Plaintiff v Defendants

Supreme Court of Victoria|2018-11-12|Before: GARDE J

JUDICIAL REVIEW - Workers compensation - Medical panel - 55% whole person impairment assessed by the panel - 38% loss of visual field to the left eye assessed by the panel - Left visual field previously assessed as normal - Failure to afford procedural fairness - Failure to resolve widely varying test results as between panel, independent medical examiner and treating specialist - Failure to act in accordance with the Guides - Panel decision quashed - Remitted to differently constituted panel - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition).

2 After examination by an ophthalmologist appointed as the independent medical examiner, the worker was assessed as having normal visual function in his left eye, and a combined whole person impairment of 25% under the Guides.[1] The worker disputed the physical impairment assessment.

3 The agent acting on behalf of the State of Victoria ('the plaintiff'), referred two medical questions to a medical panel ('the panel') for an opinion as to the degree of impairment. The panel gave a certificate of opinion and reasons for opinion dated 10 December 2017 assessing the worker's loss of visual field to the left eye at 38%, with a combined whole person impairment of 55%.

4 The plaintiff seeks to quash the certificate of opinion and reasons for opinion and asks the Court to remit the referred questions to a differently constituted panel. The application is made under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

5 On or about 28 June 2015, the worker lodged a claim for weekly payments together with medical and like expenses under the WIRCA. The primary claim was accepted by an authorised agent of the Victorian WorkCover Authority acting on behalf of the plaintiff.

6 In a claim form signed on 17 July 2015, the worker claimed a lump sum impairment benefit in respect of an injury described as 'bilateral eyes', caused by the penetration of metal rod and dust into his eyes while working as a driver.

7 The worker was examined by Dr Robert Nave, an ophthalmologist acting as independent medical examiner under s 27 of the WIRCA. He conducted an assessment in accordance with s 54 of the WIRCA. In a report dated 23 February 2017, he found that:

(1) the worker had unaided visual acuities of 6/36 with his right eye and 6/9 with his left eye;

(2) the worker had an essentially normal left eye visual field, but 39% loss of his right eye visual field; and

8 Dr Nave re-examined the worker on 3 August 2017. He found that:

(1) the worker had an unaided visual acuity of 6/36 for the right eye and 6/12 for the left eye. Visual acuity for the left eye improved to 6/9 with a correction lens.

(2) the worker was unable to read any print with the right eye, but could read N5 print with the correction lens;

(4) while he had 88% visual impairment of his right eye, he still had good visual function in his left eye and should not have any difficulties continuing to perform office work; and

(5) his ocular condition had not changed over the past 6 months and could be considered stable. It was unlikely to change by more than 3% over the next year.

9 The worker was examined by his treating ophthalmologist Dr Marc Sarossy on 26 July 2017 and 1 August 2017.

10 In a report dated 6 August 2017, Dr Sarossy found that the worker's visual field of his left eye was normal, but that his right eye condition was slowly deteriorating due to increasing blepharospasm and ptosis.

11 The panel consisted of two specialist medical practitioners. In its reasons for opinion the panel stated that the worker had been separately examined by each panel member.

12 Dr Heather Mack, an ophthalmologist, examined the worker on 2 November 2017 and 16 November 2017. Dr Susanne Homolka, an occupational health physician, conducted an examination on 3 November 2017.

13 In a certificate dated 10 December 2017, the panel gave its opinion as to the medical questions referred to it:

Question 1. What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?

Answer: In the Panel's opinion the worker has a 55% whole person impairment resulting from the accepted left and right eyes injury when assessed in accordance with Section 54 of the Act (sic). The degree of impairment is permanent.

Question 2. Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in Section 221?

Answer: No.

(a) noted the information contained in Dr Sarossy's report of 6 August 2017 and in his clinical records;

(b) noted his findings as to visual acuity in the right eye and the left eye over time; and

(c) stated that it had attempted to examine the worker's eyes and visual system on 2 November 2017. This was not possible 'due to the worker's apprehension and anxiety due to the testing required at physical examination'.

15 As to the left eye, the panel found that the worker had:

(a) unaided distant visual acuity of 6/9.6 with no improvement with refraction;

(b) close vision of J3; and

(c) a 38% loss of visual field as found by Monocular Esterman field testing.

16 Following its examination of the worker, the panel found that the worker was suffering from:

(a) post-traumatic visual dysfunction, including ptosis;

(b) reduced visual acuity and loss of visual field in the right eye; and

(c) reduced visual acuity and loss of visual field in the left eye.

