Plaintiff v Defendants

1 This is an application for judicial review sought by orthopaedic surgeon, Mr Ilan Freedman, in respect of a determination of a medical panel following its impairment assessment of his former patient, Ms Judith Gomperts. Mr Freedman performed a left total hip replacement surgery (the surgery) on Ms Gomperts on 14 June 2018. Ms Gomperts claims that the surgery was performed negligently, such that she required revision surgery on 18 June 2018 and has been left with leg length discrepancy and an altered gait. As a consequence, Ms Gomperts alleges that she suffered physical injury, being leg length discrepancy, malrotation of the left hip and pelvic tilt, restricted movement of the lumbosacral spine, and altered gait (the claimed injuries).

2 Under the Wrongs Act 1958 (Vic) (the Act), in order for Ms Gomperts to be entitled to recover damages for her non-economic loss, she must establish that, as a consequence of the surgery, she suffers a significant injury.[1] In respect of physical injuries, the threshold level for significant injury is a whole person impairment of more than 5%, assessed in accordance with the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) (the Guides), or for a spinal injury, impairment of 5% or more.[2]

3 On 2 June 2021, Ms Gomperts provided Mr Freedman with a medical report and certificate of assessment dated 19 May 2021 from sports and industrial physician, Dr David Kennedy, in support of her claim that she suffered the requisite level of impairment. Mr Freedman did not accept Dr Kennedy's certificate and referred the matter to the Deputy Convenor of the Medical Panels[3] for determination of whether the degree of impairment resulting from Ms Gomperts' claimed injuries satisfied the threshold level.

4 Following an examination of Ms Gomperts, the Medical Panel (the Panel) determined that the claimed injury satisfied the threshold level. The Panel concluded that, as Ms Gomperts' degree of whole person impairment resulting from the claimed lumbosacral spine injury met the requisite level, it was unnecessary for it to assess her other claimed impairments.

5 Mr Freedman seeks judicial review of the Panel's decision on the basis that the Panel fell into jurisdictional error. In particular, he alleges that the Panel erred in its application of s 28LL(3) of the Act; used an incorrect technique for measuring Ms Gomperts' claimed leg length discrepancy; failed to accord him procedural fairness in respect of further information it had received from Ms Gomperts; and erred in its unreasonable failure to make proper inquiries to obtain additional medical information relevant to its determination.

6 Mr Freedman seeks an order quashing the Panel's Opinion, together with an order remitting the referred medical questions to a differently constituted medical panel.

7 Ms Gomperts defended this application on the basis that the Panel, using its collective expertise and knowledge, assessed her impairment in accordance with the Guides and the Act, such that it committed no jurisdictional error in determining that she satisfied the threshold level.

8 For the reasons that follow_,_ I am not satisfied the Panel's determination was affected by jurisdictional error and therefore dismiss Mr Freedman's application.

9 Ms Gomperts was examined by Dr Kennedy on 19 May 2021. In his report dated 26 May 2021, Dr Kennedy opined that, as a consequence of the surgery, Ms Gomperts had developed significant problems in her left hip region and had limb length discrepancy of approximately 1.5cm. Further, Dr Kennedy's opinion was that Ms Gomperts suffered significant ongoing problems in her left lower extremity, which had resulted in malrotation and pelvic tilting, and the development of secondary problems of pain and restricted movements in her lumbosacral spine. Dr Kennedy issued a certificate of assessment in which he stated that the degree of impairment resulting from Ms Gomperts' injury, developed post-surgery, was more than 5%.

10 Dr Kennedy's certificate of assessment and 'prescribed information'[4] was subsequently served on Mr Freedman.

11 On 29 July 2021, Mr Freedman referred a medical question to the Deputy Convenor of Medical Panels regarding the certificate of impairment (the referral). Attached to the referral were a number of documents including the certificate of assessment and medical report of Dr Kennedy, pre-operative and post-operative medical imaging, and clinical records from some of Ms Gomperts' treating practitioners.

12 The referral also contained written submissions to the Deputy Convenor, which included reference to Ms Gomperts' pre-existing arthritis in the spine and right hip osteoarthritis. Mr Freedman submitted that the Panel was to disregard Ms Gomperts' pre-existing impairment in its assessment pursuant to s 28LL(3) of the Act.

13 On 13 September 2021, Ms Gomperts' solicitors provided written submissions to the Deputy Convenor. On 27 September 2021, Mr Freedman provided further written submissions in reply, including reference to pre-operative medical imaging which he alleged demonstrated that Ms Gomperts' left leg was naturally longer than her right.

14 A panel was convened to answer the referred question, comprising general physician, Associate Professor David Ernest, and orthopaedic surgeon, Mr John Skelley. These are the second and third defendants in this proceeding. As is the usual arrangement, and pursuant to the principles in Hardiman,[5] these defendants did not take an active role in the proceedings and indicated by way of correspondence that they would submit to orders made by the Court.

15 The Panel examined Ms Gomperts on 17 September 2021.

16 On 23 September 2021, Ms Gomperts sent an email to the Panel (the 23 September email) stating that she was 'very stressed' at the examination and that she had found it hard to 'think clearly'. She also stated that because she felt 'so stressed' she was not able to answer the questions asked of her 'in more depth'. It was on this basis that Ms Gomperts asked the Panel to consider an additional 11 points on matters pertaining to her level of activities, including her shopping capacity, difficulties lifting heavy items, driving capacity, use of Voltaren cream for back pain, sitting tolerance, and difficulties putting stockings and shoes on.

17 In the 23 September email, Ms Gomperts also stated 'I have not been in touch with my solicitors, besides on Friday sending them an email to say I had been to the appointment.'

18 At 1:13pm on 28 September 2021, the Panel emailed a copy of the 23 September email to Mr Freedman's solicitors.

19 On 29 September 2021, the Panel delivered its Opinion and Reasons.

Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?

