First Plaintiff v Defendants

1 The first defendant, Ms Reimers, alleges that she sustained injury in the course of her employment as a laboratory technician with the first plaintiff, the State of Victoria, on 26 October 2018. Ms Reimers submitted two worker's injury claims under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('Act'). Both claims were rejected by Gallagher Basset Services Workers Compensation Vic Pty Ltd ('Gallagher Basset'), an authorised agent of the second plaintiff, the Victorian WorkCover Authority ('VWA'). Subsequently, Ms Reimers commenced proceedings in the Magistrates' Court of Victoria challenging the rejection of her worker's injury claims ('Statutory Benefits Claim'). Those proceedings were transferred to the County Court of Victoria on 4 April 2023. On 4 March 2022, Ms Reimers filed an application pursuant to s 328(2) of the Act seeking the consent of the VWA to commence proceedings for common law damages for the injuries the subject of the Statutory Benefits Claim ('Serious Injury Application').

2 On 6 July 2023, his Honour Judge Purcell referred medical questions to the medical panel comprised of the second to sixth defendants ('Panel') for its opinion pursuant to s 207(1) of the Act. His Honour made separate referrals in respect of the Statutory Benefits Claim and the Serious Injury Application. On 6 December 2023, the Panel issued two opinions, each accompanied by written reasons:

(a) a Certificate of Opinion ('Statutory Benefits Opinion') and Reasons for Opinion ('Statutory Benefits Reasons') dated 6 December 2023[1]; and

(b) a Certificate of Opinion ('Serious Injury Opinion') and Reasons for Opinion ('Serious Injury Reasons') dated 6 December 2023[2] (together, the 'Opinions' and the 'Reasons').

3 By originating motion filed on 21 February 2024, the plaintiffs seek orders in the nature of certiorari quashing the Opinions pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiffs contend that the Opinions should be quashed on five grounds:

(a) the Panel failed to accord the plaintiffs procedural fairness;

(b) the Panel constructively failed to perform its statutory function by making factual errors;

(c) the Panel fell into jurisdictional error;

(d) the Panel made findings of fact which were not open; and

(e) the Panel failed to provide adequate reasons for its Opinions.

4 I have rejected each of the grounds of review, save for the challenge to the Statutory Benefits Opinion based on the inadequacy of the Statutory Benefits Reasons. The Statutory Benefits Reasons do not provide a path of reasoning for the Panel's opinion that Ms Reimers had no current work capacity due to major depression with anxiety from the period 26 October 2018 to the date of the Panel's examination of her.

5 Although the Statutory Benefits Reasons and Serious Injury Reasons are largely identical, a finding that the Statutory Benefits Reasons are inadequate does not mandate a finding that the Serious Injury Opinion should be quashed on the ground of the inadequacy of the Serious Injury Reasons. The adequacy of the Reasons is to be assessed by reference to the Opinions which were underpinned by the Reasons. The Statutory Benefits Opinion was given in respect of questions which are different to the questions which underpinned the Serious Injury Opinion. The Serious Injury Reasons provide an adequate path of reasoning for the Serious Injury Opinion.

6 The following summary of the factual background leading up to the Opinions is based on the agreed facts contained in joint statements dated 7 March 2022[3] and 27 January 2023[4] provided to the Panel pursuant to s 304 of the Act.

7 Ms Reimers was born on 20 October 1960 and is currently 64 years old. Ms Reimers commenced employment as a teacher with the Department of Education in 1990. From 2014, she worked as a laboratory technician. Ms Reimers commenced working at Mordialloc Secondary College in 2015.

8 On 20 November 2018, Ms Reimers completed a worker's injury claim form pursuant to the Act ('First Claim').[5] Ms Reimers claimed injury of 'occupational overuse syndrome' of her 'neck, shoulder & right arm', said to have been caused by 'repetitive movement of low muscle loading from cleaning turtle and fish tanks and changing mice enclosure substrate' on 26 October 2018.[6]

9 By notice dated 20 December 2018, Gallagher Basset wrote to Ms Reimers advising that it had determined to reject the First Claim.[7] The First Claim was rejected on the following grounds:

(a) Ms Reimers had not sustained an injury arising out of or in the course of her employment; and

(b) her claimed incapacity for work was not materially contributed to by an injury which entitled her to compensation.[8]

10 On 3 February 2021, Ms Reimers completed a second worker's injury claim form ('Second Claim').[9] Ms Reimers claimed injury of 'neck, right shoulder, arm pain', said to have 'arisen out of and during the course of my employment as a result of repetitive manual duties.'[10]

11 By notice dated 3 March 2021, Gallagher Basset wrote to Ms Reimers advising that it had determined to reject the Second Claim.[11] The Second Claim was rejected on the basis that liability had been assessed and determined on a previous claim.[12]

12 On 22 March 2021, Ms Reimers commenced proceedings in the Magistrates' Court of Victoria, seeking to challenge the two rejection decisions.[13] The Magistrates' Court proceedings were subsequently transferred to the County Court of Victoria on 4 April 2023 ('Statutory Benefits Proceeding').[14]

13 On 6 July 2023, his Honour Judge Purcell referred medical questions to the Panel for its opinion pursuant to s 207(1) of the Act ('Statutory Benefits Referral'). The questions were formulated in a Notice of Request pursuant to s 274(1)(b) of the Act dated 15 March 2023.[15]

14 The Panel was convened to give its opinion in respect of the referred medical questions. The Panel comprised of the second to sixth defendants:

(a) Dr Robin Hunter, rehabilitation physician;

(b) Dr Keith McCullough, orthopaedic surgeon;

(c) Dr Armin Drnda, neurosurgeon;

(d) Associate Professor Alexander Holmes, psychiatrist; and

(e) Dr Diana Korevaar, psychiatrist.[16]

15 Ms Reimers was examined by the Panel on two occasions. The non-psychiatrist members of the Panel examined Ms Reimers on 2 October 2023, and the psychiatrist members of the Panel examined Ms Reimers on 10 October 2023.[17]

16 On 6 December 2023, the Panel issued the Statutory Benefits Opinion. The questions and opinions are set out below:

Question 1. What is the nature of any medical condition of the Plaintiff's:

(a) spine;

(b) right shoulder/arm;

(c) mind?

Answer: In the Panel's opinion:

(a) the Plaintiff suffered from a soft tissue muscle strain of the neck, now resolved, and is currently suffering from constitutional degenerative disease of the cervical spine, treated surgically;

(b) the Plaintiff suffered from a soft tissue muscle strain of the right shoulder, now resolved, and currently does not have an intrinsic medical condition of the right shoulder and arm;

(c) the Plaintiff is suffering from major depression and anxiety.

Question 2. Was the Plaintiff's employment with the Defendant in fact a significant contributing factor to any, and if so what, injury to the Plaintiff's:

(a) spine; and/or

(b) right shoulder/arm?

Answer: In the Panel's opinion:

(a) the Plaintiff's soft tissue muscle strain of the neck, now resolved, was significantly contributed to by the Plaintiff's employment; however the Plaintiff's constitutional degenerative disease of the cervical spine was not significantly contributed to by the Plaintiff's employment.

(b) the Plaintiff's soft tissue muscle strain of the right shoulder, now resolved, was significantly contributed to by the Plaintiff's employment; however the Plaintiff's no longer suffers from an intrinsic condition of the right shoulder/arm that was significantly contributed to by the Plaintiff's employment.

Question 3. In any, and if so what, period from 26 October 2018 up to, and as at, the date of the Panel's examination of the Plaintiff, did/does any medical condition identified by the Panel in answer to:

(a) question 1(a) result from, or was/is it materially contributed to by, any and if so, what injury identified by the Panel in answer to question 2(a)?

(b) question 1(b) result from, or was/is it materially contributed to by, any and if so what injury identified by the Panel in answer to question 2(b)?

(c) question 1(c) result from, or was/is it materially contributed to by, any and if so what injury identified by the Panel in answer to question 2(a) and/or (b)?

Answer: In the Panel's opinion, (a) and (b) the Plaintiff's soft tissue injury to the neck and right shoulder are now resolved, and no longer are materially contributed to by the claimed conditions. The Panel is of the opinion that these soft tissue injuries would have resolved over a 4 to 6 week period following the injury on 26 October 2018.

In the Panel's opinion, the Plaintiff's constitutional degenerative disease of the cervical spine does not result from, nor is it materially contributed to by the claimed condition(s).

(c) the Plaintiff's major depression with anxiety was and is materially contributed to by the claimed injuries to the neck and right shoulder/arm.

Question 4. In any, and if so what, period from 26 October 2018 up to, and as at, the date of the Panel's examination of the Plaintiff, did/does the Plaintiff have:

(a) a "current work capacity"; or

(b) "no current work capacity?

Answer: The Panel is of the opinion that from the period 26 October 2018 up to, and as at, the date of the Panel's examination of the Plaintiff

(a) did not have a current work capacity.

(b) had no current work capacity

Question 5. In respect of any period of incapacity identified in answer to question 4, did/does that incapacity result from, or was/is it materially contributed to by, any and if so which injury identified by the Panel in answer to question 2(a) and/or (b)?

Answer: Not applicable.

Question 6. In any period identified by the Panel in answer to question 4 in which the Plaintiff had or has "no current work capacity", was or is it likely to continue indefinitely?

Answer: The Panel is of the view that from the period 26 October 2018 up to, and as at, the date of the Panel's examination of the Plaintiff's incapacity for work was likely to continue indefinitely.[18]

17 On 6 December 2023, the Panel also gave the Statutory Benefits Reasons for the Statutory Benefits Opinion.[19]

18 On 4 March 2022, Ms Reimers lodged an application pursuant to s 328(2) of the Act, seeking the VWA's consent to commence proceedings for common law damages ('Serious Injury Application'). The Serious Injury Application was denied by the VWA on 30 June 2022. Ms Reimers subsequently issued proceedings in the County Court with respect to the denial on 15 July 2022.[20]

19 On 6 July 2023, his Honour Judge Purcell referred medical questions to the Panel for its opinion pursuant to s 207(1) of the Act ('Serious Injury Referral'). The questions were formulated in a Notice of Request pursuant to s 274(1)(b) of the Act dated 15 March 2023.[21]

20 The same Panel, comprising the second to sixth defendants, was convened to give its opinion in respect of the referred medical questions.[22] Ms Reimers was examined by the Panel on two occasions. The non-psychiatrist members of the Panel examined Ms Reimers on 2 October 2023, and the psychiatrist members of the Panel examined Ms Reimers on 10 October 2023.[23]

21 On 6 December 2023, the Panel issued the Serious Injury Opinion. The questions and opinions are set out below:

Question 1. What is the nature of any Plaintiff's medical condition of the Plaintiff's:

(a) spine;

(b) right shoulder/arm;

(c) mind?

Answer: In the Panel's opinion:

(a) the Plaintiff suffered from a soft tissue injury of the neck, now resolved, and is currently suffering from constitutional degenerative disease of the cervical spine;

(b) the Plaintiff suffered from a soft tissue injury of the right shoulder, now resolved, and currently does not have an intrinsic medical condition of the right shoulder and arm;

(c) the Plaintiff is suffering from major depression and anxiety.

Question 2. Was the Plaintiff's employment with the Defendant in fact a significant contributing factor to any, and if so what, injury to the Plaintiff's:

(a) spine; and/or

(b) right shoulder/arm?

Answer: In the Panel's opinion:

(a) the Plaintiff's soft tissue injury of the neck, now resolved, was significantly contributed to by the Plaintiff's employment; however the Plaintiff's constitutional degenerative disease of the cervical spine was not significantly contributed to by the Plaintiff's employment.

(b) the Plaintiff's soft tissue injury of the right shoulder, now resolved, was significantly contributed to by the Plaintiff's employment; however the Plaintiff's no longer suffers from an intrinsic condition of the right shoulder/arm that was significantly contributed to by the Plaintiff's employment.

Question 3. Does any medical condition identified by the Panel in answer to:

(a) question 1(a) result from, or is it materially contributed to by, any and if so what injury identified by the Panel in answer to question 2(a)?

(b) question 1(b) result from, or is it materially contributed to by, any and if so what injury identified by the Panel in answer to question 2(b)?

(c) question 1(c) result from, or is it materially contributed to by, any and if so what injury identified by the Panel in answer to question 2(a) and/or (b)?

Answer: In the Panel's opinion,

(a) and (b) the Plaintiff's soft tissue injury to the neck and right shoulder are now resolved, and no longer are materially contributed to by the claimed conditions. In the Panel's opinion, the Plaintiff's constitutional degenerative disease of the cervical spine does not result from nor is it materially contributed to by the claimed condition(s).

