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[2025] VSC 785
General information, not legal advice.
Supreme Court of Victoria
2025-12-12
Tsalamandris J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial review - Workplace injury - Opinion of Medical Panel - Whether Medical Panel committed a jurisdictional error - Whether Medical Panel failed to have regard to a mandatory consideration - Whether Medical Panel made a material factual error - Adequacy of Medical Panel's reasons - Decision set aside - Accident Compensation Act 1985, ss 91, 98C and 104B.
1 The plaintiff, Mr McGaw was employed as a baker and pastry chef with the first defendant, Mila GC Pty Ltd from May 2012 to June 2014. Mr McGaw claims that he suffered injury to his lower back, during the course of this employment, with symptoms first experienced on 28 May 2014 (the 2014 work injury). On 25 October 2020, whilst Mr McGaw was performing back stretching exercises on a pull up bar in his home, the bar broke, and Mr McGaw fell to the ground (October 2020 incident). Mr McGaw suffered immediate pain in his lower back and left leg, and on 5 November 2020, he underwent an L5/S1 decompression surgery (the surgery).
2 In November 2022, Mr McGaw sought to claim non-economic loss compensation for his permanent impairment arising from the 2014 work injury pursuant to s 98C (the s 98C claim), of the Accident Compensation Act (the ACA). Mila's WorkCover agent, DXC Claims Management, accepted liability for injuries to 'the lower back relevant to the claimed back,' and scarring, and determined that Mr McGaw suffered a whole person impairment of 5%, pursuant to the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (the AMA Guides). As Mr McGaw disputed the level of impairment, the agent referred a medical question to a Medical Panel (the Panel) and asked what his permanent impairment was, resulting from the accepted injuries.[1]
3 On 22 July 2024, Mr McGaw was examined by the Panel. On 16 August 2024, the Panel delivered its Certificate of Opinion and written statement of Reasons for that Opinion. The Panel determined that, although Mr McGaw had a whole person impairment of 25%, he suffered 0% impairment resulting from the accepted injuries.
4 The Panel comprised physician Dr Anna Korin, and neurosurgeon, Dr Armin Drnda. These medical practitioners are the second and third defendants in the proceeding. As is the usual arrangement,[2] neither took an active role in the proceeding and indicated, by way of correspondence, they would submit to such orders as made by the Court.
5 In this proceeding, brought pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, Mr McGaw seeks judicial review to quash the Panel's Opinion. Mr McGaw alleges that the Panel failed to consider the fundamental issue as to whether there was a causal connection between Mr McGaw's 2014 work injury and the October 2020 incident. Further, Mr McGaw alleges the Panel failed to provide adequate reasons; made a material factual error; and misapprehended its task by proceeding on the basis that the referral to it, was not inclusive of the back surgery.
6 Mila denied there was any error by the Panel. It submitted that Mr McGaw's s 98C claim was only in relation to the 2014 work injury, and the injury suffered in the October 2020 incident was not the subject of that claim. Therefore, the Panel performed its statutory task in the manner required - it assessed the impairment resulting from the 2014 work injury, and disregarded impairment from unrelated causes. Mila submitted the Panel's reasons were adequate and there were no errors by the Panel in the way alleged.
7 For the reasons that follow, I am satisfied that the Panel's Opinion should be quashed, and I will make the orders sought by Mr McGaw.
8 Under s 98C of the ACA, a worker, who suffered an injury which entitled the worker to compensation, is entitled to seek compensation for non-economic loss in respect of an injury resulting in permanent impairment.
