Plaintiff v Defendants

(a) in the nature of certiorari, quashing the Medical Panel's determination; and

(b) in the nature of mandamus, remitting the referred questions to a differently constituted medical panel to be determined in accordance with law.

2 The parties[1] have submitted a joint memorandum[2] to the Court explaining the reasons for which they agree that an order in the nature of certiorari should issue, the plaintiff having been denied procedural fairness. For the reasons set out further below, I will make orders to quash the decision of the Medical Panel. Accordingly, the only issue in contest at the hearing was whether the referred questions should be remitted to the same, or a differently constituted, medical panel. For the reasons that follow, I will remit the questions to a differently constituted medical panel.

3 The plaintiff worked for the first defendant as an exhaust fabricator from approximately 2009 to July 2018.[3] In June 2018, he submitted a workplace injury claim form, claiming that he sustained a neck injury throughout the course of his employment. The following month, he lodged an impairment benefit claim asserting an injury to his neck. After a period of dispute, the Authorised Insurer accepted liability for the plaintiff's 'neck injury'.[4]

4 In October 2021, the Authorised Insurer issued a 'notice of impairment benefit liability, assessment and entitlement', accepting liability for injuries described as 'cervical spine', and assessing the plaintiff as having sustained a zero percent whole person impairment based upon an independent assessment it had obtained from Dr Roy Carey.[5]

5 The plaintiff disputed the assessment as to impairment, and in March 2022, the matter was referred to the Medical Panel ('2022 referral') for opinions on the following questions:

(a) what is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 54 and is the impairment permanent?

(b) does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table on s 221?[6]

The 2022 referral identified the 'accepted injuries to be assessed by a medical panel' as 'cervical spine'.[7] It also referred to 'Enclosure A' and provided a schedule of attached reports and other material, comprising 35 documents dated between October 2011 and March 2022. The following month, the 2022 referral was suspended as the plaintiff sought further treatment.

6 In August 2024, the plaintiff's neurosurgeon deemed his condition stable, and he subsequently sought to lift the suspension of the 2022 referral. In October 2024, the Authorised Insurer made a second referral to the Medical Panel ('2024 referral').[8] Enclosure A to the 2024 referral contained documents and reports dated from October 2011 to April 2024. Enclosure A to the 2024 referral listed additional documents to those listed in the 2022 referral, which had been obtained in the intervening period. These additional documents included a report authored by the plaintiff's neurosurgeon and pain physician, a post procedure pain chart, an operation report dated 10 June 2022, MRI results from February 2023, CT results of the lumbosacral spine and pelvis from June 2022, and clinical notes from the plaintiff's medical centre as at April 2024.

7 The Medical Panel sought clarification as to whether the suspended 2022 referral would be withdrawn with the 2024 referral proceeding in its stead, or whether the 2022 referral was to proceed with the 2024 referral being cancelled. The Authorised Insurer instructed the Medical Panel to reactivate the 2022 referral, and cancel the 2024 referral.

8 In November 2024, the plaintiff's lawyers emailed the Medical Panel requesting that certain attached medical reports and correspondence be added to the referral.

9 On 4 December 2024, the plaintiff was examined by members of the Medical Panel.

10 On 23 December 2024, the Medical Panel issued its certificate of opinion in response to the March 2022 referral ('Opinion').[9] The Medical Panel determined as follows:

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

Answer: In the Panel's opinion the worker has a 0% whole person impairment resulting from the accepted cervical spine injury when assessed in accordance with the Act. The degree of impairment is permanent.

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

Answer: No.[10]

11 Written reasons accompanied the Opinion ('Reasons'). The Reasons concluded as follows:

Diagnostic opinion

The Panel formed the opinion the worker suffers from complaints and symptoms of neck pain with no clinical evidence of ongoing injury, including no dysmetria, no muscle guarding or spasm and no clinical evidence of radiculopathy or myelopathy, relevant to the accepted cervical spine injury. He may have suffered from injury to the neck but he now no longer suffers from any ongoing work related injury to the neck.

...

Whole person impairment

The Panel conducted an impairment assessment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) as required by the Act. The Panel considered that no further information was required from the worker's treating practitioners to carry out the assessment.