(c) the Plaintiff's major depression with anxiety was and is materially contributed to by the claimed injuries to the neck and right shoulder/arm.

Question 4. Are any, and if so what, medical conditions identified by the Panel in answer to question 3(a), (b) and/or (c) "permanent" (meaning likely to persist for the foreseeable future)?

Answer: In the Panel's opinion the Plaintiff's major depression is likely to persist for the foreseeable future and so is permanent.

Question 5. Having regard to any medical condition identified by the Panel in answer to question 3(a) (and excluding any psychiatric/psychological consequences of that condition), does the Plaintiff have:

(a) a "current work capacity"; or

(b) "no current work capacity?

Answer: Not applicable.

Question 6. Having regard to any medical condition identified by the Panel in answer to question 3(b) (and excluding any psychiatric/psychological consequences of that condition), does the Plaintiff have:

(a) a "current work capacity"; or

(b) "no current work capacity?

Answer: Not applicable.

Question 7. Having regard to any medical condition identified by the Panel in answer to question 3(c) (and including any physical consequences of that condition), does the Plaintiff have:

(a) a "current work capacity"; or

(b) "no current work capacity?

Answer: The Panel is of the opinion that the Plaintiff has no current work capacity

Question 8. If, in answer to any of question 5, 6 and/or 7, the Panel is of the opinion that the Plaintiff has a "current work capacity", and answering separately in respect of each of question 5, 6, and 7:

(a) What would, or would not, constitute suitable employment, and for how many hours per week?

(b) Is this capacity for work permanent (meaning likely to persist for the foreseeable future)? If not, would the Plaintiff have the capacity to work a greater, and if so what, number of hours per week in the foreseeable future in any, and if so what, identified suitable employment?

Answer: Not applicable.

Question 9. If, in answer to any of question 5, 6 and/or 7, the Panel is of the opinion that the Plaintiff has "no current work capacity", and answering separately in respect of each of question 5, 6, and 7, is that incapacity permanent, (meaning likely to persist for the foreseeable future)?

Answer: The Panel is of the view that the Plaintiff's incapacity for work is permanent.

22 On 6 December 2023, the Panel also gave the Serious Injury Reasons for the Serious Injury Opinion.[24]

23 The Statutory Benefits Reasons are 22 pages long and divided into a number of sections. Under the heading 'Agreed Facts', the Panel sets out the agreed facts contained in the joint statement dated 7 March 2022 provided to the Panel.[25] Under the heading 'History as told to the Panel by the Plaintiff', the Panel records Ms Reimers' account of how her injury was suffered, the consequences of the injury, and the medical treatment she underwent.[26]

24 Under the heading 'Current symptoms', the Panel addresses the then current physical symptoms of Ms Reimers, including central neck pain and pain radiating down her right arm. It also addresses her ability to perform activities of daily living.[27]

25 Under the heading 'Current Treatment', the Panel lists Ms Reimers' then current medication and treatment. They note that Ms Reimers had ceased antidepressant medication, and had been seeing a community psychologist but stopped while attending a pain management course.[28]

26 Under the heading 'Past history', the Panel records Ms Reimers' history of physical injuries.[29] Under the heading 'Vocational history', the Panel records Ms Reimers' educational qualifications and employment history, and the changes to her employment following the injury.[30] Under the heading 'Avocational interests', the Panel notes Ms Reimers' hobbies.[31]

27 Under the heading 'Physical examination', the Panel records its observations of Ms Reimers' physical examination by the Panel members.[32] Under the heading 'Medical imaging viewed by the Medical Panel', the Panel lists the reports of medical imaging it viewed.[33]

28 Under the heading 'Physical diagnosis', the Panel outlines its conclusions of Ms Reimers' physical injuries. It states:

Neck

...

The Panel therefore concluded that the Plaintiff had suffered from a soft tissue muscle strain of the neck relevant to the workplace incident on 26 October 2018 and in the Panel's opinion any soft tissue muscle strain would be expected to resolve over 4-6 weeks and that her current symptoms are caused by constitutional degenerative change of the cervical spine.

The Panel therefore concluded the Plaintiff suffered from a soft tissue muscle strain of the neck which has resolved, and she currently suffers from constitutional degenerative change of the cervical spine which has been treated surgically with residual symptoms but no signs of radiculopathy.

Right shoulder

...

The Panel therefore concluded that the Plaintiff suffered from a soft tissue muscle strain around the scapula area of the right shoulder relevant to the workplace incident on 26 October 2018 and in the Panel's opinion any soft tissue muscle strain would be expected to have resolved over 4 to 6 weeks and her current symptoms in the right arm are related to her constitutional degenerative disease of the cervical spine.

The Panel therefore concluded there is no current medical condition of the right shoulder.[34]

29 Under the heading 'Psychiatric Assessment', the Panel notes Ms Reimers' family situation, her duties as a laboratory technician, the onset of the injury, and the subsequent treatment she underwent and the symptoms she experienced.[35]

30 Under the heading 'Psychological Symptoms', the Panel records Ms Reimers' psychological symptoms:

The Plaintiff said that despite the persisting pain and weakness she endeavoured to continue [to] work. She said she was committed to the notion that she could "fix this" and was active in seeking treatment and pursuing treatment. She said due to the context of persisting pain she became depressed, irritable, had reduced energy, motivation, and concentration, and felt like [a] burden on people. She said she saw a number of counsellors and was treated with an antidepressant by her local doctor.[36]

The Panel referred to various notes of the SIA Medical Centre, which show that between May 2020 and September 2021 Ms Reimers was experiencing psychological symptoms and receiving medication for those symptoms. The Panel also noted Ms Reimers had three sessions with a clinical psychologist from February 2020.[37]

31 Under the heading 'Current Psychological Symptoms', the Panel outlines Ms Reimers' then current psychological symptoms, including low mood, being irritable, difficulties with memory and concentration, rumination, suicidal thoughts, and feeling anxious with associated palpitations, nausea and shortness of breath.[38]

32 Under the heading 'Current Medications', the Panel lists Ms Reimers' then current medications. They also record Ms Reimers had previously been treated with antidepressant medication, and note Ms Reimers had no plans for future antidepressant medication or to engage in further psychiatric care.[39]

33 Under the heading 'Physical Symptoms', the Panel sets out Ms Reimers' physical symptoms, including pain in her right arm and neck.[40] Under the heading 'Daily Function', the Panel addresses Ms Reimers' ability to perform activities of daily living, her contact with family members and social relationships.[41] Under the heading 'Family History', the Panel notes that Ms Reimers did not describe any family history of psychological problems.[42] Under the heading 'Development', the Panel outlines Ms Reimers' family relationships, childhood, and educational and employment history.[43]

34 Under the heading 'Past Psychiatric History', the Panel notes:

The Plaintiff said that she had not had any substantial psychiatric or psychological problems in the past but had contact with counsellors at times of stress. She said one of these occurred at a time related to workplace difficulties around 2006 and another in relation to her work at the Swinburne Campus.[44]

35 Under the heading 'Drug and Alcohol History', the Panel notes Ms Reimers had no drug or alcohol history.[45] Under the heading 'Past Medical History', the Panel notes Ms Reimers had fibroids.[46]

36 Under the heading 'Mental Status Examination', the Panel sets out its observations of Ms Reimers' mental state examination by Panel members. It records, amongst other things, that Ms Reimers 'communicated a significant degree of depression', appeared 'psychologically overwhelmed', and the contents of her thoughts had 'marked depressive and pessimistic themes'.[47]

37 Under the heading 'Psychiatric Diagnoses', the Panel records its conclusion as to Ms Reimers' psychiatric condition, being 'major depression with anxiety.'[48]

38 Under the heading 'Significant Contribution', the Panel addresses whether Ms Reimers' employment significantly contributed to a physical injury sustained by Ms Reimers. The Panel concluded:

After considering the Plaintiff's history, the nature of the Plaintiff's work, the outcome after surgery, Dr Blooms' worksite assessment, [and] the available radiology and nerve conduction studies the Panel concluded that the Plaintiff's employment with the Defendant was a significant contributing factor to the soft tissue muscle strain of the neck and right shoulder, both resolved, and was not and is not in fact a significant contributing factor to the Plaintiff's condition of the spine, being constitutional degenerative disease of the cervical spine.[49]

39 Under the heading 'Material Contribution', the Panel addresses whether Ms Reimers' employment materially contributed to a psychological injury sustained by Ms Reimers. It is appropriate to set out this section in full:

The Panel considered that the Plaintiff history and that the Plaintiff had suffered from a soft tissue muscle strain of the neck and right shoulder area as a result of the workplace incident on 26 October 2018, however concluded that any soft tissue injury would have resolved over 4-6 weeks and her current symptoms are consistent with mildly symptomatic cervical degenerative changes without radiculopathy.

The Panel therefore concluded that the Plaintiff's physical medical conditions were materially contributed to by her medical conditions for a 6-week period following the injury on 26 October 2018, but the Plaintiff's current medical conditions of the neck and right shoulder do not result from, nor are they materially contributed to by the Plaintiff's claimed injuries. In the Panel's opinion, the Plaintiff's constitutional degenerative disease of the cervical spine does not result from, nor is it materially contributed to by the claimed condition(s).

In the Panel's opinion the Plaintiff's major depression with anxiety commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued despite the resolution of the soft tissue injury of the neck and right shoulder. The Panel noted that at the time of the injury the Plaintiff was enjoying her work and did not describe any psychological or psychiatric symptoms. In addition, the Panel found no evidence to suggest that the Plaintiff had any pre-existing history or other predisposing factors contributing to the development of a psychiatric disorder up until the time of her injury.

The Panel is cognisant of the threshold requirement for determining whether a condition remains materially contributed to [by] the initial injury suffered in the course of the Plaintiff's employment and the varying contributing factors that remain relative to the Plaintiff's current impairments due to her psychiatric condition. The Panel noted that the Plaintiff was functioning very highly prior to her physical soft tissue injury, with no significant past psychiatric history and no history of use of psychotropic medication. The Panel considered the history provided by the Plaintiff in conjunction with the material provided, and considered that there was evidence that, due to the extent of the pain the Plaintiff encountered as result of the claimed injury, her mental state began to deteriorate gradually from that point in time and she now requires use of two psychotropic medications and is quite unwell.

The Panel noted the inherent complexities of the Plaintiff's presentation, noting that she continues to suffer from chronic pain related to a physically constitutional condition presenting after an acute injury with secondary depression which now is predominant. Notwithstanding that the Plaintiff was able to work without difficulties and psychologically well before the injury, her current psychiatric presentation is largely in the absence of a continuing employment related soft tissue injury. The Panel therefore considered what is required for a condition to remain materially contributed, and considered that material is a question of degree. The Panel considered that a contribution which comes within the exception de minimus is not material and that any contribution which does not fall within that exception is therefore material.

Based upon the above considerations, the mechanism of the injury on 26 October 2018, requirement for medical attention, certification and treatment, persistence of symptoms since symptom onset and the Panel's findings on examination, the Panel considered that the Plaintiff's current psychiatric condition is consistent with major depression with anxiety which commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued to date largely unabated.

While the Panel considered that the Plaintiff's ongoing physical pain is due to symptomatic cervical degenerative changes without radiculopathy, and that this was also both a precipitating and perpetuating factor to the Plaintiff's current major depression with anxiety, the Panel nonetheless concluded that the Plaintiff's condition of the mind was and remains materially contributed to by the injuries to her neck and spine on or about from 26 October 2018 or throughout the course of her employment based on the considerations above.[50]

40 Under the heading 'Capacity for employment from 26 October 2018 to the date of the Panel's examination', the Panel addresses Ms Reimers' capacity for employment in the period from 26 October 2018 to the date of the Panel's examination of Ms Reimers. The Panel concluded that from a physical perspective, Ms Reimers did have a physical incapacity for pre-injury duties for 4-6 weeks following the injury. However, any ongoing incapacity for work after 8 December 2018 would not have been the result of the injury to her neck and right shoulder, but rather due to constitutional degenerative disease of the spine.[51] The Panel also concluded that from a physical perspective Ms Reimers does not have a present inability arising from the injury to return to her pre-injury employment.[52]

41 The Panel also assessed Ms Reimers' capacity for employment from a psychiatric perspective. It is appropriate to set out this section in full:

The Panel also assessed the Plaintiff's capacity for employment from 26 October 2018 to the date of the Panel's examination from a psychiatric perspective. The Panel noted the Plaintiff's description of increasing depressive symptoms in the context of her persistent pain including depressed mood, irritability, sleep disturbance, reduced energy, motivation, and concentration, and feeling like [a] burden on people. The Panel noted that the Plaintiff had been psychologically well prior to the injury. The Panel noted that the Plaintiff was keen to return to work, despite attempts to do so was unable to continue due to a combination of pain and increasing depressive symptoms. The Panel was not able to determine as to when the depressive symptoms alone reached a level of severity such that the Plaintiff was unable to work but noted that she was described as experiencing panic symptoms on return to work in May 2020 and likely had significant symptoms prior to this time.

