Plaintiff v Defendants

2 The plaintiff's amended originating motion filed 19 May 2020 contains four grounds of review. The four issues in dispute and findings follow.

(a) Did the Medical Panel mistake or misinterpret the findings of a previous panel in a way that was material to its ultimate decision by finding that the previous medical panel had decided the plaintiff's work had caused an aggravation of symptoms of osteoarthritis of his hands? Yes.

(b) Further or alternatively, is the Medical Panel's finding, that the plaintiff suffered from hand symptoms prior to and unconnected with his employment, a finding infected by jurisdictional error? It is unnecessary to answer this question given the answers above and below.

(c) Is the Panel's finding, that the work caused aggravation of his hand arthritis had ceased but that work activities did not materially contribute to the present condition of his hands, infected by jurisdictional error or an error of law? Yes.

(d) Is the Medical Panel's finding, that the present medical condition of the plaintiff's hands was not at least materially contributed to by his work activities, infected by jurisdictional error? It is unnecessary to answer this question given the answers above.

3 In October 2010, the plaintiff was employed by a labour hire company, Skilled Group Limited. He was then placed at Goodman Fielder in the production area of its baking factory. The plaintiff worked there for approximately two years. He claims that repetitive strenuous duties during his employment caused him "serious injury" within the meaning of s 134AB of the Accident Compensation Act 1985. The claimed injuries relate to his hands and knees. There is also a claim of consequential psychiatric / psychological injury. This judicial review proceeding only relates to the alleged hand injuries.

4 On 5 July 2018, the plaintiff initiated proceedings in the County Court of Victoria seeking a declaration of "serious injury" and leave to institute proceedings for damages in respect of those injuries.[1] On 14 March 2019, the County Court made orders referring questions to a medical panel for assessment pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013.

5 The Medical Panel made a determination on 22 July 2019.[2] Questions 1, 2 and 4 to the Medical Panel and their answers follow. This proceeding concerns answers to questions 1 and 2 as they relate to the plaintiff's hands.

Question 1 What is the nature of the medical condition/s of the Plaintiff's:

(a) Left hand;

(b) Right hand;

...

Answer: In the Panel's opinion, Mr Rafati is suffering from bilateral constitutional osteoarthritis of the hands, primarily involving the first carpo-metacarpal joints...

Question 2 Does any, and if so which, physical medical condition as found in answer to Question 1(a) - (c) result from, or is it materially contributed to by any, and if so which, of the alleged physical injuries to:

(a) Left hand;

(b) Right hand;

...

Answer: The Panel is of the opinion that bilateral constitutional osteoarthritis of the hands, primarily involving the first carpo-metacarpal joints... do[es] not result from and [is] not materially contributed to by any alleged injuries to the left hand [or] right hand...

...

Question 4 If yes to Question 2, having regard to each physical medical condition separately (as identified in answer to Question 2) and disregarding any psychological/psychiatric consequences, does the Plaintiff have:

(a) any, and if so what, incapacity for work;

(b) a current work capacity;

(c) no current work capacity?

Answer: The Panel is of the opinion that Mr Rafati has no present inability arising from any physical injury such that he is not able to return to work in his pre-injury employment.

6 On 20 September 2019, the plaintiff initiated these judicial review proceedings applying for orders quashing the determination. The Victorian WorkCover Authority is the first defendant and active contradictor. The other defendants are the Convenor of Medical Panels and the doctors who comprised the Medical Panel. They did not actively participate in the proceeding.

Did the Medical Panel mistake or misinterpret the findings of a previous panel by finding that the previous medical panel had decided the plaintiff's work had caused an aggravation of symptoms of osteoarthritis of his hands?

8 This question arises from the following ground in the amended originating motion.

1. The Panel made a mistake of fact in that it mistook, or misinterpreted the Opinion of the previous Panel dated 31 January 2016 in a way that was material to its ultimate decision, by stating, or finding, that the previous Panel had decided that the plaintiff's work had caused an aggravation of symptoms of osteoarthritis of his hands or failed to provide adequate reasons as to why it interpreted the Opinion the way that it did.

