Plaintiff v Defendants

2 As might be expected, the plaintiff underwent various treatments prior to and after she was certified unfit for work. Her medical condition was first referred to a Medical Panel under s 45(1)(b) of the Accident Compensation Act 1985 in March 2014, following termination of weekly payments and medical and like expenses in September 2012. The Medical Panel, comprised of Dr David Barton, Dr Jennifer Harmer, Dr Stephen Adlard and Mr Barry Elliott, certified their opinion and gave reasons on 3 June 2014. I will refer to this Panel as 'the first Panel'.

3 The first Panel found that the plaintiff did not suffer from any medical condition or loss of function as a result of her alleged injury at work. It concluded that soft tissue injury had been suffered by the plaintiff but had since resolved. The first Panel found that the plaintiff suffered from a mild Adjustment Disorder with depressed mood resulting from and contributed to by the alleged injury. It found that the plaintiff had no present inability arising from an injury such that she was not able to return to her pre-injury employment.

4 A second referral to a Medical Panel was made on 5 December 2016 pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013. The second panel was comprised of the first to fourth defendants, Dr Armin Drnda (Neurosurgeon), Dr Brendan Hayman (Psychiatrist), Dr Daniel Lewis (Rheumatologist) and Dr Susanne Homolka (Occupational Physician). I will refer to the second Panel as the 'defendant Panel'.

5 The defendant Panel certified its opinion and published reasons on 19 March 2017. It reached similar conclusions to the first Panel, although the questions for consideration were different. The defendant Panel certified that the plaintiff had no present inability arising from an injury, and any incapacity for work did not result from, and was not materially contributed to by, any alleged injury. It was common ground that the plaintiff had suffered from an injury arising out of or in the course of her employment.

6 The plaintiff applied for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, and an order quashing the opinion and remitting the referral to a differently constituted Medical Panel to be considered according to law.

7 There were two limbs to the plaintiff's grounds. The first involved errors of law, and the second a denial of procedural fairness. There was some overlap.

8 The errors of law focused upon whether the defendant Panel was required, but neglected to consider, whether the plaintiff's continuing complaints of pain and restriction were as a result of a psychiatric condition. As a corollary, the plaintiff contended that the panel had failed to identify the necessary connection between a compensable physical injury and a psychiatric condition.

9 The plaintiff also challenged the adequacy of the defendant Panel's reasons for rejecting a secondary pain disorder, as found to exist by Dr Robert Athey, a psychiatrist. The plaintiff did not press the grounds in paragraph 1(d) of the Originating Motion, which was concerned with a consideration of radiological findings.

10 The second limb of the plaintiff's grounds for review concerned the failure to accord procedural fairness. There were two elements to this challenge. The first concerned the deployment by the panel of reported and observed 'inconsistencies'. The second involved the deployment by the panel of the plaintiff's apparent failure to seek further specialist medical attention between the end of May 2013 and the termination of her employment in September 2015.

11 The plaintiff contended that the panel was moved by the 'inconsistencies' and the delay to take an adverse view of her credit and, consequently, rejected her account of continuing pain and limited mobility. She complained that she was not afforded any opportunity to explain the inconsistencies, or the delay. The plaintiff may be taken to contend that had the panel accepted her account of the continuing pain and limited mobility, in the absence of a physical explanation, it would have been obliged to investigate, and would have investigated whether they were symptoms of a continuing psychiatric disorder resulting from a workplace injury.

12 Background facts are set out in the reasons of the panel, various submissions, the plaintiff's affidavit sworn 14 August 2015, filed in support of her application under s 134AB of the Accident Compensation Act 1985, and numerous medical reports provided to the defendant Panel, all listed in Enclosure A to the Reasons for Opinion.