Answer: The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does satisfy the threshold level.

21 In its Reasons, the Panel noted that Ms Gomperts reported 'she underwent [the surgery] on 14 June 2018 for osteoarthritis, which resulted in a leg length discrepancy for which she underwent a revision procedure on 18 June 2018.' It recorded that Ms Gomperts complained that she experienced ongoing leg length discrepancy, and left hip and lower back symptoms following the surgery.

22 In its Reasons, the Panel detailed the history it obtained from Ms Gomperts, including that she had experienced symptoms related to left hip osteoarthritis, which progressed from 2013 to 2018. In 2018, at the time she was referred to Mr Freedman, her symptoms included left hip pain, restricted movement, and difficulty walking. The Panel noted a left hip MRI scan taken on 22 February 2018 which reported marked osteoarthritis and a degenerative labral tear. The Panel also noted a further left hip x-ray taken on 17 May 2018 which reported moderate osteoarthritis.

23 The Panel took a history that, prior to undergoing the surgery, Ms Gomperts 'did not suffer from any ongoing back problem or restricted back movements despite experiencing earlier intermittent episodes of back pain and left sciatica.'

24 Ms Gomperts reported to the Panel that after the surgery, on mobilising, her left leg was longer than her right leg. On 17 June 2018, a CT scanogram was performed which reported a 2.6cm discrepancy between Ms Gomperts' left and right leg length. The following day, a revision of Ms Gomperts' left total hip replacement was performed, with adjustment of the position of the femoral component. The Panel noted that post-operative x-rays on 26 June 2018 and 2 August 2018 both reported a left total hip replacement in a satisfactory position.

25 The Panel noted that, due to persisting symptoms, Ms Gomperts was reviewed by a second orthopaedic surgeon, Mr Harry Tsigaras. An ultrasound taken on 27 October 2020 reported the presence of a fluid collection deep to the iliopsoas tendon and trochanteric bursitis. This was treated with two left psoas bursa aspiration procedures.

26 The Panel summarised Ms Gomperts' description of her current symptoms as follows:

• an inability to do "much more than just walk ... slowly" with difficulty getting in and out of a car or bed, difficulty "getting down", and an inability to use Kieser physiotherapy machines due to her restricted mobility;
• walking with a limp with a five-minute walking tolerance due to left hip pain that radiates to the back and then to her right side causing her to "seize up";
• pain in her left groin and lateral hip region with movement, associated with a restricted range of left hip movements and discomfort when lying on her left side in bed;
• activity related burning lower back pain, radiating into the right buttock and associated with right sciatica (describing pain from her right buttock to the front of her right shin); and
• altered sensation (numbness) in her left thigh in the region of her surgical scar.

27 The Panel noted Ms Gomperts also reported that she had experienced deteriorating right hip pain over the preceding six months.

28 The Panel recorded that Ms Gomperts 'is largely independent', but experiences difficulties with aspects of dressing, does fewer domestic chores, and requires cleaning aids to assist her. Ms Gomperts continues to work as a teachers' aide for 26 hours per week, over five days.

29 The Panel conducted a physical examination of Ms Gomperts. In respect of her lower back it noted:

...the claimant walked with a variable antalgic gait, offloading her left leg. She stood with normal alignment of the legs however with right leg shortening that resulted in a compensatory lumbar spine scoliosis that corrected when sitting. Trendelenburg's sign was present on each side when single leg standing with support.

There was a normal lumbar lordosis. There was no significant local tenderness to palpation over the lower lumbar spine and no evidence of lumbar spine muscle spasm. There was restriction in the range lumbosacral spine extension and lateral flexion to each side, with the restriction being most apparent on left-sided lateral flexion when compared to the right side (indicative of dysmetria).

Neurological examination revealed normal tone and power in the legs within the limits of testing, symmetrical lower limb reflexes and preserved light tough sensation over the legs, apart from altered light touch in the region of the left hip scar. The Panel considered that there was no clinical evidence of any spine-related radiculopathy or peripheral nerve disorder evident on examination.

Examination of the left hip revealed a well healed 10 cm anterior longitudinal scar, puckered at its upper end that was locally numb to light touch. There was a mild restriction in the active range of left hip movements without any fixed flexion deformity. There was no left thigh or calf muscle wasting present when compared to the right side.

Measurement of leg lengths from a sternal reference point to the medial malleolus revealed a left leg lengthening of 2.0 cm, and measurement of leg lengths from the anterior superior iliac spine to the medial malleolus on each side revealed a left leg lengthening of 2.5 cm. The Panel noted that the apparent left leg lengthening was at the level of the left thigh and not the left lower leg.

30 The Panel reviewed the medical imaging reports contained in the referral material, including left hip x-rays dated 9 May 2019, which demonstrated Ms Gomperts' left total hip prosthesis was in a satisfactory alignment. Further, the Panel noted that the Corin OPS review dated 9 November 2020 reported (compared to the right side) a left limb length 15mm longer and left hip length 9mm longer, with 8mm less offset.

31 Relevant to Ms Gomperts' lumbosacral spine, the Panel noted:

reports of lumbar spine medical imaging investigations included in the referral material, including a lumbar spine MRI scan (20 March 2018) ordered for investigation of left sciatica that reported minor multilevel degenerative changes and lumbar spine X-ray (6 April 2020) for persistent lower back pain that reported a mild scoliosis preserved disc heights without significant degenerative changes and without interval change when compared to an earlier X-ray (22 April 2013) ordered for back discomfort that reported right L5/S1 facet joint degenerative changes.

The Panel must identify an injury potentially caused in the manner alleged in the claim.[6]

The Panel considers that the claimant experienced leg length discrepancy following a left total hip replacement for which she underwent revision surgery with persistent leg length discrepancy.

