HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97

5. The respondent (the plaintiff in the Magistrates' Court) is a 46 year old man who was employed by Deakin University at its Warrnambool campus as a technical officer since about 1991. On 10 June 1996 he sustained an injury to his back at work whilst lifting a loaded trailer up to the towbar on the back of a work vehicle. According to the findings of fact of the Magistrate, the plaintiff was off work for about a fortnight after this, then returned to work on light duties and restricted hours until he ceased work with the University in July 1997. With respect to the incident which occurred on 10 June 1996 ("the work accident") the plaintiff lodged a claim form pursuant to the provisions of the Accident Compensation Act 1995 (the Act) dated 17 July 1996. Liability under the Act was accepted and weekly payments of compensation were made by the appellant, the employer's insurer. This could not have been for more than a brief period. On 6 March 1997 whilst the plaintiff was putting on trousers at his home he felt a severe "extra" pain in the back "as if he had been hit with an axe" (hereinafter called the home accident). According to the findings of the Magistrate the plaintiff did not return to his normal duties after the original two weeks off following the work accident. The nature of his job permitted him to modify the type of work he did, as a result of which he continued to work five days a week but apparently avoided back stress. However, according to the Magistrate's findings, during the approximate nine months between the two accidents he had increasing difficulty and pain in the back but continued in his job. After the home accident he was off work for a week, then went back to his job with increasing difficulty, pain and incapacity and finally gave up work in July 1997. He lodged a further claim form dated 23 May, according the Magistrate at the insistence of his employer. The Magistrate also stated that the defendant had treated the home accident as a separate and distinct incident from the work accident in which the plaintiff sustained injury, not simply as a manifestation of the work accident injury. The insurer denied liability under the Act and as a consequence the respondent Greeves commenced a proceeding in the Magistrates' Court against the insurer. The fashioning of that claim is not without importance. It appears that paragraph 5 of the particulars were amended on 11 February 1998, the plaintiff having commenced his proceeding in September 1997. Paragraph 5, as amended, is in the following form:

"5. On or about the 10th of June 1996 the plaintiff sustained injury in the course of his employment with the employer. Particulars of injury: low back injury, L5-S1 disc prolapse, lumbar spine injury, referred left and right leg pain and numbness, reactive depression, anxiety."

The plaintiff pleaded having made a claim for weekly payments of compensation in respect of the work injury and that the defendant accepted the claim and made WorkCover payments. He went on to plead that on or about 27th May 1997, he made a further claim for weekly payments of compensation pursuant to the Act and that on 23 June 1997 the defendant determined to reject the second claim and notified the plaintiff of that on that date, re-affirming its decision on 28 July 1997. The plaintiff alleged his incapacity for work and made routine claims for weekly payments of compensation under s.93 and associated expenses and costs. The defendant's defence was basically routine admissions, non-admissions and denials. The claim form lodged by the respondent on 23 May 1997 (that is, after the home accident) claimed for the worker's time off work and expenses. It described the injury/condition as "prolapse disc" and "spinal stenosis", affecting the lower back. With respect to what happened to cause the injury/condition in respect of which the claim being made it was stated "Re lapse (sic) of previously reported injury". The substantial affidavit of the solicitor for the appellant sets out details of the evidence in the proceeding which I consider in conjunction with the findings of fact of the Magistrate, and his expression of reasons. Both that affidavit and an affidavit on behalf of the respondent's solicitor raised some matters that seem to lie outside the factual matrix that had to be considered by the Magistrate. It would seem to me nothing much turns on this as both parties to this appeal sensibly approached the matter by going directly to the issues that did emerge from the affidavits and the reasons.

10. Before proceeding further with the background, it is necessary to refer to a number of relevant sections of the Act. Part 3 of the Act is concerned with dispute resolution and by a combination of ss.39 and 43, the Magistrates' Court of Victoria has jurisdiction to hear and determine any question or matter arising out of any decision of the Authority, authorised insurer, employer or a self-insurer. Thus the Magistrates' Court in this case had jurisdiction to hear and determine any question or matter arising out of the decision of the insurer. It did not appear to be in dispute that the workplace injury entitled the worker to compensation under the Act, that is, it was not in dispute that that injury arose in the course of his employment which was a significant contributing factor. Nor was it contended that the insurer had not complied in relevant respects with s.109 of the Act.

"45 Medical questions (1) Where the County Court exercises jurisdiction under this Part, the County Court - (a) may refer a medical question; or (b) if a party to the proceedings requests that a medical question or medical questions be so referred, must refer that medical question or those medical questions - to a Medical Panel for an opinion under this Division."

