Plaintiff v First Defendant

2 Two days later, on 7 December 2018, the plaintiff sustained a crush fracture to the end of his left ring finger when it was caught between two pieces of timber that he was carrying.[1] He is left hand dominant.

3 The plaintiff's claim was accepted and he underwent surgery, involving open reduction and internal fixation, at Barwon Hospital on 14 December 2018. He had two further (and minor) surgical procedures in January and July 2019. X-ray results in March 2019 showed the fracture to have 'united with alignment similar to prior'.[2] Medically described, the plaintiff has 'left ring finger dysfunction, including a functional arthrodesis of the distal interphalangeal joint, following traumatic crush injury treated surgically'.[3]

4 The first defendant terminated the plaintiff's entitlement to weekly payments and reasonable and medical-like expenses from 22 February 2020 on the basis that, among other things, he was no longer incapacitated for work.

5 In Magistrates' Court proceedings, the plaintiff sought, relevantly, reinstatement of his entitlement to weekly payments from 22 February 2020, as well as arrears relating to the period 7 December 2018 to 7 February 2019.

6 A Magistrate referred six questions to a medical panel convened pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

7 The 'medical questions' included, relevantly, the nature of the plaintiff's left ring finger condition and whether he was incapacitated for pre-injury work in the periods 7 December 2018 to 7 February 2019 and from 22 February 2020 to the date of the panel's examination.

8 A four member panel was assembled comprising a psychiatrist, a general practitioner, an orthopaedic surgeon and a plastic surgeon.

9 The plaintiff was examined by the 'physical members of the panel'[4] on 25 May 2021.[5] The plaintiff gave the panel a history. The panel made detailed findings on examination. The panel was also provided with a collection of medical reports and other documents, including written submissions. Relevantly, the panel said that it formed its opinion with regard to that to which I have referred.[6]

10 The panel answered the six questions by certificate of opinion dated 14 June 2021.[7] In particular, questions 1 and 2 were posed and answered as follows -

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

a. left upper limb;

b. left ring finger;

c. consequential psychiatric injury?

Answer: The Panel is of the opinion the Plaintiff is suffering from left ring finger dysfunction, including a functional arthrodesis of the distal interphalangeal joint, following a traumatic crush injury treated surgically.

The Panel is also of the opinion that the Plaintiff does not suffer any consequential psychiatric injury.

Question 2 In the periods:

a. 7 December 2018 to 7 February 2019 and;

1. 22 February 2020 to the date of the medical Panel's examination,

was the Plaintiff incapacitated for preinjury work?

Answer: The Panel is of the opinion that;

1. In the period 7 December 2018 to 7 February 2019 the Plaintiff was incapacitated for preinjury work; and
2. b. In the period 22 February 2020 to the date of the Medical Panel's examination the Plaintiff was not incapacitated for preinjury work.

11 Broadly speaking, the panel accepted that the plaintiff's left ring finger dysfunction materially contributed to an incapacity for work in the period 7 December 2018 to 7 February 2019. No issue is presently taken with that aspect of the panel's determination. Nor does any issue arise directly in respect of the panel's answers to questions 3, 4, 5 and 6.

12 The present issue relates to the panel's determination that the plaintiff was 'not incapacitated for preinjury work' in the period from 22 February 2020 to the date of the panel's examination.

13 In that connection, in its reasons, the panel noted the history given by the plaintiff, including that his duties with the employer had 'pertained to sorting and lifting timber beams and carrying the timber to the timber saw'.[8] The plaintiff said that he would carry several beams at a time and that the weight could be up to approximately 30 kilograms.[9]

14 The panel recorded the plaintiff's account of the clinical course following injury, including that after the first surgery in December 2018 -

(a) he had been provided with a glove like splint which assisted left ring finger flexion;

(b) he had managed left ring finger pain with Endone and Nurofen;

(c) additionally, he had managed with 3 to 4 sessions of hand therapy aimed at improving and maintaining left ring finger range of motion; and

(d) he was uncertain whether he had consulted a physiotherapist for management of his condition.[10]

The Plaintiff told the Panel that following the incident he did not return to his preinjury employment. He said that he has continued to experience pain and reduced range of motion of the left ring finger since the incident. He said that he was certified to undertake modified employment duties but that his preinjury employer was unable to provide a modified duty employment role. The Plaintiff said that the third surgery was undertaken in an attempt to increase the range of motion of his left ring finger but that he did not experience any increase in the range of motion of the finger. The Plaintiff said that left ring finger pain and range of motion has essentially been unchanged since July 2019. He said that following February 2020 he has not consulted his general practitioner, his hand therapist, nor any physiotherapist, regarding his finger condition.