The Panel considers that the altered biomechanics due to the leg length discrepancy have contributed to the claimant experiencing lower back symptoms, with evidence of a correctable scoliosis and dysmetria on lateral flexion movements, on a background of mild multilevel lumbar spine degenerative changes.

The Panel therefore concluded that the claimant is suffering from a persisting lower back and left hip dysfunction following left total hip replacement revision surgery associated with leg length discrepancy, attributable to the alleged physical injuries.

The Panel considers the claimant's medical condition has stablished.

33 The Panel proceeded to conduct an impairment assessment in accordance with the Guides. It stated that it considered 'no further information was required from the claimant's treating practitioners to carry out the assessment.'

34 In respect of Ms Gomperts' lumbosacral spine, the Panel stated that it assessed her impairment in accordance with Section 3.3f,[7] and Tables 70 and 72 in Chapter Three of the Guides.[8] It was of the opinion that, as the impairment attributable to Ms Gomperts' lumbosacral spine could be assessed under the Diagnostic Related Assessments (DRE) Model, use of the Range of Motion (ROM) Model was not appropriate.

In making an assessment of impairment, the Panel took into account the claimant's history and referral material to determine the level of impairment (if any) that may have been present prior to and/or after the incident which the Panel is required to disregard in accordance with Section 28LL(3) of the Act as impairment from unrelated causes or injuries.

The Panel understands that in performing the task of assessing unrelated impairment the Panel cannot be speculative: it must have an evidentiary basis on which it can be positively satisfied of a permanent unrelated impairment which is to be disregarded.

The Panel accepted the claimant's account that whilst she had experienced intermittent episodes of back pain and sciatica, she was unrestricted in her personal and recreational activities with regard to her lower back at the time of the incident.

The Panel does not consider that the presence of degenerative changes on the lumbar spine medical imaging investigations indicative of any impairment of the claimant's lumbar spine in the absence of corroborating clinical findings (muscle guarding or spasm, dysmetria or radiculopathy), which was not evident in the referral documentation. The Panel therefore concluded on the basis of the information available that there is no verifiable evidence of any impairment of the lower back which is due to any pre-existing or unrelated condition and which ought to be disregarded in accordance with Section 28LL(3) of the Act.

The Panel concluded that the degree of whole person impairment resulting from the spinal injury to the claimant alleged in the claim is permanent and it is 5% or more which satisfies the threshold level prescribed by Section 28LB of the Act as amended.

The Panel therefore considered it was unnecessary to determine whether there was any additional physical impairment attributable to the left hip or leg length discrepancy when assessed in accordance with the Guides, in order to answer the medical question.

...

36 The Panel acknowledged the written submissions it had received from the parties' solicitors and stated that it considered the Reasons addressed the substantive issues raised in them.

37 The following well established principles are relevant to Mr Freedman's application:

(a) this is a matter of judicial review, and not merits review;[9]

(b) The Court should not be overly zealous in considering the Panel's Reasons;[10]

(c) The Court should be mindful that the Panel is comprised of medically qualified professionals, not lawyers or judges;[11] and

(d) the Reasons of the Panel should be given a beneficial construction.[12]

38 The High Court's description of the medical panel's statutory function in Wingfoot Australia Partners v Kocak[13] is also instructive:

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.[14]

39 Mr Freedman alleged four jurisdictional errors by the Panel, set out at (i)-(iv) below.

(i) The Panel erred in its application of s 28LL(3) of the Act in its assessment of the degree of impairment of Ms Gomperts' lumbosacral spine.

40 Section 28LL(3) provides as follows:

For the purposes of this part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.

41 Mr Freedman submitted that there were three errors in respect of the Panel's purported application of s 28LL(3), namely:

(a) first, after finding that altered biomechanics due to leg length discrepancy contributed to Ms Gomperts' lower back symptoms, it failed to identify and to disregard unrelated causes of her leg length discrepancy (unrelated leg length discrepancy);

(b) second, it failed to identify and disregard any component of Ms Gomperts' lower back impairment caused directly by her unrelated hip arthritis (right hip arthritis causing lower back impairment); and

(c) third, it failed to consider and then to disregard, Ms Gomperts' subsequent and unrelated lower back aggravation (subsequent unrelated lower back aggravation).

42 At hearing, Mr Freedman referred to the written submissions he provided to the Panel prior to its examination of Ms Gomperts. In particular, he noted a pre-operative x-ray dated 17 May 2018 which was said to demonstrate that Ms Gomperts' left leg was approximately 4mm longer than her right. In addition, Mr Freedman submitted that Ms Gomperts' pre-existing right hip arthritis also contributed to her leg asymmetry. He stated that the Panel had been provided with an ultrasound taken three months prior to the surgery which demonstrated moderately severe trochanteric bursitis in Ms Gomperts' right hip.

43 Mr Freedman submitted that, pursuant to s 28LL(3), the Panel should have disregarded this pre-existing leg length discrepancy, as well as the effects of the right hip arthritis on the leg asymmetry, which were unrelated injuries or causes. He submitted that the Panel's assessment of matters relevant to s 28LL(3) was confined to Ms Gomperts' pre-existing intermittent episodes of lower back pain and sciatica, and the degenerative changes on lumbar spine imaging. Whilst acknowledging that the Panel was not required to determine legal causation, Mr Freedman submitted that the Panel was nonetheless required to consider the aetiology of Ms Gomperts' claimed leg length discrepancy, and whether part of it was due to unrelated causes.

44 In support of this submission, Mr Freedman referred to the decision of Amendola v Coles Supermarkets Australia Pty Ltd & Ors (Amendola),[15] in which a medical panel determined that the claimant had 'no clinical evidence of persisting injury' to his neck, right shoulder, right elbow, or ankles, and, on this basis, made no impairment assessment in respect of the claimed injuries.[16] The claimant alleged this was an error as the panel had not answered the medical question asked of it, namely, whether the degree of impairment resulting from the injuries alleged in the claim satisfied the threshold level. In rejecting this submission, Kaye J held:

I do not consider that, properly construed, the definition of "medical question" operates to confine a Medical Panel to determining impairment, without first determining whether an applicant has an injury from which such impairment resulted.

