Plaintiff v Defendants

1 This is an application for judicial review of the opinion of a medical panel dated 29 January 2017.

2 The application is brought by the plaintiff, Chip Kipniak & Associates Pty Ltd, under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. There are three defendants, Angela Louise Rann ('the worker'), Dr Sandra Hacker and Dr Susan Brann ('the panel'). The second and third defendants did not participate in the proceeding and so the first defendant assumed the role of contradictor.

3 The panel was convened and constituted pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRCA').[1] It was tasked with assessing the worker's degree of permanent psychiatric impairment for the purposes of a lump sum impairment benefit under s 98C of the Accident Compensation Act 1985 ('AC Act').

4 The substance of the matter is set out in the Originating Motion, dated 30 March 2017, and filed by the plaintiff. The plaintiff seeks:

(i) An order in the nature of certiorari quashing the opinion of the panel comprised by the second and third defendants certified in writing dated 29 January 2017;

(ii) An order in the nature of mandamus remitting the referred medical questions to a differently constituted panel to be reconsidered in accordance with law;

(iii) An order that the first defendant pay the costs of the plaintiff of and incidental to the proceeding, including any reserved costs, to be assessed in default of agreement by the Costs Court; and

(iv) Such further or other relief as the Court sees fit.

5 For the reasons that follow, I am of the view that the application should be dismissed.

6 The worker was born on 15 September 1971. In December 2012, when she was 41 years old, she commenced employment as a cook/waitress/cleaner at the Great Western Hotel in Ararat. She was employed by the plaintiff and reported to Mr Chip Kipniak. She had previously been unemployed for 12 years as a result of several traumatic incidents in her past.

7 In May 2013 the worker was sexually assaulted by Kipniak at her place of work and, later on the same day, in her car. It seems Kipniak was charged with the assault and pleaded guilty to it.[2]

8 On or around 1 July 2013 the worker lodged a claim for weekly payments and medical and like expenses pursuant to the AC Act.[3] She alleged that she had sustained a primary psychiatric injury at work with the plaintiff on 31 May 2013. Her claim was accepted by the authorised agent of the Victorian WorkCover Authority, CGU Workers Compensation (Vic) Ltd ('CGU'), acting on behalf of the employer.

9 By claim form signed 8 June 2016, the worker made a claim for lump sum impairment benefits pursuant to s 98C of the AC Act, in relation to a psychiatric injury sustained at work on 31 May 2013.

10 On 26 July 2016, at the request of CGU, psychiatrist Dr Stephen Stern assessed the worker in accordance with s 91 of the AC Act. Dr Stern assessed the worker as suffering a total psychiatric whole person impairment of 20%. Of this total figure Dr Stern assessed 8% as due to the work-related injury and the remaining 12% as due to pre-existing and unrelated factors.

11 By way of Notice from CGU dated 11 August 2016 the employer accepted liability for the claimed injury in the impairment benefit claim. Relying on Dr Stern's assessment, CGU deemed the worker's degree of permanent psychiatric injury in respect of the work-related incident to be 8%, but the worker disputed this by way of a Workers' Response Form signed 9 September 2016.

12 CGU then referred the matter to the panel for an opinion pursuant to s 104B(9) of the AC Act. The panel was provided with an extensive set of materials encompassing the procedural and medical history of the matter as well as further submissions from CGU dated 14 October 2016. In those submissions, CGU noted the worker's 'significant pre-existing psychiatric history', indicating its belief that the worker's condition was chiefly due the pre-existing and unrelated factors as outlined by Dr Stern. It requested, in the event that the panel reached a different conclusion to Dr Stern, that the panel should explicitly address this difference in its reasons.

13 The panel was convened and examined the worker on 11 November 2016.

14 On 1 December 2016, the panel wrote to the parties' legal representatives requesting further information, specifically with regard to reported auditory hallucinations and a newly described incident in which the worker, when she was sixteen, was allegedly drugged and kidnapped by two men and held hostage for a period six months. The panel also requested further submissions as to the effect and application, if any, of the Court of Appeal's decision in Lingenberg v Gallichio[4] on the apportionment or disregarding of any degree of unrelated impairment.

15 CGU responded by way of a letter dated 22 December 2016. It stated that CGU was 'unable to provide any addition [sic] information over and above that previously provided' and referred to its earlier submission, of 14 October 2016, which raised the application of s 91(7)(c) of the AC Act and submitted that the worker's pre-existing psychiatric condition should be disregarded.

16 The worker's solicitors responded by way of a letter dated 12 January 2017.[5] The letter reiterated the details of the abduction incident, stating that the worker had eventually escaped (without assistance from the police) and returned to her parents' place of residence in South Australia, where she recuperated before re-entering the workforce. However, it was largely silent as to the Lingenberg point, merely noting that, 'while the worker had previously had mental health issues, she had managed a return to work and appeared to be coping with the return adequately.'

17 On 29 January 2017, the panel provided a certificate of opinion, along with written reasons for its opinion.[6]

18 The applicable legislation in this instance is the AC Act (since, as noted above, the worker's injury occurred prior to the commencement of the WIRCA).

19 Section 82(1) provides that a worker who is injured arising out of or in the course of employment shall be entitled to compensation. Section 98C provides that a worker who suffers compensable injury resulting in permanent impairment is entitled to lump sum compensation for non-economic loss. The specific impairment claimed in this case is psychiatric in nature. Relevantly, for the worker to be entitled to any form of lump sum payment, s 98C(3) provides that the degree of permanent psychiatric impairment must be 30% or more.

20 Section 98C(1) provides that the degree of permanent impairment is to be assessed in accordance with s 91 of the AC Act. Section 91(1A) provides that the assessment must be conducted 'after the injury has stabilised'. Section 91(7)(c) provides that, for the purposes of s 98C (i.e. compensation for non-economic loss), 'impairments from unrelated injuries or causes are to be disregarded in making an assessment'. Section 91(6) further provides that, for the purpose of assessing a permanent psychiatric impairment, the American Medical Association Guides to the Evaluation of Permanent Impairment[7] is to be applied in combination with The Guide to the Evaluation of Psychiatric Impairment for Clinicians[8] (specifically the GEPIC is to be substituted for Chapter 14 of the AMA Guides).