...

The Panel assessed the worker's cervical spine in accordance with Table 70 of Chapter Three and considered that there are no clinical signs of ongoing neck injury, with no evidence of myelopathy, loss of motion segment integrity or radiculopathy. The Panel therefore concluded ... a whole person impairment of 0%.

...

Reports reviewed

The Panel reviewed and considered all medical reports from the treating and independent health practitioners who have examined the worker and considers that the Reasons herein adequately outline the Panel's rationale and reasons for arriving at its conclusions.[11]

12 The Reasons identified the documents in Enclosure A as being those to which the Medical Panel had regard in reaching its opinion. However, Enclosure A only listed the documents included in the 2022 referral. Accordingly, the Medical Panel had not considered the additional documents included in the 2024 referral or the plaintiff's emailed documents.

Should relief in the nature of certiorari be ordered to quash the Opinion?

13 In his originating motion, the plaintiff relied upon three grounds of review.[12] However, as is set out in the joint memorandum, the plaintiff and the first defendant agree that the Medical Panel denied the plaintiff procedural fairness. In view of that agreement, and cognisant of, amongst other things, his civil procedure obligations, the plaintiff decided not to pursue his remaining grounds of review.

14 The function of a medical panel convened under the WIRC Act 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.[13] A medical panel is not bound by the rules of evidence and must act informally and expeditiously. It may inform itself of any matter relating to a referral of a medical question in any manner it sees fit.[14] However, a medical panel is 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.[15]

15 If a medical panel fails to afford a party procedural fairness, and that failure is material to the decision, then there will be jurisdictional error, and a basis for ordering certiorari.[16] The test of materiality will be satisfied if there is a 'realistic possibility' the outcome would have been different, absent the impugned error.[17]

16 Contrary to what the parties intended, the Medical Panel did not have before it (and so did not have regard to):

(a) the full set of documents listed in Enclosure A to the 2024 referral; and

(b) the additional documents emailed by the plaintiff to the Panel.

In the result, the plaintiff was deprived of a fair opportunity to put his full case before the Medical Panel, in particular, the evidence contained in the documents upon which he intended to rely. I accept the joint submission of the parties that those documents contained cogent evidence relevant to the accepted injury and the referred questions, including updated treatment records, reports and radiological results from March 2022 to October 2024.[18] Therefore, the Medical Panel denied the plaintiff procedural fairness in the formation of its Opinion.

17 I accept that the Medical Panel's failure to accord procedural fairness in this case was material because there is a realistic possibility that the missing documents could have affected the Medical Panel's reasoning, decision making process and ultimately its answers to the referred questions.

18 I agree that the Opinion of the Medical Panel dated 23 December 2024 must be quashed.

Should the matter be remitted to the same, or a differently constituted, Medical Panel?

19 There is no universal rule as to the course to adopt in remitting medical questions, with the decision to be made by reference to all of the circumstances of the case.[19] The Court has three options:[20]

(a) remittal to the same Medical Panel;

(b) remittal to the Convenor of Medical Panels (with or without a recommendation as to whether the original panel should reconsider the questions posed); or

(c) remittal to a differently constituted panel.

20 Despite remittal necessarily following from a finding of some relevant error by the decision-maker, remittal to a differently-constituted decision-maker is not inevitable, especially when the requirements of the Civil Procedure Act 2010 (Vic) are taken into account. [21] A 'good reason', based on established principles, must be identified in order to persuade the Court to order remittal to a differently constituted panel.[22] There will be good reason where there is a feature of the conduct or reasons of the original Medical Panel which would:

render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same primary decision-maker...to re-determine the matter.[23]

Good reason would also exist if there is a risk of the original decision-maker 'patching up' or 'reconstructing' previously defective reasoning.[24] Ultimately, whether 'particular matters may give rise to a perception of unfairness or pre-judgment' is 'a question of degree and of impression in any particular case'.[25]

21 The plaintiff submits that there are two good reasons compelling the conclusion that remittal to a differently constituted panel is appropriate in this case. First, there is an apprehension of unfairness in the matter going back to the Medical Panel. Second, there is no comparative inefficiency in remitting to a differently constituted panel.