This provision applies in a case where it is the Magistrates' Court exercising jurisdiction.

18. The proceeding was heard by the Magistrate at Warrnambool on 10, 12 and 13 March 1998 and later in Melbourne on 19 and 30 March 1998. On 30 January 1998 the insurer's solicitors gave notice to the respondent's solicitors requesting that the Magistrates' Court refer a medical question under s.45 to a medical panel in the following terms:

"Whether the worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury."

It appears that from the outset counsel for the respondent contended there was no relevant medical question arising in the proceedings and opposed the insurer's request to refer that question to a medical panel. The Magistrate decided to reserve his opinion about that until he had heard oral evidence.

23. It is not necessary to refer to this evidence in detail. It appeared that the worker had attended Dr. Gault, who prescribed anti-inflammatory medication, and Mr. Dooley, an orthopaedic surgeon, who advised him not to have surgery. It also appears that the evidence given by the worker was that he had worked full-time from about a month after the work accident but still had difficulty and increasing low level back pain. He also stated the home incident resulted in pain at the same place and similar to the prior episode.

26. Section 5 of the Act defines "medical question" as meaning inter alia a question as to the nature of a worker's medical condition relevant to an injury or alleged injury; or a question whether a worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury or to a similar injury. I note that there are 13 identified questions that might amount to medical questions.

29. The questions of law raised by the appeal are, as formulated by the Master:

(a) whether the Magistrate erred in failing to consider whether any medical questions within the meaning of s.5 of the Act arose in the proceeding;

(b) whether he erred in failing and/or refusing to refer any medical questions to a medical panel in accordance with s.45 of the Act;

(c) whether the learned Magistrate erred in failing to make findings of fact before deciding if the respondent was entitled to compensation.

(c) does not appear to have been addressed by either counsel and I will not refer to it again.

36. A not insubstantial body of medical evidence in oral and written form was put before the Magistrate. This included evidence from the plaintiff's general practitioner Dr. Gault, from a Mr. Maling**,** a general surgeon, and Mr. S.G. Schofield, an orthopaedic surgeon, copies of whose medical reports were tendered in evidence. According to the affidavit of Mr. Whiting, Dr. Gault stated that the incident of March 1997 was an exacerbation of the original injury in June 1996 but conceded that a scan of the lower back after the home episode showed a differently situated prolapse which might mean that the second episode was not necessarily related to the earlier injury. Mr. Maling apparently expressed the view that there was probably disruption at both levels in the work accident but the L4-5 prolapse only frankly appeared after the home incident. He disagreed with Dr. Guest's view (to which I will refer) that the worker's problems were due to congenital spinal stenosis. Mr. Schofield expressed the view that the second episode was an exacerbation of the injury occurring in the first incident and that the respondent had not recovered from that first injury. He also disagreed with Dr. Guest's view expressed in his report that the respondent's incapacity was caused by underlying spinal canal stenosis. The insurer's surgeon, Mr. Guest, did not attend court on any occasion, a matter commented on by the Magistrate, who apparently formed the view that Mr. Guest had declined to come to court. Whether that is right or not does not seem to matter as Mr. Guest's report was tendered by consent. In the Magistrate's reasons he reproduced a passage from that report to the following effect, concerning the worker:

"He has evidence of congenital spinal stenosis which I consider to be the underlying cause of his continuing symptoms. He sustained a further acute exacerbation of pain at home on the 6 March, 1997 and I do not consider that this would be part of an ongoing condition. This would need to be considered as a new incident."

**"**Throughout the presentation of the plaintiff's case these two propositions of Mr. Guest, namely that a congenital spinal stenosis was the underlying cause of the plaintiff's continuing symptoms and that the incident at home on 16 March, 1997 would need to be considered a new incident, were put vigorously to each medical practitioner called on behalf of the plaintiff. Each of these witnesses, Dr. Gault, Mr. Maling and Mr. Schofield each vigorously denied the propositions and positively averred that as the plaintiff had never had nay previous back trouble canal stenosis nothing to do with his condition and that his present condition was a result of the incident at work which had occurred on 10 June, 1996 when the plaintiff was lifting a trailer up to a tow bar. I rejected the twin propositions contained in Mr. Guest's report. I did so because of his apparent wilful and persistent refusal to come to Court to justify himself, because of the plaintiff's evidence which I have accepted, because of the weight of the medical evidence given by the practitioners called on behalf of the plaintiff and because they do not accord with common experience and common sense. In rejection of Mr. Guest's propositions, in the light of the thrust of the totality of all of the acceptable medical evidence, in the acceptance of the plaintiff's own evidence of continuing pain and disability from the first incidence without resolution and in the defendant's acceptance of liability for the first incident, the proposed medical question must be irrelevant and I so found. This irrelevant question was not, then, referred to the Medical Panels."

