Didani v Downes-Brydon [2021] VSCA 281

1 The applicant was employed by the fifth defendant, Tasmanian Seafoods Pty Ltd, as a labourer. On 6 August 2016, the applicant suffered a back injury in the course of his employment with the fifth defendant. On 7 August 2016 he claimed compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the 'Act'). In answer to the question 'What is your injury/condition, and which parts of your body are affected?', the applicant wrote: 'lower back pain which radiated to the left leg'. The claim was accepted by the fifth defendant's authorised insurer.

2 On 30 October 2018, the authorised insurer notified the applicant that his entitlement to weekly payments of compensation under the Act would cease with effect from 2 March 2019 on the basis that the insurer had decided, pursuant to s 163 of the Act, that the applicant had a capacity for work.

3 The applicant disputed the insurer's decision and referred the dispute to the Accident Compensation Conciliation Service ('ACCS') pursuant to s 282 of the Act. The dispute was not settled by that procedure. On 30 April 2019, pursuant to s 284 of the Act, the ACCS referred two medical questions to a medical panel convened under the Act to give an opinion on the questions (the 'Referral').

4 The Referral included the following statements from the referring conciliator:

4. INJURIES INCLUDING DATE OF INJURY

Lower back pain which radiated to left leg as cited on the worker's injury claim form sustained on 6/8/2016.

Liability has subsequently been accepted for a secondary psychological condition.

6. AGREED FACTS RELEVANT TO THE MEDICAL QUESTIONS

I am satisfied that the following facts are agreed ...

• Mr Kachoui Didani injured his back and left leg on 6/8/2016. A WorkCover claim was lodged and accepted. Liability has subsequently been accepted for a secondary psychological condition

...

FACTS IN DISPUTE RELEVANT TO THE MEDICAL QUESTIONS

I am satisfied that the following facts are in dispute:

• There are no known facts in dispute.

7. MEDICAL QUESTIONS

1. What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury? (see Section 4 above)

2. Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?

5 A medical panel, comprised of the first to fourth defendants (the 'Medical Panel') was convened to determine the referred medical questions. On 16 July 2019, the Medical Panel gave its 'Certificate of Opinion' which contained the Medical Panel's answers to the medical questions which had been referred to it, as follows:

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?

Answer: In the Panel's opinion the worker is no longer suffering from any physical medical condition relevant to any claimed lower back [sic] with radiation to left leg injury. The Panel is also of the opinion that the worker is suffering from a mild adjustment disorder with mixed anxiety and depressed mood, which is secondary to his physical injury.[1]

Question 2: Does the worker have no current work capacity? If so is the situation likely to continue indefinitely?

Answer: In the Panel's opinion the worker has no present inability arising from a physical or psychiatric injury such that he is not capable of performing his preinjury employment or any other suitable employment.

6 The Medical Panel gave written reasons for its answers, dated 16 July 2016 (the 'Panel's Reasons').

7 The applicant commenced a judicial review proceeding in this Court arguing that the Medical Panel erred by misunderstanding the meaning of 'medical condition' in Question 1, failing to take into account the applicant's lower back and leg pain, and failing to provide adequate reasons. The proceeding was heard before a judge of the Trial Division who published reasons on 2 February 2021 dismissing the proceeding with costs (the 'Judge's Reasons').[2]

8 The applicant seeks leave to appeal the decision and orders below on the following proposed grounds (with references to relevant paragraph numbers from the Judge's Reasons):

The trial judge erred in holding that:

1. The words 'claimed injury' in Question 1 (or in the Answer) did not include the applicant's 'lower back pain radiating to the left leg sustained on 6/8/2016', although identified as 'the claimed injury' in the Referral, because that condition is not an injury: see at [42] and [48].

2. In answering Question 1 the Medical Panel was not bound by the description of the claimed injury in the Referral: see at [45].

3. In consequence, the Medical Panel was entitled to and did answer Question 1 on the basis that the relevant injury was its own diagnosis of the claimed injury, namely the now resolved soft tissue injury suffered in the workplace incident: see at [45] and [48].

4. It was to be inferred that the Medical Panel concluded that the applicant's present complaints of back and leg pain and functional restrictions were not symptoms of his medical condition relevant to the injury: see at [49].

