Plaintiff v Defendants

2 Ms Kaplan's underlying claim is a medical negligence claim against Alfred Health for failing to undertake appropriate investigations, leading to delay in the diagnosis of a cervical spine abscess, which in turn led to osteomyelitis and neurological injury. Ms Kaplan alleges that, as a result of the neurological injury, she has developed impaired balance and gait and suffered consequential falls.

3 The Panel determined that the degree of whole person impairment resulting from the physical injury alleged in Ms Kaplan's claim did not satisfy the threshold level.

4 Ms Kaplan seeks that this determination be quashed on the basis that the Panel failed to consider and determine whether she had sustained a lumbar spine injury resulting from a fall on 8 April 2024, and whether such injury constituted a potentially compensable injury. Ms Kaplan alleges that, in failing to consider and assess the lumbar spine injury, the Panel fell into jurisdictional error and denied Ms Kaplan procedural fairness.

5 Alfred Health submitted that the Panel did consider the lumbar spine injury. In the alternative, Alfred Health submitted that the lumbar spine injury was not a mandatory consideration. The second and third defendants, comprising the Panel, did not appear in the proceeding, advising the Court that they would submit to such orders as the Court may make, in accordance with the comments of the High Court in R v The Australian Broadcasting Tribunal; Ex parte Hardiman.[1]

6 The evidence relied on by the parties consisted of the affidavits of Shari Liby, solicitor for the plaintiff, sworn 10 December 2024, 2 June 2025, 30 June 2025 and 29 August 2025, and the exhibits therein.

7 The affidavit of Ms Liby sworn 30 June 2025 made reference to an assessment of Ms Kaplan by Professor Bittar and exhibited letters of instruction to Professor Bittar, an expert report of Professor Bittar, and email correspondence seeking clarification with respect to his report. Ms Kaplan sought to rely on this material solely for the purposes of materiality.

8 The admissibility of the report of Professor Bittar was objected to by Alfred Health. For the reasons set out below, it is not necessary to rule on the admissibility of the report of Professor Bittar and I place no reliance on that report.

9 Ms Kaplan attended the Alfred Hospital Emergency Department on 12 September 2020 with cardiac chest pain. Ms Kaplan re-attended the hospital on 14 September 2020 and 22 September 2020. On 22 September 2020, an MRI of the spine was performed, revealing discitis/osteomyelitis centred at C6/7 with moderate-sized epidural collection. On 24 September 2020, she underwent an anterior cervical discectomy for evacuation of the epidural abscess.

10 On 26 September 2023, Ms Kaplan's solicitors requested an assessment pursuant to the Wrongs Act, asserting that:

This matter arises from the delayed diagnosis and treatment of a spinal infection by the Alfred Health Emergency Department, occurring in September 2020.

11 On 7 October 2023, Dr Freilich, neurologist, provided a certificate of assessment certifying that the degree of impairment resulting from injury satisfied the threshold level. The injury assessed by Dr Freilich was described as a spinal cord compression secondary to cervical spine infection. In his accompanying report, dated 12 October 2023, Dr Freilich stated that the impairment had been assessed using 'Table 13 - Station Gait Impairment criteria', which is found within Section 4.3 of Chapter 4 of the AMA Guides (the 'Guides'). Dr Freilich noted that the ongoing symptoms experienced by Ms Kaplan were:

... some neck discomfort which is not severe. The other main problem has been imbalance and she has had a number of falls. Neurological examination revealed ataxia when she attempted walking heel to toe, relative hyperreflexia in the upper and lower limbs and an equivocal left plantar. She had bilateral lower limb incoordination. I note that she has had lumbar radiculopathy for which she has required surgery but these neurological signs do not relate to that condition but rather in my opinion relate to the cervical infection and cord compression.

12 On 18 October 2023, the Form 4 Claimant Prescribed Information Form was completed, indicating that the injuries suffered as a result of the incident were contained in the report of Dr Freilich.

13 On 15 December 2023, Alfred Health initiated a medical panel referral and made a written submission that Ms Kaplan's degree of physical impairment relating to the subject incident did not satisfy the legislative threshold.