42. On the second last of the occasions on which the matter was before the Magistrate, namely 19 March 1998, counsel for the insurer made further submissions as to the form of questions to be referred to a medical panel, an application which was opposed on behalf of the respondent. The case was then adjourned to 30 March 1998.

45. The affidavit of David Joseph Nicholas Purcell, the respondent's solicitor, raises some matters of what occurred at some of these hearings, otherwise not appearing but apparently not in dispute. It appears from both the affidavit of Mr. Whiting and Mr. Purcell that counsel for the insurer informed the Magistrate on 19 March that Mr. Guest was unable to give evidence because he was attending a funeral and in the circumstances his report was tendered by consent. It is therefore puzzling that the Magistrate concluded that Mr. Guest had wilfully refused or declined to attend. Mr. Purcell's affidavit also discloses what the medical question requested by the insurer on 19 March to be the medical question to be referred to the Medical Panel as follows:

"Whether the worker's employment was a significant contributing factor to the injury for which he claimed compensation by way of claim form dated 23rd May 1997."

Mr. Purcell's affidavit states that on 19 March the Magistrate indicated that if he was entitled to find as a question of fact that Mr. Guest's opinion was wrong then there was no question or issue to be referred to a panel saying "If I find the worker was incapacitated from March 1997 because of the June 1996 injury then there is no question to go to the panel". It appears the insurer argued that the court could make findings of fact but not about issues sought to be referred to the panel. He also states that the Magistrate adjourned the case to think about it, intimating that in the event of deciding to send a medical question to a panel he was not satisfied the present question was the most appropriate one because it must encompass questions in relation to the whole history of the respondent's claim as presented by the respondent. On 30 March, the respondent failed in an application to have Mr. Guest called as a witness.

50. I note that Mr. Guest, in addition to the matters previously re-produced, stated in his report

"Mr. Greeves still has a moderate incapacity. However I do not consider that the work related injury is now contributing to this, but it is linked with the spinal canal stenosis from which he is suffering. ... I do not consider there is any work related permanent impairment but Mr. Greeves does have a permanent impairment and he will need to consider a change of job and life-style."

54. I return to the Magistrate's reasons. On page 3 of his reasons, his Worship identified the critical question proposed by the insurer, already identified by me, to this effect "whether the worker's employment was a significant contributing factor to the injury for which he claimed compensation by way of claim form dated 23rd May 1997?" The Magistrate went on to say that counsel for the worker had argued that the proposed question was irrelevant and ought not to be referred to any medical panel by the Court. The Magistrate referred to a number of decisions of judges of the County Court of Victoria, in particular the case of Metcalf v. FAI Workers Compensation Vic. Ltd. (2nd June 1997) and Green v. V.W.A. (unreported, 16th November 1995). The effect of these decisions arguably was that the Court would be the arbiter of any suggested medical question and the arbiter in respect of any disputes as to how a medical question should be framed. His Worship also referred to a passage in the judgment of Byrne, J. of this Court in Austin v. Amcor Limited (unreported, 3rd April 1998) to which I will subsequently refer. It is clear that the Magistrate sought to use the opinions expressed in the cases to which he referred, not merely as a justification for concluding that the proposed question was irrelevant, but as enabling him to hear the whole of the evidence and to decide which of the opinions expressed he preferred, without referring the question to any medical panel. It is apparent from reading the reasons of his Honour Judge Strong and his Honour Judge Williams, both of the County Court in the cases referred to, that there has been judicial resistance to the proposition apparently advanced that the effect of s.45 was wholly to strip the Court of its judicial power to determine the issues in the case properly raised within its jurisdiction for determination. This has not been a case of wilful opposition to the operation of the statutory scheme created by the Act but has involved, in the interests of both parties and the court, a consideration of the necessary balance between the intention of the Parliament and the conduct of the litigation. In Green, his Honour Judge Williams considered s. 45(1)(b) in its then form (to which I will shortly refer), acknowledging that it was formulated in mandatory terms. But he was of the opinion that it was for the Court to interpret the request for the reference of a question, and if it was an abuse of process in such event to refuse to refer the question. He recognized in the absence of any circumstance to justify the conclusion that the question constituted an abuse of process that the Court must, if requested, refer. His Honour, in a valuable judgment, considered many questions that might arise from a general consideration of the operation of the section. I emphasize that he chose to do so in the light of the views expressed by the Court of Appeal in Masters v. McCubbery (not then reported but now reported in [1995] VICSC 209; [1996] 1 V.R. 635) to the effect that the function and decisions of the Medical Panel under the Act must accord with the rules of natural justice and are thereby subject to judicial review and that on a proper construction of the Act the medical panels are empowered to determine mixed questions of law and fact. His Honour's reasons were in the form of review of, and expression of his opinions about, the powers of the Court generally under the relevant part of the Act. He did this by formulating questions that he deemed to be associated with the request made in the case itself by the defendant that certain medical questions be referred to a medical panel. He identified some of the questions as including (1) at what stage of the proceedings was it appropriate to refer question itself; (2) by whom and in what form should the question be formulated; (3) should the Medical Panel answer the questions untrammelled by matters of legal principle or interpretation or if not how and to what extent should the Court ensure that the appropriate principles and interpretations were explained to the Medical Panel to be applied by them. This involved his Honour in referring to Parliamentary statements at the time of the debate concerning the then Bill. He concluded that when a medical question was to be referred to a medical panel the Court was required to define and provide the relevant legal principles and interpretations, and if need be to decide the factual parameters that lie outside the scope of the medical question to be referred. He expressed the view that it was important for the Court to exercise what control it could have over the proceedings and should exercise whatever control it could over the matter of the referral of the medical questions to a panel. If not, he thought, the Court's role would be simply one of slavishly referring of questions that followed the descriptions contained in s.5(a) as to medical questions under the Act. His Honour expressed the view that the Court should determine at what stage referral should be made; the amount of evidence that needed to be heard and recorded before the questions could be formulated; how the question would be framed; what would constitute the injury for the purpose of the question and what might be done by way of curial guidance to inform the Medical Panel of relevant legal principles. He concluded that courts should decide in each case the stage at which it was appropriate to refer the medical question and should have input into the formulation of the questions to be referred. All of this, his Honour viewed as being a concomitant of the Court's power to regulate its own procedures.