13 The plaintiff was born on 10 May 1959 in Macedonia and migrated to Australia when she was 12 years old. She had attended school in Macedonia and, upon migrating to Australia with her family, continued her schooling from grade 6 until the conclusion of year 10. She married in 1976. Her first child was born in 1977. Later in that year she commenced work at Bonds Weaving Mills on a full-time basis until 1990, when she obtained work at a factory in Footscray, packing seafood, until the factory closed about a year later. Her second son was born in 1993. The plaintiff did not return to work outside the home until 2003, having registered with an employment agency. She commenced work, through the agency, with the employer as a casual worker. In 2006 the plaintiff was made a permanent employee.

14 Prior to commencing work as a permanent employee, the plaintiff was required to undergo a medical examination. She was declared fit, subject to some identified hearing loss.

15 As a full-time employee the plaintiff mostly worked on a packing line or roasting machine. Much of her work involved inspection and separation of crackers as they moved along a conveyor belt. She was required to look down at the crackers as they passed by and separate them into a single layer. This required the plaintiff to reach forward across the conveyor belt. She sometimes used a stick in her right hand to adjust crackers at a distance.

16 The plaintiff was also required to assist with seasoning crackers. She was required to scoop seasoning from a bag underneath a bench and add it to a seasoning barrel. The motion required her to lift the scoop above shoulder height to tip the seasoning into the barrels. In the year prior to ceasing work through injury, the plaintiff commenced rotation of tasks, between roasting and various packing processes, although continued to spend significant time packing.

17 In her affidavit, filed in support of her serious injury application in the County Court, the plaintiff deposed that she first became aware of pain in her neck and shoulders in early 2012. At the time she was working on a packing line. The work was more difficult than usual because of the quality of the crackers. She described the pain as getting worse in her right arm and shoulder when she used a stick to reach. The pain increased towards the end of her day shift, and more so towards the end of the working week.

18 In early April 2012 the plaintiff commenced attending a work physiotherapist for treatment. Despite the treatment, the pain and symptoms continued. She completed an Incident Notification Form on about 23 April 2012. On the same day she was assessed by Dr Lee, the factory doctor, and provided with a medical certificate, restricting her to light duties for two weeks. After two weeks of light duties, Dr Lee gave the plaintiff a certificate restricting the use of her right arm for another two weeks. By that time the plaintiff had consulted Dr E Sleaby at the St Albans Complete Health Care centre. Dr Sleaby arranged for an ultrasound and certified her unfit to work.

19 The plaintiff completed a WorkCover claim on 3 May 2012. Her claim was accepted and she received weekly payments of compensation, and was entitled to medical and like expenses. Her WorkCover payments were terminated by notice dated 13 September 2012.

20 The plaintiff described a 'return to work plan' that was arranged in August 2012. Based on certificates prepared by Dr Sleaby, the plaintiff returned to work for three hours a day for three days each week. She was given the tasks of opening packets that had not been correctly wrapped, and removing broken biscuits in the roasting area. She alternated between the two tasks for about a month, but said she was unable to manage. She said she found the work was causing her increasing pain and that she was emotionally unable to cope and perform her duties.

21 In September 2012 the plaintiff was referred for physiotherapy treatment, but explained that she was unable to attend because her WorkCover claim entitlements had been terminated. The plaintiff deposed:

I have been unable to undertake much treatment beyond attending my general practitioner since my WorkCover claim was terminated. As a result there have been no further investigations and I have had no physiotherapy since the end of 2012.

22 The plaintiff deposed that in May 2013 she was referred by her general practitioner to Dr Stockman, a rheumatologist. He recommended a steroid injection to both shoulders and physiotherapy. The plaintiff deposed that she could not take up the recommended treatment. The reason was not clearly stated, but I interpolate that it was because of the termination of WorkCover assistance.

23 The plaintiff deposed to her medication, including antidepressants and to continuing neck and arm pain. She claimed that both her shoulders were sore, limiting her ability to reach. She found activities such as lifting above shoulder height or brushing her hair difficult. She complained of pain in her neck and shoulders when she bent over a basin to brush her teeth, and described other difficulties in carrying out household duties.