It is important to bear in mind that the role of the Panel, as identified in the Act, is to determine whether the degree of impairment of the whole person "resulting from the injury" is above the threshold level. A number of provisions make express reference to the assessment, first by the approved medical practitioner, and then by the Panel, of the degree of impairment "resulting from the injury". Section 28LZG(4) requires that the determination of the Medical Panel must (where appropriate) "state whether the degree of impairment resulting from the injury satisfies the threshold level ...". Axiomatically, an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment, notwithstanding that the Panel could not elicit any evidence of injury.[17]

45 On the application of s 28LL(3), Kaye J said:

Section 28LL(3) states that impairments "from unrelated injuries or causes" are to be disregarded in making an assessment. Accordingly, a Panel is required to reach some conclusion as to the cause of a particular impairment elicited by the Panel... For the purposes of s 28LL(3), the Panel must make some determination as to the cause of the impairment. Similarly, for the purposes of determining the medical question, and providing a determination under s 28LZG(4), the Panel must identify the injury in respect of which it makes a determination. In the absence of an injury, there can be no determination of a degree of impairment "resulting from the injury". Thus, the Act contemplates that the Panel, in answering a medical question, must first determine whether the applicant actually suffers from the injury complained of.[18]

46 Mr Freedman submitted that Amendola was authority for the requirement of a medical panel to reach 'some conclusion' as to the cause of a relevant impairment for the purposes of s 28LL(3). He contended that this required the Panel to identify, and then disregard, unrelated cause(s) of Ms Gomperts' impairment. Mr Freedman submitted that the Panel's failure to consider the aetiology amounted to an error of law, on the basis that it failed to properly apply the requirements of s 28LL(3), or failed to take into account relevant considerations.

47 In Chua v Newman-Morris (Chua),[19] Ms Newman-Morris, alleged negligence against her former general practitioner, Dr Chua, for his delay in making the correct diagnosis of symptoms affecting her left leg and ankle, causing her to suffer injury. Dr Chua contended that the medical panel fell into error because it took into account impairment that pre-dated the acts or omissions alleged to have caused Ms Newman-Morris' injury. He contended that the panel was bound to disregard any impairment resulting from circumstances pre-dating his treatment.

48 On the definition of 'medical question' under the Act, Emerton J (as her Honour was then) noted it was inserted to:

...make clear that a medical panel does not have to determine questions of causation. The explanatory memorandum to clause 13 of the Wrongs and Other Acts (Law of Negligence Bill) 2003 states that the new definition was included to make it clear that the role of the medical panel is to assess the degree of impairment resulting from the injury or injuries that a claimant alleges in his or her claim. The panel does not determine issues of causation, that is, "whether or not those injuries could have been sustained in the incident on which the claim is based."

This does not support an argument that the medical panel can only consider injuries 'at large'. To the contrary, it makes plain that the panel is concerned with the injury or injuries alleged in the claim. The panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.

The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought...[20]

49 Emerton J held that the panel erred in having had regard to both the claimed injuries (arising from the delay in treatment) and the pre-existing dysfunction (for which the medical treatment had initially been sought).[21] The panel also fell into error by answering a question other than the medical question referred to it.[22]

50 Having regard to the aforementioned principles, the Panel was not required to separately consider the causes of each of Ms Gomperts' claimed injuries, including, relevantly, the possible additional causes of her lower back condition. Any role that a purported unrelated leg length discrepancy might also have played in the development of her lower back condition was an irrelevant consideration.

51 In Amendola, the medical panel was not satisfied that the claimed injuries persisted, and therefore made no impairment assessment in respect of them.[23] The subsequent decision in Chua made clear that, where a panel considers that the claimed injuries persist, in answering the referred question(s), it is to assume the claimed injuries arose from the tortious act (or omission) as alleged. Further, in doing so, it is unnecessary for a panel to consider the actual cause of those injuries.

52 In view of the above, the Panel did not fall into jurisdictional error in failing to consider the aetiology of the claimed leg length discrepancy and whether it was due, in part, to unrelated causes.

(b) Right hip arthritis causing lower back impairment

53 Mr Freedman alleged that the Panel erred in failing to take into account, and then disregard, Ms Gomperts' right hip osteoarthritis as a cause of her lower back impairment. Mr Freedman contended that, in these circumstances, the Panel erred in its application of s 28LL(3), or alternatively it failed to take into account relevant considerations.

54 In this respect, Mr Freedman repeated that the Panel had objective radiological evidence before it demonstrating pre-existing pathology in Ms Gomperts' right hip (referred to at [42] above). Further, Mr Freedman emphasised that the history taken by the Panel included a description of deteriorating right hip pain in the six months prior to its examination of Ms Gomperts.

55 Mr Freedman advanced submissions he had made to the Panel prior to its examination of Ms Gomperts. In particular, he reiterated that there was a 'strong correlation' between hip arthritis and spinal complaints, and that it was more likely that Ms Gomperts' spinal problems were caused by the arthritis and deteriorating right hip, than by any leg length discrepancy.

56 It was submitted that the Panel erred by confining its consideration of unrelated injuries and causes of Ms Gomperts' lower back impairment to her previous intermittent back pain and sciatica, and radiological changes to the spine. Mr Freedman submitted that the Panel did not engage with his detailed submissions in relation to the right hip as a cause of Ms Gomperts' lower back impairment.