9 In Linfox Transport (Aust) Pty v Toohey,[3] the Court of Appeal observed that under s 98C of the ACA:
... a distinction is drawn ... between the injury, on the one hand, and, on the other, impairment which would include the loss of function to any part of the body where this loss is shown to have been the result of the injury.[4]
10 Whether the worker is entitled to such compensation depends upon the type of injury the worker suffers, the date of injury, and the worker's impairment benefit rating.[5]
12 After a s 98C claim has been made, the Authority or self-insurer is inter alia required to either accept or reject liability for each claimed injury,[8] (the worker must accept or dispute that decision as to liability)[9] and must obtain an assessment (impairment assessment) as to the degree of permanent impairment (if any) resulting from the injury in respect of which liability is accepted.[10] The Authority or self-insurer must then determine, taking into account the impairment assessment, the degree of the worker's permanent impairment (if any),[11] although the authorised agent is not bound by the assessment obtained.[12]
13 The determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the s 98C claim.[13]
14 The assessment must be made after the injury has stabilised[14] and be based on the current impairment as at the date of the assessment.[15] If there has been surgical treatment in respect of the injury, the assessment is to include any changes in the worker's signs and symptoms following such treatment.[16] However, impairments from unrelated injuries or causes are to be disregarded in making an impairment assessment for the purpose of s 98C.[17]
15 Where a worker disputes the determination of impairment, the Authority or self-insurer must refer any medical question to a medical panel for an opinion in respect of that question.[18] The medical panel is required to give a certificate as to its opinion and a written statement of reasons for the opinion reached.[19]
16 The following principles are relevant to the determination of this judicial review, in the context of a referral to a medical panel under the ACA:[20]
17 On 25 June 2014, Mr McGaw lodged a claim for compensation in respect of injury to his lower back, sustained over the course of his employment which commenced in May 2012 and ended in around June 2014. The claim was accepted, with the designated date of injury being 28 May 2014.
18 On 28 November 2022, Mr McGaw lodged his s 98C claim form. The claimed injury was to the 'back', over time, whilst 'lifting heavy bags of flour, doug[h], equipment and trays on a daily basis.'
19 The agent arranged for Mr McGaw to be examined by orthopaedic surgeon, Mr Roy Carey, for the purpose of an impairment assessment. In Mr Carey's first report dated 27 June 2023, he took a history from Mr McGaw that on 28 May 2014, he suffered the onset of lumbosacral pain radiating down the left leg and into his left foot. Mr Carey noted that Mr McGaw denied an assertion in a previous report of medico-legal doctor Dr Rhagazor, that he was essentially asymptomatic between 2017 and 2020. Instead, Mr Carey obtained a history from Mr McGaw that during that period, he had ongoing back and left lower limb symptoms, although these had improved since initial onset. Mr Carey also obtained a history that spontaneously, in mid-2020, Mr McGaw noted 'a marked increase in left lower limb symptoms.' Mr Carey then took a history of the October 2020 incident, which produced a 'shock' in Mr McGaw's lower back and 'a marked increase in his left leg symptoms.' Mr Carey noted Mr McGaw then developed cauda equina symptoms and soon after, the surgery was performed.
20 Mr Carey examined Mr McGaw, and noted scarring at the site of the surgery. Mr Carey also reviewed the medical imaging. Thereafter, Mr Carey was of the opinion that Mr McGaw's:
... current situation was produced by the subject injury. His injury at work continues to materially contribute to his current situation.
21 Mr Carey assessed Mr McGaw to suffer 25% whole person impairment from his spinal impairment, and 0% whole person impairment from the scarring. Mr Carey did not consider apportionment was required.
22 In Mr Carey's supplementary report dated 19 March 2024, he was asked by the agent to reconsider his opinion in respect of apportionment. Mr Carey noted that Mr McGaw had 'completely denied' the assertion in Dr Rhagozar's report that he was essentially asymptomatic. Mr Carey had provided his opinion on the assumption that there was an ongoing problem with Mr McGaw's lumbar spine, producing discomfort and some disability until the acute event on 28 October 2010, which in turn produced cauda equina symptoms, necessitating the surgery. Mr Carey explained this was the reason he did not apportion.
23 In this supplementary report Mr Carey noted that the records of Mr McGaw's general practitioner had been provided to him, and these contained only one recorded attendance for his lower back in 2017. Mr Carey queried whether further records could be provided from another treating doctor to confirm continuation of Mr McGaw's complaints over the period 2017 to 2020.
24 On 29 April 2024, the agent accepted liability for the following injuries:
(a) lower back relevant to the claimed back injury; and
(b) scarring.
25 The agent then made the following determination in respect of Mr McGaw's level of impairment:
[The agent's] determination of the degree of whole person impairment differs from the final figure allocated in the [reports of Mr Carey].
The reason for the difference is that:
• We have reviewed the medical information we have on file and in our contention and it does not appear that [the worker] attended any medical appointments in relation to [his] lower back in the years leading up to the nonwork related aggravations/s of 2020. As such, a 0% WPI appears to be a true reflection of [the worker's] level of impairment arising from the date of injury - 28/5/14.