The Panel also found that evidence from the history obtained from the Plaintiff, was consistent with that of treating practitioners, both suggesting that symptoms of major depression and anxiety have persisted without any substantial improvement at any time in the period from 26 October 2018, up until the date of the Medical Panel's examination.

The Panel therefore concludes that from a psychiatric perspective alone, in the period from 26 October 2018 up to and as at the date of the Panel's examination, the Plaintiff had no capacity for pre-injury employment.[53]

42 Under the heading 'Current Work Capacity', the Panel records its opinion that Ms Reimers has no current work capacity due to her ongoing major depression with anxiety.[54] Under the heading 'Other Medical Opinions', the Panel outlines the medical reports it took into account when forming its opinions.[55]

43 The Serious Injury Reasons largely replicate the Statutory Benefits Reasons. The only relevant difference is the section of the Serious Injury Reasons addressing Ms Reimers' work capacity.

44 Under the heading 'Current Work Capacity - Physical Condition(s)', the Panel addresses Ms Reimers' capacity for employment from a physical perspective. The Panel concluded that Ms Reimers did have a physical incapacity for pre-injury duties for 4-6 weeks following the injury, but from a physical perspective alone, she does not have a present inability arising from the injury to return to pre-injury employment.[56]

45 Under the heading 'Current Work Capacity - Psychiatric Condition', the Panel addresses Ms Reimers' capacity for employment from a psychiatric perspective. It is appropriate to set out this section in full:

The Panel also assessed the Plaintiff's capacity for employment from a psychiatric perspective alone.

The Panel noted the Plaintiff's description of increasing depressive symptoms in the context of her persistent pain including depressed mood, irritability, sleep disturbance, reduced energy, motivation, and concentration, and feeling like [a] burden on people. The Panel noted that the Plaintiff had been psychologically well prior to the injury. The Panel noted that the Plaintiff was keen to return to work, despite attempts to do so was unable to continue due to a combination of pain and increasing depressive symptoms. The Panel was not able to determine as to when the depressive symptoms alone reached a level of severity such that the Plaintiff was unable to work but noted that she was described as experiencing panic symptoms on return to work in May 2020 and likely had significant symptoms prior to this time.

The Panel also found that evidence from the history obtained from the Plaintiff, was consistent with that of treating practitioners, both suggesting that symptoms of major depression and anxiety have persisted without any substantial improvement at any time in the period from 26 October 2018, up until the date of the Medical Panel's examination.

The Panel therefore concludes that from a psychiatric perspective alone the Plaintiff has no capacity for pre-injury employment.

The Panel considered all aspects of the definition of 'current work capacity', 'no current work capacity' and 'suitable employment' contained in the Legislation, including:

• the Plaintiff's current age of 62 years (which the Panel considers would not significantly limit her employment options).

• her absence from the workforce for nearly six years.

• the Plaintiff's education and subsequent qualifications related to teaching (which the Panel considers would offer a range of transferable skills related to non-sedentary type employment roles);

• the Plaintiff's work experience (which the Panel considers would offer potential employment options in teaching roles).

• her residence in Croydon (which the Panel considers would not limit local employment opportunities).

• the reports of doctors who have treated or examined the Plaintiff (see below);

• the absence of a return to work plan; and

• the nature and extent of the Plaintiff's major depression which significantly limits her ability to undertake any work in a consistent and reliable manner.

In forming the view as to whether the Plaintiff had a current work capacity, the Panel noted the Plaintiff's current description of low mood, guilt, sleep disturbance and symptoms of panic. The Panel considered the factors outlined above in conjunction with the suitable employment options as identified in the vocational assessment and the functional demands of the roles identified. The Panel considered that her psychiatric symptoms are currently of such a grade that she would not be able to work in any capacity for which she has skill, training or experience or capacity on the open and competitive labour market and therefore at the present time there is no work for which the Plaintiff is currently suited in which she could perform on a reliable and consistent basis as a settled or established member of the wage-earning workforce, due to her ongoing major depression.

The Panel therefore considers that the Plaintiff has no capacity to return to her pre-injury duties as a laboratory technician or any other suitable employment taking into account the Plaintiff's psychiatric condition alone. The Plaintiff therefore has no current work capacity.

The Panel considers that whilst it is possible that at some future timepoint the Plaintiff's condition may potentially improve, significant and consistent improvement has yet to occur despite treatment of depression and the passage of time. The Panel therefore is not certain as to when or if any such improvement may occur in the foreseeable future given the nature and duration of her symptoms despite comprehensive treatment to date. The Panel therefore considers that the Plaintiff's incapacity for pre-injury employment and suitable employment is permanent.[57]

46 Pursuant to s 5 of the Act, the Act applies to the entitlement of a worker to compensation under the Act in respect of an injury to the worker arising out of, or in the course of, or due to the nature of, employment on or after 1 July 2014.[58]

47 Under the Act, 'current work capacity' and 'no current work capacity' are defined to mean:

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.[59]

48 In Richter v Driscoll,[60] the Court of Appeal observed that 'whether a worker has "no current work capacity" requires consideration of the worker's ability to work in employment having regard to the entirety of the worker's personal circumstances - these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.'[61]

injury means any physical or mental injury and, without limiting the generality of that definition, includes -

(a) industrial deafness; and

(b) a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); and

(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.[62]

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to the following -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii) the nature of the worker's pre-injury employment;

(iii) the worker's age, education, skills and work experience;

(iv) the worker's place of residence;

(v) any plan or document prepared as part of the return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b) regardless of whether -

(i) the work or the employment is available; or

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

and, for the purposes of Part 4, includes -

(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.[63]

51 In Grujovska v Dr Caroline Brand & Ors[64] the Court of Appeal set out the following legal principles in respect of the requisite standard of reasons of a medical panel:

As has been said before, a medical panel is an administrative tribunal whose members are not lawyers: it is an expert tribunal, and not a judicial body. Its reasons are entitled to a beneficial construction, in the sense that they should not be scrutinised over-zealously by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

In Wingfoot Australia Partners Pty Ltd v Kocak, the High Court held that, consistently with the nature of its function, a medical panel must explain the path of reasoning by which it has arrived at its opinion. The reasons must enable a court to assess whether the panel's opinion involved an error of law. A panel is not required to give reasons of the kind which would be required by a tribunal carrying out an adjudicative function. In Dundar v Bas, this Court summarised the relevant principles governing the assessment of the adequacy of a medical panel's reasons as follows:

First, the standard is that required by Wingfoot. A statement of reasons must be sufficient to explain the Panel's path of reasoning, and to enable a court to see whether the Panel's opinion involved any error of law.

Second, the standard of reasons required of a medical panel is not to be equated with the standard of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in a court.

Third, as a corollary - a Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

Fourth, the function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise.

Fifth, a panel's reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review. ...[65]

52 In Gruma Oceania Pty v Bakar[66] the Court of Appeal stated:

As a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a 'beneficial construction' in the sense that they should 'not ... be scrutinised ... over-zealous[ly] ... by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.' In Gamble v Emerald Hill Electrical Pty Ltd, this Court reaffirmed the following principles that apply to judicial review of a medical panel's reasons:

The court on judicial review should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker, and should not construe the reasons for decision 'minutely and finely with an eye keenly attuned to the perception of error'.

...

[A] court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel's reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.

In considering whether a medical panel's reasons are inadequate, it is important to distinguish between the panel's opinion and the reasons for the opinion. The opinion comprises the panel's answers to the medical questions referred to it. The panel's findings and the other matters set out in the panel's reasons constitute its reasons for the answers to the medical questions. Compliance with s 68(2) of the Act depends on the adequacy of the panel's reasoning for arriving at the answers to the medical questions.[67]

53 The plaintiffs advance six contentions in support of their submission that the Statutory Benefits Opinion and the Serious Injury Opinion should be quashed on the ground of the inadequacy of the Statutory Benefits Reasons and the Serious Injury Reasons:

1. The Plaintiffs submit that the Panel has failed to give an adequate statement of reasons sufficient to comply with section 313(2) of the WIRCA:

70.1 in respect of whether it has found the presence of major depression and anxiety in the initial period of 4-6 weeks subsequent to 26 October 2018 and, if not, when this psychiatric condition, as diagnosed by it, arose (ie. when it met all of the required diagnostic criteria);

70.2 in respect of how it has determined that the symptoms of major depression and anxiety found by it had commenced from 26 October 2018 onwards, in circumstances when 'a precipitating factor' of this psychiatric condition (the ongoing physical pain due to symptomatic cervical degenerative changes), as found by it, was not itself present on 26 October 2018 and in the subsequent period of 4-6 weeks;

70.3 in respect of how it has determined that from a psychiatric perspective alone the worker had no capacity for pre-injury employment in the period from 26 October 2018 to the date of the Panel's examination of her (in October 2023), in circumstances where it was unable to determine as to when the symptoms of major depression and anxiety (the only compensable psychiatric condition found by the Panel) alone reached 'a level of severity such that the Plaintiff was unable to work';

70.4 the Panel has failed to identify which aspects of the worker's history/ies given to it during her examination (and as recorded in the medical material provided to the Panel) supported the presence of symptoms of major depression and anxiety from 26 October 2018 onwards (as found by the Panel), and moreover, it has failed to identify any aspects of the worker's history/ies given by her to the treating practitioners which supported the presence of these symptoms in the same period;

70.5 in respect of how it has found the worker's 'current' psychiatric presentation to be 'largely in the absence of a continuing employment related soft tissue injury', having already found that there was no such persistence after the initial period of 4-6 weeks post 26 October 2018;

70.6 the Panel has failed to explain the persistence of which symptoms since the symptom onset it has taken into account when determining the question of 'material contribution' and finding that the worker's 'current psychiatric condition is consistent with major depression with anxiety which commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued to date largely unabated'.[68]

54 The plaintiffs' contentions do not link the alleged inadequacy of the Panel's Reasons with the six opinions which comprise the Statutory Benefits Opinion and the nine opinions which comprise the Serious Injury Opinion. Although the Statutory Benefits Reasons and the Serious Injury Reasons are largely identical, the Reasons respond to different questions in the referrals made by Judge Purcell on 6 July 2023. Consequently, when addressing the adequacy of the Statutory Benefits Reasons and the Serious Injury Reasons it is necessary to consider any alleged inadequacy by reference to the questions and answers in the Statutory Benefits Opinion and the Serious Injury Opinion.

55 Four of the contentions which challenge the adequacy of the Panel's Reasons concern whether Ms Reimers was incapacitated for work from 26 October 2018 due to major depression with anxiety. The questions which the Panel was required to address for the Statutory Benefits Opinion required it to address the question of whether Ms Reimers was incapacitated for any, and if so what, period from 26 October 2018, due to a medical condition of the mind. On the other hand, the questions which the Panel was required to address for the Serious Injury Opinion did not require the Panel to address this question. Rather, insofar as the questions underpinning the Serious Injury Opinion were concerned with Ms Reimers' medical condition of the mind, the questions were directed to establishing whether that condition was materially contributed to by an injury which occurred in the course of her employment.

56 In the Statutory Benefits Opinion the Panel concluded:

(i) on 26 October 2018, Ms Reimers suffered a soft tissue muscle strain of her right neck and shoulder ('soft tissue injury'), significantly contributed to by her employment, which resolved within four to six weeks ('Finding 1');

(ii) Ms Reimers is currently suffering from a constitutionally degenerative disease of the cervical spine, not significantly contributed to by her employment ('Finding 2');

(iii) Ms Reimers is suffering from major depression with anxiety, which was materially contributed to by the soft tissue muscle strain of her right neck and shoulder ('Finding 3');

(iv) from 26 October 2018 to the date of the Panel's examination of Ms Reimers, she:

(a) did not have a current work capacity; and

(b) had no current work capacity ('Finding 4'); and

(v) from 26 October 2018 to the date of the Panel's examination of Ms Reimers, her incapacity for work was likely to continue indefinitely ('Finding 5').

57 Finding 3 overlaps with findings made by the Panel in the 'Material Contribution' section of the Serious Injury Reasons. I will address the adequacy of the Panel's reasons in respect of Finding 3 in the context of the adequacy of the Serious Injury Reasons.

58 Findings 4 and 5 require consideration of whether the Panel's reasons provide a path of reasoning to sustain a finding that Ms Reimers had no current work capacity from 26 October 2018 by reason of major depression with anxiety.