24 Based on a fitness-for-duty report completed by Dr Chris Baker, regarding the plaintiff's ability to perform the inherent requirements of her pre-injury work, the employer notified the plaintiff in July 2015 that it was 'forced to take a view that we cannot continue with our employment relationship'. The plaintiff was invited to seek medical advice and other assistance. On 31 July 2015 the employer notified the plaintiff that her employment was terminated, effective on 4 September 2015.

25 On 14 August 2015 the plaintiff applied to the Victorian WorkCover Authority for a certificate of serious injury, required to bring a proceeding for common law damages. On 16 December 2015 WorkCover notified the plaintiff that it had determined that she did not have the requisite serious injury, and a certificate was therefore denied.

26 On 22 December 2015 the plaintiff filed an application in the County Court in which she sought leave to bring proceedings for the recovery of damages. On 17 October 2016 the defendants in that proceeding, the employer and Victorian WorkCover Authority, filed notice of intention to request that a medical question be referred to a Medical Panel, and a request, pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013, to refer certain specified questions to a Medical Panel for its opinion. The questions that were ultimately referred to a Medical Panel varied slightly from those contained in the request.

27 The documents provided to the defendant Panel are set out in Enclosure A to the Reasons for Opinion, which was exhibit JD9 to the affidavit of John Dellios, the plaintiff's solicitor, sworn 17 May 2017. Included within the bundle of documents was the plaintiff's affidavit sworn 14 August 2015 and written submissions on behalf of the plaintiff and the defendants. Significantly, the employer had informed the court (and consequently the panel) in writing that:

The plaintiff's credit is not in issue in this case, and there is no surveillance footage relied on by the defendants.

28 The employer submitted in writing to the defendant Panel that:

1. Any psychiatric injury from which the Plaintiff suffers is secondary to any physical injury. As is submitted above, any physical aggravation caused by employment with the First Defendant was very short-lived and has long ceased. The Defendants submit that any work-related physical aggravation no longer impacts on the Plaintiff's psychiatric state. It is more likely that any current psychiatric condition is secondary to an age-related degenerative/constitutional injury than to temporary and long-ceased work-related physical injuries.
2. In any event, the Defendants submit that any psychiatric injury from which the Plaintiff suffers (which it does not concede) is very mild in nature. It is of note that when examined by the previous Medical Panel, the Plaintiff's concentration, memory and attention appeared to be normal (Reasons p.8).

1. In relation to the findings on physical examination, the Panel's attention is drawn to the following examinations noted in the materials provided, which reveal relatively normal physical examinations:
   • Report of Dr Alex Stockman regarding clinical examination in May 2013: "slight" limitation in movement in the cervical spine and of both shoulders;
   • Report of Mr Clive Jones regarding clinical examination in April 2014: "She sat comfortably throughout the history taking and turned her head to engage the interpreter from time to time. She was able to remove her clothing without difficulty, and presented normal contours in both shoulders and in the cervical spine. Shoulder movement was noted to be free and unrestricted, with normal ranges of internal and external rotation" (at p.2).
   • Reasons of the previous Medical Panel in May 2014 at p. 8: There was a general limitation of movement of the neck, although there was a greater range of movement when distracted; the Panel noted a number of inconsistencies during examination.
   • Report of Mr Russell regarding clinical examination conducted in October 2015, at page 3: there was a good range of movement in the cervical spine and right shoulder (the left shoulder does not appear to have been specifically examined).[1]

29 The defendant Panel certified its opinion on 19 March 2017. Dr Hayman, a psychiatrist, had examined the plaintiff on 23 January 2017. The plaintiff was then examined jointly by the other members of the Panel on 27 February 2017. The defendant Panel noted that it formed its opinion with regard to the documents and information referred to in Enclosure A, a history provided by the plaintiff and the result of the examinations. In its Reasons for Opinion the defendant Panel expressly noted particular information to which it had regard, which included the plaintiff's affidavit of 14 August 2015, and the parties' submissions. It was also apparent that the panel relied on the work of the first Panel, some aspects of which were contentious.

