Plaintiff v Defendants

1. The plaintiff commenced employment with the first defendant in late May 2023.
2. On 10 August 2023, she lodged a worker's injury claim form for weekly payments and expenses for medical and like services under s 20 of the WIRC Act. She claimed that in the course of her employment she injured her 'back, right shoulder and neck' resulting from 'heavy lifting of tools and repetitive bending and twisting'.[3] She nominated the date she first noticed the injury as 27 July 2023, and she stopped work and reported the injury on 28 July 2023.
3. On 22 August 2023, Dr Francis Ghan, an orthopaedic surgeon, examined the plaintiff at the request of the first defendant. Dr Ghan provided a report dated 1 September 2023 in which he concluded 'I do not have the opinion that employment is the cause of [the plaintiff's] conditions'.[4] Thereafter, the first defendant rejected the plaintiff's claim for weekly payments and medical and like expenses in respect of the claimed injury.[5]
4. Not accepting the first defendant's rejection of her claim, the plaintiff sought a conciliation using the Accident Compensation Conciliation Service under s 289A(1) of the WIRC Act. By letter dated 15 January 2024 pursuant to s 284(1) of the WIRC Act, the Conciliation Officer referred four questions to a medical panel. The referral included the information required by s 304(a) of the WIRC Act and was accompanied by a bundle of documents and other materials relating to the medical questions pursuant to s 304(b) of the WIRC Act.
5. The Medical Panel examined the plaintiff with the assistance of an interpreter on 25 March 2024. The Medical Panel also took a history from her.
6. By its 'Certificate of Opinion' dated 17 May 2024,[6] the Medical Panel answered the referred questions as follows.

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injuries?

Answer: The Panel is of the opinion the worker is suffering symptoms of neck, right shoulder and lower back pain and a resolved soft tissue injury to the lower back relevant to the claimed injuries.

Question 2: If the Panel is of the opinion that the worker's medical condition is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing was the worker's employment in fact or could it possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury?

Answer: The Panel is of the opinion the worker's employment is not a significant contributing factor to her symptoms of neck, right shoulder and lower back pain.

The Panel is of the opinion the worker's employment was a significant contributing factor to a soft tissue injury of the lower back, now resolved.

Question 3: Is the worker incapacitated for work?

Answer: The Panel is of the opinion that the worker currently has an incapacity for work.

Question 4: What is the extent to which the worker's incapacity for work results from or is materially contributed to by any, and if so which, of the claimed injuries?

Answer: The Panel is of the opinion the worker's incapacity for work does not result from and is not materially contributed to by any of the claimed injuries.

The Medical Panel provided written reasons also dated 17 May 2024[7] ('Reasons') to accompany these answers. The Reasons confirm that the Medical Panel formed its opinion with regard to the documents and information in Enclosures A and B provided with the referral, the history provided by the plaintiff and the Medical Panel's examination findings. The documents comprising Enclosures A and B are listed in two schedules accompanying the Reasons and comprise documents and medical reports relating to the plaintiff's claim in respect of the subject injury, together with the plaintiff's clinical records and treating notes, including those obtained from the Stud Road Medical Centre.