• However, it is possible that [the worker] may have been DRE-2 in the lead up to the aggravation/s of 2020, but there is no medical evidence on file to confirm this is the case. As such, we are of the opinion that [the worker's] impairment relating from the incident dated 28 May 2014 would be classed as a DRE-2 in accordance with the AMA Guides 4th edition, Chapter 3 - Spine as per the medical information we have on file and in our contention along with [the worker's'] statements to [Mr] Carey in his report dated 27 June 2023.
Therefore, [the agent] has determined that [the worker's] allocated whole person impairment for [his] lower back relevant to the claimed Back is 5% whole person impairment - DRE 2 for the lumbar spine in accordance with the AMA Guides 4th edition, Chapter 3 - Spine.
26 On 4 June 2024, Mr McGaw accepted the liability determination, but disputed the impairment assessment.
27 The agent referred the impairment dispute to the Convenor of Medical Panels, and provided numerous medical records, and medical imaging relating to Mr McGaw.
28 In support of this judicial review, Mr McGaw affirmed an affidavit dated 16 December 2024 (McGaw affidavit). In this affidavit, Mr McGaw deposed to what he told the Panel when he was medically examined on 22 July 2024. Mr McGaw stated that:
When I told the Panel that in the period between 2016 and 2020 my back was "very good," I did so by way of comparison to how it is now.
I told the Panel that I had continued to have intermittent episodes of not just back pain, but also left sided leg pain, from the time of my 2014 work injury. I agree that I told the Panel that there were periods of time (weeks, but not months) between 2016 and 2020 when I did not have back or left leg symptoms, but I did not tell the Panel that I was mostly pain free in that period or that my pain was only "occasional". That was not the case.
...
... I told the Panel that the back and left leg symptoms I had continued to experience since the work injury in 2014 became progressively worse when COVID started, and I was unable to go to the gym and the pool to do my usual exercises and stretches for my low back and leg symptoms because the gyms and pools had closed.
I also advised the Panel that on around 25 October 2020, I was stretching out on my exercise equipment at home to try to relieve the pain in both my lower back and left leg when the equipment broke, and I landed on my knees and had severe pain my back and stayed on the floor all day.
29 On 30 July 2024, after having examined Mr McGaw, the Panel by way of its Deputy Convenor, corresponded with the parties, and sought clarification as to whether or not the impairment referral was inclusive of the surgery (request for clarification). In this correspondence, the Panel noted the scarring was an accepted injury.
30 On 30 July 2024, the agent responded to the Panel's request for clarification, and advised that it had not paid for the surgery, and therefore the referral was not inclusive of the surgery.
31 On 2 August 2024, Mr McGaw's solicitors responded to the Panel's request for clarification, and provided detailed submissions as to why the referral was inclusive of the surgery.
32 At the outset of the Reasons, the Panel noted the accepted injuries were to the lower back, and scarring. Thereafter, the Panel referred to the agent's response to its request for clarification, and noted the agent 'did not fund and the [r]eferral is not inclusive of the ... surgery performed'.
33 The Panel outlined the history and progress of Mr McGaw's back injury as follows:
The worker told the Panel that he sustained a lower back injury during the course of employment as a baker and pastry chef. He said that there was never a discrete incident as such, but that his duties, which included lifting heavy flour bags and dough, caused back pain that was getting progressively worse. He said that he went to his treating general practitioner (GP), had lower back imaging, and was seeing a chiropractor and a physiotherapist. He said that he stopped work as a baker and pastry chef in June 2014.
The worker told the Panel that he returned to the workforce in October 2016 as a liquid waste plant operator. He said that this was a sedentary job and that he worked in this role for about 3 years. He said that in the period between 2016 and 2020, his back was "very good". He said that for periods of time (weeks but not months he thought) he had no back symptoms at all, with no back pain and full back function.
He said that there were episodes of occasional pain in this time period, but that he could not recall with exactly what frequency.
He said that as he lived in the country, and from around 2018 he tried micro-farming, raising animals such as chickens and quails. He said that this was not physically demanding and that he could "pace himself". He said that he stopped micro farming due to covid.
