Plaintiff v First Defendant

2 In March 2008, Mrs Jussy made a claim for compensation under the Accident Compensation Act 1985 (Vic) (AC Act), alleging injuries involving severe bruising to her right buttock and pain to both legs. In May 2017, she made a further claim for compensation alleging injury by way of 'back, fibromyalgia, abdomen, chronic pain, mind/psychological injury, urinary incontinence'. Both claims were rejected, and are the subject of a County Court proceeding brought by Mrs Jussy against Mailton.

3 In May 2018, Judge Wischusen referred a number of medical questions to a Medical Panel, under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). The referral was initiated by Mrs Jussy, and consented to by Mailton. A Medical Panel was convened in response to the referral, comprising Dr David Fish, specialist occupational and environmental physician, Dr Jennifer Harmer, specialist rheumatologist, Dr Diane Neill, specialist psychiatrist, and Dr Sandra Hacker, specialist psychiatrist.

4 On 24 July 2018, the Panel provided its opinion and a written statement of reasons. The Panel found that, although Mrs Jussy's physical injuries from her 2008 fall had resolved, she had a work-related psychiatric injury, she had no current work capacity and her incapacity was likely to continue indefinitely. The Panel's opinion is to be adopted and applied by the County Court in respect of Mrs Jussy's claims for compensation.[1]

5 In this proceeding, Mailton seeks judicial review of the Panel's opinion. It contends that the Panel fell into jurisdictional error by failing to engage with Mailton's submission that Mrs Jussy lacked credit and was feigning her symptoms, and by making a finding of fact that was grossly illogical or irrational. It also contends that the Panel's reasons were inadequate. Mailton seeks an order in the nature of certiorari, quashing the Panel's opinion and remitting the medical questions to a differently constituted Panel.

6 For the reasons that follow, I am satisfied that the Panel as a whole gave genuine consideration to the question of Mrs Jussy's credit. I do not find that the Panel's reasoning was illogical or irrational, and I consider that its reasons were adequate. The proceeding must therefore be dismissed.

7 Eight medical questions were referred to the Panel for its opinion. Those questions, and the Panel's opinion in relation to each question, were set out in the Panel's certificate of opinion dated 24 July 2018:

Question 1: What is the nature of the Plaintiff's medical condition of the Plaintiff's:

Answer: The Panel is of the opinion that the Plaintiff:

(a) suffered a soft tissue injury to her back which has now resolved and is now suffering from mild degenerative spondylosis;

(b) is suffering from a Somatic symptom disorder with predominant pain.

Question 2: Was the Plaintiff's employment with the Defendant (and in particular the fall on 14 March 2008) a significant contributing factor to any, and if so what, medical condition of the Plaintiffs back as identified by the Medical Panel?

Answer: The Panel is of the opinion that the Plaintiff's employment with the Defendant on 14 March 2008 was a significant contributing factor to a soft tissue injury of the Plaintiff's back which has now resolved, and to the consequential development of a somatic symptom disorder with predominant pain.

The Panel is also of the opinion that the Plaintiff's employment with the Defendant including the fall on 14 March 2008 was not a significant contributing factor to the Plaintiff's mild degenerative spondylosis or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the back, in any way.

Question 3: Is any medical condition of:

(a) chronic pain syndrome (as may be identified by the Medical Panel);

(b) fibromyalgia (as may be identified by the Medical Panel); or

(c) the Plaintiff's mind -

Related to any medical condition identified by the Medical Panel in answer to Question 2?

Answer: (a) No.

Question 4: Does any medical condition of the Plaintiff's:

(a) back;

(b) chronic pain syndrome (as may be identified by the Medical Panel);

(c) fibromyalgia (as may be identified by the Medical Panel); or

(d) mind -

As identified by the Medical Panel continue to result from or be materially contributed to by injuries suffered in employment with the employer on 14 March 2008?

(b) No.

(c) No.