5. The Medical Panel was entitled to, and did, consider that the applicant's present back and leg pain and restrictions were not relevant to his claimed injury as the Medical Panel identified it: see at [49], [60] and [61].

6. It should be inferred from the matters set out in [49] that the Medical Panel did not accept the applicant's complaints of back and leg pain and restrictions were genuine or accurate: see at [49].

7. The Medical Panel was not required to explain the applicant's complaints of back and leg pain and functional restriction, having given its Opinion in Answer to Question 1: see at [50].

8. The Medical Panel had given adequate reasons, see at [66], [67] and [68].

The trial judge also erred in that:

9. In each of the above aspects the trial judge has attributed to the Medical Panel a basis for its opinions which it did not express in its Reasons.

10. The relief sought in the Originating Motion ought to have been ordered.

9 The applicant began work for the fifth defendant as a full-time labourer in around February 2014.

10 He told the Medical Panel that in the weeks leading up to the injury on 6 August 2016, he experienced intermittent left sided low back pain, and that on the day of the incident he was trying to turn over a large cooking pot to empty it of water when he felt pain in his left lower back. He said he could not move due to the severity of the back pain and his supervisor transported him to hospital where medical imaging was undertaken. By the time of trial, the applicant had not returned to work since the incident.

11 In August 2018, the authorised insurer arranged for the applicant to be assessed by consultant psychiatrist, Associate Professor Shashjit Varma, who concluded the applicant suffered a mild adjustment disorder caused by chronic lower back pain which was not improving and which was impacting his life. From a psychiatric perspective alone, Associate Professor Varma thought that the applicant had a capacity for pre-injury duties and for suitable employment.

12 In October 2018, the authorised insurer referred the applicant for assessment by occupational physician, Dr Graham. Dr Graham concluded there was no evidence of any physical injury or medical condition and that on a purely physical basis the applicant had capacity for pre-injury duties and any employment option.

13 Treating general practitioner Dr Navani referred the applicant for an MRI scan which was performed on 2 April 2019. The radiologist concluded:

1 L5/S1 disc degeneration with mild to moderate disc bulge without neuroimpingement.

2 Slight L4/5 disc desiccation without disc bulge or annular disruption.

Dr Navani diagnosed L4/L5 lumbar disc desiccation, L5/S1 lumbar disc protrusion with abutment of S1 nerve root bilaterally with left leg radiculopathy, and associated secondary adjustment disorder and generalised anxiety and major depression. Dr Navani concluded the applicant was not fit for any work and remained totally incapacitated.

14 The Medical Panel was composed of a specialist general practitioner, an occupational and environmental physician (also a specialist general practitioner), a neurosurgeon and a psychiatrist. The applicant was examined jointly by the first three specialists on 14 June 2019, and separately by the psychiatrist member on 24 June 2019. The Panel's Reasons record:

Reason for referral

The Panel noted from the referral that Mr Didani made a claim for injury to his lower back with radiation to the left leg on 6 August 2016 and that liability was accepted for the physical injury and for a subsequent psychological condition.

15 The Medical Panel took a history from the applicant and recorded relevant aspects of his background, medical history, employment tasks and details of the incident. Under 'Progress and treatment' the Medical Panel recorded being told matters by the applicant which included:

(a) he could walk, but he could not stand straight or drive, and he experienced 'pins and needles' which extended to the sole of the left foot;

(b) within days of the incident the pain was getting worse and worse and started to radiate to the left leg;

(c) in the last year, he has experienced a feeling of weakness in the left leg;

(d) he had two injections to the back which were of 'no help at all', and physiotherapy and hydrotherapy are 'no good';

(e) he takes the narcotic analgesic, Tramadol, which helps him to sleep, but the relief is only temporary. He also takes Lyrica and Endep;

(f) he has seen two neurosurgeons. Dr Yau suggested conservative treatment with injections, and Dr Nair felt that conservative management was appropriate, and surgery was not indicated;

(g) he was referred to a pain management specialist for an epidural injection; and

(h) he has had discussions with neurosurgeons about the possibility of an operation on his back to manage the radiated left leg pain, but he was worried about whether his fertility could be compromised by this procedure, and he was not contemplating surgery.