57 In addition, Mr Freedman submitted that this unrelated right hip condition impacted upon Ms Gomperts' activities of daily living, which were, in part, relevant to the Panel's determination of the level of spinal impairment. Although Mr Freedman acknowledged that the Panel's assessment of the spine under the DRE Model did not require it to have specific regard for activities of daily living,[24] he submitted that it was relevant for two reasons. First, a claimant's activities of daily living are inherently part of the history obtained by the medical panel, which, in turn, feeds into the panel's overall assessment of the claimant. Second, the relevant DRE lumbosacral categories require consideration of whether there is an indication of impairment related to the injury.

58 Contrary to Mr Freedman's submissions, the Panel was not required to assess the aetiology of Ms Gomperts' lower back impairment, nor was it required to consider whether it was caused by her right hip arthritis. I do not accept Mr Freedman's submission that this requirement was particularly important in circumstances where Ms Gomperts' lower back pain was reported as radiating to her right side. As previously explained, for the purpose of answering the medical question asked of it, the Panel was entitled to assume that Ms Gomperts' claimed lower back injury arose as a consequence of the surgery.

59 Further, in determining the level of impairment of Ms Gomperts' lower back, the Panel was not required to have regard to her activities of daily living. For an assessment of the lumbosacral spine under the DRE model, the relevant parts of the Guides are Sections 3.3f and 3.3g, and Tables 70 and 72. None of these parts refer to activities of daily living, and instead the 'DREs are differentiated according to clinical findings that are verifiable using standard medical procedures.'[25] Therefore, in determining the level of impairment of Ms Gomperts' lower back, the Panel was not required to consider her activities of daily living. Therefore, any impact her unrelated right hip condition was having on those activities was an irrelevant consideration in the Panel's application of the DRE model.

60 Accordingly, there was no jurisdictional error by the Panel in its application of s 28LL(3) as alleged by Mr Freedman in respect of Ms Gomperts' right hip.

61 Mr Freedman also alleged that the Panel failed to consider, and then to disregard, Ms Gomperts' subsequent unrelated lower back aggravation. In support of this submission, Mr Freedman referred to the contents of the clinical records of Ms Gomperts' general practitioner, Dr Susan Cohen. These records detailed an attendance on 31 March 2020, at which time Dr Cohen recorded Ms Gomperts' complaints of lower back pain as '++ lower BP' after '[m]oving objects 6 days ago'. Mr Freedman submitted that these clinical records indicated that Ms Gomperts' lower back pain was unrelated to the leg length discrepancy and should have been disregarded under s 28LL(3). Mr Freedman submitted that this aspect of Ms Gomperts' clinical history was a fundamental matter, and that the Panel's failure to refer to it in its Reasons indicated that it had not genuinely engaged with that aspect of the clinical records.

62 In reply, Ms Gomperts submitted that the Panel had correctly stated the legal test under s 28LL(3) and answered the question referred to it, based upon its consideration of the referral materials. As such, she asserted that there was no basis upon which to allege an error by the Panel in its application of the subsection. Further, Ms Gomperts submitted that the reference to back pain in Dr Cohen's clinical records (at [61] above) did not compel a conclusion that she had unrelated subsequent impairment, which the Panel was required to disregard.

63 In City of Melbourne v Neppessen (Neppessen)[26] Niall JA explained the task of a medical panel in its application of s 28LL(3):

In identifying the unrelated impairment, and in estimating its extent, the panel is not required to apply the Guides. It is obliged to evaluate the unrelated impairment on the material presented to it and do its best to evaluate the extent to which that impairment is playing a part in the person's current impairment. The process of attribution does not require the panel to speculate, but requires it to disregard any impairment, either pre-existing or post-dating the injury, which is established by evidence to have resulted from a cause other than the relevant injury.[27]

64 The Panel expressly stated that it had taken into account Ms Gomperts' history and the referral material. It acknowledged its obligation to disregard any unrelated impairments that may have been present pre or post-surgery. Further, the Panel acknowledged that it could not be speculative in its assessment of unrelated impairment, and stated that it must have an evidentiary basis on which to be positively satisfied of a permanent unrelated impairment which it was required to disregard. The Panel stated that it accepted Ms Gomperts' account that, although she had experienced intermittent episodes of lower back pain, she was unrestricted in her personal and recreational activities with regard to her lower back at the time of the surgery. The Panel considered that, there was no verifiable evidence of any impairment of the lower back which was due to any pre-existing or unrelated condition and which ought to have been disregarded in accordance with s 28LL(3). In so deciding, the Panel did what was required of it, consistent with its obligations as outlined in Neppessen.

65 In some cases, this Court has been willing to infer that a failure to refer to crucial referral material indicates that a panel has failed to genuinely engage with its contents.[28] This is not such a case. I do not accept that the Panel's failure to refer to Ms Gomperts' subsequent complaints (as recorded by Dr Cohen in her clinical records) indicates that it did not take them into account in reaching its conclusion.

66 The Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd (Ryan)[29] held that a panel did not take account of a matter it was bound to consider when it failed to address the question of 'whether the appellant's return to her pre-injury duties would again aggravate her shoulder condition.'[30] It held that the panel's reasons did not indicate that it had undertaken 'any meaningful consideration' of the effect that a return to work could have had on aggravating the appellant's pre-existing injury.[31]

67 Neave JA acknowledged that '[a] court must proceed carefully when reviewing an administrative decision on the ground that the decision-maker did not have regard to a relevant consideration'.[32] However, in the circumstances of that case, the Court was satisfied that the medical panel did not take account of a matter it was bound to, and failed to address the question asked of it.[33]

68 In Edwards v State of Victoria (Edwards),[34] Richards J held that the panel's failure to refer to a substantial part of the referral material, including clinical records which referred to the claimant's self-harm, was a 'glaring omission'[35] in the context of a claimant with low intellectual functioning and memory difficulties.

69 I do not consider the errors made by the panels the subject of the judicial reviews in Ryan and Edwards to be comparable to the alleged failure in this case to refer to the complaints recorded in Dr Cohen's clinical records of lower back pain. Those records merely formed part of Ms Gomperts' overall history, which the Panel stated it had taken into account in its consideration of s 28LL(3).