(d) In the Panel's opinion the Plaintiff's somatic symptom disorder with predominant pain results from and is materially contributed to by the now resolved soft tissue injury to her back.

Question 5: Is the Plaintiff incapacitated for work as a packer?

Answer: Yes.

Question 6: If any incapacity is identified in question 5, does such incapacity result from or is it materially contributed to by any, and if so which, of the medical conditions identified in answer to Question 4 hereof?

Answer: In the Panel's opinion the Plaintiff's incapacity results from and is materially contributed to by the somatic symptom disorder with predominant pain.

Question 7: Does the Plaintiff have:

(a) a "current work capacity" within the meaning of the Accident Compensation Act 1985 ("the Act"); or

(b) no "current work capacity" within the meaning of the Act?

Question 8: If "yes" to question 7(b) above, is this likely to continue indefinitely?

Answer: Yes.

8 The members of the Panel examined Mrs Jussy on two occasions. Dr Fish, the occupational physician, and Dr Harmer, the rheumatologist, examined her on 27 June 2018. The two psychiatrists, Dr Neill and Dr Hacker, saw Mrs Jussy on 29 June 2018.

9 The Panel commenced its reasons by referring to these examinations. It stated that it formed its opinion with regard to the documents and information referred to in Enclosure A, the history provided by Mrs Jussy and the findings elicited by the Panel at both examinations. Enclosure A listed a large number of documents provided to the Panel with the referral, including medical imaging, clinical notes, medical reports, surveillance material and written submissions made on behalf of Mrs Jussy and Mailton. The Panel expressly noted these submissions in its reasons.

10 The first part of the Panel's reasons dealt with Mrs Jussy's claimed physical injuries. The Panel noted the history provided by Mrs Jussy about the accident, her symptoms and treatment. In relation to her symptoms it recorded:

The Plaintiff said that she currently suffers lower back pain which radiates into the "bowel area", right buttock and into the right leg down to the ankle and sole of the right foot. She said that there was pins and needles all over the anterior and lateral thigh and calf into the sole of the foot and that she feels generally weak in both legs. She stated that the low back pain was constant and that the right leg feels tired all of the time.

11 The Panel went on to note the results of its physical examination of Mrs Jussy, the available medical imaging and reports, and clinical notes kept by the general practice attended by Ms Jussy. It questioned Mrs Jussy about episodes of back and leg pain recorded in the clinical notes and medical imaging undertaken before the accident in March 2008, and noted her response that she did not remember these episodes or why the imaging had been done.

12 The Panel stated that it had viewed the surveillance footage in Mrs Jussy's presence.[2] It noted that there was no restriction of lumbosacral motion on the footage, which was not consistent with her presentation to the Panel. On examination, she had displayed 'extremely poor spinal mobility in flexion, extension, lateral flexion and rotation'. It noted that Mrs Jussy was unable to explain the inconsistency.

13 The conclusions of the Panel in relation to the physical injuries claimed by Mrs Jussy were as follows:

The Panel accepted that she is suffering from chronic lower back pain but noted that this had preceded the incident and that the available information, in particular the general practitioner note of 14 March 2008, does not record back pain as a symptom and the reports of Dr Brazenor and Thomas, suggests that it was not severe following the incident and has overtime become more significant.

The Panel concluded that while she suffered a soft tissue injury of the buttocks and lower back at the time of the incident of 14 March 2008 that this had subsequently resolved.

The Panel also concluded that her ongoing symptoms arising from lumbar spondylosis and disc degeneration had preceded and subsequently continued following the incident and were unrelated.

The Panel therefore concluded that the Plaintiff is suffering from mild degenerative spondylosis with a now resolved soft tissue injury.

The Panel concluded that the Plaintiff's employment with the Defendant on 14 March 2008 was a significant contributing factor to a soft tissue injury of the Plaintiff's back which has now resolved.