21 The general principles for interpreting the AMA Guides and the GEPIC are well settled and need not be repeated here. It is sufficient to observe, as Kyrou J explained in H J Heinz Company Australia Pty Ltd v Kotzman, that the 'interpretation of the AMA [G]uides is a question of law' and the 'determination of a level of impairment ... a question of fact'.[9] This flows from the fact that the AMA Guides and the GEPIC are intended to be 'standardised processes which produce similar outcomes irrespective of who conducts the assessment.'[10] Indeed, the role conferred by the AC Act on a medical panel is 'not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the [AMA] Guides'.[11]

22 The panel was asked two questions to which it responded as follows:

Question 1. What is the worker's degree of permanent whole person impairment arising from the accepted injury/s as assessed in accordance with Section 91 [of the ACA] and is the impairment permanent?

Answer: The panel is of the opinion that there is a 30% psychiatric impairment resulting from the accepted psychiatric condition injury when assessed in accordance with Section 91 of the Act. The degree of psychiatric impairment is permanent.

Question 2. Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the table on Section 98E?

Answer: No.

For present purposes, we are only concerned with Question 1. Question 2 is not disputed.

23 It is necessary to set out the reasons of the panel insofar as they are in contention between the parties. The relevant passages are as follows:

The worker said that she had begun work in December 2012 working a split shift of 12 to 15 hours a week for a five-day week. She said that this was her first job since her children were born, and that she had had a very difficult early life and was feeling extremely proud of her achievement at returning to work and being complemented both at work regarding her cooking and for instance in the supermarket about her positive outlook.

The worker said that aged 16 she was drugged and kidnapped and held hostage in Melbourne for a period of six months by two men. She said that an extensive police search occurred at the time she eventually escaped but that the perpetrators of this violence have never been found. She said that she had no recollection of having any psychological treatment after this event but that her parents were extremely supportive, attempting to make her feel safe and allowing her to 'get on with [her] life'.

The worker said that her older son was sexually abused when he was six years old in 2014 and later had counselling with a Centre Against Sexual Assault. She said that her younger son was sexually abused in 2008.

She said that she had been an intravenous amphetamine user for some years but said that she had not used any intravenous drugs since 2004.

The panel noted from the records that the worker was said to be drug seeking in March 2010 and was concerned about her house being 'bugged' in 2011.

Her affect was euthymic, reactive in range, well communicated and congruent to content. There was no formal thought disorder but the content of her thought revealed a preoccupation with the incident and themes of loss, damage and rage. The flashbacks and dissociative phenomena were noted, and the worker became dissociated briefly on a couple of occasions during the interview, especially when the early abuse issues were initially raised. Her concentration was impaired in keeping with her psychiatric condition but her memory appeared unaffected as did her cognitive function. Her judgment was significantly impaired by her psychiatric illness and her insight was partially affected.

In the panel's opinion the worker is suffering from a chronic exacerbation/aggravation of a pre-existing chronic post-traumatic stress disorder with a past history of polysubstance abuse and borderline personality disorder features, relevant in part to the accepted psychiatric condition injury and in part to the pre-existing psychiatric conditions.

The panel noted that following the episode of being held hostage by two men for an extended period of time, the worker appeared to recover with no adverse psychological sequalae, and noted her capacity to work for some years. However in the panel's opinion this event led to her being sensitised and psychologically vulnerable to subsequent triggers such as violence and unwanted sexual touching of her children.

In the panel's opinion the work-related incident, of being sexually approached and later feeling trapped in her car, acted as a trigger to the past kidnapping event and precipitated a major decompensation.

In the panel's opinion the worker has a medical Class 3 impairment with a total psychiatric impairment of 40%. Of this impairment the panel considers that there is a psychiatric impairment of 30% which has arisen directly from the circumstances of the accepted psychiatric condition injury with an accepted date of injury of 31 May 2013, and the remainder of the psychiatric impairment of 10% has arisen due to the worker's pre-existing psychiatric conditions and is therefore excluded from the assessment of the panel in accordance with Section 91(7)(c) of the [AC Act]. The panel considers the degree of impairment is permanent.

The panel noted the impairment assessment undertaken by Dr Stephen Stern of 26 July 2106, noting that he did not obtain a history of the kidnapping event or of a range of symptoms disclosed by the worker to the panel, and was of the view that the diagnosis of a chronic adjustment disorder with anxiety and depression was insufficient to address the range of psychiatric symptoms reported by the worker in the provision of her history and noted by the panel in its mental state examination. The panel also disagreed with Dr Stern's assessment of the degree of impairment related to the information provided by the worker and the panel's assessment of the worker's mental state and came to a higher conclusion regarding the level of impairment, based upon its own history taking, mental status examination and collective clinical experience, with particular regard for a higher assessment in the domains of thinking (as recounted in relation to her diminished concentration and memory problems), perception (with severe and frequent flashbacks), judgment (in reporting her fears regarding going to sleep, needing to keep weapons at the ready), and behaviour including dissociative episodes.

24 Significantly, the panel's reasons encompass the worker's medical history and mental state examination as well as their reasons for disagreeing with Dr Stern, who differed as to worker's degree of permanent psychiatric impairment in the 'thinking', 'perception' and 'behaviour' categories.[12]

25 The contrasting conclusions reached by Dr Stern and the panel may be represented in tabular form as follows:[13]

The degree of difference between Dr Stern and the panel is most stark with respect to the 'perception' category (1 : 3). The degree of difference is lesser, but still significant, with respect to 'thinking' (2 : 3) and 'behaviour' (2 : 3).

26 The relative weighting to be given to each class is set out in the GEPIC as follows:

Applying these ranges to the findings of Dr Stern and the panel it is evident that the potential range of disagreement within each category fell within the following parameters:

(i) intelligence: from 0% at the lowest to 5% at the highest;

(ii) thinking: from 10% at the lowest to 50% at the highest;

(iii) perception: from 0% at the lowest to 50% at the highest;

(iv) judgment: from 10% at the lowest to 20% at the highest;

(v) mood: from 25% at the lowest to 50% at the highest; and

(vi) behaviour: from 10% at the lowest to 50% at the highest.

These breakdowns illustrate that, even where Dr Stern and the panel agreed, there was plenty of room for disagreement. For instance, while both reached a finding of class 3 for the 'mood' category, we do not know whether their underlying numbers were closer to 25% or 50% respectively.