30 By its Certificate of Opinion the defendant Panel set out each question and its answer. These were as follows:

Question 1: What is the nature of the plaintiff's current medical condition of the:

(a) Neck injury?

(b) Left shoulder injury?

(c) Right shoulder injury?

(d) Psychiatric injury

Answer: (a) - (c) In the Panel's opinion the Plaintiff is currently not suffering from any physical medical condition of the neck, or of the left shoulder, or of the right shoulder.

(d) In the Panel's opinion the Plaintiff is currently suffering from a mild Adjustment Disorder with depressed mood.

Question 2: Do any and which of the medical conditions identified in response to question 1 result from or are they materially contributed to by the Plaintiff's employment with the First Defendant?

Answer: The Panel is of the opinion that the Plaintiff's psychiatric medical condition of a mild Adjustment Disorder with depressed mood results from, and is materially contributed to by the Plaintiff's employment with the First Defendant.

Question 3: Does the Plaintiff have:

(a) A current work capacity for her pre-injury duties?

(b) A current work capacity for suitable employment?

Answer: (a) and (b) In the Panel's opinion the Plaintiff has no present inability arising from a compensable injury such that the Plaintiff is not able to return to the full duties and hours of work of her pre-injury employment.

Question 4: If yes to question 3(b), above, what constitutes suitable employment for the Plaintiff?

Answer: Not applicable.

Question 5: If yes to question 3(a) or (b) above, for how many hours per week can the Plaintiff perform such duties or employment?

Answer: No applicable.

Question 6: If the Panel is of the opinion that the Plaintiff has any incapacity for work:

(a) Does the Plaintiff's current incapacity for work result from or is it materially contributed to by any, and fi so which, of the alleged injuries?

(b) Is any such incapacity permanent?

Answer: (a) and (b) In the Panel's opinion the Plaintiff has no present inability arising from an injury and any incapacity for work does not result from, and is not materially contributed to by, any alleged injury.

31 A fair reading of the Reasons for Opinion revealed a degree of scepticism by the defendant Panel about the plaintiff's account of continuing pain and other symptoms. Notwithstanding the plaintiff's account in her affidavit sworn 14 August 2015, and given during her examination, the defendant Panel concluded that she was not suffering from any physical condition of the neck, or of the left shoulder, or of the right shoulder; and was suffering only from a mild Adjustment Disorder with depressed mood.

32 It was not as if the plaintiff's account of her symptoms was inconsistent with medical reports before the defendant Panel. There was a report which identified a psychiatric condition involving a secondary pain disorder. A Panel is not, of course, obliged to accept such reports. It is required to form its own opinion about the plaintiff's condition in response to the questions referred to it.

33 Having regard to the defendant Panel's scepticism of the plaintiff's account, its failure to address the question of whether her account of continuing pain and restricted mobility were as a result of a psychiatric condition is not remarkable. The failure of the defendant Panel to investigate a secondary cause for the pain may be explained by its rejection of the plaintiff's account. In my view, the reasons, fairly read, support such a conclusion, although not expressly stated.

34 The defendant Panel's rejection of the plaintiff's account of her condition was plainly influenced by the opinion and reasons of the first Panel, as well as 'inconsistencies' observed during the plaintiff's examination. It was also influenced by her failure to have sought or obtained specialist medical assistance after May 2013 until after termination of her employment in September 2015.

35 The plaintiff had provided an explanation for her failure to follow up some medical procedures. It was financial. WorkCover support had been terminated in October 2012. The defendant Panel noted that on 13 September 2012 the plaintiff had commenced physiotherapy but this treatment was discontinued after 10 sessions due to the termination of her entitlement to medical and like services in October 2012. The defendant Panel noted that the plaintiff was subsequently referred to a rheumatologist, whom she consulted on 1 May 2013, and who recommended treatment with a cortisone injection to her right shoulder, although the plaintiff did not follow up on that treatment. The panel noted,

She told the panel that for financial reasons this injection was not performed at that time.