9 The dispute here centres on the following passages of the Reasons for Opinion.

Previous Medical Panel

The Panel noted the Certificate of Opinion and Reasons of Opinion of a differently-constituted Medical Panel ("the previous Panel") dated 31 January 2016, which concluded that Mr Rafati was suffering from "an aggravation of right knee osteoarthritis, an aggravation of pre-existing asymptomatic left hand osteoarthritis, and an aggravation of pre-existing right hand osteoarthritis".

The Panel understands that a Medical Panel gives its Opinion upon the questions that are referred to it. In accordance with the Court of Appeal decision of McVey v Smith [2014], while a Medical Panel must have regard to an earlier Medical Panel opinion it is not bound to apply any of its conclusions, and when forming its opinion, it does so relying on its own medical expertise and experience after consideration of the material provided with the referral and its own examination findings.

Physical Diagnosis

The Panel concluded that Mr Rafati is suffering from bilateral constitutional osteoarthritis of the hands, primarily involving the first carpo-metacarpal joints, and tri-compartmental constitutional osteoarthritis of the right knee.

The Panel noted the conclusion of the previous Panel, based on their examination of Mr Rafati on 10 December 2015. The Panel noted that Mr Rafati suffered an aggravation of symptoms of pre-existing constitutional osteoarthritis of the hands and the right knee in the course of his employment with the Defendant, however the current Panel noted that there has been a significant improvement in Mr Rafati's symptoms since he ceased work, such that he no longer suffers from swelling of the hands or the right knee. The Panel considers that Mr Rafati's current symptoms of pain with activity in the first carpo-metacarpal joints of the thumb and the right knee are a natural progression of the pre-existing constitutional osteoarthritis of the hands and right knee.

The Panel therefore conclude that Mr Rafati is no longer suffering from any compensable medical condition of the hands or right knee.

Material Contribution

For the same reasons, the Panel concluded that Mr Rafati's bilateral constitutional osteoarthritis of the hands, primarily involving the first carpo-metacarpal joints, and tri-compartmental constitutional osteoarthritis of the right knee, do not result from and are not materially contributed to by any alleged injuries to the left hand, right hand or right knee.

Physical Medical Report

The Panel noted the medical report of Mr Rodney Simm, orthopaedic surgeon dated 13 May 2014, wherein he stated that "The pathology is constitutional and the contribution from his employment has been to initiate and exacerbate symptoms from the pathology. Considering there has been no period of recovery since he ceased employment with Goodman Fielder, it may be interpreted that this period of employment has influenced the clinical course of this condition."

The Panel arrived at a different conclusion to Mr Simm regarding the relationship of Mr Rafati's current condition to the alleged injuries, for the reasons outlined above.

(bold added)

10 The following is common ground between the parties and may be readily accepted:

(a) the Medical Panel correctly recorded the finding of a previous medical panel of "an aggravation of pre-existing asymptomatic left hand osteoarthritis, and an aggravation of pre-existing right hand osteoarthritis" (under the sub-heading 'Previous Medical Panel'); and

(b) the Medical Panel is not bound to follow the conclusions of the previous panel.

11 The parties' key submissions are below. The submissions for each ground overlap. To avoid duplication the overlapping submissions are not reiterated for each ground. They have however been considered in respect of each ground.

12 The plaintiff says that the Medical Panel accepted but misapprehended the previous panel's findings. It inconsistently referred to the findings of the previous panel. Under the sub-heading 'Previous Medical Panel', it referred to the previous panel's finding that the plaintiff suffered "an aggravation of pre-existing asymptomatic left hand osteoarthritis, and an aggravation of pre-existing right hand osteoarthritis". Yet, under the sub-heading 'Physical Diagnosis' it "noted" the previous panel's finding that the plaintiff "suffered an aggravation of symptoms of pre-existing constitutional osteoarthritis of the hands" (emphasis added). It then referred to a significant improvement in the plaintiff's symptoms since he ceased work and found that the current symptoms are a natural progression of the pre-existing constitutional arthritis of the hands and so the plaintiff is no longer suffering any compensable medical condition of the hands.