27 This is relevant since the GEPIC requires that the numerical value for each category of mental function be combined so as to derive a median figure representing the percentage of whole person impairment (WPI).[15] The findings of Dr Stern and the panel of 12% and 30% respectively are thus aggregates produced by adding and averaging each of their individual findings as to each category of mental function. In this light, it is instructive to note that the biggest discrepancy between Dr Stern and the panel concerns the degree of impairment as to 'perception', with 'thinking' and 'behaviour' being the next most significant.

28 Despite these differences, assessment under the GEPIC is a question of fact, which sits squarely in the province of the panel as decision-maker. It is not for this Court to second guess the findings of the panel save for where those findings give rise to an error of law. Such findings, as Osborn J observed in Georgiou, necessarily involve value judgments:

Ultimately however, to draw an analogy with another area of the law, the Panel's function is more akin to that of a valuer required to form his or her own opinion than it is to that of an arbitrator required to adjudicate upon opinion evidence.

...

The question is one of degree involving elements of value judgment. As such it is a quintessential judgment of fact for the decision-maker.[16]

From time to time these value judgments may be controversial or difficult for a lay person to reconcile. Once again, however, it is not for this Court to attempt to improve on findings that Parliament in its prerogative has delegated to the expertise of medical professionals.

29 Next I turn to the grounds upon which the plaintiff seeks to challenge the finding of the panel. Those grounds are as follows:

(i) whether the panel fell into jurisdictional error and/or erred in law by failing to properly assess the worker's impairment in accordance with the AMA Guides and the GEPIC;

(ii) whether the panel erred in law or failed to take into account mandatory considerations, in disregarding the extent of the worker's impairment due to unrelated causes in making an assessment, as required by s 91(7)(c) of the AC Act; and

(iii) whether the panel failed to sufficiently comply with its obligation to provide written reasons for its opinion.

Under each ground, the plaintiff set out an exhaustive list of written 'particulars', which do not need to be reproduced here.

31 The test for jurisdictional error was stated by the High Court in Craig v South Australia.[17] The Court held that, where an administrative tribunal (such as a medical panel) falls into an error of law,

which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.[18]

32 The High Court affirmed this test in Minister for Immigration and Multicultural Affairs v Yusuf.[19] McHugh, Gummow and Hayne JJ said that 'jurisdictional error' can be seen to:

embrace a number of different kinds of error ... [which] may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law ... if an error of those types is made, the decision-maker did not have jurisdiction to make the decision that was made; he or she did not have jurisdiction to make it.[20]

Axiomatically, such an error must be capable of swaying the decision-maker, leading to a decision that would not have been reached but for the error.[21]

33 The test for jurisdictional error is a narrow one and, as such, is difficult to make good. As I have said, jurisdictional error has no bearing on questions of fact, weight or merit, save for where these questions give rise to legal error. It follows that this Court must exercise caution so as not to engage in any merits-style reasoning in assessing the findings of the panel. As Keogh J recently observed in Blacker v Boss Trailers:

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.[22]

To review the panel's decision on its merits would be to exceed the 'supervisory role' that this Court has been entrusted with by virtue of the applicable legislation.[23] Indeed, the panel was entitled to give as much or as little weight as it liked to any mandatory consideration, provided that it engaged in an 'active intellectual process' in making its determination.[24]

34 The plaintiff's primary contention under this ground is that the panel misdirected itself as to the application of the GEPIC. Specifically, it objects to the panel's finding of a class 3 (moderate) rather than class 2 (mild) impairment in the 'thinking' category, which it says contradicts the panel's own mental state examination. The plaintiff points towards the panel's conclusion that there was 'no formal thought disorder' and that the worker's 'memory appeared unaffected as did her cognitive function'. These findings, it submits, are inconsistent with how the GEPIC defines a class 3 impairment. For example, the GEPIC requires that there be 'manifestations of thought disorder', which may include 'severe problems with concentration due to intrusive thought or obsessional ruminations', 'marked disruption with the stream of thought due to significant memory problems or diminished concentration', 'persistent delusional ideas interfering with capacity to cope with everyday activities' and 'formal thought disorder that interferes with verbal and other forms of communication'.[25]

35 The plaintiff submits that the panel's mental state examination did not disclose anything that could be characterised as a class 3 impairment. It points towards the panel's finding that the worker displayed a 'preoccupation' with the work-related incident (rather than 'intrusive thoughts' or 'obsessional ruminations' as per a class 3 impairment). The plaintiff highlights the inconsistency between the panel's statement, on the one hand, that the worker's memory 'appeared unaffected' and, on the other hand, that the worker recounted 'diminished concentration and memory problems'. The plaintiff complains that this inconsistency is nowhere addressed and that the panel's reasons are inadequate to explain this contradiction. It emphasises the fact that the AMA Guides direct that, '[where] current findings do not agree with the recorded information [i.e. medical history], there should be further clinical evaluation to resolve the disparities.'[26]

36 With reference to the newly reported abduction event, the plaintiff complains that this was not disclosed in any of the material provided to the panel, including in the worker's medical history.[27] Given this, the plaintiff submits, it was incumbent upon the panel to explain how it reconciled, or attempted to reconcile, the incident with the worker's medical history. It accepts that it was open to the panel to accept or reject the abduction incident but submits that, in doing so, the panel was required to notice the incongruity and account for it in its reasons. Having not sufficiently done so, the plaintiff submits, the panel either misapplied the GEPIC, failed to take into account a materially relevant consideration of the kind that would give rise to jurisdictional error, or both.[28] In short, the plaintiff submits that this Court must be left in 'real doubt'[29] as to whether the panel correctly performed its statutory function, namely the interpretation and application of the AMA Guides and the GEPIC.

37 In reply, the defendant contends that the plaintiff is chiefly seeking to challenge the panel's findings on their merits, which were entirely open to it and unimpeachable in the circumstances.

38 Specifically, the defendant submits that the panel did not misapply the GEPIC, since the panel's reasons disclose mental phenomena consistent with a class 3 impairment. It submits that the panel was correct in noting the worker's period of stability prior to the catastrophic impact of the work-related incident. The defendant points to several passages in the reasons where the panel sets out the worker's obsessional thoughts and fears relating to the work-related incident and her reported concentration and memory problems. It notes, for instance, that the worker reported she was unable to cook a meal for eight months after the incident, that she sold her car because it triggered flashbacks of the incident, and that she experienced dissociative phenomena such as drifting into 'another world' for hours at a time and not being able to recognise the food she had purchased from the supermarket in her kitchen cupboard. The defendant submits that the plaintiff's complaints amount to no more than disagreement with the panel's finding that the worker had a class 3 impairment in the 'thinking' category. To entertain such a complaint, the defendant submits, would go against the GEPIC and its express command that '[i]t is ultimately for the clinician, and no one else, to make the clinical judgement whether a specific rating criterion is present.'