The worker told the Panel that he started getting a sore back again around August or September 2020, with no known trigger. He said that he had stopped going to the gym and the pool due to covid, which may have contributed to symptom return. He said that he had pain in his lower back on 26 October 2020 and was stretching out on equipment at home. He said that the equipment broke, and he landed on his knees. He said that he had severe pain in his back and that he "stayed on the floor all day". He said that by late evening he was able to get up and that a few days later he went to his GP. He said that he had back imaging, was sent to Casey Hospital and was then transferred to the Clayton campus. He said that he had back surgery (L5/S1 microdiscectomy on 6 November 2020) and that his recovery was slow.
34 The Panel noted Mr McGaw's current physical symptoms and his treatment. The Panel then conducted a physical examination of Mr McGaw, and summarised the medical imaging reports. This included the MRI scan of Mr McGaw's lumbar spine on 17 June 2014, which was reported as demonstrating a left L5/S1 protrusion compressing the left S1 nerve root. The MRI scan of Mr McGaw's lumbar spine on 5 November 2020, demonstrated disc extrusion at L5/S1, with impingement of the transversing left S1 nerve root.
35 The Panel then offered its diagnosis as follows:
... on the basis of the worker's history of injury and its sequelae, the materials provided with the referral, and its examination findings, concluded that the worker was suffering from soft tissue injury of the lower back, now resolved, relevant to the accepted lower back relevant to the claimed back, scarring injuries.
The Panel also concluded that the worker is suffering from minimal dysfunction with non-active radiculopathy following soft tissue injury surgically treated, unrelated to the accepted work related lower back injury.
36 The Panel considered Mr McGaw's medical condition to be stabilised, and proceeded to conduct an impairment assessment in accordance with the AMA Guides. In relation to Mr McGaw's lower back, the Panel assessed this in accordance with Tables 70 and 72 of Chapter Three of the AMA Guides. As structural compromise was present, and there was documented neurologic compromise by way of absent left ankle jerk, the Panel determined that Mr McGraw's lower back condition resulted in a whole person impairment of 25%. The Panel also assessed Mr McGaw's scarring in accordance with Chapter 13 of the AMA Guides and determined there was no impairment arising from it.
37 The Panel provided its Reasons for determining Mr McGaw's current lower back impairment resulted from the non-work related lower back injury in October 2020. It stated that:
The Panel noted that the worker had no history of discrete injury to his lower back prior to 28 May 2014. The Panel accepted the worker's history that he had gradually increasing lower back symptoms and functional limitation relating to his lower back in the lead up to 28 May 2014, related to work, and that he was unrestricted in undertaking his employment and domestic and recreational activities prior to 2014. The Panel noted documented improvement in lower back symptoms in contemporaneous medical reports between 2014 and 2020 and the history from the worker that he was completely symptom free for weeks at a time with regards to his lower back between 2016 and 2020. The Panel noted physiotherapy records from 2015 and 2016, with documented stiffness, soreness and decreased range of motion as well as periods of no back pain and a full range of back motion. The Panel noted no reports of back pain in the visits to his general practitioner between 2017 and 28 October 2020. The Panel noted the fall from home exercise equipment in October 2020, with resultant cauda equina symptoms and need for back surgery.
38 Thereafter, the Panel stated it had considered the two medical reports of Mr Carey, and the Panel explained why it disagreed with Mr Carey. It stated that:
... noting the history that it obtained from the worker of periods of no back symptoms at all between 2014 and 2020, and the contemporaneous notes of the clinicians attended by the worker prior to 2020, considers that the assessment of a 0% whole person impairment accurately reflects the impairment arising from the accepted physical injury sustained by the worker on 28 May 2014, after apportionment for unrelated lower back injury, as assessed by the Panel on 22 July 2024, and in accordance with the instructions in the Guides.
40 First, it was alleged that the Panel erred for not having regard to a mandatory consideration, that being whether there was a causal connection between the 2014 work injury and the October 2020 incident (ground 1).
41 Second, it was alleged the Panel failed to give adequate reasons (ground 2).
42 Third, it was alleged the Panel made a factual error, which constituted jurisdictional error, by overlooking relevant information given to it by Mr McGaw concerning his left leg symptoms (ground 3).
43 Fourth, it was alleged the Panel misapprehended its task and fell into jurisdictional error in forming its opinion on the basis the referral was not inclusive of the surgery (ground 4).