22 I accept the first defendant's submission that the mere fact that the Medical Panel overlooked the additional materials is insufficient on its own to support remittal to a new panel. However, I accept the plaintiff's submissions that this is not a case involving a panel overlooking material that is of little relevance to issues central to the Medical Panel's consideration of the referred questions. Whilst it is not the Court's role to determine the actual clinical significance of the omitted documents to medical experts undertaking an impairment assessment, the potential significance of the omitted material to the central issues is a feature of this case.[26] Firstly, the context of the suspension of the 2022 referral is relevant; it was suspended because the plaintiff's accepted cervical spine injury had not stabilised and he needed to seek further treatment. Secondly, the documents that were not considered by the Medical Panel contain all of the most recent medical detail[27] arising from that post 2022 referral investigation and treatment. The documents record the plaintiff's symptoms, diagnosis, imaging and treatment in respect of the injury (as opposed to other non-injury medical conditions). The parties agreed the documents were 'material' to the Medical Panel's decision, in the sense that there was a realistic possibility of a different outcome had the material been considered.[28] I accept that characterisation of the material.

23 I am also satisfied that the Medical Panel expressed strong views about the plaintiff having no ongoing cervical spine injury, despite its existence having been accepted by the first defendant. The Medical Panel expressed its opinion thus:

...the worker suffers from complaints and symptoms of neck pain with no clinical evidence of ongoing injury... He may have suffered from injury to the neck but he now no longer suffers from any ongoing work related injury to the neck.[29]

This opinion went beyond the scope of the opinion sought by the referred questions as to the degree of impairment arising from the plaintiff's accepted injury. It was not an opinion the Medical Panel needed to express, and yet it did so unequivocally. The Medical Panel formed the conclusion without the benefit (unbeknownst to it) of any of the additional documents included in the 2024 referral or the plaintiff's emailed documents, all of which post-dated the 2022 referral. The Medical Panel recorded in its reasons its view that it 'did not consider that any additional diagnostic imaging is necessary'[30] and that 'no further information was required from the worker's treating practitioners to carry out the assessment'.[31] In my view, this only served to underscore the forcefulness of the Medical Panel's opinion.

24 A finding that a panel expressed its views forcefully says nothing about whether the conclusion was medically sound - that is not within the remit (or expertise) of the Court. Rather it involves considering whether the strength of the view expressed creates unfairness, or the perception of it, upon the remitter. On the remitter, the Medical Panel would be asked to answer the questions afresh, with an open mind, and to give genuine consideration to records which it said it did not require or consider necessary. In my view, a third party would have serious reservations about whether this Medical Panel, which has decided that the plaintiff has no injury, could objectively turn its mind to the omitted material given that strongly expressed view. Remittal to the same panel would, therefore, give at least the appearance of unfairness in this case.

25 Finally, the plaintiff submitted that there was no reason to infer that remitting the decision to the original Panel would increase efficiency, or reduce cost, delays and resourcing. Although I accept that remittal to the Medical Panel constituted by the same members may generate certain efficiencies, in that those members have a familiarity with the referral, any such efficiencies cannot outweigh the perception of unfairness in this case. I also anticipate, given the passage of time, that the convened panel will need to further examine the plaintiff, whether it is the same panel or not, and so there is unlikely to be efficiency gained from avoiding any examination. The material to be considered by the newly convened panel is also not so voluminous that there would be great inefficiency caused in considering all of the material afresh.

26 For the reasons set out above, there has been a denial of procedural fairness that is sufficiently material to amount to jurisdictional error on the part of the Medical Panel. I will make an order in the nature of certiorari, quashing the Opinion of the Medical Panel dated 23 December 2024.

27 Given the ground upon which the plaintiff has succeeded and the particular features of this case, including the nature and scope of the omitted documents and the fact that the Medical Panel expressed its conclusion that the plaintiff had no injury so strongly, when its statutory task was to conduct an impairment assessment, I am satisfied that this is a case in which there will be an appearance of unfairness unless the medical panel is differently constituted. I will make an order in the nature of mandamus requiring the referral (with all documents included) be determined by a medical panel that is differently constituted.

