Plaintiff v First Defendant

2 In April 2018, he was working at an abattoir outside Moe when he suffered a left volar forearm injury in an incident involving a knife ('2018 injury'). On 22 December 2021, a medical panel assessed the Worker as having suffered a 7% whole person impairment resulting from the 'accepted left wrist relevant to claimed left forearm and scarring injury' ('2021 panel').

3 On 2 October 2020, the Worker was in employment with the plaintiff ('Employer') as a handyman/labourer. He sustained a dorsal left forearm injury when a drop saw came into contact with his arm ('2020 injury'). There was a gaping laceration and extensive damage to the extensor muscle tendon unit as well as the superficial radial nerve. The Worker underwent surgery the following day and subsequently attended the outpatient clinic.

4 The Worker had difficulty when he returned to employment. He also seems to have had prior mental health and substance abuse difficulties, although they intensified after the 2020 injury; particularly after the Worker was further injured and ceased work in late April 2021.

5 Although the 2021 panel was directed to the 2018 injury, it took a history that included reference to the 2020 injury (as it was required to disregard unrelated impairments). In that connection, the 2021 panel recorded -

The worker continues to experience a constant, stinging, tight and aching pain on the anterior aspect of his forearm, which increase[s] on movement of his left wrist, and becomes throbbing and spreads to his left elbow and shoulder after repetitive use of his left hand.

Since the September [sic: October] 2020 injury, he has also continued to experience a constant, "like on fire" pain on the posterior aspect of his forearm, which spreads to the back of his left wrist and the back of his left hand, and numbness on the dorsal aspect of his left hand on the thumb side, including the thumb and index finger.

The claimant has not been able to fully extend his left wrist since the incident and operative treatment in 2018 but flexion of the wrist is normal.

Since the second injury in September [sic: October] 2020, he has been unable to extend his left middle finger but the left wrist movements had remained unchanged.[1]

6 In respect of its examination, the 2021 panel recorded -

... a 17cm, Z-shaped, non-tender, non-adherent and non-hypertrophic scar on the dorsal aspect of the left forearm, related to the subsequent injury of September [sic: October] 2020. Numbness was reported in the anatomical distribution of the radial sensory nerve, extending from the proximal rim of the Z-shaped scar distally.

...

The range of motion of the left wrist was restricted, particularly in extension and ulnar deviation, which the Panel considered was consistent with scarring of the flexor carpi radialis tendon due to the claimed injury. ... The range of motion of the fingers showed full extension of all digits, with independent extension of the index finger but some difficulty extending the middle finger independently. Flexion of all digits was normal. ...[2]

7 Later, in respect of unrelated impairments, the 2021 panel expressed its opinion that -

... the subsequent dorsal forearm injury involved transection of extensor tendons and the sensory branch of the radial nerve. The Panel considered this injury did not involve the wrist range of movements as flexion of the left wrist was normal. The Panel considered the measured restriction of extension and ulnar deviation of the left wrist and left forearm pronation is a direct result of the shortening/scarring of the forearm tendons due to the accepted injury and not related to the subsequent dorsal forearm injury. The radial nerve transection is a direct result of the subsequent dorsal forearm injury and not in any way related to the accepted injury.[3]

8 In light of the above, the 2021 panel did not disregard any impairment for the 2020 injury.

9 On 27 April 2021, the Worker suffered a left index finger injury while using a circular saw ('2021 injury'). On 2 October 2023, a medical panel assessed the Worker as having suffered, among other things, a 3% whole person impairment resulting from the accepted left finger and scarring injury.

10 In the context described, on 15 December 2022, the Worker claimed an impairment benefit in respect of the 2020 injury. That led to him being assessed by Associate Professor Romas ('A/Prof Romas'), consultant rheumatologist, on 27 February 2023. A/Prof Romas assessed impairment in respect of both the 2020 injury and the 2021 injury.

11 In a report of the same date, A/Prof Romas referred to much of the history outlined above and thereafter recorded, relevantly -

1.3 Current Complaints/ Symptoms

The left dorsal forearm scarring does not break down and does not require continuous treatment. He does not in fact, describe any abnormal finger motion, triggering or restriction since the relevant injuries. Hand closure is normal. He can open and close the left hand. The left index finger seems normal. He describes neuropathic pain in the distribution of the left superficial sensory radial nerve. The left wrist is stiff, he cannot fully extend the left wrist and has a weakened grip but these problems reflect the injury sustained in 2018. He can look after himself with some difficulty. He is not working.