59 Ms Reimers sustained the soft tissue injury on Friday 26 October 2018. On Monday 29 October 2018, Ms Reimers consulted a general practitioner.[69] Upon the advice of her doctor, Ms Reimers took two days of sick leave.[70] From 31 October 2018, Ms Reimers returned to work on reduced hours of four hours per day performing modified duties.[71] Ms Reimers continued to work as a laboratory technician but did not clean animal cages.[72] Ms Reimers continued to work with modified hours and duties until February 2020, at which time she commenced work as a teacher's assistant, working five hours per day.[73]

60 Ms Reimers' work history is objective evidence that she was partially incapacitated during the period 26 October 2018 to 8 December 2018 as a consequence of the soft tissue injury. If Ms Reimers was totally incapacitated from 26 October 2018 to 8 December 2018, this could only have been a consequence of Ms Reimers having major depression with anxiety during this period. However, in the Statutory Benefits Reasons the Panel stated:

The Panel considered the history provided by the Plaintiff in conjunction with the material provided, and considered that there was evidence that, due to the extent of the pain the Plaintiff encountered as a result of the claimed injury, her mental state began to deteriorate gradually from that point in time and she now requires use of two psychotropic medications and is quite unwell.[74]

The Panel was not able to determine as to when the depressive symptoms alone reached a level of severity such that the Plaintiff was unable to work but noted that she was described as experiencing panic symptoms on return to work in May 2020 and likely had significant symptoms prior to this time.[75]

62 The Panel found that Ms Reimers' mental state gradually deteriorated due to the pain she experienced as a result of the soft tissue injury. This finding is inconsistent with Finding 4; i.e. that Ms Reimers had no current work capacity from 26 October 2018. The Panel's reasons may support a finding that Ms Reimers had no current work capacity due to major depression with anxiety from at least May 2020. However, even adopting a beneficial reading of the Reasons, they do not support the opinion recorded in answer to Questions 4 and 6 of the Statutory Benefits Opinion that Ms Reimers was totally incapacitated during the period from 26 October 2018 by reason of major depression with anxiety.

63 The Statutory Benefits Reasons do not provide a path of reasoning in respect of Findings 4 and 5. These findings were in response to Questions 4 and 6 of the Statutory Benefits Referral. The answers to Questions 4 and 6 of the Statutory Benefits Opinion will be quashed.

64 Question 5 of the Statutory Benefits Referral is as follows:

In respect of any period of incapacity identified in answer to Question 4, did/does that incapacity result from, or was/is it materially contributed to by, any and if so which injury identified by the Panel in answer to Questions 2(a) and/or (b)?

65 The Panel answered Question 5: 'Not Applicable'. This answer should also be quashed. The Panel may provide a different answer to Question 4, which in turn may require a different answer to Question 5.

66 Findings 1 to 3 of the Statutory Benefits Opinion were also made by the Panel in the Serious Injury Opinion. In addition, in the Serious Injury Opinion the Panel made the following findings:

(A) Ms Reimers' major depression with anxiety is permanent;

(B) having regard to Ms Reimers' major depression with anxiety, she had no current work capacity; and

67 A significant difference between the Statutory Benefits Opinion and the Serious Injury Opinion is that the Panel's answers to the questions in the Serious Injury Referral did not require the Panel to address the issue of whether Ms Reimers was incapacitated by reason of major depression with anxiety during the period commencing 26 October 2018. Consequently, any inadequacy in the Serious Injury Reasons in relation to this issue does not, of itself, mandate quashing the Serious Injury Opinion.

68 The Serious Injury Reasons provide a clear path of reasoning to support the Panel's opinion that Ms Reimers' major depression with anxiety was materially contributed to by the soft tissue injury which, in turn, was significantly contributed to by her employment.

69 In the Serious Injury Reasons, the Panel found that due to the extent of pain Ms Reimers experienced as a result of the soft tissue injury, her mental state began to gradually deteriorate from 'that point in time' and she now requires the use of two psychotropic medications and is quite unwell.[76] The 'point in time' is 26 October 2018 when Ms Reimers sustained the soft tissue injury. The Panel made an express finding linking Ms Reimers' current major depression with anxiety with her workplace injury:

[T]he plaintiff's current psychiatric condition is consistent with major depression and anxiety which commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued to date largely unabated.[77]

70 The plaintiffs contend that the Panel's reasons in respect of whether the soft tissue injury materially contributed to Ms Reimers' major depression with anxiety are inadequate because the Panel 'failed to explain the persistence of which symptoms since the symptom onset it has taken into account'.[78] In order for the Panel's reasons to disclose a path of reasoning in respect of its finding that Ms Reimers' soft tissue injury materially contributed to her current psychiatric condition, it was not necessary for the Panel to identify specific symptoms which persisted after 26 October 2018. The Panel could have done so. However, any failure to do so does not translate into a finding that its reasons are inadequate. The Panel's finding that there was a gradual deterioration of Ms Reimers' mental state as a result of the soft tissue injury is a sufficient basis for the Panel's finding that the soft tissue injury materially contributed to her current major depression with anxiety.

71 Further, and in any event, when the Panel's reasons are read as a whole, the Panel did identify psychological symptoms which have persisted since Ms Reimers initially experienced pain due to the soft tissue injury. Under the heading 'Psychiatric Assessment' the Panel stated:

The plaintiff said that on the day of the injury she was cleaning the mice enclosure when she suddenly felt a pain in her right shoulder and neck. She said she saw a general practitioner and had two days off work.

The plaintiff said that she had ongoing pain in her neck and shoulder and had right arm weakness. She said it became clear she had a serious injury.[79]

72 Under the heading 'Psychological Symptoms' the Panel stated:

She said due to the context of persisting pain she became depressed, irritable, had reduced energy, motivation and concentration and felt like [a] burden on people.[80]

73 Under the heading 'Current Psychological Symptoms' the Panel stated:

The Plaintiff said she was depressed, scoring her mood 3 out of 10 (where 0 is worse possible and 10 is normal mood). She said she was irritable, being very short and rude with people, which was different from her previous manner. She described herself as 'like having a personality change'. She said she enjoyed less in life, saying 'nothing is free and easy'. She said that her mood was worse in the morning, but she finds it difficult throughout the day. She described her energy and motivation as low and her concentration as reduced, finding reading and following conversations difficult. The plaintiff said that she found an Auslan course difficult to continue due to the challenges with concentration and memory. She said that her memory was 'broken'.

The plaintiff was asked about guilty feelings. She said she felt like a constant burden, not being able to help other people out and not being able to be there for others as she had been before. When asked about the future she said she had put her hopes in learning Auslan and finding a new role but had been disappointed when she had not been able to continue this. She said she constantly ruminates about what she can do to make things better and how she can get out of her current predicament. When asked about suicidal ideas she said she has had thoughts of lying on rail tracks and driving into a tree in the past but did not have any current intent or plans.

The plaintiff said she takes one hour to get to sleep with the aid of diazepam, quetiapine and cannabis oil. She said that if she takes quetiapine, she can stay asleep, she can stay asleep but otherwise will wake during the night and may take 12.5 to 25mg of quetiapine to return to sleep. She said she wakes up at 8 a.m. She said she feels anxious when she wakes. She said that she has periods of increasing anxiety consistent with panic with associated symptoms of palpitations, nausea, shortness of breath a number of times a week. She said when these episodes occur she practices her psychological strategies such as box breathing. The plaintiff did not describe any post-traumatic symptoms.[81]

74 The Panel identified the following pain-related psychological symptoms which have persisted during the period subsequent to 26 October 2018: depressed mood, irritability, sleep disturbance, reduced energy, poor motivation and concentration and feeling like a burden on other people. Further, the Panel made specific reference to Ms Reimers having current psychological symptoms of 'increasing anxiety consistent with panic'.[82] The Panel referred to Ms Reimers describing panic symptoms on her return to work in May 2020.[83] The Panel considered that evidence from the history obtained from Ms Reimers was consistent with the reports of treating practitioners. The reports include a history taken by Dr Anthony Sheehan on 28 January 2020. He recorded that Ms Reimers said she experienced panic attacks in the initial period following her workplace injury.[84] Dr Sheehan's report of 28 January 2020 is included in the documents listed in 'Enclosure A' of the Serious Injury Reasons as one of the documents which the Panel had regard to in forming its opinion.

75 The plaintiffs contend that the Panel failed to provide adequate reasons '[i]n respect of how it has found the worker's "current" psychiatric presentation to be "largely in the absence of a continuing employment related soft tissue injury", having already found that there was no such persistence after the initial period of 4-6 weeks post 26 October 2018.'[85] The plaintiffs' contention appears to be that the Panel's finding that the soft tissue injury had resolved within four to six weeks precludes a finding that Ms Reimers had a work-related psychiatric condition. This contention must be rejected. The Panel's reasons disclose the basis for its conclusion that, notwithstanding the resolution of Ms Reimers' work-related soft tissue injury, her ongoing psychiatric condition was materially contributed to by the soft tissue injury.

76 I accept the plaintiffs' submission that, based on the Panel's findings, Ms Reimers' psychiatric condition was 'entirely' (rather than 'largely') in the absence of any persisting work-related physical injury. The Court on judicial review should not be concerned with looseness of language and should not construe reasons 'with an eye keenly attuned to the perception of error'.[86] The Panel's use of the word 'largely' does not undermine the basis upon which it concluded that Ms Reimers' ongoing psychiatric condition was materially contributed to by the soft tissue injury.

77 The plaintiffs have failed to establish that the Serious Injury Opinion, or any part thereof, should be quashed by reason of the inadequacy of the Serious Injury Reasons. The plaintiffs have established that the answers to Questions 4, 5 and 6 of the Statutory Benefits Opinion should be quashed by reason of the inadequacy of the Statutory Benefits Reasons. No error has been established in respect of the Panel's answers to Questions 1, 2 and 3 of the Statutory Benefits Opinion. The Panel's answers to Questions 4, 5 and 6 of the Statutory Benefits Opinion will be quashed. It is neither necessary nor appropriate that the Statutory Benefits Opinion in its entirety should be quashed.[87]

Did the Panel deny the plaintiffs procedural fairness?

78 Ground 1(b) of the plaintiffs' grounds of review contends that in reaching conclusions as to the onset of major depression with anxiety as a result of Ms Reimers' initial soft tissue injury of the neck and right shoulder, which resolved within 4 to 6 weeks, the Panel failed to accord the plaintiffs' procedural fairness. The particulars in support of ground 1(b) are as follows:

Further and/or alternatively, there was nothing in the material before the Medical Panel which was suggestive or indicative of the worker suffering from symptoms of major depression and anxiety within 4-6 (weeks) of her initial soft tissue injuries, and the plaintiff could not reasonably have anticipated that the Medical Panel would have made such a finding.

79 The plaintiffs submit that on the basis of the material available they could not have reasonably anticipated the Panel would find as it did.[88] They say that the Panel's findings came 'out of the blue' and that the Panel should have notified them so that they could be heard and make submissions on the issue.[89]

80 In Wingfoot Australia Pty Ltd v Kocak,[90] the High Court addressed the nature and scope of a medical panel's functions:

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[91]

81 In APS Group (Industrial) Pty Ltd v Carroll[92] Riordon J stated:

It is well established that a panel is required to observe principles of procedural fairness in forming its opinion, including allowing each party a reasonable opportunity to address critical facts and medical questions that may form the basis of its opinion.

Because the issues before the Panel are not confined by pleadings, the question to be determined is whether a finding of the Panel, whether of fact or medical opinion, is outside the ambit of the issues, in respect of which the parties have had a fair opportunity to address the Panel. This will be a matter of 'fact and degree'. But it has been held that a finding will be outside such ambit in the following circumstances:

(a) It is 'out of the blue'.

(b) It is unexpected, 'could not have been reasonably anticipated, or would not obviously be open on the known material'.

(c) It was reasonably perceived as not being 'in the ring'.[93]

82 In Wagstaff Cranbourne Pty Ltd v Hashimi ('Wagstaff')[94] the Court of Appeal addressed the principles of procedural fairness in the context of medical panels:

As stated by the High Court in Wingfoot in the passage set out at [38] above, a medical panel must observe procedural fairness. Relevantly, the principles of procedural fairness require a medical panel to afford a party a reasonable opportunity to be heard on issues that the medical panel proposes to take into account as a reason for reaching an opinion that is adverse to the party.