13 The Medical Panel's misapprehension of the previous panel's findings is consistent with its rejection of the conclusion of the findings of Mr Simm, orthopaedic surgeon. Mr Simm refers to two matters. One is the pathology, which is the constitutional arthritic condition of the plaintiff's hand. The Medical Panel agree that the pathology is constitutional. The other is that the contribution from his employment has been to initiate and exacerbate the symptoms.

14 Mr Simm finds that there has been no period of recovery since the plaintiff ceased work with Goodman Fielder. The Medical Panel seem to agree with that. There is no material at all to indicate that there has been recovery of the plaintiff's symptoms since cessation of work. There was nothing to indicate they improved between the time work ceased and Mr Simm gave his opinion.

15 Mr Simm's view is that work initiated symptoms from the pathology of the plaintiff's condition. That is the aspect with which the Medical Panel disagree with. It is presumably why they used the words an 'aggravation of symptoms' rather than an 'aggravation of conditions'. The rejection of Mr Simm's conclusion is consistent with the Panel having the view that there had been prior symptoms which were exacerbated by work, and that work had ceased and the exacerbation had ceased, so the original symptoms were just taking their ordinary course. The Medical Panel meant what it said when it found that the plaintiff had an aggravation of symptoms of his pre-existing constitutional condition. It carries the view that he had those symptoms beforehand.

16 The following reference should be considered a reference to the previous panel: "The Panel noted that [the plaintiff] suffered an aggravation of symptoms of pre-existing constitutional osteoarthritis of the hands". In contradistinction to the next phrase which states "the current Panel noted". When read with the reference to asymptomatic left hand arthritis under the sub-heading 'Previous Medical Panel', the proper conclusion is that it is merely loose language when they speak of exacerbation of symptoms. The Medical Panel was just reminding itself that the previous panel found the plaintiff to be asymptomatic.

17 Reasons should be read as a whole and not subject to over-zealous review. The history given to both panels was that the plaintiff's symptoms had come on for the first time in the course of his work and it was understood the constitutional arthritis pre-dated employment. Further, the panel stated they disagreed with the conclusion by Mr Simm. Mr Simm concluded that that the period of employment had influenced the course of his condition. The Medical Panel did not say, as the plaintiff contends, they disagree with Mr Simm's concept of 'initiation'. They are not disagreeing with it. The Medical Panel states that the different conclusion is expressed to be regarding the relationship of the plaintiff's current condition to his injuries.

18 There is no basis for finding that, contrary to that history, the present panel concluded that the plaintiff had symptoms of osteoarthritis in his hands prior to the employment.

19 Medical panel reasons "must be read fairly, as a whole and in context".[3] They "should not be subject to overzealous judicial review".[4]

20 Loose language or unhappy phrasing does not, on its own, give rise to an error of law. In Morrison v Melbourne Pathology Pty Ltd,[5] Richards J stated the following principles, which I adopt:[6]

...an error of law involves something more than 'looseness in the language of the tribunal' or 'unhappy phrasing of the tribunal's thoughts'. A reviewing court should not construe a Panel's reasons 'minutely and finely with an eye keenly attuned to the perception of error'. Rather, the reasons of a non-legal, expert tribunal such as a Medical Panel should be given a beneficial construction. A balance must be struck between requiring too much, or too little, of Medical Panels.

21 I find that the Medical Panel mistook or misinterpreted the findings of the previous panel for the following reasons.

22 Firstly, I consider that the determination should be read consistently with the insertion underlined. Indeed, neither party contended otherwise.

The Panel noted the conclusion of the previous Panel, based on their examination of Mr Rafati on 10 December 2015. The previous Panel noted that Mr Rafati suffered an aggravation of symptoms of pre-existing constitutional osteoarthritis of the hands and the right knee in the course of his employment with the Defendant, however the current Panel noted that there has been a significant improvement in Mr Rafati's symptoms since he ceased work, such that he no longer suffers from swelling of the hands or the right knee. ...

23 The reference to "The Panel" at the commencement of the second sentence is ambiguous without the insertion. However, read in context it is a reference to the previous panel. It should be so read because the phrase immediately following distinguishes the current Medical Panel by commencing with the words "however the current Panel noted". Further, the sentence immediately preceding, namely the first sentence of the paragraph, refers to the conclusion of the previous panel. It is consistent with the reading of the first sentence that the second sentence then deals with the conclusion (although misapprehended) of that previous panel.

