernan did not cite any authority to me for that broad proposition. She did not point me to any particular circumstance in the case which would have made it a breach of the principles of natural justice for the Panel not to have notified the applicant before making the decision which it did. Ms MacTiernan stated that, if her client had had the opportunity to undergo an ultrasound, then further important material might have been available to the Panel in relation to the right shoulder injury. Again, that may or may not be so. However, as I have already stated, this is not a review of the Panel's decision on its merits. The applicant had a full opportunity to place material before the Panel, and he had already done so. There is nothing about the Panel's report which indicates that it made its decision on a matter about which the applicant had not had a fair opportunity to put material before it. On the contrary, the applicant had placed before the tribunal the report of Mr Mangos in relation to all of his claimed injuries. In those circumstances, I do not consider that it was a breach of the principles of natural justice for the Panel not to have advised the applicant, and given him an opportunity to respond, in relation to the views contained in its determination of the medical question.

52 For the reasons which I set out above, each of the grounds for review relied on on behalf of the applicant in support of the originating motion are to be rejected. No reviewable error has been established by the applicant. Accordingly, the originating motion must be dismissed.

[8] [2005] VSC 82, [21-22].

[9] See R v The Australian Broadcasting Tribunal & Ors; Ex parte Hardinan & Ors [1980] HCA 13; (1980) 144 CLR 13, 35.

[10] See for example Brambles Industries Limited v Nisselle [2005] VSC 82, [17]; Calleja v Franet Pty Ltd & Ors [2000] VSC 339, [56] (Ashley J).

[11] See for example s 28LF(1)(b), s 28LF(2)(a), s 28LL(1)(2), s 28LN(2), s 28LNA(2), s 28LZH(1), (2).

[13] Dixon v Hacker [2007] VSC 342; Smith v Lloyd [2007] VSC 428.

[15] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 592 (Brennan J).

[16] [1995] VICSC 209; [1996] 1 VR 635, 644; see also 652 (Ormiston JA), 654 (Callaway JA).

[17] Ibid, 651; see also 653 (Ormiston JA), 661 (Callaway JA).

[19] Ibid, [43] (Citations omitted); see also Moyston Court Fisheries Limited v Dr John Malios [2007] VSC 518, [60] and following.

Wrongs and Limitation Acts (Insurance Reform) Act 2003

Compensation Act 1985

At a glance

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Judgment (95 paragraphs)

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Legislation Cited (3)

Cases Cited (4)