The Panel noted the clinical history preceding the incident and the medical imaging, which does not demonstrate any change greater than the natural progression of the pre-existing mild degenerative spondylosis.

The Panel concluded that the Plaintiff's employment with the Defendant including the fall on 14 March 2008 was not a significant contributing factor to the Plaintiff's mild degenerative spondylosis or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the back, in any way.

The Panel therefore concluded that the Plaintiff does not have any incapacity [for] work, either in her pre-injury employment as a packer or for suitable employment, which results from or is materially contributed to by her alleged back injury.

Based on the available clinical evidence, the available radiology and the Panel's own knowledge, experience and expertise the Panel concluded that the Plaintiff is not suffering from a chronic pain syndrome or fibromyalgia.

14 The next section of the Panel's reasons dealt with whether Mrs Jussy had any psychiatric injury. It noted the history provided by Mrs Jussy on psychiatric assessment, presumably during the examination by the two psychiatrists on 29 June 2018. The history covered the accident in March 2008, her pain symptoms following the accident and the treatment she had received. It noted several unrelated medical conditions, an 'unremarkable past history' in relation to her mental health, and back pain before the accident. As to the latter, the Panel recorded:

She said that although she had suffered back pain in the past, it was a different quality of pain from the severe acute pain she sustained in the injury and also different because the incident was "frightening, it was dark, and the floor was hard".

The history taken included feelings of insecurity and apprehension about a further fall, preoccupations with her physical health and the consequences of the fall, and her quite limited daily activities.

15 The Panel undertook a mental status examination of Mrs Jussy and recorded its observations in some detail. These included an observation that her insight and judgment 'were impaired by habitual cognitive distortions, particularly illness beliefs'.

16 The Panel's conclusions as to whether Mrs Jussy suffered from any medical condition of the mind were as follows:

The Panel concluded that the Plaintiff is suffering from somatic symptom disorder with predominant pain.

The Panel noted that the criteria for the diagnosis of somatic symptom disorder permits this diagnosis concurrent with other medical conditions which have manifest pain symptoms. The Panel considers that the diagnosis of somatic symptom disorder encapsulates the Plaintiff's somatic symptoms (including pain) which are: very distressing; have been present for a least six months; result in significant disruption of function as well as excessive or disproportionate thoughts, feelings or behaviours regarding those symptoms; and are not better explained by any other diagnosis/condition from which the person is suffering, including the mild degenerative spondylosis with a now resolved soft tissue injury.

The Panel noted that the diagnosis of Chronic Pain Syndrome is subsumed under the Panel's diagnosis of somatic symptom disorder with predominant pain. The Panel therefore makes no separate diagnosis of Chronic Pain Syndrome or Fibromyalgia.

17 The Panel then explained its conclusions that Mrs Jussy's somatic symptom disorder resulted from and continued to be materially contributed to by the soft tissue injury to her back in March 2008. It found that she had no capacity to return to work in either her pre-injury employment or any other employment, and that this was likely to be indefinite.

18 The parties provided me, by agreement, with explanatory material in respect of some of the medical terms used in the Panel's opinion and reasons, in particular 'somatic symptom disorder' and 'pain disorder'. There was also discussion of the meaning of the terms 'chronic pain syndrome' and 'fibromyalgia' as they were used by the Panel.

19 Somatic symptom disorder is a diagnosis that appeared for the first time in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association (APA) in 2013. The APA has provided the following summary explanation of the diagnosis:[3]

Somatic symptom disorder involves a person having a significant focus on physical symptoms, such as pain, weakness or shortness of breath, that results in major distress and/or problems functioning. The individual has excessive thoughts, feelings and behaviors relating to the physical symptoms. The physical symptoms may or may not be associated with a diagnosed medical condition, but the person is experiencing symptoms and believes they are sick (that is, not faking the illness).

A person is not diagnosed with somatic symptom disorder solely because a medical cause can't be identified for a physical symptom. The emphasis is on the extent to which the thoughts, feelings and behaviors related to the illness are excessive or out of proportion.