70 The Panel was not obliged to give reasons for its determination.[36] Having done so, it was not obliged to detail all aspects of Ms Gomperts' extensive history (or any other matter) contained in the referral material, which it had considered in reaching its medical opinion. The Panel stated that it had formed its opinion with regard to the material before it and attached a list of such documents to its Reasons. I see no reason in this case to suspect that the members of the Panel were disingenuous in stating they had done so,[37] nor to infer from the lack of reference to this particular aspect of Ms Gomperts' history, that such matters were not considered by the Panel.

71 In determining this matter, I am mindful that I should not be overzealous in my critique of the Panel's Reasons, and must be cautious not to turn judicial review 'upon proper principles into a reconsideration of the merits of the decision.'[38]

72 In view of the above, I am not satisfied that the Panel failed to consider the matters referred to in Dr Cohen's clinical records. Further, as the Panel expressly referred to its obligations under s 28LL(3) and stated that it was satisfied there was no verifiable evidence of any impairment of the lower back due to any unrelated condition, Mr Freedman has failed to satisfy me that the Panel fell into jurisdictional error in the manner alleged.

(ii) The Panel erred in its use of an incorrect technique for measuring Ms Gomperts' claimed leg length discrepancy

73 Section 28LH(1)(a)(i) of the Act requires that an assessment of the degree of impairment must be done in accordance with the Guides.

74 Mr Freedman submitted that the Panel measured Ms Gomperts' leg lengths using tape measurement and referred to Part 3.2a of the Guides, titled 'Limb Length Discrepancy' which states:

Measuring lower extremity length by tape measure, or determining the iliac crest level when the subject is standing, has a 0.5 to 1-cm variance and is difficult in a patient with pelvic angulation, knee flexion contracture, or significant ankle edema. For this reason, teleroentgenography is recommended for estimating these impairments...[39]

75 It was submitted that the Panel's failure to follow the recommended technique was a departure from the Guides, and constituted an error of law.[40]

76 In reply, Ms Gomperts submitted that the mode of measurement was only relevant to an impairment assessment of the lower extremity (under Chapter 3.2 of the Guides) and therefore was immaterial to the Panel's assessment of Ms Gomperts' degree of spinal impairment. She also submitted that the language of the Guides regarding the mode of measurement is not mandatory, and therefore a decision by the Panel not to adopt a 'preferred' mode of measurement would not amount to legal error. I agree.

77 I accept that the recommendation to use teleroentgenography applies to an impairment assessment of the lower extremity where there is a claimed limb length discrepancy. However, as the Panel did not come to consider whether Ms Gomperts suffered any impairment from the claimed injury to her left leg, it was not necessary for it consider whether to adopt this mode of measurement.

78 The application of the Guides by medical panel members, and whether a particular measurement technique was correct, is not a matter the Court should readily interfere with. As the Court of Appeal stated in Gamble v Emerald Hill Electrical Pty Ltd,[41] the application of the Guides is a matter for doctors, not judges.[42] Further, when a Panel has stated in its Reasons that it has carried out the assessment in accordance with the Guides, there is a heavy onus on the challenging party to successfully contend otherwise.[43]

79 There is no basis to support a finding, that the Panel's application of the Guides, using its 'own medical experience and its own medical expertise,'[44] was affected by jurisdictional error. For those reasons, this alleged error must also fail.

(iii) The Panel failed to accord Mr Freedman procedural fairness in respect of the 23 September email

80 Mr Freedman submitted that the 23 September email contained 11 additional points, some of which directly related to Ms Gomperts' lower back condition. He complained that the Panel's delay in forwarding the email to his solicitors denied him an adequate opportunity to respond to its contents, as the Panel's Opinion and Reasons were published the following day. Mr Freedman contended that this failure constituted a denial of procedural fairness.

81 Mr Freedman contended that, had he been given a proper opportunity to respond, he might have invited the Panel to critically assess the matters set out in the 23 September email. In particular, Mr Freedman contended that a number of Ms Gomperts' complaints of lower back impairment did not appear in the report of Dr Kennedy or the records of Dr Cohen, and that Ms Gomperts had not made such complaints to the Panel at her examination. He also submitted that Ms Gomperts' comment 'sitting too long, makes my back go stiff' in the 23 September email was inconsistent with Dr Cohen's record of 31 March 2020, which stated 'Sitting ok.'

82 Mr Freedman contended that the 23 September email was, in essence, a submission to the Panel directed by 'whatever [Ms Gomperts] herself wishe[d] to put', whereas a verbal history obtained in a medical examination is directed by the Panel and can be challenged by it in the course of its assessment. He also submitted that as the email was in writing, there was a risk of it taking on greater significance as it has 'more force... [than] a fleeting matter that comes out in the course of an examination'.

83 In support of this alleged error, Mr Freedman referred me to numerous authorities on the common law doctrine of procedural fairness in the field of administrative decision making, starting with the High Court decision in Kioa v West.[45] In that case, Brennan J observed that a litigant should be given an opportunity to respond to 'adverse information which is credible, relevant and significant to the decision to be made.'[46]

84 I was also taken to the Court of Appeal decision in Ucar v Nylex Industrial Products Pty Ltd (Ucar),[47] which concerned the appeal of a serious injury application in circumstances where the trial judge made adverse findings in respect of the worker's credibility, without first giving him the opportunity to make relevant submissions.[48] After holding that there had been procedural unfairness in the hearing at first instance, the Court noted that, the degree of causal connection between the alleged breach and the reasons for the decision is not a relevant inquiry.[49] Instead, it was said that the applicant needed to demonstrate that the denial of procedural fairness was incapable of having contributed to the trial judge's conclusions, or that a new trial would 'inevitably result'[50] in the same outcome. The Court held that as the procedural unfairness directly related to the primary issue, the unfairness was material as it 'affected the judge's view of his credibility and the injuries from which he alleged he was suffering.'[51]