A medical panel does not afford a party a reasonable opportunity to be heard where it reaches an adverse opinion on a matter which the party did not address because it could not reasonably have been anticipated that the medical panel might reach that opinion. For the purposes of the present proceeding, it is not necessary for us to canvas all the circumstances in which it may be found that an opinion of a medical panel could not reasonably have been anticipated. It suffices to say that, depending on the facts, those circumstances may include a situation where, without prior notice, a medical panel treats as determinative fact or evidence that is known to be before the medical panel but upon which the parties placed no reliance.

The principles of procedural fairness are directed at the fairness of a decision-maker's procedures in reaching a decision rather than at the merits of the decision. Ordinarily, the Court will make an order setting aside a decision reached in breach of the requirements of procedural fairness and remit the matter for rehearing, irrespective of whether it was the correct decision. However, such an order will not be made if it would be futile, such as where the same decision would have been made even if there had been compliance with the requirements of procedural fairness. For example, if the issue that a party was not given an opportunity to address was not material to the decision, it would be futile to set aside the decision in order to give the party an opportunity to address that issue.[95]

83 In Wagstaff, the Court of Appeal also addressed what a medical panel should have reference to in reaching its own decision:

The questions that were referred to the Panel required it to decide the nature of any injury suffered by Mr Hashimi and whether the requisite causal relationship existed between the injury and his employment with Wagstaff. The Panel was required to reach its own decision on these issues and was not bound by the opinions in the medical reports that were provided to it. However, the Panel was not free of all constraints in performing its task. Rather, it had to perform its task in accordance with the provisions of the WIRC Act and applicable legal principles. In particular, the Panel had to take into account the material provided to it, including the parties' pleadings, submissions and medical reports.[96]

84 During the hearing on 10 April 2025, counsel for the plaintiffs conceded that the issue of whether Ms Reimers had suffered a psychological injury as a consequence of the soft tissue injury, and was incapacitated by the injury in the period from 26 October 2018, was 'in the ring'.[97] Notwithstanding this concession, counsel submitted that the Panel's diagnosis of major depression with anxiety commencing from 26 October 2018 and persisting thereafter was 'out of the blue' and one which could not reasonably have been anticipated.[98]

85 Counsel's concession that the issue of whether Ms Reimers suffered a psychological injury as a consequence of the soft tissue injury and was incapacitated by such injury in the period from 26 October 2018 was 'in the ring' was appropriately made. First, Question 1 of both the Statutory Benefits Referral and the Serious Injury Referral required the Panel to address the question: what is the nature of any medical condition of the plaintiff's mind? Question 3(c) of the Statutory Benefits Referral required the Panel to address the question of whether in any, and if so what, period from 26 October 2018 up to the date of the Panel's examination of Ms Reimers, did any medical condition of the mind result from, or was it materially contributed to by, the soft tissue injury to Ms Reimers' right shoulder/arm.

86 Second, on 22 March 2021 Ms Reimers filed an amended statement of claim in the Statutory Benefits Proceeding in the Magistrates' Court which expressly pleaded a claim for compensation for psychiatric injury which occurred in October 2018:

The Plaintiff's employment caused injuries within the meaning of the Act, and/or significantly contributed to the recurrence, aggravation, acceleration, exacerbation, and/or deterioration of pre-existing injuries ("the injuries"). In particular, the Plaintiff suffered an injury throughout the course of her employment and in or about October 2018 as a result of repetitive movement required to clean large fish, turtle and mice tanks and enclosures in awkward positions.

PARTICULARS OF INJURY

• Injury to the neck;
• Injury to the right shoulder and arm; and
• Secondary psychological/psychiatric injury.[99]

87 Further, a draft statement of claim dated 12 October 2021 prepared for the Serious Injury Application pleaded:

1. Throughout the course of her employment from about February 2015 to October 2018, the plaintiff was required to clean animal enclosures. This required moving and lifting of those enclosures and the water and sand that went inside them, and adopting awkward, flexed and forceful postures with her neck and right arm to clean and scrub the animal tanks in particular on or about 26 October 2018 (Work Process).

...

1. By reason of the Work Process, the plaintiff suffered injury.

PARTICULARS OF INJURY

1. injury to the spine including neck and radiating right arm symptoms;
2. injury to the right shoulder;
3. psychological injury (together the Injuries).[100]

88 Third, the written submissions filed by the parties with the Panel prior to it convening addressed Ms Reimers' psychiatric condition. In Ms Reimers' submissions dated 5 July 2023, she submitted:

1. If the Panel accepts that Mrs Reimers has a work-related injury, then she will be entitled to weekly payments:

(a) For the first 130 weeks (from 26 October 2018 to 23 April 2021) - if she is unable to do her usual duties, which included cleaning animal tanks;

(b) From 24 April 2021 onwards, if she has no capacity for work and that is indefinite.

1. The plaintiff respectfully asks the Panel to consider her consequential psychological injury. The Panel will note that Mrs Reimers is very anxious when speaking about her injury noting the history of the rejected claim and the experience of having to pay for significant treatment herself.
2. The plaintiff respectfully submits that: a. she has no capacity for her pre-injury duties; and b. she has no capacity for work based on her physical and psychological injuries. She is supported in this by the opinion of her GP (29 November 2021). Further and/or in the alternative, the plaintiff submits her capacity is so little that realistically she has no capacity for work. She relies on the following facts and medical opinion:

(a) She to try [sic] and work on reduced hours and modified duties for three years as outlined in her affidavit, eventually reducing her hours to 4 hours x 3 nonconsecutive days. She ceased as she was unable to cope. She was taking Lyrica and Panadeine Forte regularly. Her own lived experience is that she was unable to work. Unlike others, she has not ceased work immediately and has given a return-to-work program a good go.

(b) She takes medication which makes her feel drowsy and would make it difficult to work.

(c) She deposes (paragraph 55, affidavit) to difficulties driving. This limits on [sic] her ability to get to work. She explains that she does not take Lyrica when driving. Not taking medication would impact on her ability to work. d. She has sleep difficulties which would impact on her ability to work (paragraph 56, affidavit).

(d) Her treating GP opines "I am more concerned about the affect the injury has had on Tanya's mental health. Tanya is experiencing mood swings with severe insomnia" (29 November 2021).

(e) "Since her surgery Tanya has no capacity for work" (29 November 2021, treating GP)

(f) "As of my last review of Mrs Reimers I did not think she had a fitness for pre-injury employment and that she may only have a fitness for sedentary or alternative duties. I believe her incapacity for return to work has been contributed to by her manual duties in her normal employment" (Mr David de la Harpe, orthopaedic surgeon, 20 November 2020)

(g) "I believe that Tanya's incapacity to work is materially contributed to by her work ..." (Mr Yi Yang, orthopaedic surgeon, 4 December 2020)

(h) "At last review, it was unlikely Tanya had a fitness for pre-injury employment due to severe symptoms ... I would consider that her incapacity for work results from what is materially contributed very likely as a result of the employment that was previously mentioned" (Mr Vellore neurosurgeon 30 December 2020).[101]

89 In the plaintiffs' submissions dated 7 March 2022, the plaintiffs submitted:

Whilst the Plaintiff [Ms Reimers] claims a psychological injury as part of her proceeding, she has not provided any expert psychological/psychiatric opinion to support this aspect of her claim. True it is that Dr Sagi in his most recent report makes reference to psychological matters as does Associate Professor Yang in his most recent report. However, none of these doctors make reference to the Plaintiff's pre-existing psychological state.

The Medical Panel will note that the Plaintiff has suffered from anxiety related problems from time to time for many years. See for instance the entry of the 18th November 2010 in the general practitioner's records. Indeed there is an entry of the 4th August 2006 when the Plaintiff first started attending this practice to the Plaintiff having psychological issues and attending a psychologist at Box Hill.

The Medical Panel will further note that K10 of the 5th October 2013. The medical notes include a report from a psychologist Ms Milne dated 27th September 2016. Dr Sheehan assessed the Plaintiff and provided a report on the 28th January 2020. At page 2 he noted that the Plaintiff was having no psychological treatment. At page 6 he expressed the view that the Plaintiff had no psychiatric injury/condition and at page 8 he expressed the view that the Plaintiff had no psychiatric incapacity.[102]

90 In subsequent submissions dated 11 April 2023, the plaintiffs submitted:

Whilst the Plaintiff [Ms Reimers] claims a psychological injury as part of her proceeding, she has not provided any expert psychological/psychiatric opinion to support this aspect of her claim. True it is that Dr Sagi makes reference to psychological matters in his most recent report as does Associate Professor Yang in his most recent report. However, none of these doctors make reference to the Plaintiff's pre-existing psychological state.

The Medical Panel will note that the Plaintiff has suffered from anxiety related problems from time to time for many years. See for instance the entry of the 18th November 2010 in the general practitioner's records. Indeed, there is an entry of the 4th August 2006 when the Plaintiff first started attending the practice, to the Plaintiff having psychological issues and attending a Box Hill psychologist.

The Medical Panel will note a K10 of the 5th October 2013. The medical notes include a report from a psychologist, Ms Milne, dated 27th September 2016. Dr Sheehan assessed the Plaintiff and provided a report on the 28th of January 2020. Under the heading Past History in Dr Sheehan's report of the 28th of January 2020 the Plaintiff told him that there had only been one event in 2011 when she possibly contacted an EAP counsellor once by phone and otherwise there were no further relevant psychological episodes. The Plaintiff confirmed this history in Dr Sheehan's subsequent report of the 1st July 2022 at page 2. In the Defendant's submission, the history the Plaintiff gave Dr Sheehan is flawed. It is clear from the paragraph numbered 6 at page 10 of Dr Sheehan's report that he relied on this history.

Paragraph 3 of the last report from Dr Sheehan notes that in 2022 the Plaintiff was still having little psychological treatment. She had attended a psychologist on a couple of occasions and had briefly trialled antidepressants.

The Plaintiff further told Dr Sheehan that she was learning German at page 4. She confirms this when giving her history to CoWork.

In the Defendant's submissions Dr Sheehan's findings on capacity and the Plaintiff's psychological condition is flawed because of the incorrect history the Plaintiff gave to him. Accordingly, the Defendant asks the Medical Panel psychiatric advisors to arrive at their own independent conclusions in light of the subsequent submissions that form part of this referral.[103]

91 The plaintiffs' written submissions to the Panel referred to reports of Dr Anthony Sheehan dated 28 January 2020 and 1 July 2022. The report of 28 January 2020 includes the following:

Ms Reimers said that she did experience panic attacks in the initial period following her injury with an urge to 'run away' and felt that the room was 'closing in on me'.[104]

92 Dr Sheehan's report of 1 July 2022 includes the following:

2. Provide your diagnosis and prognosis for improvement or deterioration and whether you believe the Plaintiff's alleged psychological condition (if any) has stabilised.

Ms Reimers has developed a moderately severe chronic adjustment disorder with depressed and anxious mood using DSM-V criteria provided below.

DSM-5 Diagnostic Criteria - Adjustment Disorders

The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).

These symptoms or behaviours are clinically significant as evidenced by either of the following:

Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.

Significant impairment in social, occupational, or other important areas of functioning.

The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.

The symptoms do not represent normal bereavement.

Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.

The prognosis for Ms Reimers's psychiatric condition is directly related to the prognosis of her chronic pain condition. If there is improvement in pain symptoms and improved function, there will likely be some improvement in her psychological symptoms.

Ms Reimers's psychological condition appears to have stabilised although as stated above, I believe that she would benefit from referral to a consultant psychiatrist and the establishment of an effective psychiatric treatment plan including further trials of antidepressant medication and focussed psychological therapy (CBT), best instituted as part of a multidisciplinary pain management program.

3. Please provide your opinion whether the Plaintiff suffered psychological injury as alleged.

Ms Reimers has suffered a psychological injury as alleged. Her condition has deteriorated since my initial assessment in conjunction with lack of improvement following her cervical surgery.

4. Provide your opinion on whether the Plaintiff suffered and still suffers a psychological incapacity for work which results from or was materially contributed to by the mental injury.

Ms Reimers continues to suffer a psychological incapacity for work which results from, was and is contributed to by the mental injury.

5. Provide your opinion whether, and if so, when the effects of the work related psychological injury will cease (if applicable).

I am unable to determine when the effects of the work-related psychological injury will cease given the severity of her symptoms and chronic pain syndrome. Given the severity of her condition and persistent pain it is likely that she will continue to experience ongoing psychological symptoms in the long term; that is, greater than two years.[105]

93 Dr Sheehan was engaged by the plaintiffs to conduct a psychiatric assessment of Ms Reimers. In their written submissions to the Panel, the plaintiffs submitted that Dr Sheehan's findings regarding Ms Reimers' work capacity and psychological condition were flawed. Those findings included an express finding that Ms Reimers suffered psychological injury as alleged; i.e. as a consequence of the soft tissue injury which she sustained on 26 October 2018.