....

People with somatic symptom disorder typically go to a primary care provider rather than a psychiatrist or other mental health professional. Sometimes it can be difficult for individuals with somatic symptom disorder to understand that their concerns about their symptoms are excessive. They may continue to be fearful and worried even when they are shown evidence that they do not have a serious condition. Somatic symptom disorder usually begins by age 30.

20 The diagnostic criteria for somatic symptom disorder are:

• One or more physical symptoms that are distressing or cause disruption in daily life
• Excessive thoughts, feelings or behaviors related to the physical symptoms or health concerns with at least one of the following:
  • Ongoing thoughts that are out of proportion with the seriousness of symptoms
  • Ongoing high level of anxiety about health or symptoms
  • Excessive time and energy spent on the symptoms or health concerns
• At least one symptom is constantly present, although there may be different symptoms and symptoms may come and go

21 Somatic symptom disorder replaced several disorders that had appeared in previous editions of the Diagnostic and Statistical Manual for Mental Disorders, to 'better reflect the complex interface between mental and physical health'.[4] A fact sheet published by the APA explained the changes as follows:

Several important changes have been made from previous editions of DSM. The DSM-IV disorders of somatization disorder, hypochondriasis, pain disorder, and undifferentiated somatoform disorder have been removed, and many, but not all, of the individuals diagnosed with one of these disorders could now be diagnosed with SSD. The DSM-IV diagnosis of somatization disorder required a specific number of complaints from among four symptom groups. The SSD criteria no longer have such a requirement; however, somatic symptoms must be significantly distressing or disruptive to daily life and must be accompanied by excessive thoughts, feelings, or behaviors.

Another key change in the DSM-5 criteria is that while medically unexplained symptoms were a key feature for many of the disorders in DSM-IV, an SSD diagnosis does not require that the somatic symptoms are medically unexplained. In other words, symptoms may or may not be associated with another medical condition. DSM-5 narrative text description that accompanies the criteria for SSD cautions that it is not appropriate to diagnose individuals with a mental disorder solely because a medical cause cannot be demonstrated. Furthermore, whether or not the somatic symptoms are medically explained, the individual would still have to meet the rest of the criteria in order to receive a diagnosis of SSD.

22 One of the diagnoses that was replaced by somatic symptom disorder was pain disorder. The diagnostic criteria for pain disorder in the fourth edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) were similar to, but not the same as, those for somatic symptom disorder:

1. Pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention.
2. The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

1. Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.

1. The symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering).
2. The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder and does not meet criteria for Dyspareunia.

23 In contrast to these two psychiatric disorders, the parties agreed that there is no generally agreed definition of either chronic pain syndrome[5] or fibromyalgia. The terms are used by different doctors in different ways to mean different things. The imprecision of these terms, and other terms used by doctors to refer to chronic pain that does not have an obvious organic cause, is an ongoing source of difficulty for judges.[6] Depending upon context, they can refer to a condition that is physical, or one that is psychiatric, or one that is a combination of both.

Did the Panel fail to consider the issue of credit?

24 Mailton made comprehensive written submissions to the Panel, prepared by its solicitors. Those submissions put Mrs Jussy's credit squarely in issue, in relation to all of her claimed injuries. The gist of these submissions was that Mrs Jussy was putting on a performance for the benefit of the medical practitioners who examined her, and that she was not experiencing genuine pain.

25 In relation to her claimed back injury, Mailton pointed to evidence that she had suffered lower back pain before March 2008, and submitted that this 'substantial history of pre-existing back problems' was relevant to the Panel's assessment of her credit generally. As to Mrs Jussy's presentation since the accident, Mailton submitted:

Apart from the radiology not providing any particular basis for the Plaintiff's complaints, the Defendant submits the investigations are inconsistent with the Plaintiff's exaggerated complaints of symptoms and restrictions associated with her back and her somewhat bizarre presentation in the examination context when seen by medical practitioners over the years.