Current Symptoms and Function

The Plaintiff told the Panel that he experiences constant variable pain of the left ring finger in the region distal to the proximal interphalangeal joint. He said that the pain is aggravated by cold weather. He said that when he knocks the finger he can experience increased pain for a duration of two to three hours. He said that he experiences occasional pins and needles or numbness over the posterior aspect of the distal phalanx but does not experience any swelling or discolouration, nor any abnormality of the fingernail of the left ring finger. The Plaintiff said that his sleep is not disrupted by left ring finger symptoms. He said that he does not have any pain or limitation of movement of his left thumb and other fingers, nor does he have any other symptoms in the left upper limb.

He told the Panel that he is left hand dominant and that subsequent to the incident he no longer uses his left hand to undertake numerous tasks. He said that he is independent in performing self-care activities and household duties. The Plaintiff said that since the incident he rarely undertakes work on cars, a hobby he previously had enjoyed, as he is unable to securely grasp various tools. He said that other hobbies include watching sport.

16 In respect of 'current management', the panel stated that the plaintiff had told it that -

(a) he was taking Nurofen Zavance, 2 to 4 tablets, most days of the week; and

(b) he was not currently consulting any medical or allied health practitioners regarding his condition.[11]

The Plaintiff told the Panel that he is not currently employed. He said that despite applying for suitable employment, such as work as a forklift driver, he has been unsuccessful in attaining employment following termination of his preinjury employment in December 2019. He said that he is currently receiving Centrelink payments.

The Plaintiff told the Panel that he would be unable to undertake his preinjury employment as the activities required would aggravate left ring finger pain. He said that he was unsure if any strategies or techniques could be instituted to prevent aggravation of the pain while undertaking his employment duties.[12]

18 The panel referred to the plaintiff's pre-existing condition of myotonic dystrophy[13] and also recorded the results of its examination findings. Those findings were detailed and included the following -

(a) tenderness to palpation over the posterior aspect of the plaintiff's ring finger where the skin was close to the bone;

(b) 'variable sharp sensation of the ring finger'; and

(c) the results of grip strength testing, which it considered could be influenced by factors including 'the Plaintiff's myotonic dystrophy and subjective factors'.[14]

19 The panel considered the reports of radiological investigations and thereafter stated its diagnosis, to which I have earlier referred. In so doing, the panel concluded that the plaintiff was not suffering 'any additional or other condition of the left upper limb'.[15]

20 The panel recorded the history and other details relating to its psychiatric assessment. In particular, the panel identified that -

(a) the plaintiff had said that he had not returned to work in any capacity since injury owing to 'ongoing, daily pain in the left ring finger, associated with inability to bend the second joint on his left ring finger and reduced ability to grip with that hand';

(b) the plaintiff had said that 'the pain is worse in the cold weather and Nurofen does not help';

(c) the plaintiff takes Nurofen, 'about four tablets daily', but 'no longer sees his general practitioner or hand therapist and he has no other treatment'; and

(d) the plaintiff had expressed the view that 'he could not work' because of symptoms in his finger.[16]

21 The panel determined that the plaintiff was not suffering from any psychiatric condition or abnormal psychological symptoms as a result of his left ring finger injury.[17]

22 Thereafter, under the heading 'Analysis and Reasoning', the panel stated, among other things -

In answering the medical questions, the Panel considered the information contained within the referral material, the Plaintiff['s] history of injury, response to management undertaken, previous and current symptoms and functional limitations, the Panel's examination findings, the medical imaging reported, and the opinions of those who have examined and or treated the Plaintiff.

The Panel considered the Plaintiff's capacity for his pre-injury work in the periods 7 December 2018 to 7 February 2019 and 22 February 2020 to the date of the Medical Panel's examination. The Panel noted the duties required in performing the Plaintiff's pre-injury employment included sorting, lifting, and carrying of timber beams.