17 The panel concluded that the physical medical condition of the workers visual system had stabilised for purposes of an impairment assessment, and was unlikely to remit with or without medical treatment.

18 Having made these findings, the panel carried out a visual system impairment assessment in accordance with Chapter 8 of the Guides, recording its findings in a table:

Corrected Central Vision

(a) Distance

(b) Near

Deformities, scars, cosmetic defects (right ptosis)

19 Following this assessment, the panel noted the reports of Dr Nave of 23 February and 3 August 2017 and said:

The Panel is of the opinion that based on its examinations of the worker on 2, 3, and 16 November 2017, there is a 55% whole person impairment for both eyes. The Panel therefore does not agree with the whole person impairment of Dr Nave.

20 The plaintiff alleged that the certificate and reasons of the panel should be quashed by reason of jurisdictional errors.[2] The five jurisdictional errors alleged by the plaintiff are in summary:

(d) making a mistake of jurisdictional fact;[3] and

(e) failing to give an adequate statement of reasons.

21 The worker contended that the panel had made no error.

22 The plaintiff relied on affidavits of its solicitor exhibiting relevant documents. The documents exhibited included documents relating to the condition and treatment of the worker not submitted to the panel. The worker objected to the receipt of these documents by the Court. In the event, it is unnecessary for me to refer to, or take into account any of the documents objected to by the worker.

23 Under s 54 of the WIRCA, the assessment of a degree of impairment is made in accordance with the Guides.

24 Chapter 1 of the Guides describes the impairment evaluation process in these terms:

In practice, the first key to effecting an accurate impairment evaluation is a review of office and hospital records maintained by the physicians who have cared for the patient since the onset of the medical condition. Such records include clinical notes, medical consultation reports, hospital records, admission and discharge summaries, notes on operations, pathology and laboratory test reports, and reports on special tests and diagnostic procedures. Using multiple sources of information and attempting to ensure that the sources are objective can help eliminate bias, and error introduced by selecting or encouraging one outcome over another.

Before judgments according to the Guides are accepted, the history and course of the medical condition must be analysed. This analysis should include findings from previous examinations, the treatment and responses to treatment, and the impact of the condition on the patient's activities. Before a judgment regarding impairment is made, it must be shown that the problem has been present for a period of time, is stable, and is unlikely to change in future months in spite of treatment.

In evaluating an impairment, it is important to obtain enough information to characterise it in accordance with the Guides requirements. Once this task is accomplished, the evaluator's findings may be compared with the clinical information already available about the individual. If the evaluator's findings are consistent with the results of previous clinical studies, the findings may be compared with the Guides criteria to estimate the impairment. If the findings are not consistent with those of earlier studies, there should be communication between the involved physicians and clinical studies as needed to resolve any disparities.[4]

25 Chapter 2 of the Guides describes the major objective of the Guides in these terms:

The major objective of the Guides is to define the assessment and reporting of medical impairments so that physicians can collect, describe and analyse information about impairments in accordance with a single set of standards. Two physicians, following the methods of the Guides to evaluate the same patient, should report similar results and reach similar conclusions. Moreover, if the clinical findings are fully described, any knowledgeable observer may check the findings with the Guides criteria.

If two physicians who examine a patient and use the methods of the Guides do not obtain similar results and reach similar conclusions, then the book can be used to resolve the discrepancies. Analysis of the records and reports in question will disclose the disparities, which should be in matters of fact rather than opinion. If the patient's medical condition is stable, then different physicians should reach the same general conclusion. If widely disparate evaluations occur, then the stability of the medical condition and the matter of permanent impairment would be in question.[5]

26 The Guides also make provisions for medical assessment of impairment, and prescribe rules for the evaluation of impairments. Chapter 2.1 and 2.2 of the Guides include the following passages:

2.1 Medical Assessment of Impairment

According to the Guides, the first step in assessing an individual's impairment is gathering thorough and complete historical information on the medical condition(s) and then carrying out a medical evaluation supported by appropriate tests and diagnostic procedures.

A proper medical evaluation accurately documents the individual's clinical status. If the current findings are consistent with the results of previous clinical evaluations, the findings may be compared with the appropriate Guides tables to estimate the individual's impairment. If the current findings do not agree with the recorded information, there should be further clinical evaluation to resolve the disparities.

...

2.2 Rules for Evaluations

... The physician must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated.[6]

...