16 Under 'Current symptoms and capacity' the Medical Panel recorded the applicant saying:

(a) he had frequent exacerbations of low back pain for 'no reason';

(b) sometimes walking could 'set it off' and he reported a walking tolerance of 30 minutes;

(c) sitting and standing were limited by his back pain;

(d) engaging in intimacy with his girlfriend was restricted by pain in his back; and

(e) every morning he would prefer to die rather than manage the pain.

17 The Medical Panel recorded its findings on the applicant's physical examination:

Physical examination

Mr Didani had above ideal body mass index and appeared deconditioned. He demonstrated normal gait and was able to heel toe walk and squat. He was able to single-leg stand.

He had normal spinal contours and posture. There was no obvious muscle bulk asymmetry of the upper or lower limbs and this was confirmed on comparative measurement.

On application of axial pressure to the spine he did not describe any increase in symptoms. He described some tenderness to palpation at the level of L4/5 in the left paraspinal region and the Panel detected no paraspinal muscle spasm. Neural tension testing of the lower limbs did not alter his symptoms.

On active range of motion of the lumbosacral spine he flexed with fingertips able to touch the knees. He demonstrated poor range of extension and active resistance on passive extension of the spine. He demonstrated symmetrical range of lumbosacral rotation and lateral flexion though with poor effort completing the task.

On power testing of the major muscle groups of the lower limbs he demonstrated a generally collapsing pattern but with no myotomal muscle weakness. Deep tendon reflexes of the lower limbs including the medial hamstring reflexes were bilaterally present and equivalent. On sensory examination of his lower limbs he described reduced sensitivity to light touch and pinprick involving the entire left lower leg which the Panel considered was non-dermatomal in nature. The Panel considered that there was no evidence of left leg radiculopathy on clinical examination.

18 The Medical Panel reviewed an MRI of the lumbosacral spine taken on 2 April 2019.

19 In relation to the physical diagnosis the Medical Panel recorded:

Physical diagnosis

The Panel noted the description given by Mr Didani of the incident of injury which occurred in 2016 with the onset of low back pain with referred symptoms to his left leg. The Panel noted Mr Didani describes progressive worsening of his symptoms since the incident of injury despite a range of treatments including spinal injections.

The Panel noted its findings on examination of Mr Didani which were not indicative of any ongoing physical medical condition of his lower back. The Panel noted medical imaging and considers the changes are consistent with a mild age-related presentation and are not indicative of any acute or ongoing significant pathology of the low back.

Based on its physical assessment of Mr Didani on 14 June 2019, the Panel concluded that Mr Didani is no longer suffering from any physical medical condition of the low back relevant to any accepted physical condition.

20 On examination of his mental status the Medical Panel found that, objectively, the applicant's affect was slightly depressed with restricted range. The Medical Panel recorded that the applicant was 'preoccupied with his perception of pain' and hoped 'that the pain would resolve' and made the following psychiatric diagnosis:

The Panel concluded that Mr Didani is suffering from a mild adjustment disorder with mixed anxiety and depressed mood, which is secondary to his (now resolved) physical injury. From a psychiatric point of view, Mr Didani's symptoms are mild in severity and do not affect his work capacity.

21 Turning to the work capacity relevant to the second question referred to it for opinion, the Medical Panel recorded:

Work capacity assessment

In consideration of Mr Didani's capacity for work, the Panel noted the following:

• Studied to year 9 in Iran
• He speaks fluent Farsi
• He understands English but is not fluent in speaking or reading of English
• He has a current driving licence
• He describes himself as having basic computer skills but no computer at home
• His work experience in Iran included work as a taxi driver, tailoring and ironing. In Australia he undertook work packing seafood as a labourer.
• He has undertaken no specific courses or certificates in Australia
• In Australia he worked as an Uber driver for a period of time and reported to the Panel that he managed that without difficulty

The Panel noted from referral material work capacity assessment by Rehab Management dated 29 January 2018 which identified the following suitable employment options for Mr Didani:

• Packer

• Product assembly worker

• Service station attendant

• Delivery driver

• Taxi/Uber driver

The Panel noted the history given by Mr Didani of the nature of his pre-injury work as a labourer with a seafood company and of concomitant work as an Uber driver for a brief period of time. The Panel noted that the work tasks of the job as a labourer were of a physical nature and that he ceased work at the time of the accepted injury due to physical symptoms and some physical restrictions and dysfunction.