The Panel noted that the period 7 December 2018 to 7 February 2019 was the initial two months subsequent to the injury and surgical management, and that during this time the Plaintiff was receiving hand therapy, had been provided with a glove like splint to optimise left ring finger range of motion, and had been prescribed Endone in addition to Nurofen for control of pain. The Panel considered that the Plaintiff's pre-injury work would not have been within the functional capacity of the Plaintiff during the first 2 months post-injury, nor would the duties have been conducive to optimising recovery following surgical management. The Panel therefore concluded that during the period 7 December 2018 to 7 February 2019 the Plaintiff was incapacitated for his pre-injury work. The Panel, for the reasons outlined, also concluded that the Plaintiff's incapacity for work during this period was materially contributed to by the Plaintiff's left ring finger dysfunction, including a functional arthrodesis of the distal interphalangeal joint, following a traumatic crush injury treated surgically.

The Panel noted that during the period 22 February 2020 to the date of the Medical Panel's examination the Plaintiff has not consulted his general practitioner, his hand therapist or any physiotherapist, nor have any further surgical procedures been undertaken. The Panel took account of the Plaintiff's history that his left ring finger pain and range of motion has essentially been unchanged since July 2019, his current reports of variable constant pain which is aggravated by cold weather and direct contact. The Panel also considered the Plaintiff currently takes Nurofen for relief of his left index finger symptoms.

The Panel considered the nature of the Plaintiff's current physical condition in conjunction with the duties required in performing the Plaintiff's pre-injury work and concluded that the Plaintiff had the functional capacity [to] undertake the role of a casual labourer. Notwithstanding the Plaintiff's reports of left ring finger pain, and examination findings of reduced left ring finger distal interphalangeal joint range of motion the Panel also considered that the Plaintiff's condition has reached a point which would allow him to perform his pre-injury work on a reliable and consistent basis without aggravating his current physical symptoms and conditions. The Panel therefore concluded that during the period 22 February 2020 to the date of the Medical Panel's examination the Plaintiff did not and does not have and [sic: an] incapacity for his pre-injury work.[18]

...

23 The panel then addressed the issue of material contribution[19] - part of which passage the plaintiff referred to in argument[20] - and referred to further issues largely immaterial to the present arguments of the parties; save, perhaps, for the panel's reference to the opinion of Mr Ireland in respect of which it 'formed a different view regarding the Plaintiff's current work capacity'.[21]

24 The present proceeding was commenced by originating motion amended on 6 June 2022.[22]

25 The amended originating motion is directed to one ground of claimed jurisdictional error stated in the following terms -

In providing its opinion in answer to referred question 2(a) [sic: 2(b)] to the effect that the plaintiff was not incapacitated for preinjury work in the period [from] 7 December [sic: 22 February] 2020, the Medical Panel fell into jurisdictional error in that it:

(a) failed to provide adequate reasons for that opinion:

(b) misunderstood the referred questions and/or misunderstood, mistook and/or misapplied the term "incapacity for preinjury work"; and/or

(c) made a finding that was illogical or unreasonable and/or not open on the evidence.

26 The plaintiff seeks that the opinion of the panel be quashed and the referred medical questions be returned to a differently constituted panel to be reconsidered in accordance with law.

27 The second to sixth defendants adopted the Hardiman position.

28 Counsel each advanced argument in a manner embracing all aspects of the stated ground.

29 Counsel for the plaintiff undertook a close analysis of passages from the reasons of the panel, which culminated in a focus upon the following paragraphs extracted from the panel's 'analysis and reasoning' -

The Panel noted that during the period 22 February 2020 to the date of the Medical Panel's examination the Plaintiff has not consulted his general practitioner, his hand therapist or any physiotherapist, nor have any further surgical procedures been undertaken. The Panel took account of the Plaintiff's history that his left ring finger pain and range of motion has essentially been unchanged since July 2019, his current reports of variable constant pain which is aggravated by cold weather and direct contact. The Panel also considered the Plaintiff currently takes Nurofen for relief of his left index finger symptoms.

The Panel considered the nature of the Plaintiff's current physical condition in conjunction with the duties required in performing the Plaintiff's pre-injury work and concluded that the Plaintiff had the functional capacity undertake the role of a casual labourer. Notwithstanding the Plaintiff's reports of left ring finger pain, and examination findings of reduced left ring finger distal interphalangeal joint range of motion the Panel also considered that the Plaintiff's condition has reached a point which would allow him to perform his pre-injury work on a reliable and consistent basis without aggravating his current physical symptoms and conditions. The Panel therefore concluded that during the period 22 February 2020 to the date of the Medical Panel's examination the Plaintiff did not and does not have and incapacity for his pre-injury work.[23]

[Emphases added].