57. In Austin v. Amcor Ltd (supra) Byrne, J. of this Court had to consider various procedures arising in respect of claims made under s.98 and s.98A of the then Act associated with questions concerning the Court's powers and duties to refer medical questions to a medical panel. In this case, the application was for judicial review by originating motion pursuant to Order 56 of the Supreme Court Rules. The worker was seeking compensation under s.98 of the Act (the Table of Maims) and for pain and suffering under s.98A in a proceeding brought before a Magistrates' Court in April 1997. Prior to that date the employer had given a notice that it would request the Court to refer five questions to a medical panel for its opinion pursuant to s.45. In a thorough and helpful review of the provisions of the Act, his Honour explained the way the sections there applicable operated, noting the differences between a reference under s.104, sub-s.(3) as it then was and s.45 to the effect that what was referred to a medical panel under s.45(1) was not a claim but "a medical question". His Honour was disinclined to read s.45(1) down in accordance with submissions made to him on behalf of the worker. He apparently viewed that the assistance given to a judge or Magistrate was intended to be an up-to-date expert opinion of a medical panel upon a more precisely formulated question on a medical matter. With respect to the attack upon the decision of the Magistrate to refer the questions to the Medical Panel, his Honour referred to the terms of s.45(1)(b). At that time, the former s.45(1) was as follows:

(1) Where the County Court exercises jurisdiction under this Part -

(a) the court may refer a medical question to a medical panel for an opinion; and

(b) if a party to the proceedings are requests, the court must refer a medical question to a medical panel for an opinion; and

(c) the opinion of the panel on that question shall, subject to this section, be adopted by the court as the answer to that question."

65. As will be noted from a comparison of the former s.45(1) then and s.45(1) as it applies in this case, the sub-section now provides that if a party to the proceedings requests that a medical question or questions be so referred the court must refer that medical question or those medical questions. The Magistrate in Greeves appears to me to have mistakenly proceeded on the basis that the applicable s.45(1) was that prior to the amendment effected to it by Act No. 107/97, s.21(5). In Au_stin v. Amcor_ his Honour went on to say (p.6):