14 On 4 April 2024, the Panel interviewed and examined Ms Kaplan.

15 On 8 April 2024, Ms Kaplan suffered a fall and attended the Cabrini Hospital Emergency Department with severe back pain, where she was investigated by way of CT scan of the brain, cervical spine and lumbosacral spine. At that time, it was considered that Ms Kaplan had sustained a 'likely mechanical fall/fall secondary to pre‑existing neurology'.

16 On 11 April 2024, Ms Kaplan attended her treating neurologist, Dr Jorge Zavala. Dr Zavala expressed concern that Ms Kaplan continued to experience falls, which he believed 'could be due to both the previous spinal cord process she had, treated with spinal surgery and abscess drainage, and migraines with vestibula features'.

17 On 22 April 2024, Ms Kaplan provided written submissions to the Panel. Those submissions included an assertion that the relevant section of the Guides applicable to an assessment of Ms Kaplan's neurological impairment was Chapter 4. The submissions also included the following:

1. The Plaintiff submits that her level of impairment falls within mild to moderate impairment because her neurological symptoms affect her ability to walk without imbalance and falls. The plaintiff further submits that her neurological symptoms stem from her cervical spine injury.
2. ...

...

1. ... The Plaintiff suffers ongoing difficulty with balance and walking. She suffered a further fall on 8 April 2024.
2. The Plaintiff submits that her cervical spine injury affects her balance and coordination, and in turn her ability to walk.

18 On 8 May 2024, Ms Kaplan's solicitors wrote to the Deputy Convenor of Medical Panels and Alfred Health, advising that Ms Kaplan was scheduled for an MRI of her head, neck and spine, which had been ordered because of a recent fall. It was suggested that the results should be considered by the Panel before making any determination.

19 On 10 May 2024, an MRI was performed which identified a 'recent mild compression fracture of L1 vertebral body and superior aspect with a visible endplate incomplete fracture and proximally 10% loss of vertebral body height'. After reviewing the MRI scan, Dr Zavala concluded that the L1 crush fracture explained her pain.

20 On 20 June 2024, Ms Kaplan's solicitors wrote to the Deputy Convenor of Medical Panels and Alfred Health indicating that they were still awaiting medical records. The solicitors asserted that:

I do believe these materials are relevant to Ms Kaplan's claim and the medical panel's determination, and note that Ms Kaplan sustained a compression fracture in her fall which we will be claiming as a part of her injuries in this case.

21 The anticipated medical records were sent to the Panel on various dates between 11 July 2024 and 3 October 2024.

22 On 15 October 2024, the Panel returned its determination. The Panel determined that the degree of whole person impairment resulting from the alleged physical injury did not satisfy the threshold level. The Panel described the claimed injury as 'injury in the form of spinal cord compression secondary to cervical spine infection'. Relevantly, the Panel noted the following:

The Panel concluded that [Ms Kaplan] is suffering from minimal residual dysfunction following a surgically treated spinal cord compression caused by a cervical epidural abscess.

...

The Panel considered the appropriate method to assess [Ms Kaplan]'s impairment resulting from the spinal cord compression was pursuant to Section 4.3 of Chapter Four of the Guides.

The Panel assessed impairment of Station and Gait pursuant to Section 4.3a and Table 13 of Chapter 4 of the Guides.

23 On 12 December 2024, an originating motion was filed, in which Ms Kaplan seeks that the Panel's determination be quashed on the basis that the Panel fell into jurisdictional error.

(a) In arriving at its opinion in answer to the referred medical question, the Panel erred by:

(i) failing to consider for the purposes of the proper exercise of its statutory task under Part VBA of the Wrongs Act (in particular, s 28LL(1)) whether Ms Kaplan's claimed lumbar spine injury from a fall on 8 April 2024, including an L1 crush fracture, resulted in impairment which was assessable under Chapter 3 of the Guides; or

(ii) failing to include any such assessable impairment in the Panel's impairment assessment in accordance with s 28LL(1) of the Wrongs Act. (Ground One)

(b) In arriving at its opinion in answer to the referred medical question, the Panel denied Ms Kaplan procedural fairness by failing to consider and assess her clearly articulated claim that she had sustained a consequential injury to her lumbar spine in a fall on 8 April 2024, including an L1 crush fracture, as a result of her impaired station and gait from her potentially compensable spinal cord compression injury. (Ground Two)

25 In respect of ground one, Ms Kaplan submitted that the Panel failed to consider and determine:

(a) whether Ms Kaplan had sustained a lumbar spine injury, including a new L1 compression fracture, as a result of her fall on 8 April 2024; and

(b) whether such injury constituted a potentially compensable injury, as a sequel to Ms Kaplan's assessable neurological impairment.