94 I reject the plaintiffs' contention that the Panel failed to accord the plaintiffs procedural fairness in reaching conclusions as to the onset of Ms Reimers' major depression with anxiety as a result of the soft tissue injury. Whether Ms Reimers' major depression with anxiety commenced as a result of the soft tissue injury was 'in the ring'. I reject the plaintiffs' contention that they could not reasonably have anticipated the Panel's findings regarding the onset of Ms Reimers' major depression with anxiety as a consequence of the soft tissue injury. The plaintiffs were not denied procedural fairness.

95 If I am wrong in reaching the conclusion set out above, it does not follow that the Serious Injury Opinion would be quashed. The particulars in support of ground 1(b) make clear that the plaintiffs contend that the finding which came 'out of the blue' was the finding that Ms Reimers was suffering from symptoms of major depression with anxiety within four to six weeks of 26 October 2018. This finding is implicit in the Panel's answers to Questions 4 and 6 in the Statutory Benefits Opinion. However, the finding is not relevant to any of the answers to the questions in the Serious Injury Opinion. If there was a denial of procedural fairness it would only warrant the quashing of the answers to Questions 4 and 6 of the Statutory Benefits Opinion.

Did the Panel make findings which were not open on the evidence?

96 The plaintiffs contend that in reaching conclusions as to the onset of major depression with anxiety as a result of Ms Reimers' initial soft tissue injury, which resolved within 4 to 6 weeks, the Panel fell into jurisdictional error and/or error of law. The particulars of ground 1(a) set out three findings by the Panel:

(i) the worker's 'major depression with anxiety commenced as a result of initial soft tissue injury of the neck and right shoulder as a result of the work place incident on 26 October 2018 and has continued despite the resolution of the soft tissue of the neck and right shoulder';

(ii) there was a gradual deterioration of the worker's mental state from the time of her compensable injury on 26 October 2018; and

(iii) the worker's 'symptoms of major depression with anxiety have persisted without any substantial improvement at any time in the period from 26 October 2018, up until the date of the Medical Panel's examination.

There was no evidence, and thus it was not open to the Medical Panel to conclude, that the worker was suffering the effects of major depression and anxiety in the 4 to 6 week period prior to the resolution of her compensable injury.

97 As developed during the course of submissions, the primary focus of the plaintiffs' 'no evidence' ground is the Panel's finding that Ms Reimers was incapacitated from 26 October 2018 by major depression with anxiety in the four to six week period prior to the resolution of the soft tissue injury she sustained on 26 October 2018. This finding is implicit in the answers to Questions 4 and 6 of the Statutory Benefits Opinion. However, it is not reflected in the answers to any of the questions in the Serious Injury Opinion. None of the questions in the Serious Injury Referral required the Panel to address the question of whether Ms Reimers was incapacitated from 26 October 2018 as a consequence of major depression with anxiety. It follows that if the no evidence ground is upheld, it does not provide a basis for quashing any of the opinions in the Serious Injury Opinion. Further, as I have concluded that the Panel's answers to Questions 4 to 6 of the Statutory Benefits Opinion should be quashed because the Statutory Benefits Reasons are inadequate, there is limited utility in addressing the no evidence ground. However, for the sake of completeness, I shall do so.

98 Ground 1(a) challenges the Panel's findings as to the onset of major depression with anxiety as a result of Ms Reimers' initial soft tissue injury. The Panel made the following findings regarding the onset of Ms Reimers' major depression with anxiety:

(i) In the Panel's opinion the plaintiff's major depression with anxiety commenced as a result of her initial soft tissue injury of the neck and right should as a result of the work place incident on 26 October 2018 and has continued despite the resolution of the soft tissue injury of the neck and right shoulder.[106]

(ii) The Panel considered the history provided by the plaintiff in conjunction with the material provided, and considered there was evidence that, due to the extent of the pain the plaintiff encountered as a result of the claimed injury, her mental state begun to deteriorate gradually from that point in time and she now requires use of two psychotropic medications and is quite unwell.[107]

(iii) Based upon the above considerations, the mechanism of injury of 26 October 2018, requirement for medical attention, certification and treatment, persistence of symptoms since symptom onset and the Panel's finding on examination, the Panel considered that the plaintiff's current psychiatric condition is consistent with major depression with anxiety which commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the work place incident on 26 October 2018 and has continued to date largely unabated.[108]

(iv) The Panel also found that evidence from the history obtained from the plaintiff, was consistent with that of treating practitioners, both suggesting that symptoms of major depression and anxiety have persisted without any substantial improvement at any time in the period from 26 October 2018, up until the date of the Medical Panel's examination.[109]

(v) The Panel therefore concludes that from a psychiatric perspective alone, in the period from 26 October 2018 up to and as at the date of the Panel's examination, the plaintiff had no capacity for pre-injury employment.[110]

(vi) The Panel therefore concludes that from a psychiatric perspective alone the plaintiff has no capacity for pre-injury employment.[111]

99 There was some evidence before the Panel which supports the findings set out above. The medical reports before the Panel included the reports of Dr Sheehan dated 28 January 2020 and 1 July 2022. The report of 28 January 2020 includes the following:

Ms Reimers went on to say that it had been a very stressful period and that she was initially uncertain what the cause of her symptoms was until she had an MRI scan. Ms Reimers said that her injury had been all encompassing and that she had to focus on controlling her pain levels and associated headaches and fatigue.[112]

100 The MRI scan referred to in Dr Sheehan's report took place on 27 December 2018.[113] It is therefore clear that Ms Reimers' reference to stress and pain is a reference to the period prior to 27 December 2018.

101 Dr Sheehan's report also records the following:

Ms Reimers said that she did experience panic attacks in the initial period following her injury with an urge to 'run away' and felt that the room was 'closing in on me'.[114]

102 The present proceeding is not an appeal by way of merits review. In an appeal by way of merits review, the evidence set out above might not justify the Panel's finding, as reflected in its answers to Questions 4 and 6 in the Statutory Benefits Opinion, that Ms Reimers was suffering from major depression with anxiety within the period commencing 26 October 2018. However, in proceedings by way of judicial review, in order to make good a challenge based on no evidence, the onus rests with an applicant to establish that there is no evidence at all to support an impugned finding.[115]

103 Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail.[116] Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter.[117] As noted in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (seventh edition) at 236:

The "no evidence" ground is taken literally; the ground cuts out when even a skerrick of probative evidence appears. If there is some evidence, no matter how unconvincing, and no matter how overwhelmed it might have been by evidence to the contrary, one must turn to other grounds.[118]

104 The Court of Appeal in Sidiqi v Kotsios ('Sidiqi')[119] cautioned, in the medical panel context, that 'establishing a ground of review based on "no evidence" may be very problematic. It has been fairly said that in such a case the 'no evidence bar is set very high".'[120]

105 In Sidiqi, the applicant sought leave to appeal the decision of the primary judge dismissing an application for judicial review of the opinion of a medical panel. The medical panel had found that as a result of a workplace injury the applicant suffered from a chronic pain syndrome affecting his lower back and a mild chronic adjustment disorder. Nevertheless, the medical panel found that neither the applicant's physical or mental condition resulted in him having an incapacity for his pre-injury work and that he had current work capacity. Relevantly, the applicant contended that it was not open to the medical panel on the evidence to form the opinion which it did.

106 The Court of Appeal noted the case was 'fundamentally concerned with opinions as to the inferences which should be drawn from a body of circumstantial evidence.'[121] This was because of the nature of chronic pain syndrome, 'which does not have an obvious organic cause' and 'there are no general agreed criteria for the diagnosis'.[122] The Court of Appeal held that it was open for the medical panel on the material before it to reach the conclusions which it did.[123] The Court of Appeal in particular stated the medical panel's findings on examination of the applicant, the medical imaging and aspects of the historical opinion evidence might rationally be thought to support the medical panel's opinion, and that the medical panel was 'both entitled and required to use its own experience and expertise in assessing this information.'[124]

107 In reaching its conclusion as to onset of major depression with anxiety as a consequence of the soft tissue injury, the Panel was entitled to rely upon the history which it took from Ms Reimers. It was also entitled to rely upon the medical reports which were provided to it. Those reports included the reports of Dr Sheehan to which reference is made above. This material constituted evidence to support the Panel's answers to Questions 4 and 6 of the Statutory Benefits Opinion. The plaintiffs no evidence ground of review must be rejected.

Did the Panel constructively fail to perform its statutory function?

108 The plaintiffs submit that the Panel made factual errors in reaching its conclusions as to the continuation of Ms Reimers' major depression with anxiety persisting notwithstanding the resolution of the compensable physical soft tissue injury, resulting in a constructive failure to perform its statutory function.[125] The plaintiffs submit that if the Panel considered there was a persistence of symptoms of a continuing employment-related soft tissue injury from the symptom onset on 26 October 2018 to the date of its examination, then this was a factual error. Alternatively, the plaintiffs submit that if the Panel concluded there was a persistence of symptoms of major depression with anxiety in the period from 26 October 2018 onwards, this factual finding was not open to it and therefore the Panel erred in making it.[126]

109 In Chang v Neill,[127] the Court of Appeal stated:

[A] factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. ... Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material - properly construed - is an essential feature of a valid exercise of the function.[128]

110 In addition, an error of fact must be material in order for it to constitute jurisdictional error, in the sense that the outcome of the exercise of the relevant power could have been different if the factual error had not been made.[129] An error in relation to a factual matter, consideration of which is an essential feature of a valid exercise of the relevant statutory function, will usually satisfy the materiality requirement.[130]

111 The relevant paragraph of the Serious Injury Reasons and Statutory Benefits Reasons which the plaintiffs attack is set out below:

Based upon the above considerations, the mechanism of the injury on 26 October 2018, requirement for medical attention, certification and treatment, persistence of symptoms since symptom onset and the Panel's findings on examination, the Panel considered that the Plaintiff's current psychiatric condition is consistent with major depression with anxiety which commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued to date largely unabated.[131]

112 I accept Ms Reimers' submission that the 'symptoms' referred to by the Panel are psychiatric symptoms. The passage from the Panel's reasons set out above appears in the 'Material Contribution' section of the Reasons and is preceded by the following paragraphs:

The Panel considered that the Plaintiff's history and that the Plaintiff had suffered from a soft tissue muscle strain of the neck and right shoulder area as a result of the workplace incident on 26 October 2018, however concluded that any soft tissue injury would have resolved over 4-6 weeks and her current symptoms are consistent with mildly symptomatic cervical degenerative changes without radiculopathy.

The Panel therefore concluded that the Plaintiff's physical medical conditions were materially contributed to by her medical conditions for a six week period following the injury of 26 October 2018, but the Plaintiff's current medical conditions of the neck and right shoulder do not result from, nor are they materially contributed to by the Plaintiff's claimed injuries. In the Panel's opinion, the Plaintiff's constitutional degenerative disease of the cervical spine does not result from, nor is it materially contributed to by the claimed condition(s).

In the Panel's opinion the Plaintiff's major depression with anxiety commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the work place incident on 26 October 2018 and has continued despite the resolution of the soft tissue injury of the neck and right shoulder. The Panel noted that at the time of the injury the Plaintiff was enjoying her work and did not describe any psychological or psychiatric symptoms. In addition, the Panel found no evidence to suggest that the Plaintiff had any pre-existing history or other predisposing factors contributing to the development of a psychiatric disorder up until the time of her injury.[132]

113 The Panel found that Ms Reimers' soft tissue injury resolved within 4-6 weeks of 26 October 2018. The symptoms which have persisted since onset are not the physical symptoms of the soft tissue injury. Further, for the reasons set out earlier in this judgment, it was open to the Panel to find that there was a persistence of symptoms of major depression with anxiety in the period from 26 October 2018. There was no constructive failure by the Panel to perform its statutory function.

Did the Panel fall into jurisdictional error/error of law in reaching conclusions as to the continuation of a compensable psychiatric injury notwithstanding the resolution of Ms Reimers' soft tissue injury?

114 The particulars of this ground of review (ground 2) are as follows:

Notwithstanding that the Panel concluded that the worker's physical injuries to the neck and right shoulder area (in the nature of soft tissue injuries) would have resolved over 4-6 weeks, it also concluded that:

(i) 'her current psychiatric presentation is largely in the absence of a continuing employment related soft tissue injury';

(ii) the worker's ongoing physical pain, caused by unrelated degenerative changes in the cervical spine, were 'both a precipitating and perpetuating factor' to her major depression with anxiety.