The statutory function of the Medical Panel and judicial review of its reasons

1. In the context of a claim in respect of a workplace injury under the WIRC Act, medical questions may be referred to a panel by various bodies including, as in this case, a Conciliation Officer. The questions that may be asked of a medical panel convened under the WIRC Act are set out in the definition of 'medical question' in s 3 of that Act.
2. A medical panel comprising medical practitioners will be convened in response to the referral. It is a non-legal but expert tribunal and its function is to 'give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment'[8] referred to it. A convened panel's procedures and powers are regulated by s 303 of the WIRC Act. In particular, a panel is not bound by the rules of evidence, may inform itself in any manner it sees fit (including by reliance on its own expertise) and must act informally and without regard to technicalities.[9] A panel has powers, amongst others, to request further information it needs to form an opinion,[10] to ask questions of the worker and to request the worker attend before it to be examined.[11]
3. A panel convened and answering referred questions under the WIRC Act must provide a certificate of opinion and a written statement of its reasons for that opinion.[12] Once given, the panel's opinion provides a 'final and conclusive' answer to the referred questions.[13] In particular, a panel opinion must be adopted and applied by any court in ensuing legal proceedings in respect of the injury.[14]
4. A medical panel opinion and its reasons are reviewable. The starting point of any judicial review of a medical panel decision is consideration of the statutory task it is required to undertake. In Sidiqi v Kotsios ('Sidiqi'),[15] the Court of Appeal described the function of a medical panel convened under the WIRC Act as being, primarily, to form an opinion with respect to the medical questions referred to it and, secondarily, to certify answers to those questions and state reasons for them.[16] Importantly, the panel's function is not adjudicative. The nature of the medical questions requires the panel to draw upon its medical expertise, which the Court itself does not possess, to express medical opinions as to the extent, cause and consequences of an injury. Given it is not bound by the rules of evidence and can inform itself as it sees fit, a panel also enjoys a broad discretion as to the manner in which it evaluates the facts in the case.
5. The nature of the Medical Panel's functions, its powers and its specialist expertise means that this Court cannot approach judicial review of its decision in the same way that it would those of other decision-makers. In particular, the Court must be cautious in substituting its own decision for that of this expert panel. The following, overlapping principles, drawn from the authorities, also constrain practically how this Court conducts a judicial review of its decision, that is:

(a) the Court should not be concerned with looseness in the language, nor with unhappy phrasing of the Reasons;[17]

(b) the Reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error;[18]

(c) the Reasons are meant to inform and not to be scrutinised over-zealously;[19] and

(d) the Reasons must be read fairly, as a whole and in context.[20]

Ground one - Jurisdictional error - factual error constituting constructive failure of the Medical Panel to perform its statutory function

1. The plaintiff's first ground of review is that the Medical Panel made a factual error by taking into account certain factual material in such a manner as to misconstrue its nature or effect, which factual error was sufficient to amount to jurisdictional error. As the Court of Appeal explained in Chang v Neill ('Chang'),[21] whether a particular factual error is sufficient to amount to a constructive failure to perform the relevant tribunal's statutory function, that is, jurisdictional error, will depend on the importance of the material to the exercise of its function and the seriousness of the error.[22] Where the subject matter, scope and purpose of the statutory function indicate that the taking into account (or proper construction) of the factual material is essential to the valid exercise of the function, there will be jurisdictional error.
2. The plaintiff relies on three asserted factual errors, each of which she says was essential to the valid discharge of the Medical Panel's statutory task and so gives rise to jurisdictional error. I will consider each in turn.

Chronic low back pain and shoulder pain from 2021 onwards

1. The plaintiff highlights the Medical Panel's statement, on page 10 of its Reasons, that it 'noted from the Stud Rd Medical record' that:

[the plaintiff] received subsidised visits to her chiropractor through yearly GP management plans which listed her chronic health problems from 2016 as including chronic low back pain and from 2021 onwards as including chronic low back pain and shoulder pain.[23]

She submits that the Medical Panel's observation that the GP Management plans 'from 2021 onwards' listed her health problems as including 'shoulder pain' is wrong. In oral submissions, the plaintiff summarised the alleged misconstruction as a finding of 'persisting pain' in her shoulder at the time of the commencement of her employment.[24] She submits that the GP Management plans in fact show that the last such referral for chiropractic treatment for these symptoms in her shoulder was for four sessions in February 2022, so not 'from 2021 onwards', and that it 'well and truly pre-dates the employment'.[25] In addition, she submits that the Medical Panel has ignored a subsequent letter within the Stud Rd Medical records from Dr Amir Khoeilar dated 10 July 2022 which states:

I assessed [the plaintiff] on 10/07/2022. On assessment, the patient is symptom free and does not present with any clinical features suggestive of shoulder pain.[26]