26 It was submitted that the failure was manifested by the Panel restricting itself to a consideration and assessment of Ms Kaplan's station and gait impairment under Section 4.3 in Chapter 4 of the Guides, which pertains to injuries to the spinal cord as part of the nervous system. An entirely different chapter of the Guides, Chapter 3, is used to assess impairments arising from injuries to the musculoskeletal system, including the spine. Musculoskeletal injuries of the spine, including spinal compression fractures, are assessed under Section 3.3 of Chapter 3. No consideration was given as to whether an assessment under Section 3.3 should have been carried out.

27 It was made clear that the ultimate submission was not that the Panel was bound to use Chapter 3 of the Guides. The argument was that the Panel had to consider and make a determination about that issue. Specifically, it had to identify and understand that there was a musculoskeletal injury, potentially connected to the cervical cord compression injury, and that such injury was a potentially compensable injury.

28 Reliance was placed on the fact that the Panel did not re-examine Ms Kaplan after being advised that she intended to rely on the compression fracture as a potentially compensable injury. It was further submitted that there is nothing in the Panel's reasons which shows that the Panel understood that it was required to engage with this aspect of Ms Kaplan's claim.

29 In respect of ground two, it was submitted that Ms Kaplan's solicitors notified the Panel:

(a) that Ms Kaplan suffered a fall on 8 April 2024 and the investigations and treatment undertaken as a consequence of the fall;

(b) that she had sustained a compression fracture in the fall; and

(c) that she wished to include her fall injuries as part of her claim.

30 Notwithstanding that correspondence, the reasons contain no discussion, findings or conclusions on whether a lumbar spine injury had been sustained as a result of the fall and whether any such injury constituted a potentially compensable injury.

31 In respect of both grounds, Alfred Health submitted that Ms Kaplan's application for judicial review hinges on her contention that, in addition to applying Section 4.3 of Chapter 4 of the Guides, the Panel should also have applied Section 3.3 of the Guides and combined the impairment from each of those sections to reach a higher whole person impairment. This amounts to a quintessential merits review, which is not permitted.

32 Alfred Health submitted that the Panel's determination to apply Section 4.3 of the Guides was made in circumstances where it was well aware of the 8 April 2024 injury and the subsequent radiological findings. It was a matter for the Panel to determine, in the exercise of its expertise, which method of assessment under the Guides was most appropriate, including whether different methods were required or whether a single method was appropriate for spinal impairment at different levels.

33 Further, overlap would have been involved if the Panel had also assessed the impairment separately under Section 3.3 of the Guides.

34 Alfred Health submitted that a decision to not re-examine Ms Kaplan after it was advised that she intended to rely on the compression fracture as a potentially compensable injury, does not equate to the Panel failing to engage with the question of the compression fracture.

35 Similarly, there was no requirement for the Panel's reasons to include more detail or analysis in respect of the fall on 8 April 2024, particularly in circumstances where Ms Kaplan's submissions on this issue were confined to the 20 June 2024 correspondence. At no point did Ms Kaplan retreat from her written submissions[2] that the relevant chapter of the Guides was Chapter 4.

36 It was also submitted that the Panel expressly considered whether there was any other medical condition or impairment attributable to the claimed injuries, noting that the Panel's reasons included the following:

The Panel considered that there is no other medical condition or impairment attributable to the injuries to the claimant alleged in the claim when assessed in accordance with the Guides.