30 Counsel described the second of those paragraphs as the 'sentinel paragraph'[24] and contended that the words 'without aggravating his current physical symptoms and conditions' disclosed plain error. It was said that the words amounted to a 'finding' that the plaintiff was 'not going to have any pain at all if he goes back to work'.[25] Counsel submitted that such a finding was contrary to the panel's other findings and reasoning in that, it was said -

(a) the panel had 'made a finding that the plaintiff still had an objectively quite disabling condition of the distal interphalangeal joint';[26] and

(b) the plaintiff's history, which it was said the panel had accepted, 'was that contact with that finger would cause him a significant aggravation of pain and that he had reduced grip strength with that finger'.[27]

31 It followed, it was submitted, that the 'finding' was unsupported by any 'pathway of reasoning'[28] and was otherwise 'illogical and irrational and one for which there was no evidence'.[29]

32 The plaintiff's central submission was supported by other contentions seemingly directed to casting doubt upon the overall correctness of the panel's determination. In that regard, counsel drew attention to the panel's reliance upon the facts that -

(a) the plaintiff had not consulted his general practitioner, hand therapist or a physiotherapist nor had any further surgical procedures in the period under consideration; and

(b) the plaintiff had given a history of unchanged left ring finger pain since July 2019.[30]

33 The significance of those matters was said to be unclear. It was submitted that such matters did not support the panel's finding that the plaintiff had a 'functional capacity to perform his pre-injury duties as a casual labourer'.[31]

34 Further, and in an even more general way, counsel submitted that 'a number of matters ... strongly tended towards the conclusion that the plaintiff couldn't return to his pre-injury duties'.[32] In particular, counsel stated -

The plaintiff's complaints to the panel included constant and variable pain in the left ring finger, worsening pain on direct contact with the left ring finger, reduced range of motion after the left ring finger, pain in cold weather, pins and needles and numbness, increased pain for two or three hours after knocking his finger and no improvement despite a third surgery designed to increase his left ring finger range of motion. He also said that he was left hand dominant and did not now use his left hand to undertake daily tasks, and couldn't even grasp tools to work on a car.[33]

...there wasn't a single medical practitioner who said that the plaintiff had a capacity to perform his pre-injury employment, nor was there any vocational report suggesting that pre-injury employment was a suitable job option.[34]

36 It might be said that there are some general considerations to the contrary that counsel for the first defendant tended more to allude to in argument rather than develop in any detail.[35] In any event, arguments of such a general kind verge upon - if not directly invite - a consideration of the merits of the panel's decision that cannot assist in identifying or confirming the presence or otherwise of jurisdictional error.[36]

37 In that context, the essence of the submissions advanced by counsel for the first defendant was that the reasoning of the panel was compliant with applicable authority and disclosed no jurisdictional error.[37]

38 In that regard, while there was a measure of debate between counsel concerning whether the circumstances considered by the Court of Appeal in Sidiqi were to be considered properly to be analogous with the circumstances of the present case, in my view nothing turns upon the issue. There can be no doubt that Wingfoot and Sidiqi each identify and discuss a sequence of principles of considerable present importance.

39 In particular, in Wingfoot,[38] the High Court identified that -

(a) the function of a medical panel is neither arbitral nor adjudicative;

(b) the function of a medical panel is 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';

(c) the reasons of a medical panel must be 'adequate to enable a reviewing Court to see whether the decision does or does not involve any error of law'; and

(d) a medical panel is under no obligation to explain why it did not reach an opinion it did not form.

40 Further, in Sidiqi,[39] the Court of Appeal referred to Wingfoot and confirmed further that -

(a) judicial review is not concerned with merits review;

(b) the opinions of a medical panel on questions of fact raised by the questions before it will be necessarily informed by expertise which the Court does not possess;

(c) it will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of the panel;

(d) the standard of reasons required of a medical panel is not to be equated with the standard of reasons that would be required of a judge giving reasons for final judgment after the trial of an action; and

(e) the reasons of a medical panel must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.[40]

41 With those principles in mind, I am conscious that the presently critical question before the panel - namely, whether the plaintiff was not incapacitated for pre-injury work in the period from 22 February 2020 to the date of the panel's examination - involved the evaluation and determination of a past hypothetical.[41] The fact was that the plaintiff had not worked at all in that period. It followed that it was very much an instance in which the panel was required to make an evaluation calling upon its medical expertise and experience.