1. The plaintiff submits that this erroneous factual finding was a critically important one, because it was 'the only [finding] compelling an inference that the worker was experiencing back and shoulder pain when she started work (in May 2023)'.[27] She submits that the Medical Panel's conclusion that the plaintiff had persisting pain in the shoulder, when the letter of 10 July 2022 showed she did not, was an error that had significance in the Medical Panel's consideration of 'the probable development of the injury occurring if that employment had not taken place',[28] being a factor that the Medical Panel was obliged to have regard for the purposes of determining if the employment was a significant contributing factor to the injury under the WIRC Act. She refers to page 10 of the Reasons, which immediately follows the Medical Panel's observation about the GP Management plans extracted above, which commences:

in assessing the contribution of [the plaintiff's] employment with [the first defendant] to the claimed neck, right shoulder and lower back conditions, in addition to her past medical history...[29] (underlining added)

The plaintiff submits that this reference to her medical history, in respect of which she says the Medical Panel had made a factual error about her shoulder symptoms, was, therefore, central to its findings as to causation.

1. I do not accept that the Medical Panel made a factual error of the kind contended for by the plaintiff. First, the plaintiff's singular focus on the Medical Panel's observation about the GP Management plans ignores the full context of that observation within the Reasons and the Medical Panel's evident purpose in recording it. The impugned observation appears in the section of the Reasons headed 'Contribution of [the plaintiff's] Employment to her Claimed Neck, Right Shoulder and Lower Back Injuries', which begins with the following passage:

The Panel noted [the plaintiff's] report that prior to starting work with Toll Holdings in late May 2023, she had never experienced any symptoms or restricted function in her neck, right shoulder or lower back, and she had been unrestricted in her activities of daily living and her work.[30] (underlining added)

The Panel noted, however, that this was not concordant with her GP medical record from the Stud Rd Medical Centre. The Panel noted from the Stud Rd Medical records that [the plaintiff]: ...[31]

What follows is a series of eight dot points identifying specific observations made by the Medical Panel about material contained in the Stud Rd Medical records which directly contradicts the plaintiff's history. The impugned observation is the last of those eight dot points, and it can be readily inferred from the context that the obvious purpose for its inclusion in the list is to illustrate, together with all of the other examples, that contradiction.

1. In any event, the impugned observation is correct - the GP Management plans do disclose that the plaintiff suffered from chronic low back pain and shoulder pain and they are dated in 2021 and 2022. The use of the word 'onwards' may be imprecise given there is no further GP management plan which pre-dates the claimed injury, however, given the clear purpose of the observation, that imprecision is of no consequence. A fair reading of the whole passage reveals that the Medical Panel does not rely on the impugned observation to form any conclusions about the persistence or duration of symptoms of pain. The passage merely explains the inconsistency between the plaintiff's history and the medical records.
2. I also do not accept that the Medical Panel ignored the 10 July 2022 letter from Dr Khoeilar. As the first defendant submits, the letter was included within Enclosure B received by the Medical Panel, which comprised 222 pages of records from the Stud Road Medical centre. In its Reasons, the Medical Panel states that it formed its opinion having regard to, among other things, the contents of Enclosure B. There is no reason that statement should not be accepted at face value.[32] Regardless, it is apparent from the Reasons that the Medical Panel in the circumstances of this case actually gave scrupulous attention to the contents of the referred documents, most particularly the Stud Rd Medical records, having identified an extensive number of examples in the dot points referred to above. Further, taking into account the full context and the purpose of the Medical Panel in making the impugned observation, there was no need for it to refer expressly to the July 2022 letter. Logically, the eight dot points reveal the exemplar material observed by the Medical Panel from amongst the Stud Road Medical Centre records which contradicted the plaintiff's recounted medical history to the effect that she had never experienced any symptoms in her neck, right shoulder or lower back. The contents of the letter, which did not deal with any issue of low back pain or neck pain, did not provide such contradiction directly[33] or so obviously as the other examples selected by the Medical Panel. It cannot be inferred, therefore, that the failure to refer to the letter was a failure to consider it and thus a factual error.
3. Even if the Medical Panel made an error of fact in failing to have reference to the letter, I am not convinced by the plaintiff's submission that the Medical Panel's consideration of the letter was an essential feature of, or centrally important to, the discharge of its statutory task. The letter was one of many records concerning the plaintiff's medical history provided to the Medical Panel. It concerned only the absence of shoulder pain on the date the letter bears, and so can have no relevance to the other claimed injuries to the neck and back. The Medical Panel also examined the plaintiff, analysed the plaintiff's medical records including imaging records, took her history from her and asked her questions about the work tasks she was undertaking as part of her pre-injury duties. Ultimately, the Medical Panel concluded that the plaintiff's intermittent right shoulder discomfort when reaching overhead was not 'an indicator of an underlying work-related mechanical injury'[34] or that 'the work tasks described by [her] provided an explicable mechanism of injury to [her] neck or right shoulder.'[35] The Medical Panel further opined that it considered the plaintiff's neck and right shoulder symptoms:

are likely to have resulted from exertion and fatigue with repetitive work, on a background of possible degenerative change in the neck and right shoulder but not from any underlying organic injury to [the plaintiff's] neck or right shoulder or any aggravation or exacerbation of a pre-existing condition.[36]

I accept the first defendant's submission that these statements reveal that central to the Medical Panel's consideration and its conclusions about whether the plaintiff's employment was a cause of her claimed injuries was its assessment of the nature of the tasks the plaintiff described, and their examination of her, rather than any inference concerning previously reported shoulder pain symptoms or the abatement of those symptoms prior to the commencement of her employment as might be disclosed in the medical records.

1. In a similar vein, the plaintiff submits that, in forming its opinion about whether the plaintiff had an injury caused by her work, the Medical Panel found that there was 'no reported incident of injury or trauma to [the plaintiff's] neck and right shoulder when she lifted the heavy box on 27 July 2023'.[37] The plaintiff submits this conclusion is at odds with the material before the Medical Panel, namely:

(a) the history the Medical Panel obtained from the plaintiff including her account of the 27 July 2023 incident and that she did suffer symptoms as a result of the specific incident of lifting the heavy box and that she did report that incident;

(b) the history recorded by Dr Ko during the plaintiff's consultation on 28 July 2023;[38] and

(c) the history recorded by Ms Han, physiotherapist, regarding the plaintiff's presentation at her appointment on 19 August 2023, which is set out in Ms Han's letter dated 4 December 2023.[39]

1. The plaintiff again submits that this conclusion of the Medical Panel, to the effect that there was no report of injury or trauma to the neck or right shoulder when she lifted the heavy box, was central to the Medical Panel's ultimate finding that the plaintiff's claimed injuries were not caused by her work. She submits that the Medical Panel's failure to properly construe its own history taken from the plaintiff and the medical records obtained from Dr Ko and Ms Han, gave rise to jurisdictional error.
2. Again, the plaintiff's focus on the words extracted above, ignores the balance of the sentence, and the broader context in which the opinion is expressed by the Medical Panel in its Reasons. The full sentence reads:

The Panel noted there was no reported incident of injury or trauma to [the plaintiff's] neck and right shoulder when she lifted the heavy box on 27 July 2023 although she described increasing neck and right shoulder pain thereafter, when she was no longer working, and most work-related injuries improve rather than deteriorate when the work ceases, especially in the absence of significant imaging pathology.[40] (underlining added)

Read fairly, the Medical Panel here recounts the plaintiff's report to it of the symptoms she experienced during the 27 July 2023 lifting incident, identifying that she did not report neck and shoulder pain during the incident, only afterwards. In that regard, the Medical Panel's 'note' is entirely accurate. The plaintiff's account of the lifting incident as recorded in the Reasons reads as follows:

[the plaintiff] said on 27 July 2023, she was picking up a large cardboard box when she heard a clicking sound in her lower back and felt a distressing sensation in her lower back which she described as "a current that went through her whole body, spreading from her lower back into her legs and feet". She said she had never experienced anything like this before and it was like "the life was going out of her body" and she could not move. She said this occurred at the end of a shift so she slowly made her way to her car and drove home. She said the pain persisted and disturbed her sleep that night. She said she took several pain-killing tablets to get herself to work the following day but was unable to do her picking/packing duties because of lower back pain and the pain in her neck and right shoulder.[41]