44 In respect of ground 1, it was submitted the Panel was required to consider and determine whether Mr McGaw's degree of impairment, which it assessed at 25%, resulted from the accepted injury, or whether it was from an unrelated injury or cause and thus to be disregarded in accordance with s 91(7)(c) of the ACA. It was said that the proper discharge of this task required it to give genuine consideration to all of the various ways in which Mr McGaw's impairment might result (in whole or part) from his accepted injury.
45 It was submitted the Panel failed to consider whether:
(a) the exercises Mr McGraw was performing at the time of the October 2020 incident were for pain or symptoms which were causally related to the 2014 work injury; or
(b) the left L5/S1 disc injury identified on imaging following the October 2020 incident would have been sustained but for the 2014 work injury, or whether it was more severe than it otherwise would have been, because Mr McGaw's back had been weakened, or was more vulnerable by reason of the 2014 work injury.
46 As the Panel's Reasons failed to refer to such matters, the Court should infer the Panel did not consider them.
47 In respect of ground 2, it was alleged the Panel failed to give adequate reasons, and in particular did not explain its path of reasoning as to how it determined Mr McGaw's impairment was non-work related. It was submitted the consequence of this inadequacy is that the Court is left in a position where it cannot know whether the Panel performed the function required of it.
48 In respect of ground 3, Mr McGaw submitted the Panel erred for not referring to his left leg symptoms. It was submitted these symptoms, outlined in the McGaw affidavit, were centrally important to the determination of what impairment resulted from the 2014 work injury. The failure of the Panel to refer to such symptoms is such that the Court should be satisfied the Panel either misunderstood or misconstrued what Mr McGaw told the Panel.
49 Finally, in respect of ground 4, Mr McGaw alleged the Panel erred when it proceeded to accept the agent's statement that the referral was not inclusive of the surgery. It was submitted the Panel should not have proceeded further, and ought to have put the referral on hold until this dispute was resolved between the parties. Instead, the Panel proceeded on the wrongful assumption that liability for Mr McGaw's post-surgical back condition had not been accepted, and in doing so, it denied him procedural fairness.
50 Mila submitted that Mr McGaw's s 98C claim was in respect of his 2014 work injury. It was put that the October 2020 incident was a separate injury. If Mr McGaw sought compensation for impairment resulting from that injury, which occurred more than six years after the accepted work injury, he was required to lodge a separate s 98C claim for that injury.
51 It was submitted that the Panel had not erred, as it had determined the medical question asked of it - what was the impairment from the claimed injury. It was entitled to determine that the soft tissue injury of the lower back had now resolved. The Panel opined Mr McGaw's current impairment was entirely explained by an injury which occurred after that compensable injury.
52 Mila submitted the fact that liability had been accepted for the scarring, was a mere concession, in favour of Mr McGaw, that he was entitled to have the scarring, which arose from the surgery, assessed. Despite this concession, Mila denied this was an acceptance that the 2014 work injury had caused the October 2020 incident, which had in turn caused the need for surgery, which resulted in scarring.
53 It was submitted the Panel properly understood its task. It took a history from Mr McGaw (as noted above at paragraph [33]), diagnosed Mr McGaw's injury, and then assessed his degree of impairment. The Panel then explained why it was satisfied Mr McGaw suffered a subsequent unrelated impairment. The Panel was correct to subtract the subsequent unrelated impairment of 25% from Mr McGaw's current total impairment of 25%.
54 The Panel was not required to have regard to matters which Mr McGaw characterised as mandatory. Mila urged me to reject Mr McGaw's submission that the Panel needed to consider whether there was a connection between the performance of self-managed exercise and the 2014 work injury. It was submitted this inquiry involved a question of mixed law and fact, and the Panel's task was to assess impairment from such injuries as were accepted. The Panel was not permitted to consider whether other injuries ought be included. In any event, it was submitted that the Panel's Reasons reveal it did consider, in an appropriate way, the question of causation. The Panel explained why it did not reach the same conclusion as Mr Carey.
55 Mila submitted the Reasons disclosed a clear and considered reasoning process, and explained the Panel's ultimate finding of 0% impairment.
56 It was submitted that the Panel's failure to refer to Mr McGaw's complaint of occasional left leg symptoms was of no moment. Even if the Court is satisfied Mr McGaw did inform the Panel of those symptoms, the Panel was not required to record every aspect of his history. Further, the Panel took a history from Mr McGaw that his back was 'very good' with periods of no back symptoms at all between 2016 to 2020. It was for the Panel to determine the left leg symptoms were not important to its assessment of Mr McGaw's current impairment. Thus there was no constructive failure by the Panel to exercise jurisdiction. If there was any error, it was an error within the Panel's jurisdiction.