36 Notwithstanding her failure to receive specialist medical attention following her consultation with the rheumatologist on 1 May 2013, the plaintiff continued to receive medical attention from her general practitioner, who prescribed various medications for pain and depression. Thus, the defendant Panel gave obvious weight to the plaintiff's failure to consult 'specialist' assistance, and may be taken to have rejected the plaintiff's financial circumstances as the reason for her failure to seek such assistance.

37 While the defendant Panel noted the plaintiff's explanation for her failure to take up specialist medical treatment in May 2013, and following her termination, there is no indication in its Reasons for Opinion of any enquiry made of the plaintiff as to why she failed to obtain specialist medical attention during that period.

38 The plaintiff filed an affidavit in this proceeding, sworn 24 June 2017. Her evidence was not challenged. She deposed that she was not asked by any Panel member to explain why she had not sought specialist medical assistance until October 2015.

39 During the course of the physical examination conducted by members of the defendant Panel, in the absence of Dr Hayman, psychiatrist,

The panel noted significant inconsistency in the plaintiff's ranges of active motion of both shoulders when these were tested by different methods, and there was a full range of passive gleno-humeral motion demonstrated bilaterally.

40 In its Reasons for Opinion, the defendant Panel described the physical examination process, noting its observations. Having made reference to various medical reports, the panel considered the Reasons for Opinion of the first Panel, dated 3 June 2014, which had concluded that 'any soft tissue injury has resolved' and 'there is now no physical medical condition relevant to the alleged injuries'. The defendant Panel continued:

The current Panel noted, and considered, the inconsistencies described by the previous Panel in relation to its clinical examination of the Plaintiff on 27 May 2014, and the similar inconsistencies demonstrated in the course of its own examination of the Plaintiff on 27 February 2017. The Panel also considered the Plaintiff's history of the onset and progression of her symptoms, noting that despite no longer being in the workforce, the nature, extent and severity of the Plaintiff's symptoms of pain have remained unchanged during the past more than four years prior to the Panel's assessment and further noting that despite her reportedly unremitting symptoms the Plaintiff did not seek further specialist medical attention after May 2013 until after the termination of her employment in September 2015.

Based on its collective expertise and experience the Panel considered that the Plaintiff's symptoms do not correlate with, and cannot be explained by, the degenerative changes in her cervical spine demonstrated on the MRI scan dated 13 August 2012. The Panel also considered the radiological findings to be consistent with the Plaintiff's then age of 53 years.

The Panel gave consideration to the degenerative changes of the Plaintiff's acromio-clavicular joint and rotator cuff of the right shoulder described in the report of an MRI scan of her right shoulder dated 12 October 2015, noting that these changes were not demonstrated by the ultrasound scan of her right shoulder on 7 May 2012. The Panel acknowledged the limitations of both radiological techniques, and noted that the two techniques are not directly comparable. However, in the context of its normal clinical examination of the Plaintiff's right shoulder, and on the basis of its collective expertise and experience, the Panel considered that the changes in the Plaintiff's right shoulder demonstrated by the MRI scan were consistent with her current age of 57 years and were asymptomatic.

Based on its consideration of the factors above, and on its collective expertise and experience the current Panel consequently formed a similar opinion to that reached by the previous Panel. The current Panel considered that notwithstanding the Plaintiff's complaints of persistent pain, she is not currently suffering from any physical medical condition of the neck or of the right and left shoulder.

The Panel therefore concluded that the Plaintiff is currently not suffering from any physical medical condition of the neck, or of the right shoulder, or of the left shoulder.[2]

41 The inconsistencies described by the first Panel, to which the defendant Panel made reference, were mentioned by the first Panel in the context of a physical examination. In its Reasons for Opinion, the first Panel had said,