1. The plaintiff does not specifically mention symptoms of pain in the neck and shoulder in her description of the immediate symptoms experienced during the lifting incident when recounting the incident to the Medical Panel. She refers to 'the pain in her neck and shoulder' only when describing why she was unable to undertake her work duties the following day. It is not clear, in the way it has been recounted, whether that was new neck and shoulder pain following the lifting incident, or the neck and shoulder pain symptoms the plaintiff told the Medical Panel she developed 'a couple of weeks after starting work when she was still picking/packing light items.'[42] Regardless, the Medical Panel notes that the plaintiff experienced increasing neck and shoulder pain after the incident, when she was no longer working. That is consistent with what she told the Medical Panel as follows:

[The plaintiff] said her neck, right shoulder and lower back symptoms have persisted since 27 July 2023 and did not improve when she stopped work, in fact her neck and right shoulder pain got worse.[43]

When the full quote is compared with the plaintiff's history given to the Medical Panel, it is readily apparent that the Medical Panel's observation which the plaintiff seeks to impugn is entirely consistent with the history she gave to it, they have accepted the incident occurred as she described it and there is no error.

1. Nor is the impugned observation inconsistent with the report of Dr Ko. Dr Ko's treatment notes from the plaintiff's consultation on 28 July 2023 (the day after the lifting incident) record:

DOI - 27/07/2023

R) handed

- was doing some heavy lifting duties at work

- noted acute onset of pain in the lower back whilst heavy lifting

- has also noted pain in the right shoulder[44]

These notes refer to the immediately observed symptoms of acute onset lower back pain whilst heavy lifting. The notes refer to shoulder pain, but not as an acute symptom experienced during heavy lifting, but rather as something else that she had observed afterward.

1. Ms Han's 4 December 2023 report based upon her consultation with the plaintiff on 19 August 2023, that is three weeks after the 27 July lifting incident, states '[the plaintiff] reported she felt immediate pain in her lower back, right shoulder and neck.'[45] That history as conveyed to Ms Han by the plaintiff is inconsistent with the history conveyed by the plaintiff directly to the Medical Panel. The Medical Panel has not made a factual error in preferring the plaintiff's report of the incident given to it, over her account to Ms Han. That is coupled with the Medical Panel's analysis of other records such as the injury claim form[46] and Dr Ghan's report[47] in which no single heavy lifting incident, let alone the symptoms caused during or after that incident, was related by the plaintiff. In the result, and despite there being conflicting records in which no heavy lifting injury was described at all, the Medical Panel ultimately found that the plaintiff likely suffered a soft tissue injury to her lower back as a result of the described lifting incident that was caused by her employment, but which had resolved.
2. Given all of the above, I do not accept the plaintiff's submission that the Medical Panel, in making the impugned observation, misconstrued or ignored the plaintiff's history and the reports of Dr Ko and Ms Han, and so made a factual error. Rather, as the first defendant submits, the Medical Panel took the plaintiff's recounted history and sought to construe it against the other documentary records before it. It grappled with the imaging relied upon by Ms Han, and the symptoms, including when they emerged, as recounted by the plaintiff. The Medical Panel concluded that the ultrasound images of the right shoulder were inconsistent with the symptoms of restricted movement and global regional pain described by the plaintiff and her physical examination findings.

Lack of identifiable pathology on examination - illogicality

1. The third factual error that the plaintiff contends the Medical Panel made was to find that:

[w]hilst the Panel accepts that [the plaintiff] may have also suffered symptoms in her neck and right shoulder during the course of her employment, but the Panel considered these symptoms were likely caused by repetitive work tasks causing fatigue as there was no clinical indication during the Panel's examination of any identifiable pathology in [the plaintiff's] neck or right shoulder.[48]

The plaintiff submits that this finding is 'illogical' and, therefore, a factual error. The illogicality is said to be that the absence of 'identifiable pathology' on examination cannot be said to be informative of the worker's condition at an earlier point in time. The plaintiff submits the erroneous finding was central to the Medical Panel's task in answering question 1, and thus gave rise to jurisdictional error.