57 Finally, Mila submitted there was no error by the Panel in proceeding on the basis that the referral did not include the surgery. Given Mr McGaw had previously accepted the liability determination, it was contended Mr McGaw had failed to identify how the alleged dispute arising from the Panel's request for clarification should be determined under the ACA.
58 The Panel was asked what was Mr McGaw's degree of permanent whole person impairment, which resulted from the accepted injuries. In doing so, the Panel was required to disregard any impairment arising from an unrelated injury or cause. When there is more than one possible cause for an impairment, this task necessarily involves some consideration by the Panel of medical causation - relevantly here, whether or not there was a causal relationship between the 2014 work injury and the October 2020 incident.
59 The importance of this causation issue must have been apparent to the Panel given the following:
(a) The two reports of Mr Carey, in which Mr Carey concluded Mr McGaw's permanent impairment (including the consequences of the surgery) was related to the 2014 work injury and there was no need for apportionment.
(b) The agent's notice to Mr McGaw's s 98C claim, in which it accepted liability for injuries to the lower back and scarring, whilst determining that only 5% of the Mr McGaw's 25% whole person impairment was relevant to the 2014 work injury.
(c) The Panel considered it necessary to seek clarification as to whether the referral to it, was, or was not, inclusive of the surgery.
(d) The parties provided conflicting responses to the Panel's request for clarification. The agent said that it had not paid for the surgery. However in this response, the agent did not explain to the Panel why it had accepted liability for scarring (which counsel for Mila sensibly accepted could only arise from the back surgery). Mr McGaw's solicitors responded to the Panel with a detailed submission, in which it outlined Mr McGaw's history of ongoing symptoms, and the management of his condition with regular gym attendances (and self-managed exercises during COVID lockdowns).
(e) In this proceeding, Mr McGaw deposed to informing the Panel during its examination of him, that he suffered intermittent left leg symptoms since 2014, and that these symptoms worsened when he was unable to go to the gym and the pool during COVID lockdowns. Mila did not seek to cross-examine Mr McGaw in respect of this evidence. I am satisfied the history contained in the McGaw affidavit was provided to the Panel.
60 Despite medical causation being an obvious matter of serious contention, the question of whether the injury sustained by Mr McGaw in October 2020 would not have been sustained, or was more severe than it likely otherwise would have been, due to the 2014 work injury, was not addressed at all in the Panel's Reasons. Although the Panel determined that the 2014 work injury had 'now resolved', it failed to explain when it considered this had occurred, and what was the cause of Mr McGaw's intermittent back symptoms in the period between June 2014 and October 2020. Further, the Panel did not explain whether it had considered the proposition that the October 2020 incident occurred whilst Mr McGaw was performing exercises for ongoing back and left leg symptoms, and thus whether it was causally related to the 2014 work injury.
61 If the Panel had considered such matters, it is reasonable to expect the Panel would have referred to these matters in the Reasons. The absence of reference to such important matters is such that I infer the Panel failed to give genuine consideration to the various ways in which Mr McGaw's permanent impairment resulted (in whole or part) from the 2014 work injury, including the possible role of the October 2020 incident. Given this was a fundamental issue relevant to the medical question asked of it, the failure of the Panel to give genuine consideration to such matters, was a material error.
62 Contrary to Mila's submission, it was not necessary for Mr McGaw to lodge a separate s 98C claim for the injury he suffered following the October 2020 incident. It was open to Mr McGaw to lodge a s 98C claim for the back injury arising from his 2014 work injury, and to seek non-economic compensation for impairment resulting from it. If there was a causal relationship with the October 2020 incident, the Panel was required to consider whether any such impairment resulted from the 2014 work injury.
63 The Reasons are silent on whether consideration was given to Mr McGaw's history of intermittent left leg symptoms since 2014. Medical imaging in June 2014 noted Mr McGaw suffered left S1 nerve root impingement in 2014. The imaging taken on 28 October 2020, also demonstrated left S1 nerve root impingement. Contrary to Mila's submissions, I do not accept the Panel's failure to refer to intermittent left leg symptoms was of no moment. Given the cause of Mr McGaw's permanent impairment was fundamental to the Panel's consideration of the medical question it was asked, this history of left leg symptoms, as a possible sequelae of the accepted back injury, was highly relevant. Whilst a medical panel is not expected to explicitly refer to all of the material before it, in the context of the task this Panel was required to perform, the failure to refer to this history, was a material error.