42 Part of that which the panel was required to consider was, of course, the history given to it by the plaintiff. In argument, counsel for the plaintiff tended to treat the plaintiff's history to the panel as if it were wholly or very largely factual in nature and, in effect, required to be acted upon by the panel if, as is the case, it was broadly accepted by the panel or at least not specifically rejected.

43 In my view, great care must be taken with submissions of that kind when directed to the deliberations and determinations of medical panels, at least in respect of the evaluation and determination of past hypotheticals.

44 Partly that is because the authorities to which I have earlier referred emphasise that the function of such a panel is not an adjudicative one. In that sense, it is one thing to say that a trier of fact such as a judge, without any subject matter expertise (other than the law), should accept a plaintiff's account unless it or particular parts of it are for some reason specifically rejected;[42] but quite another to say that a panel of medical experts involved in a process of evaluation in respect of a hypothetical should or must reason in the same way.

45 Such a submission also tends to pass rather too lightly over the true composition of such a 'history'. In a case such as the present, parts of the plaintiff's history might at first blush be thought to be largely factual, such as that -

(a) he had continued to experience pain and reduced range of motion in his left ring finger since the incident;

(b) after the first surgery he had been provided with a glove like splint and managed his finger condition with Endone and Nurofen and 3 to 4 sessions of hand therapy;

(c) following February 2020 he had not consulted his general practitioner, his hand therapist, nor any physiotherapist regarding his finger condition; and

(d) he currently manages his finger condition with Nurofen Zavance, '2 to 4 tablets, most days of the week'.[43]

46 However, such apparently factual aspects contain obvious elements of estimation, especially when the plaintiff is speaking of the past and with a degree of imprecision (eg, '3 to 4 sessions'; '2 to 4 tablets, most days').

47 Further, other parts of the plaintiff's history to the panel must have been very significantly if not wholly comprised of estimation. As I have noted, the plaintiff had not worked since the incident and, indeed, had worked for the employer for only two days prior to it. Nonetheless, the plaintiff is recorded as having said that -

(a) he 'could not work' because of his symptoms;[44] and

(b) 'he would be unable to undertake his preinjury employment as the activities required would aggravate left ring finger pain'.[45]

48 Perhaps recognising the nature of such aspects of the plaintiff's account, it was not directly submitted - and could not be the case - that the panel's broad acceptance of the plaintiff's account should mean that the panel's determination of the relevant medical question was in some way foreclosed.

49 In this context, it will be evident that the plaintiff's own account to the panel must be taken to have been informed by greater and lesser degrees of estimation. That includes the parts of the history relied upon by counsel for the plaintiff in the course of the present argument. In particular -

(a) that the plaintiff's left ring finger pain and range of motion had 'essentially been unchanged' since July 2019;[46]

(b) and -

The Plaintiff told the Panel that he experiences constant variable pain of the left ring finger in the region distal to the proximal interphalangeal joint. He said that the pain is aggravated by cold weather. He said that when he knocks the finger he can experience increased pain for a duration of two to three hours. He said that he experiences occasional pins and needles or numbness over the posterior aspect of the distal phalanx but does not experience any swelling or discolouration, nor any abnormality of the fingernail of the left ring finger.[47]

[Emphases added].

50 What the panel made of those aspects of the history was for it and must inevitably have been informed by the panel's expertise and experience as well as the whole of the history given and other material before it.

51 Of particular importance must have been the clinical course followed since the incident together with the panel's own findings on examination. In respect of the examination, as I have earlier noted, the panel specifically observed -

(a) 'tenderness to palpation over the posterior aspect of the ring finger where the skin was close to the bone';

(b) 'variable sharp sensation of the ring finger of the left hand'; and

(c) grip strength that 'could be influenced by a combination of factors', including 'subjective factors'.[48]

52 In that sense, the true complexion of the plaintiff's experience of pain and other degrees of disability contributing to any incapacity arising from his left ring finger condition could be and evidently was assessed by the panel without specifically requiring it directly to cavil with the plaintiff's own account. That account accommodated various degrees of estimation and the panel's own estimation must have been heavily informed by its own observations, experience and expertise.