" It will be recalled that the employer requested the reference. In these circumstances, s. 45(1)(b) provides that the Magistrate must make a reference to the medical panel. This is to be contrasted with its predecessor, s. 60(1), which was introduced in the Act by No. 64 of 1989 and repealed by Act No. 67 of 1992, under which the court was given a discretion to refer a medical question to a medical panel. Nevertheless, as Judge Williams points out in Green v. VWA (unreported, 16 November 1995), where a request for reference has been made, the stage of the trial at which the reference is made and the terms of the questions themselves remain for the court to determine. .... Judge Williams in Green v. VWA ... mentions also the possibility that the court might even refuse a request where the reference requested would be an abuse of process. Such an abuse might arise where the issues before the court raise no medical question. Such qualifications as may exist upon the obligation of the court to accede to a request for referral, all stem from the power and the duty of the court to control its own procedures so as to ensure that justice is done to the parties. It would be very surprising if Parliament, without the clearest statement of this intention, intended to remove from the court the power to use and mould the procedures available to it to achieve this objective and to leave these matters to the requesting party. No such statement appears in s. 45. Paragraph (a) of s. 45(1) confers on the court a general power to refer. Paragraph (b) is in these terms:

'(b) If a party to the proceedings so requests, the court must refer a medical question to a medical panel for an opinion;'

As a matter of construction there are two steps involved here. First, is the request of a party for the court to exercise its jurisdiction under s. 45(1); the second is the reference by the court of a medical question to a medical panel. Subject possibly to the case of abuse of process, the obligation of the court is to refer a medical question. It is not to refer the very medical question which the party requests. Neither is it to refer to the medical panel every question before the court which falls within the statutory definition It is consistent with this provision that it remains with the court to determine not only the appropriate time for the reference, but also what medical question should be referred and its terms."

71. In my view, neither Byrne, J. or Judge Williams expressed any doubt that, subject to the case of an abuse of process, and possibly the issue of the time of referral and the refinement of the medical question, that the Court is obliged to refer a medical question to a Panel upon request. There is no discretion to decline to refer a medical question. Byrne, J. expressed the view that there was no obligation on the Court to refer the precise medical question requested by a party, nor every question. Mr. Tracy, Q.C, who with Mr. M. Richards appeared for the appellant, strongly pressed that the amendment to s.45 effected by Act 107 of 1997 limited the power of the Court even further so that the obligation now created by the statute was for the Court to refer the precise medical question requested. This was said to arise from the language of s.45(1)(b), as amended, to the effect that the Court "must refer that medical question or those medical questions to a medical panel for an opinion". (My emphasis.) He contended that in this case the question requested to be referred was a relevant question for determination and to request its referral did not constitute an abuse of process. Thus the Magistrate had to refer it; instead he went on to decide the question for himself. Mr. O'Loghlen, Q.C, who with Mr. J. Tebbutt appeared for the respondent, argued that the question was an irrelevant question and that the decision concerning it could not aid in the disposition by the Magistrate of the case which was wholly concerned with whether or not the worker was entitled to weekly payments under the Act because of the contribution of the workplace sustained injury to his incapacity. I will return to consider these issues.

74. I deem it desirable to state what I regard my duty and function in this case to be. It is an appeal to this Court under s.109 of the Magistrates' Court Act 1989. There is committed to this Court for determination the issue of whether or not the Magistrate fell into error and as an aid in that process, there are formulated for the Court's consideration questions of law which the parties address. Whilst I do not regard the formulation of the questions as necessarily dominating the approach to resolution of the matters raised by the appeal, it is not my function in this case to review the operation of the Act in a general way nor to express unnecessary opinions as to what various sections in this Division mean. Doubtless Judge Williams in Green took the opportunity in that case to express some broad opinions as to the operation of the statute in the light of the Court's powers and procedures and to express his views by way of guidance to those working in the field. However, this Court is a superior court of record and it must approach with caution the expression of general opinions unnecessary to be expressed for the disposition of the litigation before it. The common law, including that part of it in which the construction and application of statutes is involved, customarily proceeds to develop the applicable principles on a case-by-case basis rather than pronouncements by way of general overview, which are frequently revealed by subsequent cases to be mistaken..

77. The decision in this case is concerned with whether or not with respect to the question proposed the Magistrate was entitled to answer the question himself and thereby purport to render it unnecessary for the panel to answer the question, he having supplied the answer. Many matters were raised by the respondent's counsel but it is not necessary to decide most them. Thus, it is not necessary for me to decide whether or not the Court can decline to refer any irrelevant question to a medical panel because .in my view. the question in this case was a relevant one, referral of which could not constitute an abuse of process. The Magistrates' Court was in possession of all of the medical reports and some evidence. At the very least at that point of time, a reference of the medical question might have been made without further deferral, and certainly without the necessity for deciding which medical opinion was preferred. The circumstances of the case are such that it is not an appropriate vehicle for the expression of wide opinions. There would be little with which I would disagree of the views expressed by Byrne, J., although the issue of whether or not a court has to refer the precise medical question which a party requests would now have to be determined having regard to the amendments effected by the 1997 Act. Broadly speaking, so long as the substance of the issue being referred was articulated by the question, minor amendments would be permissible.