28 The parties agreed that the first defendant would pay the plaintiff's costs of the proceeding aside from the costs incurred in connection with the discrete issue of disposition. Given the plaintiff's success on that issue too, the appropriate order is simply that the first defendant pay the plaintiff's costs of the proceeding on a standard basis, such costs to be taxed in default of agreement.

[1] The 'parties' refers to the plaintiff and the first defendant. The second and third defendants took no active part in the proceeding, submitting to the Court's determination in accordance with the procedure laid out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Transcript of Proceedings, Foley v Sila Transport Pty Ltd (Supreme Court of Victoria, S ECI 2025 00759, Goulden AsJ, 31 October 2025) T1.24-T1.27 ('Transcript')).

[2] In accordance with Supreme Court of Victoria, Practice Note SC CL 9: Judicial Review and Appeals List Practice Note, 29 July 2024, [8.1] and the procedure discussed in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574.

[3] Affidavit of Jenna Amos affirmed 14 February 2025, [8], Exhibit JA1, 23, 130 ('Amos Affidavit').

[4] Amos Affidavit [11], Exhibit JA1, 28.

[5] Amos Affidavit [17], Exhibit JA1, 38-46.

[6] Amos Affidavit [20], Exhibit JA1, 53-9.

[7] Amos Affidavit [20], Exhibit JA1, 55.

[8] Amos Affidavit [28], Exhibit JA1, 71-9.

[9] Amos Affidavit [35], Exhibit JA1, 13.

[10] Amos Affidavit [35], Exhibit JA1, 13.

[11] Amos Affidavit [35], Exhibit JA1, 18-19.

[12] In addition to the ground of denial of procedural fairness, the Originating Motion also claims that the Medical Panel: 'misapprehended its task, failed to consider mandatory relevant considerations and or constructively failed to exercise its jurisdiction'; and 'failed to provide adequate reasons'.

[13] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 302(1) ('WIRC Act').

[14] Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [37], citing WIRC Act s 303(1).

[15] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ). See also Victorian WorkCover Authority v Jamali [2023] VSCA 240, [75] (Beach JA, J Forrest and Tsalamandris AJA).

[16] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 433 [2] (Bell, Gageler and Keane JJ); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-7 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[17] See AML v Longden Super Custodian Pty Ltd [2023] VSCA 118, [42] (Niall and Kaye JJA) citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2018) 264 CLR 421, 433 [2], 445 [45]-[46] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590, [2] (Kiefel CJ, Keane and Gleeson JJ), [85] (Gordon J). See also Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [41] (Beach, Kyrou and Kaye JJA); Bahonko v Moorfields Community [2008] VSCA 6, [30] (Nettle JA, Buchanan and Redlich JJA agreeing).

[18] Joint Memorandum of the Plaintiff and First Defendant dated 2 June 2025 in S ECI 2025 00759, [31] ('Joint Memorandum').

[19] Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718, [54] (Forrest J) ('Toyota'); Davidson v Fish [2008] VSC 32, [17] (Pagone J) ('Davidson v Fish'), overruled on a different point in Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434.

[21] Toyota [57]; See, eg James v Coles Group Ltd [2023] VSC 252 (Forbes J) ('James').

[22] Vegco Pty Ltd v Gibbons [2008] VSC 363, [33] ('Vegco').

[24] Toyota [55]-[56]; Davidson v Fish [14]-[16]; Moyston Court Fisheries Ltd v Malios [2007] VSC 518, [86]-[87], overruled on a different point in Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434; Barro Group Pty Ltd v Brimbank City Council (No 2) [2012] VSC 199; (2012) 36 VR 281, 306-7, [8]-[9] (Emerton J); Slade v John Patrick Pty Ltd [2014] VSC 563, [61]; cf Nicholls v Corlett [2010] VSC 115, [47].

[27] Aside from some imaging reports provided by the plaintiff in person.

[29] Amos Affidavit [5], Exhibit JA1, 18.

[30] Amos Affidavit [5], Exhibit JA1, 18.

[31] Amos Affidavit [5], Exhibit JA1, 18.