1.4 Medications and Treatment

Panadol, Nurofen, Seroquel, pregabalin. Sublingual buprenorphine/naloxone.

...

2.0 Clinical Examination

With regard to the Left upper extremity: at the Left wrist, he has findings consistent with contracture of the flexor tendons (from the 2018 injury) with reduced wrist extension 30° and normal flexion of 60°. Radial deviation 25° and ulnar deviation 20°. I find pronation and supination to be normal (90° and 80° respectively). Hand closure and finger extension normal. There is no abnormality of the range of motion of the left digits including the index finger. There is no intrinsic tightness or triggering.

There is a high-grade sensory loss in the distribution of the left superficial radial nerve, tantamount to "minor causalgia". There are no clinical indicators of CRPS.

Grip strength measures 40 kg in the right hand and 15 kg in the left hand with rapid decay on repetitive testing and exchange grip testing demonstrates marked variability as well as decay. This indicates grip strength is not a valid tool for impairment assessment (in any event, the grip strength does not reflect the consequences of the relevant injuries under the assessments made here).

With regard to the scarring, there is barely visible minor scarring of the left index finger (2021 injury). There is a 16 cm Z-shaped scar at the dorsal aspect of the left forearm (September [sic: October] 2020 injury). This is mildly thickened but not tender or tethered. There is also a 10 cm linear scar on the volar surface of the forearm extending as far as the wrist (2018 injury). The scar is not tender, tethered or thickened.[4]

12 In respect of the 2020 injury, A/Prof Romas referred to an extensive dorsal forearm scar and 'minor causalgia arising as a consequence of high-grade injury to the superficial radial nerve'. A/Prof Romas also referred to 'mildly abnormal wrist motion' following the 2018 injury, which he disregarded. He later indicated that there was no difficulty in assessing each impairment specifically.

13 In respect of the 2020 injury, A/Prof Romas considered there to be 'no assessable [r]egional impairment for loss of motion at the elbow, wrist or hand as a consequence of this injury'.[5] In that connection, he assessed a 4% peripheral nerve impairment for 'minor causalgia involving the left superficial radial sensory nerve', which he translated into a 2% impairment of the whole person. A/Prof Romas assessed a further 2% whole person impairment in respect of scarring and came to a total of 4%. In respect of the 2021 injury, A/Prof Romas assessed a whole person impairment of 0%.[6]

14 Based upon the assessment of A/Prof Romas, by letter dated 27 March 2023 the WorkCover Agent, Gallagher Bassett, notified the Worker that he had a total payable entitlement of '$0.00'. The letter advised the Worker that if he disagreed with that assessment he would be referred to a medical panel which would 'form its opinion on your degree of permanent impairment'.[7]

15 On 16 June 2023, the Worker disputed the 'physical impairment', as well as 'the calculation of the impairment benefit'.[8]

16 A referral to a medical panel was lodged on 22 June 2023 and the panel came to be comprised by two plastic surgeons ('Panel') who examined the Worker on 15 September 2023.

17 The Panel was provided with a collection of clinical and other documents, including the opinion and reasons of the 2021 panel and the report of A/Prof Romas. Neither party made written submissions to the Panel.

18 The Panel provided its certificate of opinion on 1 November 2023; which states, relevantly -

Question i) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s assessed in accordance with Division 4 of Part 2?

Answer: In the Panel's opinion, the worker has a 19% whole-person impairment resulting from the accepted Left Forearm laceration and Scarring injury when assessed in accordance with the Act. The degree of impairment is permanent.

The degree of impairment includes a 17% whole-person` impairment assessed in accordance with Chapter Three of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition).[9]

19 It will be apparent that while A/Prof Romas had assessed the Worker's whole person impairment relating to the 2020 injury to be 4%, the Panel assessed it to be 19%.

20 The Panel's certificate of opinion was accompanied by detailed written reasons.

21 The Panel relevantly commenced by stating that it formed its opinion with reference to the documents provided as well as the history given by the Worker and its examination findings.

22 The Panel then referred to the accepted injuries and the fact that the Worker had 'disputed the physical assessment' of A/Prof Romas, which explained the referral.