80. I note the statement made by the Minister for Finance, Mr. Hallam, on the second reading speech on the Accident Compensation (Miscellaneous Amendment) Bill (the Bill for the Act 107/1997) on 9th December 1997 made some references to dispute resolution. At Hansard No. 7 for 9th, 10th and 11th December 1997, at 1007, the Minister stated:

"7. A number of changes will be made to improve the efficiency of the dispute resolution process. Opinions of the medical panels will be made final and conclusive irrespective by whom and when the medical question was referred and must be adopted and applied by the courts and all other decision makers in the scheme is the answer to the medical question."

The Government considers that doctors, not lawyers, are the best qualified people to offer medical opinions. Currently the opinion of a medical panel on a medical question is binding only when a court has referred a medical question to the panel. This gives rise to 'duelling experts', which becomes an obstacle to the resolution of disputes, and drives up costs unnecessarily.

Therefore, in line with the practice in other jurisdictions, the Act will require that the opinion of a medical panel on a medical question be final and conclusive irrespective of by whom and when the medical question was referred and must be adopted by the courts and all other decision-makers in the scheme as the answer to that question."

88. There was no specific reference by the Minister to suggest that the tightening up process excluded power in the court to refine or remodel the question, nor was anything said that when a party to a proceeding requested that a specific question be referred that that specific question in that form, and no other form, must be referred. The argument advanced is that the use of the language in the amendment meant that the medical question put up must be referred so long as it did not constitute an abuse of process. The power and responsibility of the Court to give the final decision in the case remains intact, although the opinion of the medical panel on the medical question must be adopted as the answer to the question. Whilst the medical question which must be referred is the medical question which a party to a proceeding requests for referral, it nevertheless must be a medical question which answers the description given in s.5 of "medical question", approached in a practical and meaningful way. Mr. Tracy's submission was that the only exception to a non-discretionary obligation to refer was abuse of process. It may be doubted whether the limitation is so narrow, unless abuse of process (which I do not attempt to define) is more widely construed. There is still nothing in the Act which would indicate any intention to strip the Court of all control and input. It would not be in the interests of any party or the Court, including appellate courts, that any question devised by a party must be automatically sent off to a medical panel. Reference must come from the Court. It is not referred from the party direct. It is the Court's duty to manage the exercise of its jurisdiction. The jurisdiction has not been diluted. I would not disagree that a question that is addressed to a wholly irrelevant matter or issue, one which was so peripherally connected with the medical legal issues that it could not be reasonably thought that the answer to it could aid in any way the orderly and just disposition of the claim, might be regarded as an abuse of process. Counsel for the insurer's submission appeared to accept this. It must still be a question connected with the exercise of jurisdiction, that is, connected with an application within the jurisdiction in a particular case. In the course of argument counsel gave examples of questions being requested to be referred that were unconnected with the sphere of dispute in a case: e.g. a question concerning a Table of Maims issue, in a case for weekly payments. In order to be a medical question within the meaning of the Act under s.45, it must be a question connected with the exercise by the Court of the jurisdiction under that part of the Act. If the Court concluded that the answer to the question requested was irrelevant to the exercise of its jurisdiction in the disposition of the case, there must be a powerful argument to the effect that the question is not a medical question within the meaning of the Act.