85 In Ucar, Chernov JA referred to the High Court decision of Stead v State Government Insurance Commission,[52] in which it was stated that:

the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact... it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.'[53]

86 Further, in the event I was satisfied that there was a denial of procedural fairness, Mr Freedman submitted there was no requirement for him to adduce evidence that the outcome would have been different 'but for' the breach of procedural fairness. To put it another way, he was not required to prove that, had he been provided an opportunity to respond to the matters raised in the 23 September email, the Panel would have arrived at different decision. In support of this proposition, Mr Freedman referred me to the decision of Moggill Cove Pty Ltd v Burton[54] in which Daly AsJ stated that, once a breach has been established by the applicant, the onus shifts to the respondent to establish that the breach would not have affected the outcome.

87 In reply, Ms Gomperts accepted that a medical panel exercising functions under the Act is required to accord parties procedural fairness and that a failure to do so may constitute reviewable error. However, Ms Gomperts submitted that, as required by s 28LZD of the Act, she was interviewed by the Panel in private. Further, it is not the usual course that a respondent is aware of the information provided by the claimant in the private examination. She submitted that, in these circumstances, there was no identified difference between the information she provided directly to the Panel in her interview and the information she provided via the 23 September email to clarify her responses, and as such there was no denial of procedural fairness.

88 Ms Gomperts also submitted that the information provided in the 23 September email raised no matters relevant to the panel's assessment of the appropriate DRE category and thus, any want of procedural fairness, if found, was so minor as to be immaterial. Ms Gomperts relied upon the recent High Court decision in Nathanson v Minister for Home Affairs (Nathanson)[55] in rejecting Mr Freedman's assertion that the onus shifted, such that she was required to satisfy me there was no consequence from any such denial.

89 There is no need for me in this case to reach a conclusion as to whether the 23 September email was an elaboration on answers Ms Gomperts provided at the examination, or a stand-alone written submission, as I do not consider there was a realistic possibility that the additional information contained in the email would have affected the Panel's determination. The 11 points articulated in the 23 September email are the types of matters I would expect a claimant to convey to a medical panel during an examination in relation to the impact of their claimed injuries. It can be inferred from the Panel's reference to some of these matters in its Reasons that it was prepared to accept the additional information after the formal examination. It was then for the Panel, composed of experienced medical practitioners, to determine for itself the appropriate conclusion to reach with regards to the supplementary material.

90 Given the temporal connection between the examination and the email, and the manner in which the 11 points were expressed, I am not persuaded that Mr Freedman was denied procedural fairness in not being given an opportunity to make submissions in respect of the 23 September email.

91 In so deciding, I am mindful of the comments of the Court of Appeal in Chang v Neill,[56] that 'a medical panel is different from many other statutory tribunals ... [it] does not adjudicate on parties' rights and obligations after engaging in an adversarial hearing.'[57] I am satisfied that the Panel was entitled to consider the contents of the email as an extension of, or an addition to, the information it gathered in the course of its examination of Ms Gomperts. It was able to do so without an obligation to seek submissions on such matters from Mr Freedman. To find otherwise would 'detract from the distinctive characteristic of a medical panel as an expert statutory body that provides answers to medical questions'[58] asked of it.

92 In Nathanson, the High Court considered the issue of materiality of a denial of procedural fairness. Kiefel CJ, Keane, and Gleeson JJ stated that:

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding.[59]

93 Further, the Court explained that the assumption derived from the rationale for procedural fairness is that 'if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.'[60]

94 In stating these principles, the High Court made clear that the burden falls on the applicant to satisfy the court of the 'realistic possibility' that a different decision 'could' have been made, and not the respondent to such a claim.[61]

95 On the submissions advanced, notwithstanding the 'undemanding' standard as articulated in Nathanson, I am not persuaded that any opportunity given to Mr Freedman to respond to the 23 September email would have resulted in a more favourable outcome for him. As noted previously, the Panel assessed Ms Gomperts' lumbo-sacral spine under the DRE Model. The complaints set out in the 23 September email were irrelevant to the Panel's consideration of the verifiable clinical signs relevant to its determination of her level of impairment. Notwithstanding the reference under DRE category 2 to clinical history and examination findings, such matters do not 'loom large' in the determination of the relevant category as Mr Freedman contended. Instead, the relevant sections of the Guides[62] focus on verifiable clinical signs, such that no consideration of the impact of the claimed injury on the activities of daily living (of the kind referred to in the 23 September email) was material to the Panel's assessment of Ms Gomperts' lumbosacral spine impairment.

96 For those reasons, this ground of review must also fail.

(iv) The Panel failed to obtain the records of Mr Tsigaras

97 Mr Freedman asserted that the Panel failed to comply with his request that it obtain medical records from Ms Gomperts' current treating surgeon, Mr Tsigaras. He said that the Panel's failure to make this inquiry and obtain the (readily available and important) information was a form of legal unreasonableness.