24 Secondly, I reject the defendant's submission that "aggravation of symptoms of pre-existing constitutional arthritis" should be read otherwise than as written. There is no ambivalence in that language. The words should be read plainly.

25 Thirdly, despite having correctly recorded the previous panel's finding, the Medical Panel later misconstrued the finding by referring to an aggravation of symptoms in the paragraph above. This mistake was then the unfortunate building block for its analysis as to whether there was a compensable injury. After mistakenly referring to the previous panel's findings of an aggravation of symptoms, the next phrase contrasts: "however the current Panel noted that there has been a significant improvement in [the plaintiff's] symptoms since he ceased work". In the next sentence the Medical Panel finds that the current symptoms "are a natural progression of the pre-existing" arthritis. The conclusion immediately follows in the next paragraph: "The Panel therefore concluded that [the plaintiff] is no longer suffering from any compensable medical condition of the hands...".

26 The mistake was also the unfortunate basis upon which Mr Simm's conclusions were rejected. The Panel states it "arrived at a different conclusion to Mr Simm regarding the relationship of [the plaintiff's] current condition to the alleged injuries, for the reasons outlined above". The conclusion of Mr Simm to which the Medical Panel was making reference concerned whether or not work had contributed to the plaintiff's current injuries. The Medical Panel records Mr Simm's conclusion that the plaintiff's "current condition to the alleged injuries" was that "this period of employment [at Goodman Fielder] has influenced the clinical course of this condition". The Medical Panel states its reasons for disagreeing with Mr Simm are "outlined above". The preceding paragraph also refers to reasons "outlined above". This takes one back to the Panel's 'Physical Diagnosis' section and finding that "current symptoms of pain... are a natural progression of the pre-existing constitutional osteoarthritis of the hands...".

Did the mistake amount to a jurisdictional error?

27 The Medical Panel made a mistake of fact that was material to the formation of its opinion that the plaintiff's initial injury was only an aggravation of pre-existing symptoms of an underlying medical condition as opposed to an aggravation of a previously asymptomatic condition. This mistake of fact was material to the formation of the Medical Panel's physical diagnosis that the symptoms of pain in the thumb joints were a natural progression of the pre-existing constitutional arthritis.

28 The Medical Panel took a history from the plaintiff that he had no history of hand pain prior to work at Goodman Fielder. There was no history given to it, nor documentary material referred to it, suggesting that the plaintiff had a history of hand symptoms (either pain or swelling) prior to commencing that work. Nor did the first defendant contend that. Drilling down, the Medical Panel recorded:

(a) that the plaintiff told it that he had no previous history of hand pain prior to commencing work at Goodman Fielder and that he began to experience the 'gradual onset of pain and swelling' in his hands shortly afterwards. It recorded that the plaintiff consulted his general medical practitioner with respect to his hands on 15 March 2013 [post-employment], leading to X-rays.

(b) there was some improvement in his hand symptoms after ceasing work, with a resolution of swelling, but the plaintiff continues to complain of pain in the base of the thumbs. It records he is now "much better than when I was working". It referred to the plaintiff's current complaints of pain in the left hand and similar but less severe symptoms in his right hand. It records that the plaintiff "has not suffered from any joint swelling in the hands since he ceased work". It refers to his current psychiatric history and being particularly troubled by the loss of dexterity in using his hands and the consequences. It refers to the current pain medication the plaintiff is taking.

(c) its physical examination and finding of Heberden's nodes. The Medical Panel stated it had reviewed and noted radiological imaging relevant to the plaintiff's hands, namely the X-rays dated 18 March 2013 which showed "osteoarthritis of the first carpo-metacarpal joints, with minor degenerative changes in the distal interphalangeal joints and occasional ostephytic spurs in the other joints".

(d) it had reviewed surveillance film and that it was "not inconsistent" with the plaintiff's presentation on examination.

(e) the finding of the previous panel that the plaintiff had suffered an aggravation of pre-existing asymptomatic left hand osteoarthritis, and an aggravation of pre-existing right hand osteoarthritis. It "noted" this opinion and that it was not bound to apply any of its conclusions but to form its own.