91. The issue in this case is relatively narrow because the Magistrate embarked upon the task of deciding the issues of fact and, having decided them against the insurer, concluded that it was thereby irrelevant to refer any question. He had expressed some reservations about the question, implying that it might be fine-tuned. But he did not invite any further modification of it. As the passage from the Magistrate's reasons reproduced in paragraph 8 indicate, he decided which of the differing legal opinions he preferred and, having decided that against the insurer and in favour of the worker by rejecting Mr. Guest's opinion, the Magistrate declared the question to be irrelevant and refused to refer it. Thus the question was not referred because the Magistrate answered it for himself, by weighing up the evidence both lay and medical and by concluding that Mr. Guest's medical opinion as expressed in his report did not accord with common experience and common sense. Thus he evaluated the evidence for himself and decided the issue without complying with the s.45 requirement. This appears to be wholly contrary to this part of the Act, whether under the old s.45(1) or the amended which was applicable, and contrary to its intention. Moreover it involved hearing the evidence completely to enable him to decide whether the question was relevant or what the answer was. This remarkable feat of pulling oneself up by one's own judicial bootstraps, so to speak, renders the Act's requirements nugatory, and effectively sidelined and circumvented the intended process - that the Medical Panel will decide the medical question, give its opinion which must then be applied by the Court, a part of its decision-making function. Whether the legislative scheme is desirable, just and cost effective (which was apparently one of the main reasons for it) is not to the point. The process of claims in respect to work-related injuries is a creature of statute, the work of the Parliament. Whatever else might be said, it cannot be a correct application of the statute to so mould the judicial process that the Court may hear all the evidence, reach a conclusion which answers the very question, and then conclude that that unlawful and unauthorised process makes referral irrelevant. Without attempting to define the boundaries of the Court's exercise of power to mould the referral of a question (that is, with regard to the matters already referred to by me), it is not to be doubted that once a s.45 request is made, the Court may not lawfully hear all of the evidence and answer the question for itself. It would be rare that the Court would find it necessary to hear much evidence at all in order to make the referral. It would ordinarily be self-evident, once the matrix of facts had been explained or understood from the written material, whether the question was such that it was material and relevant that the answer be obtained to enable the Court to exercise its conferred jurisdiction. The charade of trying the case, deciding it on the facts and then declaring that it was unnecessary and therefore irrelevant to refer the question to the Medical Panel, cannot be countenanced. Save in the case in which there is or are jurisdictional facts in issue (e.g. whether the applicant was in employment or whether any injury-producing event had happened), the need to explore the circumstances on which the question is focussed is not likely to be commonplace.

94. The appellant specifically submitted that the Magistrate was bound to refer the question once the request was made under s.45(1) of the Act. It was submitted that the Magistrate was not entitled to refuse that request, and had no discretion to do so, on the ground of irrelevance, in circumstances which only became possible for him to so determine after he had effectively answered the very question which he sought to refer to the panel. It was put that at the time the request was made, the question was plainly relevant. Thus, it was put the effect of the decision was to undermine the statutory scheme which contemplates that the Court will be bound to apply the answer given by medical panels on medical questions.

97. The key feature of the respondent's submissions clearly involved side-stepping the Magistrate's method of arriving at the conclusion that the question should not be referred on the grounds of its irrelevance. The respondent's submission was that given the pleadings and the circumstances, the question was always irrelevant and the facts did not need to be decided in order to reach that conclusion. Thus, the respondent was really seeking to uphold the Magistrate's decision on a basis which the Magistrate himself did not adopt or follow. This is a permissible course.

100. The appellant's submission was that at all times the issue was whether the injury was an exacerbation of the workplace injury or a different and unconnected injury arising in a non-compensable setting, and not contributed to by the respondent's employment. It was argued that the incapacity claimed for was due to a fresh and different injury or spinal canal stenosis of congenital origin and no other cause, i.e. not work-contributed. The respondent contended that the question for the Magistrates' Court was (1) whether since 10th June 1996 the plaintiff was incapacitated for work and, if so, (2) whether that incapacity resulted from or was materially contributed to by the injuries sustained in 1996. Thus, it was put that the appellant's case misconceives the position. It was contended that the home incident and it sequelae were not an issue; the issue was whether the respondent's incapacity resulted from or was materially contributed to by the injuries sustained in the 1996 work incident. It was argued that the question formulated was irrelevant to the plaintiff's claim because it was not directed to the injuries sustained in the workplace accident.

103. The submission thus expressed appears to ignore paragraphs 8 to 10 of the plaintiff's statement of claim which specifically plead the claim made arising out of the home accident. There is no doubt that the plaintiff has pleaded the making of the second claim. It was put to me, and the Magistrate found, that the respondent made that claim on the insurer at the insurer's insistence. It is not clear to me how the worker was "compelled" to make a claim or that the insurer could insist that one be made, if the worker was intending only to make a claim for incapacity arising from the 1996 accident. It seems to me that it is more likely, since the plaintiff had continued to work (albeit with some modification of the type of work he did) a five-day week from no more than a month after the 1996 accident to the home incident, that there was bound to be some issue as to whether the incapacity which was manifested symptomatically after March 1997 had been contributed to by the 1996 incident at all. Although the plaintiff had increasing pain and disability from the 1996 event, on his own case his incapacity for work manifested itself from May 1997 on.