1. I do not accept there is a factual error in the nature described, nor do I accept that, had there been one, it was central to the discharge of the Medical Panel's function. In this part of its Reasons, the Medical Panel is, as the first defendant submits, merely giving the plaintiff the benefit of the doubt that she may have experienced symptoms of pain, given its findings on examination, and having considered the imaging, that there was no medical condition relevant to the claimed injuries. That is reflected in the Medical Panel's answer to question 1 to the effect that in its opinion the plaintiff was suffering symptoms of neck and right shoulder pain, and in its answer to question 2 that the plaintiff's employment was not a significant contributing factor to those symptoms of pain. The Medical Panel's view reflects the application of its expertise to all of the matters it observed.

Ground two - legal unreasonableness due to illogicality or irrationality

1. By its second ground, the plaintiff seeks review of the Medical Panel's decision relying on the principles of irrationality and illogicality giving rise to legal unreasonableness. Despite referring, in the case of Sidiqi, to lingering uncertainty as to whether and how such principles might apply to medical panel decisions, the Court of Appeal nevertheless went on to endorse the application of those principles by the trial judge on the basis that, given the WIRC Act vests in medical panels the power to form a binding opinion, it could be implied that it is intended that such opinion will be reached by a rationally defensible path of reasoning.[49] Additionally, in cases both before and after Sidiqi, judges of this Court have either accepted, or assumed, that a medical panel's decision can be reviewed on the ground of illogicality or irrationality.[50]
2. The first defendant accepts that legal unreasonableness based on illogicality or irrationality is a ground upon which the Medical Panel's decision can be reviewed, however, it submits the test is a stringent one that the plaintiff fails to satisfy. It submits the correct approach to determining whether this ground of review succeeds is 'to ask whether it was open to the [Medical Panel] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.'[51]
3. The plaintiff submits that the opinion of the Medical Panel is 'illogical or irrational, and therefore legally unreasonable' because the Medical Panel's answers to questions 1 and 3 are logical contradictions and cannot both be correct.[52] The contradiction, she submits, is that the Medical Panel concluded that the plaintiff is suffering from symptoms of pain but no medical condition (answer to question 1), and yet she has no capacity for work because of her symptoms of pain (answer to question 3). The plaintiff submits that the incapacity must arise from a medical condition, hence the illogicality in the two conclusions.
4. The plaintiff submitted that '[i]n finding an incapacity... [the Medical Panel] must have accepted that the complaints of pain were genuine and had a medical basis'.[53] This submission exposes clearly the vice in the plaintiff's analysis. She identifies illogicality in the stated conclusion to each question, and speculates that, therefore, the Medical Panel's reasoning process 'must have been' illogical and, so, unreasonable. The stringent test identified in the authorities directs the focus to the identification of illogicality or irrationality arising within the reasoning process itself, that is whether the conclusion was one to which no rational or logical decision maker could arrive with the same evidence,[54] not merely an inconsistency in the conclusions reached. Properly applying that test requires reading all the answers together and in their context as part of the Reasons as a whole.
5. In answering question 1, the Medical Panel opines in its Reasons that:

...[t]here was insufficient clinical evidence to make a diagnosis of a pain syndrome, a chronic regional pain syndrome, a neuropathic pain condition or a complex regional pain syndrome.[55]

[F]or there to be persisting physical injury, a Panel must be able to identify concordant physical symptoms, examination findings and radiological pathologies, which were absent in this instance.[56]

there may be other (non-medical) reasons why a person complains of pain and physical limitations when a physical injury has resolved.[57]

The Medical Panel carefully considers and concludes that while the plaintiff is suffering symptoms of pain, there is no organic or medical condition resulting from the plaintiff's claimed injury that would be the cause of that pain.

1. In answering question 3, the Medical Panel opines that 'the worker currently has an incapacity for work'.[58] In its Reasons, it notes further that:

...as the Panel concluded that there is no longer any compensable medical condition of [the plaintiff's] neck, right shoulder or lower back, the Panel concluded that her incapacity for work does not result from and is not materially contributed to by any of the claimed injuries.[59]

This reasoning shows that the Medical Panel's view about the plaintiff's 'incapacity'[60] for work arises from her experience of pain even though it had already concluded that those symptoms did not arise from a medical condition relevant to the claimed injury. The Medical Panel acknowledged on several occasions the plaintiff's reports of pain, it observed pain avoidant behaviour during the examination, but found nothing organic to account for it. It concludes she has no medical condition causing the pain but nevertheless that her experience of the symptoms of pain about which she complains means she will not be capable of work. When considered as a whole, the Medical Panel's reasoning process is patently logical and rational. It was entitled to answer each question applying its own medical experience and expertise and to give its own opinion. Whilst the Medical Panel might have speculated about non-medical causes of pain, it, quite appropriately given the confines of its expertise and jurisdiction, does not express any conclusions.