39 The defendant rebuffs the plaintiff's claim that the newly reported incident is 'hitherto undisclosed', 'new and surprising' and 'inherently implausible'. It points out that the plaintiff asked for an opportunity to make further submissions if the worker's examination gave rise to new material upon which the panel intended to rely. The defendant submits that the panel did exactly that, writing to the parties on 1 December 2016, asking them to provide further information and submissions in relation to the abduction incident. It notes that CGU, in its letter dated 22 December 2016, stated that it had nothing to say in relation to the abduction incident. In this context, it submits that the panel was clearly aware that the abduction incident was new and significant, which is why it sought clarification from the parties. It further submits that there has not been any breach of procedural fairness in relation to the abduction incident.[30]

40 The defendant submits that the panel was not required to provide a running commentary as to why it had accepted the worker's reported history and that the passage from the AMA Guides relied on by the plaintiff (at [35] above) does not require 'reconciliation' in the way the plaintiff contends. The defendant submits, in short, that the AMA Guides only require reconciliation of clinical findings, not of every historical fact reported by an examinee, which distinguishes the present case from that of YG-[31]Australia.31 There the issue was that the worker had disclosed new symptoms at examination, relied on by the medical panel in reaching its findings, without the parties having been given any opportunity to make submissions in relation to those symptoms. In the present case, the defendant submits, the new information related to the worker's medical history and, in any event, was consistent with and supplemented that history. Indeed, according to the defendant, the panel clearly viewed the abduction incident and post-traumatic stress disorder that it gave rise to as necessary in explaining the various psychiatric symptoms that the worker is now suffering from.

41 The defendant's submissions under this ground are to be preferred.

42 The panel was entitled to come to the conclusion that it did based on the worker's mental state examination and reported history. The panel, it should be noted, was comprised of two psychiatrists trained and experienced in the application of the AMA Guides and the GEPIC. It is not for this Court to quibble with the panel's finding as to whether the worker is suffering from a class 2 or class 3 impairment with respect to any given mental function. These were questions of fact, and of weight, which properly fell within the province of the panel as the statutory decision-maker in this instance.

43 Nor did the panel's handling of the abduction incident give rise to jurisdictional error. The panel quite properly recognised that this was new information and sought clarification from the parties at the same time as it gave them an opportunity to make further submissions prior to delivering its opinion. The argument that the AMA Guides or the GEPIC required the panel to conduct further clinical evaluation must be rejected. It is hard to see how further clinical evaluation could have clarified the information disclosed to the panel. The panel would have been compelled to such a course of action only if there were inconsistencies arising out of their own clinical findings. Nor is it the panel's role to conduct its examination in an inquisitorial or judicial fashion.

44 I agree that the plaintiff's complaints as to the panel's assessment under the GEPIC amount to no more than a disagreement with the panel's finding that the worker has a class 3 impairment in the 'thinking' category. The plaintiff's submissions seek to place the 'thinking' category in a special light requiring the panel to explain its conclusions by reference to that result. The effect would be to impose upon the panel a requirement to treat one category, such as 'thinking', as having a greater significance than any other.

45 The panel found that on the mental state examination the worker had 'no formal thought disorder'. I will not repeat the panel's record of the worker's history in relation to the 'thinking' category.[32] However, I note by way of example some of the more significant history provided by the worker as recorded and accepted by the panel:

(a) the content of the worker's thought disorder revealed a preoccupation with the abduction incident and themes of loss, damage and rage;

(b) severe problems with concentration due to intrusive thoughts or obsessional ruminations;

(d) persistent delusional ideas interfering with her capacity to cope with every day activities.

46 The panel's conclusion of a class 3 'moderate' impairment was not just on the mental state examination findings, but on all the material before it, including the significant history recounted by the worker.

47 The plaintiff's submission that there is an inconsistency between the panel's statement that on the mental state examination the worker's memory 'appeared unaffected' and its statement that the worker 'recounted ... her diminished concentration and memory problems' is misconceived.

48 The panel's task is to apply the GEPIC so as to assess the worker's WPI. In doing so, it considers all of the material before it, including the worker's history and the panel's own findings on the mental state examination. It is the panel's clinical expertise that enables it to make conclusions, particularly in circumstances where it is confronted with what may appear inconsistent information. The fact that the panel found that the worker's memory appeared to be unaffected on the mental state examination does not exclude the other relevant history and statements provided by the worker or imply that one factor should be preferred over the other.

49 It is precisely in this situation that it is a matter for the panel's expertise, to make a formal assessment on all the categories including 'thinking', and come to a conclusion as to the worker's WPI.

50 The weight to be given to the mental state examination findings, as with other evidence or matters before it, was for the panel to assess.

52 Next I turn to the question of whether the panel erred in its application of s 91(7)(c) of the AC Act in disregarding the extent of the worker's impairment due to unrelated causes.

53 This was the Lingenberg point to which the panel drew the parties' attention in its letter dated 1 December 2016. What is in contention is whether the panel sufficiently accounted for and excluded various pre-existing and unrelated causes in its assessment of the worker's permanent psychiatric impairment.

54 The legal principles relevant to panel's task are well-settled and do not need to be repeated here.[33]

55 The plaintiff's primary contention under this ground is that the panel failed to properly assess the extent to which the worker's current impairment may be attributed to pre-existing and unrelated causes. It submits, in particular, that the panel did not give proper weight to the worker's extensive and pre-existing psychiatric history. This follows, it submits, from the fact that the panel only excluded 10% of its overall figure of 40% WPI.