Based on the Medical Panel's own factual conclusions, however, the worker's psychiatric presentation (at the time of the Medical Panel's assessment was some five years removed from the injury) was entirely (and not 'largely') in the absence of any persisting work related physical injury (which resolved over 4-6 weeks). Further, the worker's unrelated degenerative changes in the cervical spine, which were symptomatic, could only be 'both a precipitating and perpetuating factor' to a psychiatric condition which arose after the resolution of the compensable physical injuries (there being no finding that she was suffering from the effects of both such physical injuries, as well as her unrelated degenerative changes in the first 4-6 weeks after the injury on 26 October 2018.[133]

115 The Panel made the following findings in respect of the continuation of Ms Reimers' compensable psychiatric injury notwithstanding the resolution of the soft tissue injury she sustained on 26 October 2018:

In the Panel's opinion the Plaintiff's major depression with anxiety commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued despite the resolution of the soft tissue injury of the neck and right shoulder. The Panel noted that at the time of the injury the Plaintiff was enjoying her work and did not describe any psychological or psychiatric symptoms. In addition, the Panel found no evidence to suggest that the Plaintiff had any pre-existing history or other predisposing factors contributing to the development of a psychiatric disorder up until the time of her injury.

The Panel is cognisant of the threshold requirement for determining whether a condition remains materially contributed to [sic] the initial injury suffered in the course of the Plaintiff's employment and the varying contributing factors that remain relative to the Plaintiff's current impairments due to her psychiatric condition. The Panel noted that the Plaintiff was functioning very highly prior to her physical soft tissue injury, with no significant past psychiatric history and no history of use of psychotropic medication. The Panel considered the history provided by the Plaintiff in conjunction with the material provided, and considered that there was evidence that, due to the extent of the pain the Plaintiff encountered as result of the claimed injury, her mental state began to deteriorate gradually from that point in time and she now requires use of two psychotropic medications and is quite unwell.

The Panel noted the inherent complexities of the Plaintiff's presentation, noting that she continues to suffer from chronic pain related to a physically constitutional condition presenting after an acute injury with secondary depression which now is predominant. Notwithstanding that the Plaintiff was able to work without difficulties and psychologically well before the injury, her current psychiatric presentation is largely in the absence of a continuing employment related soft tissue injury. The Panel therefore considered what is required for a condition to remain materially contributed and considered that material is a question of degree. The Panel considered that a contribution which comes within the exception de minimus is not material and that any contribution which does not fall within that exception is therefore material.

Based upon the above considerations, the mechanism of the injury on 26 October 2018, requirement for medical attention, certification and treatment, persistence of symptoms since symptom onset and the Panel's findings on examination, the Panel considered that the Plaintiff's current psychiatric condition is consistent with major depression with anxiety which commenced as a result of her initial soft tissue injury of the neck and right shoulder as a result of the workplace incident on 26 October 2018 and has continued to date largely unabated.

While the Panel considered that the Plaintiff's ongoing physical pain is due to symptomatic cervical degenerative changes without radiculopathy, and that this was also both a precipitating and perpetuating factor to the Plaintiff's current major depression with anxiety, the Panel nonetheless concluded that the Plaintiff's condition of the mind was and remains materially contributed to by the injuries to her neck and spine on or about from 26 October 2018 or throughout the course of her employment based on the considerations above.[134]

116 When the impugned sections of the Panel's reasons are read in the context of the 'Material Contribution' section of the Reasons, there is no inconsistency in the Panel's findings regarding the continuation of a compensable psychiatric injury notwithstanding the resolution of the soft tissue injury sustained on 26 October 2018.

117 The plaintiffs appear to contend that the Panel's finding that Ms Reimers' physical injury had resolved within 4-6 weeks after 26 October 2018 precludes a finding that Ms Reimers had a work-related psychiatric condition subsequent to that time. This contention must be rejected. The Panel's reasons disclose the basis for its conclusion that, notwithstanding the resolution of Ms Reimers' work-related soft tissue injury, her ongoing psychiatric condition was materially contributed to by the workplace injury. The Panel's reasons do not disclose jurisdictional error and/or error of law.

118 I accept the plaintiffs' submission that, based on the Panel's findings, Ms Reimers' continuing psychiatric condition was 'entirely' rather than 'largely' in the absence of any persisting work-related physical injury. However, this does not undermine the basis upon which the Panel concluded that Ms Reimers' ongoing psychiatric condition was materially contributed to by her work-related soft tissue injury. Further, there is no error disclosed by the Panel's conclusion that Ms Reimers' degenerative cervical condition was both a precipitating and perpetuating factor to Ms Reimers' major depression with anxiety. It is clear from the reasons that the Panel identified two causes of Ms Reimers' current psychiatric condition. First, a deterioration in Ms Reimers' mental state from 26 October 2018 caused by the workplace injury. Second, the continuing deterioration in Ms Reimers' mental state due to physical pain arising from her degenerative cervical condition.

119 The plaintiffs contend that the Panel's statement that Ms Reimers' non-work related physical injury was a 'precipitating' factor to Ms Reimers' current major depression with anxiety is inconsistent with its finding that Ms Reimers' work-related soft tissue injury materially contributed to her current psychological condition. I reject this contention. The Panel made an express finding that Ms Reimers' mental state started to deteriorate during the 4-6 week period following the soft tissue injury on 26 October 2018. That deterioration was a consequence of a work-related injury. The deterioration continued after 8 December 2018 due to a non-work related injury. There was a nexus between the ongoing deterioration in Ms Reimers' mental state and the initial deterioration in her mental state caused by the workplace injury on 26 October 2018.

Did the Panel fall into jurisdictional error/error of law in determining that Ms Reimers had no current work capacity?

120 In both the Serious Injury Reasons and the Statutory Benefits Reasons the Panel concluded that Ms Reimers' 'psychiatric symptoms are currently ... due to her ongoing major depression.'[135] The Panel also made an express finding that ongoing physical pain due to Ms Reimers' non-work related constitutional degenerative condition of the spine was a 'precipitating and perpetuating factor to the Plaintiff's current major depression with anxiety'.[136]

121 The plaintiffs contend that when assessing whether Ms Reimers had no current work capacity, the Panel was required to disregard the incapacitating effects of supervening conditions unrelated to the compensable soft tissue injury as found by it. The plaintiffs submit that, having found that Ms Reimers' constitutional degenerative condition was unrelated to her employment and that pain associated with the condition was a 'perpetuating factor' of her major depression with anxiety, the Panel should have disregarded the mental or psychiatric effects of the constitutional degenerative condition.[137]

122 In Walsh v Department of Human Services ('Walsh')[138], the Court of Appeal addressed the issue of when it is permissible for a medical panel to aggregate the effects of a compensable injury and a non-compensable injury when determining whether a worker has no current work capacity. In Walsh, the appellant worker sustained an injury in May 2008 when she twisted her right knee in the course of her employment as a casual disability worker. In April 2011 and November 2011, the worker injured her right shoulder and left shoulder and subsequently developed lower back pain. A medical panel determined that the worker had no current work capacity. The panel acknowledged that the shoulder injuries and lower back pain were unrelated to the right knee injury, and implicitly, that they did not involve any aggravation of the compensable injury. The issue before the Court of Appeal was whether the medical panel was wrong to conclude that, for the purposes of the definition of 'no current work capacity' in s 51 of the Accident Compensation Act 1958, an injury that was supervening and unrelated could be aggregated with a compensable injury so as to give rise to an indivisible state of no capacity to work. The Court of Appeal concluded that the medical panel erred in aggregating the effects of a compensable and non-compensable injury when finding that a worker had no current work capacity. Tate JA (Nettle and Hansen JJA agreeing) stated:

If a worker suffers partial incapacity due to a workplace injury and, after suffering an independent injury which is related to the workplace injury, the worker becomes totally and permanently incapacitated, the total and permanent incapacity results from the workplace injury; it results from "the concurrent action" of both injuries. In other words, where a workplace injury and an independent cause produce consequences by reason of aggravating or accelerating a single underlying condition or disease, or impact upon the same bodily part, the total and permanent incapacity results from the workplace injury. For example, where a workplace injury causes partial incapacity and subsequently, through an independently caused but nevertheless connected non-work place injury, the worker becomes totally and permanently incapacitated, the worker's employer is liable for the total and permanent incapacity.[139]

123 Tate JA identified the statement set out above as 'principle (f)'. Her Honour stated:

An application of principle (f) to the circumstances of the present case is clear. The panel found not only was there no causal relationship between the compensable injury and the later injuries, but there was no nexus or connection between them. The shoulder injuries were "a consequence of constitutional bilateral rotator cuff disease", unrelated to the injury to the right knee. As the panel certified in response to Question 2) (b) (i) & (ii), and as mentioned above, the shoulder injuries were "not relevant" to the compensable injury. This was not an instance of the non work-related injuries aggravating or accelerating an underlying condition or disease (such as a progressive coronary disease, or an anxiety disorder) or acting upon the same bodily part (such as the lumbar spine).

In my opinion, the panel was wrong to conclude that, for the purpose of the definition of "no current work capacity" in s 5(1) of the Act, an injury that is supervening and unrelated can be aggregated with a compensable injury so as to give rise to an indivisible state of no work capacity. The panel thus misconstrued its statutory function and took into account irrelevant considerations in arriving at its conclusion. In determining whether Walsh had no current work capacity, within the meaning of the Act, the panel ought to have confined itself to the incapacity that flowed from the compensable injury alone.[140]

124 The facts of the present proceeding can be distinguished from Walsh. In the present proceeding, a non-work related injury (constitutional degenerative changes of the spine) aggravated an underlying condition, being the deterioration in Ms Reimers' mental state which was a consequence of the pain she experienced immediately following her workplace injury on 26 October 2018. There was a nexus between the deterioration of Ms Reimers' mental state during the six week period following the soft tissue injury on 26 October 2018 and the subsequent deterioration of her mental state attributable to her non-work related physical injury. The Panel's finding that Ms Reimers' current psychiatric condition 'commenced as a result of her initial soft tissue injury' constitutes a finding of a causal relationship between the compensable workplace injury and the later injury.

125 The Panel did not make an express finding that Ms Reimers' constitutional degenerative changes of the spine aggravated the deterioration in Ms Reimers' mental state which occurred as a result of the workplace injury on 26 October 2018. However, this finding is implicit in the Serious Injury Reasons. The Panel noted that as at 26 October 2018 Ms Reimers was enjoying her work and did not describe any psychological or psychiatric symptoms.[141] The Panel found no evidence to suggest that Ms Reimers had any pre-existing history or other predisposing factors contributing to the development of a psychiatric disorder prior to 26 October 2018.[142] The Panel concluded that due to the extent of pain Ms Reimers experienced as a result of her workplace injury, her mental state began to deteriorate gradually from the date of the injury.[143] Ms Reimers currently suffers from chronic pain related to her constitutional degenerative condition.[144] Ms Reimers' current psychiatric condition is consistent with major depression and anxiety.[145] This condition was materially contributed to by the injuries to her neck and right shoulder on 26 October 2018. It is implicit in the findings set out above that the Panel concluded that the deterioration in Ms Reimers' mental condition which occurred in the period following her workplace injury on 26 October 2018 was aggravated by her constitutional degenerative condition.

126 The Panel was not required to disregard the incapacitating psychiatric effects of Ms Reimers' constitutional degenerative changes. The Panel did not err in aggregating the psychiatric effects of the work-related injury with the effects of the non-work related injury, because the Panel found there was a nexus between the deterioration of Ms Reimers' mental state during the 4-6 week period following the compensable soft tissue injury and the subsequent deterioration in her mental state. The pain which Ms Reimers experienced as a consequence of the constitutional degenerative condition aggravated the pre-existing deterioration of her mental state which had been caused by the soft tissue injury.

127 The Panel failed to provide adequate reasons for finding that Ms Reimers had no current work capacity from 26 October 2018 due to major depression with anxiety. None of the other grounds of review in respect of the Statutory Benefits Opinion are upheld. The Panel's answers to Questions 1 to 3 of the Statutory Benefits Opinion will not be quashed. The Panel's answers to Questions 4 to 6 of the Statutory Benefits Opinion will be quashed. None of the grounds of challenge to the Serious Injury Opinion are upheld.