The Panel concluded that at the time of its own examination of Mr Didani, any soft tissue injuries arising from the incident of injury in 2016 have resolved and he is no longer suffering from any physical medical condition of his low back.

The Panel, based on its psychiatric examination of Mr Didani at the time of its assessment considers that any mild adjustment disorder with mixed anxiety and depressed mood, which is secondary to his (now resolved) physical injury does not affect his work capacity.

The Panel concluded that Mr Didani has no present inability arising from a physical or psychiatric injury such that he is not capable of performing his pre-injury employment or any other suitable employment.

22 In the proceeding to review the Medical Panel's opinion, the applicant argued that the Medical Panel had made a jurisdictional error in that it had not answered Question 1, or had misunderstood the question, or had misunderstood or misapplied the meaning of 'medical condition' in the question. Alternatively, the applicant contended that the Medical Panel had not taken relevant matters into account, namely, the applicant's lower back and left leg pain and its effects.

23 The applicant argued that if the Medical Panel had properly interpreted and answered Question 1, its answer could only have been that the medical condition from which the applicant was suffering was the pain which he had been suffering since the date of the incident. The applicant formulated the question which the Medical Panel was obliged to address as simply, 'What is the nature of the worker's medical condition relevant to his claimed back and leg pain?'. The applicant submitted that because he was still suffering from the pain, which he submitted was itself a medical condition, only one answer could have been given to that question.

24 It was further submitted that the applicant's pain symptoms and conditions were also 'physical medical' conditions, because they had a physical effect and were experienced physically as bodily conditions with bodily consequences. Further, it was submitted that pain satisfies the definition of 'injury' in the Act.

25 By reference to Military Rehabilitation and Compensation Commission v May ('May'),[3] and Linfox Transport (Aust) Pty Ltd v Toohey,[4] and the definition of 'injury' in the Act, the judge held that 'injury' involves physiological or psychiatric change which includes an existing injury or condition being rendered symptomatic. The judge stated that to establish injury there must be more than a mere complaint of symptoms or functional consequences.[5]

26 The judge rejected the applicant's submission that the Medical Panel was bound by the description of injury in the referral document. He agreed with the fifth defendant's submission that it was unviable that injury suffered by a worker be confined by a fine textual analysis of words used in answer to a question on the initial claim form. In this case, the general description of the injury in the claim form and the Referral, said the judge, did not bind the Medical Panel to accept the injury described in those terms.[6]

27 The judge further held that the applicant's history of back and leg pain and resulting functional restriction were 'not themselves injury and the Panel was not bound to accept the complaints'. Nor was the Medical Panel bound to conclude that the complaints of pain and restriction given to the Medical Panel were a consequence of the applicant's medical condition relevant to the injury. The judge held that it was 'open to the Panel to conclude as it did, that any soft tissue injury arising from the work incident in August 2016 had resolved'. It was open, the judge held, for the Medical Panel to conclude that the applicant 'was no longer suffering any physical medical condition relevant to the injury and that he was suffering a mild adjustment disorder secondary to the resolved physical injury'.[7]

28 From his reading of the Panel's Reasons, the judge inferred that the Medical Panel had concluded that the applicant's complaints of pain and functional restrictions were not symptoms of his medical condition relevant to the injury. In explaining that inference, the judge said:

Findings by the Panel on comprehensive physical examination which included active resistance on passive extension of the spine, poor effort demonstrating lumbosacral movements, a generally collapsing pattern with no myotomal muscle weakness on examination of major muscle groups of the lower limb, and reduced sensitivity to light touch and pin prick involving the entire left lower leg which it considered non-dermatomal in nature, and on psychiatric examination that he was preoccupied with his perception of pain, viewed in the context of the reasons as a whole, support an inference that the Panel did not accept the plaintiff's complaints as genuine or accurate.[8]

29 The judge further stated that it was sufficient for the Medical Panel to give its opinion as to the applicant's medical condition relevant to the injury without being required to go on and explain complaints of pain and functional restriction that it did not consider represented or be a consequence of any relevant medical condition that it found.[9]

30 A further argument before the Trial Division that is relevant to this application for leave to appeal was that the Panel's Reasons were inadequate because the Medical Panel failed to explain a path of reasoning to the conclusion that, despite the pain he was experiencing and its effects, the applicant nonetheless had the physical and psychiatric capacity to engage in both pre-injury employment and suitable employment.