53 Further, as I have noted, the end point of the exercise was that the panel was merely required to express its own estimation and therefore opinion.[49] It was not required to write reasons that engaged in endless anticipatory shadow boxing against either the estimations or opinions of the plaintiff, or other doctors, or other arguments that were not raised before it.

54 That brings me to the plaintiff's central argument, which, as I have noted, was advanced as a criticism of the panel's pathway of reasoning combined with allegations of 'illogicality', 'irrationality', 'legal unreasonableness' and 'no evidence'.

55 In my view, the panel's pathway of reasoning is quite plain and not remotely inadequate. The panel stated and therefore plainly understood -

(a) the mechanism of injury and the plaintiff's subsequent clinical course;[50]

(b) the nature of the duties that had been undertaken by the plaintiff in the two days prior to injury;[51]

(c) the plaintiff's current symptoms, claimed degree of function and the nature and degree of treatment and medication;[52]

(d) the plaintiff's claims in respect of capacity for work;[53]

(e) the presence of a pre-existing condition;[54]

(f) what was revealed on examination;[55]

(g) the reporting on radiological investigations;[56] and

(h) its physical and psychiatric assessments and diagnoses.[57]

56 In argument, there was essentially no criticism of any of those aspects of the reasoning of the panel - nor could there have been.

57 From that point, the panel entered upon its 'Analysis and Reasoning', in respect of which there was criticism.

58 I have earlier extracted the reasoning leading up to what counsel for the plaintiff described as the 'sentinel paragraph'.[58] In that connection, the panel -

(a) specifically stated that it considered the information before it - including the plaintiff's 'history of injury, response to management undertaken, and current symptoms and limitations' as well as its examination findings;

(b) addressed the correct questions and noted the nature of the plaintiff's pre-injury duties;

(c) addressed the period 7 December 2018 to 7 February 2019, in respect of which it referred to features of the treatment and management of the plaintiff's condition at that time (including provision of the glove like splint and use of medications including Endone) and concluded that in that period he had been incapacitated for his pre-injury work; and

(d) noted, by contrast, the difference in the nature and treatment of the plaintiff's condition (including medication) since 22 February 2020.

59 While, as I have noted, counsel for the plaintiff was critical of the panel for taking account of the nature and treatment of the plaintiff's condition in the period in question, and submitted that its relevance 'isn't clear at all';[59] the relevance is, to me, quite plain: the nature and treatment of the plaintiff's condition in that latter period was in considerable contrast to that undertaken in the earlier period in respect of which the panel assessed that the plaintiff had been incapacitated for pre-injury work.

60 In that passage of reasoning, of course, the panel took specific account of the plaintiff's 'current reports of variable constant pain which is aggravated by cold weather and direct contact'.[60]

61 Contrary to the submissions of counsel for the plaintiff, I do not read the panel as concluding there, or elsewhere, that the plaintiff had an 'objectively quite disabling condition' or that contact with the finger would invariably cause him 'a significant aggravation of pain'.[61]

62 In particular, in respect of the latter submission, I note that the history actually recorded by the panel was that 'when he knocks the finger he can experience increased pain for a duration of two to three hours'.[62] That history does not suggest that the plaintiff would necessarily experience any aggravation of pain, let alone a 'significant aggravation of pain'.

63 In any event, the so-called 'sentinel paragraph' thereafter appears and reads as follows -

The Panel considered the nature of the Plaintiff's current physical condition in conjunction with the duties required in performing the Plaintiff's pre-injury work and concluded that the Plaintiff had the functional capacity [to] undertake the role of a casual labourer. Notwithstanding the Plaintiff's reports of left ring finger pain, and examination findings of reduced left ring finger distal interphalangeal joint range of motion the Panel also considered that the Plaintiff's condition has reached a point which would allow him to perform his pre-injury work on a reliable and consistent basis without aggravating his current physical symptoms and conditions. The Panel therefore concluded that during the period 22 February 2020 to the date of the Medical Panel's examination the Plaintiff did not and does not have and [sic: an] incapacity for his pre-injury work.[63]

64 In that paragraph, the panel adverted to several aspects of that which came before, including its reasoning concerning the 'current physical condition', the plaintiff's 'reports of left ring finger pain' and the 'examination findings'.