56 The plaintiff submits that the panel was bound to take into account the following additional factors:

(a) The worker's mother was a psychiatric inpatient requiring psychotropic medication;

(b) Previous domestic violence and alcohol abuse, where the worker had to take out an intervention order against her former partner;

(c) The sexual abuse of her older son in 2004 when he was six years old;

(d) The sexual abuse of the worker's younger son in 2008;

(e) The traumatisation of the worker's younger son upon witnessing the attempted suicide of a male neighbour in 2015;

(f) Previous drug use, including smoking cannabis from the age of 16 (having ceased some years ago), and being an intravenous amphetamine user for many years until, reportedly, 2004;

(g) Previous prescriptions of sertraline in 2007, and venlafaxine from 2006 to 2010;

(h) Involvement with Child and Family Services in 2008, and the Department of Human Services in 2011;

(i) Medical records which indicate the worker was said to be drug seeking in 2010, and was concerned that her house was "bugged" in 2011;

(k) As described by the panel, "hypothyroidism" diagnosed in 2016;

(l) Early menopausal symptoms diagnosed in 2016; and

(m) 'Past history of polysubstance abuse and borderline personality disorder features.'

These factors, the plaintiff submits, suggest a higher finding than 10% and are not consonant with the word 'disregard' in s 91(7)(c) of the AC Act, which has been held to mean 'any unrelated impairment component, rather than creating a fiction whereby the unrelated impairment component is deemed not to exist.'[34]

57 The plaintiff submits, with reference to (e), (i) and (k) above, that these matters should have been excluded because they do not relate to the worker's pre-existing psychiatric condition but rather arose subsequent to the work-related incident.

58 The plaintiff places special weight on the fact that the panel did not exclude the worker's hyperthyroidism as a cause of her psychiatric illness. It points towards the assessment of Dr Stern (26 July 2016) and his finding that this condition, which is by definition physical, was contributing in a material way to her psychiatric symptoms (anxiety especially). It submits that not excluding the worker's hyperthyroidism was tantamount to the panel misdirecting itself under s 91(7)(c) of the AC ACT. In addition to Dr Stern's opinion, the plaintiff seeks to rely on the earlier opinion of Dr Rathnayake (27 May 2015), who concluded that the worker's 'work injury of 31/05/2013 is unlikely to be a significant factor to her current condition' because her 'current symptoms, anxiety, irritability etc. are mainly due to hyperthyroidism'.

59 The plaintiff submits that the panel referred incorrectly to 'hypothyroidism' rather than 'hyperthyroidism'. It accepts that this may be a typographical error but, if so, submits that such an error would not have been made had they been looking closely at the problem. This last point, the plaintiff submits, also goes to adequacy of reasons since the panel did not indicate whether it considered the diagnosis of hyperthyroidism relevant, and if so to what degree, to the worker's degree of unrelated psychiatric impairment.

60 In reply, the defendant concedes that the panel was required to disregard unrelated injuries or causes in making its assessment, as per the reasons of J Forrest J in Alcoa.[35] According to the defendant, there are two permissible ways to do this, the first involving a 'two-step process of assessment of pre-existing impairment and deduction of that from existing impairment' and the second by 'simply taking into account, and disregarding, unrelated impairment'.[36] The defendant submits that the panel clearly employed the former methodology.

61 With this in mind, the defendant points to the paragraph in the panel's reasons where it sets out its view of causation, noting that the worker was 'held hostage by two men for an extended period of time' but 'appeared to recover with no adverse psychological sequalae', was able to 'work for some years' but was 'sensitised and psychologically vulnerable to subsequent triggers such as violence and unwanted sexual touching of her children', and that the 'work-related incident, of being sexually approached and later feeling trapped in her car, acted as a trigger to the past kidnapping event and precipitated a major decompensation'. The defendant submits that these statements reveal the panel's conclusion that the worker's pre-existing psychiatric condition contributed minimally to her current severe condition.

62 The defendant submits that the panel was not required to have regard to the plaintiff's list of factors (a) to (m) at [56] above. It submits, in particular, that the panel's attribution of 10% of current impairment to 'pre-existing conditions' was reasonably open to it and that it does not follow from this that the panel failed to take into account any unrelated subsequent matters.

63 In response to the plaintiff's complaint about hyperthyroidism, the defendant submits that the panel was clearly aware of this, since it recorded in its reasons both the condition and the medication the worker takes for it. It submits that the typographical error as to 'hypothyroidism' is neither here nor there and should be disregarded by this Court in giving the panel's reasons a beneficial construction. Further, it submits that the panel was well aware of Dr Stern and Dr Rathnayake's conclusions with regard to the worker's hyperthyroidism, which it was entitled to reject and was not required to explain as such if it wished to do so.

64 The defendant submits, in short, that the panel's reasons implicitly reveal that it took into account all unrelated causes which it considered to be material to the worker's permanent psychiatric impairment.

65 I am not persuaded that the panel committed any error of law in its assessment and disregarding of pre-existing and unrelated causes.

66 The panel noted and considered factors (a) to (m) as set out at paragraph [56] of these reasons. The panel did not go through each factor, or explain the weight of each factor in relation to the worker's WPI, but it was not requir[37] to do so.37 However, the panel's findings in relation to causation underpin its conclusion, specifically its finding of 10% of current impairment as due to pre-existing conditions. While there were significant factors in the past, the panel relevantly noted that the worker had - after the abduction incident, after she was subjected to domestic violence, and since 2012 after the issues relating to her children's abuse - managed adequately and, in recent years, done so without significant psychiatric intervention. It was again open, and a matter for the panel, as to what the apportionment should be of the WPI of 40% as to psychiatric conditions arising from the work-related incident as compared to pre-existing psychiatric conditions. The panel took its assessment of the pre-existing psychiatric conditions of 10% and deducted it from the finding of 40% WPI. There is no error in the panel's approach or methodology.

67 The panel was entitled to reach the conclusion that it did as to the worker's pre-existing psychiatric history and to assign it a 10% apportionment in relation to her current psychiatric impairment. The panel engaged in its statutory task in a way that was consistent with what this Court has said about the assessment of unrelated impairment.[38] The panel was obliged, as best it could on the available evidence, to consider any unrelated impairment and to distinguish that impairment from the current impairment that it was tasked to assess. The panel, so far as I can tell, discharged that duty and should not be held to unrealistic standards as to every minor detail and entry in the worker's medical record. Different doctors will, as a matter of course, come to different conclusions as to the weight to be given to various conditions and their symptomatic expressions. It is not for this Court to second-guess their expertise in making clinical assessments as per the statutory command.

68 Further, I am satisfied that the panel took into account any and all psychological stressors post-dating the work-related injury.

70 The leading authority on adequacy of reasons provided by a medical panel is Wingfoot Australia Partners Pty Ltd v Kocak.[39] Both parties in their submissions referred to the following relevant paragraphs:

The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must 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. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

...