31 In short, the applicant submitted that, assuming the Medical Panel properly interpreted and answered Question 1, it had not given reasons for saying that the applicant's continual experience of debilitating pain is not a medical condition relevant to the claimed injury.

32 Dealing with that argument, the judge repeated that, contrary to the applicant's submissions, the Referral material and the proper interpretation of Question 1 did not oblige the Medical Panel to conclude that the medical condition relevant to the claimed injury was the lower back pain and left leg pain of which the applicant continued to complain. The judge was of the view that the Medical Panel had explained how it came to its conclusion about the nature of the applicant's medical condition relevant to the claimed injury, saying:

Applying its medical expertise and experience the Panel concluded, on the basis of matters including the referral materials, history, examination findings and radiology, that the plaintiff was not suffering any physical medical condition relevant to the claimed injury, and his psychological condition was a mild adjustment disorder with mixed anxiety and depressed mood, which was secondary to the now resolved physical injury. On the basis of that opinion, the Panel concluded that the plaintiff had no present inability such that he was not capable of performing his pre-injury employment or any other suitable employment.[10]

33 Again, in this connection, the judge said that it was unnecessary for the Medical Panel to go further and explain the applicant's continuing complaints of pain.[11]

34 From the proposed grounds of appeal set out in paragraph [8] above, it can be seen that the applicant takes issue with each of the judge's statements and findings summarised in paragraphs [25] to [29], [32] and [33] above. In broad terms, the proposed grounds seek to challenge the way in which the judge dealt with the Medical Panel's view of the 'injury' and the applicant's present 'medical condition' relevant to that injury. The grounds also challenge the correctness of the judge's view as to whether the Medical Panel accepted the applicant's complaints of present pain as being genuine or accurate.

35 Both the written and oral submissions for the applicant approached these two fundamental challenges from many angles. This approach had a tendency to make it difficult to follow and analyse the argument in a cohesive way without losing the overall thread. In our view, it is convenient to set out what we took to be the essential thrust of the applicant's argument. To be clear, the way we put it is not in the language of the applicant's submission, however, we consider that it accurately represents the essential framework of it. The argument was:

(a) first, in answering the medical questions referred to it by the conciliator, the Medical Panel was bound by the precise description of the injury given in the referred question and the Medical Panel could not travel outside those terms - thus, the Medical Panel was fixed with the description of the injury as 'pain' (simpliciter) in the 'lower back ... which radiated to left leg';

(b) secondly, in answering the medical question referred to it, the Medical Panel was also bound to accept that the pain (simpliciter) is a medical condition;

(c) thirdly, the Medical Panel must be taken to have accepted that the applicant was currently experiencing some pain (at least similar to his original injury);

(d) fourthly, the Medical Panel should have found that his present pain was the continuation of his past physical injury (namely, pain), being either simply a continuation of physical pain or a continuation of past pain via the psychological injury that developed in response to that past pain; and

(e) fifthly, it must follow from the first four points that, in response to the first medical question, the Medical Panel was bound to answer that his present pain is the medical condition relevant to his past injury (which was pain) - alternatively, the Medical Panel otherwise had to explain what was the cause of the applicant's present pain.

36 In short, we consider that (at least) the first, third and fourth propositions have no merit and, consequentially, neither does the fifth.

37 The Medical Panel concluded that the applicant was 'no longer suffering from any physical medical condition of the lower back relevant to any accepted physical condition'. Further, the Medical Panel concluded that 'any soft tissue injuries arising from the incident of injury in 2016 have resolved'. The judge rejected the applicant's argument that the Medical Panel was bound to confine its conception of injury to pain alone and that it could not identify the injury in terms of a soft tissue injury because the injury as stated in the Referral was identified in terms of pain alone.

38 On the leave to appeal application, the applicant essentially repeated that argument. The applicant contended before us that the Medical Panel's statutory task was confined to answering the medical question put to it in the terms that the medical question was framed, and no other question. The applicant placed emphasis on s 304 of the Act which concerns the referral of a medical question. That provision obliges the referring person to provide a document 'specifying ... the injury' to which the medical question relates. Therefore, argued the applicant, the Medical Panel simply had no room to understand the referred question, and in particular the specification of the injury, in any other terms than as expressed in the language of the Referral. The applicant contended that Question 1 itself accepts that the claimed injury is pain because that is what was in the Referral, and the Medical Panel 'was asked to look at his pain and not some other matter'.