65 In that context, it seems to me to be plain - and, indeed, the panel stated quite directly - that by its evaluation the plaintiff's condition 'had reached a point which would allow him to perform his pre-injury work on a reliable and consistent basis'. In simple terms, as the panel said, notwithstanding the plaintiff's 'reports of finger pain', the panel considered him to have 'had the functional capacity [to] undertake the role of a casual labourer'.

66 Such a conclusion contains significant elements of expert evaluation and impression influenced by the various considerations identified or necessarily implicit[64] in the discussion that preceded it. In particular -

(a) the plaintiff's young age, quiescent pre-existing medical condition and the nature of his pre-injury duties, injury and clinical course prior to the period commencing on 22 February 2020;

(b) that in the earlier period considered, in the setting of surgical and other treatment including use of a glove like splint and taking medication comprising both Nurofen and Endone (an opioid analgesic), the plaintiff was assessed by the panel as having no capacity for pre-injury employment;

(c) the plaintiff's subsequent radiological position, history and the results of the panel's physical examination informing both the panel's diagnosis and the nature of the evident pain and restriction associated with the plaintiff's left ring finger, but not the remainder of his left hand or left upper limb;

(d) the fact that in the latter period concerned - covering roughly a year and a half - the plaintiff had implicitly not required the glove like splint, taken only Nurofen (not Endone) and evidently not been propelled to seek out any treatment or stronger medications (including Endone, which he had previously taken) in respect of his left ring finger pain; and

(e) in the circumstances, the plaintiff's left ring finger condition had remained stable over the period concerned, and plainly remained symptomatic, but, in the opinion of the panel, not to a degree such that he did not have the capacity to work as a casual labourer.

67 Contrary to the submissions advanced by counsel for the plaintiff, the pathway of reasoning to which I have referred does not betray any misunderstanding of the statutory test for 'incapacity' or impermissibly fail to 'reconcile' the panel's estimation of the plaintiff's capacity with his pre-injury position and duties. [65] As to the former, the panel referred to the plaintiff's 'functional capacity' to work 'on a reliable and consistent basis'. As to the latter, the panel referred in summary form to its own earlier and correct understanding of the nature of the plaintiff's pre-injury duties.

68 In my view, such a pathway of reasoning - stated both directly and by necessary implication - is quite compliant with the standard required of a panel of medical experts expressing their own estimation and opinion.

69 Even in respect of a trial judge, there are limits to the extent to which additional or more explicit reasoning can reasonably be either given or required in respect of such an ultimate conclusion. In the end, such an issue is one of value judgment, opinion and impression, in respect of which even the reasons of a trial judge may properly be relatively brief and non-exhaustive. [66] It is certainly not the position that because it might be possible to argue that more could have been written, that which was written must be taken to be legally inadequate.[67]

70 The latitude afforded to the reasoning of a medical panel is, of course, necessarily the greater for the reasons explained by the High Court in Wingfoot. In my view, what was written by the panel in the present instance was perfectly sufficient to satisfy its legal obligation.

71 That brings me to the plaintiff's central contention, directed to the words that thereafter appear, namely 'without aggravating his current physical symptoms and conditions'. As I have noted, such words must be read in the context of the whole of the panel's reasons and not over-zealously.

72 Bearing that in mind, I have noted that counsel for the plaintiff submitted that the words to which I have referred amounted to a 'finding' that the plaintiff was 'not going to have any pain at all if he goes back to work'.[68]

73 I cannot accept that the panel made any such 'finding'. In that regard -

(a) that is not what the panel in fact said;

(b) that which the panel did say must be considered in context;

(c) at various points prior to those words, the panel specifically referred to the plaintiff's diagnosis and current symptoms;

(d) those references did not at any point record that the plaintiff was asymptomatic;

(e) it follows that the more natural reading of the words concerned is not that the panel was saying that the plaintiff would not experience any pain or symptoms if he went back to work, but that he would continue to experience the pain and other symptoms that he now experiences, but not more or more intensely than presently, and not in a manner that would affect the underlying the condition or pathology of his left ring finger;

(f) such a reading does not require any unnatural reading of the words concerned and is much more consistent with the surrounding context; and

(g) so understood, the panel made no error.