The nature of the question referred to a Medical Panel, and the way that question was addressed by other medical practitioners in opinions supplied to a Medical Panel, might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a Medical Panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons. An inference might be drawn, for example, that the reasoning involved one or more steps not reflected in the written statement of reasons either at all or in sufficient detail to allow a court to see whether a Medical Panel made an error of law in those steps.[40]

Several points arise from the above paragraphs. Firstly, the panel's reasons must explain its actual path of reasoning in sufficient detail to allow this Court to see whether its opinion involves any error of law. Secondly, if its reasons fail to meet this standard, this failure will amount to an error of law on the face of the record. Thirdly, as the panel was tasked with re-examining the worker and the prospect of arriving at a differing opinion was flagged, its difference of opinion needed to be adequately reflected in its reasons; and the steps required for the panel to reach this difference of opinion needed to be reflected in sufficient detail to allow this Court to see whether it had made an error of law.

71 The principles enunciated by the High Court in Wingfoot have been applied by the Court of Appeal in Gruma Oceania Pty Ltd v Bakar.[41] There the Court (Neave, Santamaria and Kyrou JJA) said that:

In Wingfoot, the High Court emphasised that the adequacy of a medical panel's reasons must be assessed by reference to the opinion that the panel formed rather than by reference to an opinion it did not form. This means that, in considering the adequacy of particular reasons, the Court must have regard to the approach that the panel adopted in answering a medical question rather than an alternative approach that was open to it but which it did not adopt.

It is important to bear in mind that the question for the Court when considering whether a medical panel's reasons are adequate is not whether the reasons positively disclose that the panel erred in law, but whether the reasons are sufficient to enable the Court to determine whether the panel's opinion does or does not involve any error of law. If the reasons are such that the Court is left in real doubt about whether the panel correctly performed its statutory functions, the reasons will not comply with s 68(2) of the [AC Act]. Such a doubt exists in the present case.[42]

72 Further, it is well settled that where an adequacy of reasons argument arises, the decision-maker is entitled to a beneficial construction. This follows from what the High Court has said in Minister for Immigration and Ethnic Affairs v Wu:

It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.[43]

Indeed, to transform a review of the reasons of the panel into a reconsideration of the merits of the decision would be to collapse the necessary distinction between judicial and merits review, as Mason CJ emphasised in Australian Broadcasting Tribunal v Bond:

To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.[44]

73 The plaintiff's primary contention under this ground is that there is an unacceptable gap between the panel's conjectured and actual path of reasoning. The plaintiff submits that this gap does not leave the Court in a position to know whether the path by which the panel reached its opinion involves any error of law.

74 The plaintiff complains as to five aspects of the panel's finding. Firstly, it complains that the panel has not explained how it reached a WPI of 40% based on the panel's own findings with regard to each individual mental function, which implied a finding in the mid-range (between 25 and 50%). The plaintiff submits that 40% is at the top end of the mid-range and that, as such, the panel's reasons should disclose how it reached this finding. It accepts that it was open to the panel to exercise its clinical judgment and expertise in applying the GEPIC but that, at a minimum, some cursory comment as to the methodology employed should have been provided to account for a WPI finding that is twice as high as that of the previous assessor. The plaintiff submits that the case of YG-1 Australia[45] is a relevant comparator and points out that, in that case, a complaint of inadequate reasons was upheld.

75 Secondly, it complains that the panel has not explained how it determined that only 10% of the worker's permanent psychiatric injury should be disregarded as arising from pre-existing or unrelated causes, as per s 91(7)(c) of the AC Act. Given that Dr Stern's figure was marginally higher at 12%, and given the worker's extensive pre-existing psychiatric history, it submits that the panel needed to clearly explain why it attributed the large majority of her present impairment to the work-related incident. The plaintiff accepts that this kind of analysis may not be amenable to 'detailed composition'[46] but submits that the panel was nevertheless required to set out, in summary form, how it approached the task. It cites the reasons for judgment of J Forrest J in Alcoa to the effect that the panel must 'do the best it can to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker's current impairment' and that, to that end, the panel's reasons 'should reveal how it was approached the task.'[47]

76 Thirdly, it complains that this Court must draw a necessary inference as to how the panel reached its finding that, of the total figure of 40% WPI, 30% flowed from the work-related incident (as compared to Dr Stern's finding that, of the total WPI of 20%, 8% derived from the work-related incident).

77 Fourthly, it complains that the panel did not state in its reasons why it chose to accept in full the accuracy of the worker's newly recounted abduction incident. According to the plaintiff, the 'extraordinary' and 'inherently implausible' nature of this matter meant that it was not 'amenable to being left unsaid', especially in light of the worker's varying medical histories and omission of the abduction incident to all previous examiners.

78 Fifthly, it repeats its complaint from the previous ground of appeal that the panel did not adequately address the issue of the worker's hyperthyroidism as a pre-existing or unrelated cause of her psychiatric impairment. This is particularly significant, the plaintiff submits, because it is a physical condition that can give rise to psychiatric symptoms. It was therefore incumbent upon the panel to explain how, and to what extent, it disregarded this condition.

79 The plaintiff lastly submits that, since this Court must be left in 'real doubt' as to whether the panel correctly performed its statutory function, a prima facie error has been disclosed. It is not the case, it contends, that this error must be demonstrated on the balance of probabilities; rather, if the reasons are insufficient they cannot stand. This 'presumption of sufficiency' was underscored by the Court of Appeal in Gruma Oceania[48] and compels this Court, if it cannot be satisfied that no error of law occurred, to find the reasons insufficient. Such an error would also constitute a breach of s 313(2) of the WIRCA.

80 This exercise is made all the more important, the plaintiff submits, because the finding of 30% permanent psychiatric impairment flowing from the work-related incident puts the parties 'on a knife edge' such that their interests will be materially affected whatever the Court decides.

81 In reply, the defendant submits that the panel's reasons do not need to refer to each of the opinions of medical experts provided with the referral material, nor to explain why it reached a different view on the referred medical questions to any or all of those experts. Further, insofar as the panel's reasons concern questions of fact, weight or merit, these are questions for the panel alone (save for where they give rise to an error of law). In determining these questions, it submits, the panel was entitled to rely on its own knowledge and expertise.[49]

82 The defendant submits that the panel's reasons must be read fairly and as a whole. When read in this fashion, it contends, they do not disclose any inadequacy. The defendant points to the Court of Appeal's decision in Gamble v Emerald Hill Electrical Pty Ltd.[50] There Maxwell P and Cavanough AJA held that:

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'. These propositions have been frequently applied in judicial review proceedings ever since.