128 The plaintiffs submitted that if the Opinions were quashed, the medical questions should be remitted to a differently constituted medical panel to be reconsidered in accordance with law. An order for remittal to a differently constituted medical panel requires that good reason for doing so be established. Good reasons can arise from strongly expressed views, adverse findings as to credit or apprehended bias.[146] An order for remittal to a differently constituted decision-maker should be made where the interests of justice require it.[147]

129 I do not consider that the interests of justice require Questions 4 to 6 of the Statutory Benefits Referral to be remitted to a differently constituted medical panel. The challenge to the Serious Injury Opinion has been dismissed. The challenge to three of the six answers provided by the Panel in the Statutory Benefits Opinion has been dismissed. The Statutory Benefits Reasons are comprehensive. There is no suggestion of any apprehended bias on the part of any of the members of the Panel. Remitting Questions 4 to 6 of the Statutory Benefits Referral to the same medical panel will allow the questions to be addressed expeditiously by medical practitioners who are familiar with 'the inherent complexities of [Ms Reimers'] presentation'.[148] Upon remittal to the same medical panel, both the plaintiffs and Ms Reimers should be afforded the opportunity to make further submissions to the Panel.

1. the opinions of the Medical Panel in answers to questions 4, 5 and 6 in the Certificate of Opinion dated 6 December 2023 with respect to Ms Tanya Reimers, Medical Panel reference number: M123/2192, be quashed;

2. those questions be remitted to the same Medical Panel for reconsideration; and

131 The plaintiffs and Ms Reimers have each had a measure of success. The plaintiffs have succeeded in obtaining orders which have the effect that three of the six answers in the Statutory Benefits Opinion will be quashed. Ms Reimers has successfully resisted the plaintiffs' application for orders quashing the Serious Injury Opinion. Also, the answers to Questions 1 to 3 of the Statutory Benefits Opinion have not been disturbed. My provisional view is that the plaintiffs should pay two thirds of Ms Reimers' costs on a standard basis, to be taxed in default of agreement. If either party wishes to contend for a different form of costs order, they shall be provided with an opportunity to do so.

ASSOCIATE PROFESSOR ALEXANDER HOLMES Fifth Defendant

[1] Medical Panel reference number M123/2192.

[2] Medical Panel reference number M123/2558.

[3] CB 136-138, Joint Statement of the Parties Pursuant to s 304 of the Workplace Injury Rehabilitation & Compensation Act 2013 dated 7 March 2022.

[4] CB 192-194, Joint Statement of the Parties Pursuant to s 304 of the Workplace Injury Rehabilitation & Compensation Act 2013 dated 27 January 2023.

[5] CB 161-162, Tanya Reimers' Worker's Injury Claim Form dated 22 November 2018.

[6] CB 161, Tanya Reimers' Worker's Injury Claim Form dated 22 November 2018.

[7] CB 163-167, Claim for Compensation Outcome dated 20 December 2018.

[8] CB 164, Claim for Compensation Outcome dated 20 December 2018.

[9] CB 168-169, Tanya Reimers' Worker's Injury Claim Form dated 3 February 2021.

[10] CB 168, Tanya Reimers' Worker's Injury Claim Form dated 3 February 2021.

[11] CB 170-174, Gallagher Bassett Letter to Tanya Reimers dated 3 March 2021.

[12] CB 171, Gallagher Bassett Letter to Tanya Reimers dated 3 March 2021.

[13] Proceeding number K12753673: CB 18 [7], Affidavit of Cosima Olivi dated 20 February 2024

[14] Proceeding number CI-23-01447: CB 18 [8], Affidavit of Cosima Olivi dated 20 February 2024.

[15] CB 133-135, Notice of Request Pursuant to Section 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 dated 15 March 2023.

[16] CB 72, Statutory Benefits Opinion dated 6 December 2023.

[17] CB 75, Statutory Benefits Reasons dated 6 December 2023.

[18] CB 72-74, Statutory Benefits Opinion dated 6 December 2023.

[19] CB 75-93, Statutory Benefits Reasons dated 6 December 2023.

[20] Proceeding number CI-22-02782: CB 22 [13], Affidavit of Cosima Olivi dated 20 February 2024.

[21] CB 188-191, Notice of Request Pursuant to Section 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 dated 13 March 2023.

[22] CB 98, Serious Injury Opinion dated 6 December 2023.

[23] CB 102, Serious Injury Reasons dated 6 December 2023.

[24] CB 102-120, Serious Injury Reasons dated 6 December 2023.

[25] CB 75-76, Statutory Benefits Reasons dated 6 December 2023.

[26] CB 76-77, Statutory Benefits Reasons dated 6 December 2023.

[27] CB 77-78, Statutory Benefits Reasons dated 6 December 2023.

[28] CB 78, Statutory Benefits Reasons dated 6 December 2023.

[30] CB 78-80, Statutory Benefits Reasons dated 6 December 2023.

[31] CB 80, Statutory Benefits Reasons dated 6 December 2023.

[32] CB 80-81, Statutory Benefits Reasons dated 6 December 2023.

[33] CB 81, Statutory Benefits Reasons dated 6 December 2023.

[34] CB 82-83, Statutory Benefits Reasons dated 6 December 2023.

[35] CB 83, Statutory Benefits Reasons dated 6 December 2023.

[37] CB 84, Statutory Benefits Reasons dated 6 December 2023.

[39] CB 85, Statutory Benefits Reasons dated 6 December 2023.

[41] CB 85-86, Statutory Benefits Reasons dated 6 December 2023.

[42] CB 86, Statutory Benefits Reasons dated 6 December 2023.

[46] CB 87, Statutory Benefits Reasons dated 6 December 2023.

[49] CB 89, Statutory Benefits Reasons dated 6 December 2023.

[50] CB 89-90, Statutory Benefits Reasons dated 6 December 2023.

[51] CB 90-91, Statutory Benefits Reasons dated 6 December 2023.

[52] CB 91, Statutory Benefits Reasons dated 6 December 2023.

[54] CB 91-92, Statutory Benefits Reasons dated 6 December 2023.

[55] CB 92-93, Statutory Benefits Reasons dated 6 December 2023.

[56] CB 117, Serious Injury Reasons dated 6 December 2023.

[57] CB 118-119, Serious Injury Reasons dated 6 December 2023.

[58] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 5(1)(a) ('WIRAC').

[59] Ibid, s 3.

[60] [2016] VSCA 142; (2016) 51 VR 95.

[62] WIRAC, s 3.

[64] [2023] VSCA 59.

[65] Ibid, [23]-[24], quoting Dunbar v Bas [2019] VSCA 315, [47]-[51] (Beach, McLeish and Ashley JJA) (citations omitted). See also Gruma Oceania Pty v Bakar [2014] VSCA 252, [46]-[48]; Devaney v Crown Melbourne Ltd [2021] VSCA 168, [64].

[66] [2014] VSCA 252.

[67] Gruma Oceania Pty v Bakar [2014] VSCA 252, [29]-[30] (citations omitted).

[68] Plaintiffs' Submissions dated 16 August 2024, [70].

[69] CB 223-224 [18]-[19], Affidavit of Tanya Reimers dated 24 February 2022.

[70] CB 223-224 [19], Affidavit of Tanya Reimers dated 24 February 2022.

[71] CB 79, Statutory Benefits Reasons dated 6 December 2023; CB 224 [20], Affidavit of Tanya Reimers dated 24 February 2022; CB 417, CoWork Vocational Assessment & Labour Market Analysis Report dated 23 June 2022.

[72] CB 79, Statutory Benefits Reasons dated 6 December 2023; CB 417, CoWork Vocational Assessment & Labour Market Analysis Report dated 23 June 2022.

[73] CB 77, Statutory Benefits Reasons dated 6 December 2023; CB 228, Affidavit of Tanya Reimers dated 24 February 2022.

[74] CB 89, Statutory Benefits Reasons dated 6 December 2023 (emphasis added).

[75] CB 91, Statutory Benefits Reasons dated 6 December 2023 (emphasis added).

[76] CB 116, Serious Injury Reasons dated 6 December 2023.

[77] CB 117, Serious Injury Reasons dated 6 December 2023.

[78] Plaintiffs' Submissions dated 16 August 2024, [70.6].

[79] CB 110, Serious Injury Reasons dated 6 December 2023.

[81] CB 111, Serious Injury Reasons dated 6 December 2023.

[83] CB 118, Serious Injury Reasons dated 6 December 2023.

[84] CB 318, IME Report for Ms Tanya Reimers of Dr Anthony Sheehan dated 28 January 2020.

[85] Plaintiffs' Submissions dated 16 August 2024, [70.5].

[86] Gruma Oceania Pty v Bakar [2014] VSCA 252, [29], quoting Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322, [9].

[87] Omerasevic v Kotzman [2016] VSC 383, [114] per Riordon J; Calleja Nominees Pty Ltd v Victorian Workcover Authority [2008] VSC 597, [64]-[67] per Coghlan J; R v Marshall; ex parte Baranor Nominees Pty Ltd [1986] VicRp 2; [1986] VR 19, 34 per Brooking J, Southwell and Murphy JJ agreeing.

[88] Plaintiffs' Submissions dated 16 August 2024, [39].

[90] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot').

[92] [2017] VSC 452.

[93] Ibid, [40]-[41]. See also Gruma Oceania Pty Ltd v Bakar & Ors [2014] VSCA 252, [25].

[94] [2020] VSCA 33.

[97] Transcript ('T') 60 Line ('L') 9-15.

[99] CB 180 [5], Amended Statement of Claim dated 22 March 2021

[100] CB 235 [4], [7], Draft Statement of Claim dated 12 October 2021.

[101] CB 201-203 [21]-[23]; Plaintiff's Submissions to the Medical Panel dated 5 July 2023.

[102] CB 153-154 [3]-[5], Defendant's Submissions dated 7 March 2022.

[103] CB 209-210 [3]-[8], Defendant's Submissions dated 11 April 2023.

[104] CB 318, IME Report for Ms Tanya Reimers of Dr Anthony Sheehan dated 28 January 2020.

[105] CB 335-336, Medico-Legal Report for Ms Tanya Reimers by Dr Anthony Sheehan dated 1 July 2022.

[106] CB 89, Statutory Benefits Opinion dated 6 December 2023; CB 116, Serious Injury Reasons dated 6 December 2023.

[107] CB 89, Statutory Benefits Opinion dated 6 December 2023; CB 116, Serious Injury Reasons dated 6 December 2023.

[108] CB 90, Statutory Benefits Opinion dated 6 December 2023; CB 117, Serious Injury Reasons dated 6 December 2023.

[109] CB 91, Statutory Benefits Opinion dated 6 December 2023; CB 118, Serious Injury Reasons dated 6 December 2023.

[110] CB 91, Statutory Benefits Opinion dated 6 December 2023.

[111] CB 118, Serious Injury Reasons dated 6 December 2023.

[112] CB 317, IME Report for Ms Tanya Reimers of Dr Sheehan dated 28 January 2020.

[113] CB 472, MRI of Tanya Reimers dated 27 December 2018.

[114] CB 318, IME Report for Ms Tanya Reimers of Dr Sheehan dated 28 January 2020.

[115] Patsuris v Gippsland & Southern Rural Water Corp [2014] VSC 621, [16]; CD v Central Gippsland Health Service [2022] VSC 462, [273]-[281]. See also Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, 587 [575]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, 408 [17].

[116] See for example DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529, 557-558 [134]; Phonographic Performance Company of Australia Ltd v Copyright Tribunal of Australia [2019] FCAFC 95; (2019) 270 FCR 645, 666 [94].

[117] See for example Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [39]-[41].

[118] Mark Aronson, Matthews Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022), 236.

[119] [2021] VSCA 187 (Beach, Kaye and Osborn JJA).

[125] Plaintiffs' Submissions dated 16 August 2024, [58].

[127] (2020) 62 VR 174.

[131] CB 90, Statutory Benefits Reasons dated 6 December 2023; CB 117, Serious Injury Reasons dated 6 December 2023 (emphasis added).

[132] CB 90, Statutory Benefits Reasons dated 6 December 2023; CB 116, Serious Injury Reasons dated 6 December 2023.

[133] CB 13, Originating Motion for Judicial Review dated 21 February 2024.

[134] CB 116-117, Serious Injury Reasons dated 6 December 2023 (emphasis added).

[135] CB 92, Statutory Benefits Reasons dated 6 December 2023; CB 119, Serious Injury Reasons dated 6 December 2023.

[136] CB 90, Statutory Benefits Reasons dated 6 December 2023; CB 117, Serious Injury Reasons dated 6 December 2023.

[137] Plaintiffs' Submissions dated 16 August 2024, [65].

[138] [2014] VSCA 244; (2014) 44 VR 244.

[139] Ibid, 273 [105] (emphasis in original).

[141] CB 116, Serious Injury Reasons dated 6 December 2023.

[144] CB 117, Serious Injury Reasons dated 6 December 2023.

[146] Omerasevic v Kotzman [2016] VSC 383, [113].

[147] Murphy v State of Victoria [2014] VSCA 238; (2014) 45 VR 119, 152 [108]-[109].

[148] CB 90, Statutory Benefit Reasons dated 6 December 2023.