37 In the alternative, Alfred Health submitted that the lumbar crush fracture was not a mandatory relevant consideration. The Panel is concerned with the injury or injuries alleged in the claim, which in this case was spinal cord compression secondary to cervical spine infection. Notwithstanding that the 20 June 2024 correspondence foreshadowed that Ms Kaplan would be making a claim in respect of the compression fracture injury, no steps were taken to actually claim it.

38 When answering a medical question and assessing impairment, a medical panel is concerned with the injury or injuries alleged in the claim.[3] The meaning of the injury or injuries alleged in the claim is broader than what is simply asserted in the Form 4. Rather, the meaning and content of the alleged claim:

derives from the prescribed information supplied by the claimant (i.e. the Form 4, including the prescribed information and accompanying documentation), any correspondence with the panel (including submissions), and the history a claimant gives the panel upon examination.[4]

39 The medical panel is required to consider both the injury and its sequelae or consequences.[5]

40 A medical panel will commit jurisdictional error

if it fails to give genuine consideration to matters which it is required by statute to consider, and that consideration could have materially affected its decision, or if it fails to give genuine consideration to fundamental issues raised by the facts of the case.[6]

41 Where there is a serious contention about a particular condition, it is necessary for the medical panel to consider that specific claim.[7]

So, if it is alleged that the Medical Panel failed to undertake that task, it will be necessary for the court engaging in judicial review to ascertain whether, on a fair reading of all the material before the Medical Panel (including its own examination, investigations and conclusions), the contention was sufficiently relevant to the alleged injury and was squarely raised.[8]

must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.[9]

43 Section 28LL of the Wrongs Act provides:

(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the same assessment.

(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part.

44 It is a matter for a medical panel to determine, in the exercise of its expertise, which method of assessment under the Guides is most appropriate, including whether different methods are required or whether a single method is appropriate.

The Guides emphasise that the physician's judgment and his or her experience, training, skill and thoroughness in examining the patient and applying the findings to the criteria will be factors in estimating the degree of the patient's impairment. The Guides identify that there is an element of 'art' to the practice of medicine and in the application of the Guides to a particular patient.[10]

45 Within the context of the Wrongs Act, there is no obligation on a medical panel to provide a written explanation of how it came to its determination, although it may choose to do so. As a consequence, any inadequacy in a medical panel's reasons is not a basis for review.[11]

46 However, when reasons are provided, it is permissible for a reviewing court to have regard to the reasons for the purposes of understanding a medical panel's path of reasoning. As stated by Richards J in Edwards v Victoria:

I do not accept that the Panel's reasons should somehow be read differently because they were provided voluntarily. Unlike the WIRC Act, the Wrongs Act does not oblige a Medical Panel to give a written statement for its reasons. However, a Medical Panel is a 'tribunal' for the purposes of the Administrative Law Act 1978 (Vic), and must furnish a statement of reasons for a determination in response to a request made under s 8 of that Act. Perhaps for that reason, Medical Panels convened to determine a question referred under Pt VBA of the Wrongs Act often provide a written statement of reasons - as the Panel did in this case. When provided, a statement of reasons provides an explanation of the Panel's path of reasoning to its determination, and a basis for a reviewing court to determine whether the determination was affected by jurisdictional error. The Panel's reasons here provide a sufficient basis for concluding that it failed to have regard to a substantial part of the referral material, and the fundamental issue of Mr Edwards' history of self-harm that arises from that material.[12]

47 Accordingly, the path of reasoning, as disclosed in the reasons of a medical panel, may assist a court to determine whether or not a relevant mandatory consideration was taken into account.[13]

48 I am satisfied that the lumbar compression fracture was a mandatory relevant consideration for the Panel. The injury initially referred to the Panel was the spinal cord compression secondary to cervical spine infection. However, the email of 20 June 2024 put the Panel and Alfred Health on notice that the lumbar spine compression fracture was to be included as part of the claim, noting that there is no formal document which could have been completed to specifically add this injury to the claim.

(a) make any further submissions to the Panel elaborating on this issue;

(b) request a further examination by the Panel for the purposes of assessment; or

(c) provide an indication that she was retreating from the position advanced in the 22 April 2024 submissions that the relevant section of the Guides applicable to an assessment of her neurological impairment was Chapter 4 (and only Chapter 4).