27 Chapter 8 of the Guides addresses the visual system. It describes visual impairment in these terms:

Visual impairment occurs in the presence of a deviation from normal in one or more of the functions of the eye, which include (1) corrected visual acuity for near and far objects; (2) visual field perception; and (3) ocular motility with diplopia. Evaluation of visual impairment is based on evaluation of the three functions. Although not all of the functions are equally important, vision is imperfect without coordination of all three. Other ocular functions and disturbances are considered to the extent that they affect one or more of the three functions. Impairment percents representing the functions are combined.[7]

28 Chapter 8.4 provides for a three step process to determine the impairment of the visual system and of the whole person. Those steps are:

Step 1: Determine and record the percentage loss of central vision for each eye separately, combining the losses of near and distance vision.

Step 2: Determine and record the percentage loss of visual field for each eye separately (monocular) or for both eyes together (binocular).

Step 3: Determine and record the percentage loss of ocular motility.[8]

29 The results from each of these steps are recorded and successively combined using the Combined Values Chart.

30 In Chapter 8.2, the Guides describe the different visual functions measured by the assessment of central visual acuity as compared with the assessment of visual field:

While central visual acuity represents the ability to discern fine details, visual field acuity represents visual ability over a wide breadth of view while the subject is looking straight ahead. There are two elements to the visual field evaluation. One is the peripheral-most location at which a standard object can be detected. The other is the quality of visual functioning at every point within the field of view.[9]

31 The Glossary to the Guides defines 'Impairment' and 'Permanent impairment' in these terms:

Impairment: Impairment is the loss, loss of use, or derangement of any body part, system or function.

Permanent impairment is impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment.

A permanent impairment is considered to be unlikely to change substantiality and by more than 3% in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it in according to Guides criteria.[10]

Ground 1 - Failure to accord procedural fairness

32 A failure by a decision maker acting under statutory power to afford procedural fairness where the decision is capable of having an adverse effect on legally recognised rights or interests of a person gives rise to reviewable error.[11]

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.[12]

34 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court adopted the following statement:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[13]

35 A medical panel constituted under the WIRCA is required to observe principles of procedural fairness in forming its opinion.[14]

36 In North v Homolka, Ashley JA discussed a want of procedural fairness in these terms:

It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material.[15]

37 In Barrett Burston Malting Co Pty Ltd v Kotzman, Cavanough J said:

A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion - say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners - such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be 'heard' (for instance, through submitting its own medical reports or written submissions) on the issue.[16]

38 In this decision, the claim related to an injury to the left wrist and hand. A medical panel determined, taking into account of the nature of the worker's psychiatric condition, that the worker was suffering from persisting dysfunction of the left hand and forearm, attributable to factitious disorder.[17] The employer contended that there was no medical opinion provided to the medical panel which identified or suggested a diagnosis of a 'factitious disorder.'[18] Cavanough J held that the diagnosis was unexpected and could not reasonably have been anticipated, and that the employer was denied a fair opportunity to address the matter.[19]

39 In HJ Heinz Company Australia Ltd v Kotzman,[20] the claim related to a left ankle injury requiring total left ankle replacement surgery. The panel made an assessment of whole person impairment of 20% as against the 8% assessment made by an independent medical examiner on the basis that it considered that the 20% more accurately reflected the likely outcome of the worker's total left ankle replacement. Kyrou J held that the panel had introduced a new issue extraneous to the Guides and not given the plaintiff prior notice of the issue.[21]

40 In Calleja v Franet Pty Ltd,[22] a medical panel decided that some of the claimant's symptoms were indicative of menopause. There was no previous suggestion that menopause was an issue. Vincent J held that it was of the utmost importance that the affected individual be given a proper opportunity to be heard. The plaintiff had no way of knowing that the issue had arisen. Procedural fairness required that the panel inform her that it may arrive at the view that her symptoms did not relate to her work injury but to a separate condition.[23]

41 Another example of the application of the principles of procedural fairness is Midfield Meat Processing Pty Ltd v Fish.[24] In that case, the worker said that he was incapacitated for work by reason of work-related injuries to his neck, right shoulder and arm. He said that he suffered from complex regional pain syndrome. The medical panel determined that he suffered from 'undifferentiated somatoform disorder'. This had not previously been suggested. Bell J held that there had been a denial of natural justice and that the parties should have been given an opportunity to be heard on this issue raised by the panel.[25]

42 In YG-1 Australia Pty Ltd v Dr Brann,[26] Zammit J held that a panel's conclusion that a claimant had a severe major depressive disorder with psychotic features, including persecutory delusions and a 35% psychotic impairment, as against a previous assessment of 15%, was in breach of the requirement for procedural fairness. The employer had not had the opportunity of making submissions or providing further information or evidence.