39 Perhaps the short answer to this point is to be found in the two authorities which the trial judge cited. In May, the High Court considered the meaning of injury in the Safety Rehabilitation and Compensation Act 1988 (Cth). The definition of 'injury' and 'disease' in the Act was, with minor structural differences, relevantly in the same terms as the definitions of 'injury' and 'disease' in the Act now under consideration. The High Court rejected the proposition that subjectively experienced symptoms without accompanying physiological or psychiatric change was an injury (other than a disease) as defined.[12] We are not persuaded by the applicant's submission that May is not helpful because it concerns Commonwealth legislation.

40 In Calleja v Franet Pty Ltd,[13] a medical panel was asked for its opinion on this question:

What is the nature of the plaintiff's medical condition(s) relevant to the injuries in the statement of claim in particular ... Injury to the right elbow ... ?

The panel answered that there was 'no physical medical condition relevant to any injury to the right elbow'. In response to a challenge to the way the medical panel answered the question, Ashley J said:

If the worker has particularised - in medical rather than legal terms - the injury he or she claims to have suffered, the panel's task is to opine whether some and what condition is then present which can be related to the injury alleged. But if the worker specifies injury only in the most general terms (as here: 'injury to the right elbow ...') the panel cannot sensibly answer a question in the form of [the question] without first assessing - in a medical, not legal sense - the likely nature of the claimed injury.[14]

41 In our view, the propositions from these two cases (which we adopt) answer the applicant's contentions on the question of how the Medical Panel had to approach the specified injury in Question 1. 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. That is what the Medical Panel did, identifying the relevant physiological change as injury to the soft tissue in the applicant's lower back.

42 Contrary to the applicant's submission, a proper understanding of the Medical Panel's statutory task does not lead to the conclusion that it was bound to answer Question 1 by adopting the precise terms of 'injury' as framed in the Referral. Brief recourse to the statutory framework for the referral of medical questions shows why.

43 A worker is entitled to compensation under the Act if the worker sustains an injury arising out of or in the course of any employment.[15] The employer and the Victorian WorkCover Authority are liable to the worker to pay such compensation (and damages) in respect of injuries arising out of or in the course of or due to the nature of employment.[16] 'Injury' means 'any physical or mental injury' including industrial deafness, a disease (separately defined) and the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.[17] If a worker's incapacity for work results from or is materially contributed to by an injury which entitles the worker to compensation, the compensation must be in the form of weekly payments.[18] Having commenced to pay weekly payments, the Authority may terminate weekly payments if it forms the view the worker is not entitled to compensation, including on the basis that the worker does not have an incapacity for work resulting from the injury.[19] A worker may dispute such a termination of entitlement to weekly compensation and lodge the dispute with a conciliation officer appointed under the Act.

44 A conciliation officer's duty is to conciliate the dispute,[20] and the officer has the power to make recommendations to the parties about the dispute[21] and even to direct the Authority to pay weekly compensation if satisfied there is no genuine dispute as to whether the worker has no current work capacity.[22] In the course of conciliating a dispute, a conciliation officer may refer a medical question to a medical

44 panel for an opinion.[23] A 'medical question' is defined to mean any of 13 questions,[24] including:

(a) a question as to the nature of a worker's medical condition relevant to an injury or alleged injury;

...

(e) a question as to whether a worker has no current work capacity and is likely to continue indefinitely to have no current work capacity.

'Current work capacity' means a present inability arising from an injury such that the worker is not able to return to pre-injury employment but is able to return to work in suitable employment.[25]

45 Having been referred a medical question, the function of the medical panel is to give its opinion on the medical question in respect of injuries arising out of or in the course of or due to the nature of employment.[26] In referring a medical question, the relevant person or body must give the convener of the panel a document specifying the injury or alleged injury to, or in respect of, which the medical question relates.[27]

46 In the present case, therefore, the referral by the conciliation officer of medical questions to the Medical Panel occurred in a specific statutory context. That context, naturally, informs the purpose for each step and the construction of the provisions relevant to the tasks to be performed.