On physical examination the Panel noted tenderness to light palpation around the lower part of the neck extending into both trapezius muscles, more so on the right. The application of light pressure to the angle of the neck area produced pain and pins and needles in the corresponding upper limb. There was some generalised tenderness around the right elbow not localised to the lateral epicondyle, there were a few Heberden's nodes noted in the distal interphalangeal joints of both hands. There was some slight thickening over the first metacarpal joint in both hands more so on the right. There was a normal range of movement of the wrist and elbow on both sides. There was a general limitation of movement of both shoulders, more so on the right with reported pain. Muscle power was globally reduced throughout both upper limbs more so on the right with poor effort. Sensation to pinprick was generally reduced throughout most of the right upper limb. Reflexes were normal in the upper limbs. There was a general limitation of movement of the neck although a greater range of movement was noted when distracted. The Panel noted a number of inconsistencies during the examination.[3]

42 The only inconsistency specifically mentioned by the first Panel involved the movement of the neck, discernible when the plaintiff was distracted. Any additional inconsistencies, which the first Panel may have intended to include within its description of the 'number of inconsistencies', were not identified. Indeed, the first Panel had noted 'general limitation of movement of both shoulders', without qualification. Thus, it might be argued that the defendant Panel intended to confine its reference to inconsistencies, noted by the first Panel, to movement of the neck. But its reference to more than one inconsistency, to 'similar inconsistencies', and to 'significant inconsistency in the plaintiff's range of active motion of both shoulders', would suggest that the defendant Panel formed a view about a number of inconsistencies noted by the first Panel, which were not described. Accordingly, there is no evident correlation between the inconsistencies noted by the first Panel and those 'demonstrated in the course of [the] examination of the plaintiff on 27 February 2017'.

43 In her affidavit sworn 24 June 2017, the plaintiff deposed that she was not asked any questions about her examination by the first Panel, or concerning the inconsistencies mentioned by the first Panel, or similarities between inconsistencies. The Reasons for Opinion of the defendant Panel do not suggest that any member of the panel made any enquiry of the plaintiff concerning inconsistencies.

44 In relation to the plaintiff's psychiatric condition, the defendant Panel concluded,

Based on its psychiatric examination of the Plaintiff on 23 January 2017, and on its psychiatric expertise and experience, the current Panel considered that the Plaintiff continues to demonstrate evidence of a mild Adjustment Disorder with depressed mood which, however, is relatively well controlled with psychotropic medication.

Based on its analysis of the onset and progression of the Plaintiff's psychiatric symptoms, where she initially began to experience emotional distress in the context of her failed attempt to return to work in August 2012, and where her symptoms have persisted, with fluctuating severity but without remission, from the onset to the present time, the Panel concluded that the Plaintiff's psychiatric condition is essentially the same as the previous Panel's opinion that the Plaintiff's current psychiatric medical condition of a mild Adjustment Disorder with depressed mood has developed in the context of her pain and resultant physical limitations and has persisted notwithstanding the resolution of her soft tissue injuries.

The Panel therefore concluded that the Plaintiff is currently suffering from a mild Adjustment Disorder with depressed mood, and the Panel also concluded that this condition results from, and is materially contributed to by the Plaintiff's employment with the Defendant.[4]

45 There can be no doubt that the defendant Panel did not overlook the question of a 'secondary pain disorder', as a psychiatric condition. It referred to a report by an independent medical examiner, Dr Robert Athey, psychiatrist, dated 3 February 2015, in which Dr Athey considered the plaintiff to be suffering from an 'adjustment disorder with mixed anxiety and depressed mood DSM-IV code 309.28 and a secondary pain disorder'. Having made reference to Dr Athey's report, which the defendant Panel observed was two years old, it said that it had 'formed a different opinion in respect of the diagnosis of the plaintiff's psychiatric medical condition'. The defendant Panel did not explain its rejection of the 'secondary pain disorder', although it was consistent with its rejection of the plaintiff's account of her ongoing pain. Having expressed the opinion that the plaintiff suffered from mild Adjustment Disorder, with depressed mood, the defendant Panel concluded that the psychiatric condition did not affect her current work capacity in any way.