74 Beyond such an interpretation of the panel's words, the written submissions for the plaintiff contended that the panel had 'failed to appreciate the distinction between an "incapacity for work" and an "incapacity to work"'.[69] In that regard, it was submitted that -

The plaintiff was clearly in a disadvantaged position as compared with others in the open market.[70]

75 The written submissions for the first defendant pointed to the inapposite nature of the authority relied upon by the plaintiff.[71] The issue was not addressed in the reply submissions of the plaintiff[72] or developed in any real detail in oral address.[73]

76 In my view, there is nothing of substance in the point -

(a) no such submission was made to the panel - indeed, the submission to the panel seems to have been that the plaintiff had a capacity for light duties but not pre-injury duties, and in that context there was no suggestion of relevant 'disadvantage';[74]

(b) it is not evident that the plaintiff advanced any such claim in the account he gave to the panel when he attended for examination - his position seems to have been that he could not work at all because of symptoms in his finger;[75] and

(c) in any event, the panel considered that the plaintiff's 'condition' was such that he could perform his pre-injury work 'on a reliable and consistent basis' and it is not otherwise apparent that there was any feature of the plaintiff or his finger that could be said to have 'clearly' put him at disadvantage in the 'open market'.

77 In the circumstances, it will be evident that the contention that the panel's reasons do not comply with the 'Wingfoot standard' must be rejected.

78 Equally, in my view, the determination of the panel is neither illogical, irrational, 'legally unreasonable' or unsupported by evidence. Even if all of those bases are available as grounds of judicial review, in the present instance I could not accept that any of them are made out.

79 The plaintiff's claim of jurisdictional error must be rejected. The proceeding will be dismissed.

[1] In argument, counsel for the plaintiff confirmed that the fracture was in the joint nearest the end of the plaintiff's left ring finger: Transcript 'T' 3.

[5] And separately by the psychiatrist on 21 May 2021.

[13] The panel later recorded that the plaintiff had said that the condition 'has not stopped him doing anything, and he tries not to think about it too much': CB61.

[25] T34. See also, T4, T31 and T78-79.

[29] T28. In that regard, in argument counsel relied, in particular, upon Zapparoni v Victorian WorkCover Authority [2022] VSC 463 and also referred to CD v Central Gippsland Health Service [2022] VSC 462 and Hartill-Law v Stratford (VIC 1) Pty Ltd & Ors [2022] VSC 472.

[30] T24-25. As to the second of the two points, counsel sought to suggest that the panel either did or should have taken account of the asserted fact that the condition of the plaintiff had been 'unchanged since some time after the second surgery in January 2019'. I do not accept that submission: plainly the panel was referring throughout to the history given by the plaintiff of unchanged symptoms after the third surgery in July 2019.

[35] T61-62. I should say that the approach of counsel was, of course, perfectly appropriate in an application for judicial review.

[36] Sidiqi v Kotsios [2021] VSCA 187, [30]-[31] ('Sidiqi').

[37] Particularly, Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot') and Sidiqi (n 36).

[40] Cf., Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252 [29].

[41] Cf., Acir v Frosster Pty Ltd [2009] VSC 454 [165].

[42] As to which, however, see Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848.

[44] CB62. Albeit that the plaintiff seems also to have said that he had been unsuccessfully applying for 'suitable employment, such as work as a forklift driver': CB57. Further, the position taken in written submissions to the panel seems to have been not that the plaintiff could not work, but that he was 'only able to perform light duties, not pre-injury duties': CB91-92.

[49] Wingfoot (n 37) [47]-[48]; Sidiqi (n 36) [33].

[64] Cf., Wingfoot (n 37) [61]-[63]; Sidiqi (n 36) [97]-[102].

[66] Murray Valley Goulburn Co-op Co Ltd v Filliponi [2012] VSCA 230 [28]. See also, Woolworths Ltd v Warfe [2013] VSCA 22 [129]-[131].

[67] See, in a different context, Whisprun Pty Ltd v Dixon [2003] HCA 48; (2000) 200 ALR 447 [62].

[68] T34. See also, T4, T31 and T78-79.

[69] In that connection, the plaintiff referred to Ball v Hunt [1912] UKLawRpAC 29; [1912] AC 496. Cf., McCain Foods (Aust) Pty Ltd v Gibbins (unreported, Ashley J, 2 June 1994) and Marescuk v Don Smallgoods Company Pty Ltd [2000] VSC 120 [18].