50 But, I am satisfied that the 20 June 2024 email does lead to a conclusion that it was 'squarely raised'[14] that the lumbar spine compression fracture was to be claimed as a potentially compensable injury.

51 In respect of the first ground of review, and whether the Panel erred by:

(a) not considering whether Ms Kaplan's claimed lumbar spine injury resulted in impairment which was assessable under Chapter 3 of the Guides; or

(b) not including any such assessable impairment in the impairment assessment,

the following matters are relevant.

52 First, the reasons of the Panel contain no mention of the L1 fracture as a claimed or potentially compensable injury.

53 The Panel did wait for the provision of the medical material referable to this injury before providing its determination. The Panel also made reference to the content of the medical material, including:

(a) referencing the 'MRI cervical and lumbar spine performed on 10 May 2024, which showed recent L1 compression fracture, cervical spine and lumbar spine appearances are stable, no canal stenosis or cord compression';

(b) referencing the notes from Dr Zavala of 11 April 2024 and 13 May 2024:

... which stated continues to experience falls which I believe could be due to both previous spinal cord process she had treated with spinal surgery and abscess drainage and migraines with vestibular features on examination the base is wide when walking and there is Romberg's sign because of failure believes that symptoms are progressing requesting repeat MRI of the brain and spine.

... the claimant 'had MRI of the brain spine, there are no brain changes, MRI of the cervical spine remains stable, MRI of the lumbar spine reveals L1 crush fracture which explains her pain. I believes she needs to be on osteoporosis appropriate treatment and I would like to ask you to kindly follow that up. At the moment there is no need for further follow-up with me'.

(c) referencing the clinical notes from the Emergency Department attendance at Cabrini Hospital dated 8 April 2024, which stated:

... 'fall while out getting coffee, was standing in line waiting, and suddenly collapsed to the ground onto her bottom, no LOC, lay herself down afterwards due to pain in back, no numbness or weakness in the legs, no chest pain, no palpitations, no abdominal pain, no SOB, no sudden onset headache, no neck pain, no preceding warmth of diaphoresis ... UL + LL power and sensation normal throughout, tender L4/5 and sacrum, the impression was likely mechanical/fall secondary to pre-existing neurology'.

54 However, the Panel's description of the claimed injury is confined to the spinal cord compression secondary to cervical spine infection.

55 Similarly, in the reasons under the heading 'Diagnosis and Stability', the Panel concluded that

the claimant is suffering from minimal residual dysfunction following a surgically treated spinal cord compression caused by a cervical epidural abscess.

56 The Panel did not set out any diagnosis of the injury relating to the fall on 8 April 2024.

57 Second, the Panel assessed Ms Kaplan's impairment pursuant to Section 4.3 of the Guides, without appearing to contemplate the possible applicability of Chapter 3.

58 Chapter 4 of the Guides pertains to the nervous system. It provides criteria for evaluating permanent impairments resulting from dysfunction of the brain, brain stem, cranial nerves, spinal cord nerve roots, and peripheral nerves.

59 Section 4.3 specifically deals with the spinal cord, noting:

The spinal cord conveys nerve impulses for motor, sensory, and visceral functions.

...

Impairments resulting from spinal cord injuries ... include those relating to station and gait.

60 Section 4.3a provides the criteria for evaluating station and gait within that context.

61 Chapter 4, including to the extent that it covers station and gait, is not directed to impairments from the musculoskeletal system of the spine. Rather, the following is noted under the heading to Section 4.3 'station and gait':

The ability to stand and walk safely and with dexterity provides the basis of criteria for evaluating various neurologic syndromes involving the forebrain, brain stem, spinal cord, and peripheral nervous system (Table 13, below). These impairments may need to be combined with those of other organ systems by means of the Combined Values Chart.

62 Chapter 3 deals with the musculoskeletal system and includes the spine. Section 3.3 specifically deals with the spine and provides two approaches for assessment of the spine in this context: the Injury Model and the Range of Motion Model.