46 The defendant Panel mentioned other reports which referred to ongoing pain and functional restrictions, but stated that it formed a different view 'for the reasons above.' The defendant Panel, as it was entitled to do, formed a different view to those expressed by Mr Kossmann, orthopaedic surgeon, Dr Helen Sutcliffe, occupational physician, and Mr Kenneth Brearley, general surgeon, all of whom were of the opinion that the plaintiff had no current work capacity.

47 While the defendant Panel did not elaborate on the basis for its 'different opinion', the only explanation, embodied in the 'reasons above' was its rejection of the plaintiff's account of her symptoms. Were it otherwise, the panel would have been obliged to consider the cause of such symptoms, having concluded the absence of any physical medical condition.

48 The errors of law alleged by the plaintiff evaporate in significance once it is accepted that the defendant Panel rejected her account of pain and limited mobility. The defendant Panel had, in effect dismissed, as non-existent, any foundation for an enquiry into a secondary pain disorder caused or contributed to by the workplace injury. Thus, the crucial question on this application is whether, by rejecting the plaintiff's account of her symptoms, the defendant Panel had denied the plaintiff procedural fairness.

49 Notwithstanding the fact that a Medical Panel is appointed to express its expert opinion, it is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of its function.[5] As Mason J observed in Kioa v West:[6]

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council; Salemi [No.2]; Ratu; Heatley v. Tasmanian Racing and Gaming Commission; F.A.I. Insurances Ltd. v. Winneke; Annamunthodo v. Oilfields Workers' Trade Union. The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

50 Procedural fairness may, depending upon the legislative scheme establishing and defining a decision-making process, the nature of the decision to be made and the parties, involve different elements and qualifications. In Szbel v Minister for Immigration and Multicultural and Indigenous Affairs,[7] the High Court addressed a complaint by the appellant that he was denied sufficient opportunity to give evidence or make submissions about what turned out to be determinative issues before the Refugee Review Tribunal, involving his credit. In the course of its concluding remarks on the appellant's entitlement to relief the High Court observed:

First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry,

"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.[8]

51 The employer submitted that the assessment of the plaintiff's condition, undertaken by the defendant Panel, was not an adversarial process requiring notice to be given to the plaintiff by the panel to the effect that its medical observations were inconsistent with the plaintiff's account of her pain and mobility. The employer submitted that such a requirement would contradict the observation of Lord Diplock in F Hoffmann-La Roche, to which the High Court made mention in Szbel, requiring a running commentary from the tribunal on what it thought about the veracity of the evidence given to it.

52 Second, the employer submitted that the role of the 'inconsistencies' found by the first Panel in the decision-making process of the defendant Panel was unclear. It was not apparent that it played a material role in the decision-making process of the defendant Panel.

53 Third, the employer submitted that the observations made by the defendant Panel were of a uniquely medical character, falling within the expertise of the panel, and it was not appropriate to engage the plaintiff in a discussion about the accuracy of those observations.

54 Fourth, the employer submitted that the plaintiff was on notice of the findings made by the first Panel and thus had an opportunity to make written or oral submissions to the defendant Panel in relation to that matter. In its written submissions to the defendant Panel, dated 2 November 2016, the employer made express reference to the inconsistencies observed during examination by the first Panel.

55 The dependency of the defendant Panel's opinions and reasons on the 'inconsistencies' observed by the first Panel and their own observations was obvious, but its reasoning opaque. From its Reasons for Opinion, it was not clear what inconsistencies, other than a range of movement of the neck when distracted, had been observed by the first Panel. It must be assumed that the knowledge of the defendant Panel, of the observations of the first Panel, was confined to the Reasons for Opinion of the first Panel. In the absence of some elaboration of what the first Panel had observed, the identification by the defendant Panel of 'similar inconsistencies' was unsound, and erroneous.

56 The defendant Panel failed to adequately explain, in its Reasons for Opinion, the correlation between inconsistencies observed by the first Panel and its own observations. Notwithstanding that defect, the dependency of its decision-making process on that correlation and observation is self-evident. Although the defendant Panel failed to disclose an adequate path of reasoning, that defect did not prevent consideration by this Court of the importance of the observed 'inconsistencies' to the decision-making process. Thus, I would decline to grant relief to the plaintiff on the ground that the reasons were inadequate.