It supported this submission by reference to comments in several medical reports about Mrs Jussy's presentation on examination.

26 Mailton then drew attention to the surveillance material, and urged the Panel to form its own assessment of that material. It pointed out what it said were inconsistencies between Mrs Jussy's movements in the surveillance footage from March 2010 and June 2017, and her presentation to medical practitioners at around the same time. In light of all of these matters, Mailton submitted that Mrs Jussy:

... does not suffer from any ongoing back condition and that her presentation in the medical examination context is simply a "performance" for the purposes of the present litigation.

27 It repeated this submission in relation to the claimed chronic pain syndrome and psychiatric injuries. In relation to the latter, Mailton submitted:

To the extent there might be some effort by the Plaintiff to contend that she suffers from a psychiatric condition by way of "chronic pain disorder" or "somatic symptom disorder" ... the Defendant submits that any such condition is a matter of self-report in relation to which the Plaintiff's credit is paramount. The Defendant refers to the submissions made above in relation to the Plaintiff's credit.

28 Mailton submitted that the Panel did not engage with the issue of Mrs Jussy's credit. This was a fundamental issue arising from the material before the Panel and one to which it was obliged to give consideration.[7] Mailton pointed out that the Panel's reasons did not directly address its submission that Mrs Jussy's presentation was a 'performance' for the purposes of the litigation, and did not make any explicit findings about her credit generally. In particular, the section of the Panel's reasons that dealt with psychiatric injury did not refer to the surveillance footage or to any of the other reasons why Mailton submitted that Mrs Jussy should not be believed.

29 The Panel was required, Mailton contended, to engage in an 'active intellectual process' in order to give 'proper, genuine and realistic consideration' to the issue of Mrs Jussy's credit.[8] It was not sufficient for the Panel to merely assert that it had considered all of the material, including the surveillance material and Mailton's submissions.[9] The Panel's reasons had to demonstrate that it had in fact taken those matters into account.

30 While I accept that Mrs Jussy's credit was a fundamental issue for the Panel, I am not persuaded that it disregarded that issue. The Panel said in its reasons that it had formed its opinion with regard to the documents and information provided to it with the referral, and expressly noted Mailton's submissions dated 13 April 2018. I would be reluctant not to take those statements at face value.[10]

31 More significantly, it is clear from the Panel's reasons that it actively engaged with the question of whether Mrs Jussy's account of her symptoms should be accepted. The Panel watched the surveillance footage with Mrs Jussy, and noted differences between her actions in the footage and her presentation on physical examination. In light of the available information, it found that her chronic lower back pain had preceded the accident and was not aggravated or exacerbated by it. It found that she no longer had any physical injury contributed to by her fall on 14 March 2008. At the same time, the Panel accepted that Mrs Jussy continued to experience genuine pain in her back and bottom, and was apprehensive about the possibility of a further fall and preoccupied with her physical health problems. It also accepted that these matters were distressing to her and had significantly disrupted her day to day functioning.

32 A Medical Panel is unlikely to deal with questions of genuineness and credit in the same way that a court would. Its members bring medical, not legal, skills and experience to bear in forming the Panel's opinion. A Panel is not an arbitral or adjudicative body.[11] The WIRC Act recognises that a Medical Panel may not be best placed to determine contested factual issues. It precludes the referral of a medical question to a Medical Panel where it appears to the court that 'the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court'.[12] But where factual issues are entrusted to a Medical Panel, its determination of those issues in the formation of its opinion is binding.

33 The medical questions referred to the Panel in this case obliged it to form a view about whether Mrs Jussy was genuinely experiencing pain, and whether it could accept her account of her symptoms. The Panel's function was 'to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise'.[13] In performing that function, the Panel could take a nuanced view of Mrs Jussy's credit, accepting what she said on some matters while not accepting her on others.