Ground three - adequacy of reasons amounting to error of law on the face of the record

1. The plaintiff's third ground is that the Medical Panel, in formulating its answer to question 1, failed to provide written reasons sufficient to comply with s 313(2) of the WIRC Act, which requires a Medical Panel to furnish a written statement of reasons for its opinion.
2. In Wingfoot Australia Partners Pty Ltd v Kocak,[61] the High Court helpfully set out the principles relating to the adequacy of reasons as required by the predecessor provision to s 313(2) of the WIRC Act, which has been enacted in like terms. In summary:

(a) the 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; [62]

(b) the standard of reasons of an expert tribunal is not the same as that required of a judicial officer;

(c) a medical panel is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else; [63]

(d) the function of a medical panel is neither arbitral nor adjudicative, but is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise; and

(e) a medical panel's reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.

1. The plaintiff submits that in answering question 1, the Medical Panel made an intermediate finding that the plaintiff was not suffering from 'persisting physical injury'.[64] In making that finding, the Medical Panel had determined there was no medical condition related to the claimed injury, but it also 'looked for alternative medical explanations for [the plaintiff's] ongoing complaint of symptoms and restricted function in the absence of ongoing physical evidence of injury'.[65] The Reasons then state:

[the Panel] noted no medical alternative reasons, as there was insufficient clinical evidence to make a diagnosis of a pain syndrome, a chronic regional pain syndrome, a neuropathic pain condition or a complex regional pain syndrome. The Panel acknowledged there may be other (non-medical) reasons why a person complains of pain and physical limitations when a physical injury has resolved but for there to be persisting physical injury, a Panel must be able to identify concordant physical symptoms, examination findings and radiological pathologies, which were absent in this instance.[66]

1. The plaintiff argues that the Medical Panel considered alternative medical explanations, concluding there was none, but it did not give sufficient reasons for finding there 'was insufficient clinical evidence to make a diagnosis of a pain syndrome, a chronic regional pain syndrome, a neuropathic pain condition or a complex regional pain syndrome.'[67] Relatedly, the plaintiff submits that the Medical Panel concluded that the plaintiff's persisting complaints of pain could only be explained by 'other (non-medical) reasons'.[68] She submits, in the first instance, its failure to explain what it meant by that phrase was a further failure to sufficiently explain its path of reasoning. And she further submits, that if, as she says was likely, the Medical Panel used those words to convey a conclusion that the plaintiff was a malingerer, then it failed to explain, at all, its reasons for that conclusion.
2. I accept the first defendant's submission that the Medical Panel was not asked to express any opinion about alternative causes of the plaintiff's reported symptoms of pain, and so had no obligation to provide reasons for not forming an opinion about those possible causes. I also accept that in so far as the Medical Panel states that there were no 'medical alternative reasons'[69] for the plaintiff's reported symptoms of pain, such as a pain syndrome, that opinion was explained on the basis of an insufficiency of evidence, and nothing more was required of it in order to support that opinion. Similarly, in order to answer the questions asked of it, the Medical Panel did not need to determine whether the plaintiff's reported symptoms of pain were genuine. Rather, it concluded that there was no medical cause of the pain related to the claimed injury. Whether malingering was an alternative non-medical cause, the Medical Panel was not required to say, as it was not asked to express its opinion. No path of reasoning was required.

1. For the reasons given above, I am satisfied that the Medical Panel did not fall into jurisdictional error, nor did it make an error of law on the face of the record, in answering the questions as it did and I dismiss the proceeding.
2. Costs should follow the event. Accordingly, the plaintiff must pay the first defendant's costs of the proceeding, on a standard basis, such costs to be taxed in default of agreement.