98 In support of this submission, Mr Freedman referred me to two decisions of Richards J, Schmael v Leach (Schmael)[63] and Edwards.[64] In both cases, Richards J concluded that the medical panel fell into jurisdictional error by failing to inquire and obtain additional information which was readily available and centrally relevant to the medical questions on which it was to provide its opinion.[65]

99 In Schmael, a claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), Richards J considered an application for judicial review of an opinion of a medical panel that there was no organic cause for the plaintiff's chronic pain. The plaintiff contended that the medical panel's opinion was legally unreasonable because it failed to inquire about the results of MRI examinations which were relevant to a critical question referred to it. Her Honour held that:

...one form of legal unreasonableness is making a decision without attempting to obtain information that it is obvious is readily available and centrally relevant to the decision to be made. Put another way, 'a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a ...constructive failure to exercise jurisdiction.[66]

100 Richards J was satisfied that the results of the MRI examination could have been easily ascertained. Her Honour's view was that there was a material deficiency in the information before the panel[67] and considered that it was manifestly unreasonable for the panel to proceed to form its opinion without first obtaining and considering the MRI results.[68]

101 In Edwards, a claim under the Wrongs Act, Richards J considered an application for judicial review in which it was alleged that a medical panel had failed to properly discharge its statutory function in failing to obtain the plaintiff's up to date medical records, in circumstances where the panel had determined that the plaintiff's psychiatric condition was in remission. The plaintiff was reported as having told the panel he had not self-harmed since October 2019. Given the plaintiff's long history of self-harming behaviour, his borderline impaired cognitive functioning, and the fact that he was a poor historian, Richards J considered that the panel could not have reached an informed opinion about the plaintiff's condition based on his history alone.[69] Her Honour was satisfied that there was a realistic possibility that the medical panel could have reached a different conclusion if it had considered the plaintiff's medical records from treating practitioners, which were readily available and centrally relevant to its determination.[70]

102 When a medical panel is assessing impairment under the Wrongs Act, it has the power to seek any additional information that it considers may assist in answering the questions referred to it.[71]

103 In respect of medical panels constituted under the WIRC Act, the Court of Appeal in Chang v Neill,[72] considered that a panel may fall into error if it fails to make an obvious inquiry. This reasoning was most recently applied in Schmael.[73] Although there is no Court of Appeal authority on whether a similar obligation arises in respect of a medical panel constituted under the Wrongs Act, in line with the reasoning of Richards J in Edwards,[74] if the information is of such importance that it is required to enable the panel to make an informed medical opinion in response to the questions asked of it, then it follows, that such an obligation may arise. However for the reasons that follow, it is not necessary for me to definitively decide this.

104 The Panel obtained a history from Ms Gomperts that her right hip condition had deteriorated in the six months preceding the examination, and that Mr Tsiagris had recommended right total hip replacement surgery. Having noted that history, and in circumstances where the right hip was not a claimed injury, it was open for the Panel to consider that it had sufficient material before it to perform its statutory function - to assess Ms Gomperts' impairment arising from the claimed injuries, and in doing so, make an informed determination of the medical question referred to it.

105 Mr Freedman's submissions in respect of this ground, in part, are contingent upon my acceptance of his contention that Ms Gomperts' unrelated right hip condition and leg length discrepancy were centrally relevant to the Panel's determination. However, as explained above, those matters (potentially) relevant to causation were not matters that the Panel was obliged to deal with under s 28LL(3). As such, the relevance of the records held by Mr Tsigaris is, at best, marginal, and in stark contrast to the importance of the medical records in Schmael and Edwards.

106 For those reasons, I am not satisfied that the contents of Mr Tsigaras' clinical records were required for the Panel to reach an informed medical opinion, nor to answer the question referred to it. Therefore, there was no jurisdictional error in the Panel failing to obtain such records, and this ground of judicial review must fail.

107 As I am not satisfied the Panel's determination was affected by jurisdictional error, I dismiss Mr Freedman's application.

108 I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.

[1] Pursuant to Division 2 of Part VBA of the Wrongs Act 1958 (Vic) (the Act).

[2] Pursuant to the Act (n 1), s 28LB(c).

[4] Pursuant to the Act (n 1), s 28LT(2).

[5] R v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.

[6] Chua v Lowthian [2011] VSC 468.

[7] American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition), 3/101 (the Guides).

[9] Sidiqi v Kotsios [2021] VSCA 187, [30].

[10] Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Dunbar v Bas [2019] VSCA 315, [51].

[11] Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109] (Ryan).

[12] Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271; Ryan (n 11)[109].

[13] [2013] HCA 43; (2013) 252 CLR 480 (Wingfoot).

[15] [2008] VSC 36 (Amendola).

[19] [2009] VSC 582.

[24] As is required under the Guides for the assessment of impairment of some other body functions, for example 'Impairment Classes for Skin Disorders', 13/280 and 'Rating Hip Replacement Results', 3/87.

[26] [2019] VSC 84.

[28] See for example Edwards v State of Victoria [2021] VSC 423, [56] (Edwards).

[36] Colquhoun v Capital Radiology Pty Ltd [2013] VSCA 58; [2013] 39 VR 296, 298 [6(e)].

[37] Vellios Electrical Contactors Pty Ltd v Barton [2014] VSC 664, [83].

[38] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

1. [40] Edwards (n 28), [82]. See also H J Heinz Company Australia Pty Ltd v Kotzmann [2009] VSC 311, [25].

[41] [2012] VSCA 322; (2012) 38 VR 45.

[45] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582.

[47] [2007] VSCA 181; (2007) 17 VR 492 (Ucar).

[52] [1986] HCA 54; (1986) 161 CLR 141.

[53] Ibid, 145 cited in _Uc_ar (n 48), 514 [60].

[54] [2018] VSC 24, [23], citing Bahonko v Moorfields [2008] VSCA 6, [30].

[55] [2022] HCA 26; (2022) 403 ALR 398, [127] (Nathanson).

[56] [2019] VSCA 151.

[59] Ibid (citations omitted), 410 [33].

[62] Being Parts 3.3f and 3.3g and Tables 70 and 72,

[63] [2020] VSC 562 (Schmael).

[65] Schmael (n 64), [44]; Edwards (n 28), [75]. After closing submissions, Mr Freedman also referred me to a reserved judgment of O'Meara J in Troeth v Cerberus Catering Pty Ltd where the plaintiff in a Wrongs Act claim, had alleged a jurisdictional error by a medical panel for a failure to inquire.

[66] Schmael (n 64), [37] (citations omitted).

[72] [2019] VSCA 151; (2019) 62 VR 174.