34 Mailton's argument on this ground was premised on reading the Panel's reasons in relation to Mrs Jussy's claimed physical injury as if they were entirely separate from the section concerning her psychiatric condition. There was some basis for doing so, given that the two psychiatrists saw Mrs Jussy separately from Dr Fish and Dr Harmer, and given the way that the reasons were structured.

35 However, I do not consider that the reasons can be read in this way. The certificate of opinion was given by Dr Fish as the presiding member of the Panel, who certified that he had 'discussed the answers herein with the other Panel Members' and that 'this is the opinion of the Panel on the medical questions set out below'. The opinion was a collective opinion of all of the members of the Panel, as the WIRC Act required.[14] The reasons for that opinion were given by the Panel as a whole, and integrated the reasoning of the individual members of the Panel. Based on those reasons, I am satisfied that the Panel as a whole gave genuine consideration to the question of Mrs Jussy's credit.

Was the Panel's opinion grossly illogical or irrational?

36 Next, Mailton contended that the Panel's opinion was grossly illogical or irrational. It identified two internal inconsistencies in the Panel's reasons that it argued were so illogical that the Panel's opinion involved jurisdictional error.

37 The first inconsistency concerned the Panel's reservations about Mrs Jussy's credit in relation to her claimed physical injuries and her psychiatric injury. In relation to the former, the Panel noted her inability to recall past episodes of lower back pain, unexplained differences between her presentation on physical examination and the surveillance footage, and inconsistencies between her clinical notes and the history she gave about the onset and progression of her symptoms following the accident. Those matters contributed to the Panel's finding that Mrs Jussy no longer suffered from any work-related physical injury, and that her mild lower back spondylosis was not work-related. In relation to the latter, the Panel apparently accepted a contrary history in relation to earlier lower back pain, and the onset, severity and persistence of her pain symptoms.

38 The second claimed inconsistency arose from the Panel's findings about chronic pain syndrome and fibromyalgia in the section of its reasons that dealt with physical injury, and the section that dealt with psychiatric injury. In the first, the Panel expressed a conclusion that Mrs Jussy was not suffering from a chronic pain syndrome or fibromyalgia. In the second, the Panel noted that a diagnosis of chronic pain syndrome was subsumed under its diagnosis of somatic symptom disorder, and therefore made no separate diagnosis of chronic pain syndrome or fibromyalgia.

Illogicality and irrationality as a ground of review

39 Mailton noted that there remains uncertainty about the availability of illogicality or irrationality as a ground of review of an opinion of a Medical Panel. Mrs Jussy made a formal submission that the ground was not available in respect of the formation of an opinion, as distinct from the exercise of a discretion or satisfaction as to the existence of a jurisdictional fact. Both submissions were based on the observations of Neave JA in Ryan v The Grange at Wodonga Pty Ltd.[15]

40 As I have said previously,[16] I find it difficult to reconcile doubt about illogicality, irrationality or unreasonableness as grounds of review of a Medical Panel opinion with other authority to the effect that legal reasonableness is a condition of the lawful exercise of statutory power.[17] The WIRC Act entrusts Medical Panels with the function of determining medical questions that are dispositive of rights and liabilities under the WIRC Act, the AC Act and Part VBA of the Wrongs Act 1958 (Vic). Parliament may be presumed to have intended that Medical Panels should perform this function within the bounds of legal reasonableness, having regard to the scope, purpose and objects of the WIRC Act.

41 This does not mean that the findings and opinions of Medical Panels are open to merits review. A conclusion of legal unreasonableness is not lightly reached,[18] and not every lapse of logic will give rise to jurisdictional error.[19] An opinion on a medical question is a matter on which logical or rational or reasonable minds might follow different routes and reach different conclusions.[20] The standard of legal reasonableness allows room for reasonable minds to differ.