29 Questions 1 and 2 required the Medical Panel to answer whether the plaintiff's medical condition was materially contributed to by his work with the relevant employer and whether or not his symptoms may have developed naturally. 'Material contribution' is a relatively low threshold.

30 In reply to the first defendant's submission that the Medical Panel disagreed with Mr Simm's opinion and that is why it answered question 2 adversely to the plaintiff: the Medical Panel stated it disagreed with Mr Simm for the "reasons outlined above" and this takes one back to the conclusions in the 'Physical Diagnosis' section given by the Medical Panel. The reasoning is circular.

31 Even if the present Panel misunderstood the previous panel, the present Panel's opinion was not unlawful. Any mistake was not material to the present Panel's opinion and did not constitute jurisdictional error. There was divergent medical opinion and the Panel formed a view applying its collective experience and expertise. An error of fact is not ordinarily an error of jurisdiction. Nor is any error in interpreting a previous panel sufficient to justify a conclusion of a constructive failure by the present Panel to exercise its statutory function.

32 There is no basis to find that the Medical Panel concluded that the plaintiff had experienced symptoms of osteoarthritis in his hands prior to work at Goodman Fielder.[7]

33 There was no mistake that was material. It was open to the Panel to make the determination it did on the evidence before it, given its expertise. The following doctors expressed the view that work had not permanently affected the underlying disease: Dr Davidson, Mr Dooley and Dr Kostos. It was open to the Medical Panel to conclude, as a matter of fact that:

(a) work had aggravated the plaintiff's underlying progressive condition;

(b) that aggravation had now ceased such that the plaintiff was no longer suffering from it; and

(c) his current symptoms now reflected the natural progression of his arthritis.

34 I adopt the following principles on the nature and scope of medical panel functions in Chang v Neill:[8]

The nature and scope of a medical panel's functions were described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak as follows:

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. 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. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

...

As appears from the provisions of the Act summarised at [12]-[19] above and the observations of the High Court in Wingfoot set out at [34] above, a medical panel is different from many other statutory tribunals. This is because it does not adjudicate on parties' rights and obligations after engaging in an adversarial hearing. Rather, it answers medical questions referred to it by applying its expert medical knowledge after reviewing the information referred to it and, where it examines a worker, the information gathered in the course of the examination. It is true that the answers provided by a medical panel may be decisive in the determination of the parties' rights and obligations by the formal decision-maker. However, that does not detract from the distinctive characteristic of a medical panel as an expert statutory body that provides answers to medical questions.

35 I adopt the following principles concerning the circumstances as to when a factual error constitutes a jurisdictional error.[9]

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material - properly construed - is an essential feature of a valid exercise of the function.

The question arises whether, in addition to satisfying the test at [92] above, an error of fact must be material in order for it to constitute jurisdictional error. By 'material' we mean that the outcome of the exercise of the relevant power could have been different if the factual error had not been made.

...

The observations of the plurality in both Hossain and SZMTA as to the role of materiality in informing whether an error is jurisdictional were not confined to any particular type of jurisdictional error. Accordingly, pending further clarification by the High Court, we will proceed on the basis that those observations apply to a jurisdictional error constituted by a decision-maker failing to have regard to, or misconstruing, a factual matter. However, the additional requirement of materiality is unlikely to make much difference in practice in relation to such an error. That is because an error in relation to a factual matter, consideration of which is an essential feature of a valid exercise of the relevant statutory function, will usually satisfy the materiality requirement.

...

We have already discussed the subject matter, scope and purpose of the Panel's statutory function under grounds 4 and 10. A medical panel is an expert medical body which provides opinions on the medical questions referred to it for the purpose of enabling courts and other bodies to make decisions on the claim for compensation which has given rise to the medical questions. A medical panel forms its opinion on the medical questions referred to it on the basis of the collective medical expertise of its members, informed by their review of all the documentary and other information before them, including any information they obtain during an examination of the worker. The importance of any particular information provided to a medical panel cannot be assessed in the abstract; it must depend on the issues raised by the medical questions referred to it.