43 A final example is Sargent v Disler.[27] In that case, a medical panel diagnosed the claimant's right knee dysfunction was not work-related but constitutional in origin. The panel found that the claimant had maltracking of the patella, when based on the material which had been provided to it, there had never been any suggestion of maltracking. McDonald J held that the claimant was denied procedural fairness. The panel's finding was unexpected and could not reasonably have been anticipated on the material known to the claimant and his advisers.

(a) the parties knew that the plaintiff's condition had been referred to a medical panel, and that the panel included an ophthalmologist;

(b) the accepted injuries and the referral extended to both the left and right eyes;

(c) it was known that the panel would likely use the Monocular Esterman field test because that approach was adopted by other practitioners;

(d) the panel had reviewed Dr Sarossy's report and those of Dr Nave, and had undertaken a thorough review of the material;

(e) it was common place for panels to disagree with reporting practitioners on both sides; and

(f) the panel's factual findings should not be set aside.

46 The uncontested facts are that the worker was assessed by Dr Sarossy, his treating ophthalmologist in July and August 2017 as having a normal left eye visual field. Likewise, Dr Nave, the independent medical examiner, assessed the worker in February and August 2017 as having 'an essentially normal left visual field'.

47 The panel however, found that the worker had a left eye visual field loss of 38%. This was a critical finding. When combined with an 8% central vision loss, there was a 43% left eye visual impairment in accordance with the Guides. When taken with a 94% right eye visual impairment, the total impairment of the visual system increased to 56%. Ultimately the total impairment of the whole person rose to 55% from 25% as assessed by Dr Nave. The finding of loss of left eye visual field of 38% was the major factor elevating the total impairment of whole person assessment.

48 Although the panel noted Dr Sarossy's assessment, and the reports of Dr Nave, it simply stated that it did not agree with the whole person impairment of Dr Nave. No discussion of the possible causes or reasons for the disagreement occurred. No explanation was advanced as to how the left eye findings could differ so markedly between the treating and examining specialists and the panel.

49 The plaintiff was not given notice of the panel's actual or possible assessment of a 38% loss of left eye visual field, and had no reason to expect that such an assessment would be made. It was an assessment contrary to the previous ophthalmic assessments of the worker's left eye visual field.

50 Given the previous assessments of essentially no loss of left eye visual field, the findings of the panel and the extent of left eye impairment came as a surprise to the plaintiff.

51 For these reasons I find that there was a clear denial of procedural fairness. The panel failed to put the parties on notice of its new assessment, or likely assessment of the worker's loss of left eye visual field, or to give them the opportunity of putting further evidence or submissions before it.

Grounds 2 and 3 - Error in applying the Guides and failure to take into account relevant considerations

52 The plaintiff contends that the panel failed to properly apply the Guides, or to consider relevant considerations, by failing to:

(a) take into account the historical material, and actively intellectually engage with the prior findings of 'normal' left visual field;

(b) reconcile the prior findings as to left visual field loss with its own findings either by explaining why its findings should be preferred, conducting a further clinical evaluation, or resolving the disparity in accordance with the Guides; and

(c) given the grossly different findings, consider, in line with the WIRCA and the Guides, whether the injury relating to the left visual field was stable and permanent.

53 The worker's claim for lump sum impairment benefits was made under Division 5, Part 5 of the WIRCA. The level of benefits depends on the degree of impairment of the worker decided 'in accordance with' the Guides.[28]

54 In H J Heinz & Anor v Kotzman & Ors,[29] Kyrou J decided that a panel had committed jurisdictional error for failing to assess impairment in accordance with the Guides. In relation to the application of the Guides, Kyrou J said:

The interpretation of the Guides is a question of law. The determination of a level of impairment is a question of fact.

...

The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.

...

The meaning of the phrase 'in accordance with' depends on the context. It is generally taken to mean 'in conformity with', although it some contexts, strict compliance is not required.

In order for a medical panel to assess impairment 'in accordance with the [Guides]' as required by s 91 of the Accident Compensation Act 1987 (Vic) ('AC Act') it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part of system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.

Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear sub-optimal. This is so because the role conferred by the AC Act on a 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 Guides.[30]

55 The plaintiff relied on the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[31] where Mason J held that failure to take into account a relevant consideration must relate to a consideration which the decision-maker is bound to take into account.[32] Where relevant considerations are not expressly stated, they are determined by implication from the subject matter, scope and purpose of the Act.[33] A factor may be so insignificant that the failure to take it into account could not have materially affected the decision.[34]

56 In Ryan v The Grange at Wodonga Pty Ltd,[35] the Court of Appeal held that if a panel has failed to take into account a relevant matter raised in the worker's answers to questions asked by the panel, or in the documents provided to the panel, the panel has failed to take account of a relevant consideration.[36]

57 The plaintiff also sought to invoke the principle that the decision-maker must engage in an active intellectual process in which each relevant matter receives his or her genuine consideration.[37]

Historical material and active intellectual engagement

58 In view of the finding that there was a denial of procedural fairness, it is not necessary to consider the suggested errors at great length.

59 I reject the submission that the panel did not take into account historical material, or the medical reports that were referred to it. Clearly it did so, referring in its reasons to clinical records and reports of Dr Sarossy and Dr Nave. It was well aware of them, but did not agree with their findings as to left eye visual field loss. The panel conducted its own examination of the worker and proceeded on the basis of its own findings rather than the findings found in the reports before it.

60 I accept that there was no active intellectual engagement as to how the markedly different results in relation to left eye visual field could have occurred, or as to whether they could be reconciled. The disparity in results passed without investigation or comment from the panel apart from the statement that the panel did not agree with the examining specialist.

61 It was to be expected that there would be substantial agreement between the tests and assessment of the treating ophthalmologist, the independent medical examiner and the panel as to the extent of loss of visual field of the left eye. However, there was a major discrepancy between the test results for loss of visual field of the left eye as between the treating ophthalmologist, the independent medical examiner, and the panel. There was no investigation or explanation as to how this had occurred.

62 The clear intent of the Guides is to promote precision and consistency, and to make the process of estimating impairment as objective as possible. Chapter 1 of the Guides provides that 'if the findings are not consistent with those of earlier studies, there should be communication between the involved physicians and clinical studies as needed to resolve any disparities.' The panel did not do this. It simply accepted its own finding as correct and the earlier assessments as incorrect. There was no communication with Dr Sarossy or Dr Nave. There was no attempt to resolve the differences in assessment of the loss of visual field of the left eye.

63 In my view, the panel failed to act in accordance with the Guides when its own findings did not agree with the recorded information and opinions before it, but it did not undertake any further clinical evaluation or communicate with previous assessors to resolve the disparity. It substituted is own view for that of the independent medical examiner and treating ophthalmologist, but took no other step to resolve the conflict in test results that had arisen.

64 This is not to say that in every case where there is a divergence between the opinion of the panel and the opinion of the treating specialist, or medical examiner, there must be a further process of consultation. Clearly the issue is one of fact and degree. In the present case, the disparity between the assessment made by the panel, and those made previously was substantial, and had important consequences. The disparity in assessments as to the worker's loss of visual field of the left eye was well outside the level of uncertainty, or degree of sensitivity, that might be expected of test results. The divergence was major. It required further clinical inquiry and evaluation as to how it could have occurred, and what the correct position might be.

65 It is not surprising that a failure to act in accordance with the Guides may at the same time be a failure to afford procedural fairness. As I have said, the procedures in the Guides are intended to achieve objectivity and consistency in results when assessing the level of permanent impairment of a worker, so the amount of compensation that may be payable for workplace injury can be determined with fairness, accuracy and consistency.

66 It is possible that the inconsistent test results reflected problems in the testing process for the assessment of the visual field of the left eye. The evidence does not permit me to say what the problem was that caused such a disparity, but it is evident that a problem must exist.

67 In conclusion, I find that the panel failed to act in accordance with the requirements of chs 1 and 2 of the Guides, when its own findings as to the loss of visual field of the worker's left eye were inconsistent with, and diverged greatly from the previous findings made by the treating specialist, and the medical examiner. Furthermore it did not communicate with the parties, or their specialists who had made the earlier findings, or undertake further clinical evaluation to resolve the disparity. The panel did not attempt to reconcile or explain the inconsistency between the prior findings and its own findings, or investigate or determine which result should be preferred. It did not undertake any further clinical studies to resolve the disparity.

Ground 4 - Making a mistake of jurisdictional fact

68 Under the WIRCA and the Guides, an assessment can only be made after the injury has stabilised.[38] The plaintiff submitted that the panel erred in its assessment of whether the worker's injury has stabilised, this error being a mistake of jurisdictional fact.