The Panel's opinion was not illogical or irrational

42 Although I accept that a Medical Panel's opinion can be reviewed on the ground of illogicality or irrationality, I do not consider that this Medical Panel's opinion was either illogical or irrational.

43 As to the way in which the Panel dealt with Mrs Jussy's credit, on the first reading there is some tension between the sections of its reasons concerning physical injury and psychiatric injury. On closer reading, however, that tension resolves. I have already found that it was open to the Panel to take a nuanced view of Mrs Jussy's credit, and that is clearly what it did. Questions of credit are rarely black and white. The Panel could find that Mrs Jussy genuinely suffered psychogenic pain while also observing that her presentation was not explained by any organic cause.

44 The Panel observed unexplained differences between Mrs Jussy's movements on the surveillance footage from 2010 and 2017 and her presentation on examination. Notably, it did not find that she had deliberately exaggerated her presentation or that she had put on a 'performance'. The Panel concluded, based on clinical notes, that she already had a lower back condition that was not made worse by the accident in March 2008. It accepted that she had suffered a soft tissue injury of the buttocks and lower back as a result of the accident, which had subsequently resolved. Although there was no longer any organic cause of her pain symptoms due to the accident, the Panel also accepted that Mrs Jussy continued to suffer distressing psychogenic pain that disrupted her functioning and that she had developed illness beliefs and behaviours. These various conclusions are not inconsistent, illogical or irrational.

45 The second claimed inconsistency in the Panel's reasons concerned its rejection of the diagnoses of chronic pain syndrome and fibromyalgia, while also noting that the diagnosis of chronic pain syndrome was subsumed under the diagnosis of somatic symptom disorder. Again, these findings might appear contradictory on a first reading of the Panel's reasons.

46 Any contradiction disappears, however, once it is understood that both chronic pain syndrome and fibromyalgia are imprecise terms that, depending upon context, can refer to a condition that is physical, or psychiatric, or both.[21] The Panel concluded that Mrs Jussy was not suffering from any physical condition of chronic pain syndrome or fibromyalgia. It found that it did not need to consider these conditions as alternative psychiatric diagnoses, because these alternatives were covered by the diagnosis of somatic symptom disorder. Those conclusions were not inherently illogical or irrational.

47 Mailton's final ground of review concerned the adequacy of the reasons given by the Panel for its opinion. It contended that the Panel's reasons were insufficient for me to be satisfied that it had given genuine consideration to the questions about Mrs Jussy's credit raised in its submission to the Panel. It submitted that I could not be so satisfied because the Panel's reasons did not disclose how it resolved the central issue of Mrs Jussy's credibility.[22]

48 Section 313(2) of the WIRC Act requires a Medical Panel to provide a written statement of reasons for its opinion. Those reasons must explain the Panel's actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.[23] A statement of reasons is not adequate if there is a 'real doubt' whether the Panel correctly performed its statutory functions.[24] A real doubt may exist where a Panel's conclusions are open to more than one interpretation,[25] and in that case the reviewing court should not speculate about a Panel's path of reasoning in order to resolve ambiguity or fill gaps.[26]

49 At the same time, a Medical Panel's reasons need only be sufficient to enable a reviewing court to understand that it has performed its function - to form and give its opinion on medical questions referred to it - lawfully. At least since the High Court's decision in Wingfoot, it has been clear that a Medical Panel is not an arbitral or adjudicative body, does not have a function of deciding disputes, and is not required to choose between competing arguments or contentions put to it.[27] The adequacy of a Medical Panel's reasons must be assessed against its statutory function, and not against some other standard.