36 The Medical Panel's misconstruction or misinterpretation of the previous panel's decision, discussed above, amounts to a constructive failure to perform its statutory function and constitutes a jurisdictional error for the following reasons.

37 The previous panel found that the plaintiff was suffering from "an aggravation of pre-existing asymptomatic" arthritis of both hands.[10] As discussed above, although the Medical Panel accurately referred to this finding under the sub-heading 'Previous Medical Panel', its later reference under the 'Physical Diagnosis' sub-heading was inaccurate.

38 It is common ground that there was no basis for the Panel to find that there had been symptoms of osteoarthritis in his hands prior to work at Goodman Fielder. There was no evidence at all to make such a finding. However, the Panel did make such a finding, relying on the mistaken interpretation of the previous panel, as discussed above. Accordingly, it made a finding not open to it on the evidence. This constitutes jurisdictional error.[11]

39 The mistake had an unfortunate cascading effect. It resulted in the conclusion, expressed in the 'Physical Diagnosis' section, that the plaintiff's current symptoms were a natural progression of his pre-existing arthritis. If the Medical Panel had not made the mistake, then it may not have determined either that there was a progression of his arthritis or that it was a natural progression. This mistake was material because it could have led to the Medical Panel providing a different answer to the questions posed to it. In particular, the Medical Panel could have answered question 2 differently. The 'Material Contribution' part of the determination immediately follows the 'Physical Diagnosis' part. It commences with "For the same reasons" and continues on to make a finding that there was no material contribution by the alleged (aggravation) injuries to the arthritis. Had the mistake not occurred, the Medical Panel may have instead determined that the plaintiff's alleged aggravation injuries materially contributed to the pre-existing osteoarthritis of his hands.

Is the Medical Panel's finding, that the plaintiff suffered from hand symptoms prior to and unconnected with his employment, a finding infected by jurisdictional error?

40 This question arises from the following ground in the amended originating motion.

1. Further, or alternatively, the Panel's statement or finding that the plaintiff had suffered from hand symptoms prior and unconnected with his employment with Skilled, was a statement or finding:

(a) a finding for which there was no evidence or which was not open to be made by the Panel;

(b) a mistake of fact of sufficient importance to constitute jurisdictional error;

(c) a finding in respect of which the Panel's path of reasoning was inadequate.

41 This ground applies if the Medical Panel came to its finding without reliance upon the previous panel finding. Given the findings above, it is unnecessary to consider it.

Is the Panel's finding, that the work caused aggravation of his hand arthritis had ceased but that work activities did not materially contribute to the present condition of his hands, infected by jurisdictional error or an error of law?

42 This question arises from the following ground in the amended originating motion.

22. The Panel's findings that the work caused aggravation of the plaintiff's bilateral hand osteoarthritis had ceased, and that his work activities did not at least materially contribute to the present condition of the plaintiff's hands was:

(a) illogical and/or irrational;

(b) predicated on an irrelevant consideration, namely that the plaintiff would have been in the same situation absent the Skilled-aggravation due to the unaided progression of his underlying osteoarthritis;

(c) a finding in respect of which the Panel's path of reasoning was inadequate.

43 The Medical Panel's conclusion is based entirely on the proposition that the plaintiff's asymptomatic constitutional condition of the osteoarthritis in his hands progressed and became symptomatic of its own nature, and coincidentally with the plaintiff having ceased work. This defies common sense. It takes into account an 'irrelevant consideration', namely that with the progression of the osteoarthritis would, with the effluxion of time, produced the same consequences and incapacity even absent the relevant employment.

44 The conclusion that there had been a "progression" of the plaintiff's underlying condition is conclusionary not explanatory. There was no attempt to explain why there had been such a progression. The Medical Panel did not provide a 'path of reasoning' with respect to why the employment aggravation had ceased and why it did not make at least a 'material contribution' to the plaintiff's present condition. It did not explain the discrepancy between the history of pain upon resumption of physical activities and its finding. There was no suggestion that the plaintiff's hands had returned to their pre-work asymptomatic state. On the Medical Panel's own findings, the plaintiff continued to suffer from pain and dysfunction. Although it noted some improvement in his condition, such as there was no longer swelling, this is not the same as cessation.