...

[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.[51]

The defendant, consonant with the above paragraphs, submits that the plaintiff's attack in the present case is focused merely on loose language and unhappy phrasing and that the panel's reasons are otherwise legally sound.

83 The defendant also points to the recent case of APS Group (Industrial) Pty Ltd v Carroll[52] in which this Court held that it did not constitute jurisdictional error where a medical panel chose to prefer a worker's revised rather than pre-existing history. The decision as to which history to prefer was said to belong solely to the medical panel, as to find otherwise would '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.'[53] This scenario, the defendant submitted, was analogous to the present circumstances in which the panel had chosen to prefer the newly reported history of the worker, including the abduction event, rather than the pre-existing history without the abduction event. Such a finding as to a basic question of fact, weight or merit cannot form a legitimate basis for a jurisdictional error, lest judicial review become merits review by sleight of hand.

84 The defendant rejects the plaintiff's assertion that there is a 'presumption of sufficiency' with regard to the panel's reasons and submits that it is not enough to gesture towards the possibility that the panel may have proceeded on a wrong view of the law. Rather, it submits, this Court must be satisfied that there was a vitiating error of law before it can interfere with the panel's opinion. In support of this proposition the defendant seeks to rely on Commissioner of State Revenue v Kameel Pty Ltd.[54]

85 Lastly, in response to the plaintiff's assertion that the panel's assessment of 30% WPI puts the worker 'on a knife edge', the defendant submits that this is irrelevant. What is relevant, according to the defendant, is whether a particular and different outcome would have flowed from a material consideration. In other words, but for the error alleged, would the panel have arrived at the same, or a materially similar, conclusion? The defendant seeks to rely on the recent decision of O_merasevic v Kotzman_[55] in which Riordan J stated that, even if jurisdictional error were shown, 'it would still be necessary ... to determine whether, by reason of the jurisdictional error, the applicant had been deprived of the possibility of a successful outcome.'[56]

86 There is force in both parties' submissions. The panel's reasons are not baldly insufficient. Needless to say, adequacy of reasons is always a difficult and murky ground of review and frequently the arguments of the parties become mired in questions of fact, weight and merit. Ultimately, I have concluded that the defendant's submissions are to be preferred, for the following reasons.

87 I am satisfied that the panel's reasons disclose, at least to a level of detail that leaves me untroubled, its actual path of reasoning with respect to its findings of a 30% WPI and its assessment and clinical consideration in relation to the abduction incident.

88 The panel was entitled to accept or reject any aspect of the worker's recounted history or symptoms. It is not for this Court to quibble with its findings. The panel was presented with new information, namely the abduction incident, which gave rise to a different and more severe diagnosis than any previously given. As such, was necessary for the panel to explain its reasons for arriving at the new and more severe diagnosis, although only in sufficient detail to show that its opinion does not reveal an error of law.

89 The panel's reasons recorded the worker's account of the abduction incident and that following the incident she had managed to resume her normal life:

She said that she had no recollection of having any psychological treatment after this event but that her parents were extremely supportive, attempting to make her feel safe and allowing her to 'get on with [her] life'. She said that she then worked for an optician for two years, in a Mini Mart for two years, and in McDonalds for a year and also had undertaken work as a process worker and kitchen hand.

90 Without repeating the contents of the panel's reasons, the panel concluded:

In the Panel's opinion the worker is suffering from a chronic exacerbation/aggravation of a pre-existing chronic post-traumatic stress disorder with a past history of polysubstance abuse and borderline personality disorder features, relevant in part to the accepted psychiatric condition injury and in part to the pre-existing psychiatric conditions.

91 The panel then set out its reasoning on causation. Again, without repeating the reasons, the panel considered the impact of the abduction incident and noted that the worker appeared to recover with no adverse psychological sequelae and had a capacity to work for some years. The panel considered that the abduction incident led the worker to being sensitised and psychologically vulnerable to subsequent triggers such as violence and unwanted sexual touching of her children. The panel's reasons demonstrate that it considered the abduction incident, in and of itself, had no material ongoing impact on the worker's capacity for work.

92 The panel also noted that the worker had had a period of stability following the abduction incident until she was subjected to domestic violence in her first relationship and that, following the first incident of domestic violence, the worker had 'decompensated, requiring intermittent but ongoing psychiatric services ... [including] ... case management assistance and a small dose of antidepressant medication prescribed by a local psychiatric service from early 2012'. The panel noted that the worker had ceased using cannabis since commencing employment and that she had, in the period since 2012, dealt with issues relating to her children's abuse without significant psychiatric intervention.

93 I consider it clear from the panel's reasons that the above findings amounted to a conclusion that, at the date of the assault, the worker's condition was controlled, stable and did not materially affect her capacity for work. The panel found that the abduction incident acted as a trigger to the past kidnapping event and precipitated a major decompression. I accept the defendant submission that it is implicit in this finding that the panel concluded that the assault had a very significant, if not catastrophic, impact on the worker's psychiatric condition and capacity for work.

94 Given the unique circumstances of this case, it was incumbent upon the panel to give clear reasons for its decision, especially in light of Dr Stern's much lower WPI finding. On their face, and given a beneficial construction, I consider the panel's reasons do not require the Court to engage in too much 'speculative gap filling'.[57] I consider the panel's acceptance of the abduction incident, and conclusions based on its mental state examination, provide an adequate foundation upon which to determine that the substance of the material upon which the decision turned has been sufficiently taken into account.[58]

95 The complaint of inadequate reasons is a difficult one to quantify. It is clear from the authorities that the panel did not have to explicitly state each and every aspect of its reasoning. Nor should the panel's reasons be picked apart, subjected to exhaustive scrutiny, read without the benefit of a doubt, or treated in a statutory or legalistic fashion. The panel was required to reveal how it approached its task, its active process of intellection, a requirement which was underscored by the unusual and somewhat troubling circumstances peculiar to this case. Indeed, given the marked difference between the findings of Dr Stern and the panel and, in particular, the significance and weight to be given to the abduction incident, the adequacy of reasons argument assumes some prominence.