50 In addition, the Panel's reasons must be read fairly, as a whole and in context, and should not be subject to over-zealous judicial review.[28] A Panel's reasons may be able to be understood by combining what is expressly stated with inferences necessarily arising, although any such inferences must have a 'proper evidential foundation disclosed in the reasons'.[29]

51 It is the case that the Panel's reasons did not deal directly with the attack made by Mailton on Mrs Jussy's credit. Nor did it explain how it had resolved various inconsistencies that had been drawn to its attention between the histories recorded in medical reports, her presentation on examination, the surveillance material and her clinical notes. Perhaps it would have been better if the Panel had said more. But it did not have to address these matters in its reasons, so long as the reasons disclosed its path of reasoning in sufficient detail that I could see whether the Panel's opinion involved an error of law. Indeed, reasoning this granular is not always required of a judicial officer, in particular one from whom an appeal lies only on a question of law.[30]

52 I was able to follow the Panel's path of reasoning to the opinions it gave. I could also see from the Panel's reasons that it had given genuine consideration to the submissions made by Mailton about Mrs Jussy's credit, and in particular to the differences between the surveillance footage and her presentation on examination. Having done that, and having found that the soft tissue injury from the accident had resolved, the Panel nevertheless accepted that she still suffered pain. The Panel could not have diagnosed somatic symptom disorder unless it believed Mrs Jussy when she told them that she continued to suffer pain in her lower back and bottom. It was sufficient that the Panel made it clear that it accepted this aspect of Mrs Jussy's history. It was not necessary for it also to explain how it had reasoned step by step to that conclusion.

53 The proceeding is dismissed. I will hear the parties on the question of costs.

[2] DVDs containing footage of surveillance undertaken in February and March 2010 and on 7 June 2017 were provided to the Panel, together with written reports of the surveillance activity.

[3] www.psychiatry.org/patients-families/somatic-symptom-disorder/what-is-somatic-symptom-disorder

[4] Fact sheet on Somatic Symptom Disorder published at

www.psychiatry.org/psychiatrists/practice/dsm/educational-resources/dsm-5-fact-sheets

[5] As distinct from complex regional pain syndrome.

[6] Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649, [2]-[4] (Maxwell P).

[7] Relying on Moyston Court Fisheries Ltd v Malios [2007] VSC 518, [43], [47] and Robert Bosch Pty Ltd v Barton (2008) 29 VAR 223 (Robert Bosch), [8], [26].

[8] Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99, [44]; Singh v Minister for Home Affairs [2019] FCAFC 3, [30], [34].

[9] Milwain v Sim [2009] VSC 75; (2009) 31 VAR 53, [35]; Stojilkovic v Romas [2017] VSC 49, [15].

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

[11] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 (Wingfoot), [47].

[12] WIRC Act, s 274(5). In that instance, the court may state a question to be answered by the court for the purposes of determining the factual issues and may hear and determine that question and make appropriate findings of fact: WIRC Act, s 275.

[15] [2015] VSCA 17, [82]-[100] (Neave JA, Santamaria JA and Ginnane AJA agreeing).

[16] Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266, [22].

[17] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, [26]-[29] (French CJ), [63]-[67] (Hayne, Kiefel and Bell JJ), [88]-[90] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 (SZVFW), [51]-[53] (Gageler J), [80] (Nettle and Gordon JJ), [131]-[135] (Edelman J). See most recently Singh v Minister for Home Affairs [2019] FCAFC 3, [61].

[19] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), [130] (Crennan and Bell JJ).

[20] SZMDS, [131] (Crennan and Bell JJ).

[21] See [23] above.

[22] Relying on Robert Bosch, [23], [26], [30], a decision that pre-dated Wingfoot.

[24] Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 (Gruma Oceania), [47].

[25] Pearce v Lloyd [2016] VSC 806, [62].

[26] Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].

[28] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, [9], [20] and Gruma Oceania, [29].

[29] Tan v Kotzman [2016] VSC 482, [22].

[30] Soulemezis v Dudley (Holdings) Pty Ltd ( 1987) 10 NSWLR 247, 271-273 (Mahoney JA), 282 (McHugh JA); Ta v Thompson [2013] VSCA 344; (2013) 46 VR 10, [50]-[53] (Osborne JA), [82] (Beach JA).