45 As submitted above, there was divergent medical opinion. If the reasons are read sensibly as reasons of doctors in the context of the issues presented, they read clearly. The reason for the answer in question 2 that emerges from the determination is that the Medical Panel formed the view that the compensable injury was not persisting. The Medical Panel makes it clear that their expert opinion, having regard to the material before it, including the X-Rays, is that the injury has ceased.

46 It is not conceded that illogicality or irrationality in the fact-finding process is jurisdictional error. They have only been identified by the High Court or the Court of Appeal as amounting to reviewable error on findings of jurisdictional fact and the exercise of discretion. In any event, there is nothing illogical or irrational in the Medical Panel finding that the work-related aggravation of the plaintiff's condition was, by now, spent.

47 The standard required of a statement of reasons given by a Medical Panel follows:[12]

... 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 the 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.

48 Here, the Medical Panel's statement of reasons is inadequate as it does not explain the actual path of reasoning in sufficient detail to enable the Court to see whether its opinion involves an error of law. In particular, it does not explain how it concluded there was no material contribution of the claimed aggravation injury in circumstances when it had found there had been "a significant improvement in [the plaintiff's] symptoms since he ceased work, such that he no longer suffers from swelling of the hands".[13] The finding that the plaintiff's current symptoms of pain were a natural progression of his pre-existing arthritis does not adequately explain why the symptoms would significantly improve upon cessation of work.[14] It does not reconcile this finding with that of there being a natural progression of his osteoarthritis. It does not properly answer the question of whether there was an aggravation injury. It makes the finding of no material contribution of the claimed aggravation injury difficult to comprehend. It makes the finding of no compensable injury difficult to comprehend. This amounts to an error of law on the basis of failure to provide an adequate path of reasoning.

49 Given the above finding, it is unnecessary to consider whether or not an irrelevant consideration was taken into account or whether the answer to question 2 was illogical or irrational.

Is the Medical Panel's finding, that the present medical condition of the plaintiff's hands was not at least materially contributed to by his work activities, infected by jurisdictional error?

50 This question arises from the following ground in the amended originating motion.

1. The Panel's findings that the present medical condition of the plaintiff's hands was not at least materially contributed to by his work activities was:

(a) illogical and/or irrational;

(b) predicated on an irrelevant consideration, namely that the plaintiff would have been in the same situation absent the Skilled-aggravation due to the unaided progression of his underlying osteoarthritis;

(c) a finding in respect of which the Panel's path of reasoning was inadequate.

51 Given the findings above, it is unnecessary to answer this question.

52 I will make orders quashing the opinion of the Medical Panel contained in the Certificate of Opinion and remitting the medical questions to a differently constituted Medical Panel to be reconsidered in accordance with law. I will hear the parties on the form of orders and on the question of costs.

[1] Originating Motion filed on 5 July 2018.

[2] Medical Panel, 'Certificate of Opinion', Re: Mr Mojtaba Rafati, No M119/0829, 22 July 2019 ('Certificate of Opinion'): Exhibit 'LF-5' to the affidavit of Lee Flanagan, solicitor, sworn on 23 September 2019 ('the Flanagan affidavit'); see also Medical Panel, 'Reasons for Opinion' contained in the same exhibit ('Reasons for Opinion').

[3] Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281 [59] (29 November 2019).

[4] Ibid citing Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499 [47] ('Wingfoot').

[5] [2018] VSC 477.

[7] First defendant's written submissions filed on 6 May 2020 [13].

[8] [2019] VSCA 151 [34], [49] ('Chang v Neill') (citations omitted) (emphasis added).

[9] Ibid [92]-[93], [100], [141] (citations omitted) (emphasis added).

[10] Previous panel's opinion 'Medical Panel Certificate of Opinion and Reasons' dated 31 January 2016: Exhibit 'LF-6' to the Flanagan affidavit.

[12] Wingfoot 501 [55]. See also Del Ben-Athanasaidis v RMIT [2019] VSC 674 [60]-[67].

[13] 'Physical Diagnosis' in the Reasons of Opinion: Exhibit 'LF-5' to the Flanagan affidavit.