57 The lack of an evident correlation between the observations of the first Panel and the defendant Panel did not, however, assist the employer in this application. The materiality of the 'inconsistencies' to the reasoning process of the defendant Panel was obvious. The only discernible grounds for its rejection of the plaintiff's account of continuing pain and limited mobility were the noted 'inconsistencies', and her failure to seek specialist medical attention from May 2013 until after the termination of the plaintiff's employment. Thus, the credibility of the plaintiff's account became an important issue in the reasoning process of the defendant Panel, elevating the question of inconsistencies beyond the status of mere professional observation.

58 Furthermore, the defendant Panel's rejection of the plaintiff's account of her pain and limited mobility is, in my view, the only credible explanation for its failure to consider a psychiatric condition as the cause of the ongoing symptoms. It did not consider such an enquiry as necessary, because of the absence of symptoms.

59 To these factors, must be added another important element. The parties embarked upon the referral on the basis that there was no challenge by the employer to the plaintiff's credit. In context, this meant that the employer did not challenge her account of pain and mobility. While a decision by the employer not to challenge the plaintiff's credit would not bind a panel, it could not depart from that assumption, without notice to the parties, if its departure was important to its decision.

60 The importance to the defendant Panel's decision of the observed inconsistencies, and unexplained delay, as the basis upon which it rejected the plaintiff's account of her pain and mobility, required the defendant Panel to give the plaintiff an opportunity to explain the inconsistencies and delay. Moreover, the assumed basis upon which the case was framed for the defendant Panel - where credit was not in issue - required it to inform the parties that it may not accept the plaintiff's account.

61 The steps required by a panel in such circumstances will depend upon the significance of the issue to its decision and the likely impact on a party. The importance of the plaintiff's account of ongoing pain and limited mobility, to the course of the defendant Panel's deliberations and opinion, was profound. Rejection of the plaintiff's account was plainly adverse to her interests.

62 In my opinion, it was the duty of the defendant Panel, in the circumstances of this case, to inform the parties that it was unwilling to proceed on the assumption that the plaintiff's account of her symptoms was correct, and would reach its own conclusions. One consequence of such notice might be that a question over the reliability of the plaintiff's account made that issue unsuitable for determination by a Medical Panel. If the defendant Panel was to proceed to decide for itself whether to accept the plaintiff's account, it was required, at the very least, to notify the parties of each observed inconsistency, and that these, together with the delay in seeking specialist medical assistance, might suggest the absence of genuine symptoms.

63 In my opinion, the defendant Panel failed to accord to the plaintiff the necessary degree of procedural fairness to which she was entitled. While it is possible that the defendant Panel's opinions might ultimately be found to be correct, it has denied the plaintiff her right, in the special circumstances of this case, to provide an explanation and make submissions to support the credibility of her account.

64 The failure to accord to the plaintiff the necessary degree of procedural fairness renders the Certificate of Opinion dated 19 March 2017 amenable to an order in the nature of certiorari, quashing the decision. The materiality of the error to the opinions expressed by the defendant Panel is obvious. I am satisfied that had the plaintiff been given an opportunity to explain the observed inconsistencies, and the delay in seeking specialist medical assistance, the defendant Panel might have been persuaded that she was suffering from a secondary pain disorder referrable to a workplace injury. Alternatively the parties, or one or other of them, might have sought to have the plausibility of the plaintiff's account determined by a court. Consequently, I will order that the Certificate of Opinion be quashed. I will hear from the parties on what further orders should be made, including orders for costs.

[5] Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [32]-[34]; North v Homolka [2014] VSC 478; Toyota v Bendrups & Ors [2016] VSC 718.

[6] [1985] HCA 81; (1985) 159 CLR 550, 582 (citations omitted).

[7] [2006] HCA 63; (2006) 228 CLR 152, [44]-[49] (citations omitted) ('Szbel').