106. It may be that the home injury which occurred, admittedly non-compensable, resulted from or was connected with, or was materially contributed to by the 1996 employment. Three doctors appeared to say so and the other denied it. What is known is that the Magistrate took in the evidence and acted on it instead of referring it. That dispute, in my judgment, cannot be resolved by the Court because that dispute must be characterized as comprising a medical question. Since paragraphs 8, 9 and 10 were in the statement of claim, then the question asked was not misdirected or irrelevant, on its face being directed to the question of whether the worker's employment was a significant contributing factor to the 1997 incapacity claimed for. I should say that it was never in dispute that the 1996 injury created an incapacity that was materially contributed to by the respondent's employment. Mr. O'Loghlen's argument was that the question as ultimately designed was not directed to whether or not the respondent was incapacitated for work. This is clearly true because it was not disputed by Guest that he was incapacitated. What was being disputed was whether it was work-related, Guest apparently being of the view it was due to congenital spinal stenosis. But Mr. O'Loghlen's submission was that the question was not directed to whether the current incapacity resulted from or was materially contributed to by the employment in June 1996. Literally speaking, this is so but in reality it also raised the other side of the same issue viz. whether the 1997 and 1998 incapacity was due or contributed to by the injury caused by his employment in 1996 or whether it was solely due to the spinal stenosis which the home episode made symptomatic. Once the Panel was requested to approach the referred question in that form, with full knowledge of the background circumstances, the subject matter of the question could not be so simply confined as the respondent argues. That argument seems to me to be insupportable because the question asked did, in the context, draw in the issue which the respondent contends was the issue which ought to have been specifically encapsulated in the question. This involves, it seems to me, accepting that the question may have been better framed and I agree that it might have been. For example, it may have been expressed thus "Has the present and ongoing incapacity resulted from or been contributed to by the 1996 employment or is it due to congenital spinal stenosis or some other cause?" But even without the final part of that question, it seems to me certain that with respect to the question that was formulated and requested to be referred to a panel, the panel was bound to have addressed the realities posed by the question, despite its limitations. This is because the question posed was really the mirror image of the issue at stake, did the 1996 employment incident contribute to the injury and incapacity for which he claimed from 1997. The respondent appeared to concede that there might have been an issue as to whether or not the trouser incident was a 'novus actus interveniens' but argued that question was too narrow to encompass that argument. Nevertheless, in my view, the question must always be reasonably interpreted having regard to the issues raised by the material, particularly the medical opinions. This question did raise for answer the main issue - was the worker's employment a contributing factor to the incapacity claimed for or was it not?

109. It is clear that the Magistrate did not approach the issue in an appropriate way. He was not referred to the relevant provision of the amended s.45(1). For a reason not really explained, but possibly due to a strong view formed on reading the documents that Mr. Guest's opinion was wrong and never sworn to, he decided to resolve the medical conflict. As I have said, s.45 did not permit that course, given the circumstances of this case. Moreover, the respondent's submission in this Court was in some respects misleading. The formulated question was not whether the 1997 home accident caused or contributed to the worker's incapacity. Since that was an incident which occurred at home and was clearly an event outside employment, the employment could not have contributed to that event and injury, if it was a new injury. The question was concerned with "the injury for which he claimed compensation" in the 23rd May claim form and whether employment contributed to that injury. The injury claimed for was "prolapsed disc: spinal stenosis: lower back". In the context this description did raise the issue in dispute namely whether the employment contributed to the incapacity or it was a congenital condition incapacity. Moreover, the 23rd May claim form also claimed that the injury/condition was a "relapse of previously reported injury" which I would construe as a claim for exacerbation of the 1996 injury. If it was, it was a matter in issue, as Guest denied it. The submission of the respondent that whether the question as formulated was answered affirmatively or negatively the answer was irrelevant to the issue before the Court, seems to me to ignore the realities. In dealing with the formulated question the Panel was certain to have considered whether the present incapacity resulted from or was materially contributed to by the 1996 incident. As I say, the pleading appeared to raise the issue and in any event Mr. Guest's opinion, fairly read, was that there was no relationship between present incapacity and the 1996 incident. The other doctors, of course, disagreed and that was a disputed issue which the question was directed at.

112. Accordingly I reach the conclusion that the question in this case was not irrelevant on a proper construction of it and it could not be decided by the Court in advance. The Magistrate was obliged to refer it. The question did not fall into the as yet ill-defined category of medical questions which Court may decline to refer on the basis that to do so would be an abuse of process or seek an answer to a question which is not a medical question within the meaning of the Act, or is a question the answer to which would be irrelevant to the discharge of the Court's duties in the exercise of its jurisdiction. Thus in my view the appeal must succeed. The questions were merely the framework on which the arguments were advanced and no counsel made specific submissions as to how they should be answered. My view is that they should be answered as follows: