Plaintiff v Defendants

1 Mr Blacker commenced employment with the first defendant (Boss Trailers) as a labourer on 26 August 2010. His duties involved mixing mortar, carrying bags of cement and carrying buckets of mortar, which sometimes weighed up to 40 kilograms. Almost immediately after he started that work, Mr Blacker developed symptoms in both hands. A WorkCover claim form lodged by Mr Blacker in which the injury was described as 'tenosynovitis, right wrist' was accepted by the authorised insurer for Boss Trailers, and benefits were paid pursuant to the Accident Compensation Act 1985 (the Act). Mr Blacker has not worked since September 2010, and continues to complain of symptoms affecting both wrists which have at times attracted the diagnosis of carpal tunnel syndrome. The authorised insurer terminated Mr Blacker's weekly payments on 2 March 2013. Mr Blacker claims to have an ongoing entitlement to weekly payments of compensation pursuant to the provisions of the Act because, he says, the condition of both arms, and an associated psychological condition, leave him with no current work capacity.

2 A proceeding was issued by Mr Blacker in the Magistrates' Court claiming ongoing entitlement to compensation under the Act. In that proceeding, questions were referred to a medical panel for its opinion. On 16 September 2016, answering those questions, a medical panel determined that, while Mr Blacker may have suffered from symptoms of a minor and temporary strain of the wrists caused by his employment, such condition had resolved; the persisting symptoms affecting Mr Blacker's left and right arms were a consequence of pre-existing constitutional diabetes mellitus; and Mr Blacker was not suffering injury to his mental or behavioural system consequential on a work injury to his left or right arms. The opinion of a panel on any question referred to it must be adopted by a court as final and conclusive. The effect of the decision by the panel is that Mr Blacker has no ongoing entitlement to compensation under the Act. Mr Blacker has no right to appeal the decision of the panel on its merits, but does seek judicial review of the decision on two grounds.

3 At issue in this proceeding is whether the panel fell into jurisdictional error by failing to take into account the results of two nerve conduction studies reported as showing evidence of carpal tunnel syndrome, or alternatively whether the reasons of the panel were inadequate because the panel failed to explain why it disregarded those nerve conduction studies.

4 The panel, comprised of the second to seventh defendants, did not appear at the trial of the proceeding, and will abide the proceeding's outcome.

5 Pursuant to rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), Mr Blacker had 60 days from 16 September 2016 to commence this proceeding. The proceeding was commenced one day late, on 16 November. Mr Blacker has applied to extend the time to commence the proceeding, pursuant to rule 46.02(3). He relies on the 'special circumstance' that genuine attempt was made to file the proceeding within time, which was unsuccessful in unfortunate circumstances not reflecting fault on the part of Mr Blacker or his lawyers. Boss Trailers consents to the extension of time being granted. I will order that the time for filing the originating motion be extended to 16 November 2016.

6 Mr Blacker was diagnosed with insulin dependent diabetes mellitus in 1993 at the age of 13 years. There is no history of Mr Blacker suffering carpal tunnel-type symptoms or other neurological symptoms affecting the upper limbs before September 2010. Mr Blacker had a history of hypoglycaemic attacks, including five seizures throughout 2014.

7 Mr Blacker left school during year 11 and worked intermittently as a bricklayer and labourer. He did not work for a period of approximately two years before commencing employment with Boss Trailers on 26 August 2010. As stated, his work with Boss Trailers involved mixing mortar by hand and carrying bags of cement weighing 15 kilograms and buckets of mortar weighing up to 40 kilograms.

8 On 3 September 2010 Mr Blacker attended with GP, Dr Feda Eqbal, complaining of pain and pins and needles in his right hand and forearm associated with repetitive work duties. Mr Blacker made short-lived attempts to return to work on 6 September and 9 September, but has not worked since 14 September 2010. On 15 September he lodged a workers injury claim form with Boss Trailers. That claim was accepted and benefits were paid pursuant to the Act.

9 In late 2010 Mr Blacker's GP referred him to Dr Michael Poon to investigate the possibility that Mr Blacker was suffering bilateral carpal tunnel syndrome. Dr Poon reported the result of nerve conduction studies performed on 10 February 2011 as follows:

Conclusion: There is electrophysiological evidence of BILATERAL wrist median nerve lesions (carpal tunnel syndrome) with bilateral delayed median sensory potentials.

Mr Blacker was then referred to surgeon, Professor Nottle, who performed a right carpal tunnel release on 30 September 2011. In December 2011 Mr Blacker was still complaining of pain in the right wrist and numbness in the right hand. He was referred back to Dr Poon for a repeat nerve conduction study on the right. The second study was performed on 10 January 2012, and was reported by Dr Poon as follows:

Conclusion: There is electrophysiological evidence of a mild right wrist median nerve lesion (carpal tunnel syndrome) with delayed median sensory potential. The findings are unchanged from the previous study performed on 10/2/11.

The GP's clinical notes of March 2012 indicates Mr Blacker had been referred back to Professor Nottle. There is no report in the materials from Professor Nottle. The report of Dr Eqbal to the Accident Compensation Conciliation Service of 18 May 2012 records:

I believe Mr Blacker should get a second opinion [from] another surgeon.

It is not clear from the materials whether Mr Blacker saw another treating surgeon.

10 Reports prepared by a number of medico-legal specialists were part of the referral materials to the panel. Those specialists were divided as to diagnosis.

11 On 23 November 2012 the authorised insurer of Boss Trailers gave notice to Mr Blacker of termination of his weekly payments of compensation from 2 March 2013. As a consequence proceedings were issued for Mr Blacker in the Magistrates' Court seeking a declaration that he was entitled to weekly payments of compensation and medical expenses pursuant to ss 93 and 99 of the Act. Subsequently a series of questions were referred to a medical panel for opinion. The referral was accompanied by a series of documents, including a statement of issues and agreed facts, submissions for Mr Blacker and for Boss Trailers, medical reports from various treating and medico-legal doctors, the clinical notes of the Westgate Medical Centre and the reports of nerve conduction studies performed on 10 February 2011 and 10 January 2012.

12 Five questions were referred to the panel for opinion. The panel provided a certificate of opinion and reasons for opinion dated 16 September 2016. The questions referred to the panel, and the panel's answers to those questions are as follows:

Question 1 What is the nature of the Plaintiff's condition relevant to the claimed injuries set out in Paragraph 4 of the Amended Statement of Claim namely:

1. Left upper extremity, in particular the left shoulder and left arm;
2. Right upper extremity, in particular the right arm and right wrist; and

1. Consequential injury to his mental and behavioural system.

Answer: In the panel's opinion the Plaintiff is suffering from persisting symptoms affecting the left upper extremity and right upper extremity as a consequence of pre-existing constitutional diabetes mellitus, and is not suffering from any consequential injury to his mental and behavioural system.

Question 2 What is the extent to which any psychiatric injury identified in response to question 1 results from or is materially contributed to by any physical injury identified at question 1?

Answer: Not applicable.

Question 3 (a) From 2 March 2013 to the date of the medical examination;

(b) Currently-

Did/does the Plaintiff have no current work capacity?

Answer: The Panel is of the opinion that from 2 March 2013 to the date of the Medical Panel examination and currently, the Plaintiff had, and has, no present inability arising from an injury, such that he is not able to return to work in his pre-injury employment or in suitable employment, and any incapacity for work does not result from and is not materially contributed to by any claimed injury.

Question 4 If yes to Question 3(b) is the Plaintiff's incapacity likely to continue indefinitely?

Answer: Not applicable.

Question 5 If yes to question 4, does the Plaintiff's current incapacity result from, or is it materially contributed to by, any and if so which of the alleged injuries?

Answer: Not applicable.

13 Section 313(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 provides that the opinion of the medical panel on a question referred to it must be adopted by a court as final and conclusive. As stated, the effect of the panel's opinion is that Mr Blacker has no ongoing entitlement to weekly payments of compensation or medical expenses.

14 The reasons of the panel included the following:

The Panel formed its Opinion with regard to -

a) the documents and information referred to in Enclosure A; and

1. the history provided by the worker and the examination findings elicited by the Panel at the abovementioned examinations of the worker.

... He said that nerve conduction studies were undertaken on 10 February 2011, with a diagnosis of bilateral carpal tunnel syndrome being made and he was referred for an opinion to a general surgeon. He said that bilateral carpal tunnel releases were recommended.

He said he underwent right carpal tunnel release surgery on 30 September 2011. ... He said that there was no improvement in the symptoms in his right hand following the procedure. He said that he was reluctant to proceed with the proposed surgery on the left wrist.

He said that repeat nerve conduction studies were undertaken on 10 January 2012. The Panel noted that the findings were reported to be unchanged from the previous study, but that a diagnosis of "a mild right median nerve lesion" was made.

...

He currently complains of persisting pain in the volar aspect of the left and right wrist, which varies in intensity and radiates proximally. He also complains of numbness and pins and needles in the thumb, index and middle fingers, as well as sometimes in the ring and little fingers, telling the Panel that "I know they are not supposed to be involved". Current medications include: Insulin, Seroquel, Valdoxan, and Pristiq. He said he is not taking any analgesic medications.

...

In relation to his medical history the worker told the Panel that he was diagnosed with insulin-dependent diabetes mellitus in 1993. ...

... Examination of the hands revealed a normal colour, temperature and sweating and no thenar or hypothenar muscle wasting. There was a 3 cm surgical scar on the right wrist, which was well-healed, soft and non-adherent to underlying tissues. Sensory examination of the hands revealed variable and inconsistent sensory changes on the assessment light touch and pin prick, which were not consistent with any persisting medial nerve compression in either hand. Power in both hands was normal. Phalen's test was negative, with sensory changes reported in the distribution of the radial, rather than median nerves bilaterally. Tinel's sign was negative bilaterally, with a retrograde response and the median nerve compression test was negative bilaterally.

...

The Panel took account of the circumstances of the onset of the worker's symptoms, only a few days after he commenced employment with the Defendant, the nature of the work duties that he was undertaking, the findings on nerve conductions studies and his response to surgery and the current findings on physical examination. Based on this information, the Panel concluded that the worker may have suffered from symptoms of a minor and temporary soft tissue strain of the wrists, but that any such condition has since resolved. The current Panel does not consider that the worker's current complaints can be explained on the basis of a persisting soft tissue injury, carpal tunnel syndrome, or the effects of carpal tunnel surgery. The Panel concluded that the worker's current symptoms are now solely attributable to his pre-existing condition of Diabetes Mellitus and are no longer attributable to any claimed injury.

The Panel therefore concluded that the worker is suffering from persisting symptoms affecting the left upper extremity and right upper extremity as a consequence of pre-existing constitutional diabetes mellitus.

...

The Panel noted that the worker experienced the onset of symptoms soon after commencing work with the employer on a background of pre-existing Diabetes Mellitus. As noted above the Panel considered that the worker suffered from symptoms of a minor and temporary soft tissue strain of the wrists, but that any such condition resolved soon after the worker ceased work and any on-going symptoms are attributable to the worker's constitutional Diabetes Mellitus. As the Panel concluded that the worker's soft tissue injury resolved soon after he ceased work and the worker is no longer suffering from any physical or mental condition attributable to any of the claimed injuries the Panel concluded that from 2 March 2013 to the date of the Medical Panel examination and currently, the worker had, and has, no present inability arising from an injury, such that he is not able to return to work in his pre-injury employment or in suitable employment and any incapacity for work does not result from and is not materially contributed to by any claimed injury.

15 Rule 56.01 of the Rules empowers the court to grant an order in the nature of certiorari by way of either judgment or order. Such relief is available on a number of grounds, including jurisdictional error and 'error of law on the face of the record'.[1]

16 Mr Blacker relies on the following grounds for review of the panel opinion:

1. The medical panel failed to take into account matters which it was bound by law to take into account.

The medical panel failed to take into account the nerve conduction studies undertaken on 10 February 2011 and 10 January 2012 which each state that "there is electrophysiological evidence of bilateral wrist median nerve lesions (carpal tunnel syndrome) with bilateral delayed median sensory potentials".

1. The medical panel had a statutory obligation to provide reasons for its decision pursuant to section 68(2) of the Accident Compensation Act 1985 or alternatively section 313(2) of the [Workplace Injury Rehabilitation and Compensation Act 2013]. The Medical Panel's Reasons for Opinion are inadequate to satisfy the statutory obligation in that they do not explain why the Medical Panel disregarded the electrophysiological evidence provided by the nerve conduction studies undertaken on the plaintiff on 10 February 2011 and 10 January 2012.

17 The panel will have committed jurisdictional error if it failed to take into account a matter it was bound to consider, in circumstances where that failure materially affected the decision itself.[2] In assessing whether a panel has failed to take into account a relevant consideration there must be particular care to avoid crossing the line between judicial review and merits review to 'misconstrue dubious findings of fact or questionable weight being given to particular evidence' as jurisdictional error.[3] In Ryan Neave JA, having confirmed that the factors which a tribunal is bound to consider are determined by construing the legislation conferring power, added:[4]

60. Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker's answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker's answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.

61. A court must proceed carefully when reviewing an administrative decision on the ground that the decision-maker did not have regard to a relevant consideration "lest it exceed its supervisory role by reviewing the decision on its merits". As Kyrou J (as he was then) observed in Milwain v Sim, when reviewing a Medical Panel decision which was ultimately held to have ignored relevant considerations:

[T]his Court must be careful not to cross the line between judicial review and merits review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.

18 A panel is entitled to accord a mandatory consideration little or no weight as long as it can be reasonably inferred that in doing so the panel engaged in an 'active intellectual process' of consideration of matters.[5]

... explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

20 In written submissions Mr Blacker put his case on jurisdictional error as follows:

The nerve studies referred to "electrophysiological evidence" of carpal tunnel syndrome. The plaintiff submits that that facet of the studies is the central substance of each of them, and a matter which the panel was bound to take into account in the requisite sense. They were not opinions of other doctors, but physical measurements of the conductivity of nerves. The panel was required to take them into consideration in line with Ryan, and it failed to do so.

This submission was further developed orally. The nerve conduction studies, it was submitted, were evidence of the fact of wrist median nerve lesions. Although the reports of the nerve conduction study results was evidence of an expert, Dr Poon, it was not opinion evidence, but was evidence of fact derived from the application of Dr Poon's specialised knowledge to the nerve conduction study figures.

21 It was submitted the nerve conduction studies were central to the issue to be determined by the panel, that is, the nature of the injury or condition from which Mr Blacker suffered. Mr Blacker submitted that 'the only objectively measured evidence' of the nerve responses was Dr Poon's report of the nerve conduction studies, which were objective evidence of median nerve lesions affecting both wrists. It was submitted it was necessary that the medical panel grapple with this objective evidence. Failure to do so was a jurisdictional error. Whilst the panel mentioned the nerve conduction studies in its reasons, there is nothing in the reasons to suggest the panel engaged in an active intellectual consideration of the nerve conduction studies, and it should not be inferred the panel did so. Alternatively, if it is to be inferred the panel did have sufficient regard to the nerve conduction studies then the reasons are inadequate because it is not possible for Mr Blacker to understand why it is the panel did not, consistent with those studies, conclude that he suffered carpal tunnel syndrome.

22 Boss Trailers noted that it was the obligation of the panel to form and 'give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise'.[7] The panel referred to the nerve conduction studies on a number of occasions. It should be inferred that the panel had regard to the studies, including the 'electrophysiological evidence' inherent in the studies. The attempt by Mr Blacker to place the nerve conduction studies in a special category of evidence was misconceived. The conclusion of the panel that Mr Blacker did not have work-related carpal tunnel syndrome was unexceptional. A number of the medico-legal specialists whose reports were included in the material provided to the panel had reached the same conclusion.

23 Boss Trailers submitted the nerve conduction study results were evidence of marginal delay in the operation of the median nerves when measurements were undertaken in early 2011 and early 2012. That was evidence to be considered by the panel, along with other material before it, the history it obtained, and the clinical examination it undertook. Having considered relevant material, the panel appropriately applied its own expertise to reach a conclusion as to the nature of Mr Blacker's condition relevant to the claimed injuries. It was submitted that the reasons sufficiently disclose the nerve conduction studies were considered by the panel as part of that evaluative process.

24 Dr Poon reported the nerve conduction studies as demonstrating delayed median sensory potential. He concluded that the results of the nerve conduction studies were electrophysiological evidence of wrist median nerve lesions (carpal tunnel syndrome). In other words, Dr Poon concluded the study results were consistent with the existence of a wrist median nerve lesion or carpal tunnel syndrome.

25 The doctors whose reports were part of the referral material to the medical panel expressed differing opinions as to the nature and cause of Mr Blacker's wrist symptoms. In May 2012, treating GP, Dr Eqbal, expressed the view that Mr Blacker was suffering work-related right hand carpal tunnel.

26 Rheumatologist, Dr Fraser, in a report of October 2010 to the authorised insurer, agreed the diagnosis was bilateral carpal tunnel syndrome, and stated the precipitating factor was work-related flexor tenosynovitis. That diagnosis was made by Dr Fraser prior to the nerve conduction studies, and was based on positive findings on clinical examination. In a report of March 2016, orthopaedic surgeon, Associate Professor Love, recorded the opinion Mr Blacker suffered bilateral carpal tunnel syndrome, which on the history obtained was related to employment. Associate Professor Love records few signs on clinical examination, with the greatest loss of sensation being that affecting the little finger of the right hand, that is in the ulnar rather than median nerve distribution.

27 A second rheumatologist, Dr Kostos, who reported initially in February 2012 and provided two brief addendum reports in March and May 2012, stated he did not believe the diagnosis of Mr Blacker's complaints was carpal tunnel syndrome, and recommended review by a neurologist. On clinical examination Dr Kostos found Phalen's test positive bilaterally, and Tinel's test positive on the right only. In a lengthy report dated April 2012, neurologist Dr Roberts analysed and reported on the nerve conduction studies performed by Dr Poon, and recorded observations and opinions including the following:

The worker has recurrent numbness in his hands and forearm which does not fit well with any particular anatomical distribution. Specifically the symptoms, while they have a pattern suggestive of carpal tunnel syndromes, do not seem to be related to carpal tunnel syndromes. The sensory disturbance in the forearms is not explained by compression of the median nerves at the wrist and the weakness which is present appears to be non-organic.

He had nerve conduction studies performed by Dr Michael Poon on 10 February 2011. These were accurately reported as showing bilateral median neuropathies consistent with carpal tunnel syndrome with bilateral delayed median sensory potentials. Review of these results confirms those findings, but the abnormalities have been very minor. It is not unusual to see this type of abnormality in someone who has worked as a bricklayer or done heavy manual work without necessarily having symptoms of carpal tunnel syndrome.

Dr Roberts noted Mr Blacker subsequently had right carpal tunnel surgery performed, but that his symptoms persisted, and repeat nerve conduction studies on the right showed no change from the earlier studies. Dr Roberts continued:

On review of the nerve conduction studies, digital sensory action potentials have been recorded from the median and ulnar nerves initially bilaterally and more recently on the right side and a radial sensory action potential was recorded on both occasions. These were normal and there was no evidence therefore of a diabetic neuropathy. Diabetic neuropathies most commonly are length dependent sensory motor neuropathies worse in the lower extremities than the upper extremities and so this type of presentation would be atypical for a diabetic neuropathy. However, people with diabetic neuropathy are more prone to the development of carpal tunnel syndromes. The abnormal findings on the nerve conduction studies are minimal and while they are consistent with very mild carpal tunnel syndromes they are not in themselves diagnostic and they do not correlate well with the clinical picture.

28 Finally, rheumatologist, Dr Karna, in a report of August 2013, stated that clinical examination at that time 'in no way indicated persisting carpal tunnel syndrome', noting that provocative manoeuvres for carpal tunnel syndrome were negative, sensory changes were not in the median nerve distribution and there was no evident weakness. Dr Karna concluded that there were no current clinical features of bilateral carpal tunnel syndrome.

29 In September 2012, a previous panel concluded Mr Blacker was suffering from symptoms of carpal tunnel syndrome in the setting of type 1 diabetes mellitus, relevant to the claimed injury. On clinical examination the September 2012 panel found changes in sensation in the median nerve distribution and noted its conclusion was reached despite the atypical history and lack of benefit following right carpal tunnel surgery. In November 2013, a second panel 'was unable to identify any objective clinical evidence or verifiable clinical signs of ongoing injury to either hand or digits', concluding 'that any carpal tunnel syndrome had resolved over time and there is now no longer any physical medical condition of the worker's hands or digits, relevant to the claimed injury.'

30 I pause at this point to observe that with the possible exception of Associate Professor Love, the only clinical examinations recording positive signs consistent with compression of the median nerve in Mr Blacker's wrists are those of Dr Fraser in October 2010 and Dr Kostos in February 2012.

31 The examination conducted by the panel on 23 August 2016 revealed no muscle wasting, variable and inconsistent sensory changes which the panel concluded were not consistent with any persisting medial nerve compression in either hand, normal power in both hands, negative Phalen's test with sensory changes in the distribution of the radial rather than medial nerve bilaterally, negative Tinel's sign bilaterally and negative median nerve compression test bilaterally.

32 On the referral material, the history it took and its examination of Mr Blacker, the medical panel reasoned as follows:

(a) Mr Blacker may have suffered from symptoms of a minor and temporary soft tissue strain of the wrists in the course of his work for Boss Trailers in August and September 2010.

(b) Any soft tissue strain of the wrists suffered by Mr Blacker resolved soon after he ceased work.

(c) The current complaints by Mr Blacker cannot be explained on the basis of a persisting soft tissue injury, carpal tunnel syndrome, or the effects of carpal tunnel surgery.

(d) Mr Blacker's current symptoms are now solely attributable to Mr Blacker's pre-existing diabetes mellitus.

(e) Mr Blacker's current symptoms are no longer attributable to any claimed injury.

(f) Since 2 March 2013 Mr Blacker has had no incapacity for work resulting from or materially contributed to by any claimed injury.

33 The panel was cognisant of the nerve conduction studies and said it had regard to them. Early in its reasons the panel stated it formed its opinion with regard to all of the referral material, which included the nerve conduction studies. Setting out a chronological history of Mr Blacker's condition and treatment, the panel specifically referred to the reported results of each nerve conduction study. In the analysis section of the reasons the panel stated it took into account the circumstances of onset of Mr Blacker's symptoms, the work duties he was undertaking, the findings on nerve conduction study, Mr Blacker's response to surgery and current findings on clinical examination.

34 Central to Mr Blacker's submissions was the elevation of the nerve conduction study results to a special position of importance, treating those results as the only objective evidence of the operation of the median nerves at the wrists, therefore requiring that the panel 'grapple with' the study results in order to answer the questions posed. It was submitted that the lack of analysis of the nerve conduction studies in the panel reasons must either lead to the inference that the panel failed to have regard to the nerve conduction study results, or to the conclusion that the panel failed to explain why it disregarded those results, and in either case the panel was in error.