[1] Affidavit of Emelia Elizabeth Boughen affirmed on 23 July 2024, Exhibit EB-1, 10-1 ('Boughen Affidavit').

[2] [1980] HCA 13; (1980) 144 CLR 13, 35.

[4] Boughen Affidavit, Exhibit EB-1, 46-51.

[5] By notice pursuant to s 75 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) dated 6 September 2023 ('WIRC Act').

[6] Boughen Affidavit, Exhibit EB-1, 14-5.

[7] Boughen Affidavit, Exhibit EB-1, 16-26.

[15] [2021] VSCA 187 ('Sidiqi').

[17] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 ('Pozzolanic').

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

[20] Dundar v Bas [2019] VSCA 315, [51].

[21] [2019] VSCA 151; (2019) 62 VR 174 ('Chang').

[23] Boughen Affidavit, Exhibit EB-1, 23.

[24] Transcript of Proceedings, Baig v Toll Personnel Pty Ltd (Supreme Court of Victoria S ECI 2024 03672, Goulden AsJ, 19 September 2025) T8.8 ('Transcript').

[26] Boughen Affidavit, Exhibit EB-1, 316.

[27] Further Amended Plaintiff's Outline of Submissions [31] ('Plaintiff's Submissions').

[29] Boughen Affidavit, Exhibit EB-1, 23.

[30] Boughen Affidavit, Exhibit EB-1, 22.

[32] Maribyrnong City Council v Malios [2014] VSC 452, [48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [83].

[33] It could be argued it did so indirectly given the plaintiff was obviously being assessed for symptoms of shoulder pain.

[34] Boughen Affidavit, Exhibit EB-1, 23.

[37] Boughen Affidavit, Exhibit EB-1, 25.

[38] Boughen Affidavit, Exhibit EB-1, 94.

[39] Boughen Affidavit, Exhibit EB-1, 59.

[40] Boughen Affidavit, Exhibit EB-1, 25.

[41] Boughen Affidavit, Exhibit EB-1, 18.

[42] Boughen Affidavit, Exhibit EB-1, 17.

[43] Boughen Affidavit, Exhibit EB-1, 18.

[44] Boughen Affidavit, Exhibit EB-1, 94.

[45] Boughen Affidavit, Exhibit EB-1, 59.

[46] Boughen Affidavit, Exhibit EB-1, 1 in which the plaintiff describes how her injury happened as: 'I was injured as a result of heavy lifting of tools and repetitive bending and twisting'.

[47] Boughen Affidavit, Exhibit EB-1, 46-51 in which Dr Ghan (at page 2 of his report) recounts the history given to him by the plaintiff as follows:

There were no particular injuries. She reported aches and pains in her right shoulder, neck and back on 27 July 2023." She underwent an MRI scan of her lumbar spine. She was referred to physiotherapy. She is undergoing physiotherapy once a week. She reported that her neck, right shoulder and back aches, especially the back aches all the time. She reported numbness in both legs. She takes Panadol up to six tablets a day.

[48] Boughen Affidavit, Exhibit EB-1, 25.

[50] Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266, [22]-[23]; Eastern Health v Neill [2022] VSC 203, [28]; Zapparoni v VWA [2022] VSC 463, [114]-[119].

[51] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [133] (Crennan and Bell JJ) ('SZMDS') quoted in Sidiqi [54]. Cf Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464, [43].

[52] Plaintiff's Submissions [6], [37].

[54] SZMDS [130] (Crennan and Bell JJ).

[55] Boughen Affidavit, Exhibit EB-1, 25.

[58] Boughen Affidavit, Exhibit EB-1, 15.

[59] Boughen Affidavit, Exhibit EB-1, 26.

[60] The word 'incapacity' is not defined in the WIRC Act (except to include disfigurement and deafness (WIRC Act s 3 (definition of 'incapacity')), neither of which are relevant in this case), and should be given its ordinary meaning.

[61] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot').

[64] Plaintiff's Submissions [43]; Boughen Affidavit, Exhibit EB-1, 25.

[65] Boughen Affidavit, Exhibit EB-1, 25.