47 The actual medical questions referred by the conciliation officer adopted specific forms as defined by the Act. The nature of the dispute between the parties gave rise to the need to have those questions answered. The purpose for having the questions answered was to assist the conciliation officer to perform the statutory task of conciliating the dispute including by making recommendations or giving directions (if thought appropriate) that the authorised insurer pay the compensation.

48 In this case, the particular dispute was as to whether the applicant had a current work capacity such that he was not entitled to weekly payments and, if he had no current work capacity, whether that situation was to continue indefinitely. Because of the definition of 'current work capacity', that question, in turn, raised the further question whether the applicant had a present inability arising from an injury such that he was not able to return to his pre-injury employment yet able to return to work in suitable employment.[28] Logically, that question required knowing whether there was any present medical condition that was relevantly related to his original injury for which he claimed compensation. Hence, the conciliator asked the medical questions in a manner conforming with subparagraphs (a) and (e) of the definition of a 'medical question' in s 3 of the Act.

49 In combination with the argument we have discussed so far, the applicant repeatedly asserted in submission that pain is a medical condition, the applicant was experiencing present pain, and thus the Medical Panel was bound to say that his present pain was the medical condition relevant to his past pain (ie, the injury). Leaving aside the question whether the applicant was presently experiencing actual pain, the applicant's argument on this point cannot be accepted.

50 It was for the Medical Panel to determine whether, in its opinion, there was any present medical condition affecting the applicant that was relevant to his claimed injury. That question does not presuppose an affirmative answer nor confine the focus of enquiry to any particular medical condition. It cannot be reframed as if it did. Yet, in argument, that is precisely what the applicant sought to do. In both his written case and in oral argument the applicant reframed Question 1 so that it asked: 'What is the nature of the worker's present pain relevant to the pain he suffered as a result of the incident on 6 September 2016?', or less pointedly, 'Is the applicant's present pain relevant to his past claimed pain injury?'

51 Neither of these formulations is correct. Each would constrain the Medical Panel to start with the presumption that the current complaint of pain is a medical condition relevant to the claimed injury, alternatively to focus on one particular present condition and comment on its relationship to the past claimed injury. The medical question is not so framed. It is entirely open-ended, first, as to whether there is any present medical condition relevant to the past pain injury and, secondly, if so, what that medical condition might be.

52 We agree with the judge's view, accepting the fifth defendant's submission, that Question 1 required the Medical Panel to consider a diagnosis of the claimed pain injury and any relevant condition and in doing so, to apply its own medical expertise and experience.[29]

53 With that background of understanding, the question asked and the answer given must serve the purpose for which the Referral was made. A proper approach to answering the question asked must entail providing relevant information to assist the resolution of the dispute as understood in terms of the Act. It would not serve the statutory purpose to:

(a) require the Medical Panel to answer the question by adopting a conception of the injury that would not equate to any injury recognised under the Act;

(b) obtain medical specialist opinion as to the 'medical condition' relevant to the injury that did not in fact represent the actual expert opinion of that panel; or

(c) constrain the approach of the expert Medical Panel in answering the question such that no medical expertise was required to perform the task.

54 Yet, in our view, the approach urged by the applicant has these results. It cannot be accepted.

55 What we have said far disposes of grounds 1, 2 and 3. The judge was not wrong to hold that the Medical Panel was not bound by the description of the injury in the Referral but, instead, was entitled to (and did) answer Question 1 on the basis that the claimed injury was the now-resolved soft tissue injury to the applicant's lower back. We have also disposed of ground 5 insofar as it asserts that the judge was wrong to accept that the Medical Panel was entitled to form the view that the applicant's present pain and restrictions were not relevant to his claimed injury. We will now address whether the judge was wrong in thinking that the Medical Panel did form that view.

56 By ground 4, the applicant asserted that the judge was wrong to infer that the Medical Panel did not think that the applicant's present complaints of back and leg pain and functional restrictions were symptoms of a medical condition relevant to his injury. This argument is a little hard to understand given that the Medical Panel's opinion that there was no medical condition relevant to the injury, despite having recorded the applicant's present complaints of pain and commented upon them. With respect, the inference is obvious.

57 What the applicant really takes aim at (articulated in ground 6) is the judge's conclusion that the Medical Panel's findings on physical examination supported 'an inference that the Panel did not accept the [applicant's] complaints as genuine or accurate' (emphasis added). In our view, the judge's reading of the Panel's Reasons and the inference that he drew is not only without error but is entirely unremarkable.