35 The panel had available to it a great deal of material, some of it objective evidence, such as the study results, the failure to respond to surgical carpal tunnel release on the right, and the result of clinical examination by various doctors and the previous panels, and the results of its own physical examination of Mr Blacker. The panel also had the history given by Mr Blacker and subjective complaints made by him from time to time. The weight to be given to the nerve conduction studies, as with other evidence or matters before it, was for the panel to assess.[8]

36 The panel undertook a comprehensive examination and found no evidence of median nerve compression or carpal tunnel syndrome. That in itself was unsurprising. With the possible exception of Associate Professor Love, no other examiner had observed objective evidence of median nerve compression or carpal tunnel syndrome in the period since early 2013. Mr Blacker had suffered diabetes mellitus since he was 13. He did not work for about two years before commencing with Boss Trailers. Within days of starting that work, Mr Blacker developed the symptoms affecting his hands and wrists. The right wrist symptoms were unresponsive to decompression surgery. The nerve conduction study results were unchanged by the surgery. As Dr Roberts said, the nerve conduction study results are not diagnostic. These were all matters the panel took into account in providing its opinion in answer to the referral questions. The panel said repeatedly that it had regard to the nerve conduction study results. There is no basis to infer that it did not. Mr Blacker has failed to establish jurisdictional error.

37 The panel reasoned that Mr Blacker may have suffered a minor and temporary soft tissue strain to his wrists in the course of his work with Boss Trailers, that any soft tissue strain resolved soon after Mr Blacker ceased work, and that the current complaints cannot be explained on the basis of any persisting soft tissue injury, carpal tunnel syndrome or the effects of carpal tunnel surgery. Implicit in the panel's findings is a conclusion that the only work injury from which Mr Blacker may have suffered was a soft tissue strain to his wrists which resolved soon after Mr Blacker ceased work. Mr Blacker complains that the step missing from the statement of reasons is an explanation for the panel disregarding the nerve conduction study results. In written submissions, Mr Blacker summarised his position as follows:

While the High Court also held in Wingfoot that a medical panel was not obliged to explain why it disagreed with different medical opinions that had been provided to it, the Plaintiff submits that the same cannot be said of measurable evidence. The panel's job is to form its own opinion, and to explain rationally how it did so. In the Plaintiff's submission, that must include explaining why it disregarded, rejected, or disagreed with objective evidence in the nature of the nerve conduction studies.

This submission is without merit. The panel had regard to the nerve conduction study results, together with the other relevant matters to which it referred in the reasons. The statutory task of the panel was to apply its own medical experience and expertise in forming its opinion in response to the questions referred to it.[9] Mr Blacker's submission seeks to place the nerve conduction study results in a special category requiring that the panel explain its conclusions by reference to those results. The effect would be to impose upon the panel a requirement to treat the nerve conduction study results as being of greater weight than other mandatory considerations. As I have stated, it was a matter for the panel in performing its statutory task to determine what weight should be given to the material which was before it, including the nerve conduction study results. To impose upon the panel a requirement to treat the nerve conduction study results differently and as being of greater weight than other material before it would be to interfere with performance of its statutory task. Applying its medical experience and expertise the panel reasoned that any minor soft tissue injury to the wrists suffered in the course of work with Boss Trailers resolved soon after Mr Blacker ceased work. It was not necessary that the panel explain that conclusion by reference to the nerve conduction study results, or for the panel to say why it did not reach an opinion it did not form.[10]

38 Mr Blacker has not established any inadequacy in the reasons of the panel.

39 Mr Blacker has failed on both grounds relied upon as the basis for judicial review of the panel's opinion. The proceeding will be dismissed. I will hear from the parties as to the form of orders, including as to costs.

[1] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6 (Brennan CJ, Dean, Toohey, Gaudron and McHugh JJ).

[2] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-41.

[3] Milwain v Sim [2009] VSC 75 (12 March 2009) [22] (Kyrou J); see also Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17 (13 February 2015) [61] (Neave JA, with Santamaria JA and Ginnane AJA agreeing) ('Ryan').

[4] [2015] VSCA 17 [61]-[62], citations omitted.

[5] Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 (19 December 2014) [79] (Cavanough J, citing Bat Advocacy New South Wales Inc v Minister for Environment Protection Heritage and the Arts (2011) FCAFC 59 (6 May 2011) [44]).

[6] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 501 [55] ('Wingfoot').

[8] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 41; Maribyrnong City Council & Anor v Malios & Ors [2014] VSC 452 [34], [52].

[9] Wingfoot [2013] HCA 43; (2013) 252 CLR 480 [47].