64 I am satisfied there is a realistic possibility that, had the Panel correctly understood and performed its task as required, the Panel could have determined that whole, or part, of Mr McGaw's 25% impairment was related to the 2014 work injury.
65 I also accept Mr McGaw's submissions that the Panel's Reasons were inadequate. Save for an explanation as to why the Panel disagreed with Mr Carey's opinion, there is otherwise, no clear path of reasoning to understand how the Panel came to determine the injury suffered in the October 2020 incident was 'non-work related'. The Court is left to wonder as to what the Panel did, and did not consider, in reaching its Opinion. I have been required to infer the errors referred to above as a consequence of the inadequacy of Reasons.
66 For those reasons, I am satisfied that the errors alleged in grounds 1, 2, and 3 of Mr McGaw's originating motion are established. Therefore, it is not strictly necessary for me to determine ground 4, in which Mr McGaw alleges the Panel misapprehended its task when it sought clarification as to whether the referral to it was inclusive of the back surgery.
67 The Panel's request for clarification was poorly articulated, and confusing. The Panel received conflicting answers to its request for clarification, and still proceeded to answer the medical question asked of it. At the commencement of the Reasons, the Panel referred to the agent's response to the request for clarification, and noted the agent did not fund the back surgery.
68 I accept Mr McGaw's submissions that given the agent had accepted liability for scarring, it logically followed that the accepted back injury was inclusive of the surgery. Given the agent had not funded the back surgery, if it intended to maintain that position in relation to Mr McGaw's s 98C claim, it ought not have added scarring as an injury for which it was liable.
69 The parties advanced competing submissions as to whether the request for clarification was appropriate, and what the Panel was required and/or permitted to do in response, given the agent said it was not inclusive of the surgery, and Mr McGaw said that it was.
70 Given my determination of this application for judicial review does not turn on this ground, I decline to answer the theoretical questions posed by the parties in respect of this ground.
71 For the reasons given, I am satisfied that the Panel committed jurisdictional error, and its Opinion should be quashed. In the circumstances, I will order that the medical questions be remitted to a differently constituted medical panel, to be reconsidered in accordance with law.
[1] The agent also asked the Panel a medical question as to whether Mr McGaw suffered a total loss injury, to which it answered no. The Panel's answer to this question is not a subject of this judicial review.
[2] In accordance with the principles outlined in R v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.
[3] [2004] VSCA 233 (Byrne AJA, Buchanan and Phillips JJA agreeing).
[5] See Accident Compensation Act 1985 (Vic) s 98C.
[6] Ibid s 104B(5A).
[7] Ibid s 104B(5AA).
[8] Ibid s 104B(2)(a).
[9] Ibid s 104B(6).
[10] Ibid s 104B(2)(b).
[11] Ibid s 104B(2)(c).
[12] Ibid s 104B(2A).
[13] Ibid s 104B(5B).
[14] Ibid s 91(1A)(a).
[15] Ibid s 91(1A)(b).
[17] Ibid s 91(7)(c).
[18] Ibid s 104B(9)(a).
[20] Noting the same principles apply to referrals under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
[21] Victorian WorkCover Authority v Jamali [2023] VSCA 240, [74] (Beach JA, J Forrest and Tsalamandris AJJA) ('Jamali').
[22] Victorian WorkCover Authority v Putrus [2023] VSCA 28, [37] (Beach , Kennedy JJA and J Forrest AJA) ('Putrus').
[24] Putrus (n 22) [45]-[46]; Jamali (n 21) [97]-[109].
[25] Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, 200 [92] (Maxwell ACJ, Beach and Kyrou JJA).
[27] Ryan v The Grange at Wondonga Pty Ltd [2015] VSCA 17, [61] (Neave JA, Santamaria JA and Ginnane AJA agreeing) ('Ryan') citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42.
[28] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
McGaw
Mila GC Pty Ltd & Ors [2025] VSC 785
(1980) 144 CLR 13
(2019) 62 VR 174
(1986) 162 CLR 24
(2013) 252 CLR 480