63 It is for the Panel to use its own expertise to determine which method of assessment under the Guides should be adopted. The Panel must also ensure that any assessment does not involve overlap. The fact that the Panel made an assessment of impairment of station and gait pursuant to Section 4.3a and Table 13 of Chapter 4 of the Guides does not speak of error. Nor is error demonstrated simply by the failure to make an assessment under Chapter 3 or a failure to combine impairments. However, in circumstances where the lumbar fracture was to be claimed as a potentially compensable injury, it can reasonably be expected that the Panel would need to consider and make a determination about the applicability of Chapter 3.

considered the appropriate method to assess the claimant's impairment resulting from the spinal cord compression was pursuant to Section 4.3 of Chapter Four of the Guides.[15]

65 Third, there is no apparent contemplation by the Panel of the need for a further examination of Ms Kaplan following the fall. I accept that there was no imperative to further examine Ms Kaplan. I also accept that this third point is very much linked to the second point; in other words, whether or not a further physical assessment was required might have been linked to which chapter of the Guides the Panel determined ought to be utilised.

66 However, it is another indicator of the Panel not having treated the lumbar fracture as a potentially compensable injury.

67 It is difficult to reach a conclusion that there was jurisdictional error by simply looking at each of these three factors in isolation, especially noting that the reasons of a medical panel are not read with an eye keenly attuned to the perception of error.[16]

68 However, when considered in combination, it becomes clear that the Panel failed to give genuine consideration to whether Ms Kaplan's claimed lumbar spine injury from the fall on 8 April 2024 resulted in assessable impairment which needed to be included in the impairment assessment that the Panel was carrying out. Accordingly, '[i]n circumstances where the panel was required to intellectually engage with that part of the claim, the only conclusion that can be reached is that the panel failed to consider this mandatory relevant consideration'.[17]

69 The conclusion I have reached necessarily leads to a rejection of the submission by Alfred Health that Ms Kaplan's grounds of review simply invite the Court to engage in merits review.

70 As to materiality, I am satisfied that there is a realistic possibility that consideration of the mandatory relevant consideration could have resulted in a different decision. Even without the report of Professor Bittar, it is plain that if the Panel had proceeded without error it might have arrived at a different and more favourable assessment.

71 I am satisfied that ground one has been made out. It is not necessary to consider ground two, and I note that, in any event, most of the points made in respect of ground two overlapped extensively with the points made in respect of ground one.

72 The determination of the Panel must be quashed and the medical question remitted.

73 I accept the submissions of Alfred Health that there is no reason to direct that the matter should be referred to a differently constituted medical panel. Counsel for Ms Kaplan accepted that it was perfectly understandable how this error was made and has not identified any reason why the second and third defendants would not answer the medical question diligently and in accordance with the law.

74 I will hear the parties on the form of orders and as to costs.

[1] (1980) 144 CLR 13.

[3] Chua v Newman-Morris [2009] VSC 582, [36] (Emerton J).

[4] CD v Central Gippsland Health Service [2022] VSC 462, [216] (Croucher J). See also Victorian Workcover Authority v Putrus [2023] VSCA 28, [37], [41].

[5] Western Health v Dr Gallichio (2009) 31 VAR 115, 120 [13] (Pagone J).

[6] Victorian Workcover Authority v Putrus [2023] VSCA 28, [37] (citations omitted).

[7] Victorian Workcover Authority v Jamali [2023] VSCA 240, [80].

[9] Chua v Newman-Morris [2009] VSC 582, [36] (Emerton J).

[10] City of Melbourne v Neppessen [2019] VSC 84, [56] (Niall JA) (citations omitted).

[11] Colquhoun v Capital Radiology Pty Ltd [2013] VSCA 58; (2013) 39 VR 296, 307-308 [42]-[45].

[12] Edwards v Victoria [2021] VSC 423, [57] (Richards J) (citations omitted).

[13] Victorian Workcover Authority v Putrus [2023] VSCA 28, [46]; Victorian Workcover Authority v Jamali [2023] VSCA 240, [102]-[103].

[14] Victorian Workcover Authority v Jamali [2023] VSCA 240, [81].

[16] Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, 48 [9].

[17] Victorian Workcover Authority v Putrus [2023] VSCA 28, [46].