69 Neither the panel or by August 2017 Dr Nave were of the view that the worker's loss of visual field in the left eye was fluctuating, variable or unstable.

70 The panel considered and discussed whether the injury to the left eye was permanent. It found in the panel's reasons, that the whole person impairment resulting from the accepted eye injuries when assessed in accordance with s 54 of the WIRCA was permanent. This finding is consistent with the opinion of Dr Nave who also found that the degree of whole person impairment was permanent, albeit at a different level of impairment.

71 Having regard to the nature of the injury, the treatments that were undertaken, the clinical examinations of the left eye, and the time that had elapsed since the injury was sustained, medical opinion was unanimously of the view that the injury had stabilised, and that the degree of impairment was permanent.

72 For these reasons I reject the submission that the panel incorrectly assessed the stability of the injury before making a whole person impairment assessment in line with the WIRCA and the Guides. There was no mistake as to jurisdictional fact as alleged by the plaintiff.

73 The plaintiff contended that the panel's reasons were inadequate in that they do not sufficiently address the emergence or clinical course of the loss of left eye visual field it identified or illuminate whether the panel performed the impairment assessment in accordance with the Guides.

74 In Wingfoot Australia Partners Pty Ltd v Kocak[39] the High Court said:

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. [40]

75 In Gruma Oceania Pty Ltd v Bakar[41] the Court of Appeal said:

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 it statutory functions, the reasons will not comply with s 68(2) of the Act.[42]

76 I do not accept the plaintiff's submission. The issue is not whether the reasons of the panel are correct having regard to other issues. The issue is whether the reasons show the actual path of reasoning by which the panel arrived at its opinion.

77 In my view, the path of reasoning adopted by the panel is clear. The panel conducted its own test, and made its own assessment of the loss of visual field of the worker's left eye. It then determined to act on its own findings and disregard the earlier inconsistent findings. The panel's findings altered the assessment of total impairment of the whole person in a major respect.

78 The panel's reasons are sufficient to permit the Court to determine whether the opinion involves an error of law. In the event, I have determined that the reasons disclose that the panel made an error of law.

79 For the reasons that I have set out, the panel made jurisdictional errors in that it did not afford procedural fairness to the plaintiff, and did not act in accordance with the Guides.

80 The Court will make orders quashing the decision of the panel, and remitting the medical questions to a differently constituted panel to be appointed by the convenor to reassess the worker's injury and impairment in accordance with law.

[1] American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) ('the Guides').

[2] Relying on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 351 (McHugh, Gummow and Hayne JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 384 (Toohey and Gaudron JJ)

[3] The plaintiff obtained leave to add this ground during the course of the hearing. The Court was satisfied that the worker suffered no prejudice or disadvantage as a result of the amendment. In the event, the added ground fails as set out below.

[11] CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, 622 (Gageler J).

[12] [1985] HCA 81; (1985) 159 CLR 550, 628-9 (citations omitted).

[13] [2006] HCA 63; (2006) 228 CLR 152, 162 [32] quoting Commissioner for ACT Revenue v Alphaone [1994] FCA 1074; (1994) 49 FCR 576, 590-591 (emphasis in original).

[14] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J); Barrett Burston Malting Pty Ltd v Kotzman [2013] VSC 248 13, [32]-[37] (Cavanough J); Calleja v Franet Pty Ltd [1999] VSC 202, [23] (Vincent J); H&G MacDonald Carriers Pty Ltd v Carson [2014] VSC 586, [16] (Bell J); Wingfoot Australia Partners Pty Ltd v Kocak (2013) [2013] HCA 43; (2013) 252 CLR 480, [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[30] Ibid [24], [27], [44]-[46] (citation omitted).

[34] Ibid; Moyston Court Fisheries Ltd v Malios [2007] VSC 518 [43] (Forrest J); Maribyrnong City Council v Malios [2014] VSC 452 [33].

[36] Ibid [60] (Neave JA; Santamaria JA and Ginnane AJA agreeing); see also Omerasevic v Kotzman [2016] VSC 383 [97] (Riordan J); Karabinis v Bendrups [2017] VSC 648 [55] (Forrest J); appeal dismissed Karabinis v Bendrups [2018] VSCA 124; Khan v Romas [2017] VSC 731 [26]; APS Group (Industrial) Pty Ltd v Carroll [2017] VSC 452 [53] (Riordan J).

[37] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 [44], Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664 [79].

[40] Ibid 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).

Injury Rehabilitation and Compensation Act 2013

Court (General Civil Procedure) Rules 2015

Compensation Act 1987

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