58 It is clear from the Panel's Reasons and, in particular, the statements to which the judge referred (see above [28]), that the Medical Panel was not affirmatively persuaded that the applicant was suffering actual physical pain or restrictions either at all or to the extent that he complained about. Neither the results of the physical examination nor the medical imaging indicated any 'ongoing physical medical condition' or 'ongoing significant pathology' of the applicant's lower back. Instead, from the results of the Medical Panel's mental state examination, the Medical Panel recorded that the applicant was 'preoccupied with his perception of pain'. In that context, his preoccupation with the perception of pain was a feature of his psychological condition.

59 The applicant argued that because the Medical Panel:

(a) recorded the applicant as complaining of pain; and

(b) accepted that the applicant was suffering from a mild adjustment disorder with mixed anxiety and depression which was secondary to his physical injury,

it followed that the Medical Panel must have accepted that the applicant was suffering actual pain so as to explain his ongoing psychological condition.

60 This is a misreading of the Panel's Reasons. Nowhere does the Medical Panel attribute the applicant's present psychological condition to being secondary to his present complaint of pain. Nor, as a matter of logic, did it need to do so. Instead, it expressly found his psychological condition to be 'secondary to his (now resolved) physical injury'.

61 The applicant's argument in this area plainly descended into the reeds of a debate about the merits of the Medical Panel's opinion. It must be rejected as an impermissible ground of challenge to a decision given on judicial review.

62 By grounds 7 and 8 the applicant argues that the judge was wrong to consider that the Medical Panel had adequately explained its reasons for its opinion.

63 Ground 7 is based upon a misconception that, in answering Question 1, the Medical Panel was required to accept and explain the applicant's ongoing complaints of back and leg pain. That ground is based upon a misconception of Question 1 as explained in paragraphs [50] and [51] above. The Medical Panel was asked about the nature of any present medical condition that it thought was relevant to the applicant's past injury. The Medical Panel did not find that the applicant had any medical condition relevant to his past physical injury. But the Medical Panel accepted that he had an ongoing psychological injury, a feature of which was his preoccupation with pain, which did not render him incapable of performing his pre-injury employment or other suitable employment.

64 Contrary to the applicant's submission, these findings did not amount to an adverse finding about the credit of the applicant which the Medical Panel was required to state and justify. The quite deliberate phraseology used by the judge - that the Medical Panel did not accept the applicant's complaints as genuine or accurate - neatly captures the two critical features of the Medical Panel's opinion about pain. First, it was not persuaded that there was any pathology producing any physical pain. Secondly, to the extent that the applicant presented with physical restrictions due to claimed physical pain, the Medical Panel was not persuaded that those complaints were (at a minimum) accurate.

65 With that understanding, it did not follow (as the applicant submitted it must) that:

(a) because the Medical Panel did not say that it disbelieved the applicant, it must therefore have accepted that his complaint of pain was a complaint of real, physical pain; or

(b) if the Medical Panel did not accept that the applicant was experiencing real, physical pain it must have disbelieved him (in which case it was bound to say so).

66 There is no merit in grounds 7 or 8. Ground 9 assumes the correctness of grounds 1-8 and therefore, on our assessment of those grounds, must also be rejected.

67 We do not consider that any of the proposed grounds of appeal have any real prospects of success. We refuse leave to appeal.

[2] Didani v Downes-Brydon & Ors [2021] VSC 27.

[3] [2016] HCA 19; (2016) 257 CLR 468, [61] (French CJ, Kiefel, Nettle and Gordon JJ).

[4] [2004] VSCA 233, [16]-[17] (Buchanan, Phillips JJA and Byrne AJA).

[12] May [2016] HCA 19; (2016) 257 CLR 468, [52], [57], [62] (French CJ, Kiefel, Nettle and Gordon JJ).

[13] [2000] VSC 339 (Ashley J).

[14] Calleja v Franet Pty Ltd [2000] VSC 339, [27] (Ashley J).

[15] Section 39 of the Act.

[16] Section 70 of the Act.

[17] Section 3 of the Act.

[24] Section 3 of the Act.

[25] Section 3 of the Act.

[28] See definition of 'current work capacity', s 3 of the Act.