96 In this context, with so much turning on the import of a new factual circumstance, the necessity to set out clear and coherent reasons becomes more pressing. So much is apparent from the authorities relating not only to administrative tribunals (such as medical panels) but also judicial bodies. As Nettle JA put it in Hunter v Transport Accident Commission:[59]

Where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and to assign reasons for the rejection of the argument or the resolution of the issue.[60]

97 It is clear from Wingfoot and subsequent authorities that a balance must be struck between requiring too much, and too little, of medical panels. On the one hand, a prima facie error of law which appears on the face of the written reasons for opinion cannot be allowed to stand, since it affects the legal rights of the parties to the dispute. On the other hand, to require a higher standard of medical panels would be to 'place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.'[61] As the High Court put it in Wingfoot, 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.'[62]

98 At the heart of the matter is the degree of difference between Dr Stern's finding of 20% WPI (with 8% due to the work-related injury and 12% due to pre-existing and unrelated factors) and the panel's finding of 40% WPI (with 30% due to the work-related injury and 10% due to pre-existing and unrelated factors). The degree of difference is sizeable and required the panel to set out its reasons for disagreeing with Dr Stern.

99 The panel did so, citing the fact that Dr Stern did not obtain a history of the abduction incident and reached a lower finding based on his mental state examination and assessment of the worker's reported diminished concentration and memory problems, diagnosing the worker with a 'chronic adjustment disorder with anxiety and repression' rather than a 'severe chronic exacerbation/aggravation of a pre-existing chronic post-traumatic stress disorder'. The explanation identifies that Dr Stern and the panel differed as to their essential findings of fact. That difference in finding of fact did not occur in a vacuum. The panel stated in its reasons that it had conducted an assessment of the worker's current psychiatric condition in accordance with GEPIC and reached its findings in relation to the six categories of mental function. The panel concluded that the worker had a medium class 3 impairment with a total psychiatric impairment of 40%. The assessment was a matter for the panel's clinical judgment. The panel's conclusion in relation to the worker's total psychiatric impairment was consistent with the panel's detailed and thorough findings as to the very significant effect of the assault on the worker's psychiatric state.

100 The panel attributed 30% of the total psychiatric impairment to conditions which had 'arisen directly from the circumstances of the accepted psychiatric condition injury' and the remaining 10% to the worker's 'pre-existing psychiatric conditions'. The panel's apportionment of impairment was explained by, and is consistent with, its analysis of causation. As noted, the panel explained why it had reached a different conclusion to that of Dr Stern, and in particular Dr Stern's impairment assessment. As I have said, it is not for this Court to prefer one finding over the other, and I am satisfied that the panel's difference of opinion to that of Dr Stern and the basis for the different opinion is set out in its reasons.

101 Further, the plaintiff submits that the panel failed to explain how it dealt with auditory hallucinations, which it says were described by the worker. It submits that this is relevant both to any assessment of the mental function of perception as well as any impairment potentially to be disregarded in line with s 91(7)(c).

102 As discussed, the panel wrote to the parties on 1 December 2016, seeking submissions about what it understood from the worker at the examination to be an account of auditory hallucinations. The issue was clarified in the worker's letter of response, dated 12 January 2017, where the worker stated that what she told the panel was of an incident when someone had, in fact, called out to her. Given that clarification, it is implicit that the panel did not consider the issue material to its opinion and, accordingly, did not refer to it in its reasons. I do not consider that an error of law could possibly arise in respect of this issue.

103 Finally, the plaintiff submits that the panel failed to explain whether in its opinion the worker suffers from hyperthyroidism and, if so, its relevance to the determination of the worker's psychiatric impairment is to be disregarded as arising from an unrelated cause.

104 It does not follow from the panel's attribution of 10% of current impairment to 'pre-existing' conditions that the panel failed to consider any unrelated subsequent impairment. The panel was alive to the fact that the worker suffered from hyperthyroidism. The panel recorded in its reasons the existence of the hyperthyroidism and the medication taken by the worker for its condition. The panel paid considerable regard to Dr Stern's report and it is implicit that it rejected his assessment of the involvement of hyperthyroidism in the worker's present condition. The panel was not required to explain why it did not accept Dr Stern's opinion in this regard.

105 It is implicit from its reasons that the panel did not consider there to be any psychiatric condition referable to unrelated causes subsequent to the work-related incident.

106 As I have said, when the panel's reasons are read in their entirety and given a beneficial construction, I do not consider there to be inadequacy amounting to an error of law.

108 The plaintiff has failed on the grounds relied upon as a basis for judicial review of the panel's opinion. The application must be dismissed. I will the hear from the parties as to the form of orders, including as to costs.

[1] See Pt 6, Div 3 and Part 12, Div 2. Although the injury to the worker occurred on 31 May 2013, and so falls under the old legislative regime, the referral to the panel occurred after 1 July 2014, when the WIRCA generally commenced: see ss 2, 6(6) and 6(8)(b).

[2] The conviction is recorded in the report of Assoc. Prof. Carroll, dated 9 September 2015, which formed part of the materials provided to the panel.

[4] (2013) 40 VR 60 ('Lingenberg'). See also Alcoa Holdings Ltd v Lowthian [2011] VSC 245 (J Forrest J) [66]-[70] ('Alcoa').

[5] There was an earlier letter, of 1 December 2016, but it contained nothing of substance.

[6] See below at [23].

[8] Victorian Government Gazette, G 19, 8 May 2008, 997-1012 ('GEPIC').

[9] (2009) 31 VAR 206, 211 [24] ('Heinz'). See also Barnett v Transport Accident Commission [1999] VSC 484; (1999) 15 VAR 414 [30] and Gillat v Transport Accident Commission [2003] VSC 15; (2003) 19 VAR 376 [27]. This approach should be taken as directly applicable to the GEPIC in the absence of any compelling argument to the contrary: YG-1 Australia Pty Ltd v Dr Brann [2016] VSC 713 [54] ('YG-1 Australia').

[10] Heinz (2009) 31 VAR 206, 216 [47].

[12] The GEPIC requires the assessor to evaluate the severity of impairment of six mental functions: intelligence, thinking, perception, judgment, mood and behaviour: at 1000.

[13] The higher the class the more severe the impairment. Thus, a class 2 is not as severe as a class 3 impairment, with each class representing a range of symptoms within which the subject psychiatric impairment may fall. On the application of the GEPIC, see Georgiou v Capitol Radiology Pty Ltd [2011] VSC 158 [109]-[125] ('Georgiou').