23 The Panel referred to the opinion of the 2021 panel concerning the 2018 injury. In particular, the Panel noted the opinion of the 2021 panel that the Worker has a 7% whole person impairment.

24 The Panel referred to the circumstances of the 2020 injury and the fact that the Worker had been taken to hospital and undergone surgery. In that regard -

The Panel noted from the referral material the operation report dated 3 October 2020 that described the repair of extensor tendons to the forearm, wrist, index finger, middle finger, ring finger, and little finger. In addition, branches of the superficial radial nerve in the forearm were repaired.

The worker said that he was followed up in the hospital's outpatient department and underwent extensive hand therapy rehabilitation.[10]

25 The Panel referred to the return of the worker to employment in early 2021, and the fact that he had sustained the 2021 injury and not thereafter returned to work. The Panel noted that the Worker referred to the 2018 injury and 2021 injury as well as 'psychological issues that included PTSD and substance abuse' as well as regular medications including Pregabalin, Seroquel, Suboxone, Sertraline, Paracetamol, and anti-inflammatory medication.[11]

26 Under the heading 'Physical Symptoms', the Panel recorded, relevantly -

The worker told the Panel that his left wrist felt "knotted". He said his fingers did not move normally, particularly through the first knuckle joints (metacarpophalangeal joint) and the back of the wrist. He said he had shooting, numbness, and tight pain in the left forearm that moved up and down his arm. He said that his wrist movement had been significantly worsened by this injury. He said that he had a lack of sensation and pain over the back of his hand and the back of his thumb. He said that the altered sensation interfered with and prevented activities such as boxing and domestic chores. He said that even light clothes material put pressure on the left forearm area and caused an unusual and uncomfortable sensation.[12]

27 The Panel stated that the Worker had said that Lyrica medication (Pregabalin), used for nerve symptoms, 'helped significantly'.[13]

28 The Panel referred to its examination of the worker's forearm, elbow, wrist, fingers, and thumb. In that regard, the Panel commenced by noting that there was no small muscle wasting and that there was normal vascular supply and colour. The Panel thereafter recorded -

On physical examination, the Panel noted a V-shaped scar on the dorsal aspect of the distal half of the forearm that measured 11 cm in total length. The Panel noted indentation of the scarring but no evidence of ulceration. The Panel noted a positive Tinel's sign over the area of the superficial radial nerve 6 cm proximal to the wrist joint, in line with the path of the superficial radial nerve branches. The Panel noted reduced sensation in the distribution of the superficial radial nerve over the hand and thumb dorsum.

The Panel noted prominent extensive tendons and bowstringing across the dorsum of the wrist secondary to the division of the extensor retinaculum during surgery, and a tight repair of the extensor tendons.

Reduced ranges of motion of the left wrist, elbow, fingers, and thumb were measured with a goniometer (noted below).[14]

29 The Panel noted that grip strength had been 'widely variable' and therefore unsuitable for impairment assessment purposes.

The Panel concluded that the worker was suffering from a reduced range of movement of the left elbow, wrist, thumb, index finger, middle finger, ring finger, and little finger, neuroma of the superficial radial nerve branches, and scarring of the left forearm, following a traumatic laceration involving the extensor tendons of the left forearm, hand and thumb and superficial radial nerve branches, treated surgically, relevant to the accepted physical injuries.[15]

31 The Panel considered that the condition of the Worker had stabilised, and thereafter conducted a detailed impairment assessment which involved assessing ranges of motion and impairment of the Worker's left thumb, left index finger, left middle finger, left ring finger, left little finger, left wrist and left elbow.[16]

32 Ultimately, with reference to the combined values chart, the panel considered the estimates to result in a 26% whole person impairment relevant to the accepted physical injuries.[17]

33 As required, the Panel then considered impairments from pre-existing or subsequent unrelated causes or injuries. In that connection, the Panel had regard to the 2018 injury, 2021 panel opinion and 2021 injury and explained the unrelated impairments which it identified and disregarded.[18]

34 In respect of the opinion and assessments of A/Prof Romas, the Panel stated -

The Panel noted the medical report of Associate Professor Evange Romas dated 27 February 2023 in which he assessed a 4% whole person impairment resulting from the accepted physical injuries without identifying any impairment for reduced range of movement of the left wrist, fingers of the left hand, left thumb and left elbow. The Panel's higher assessment of a 19% whole person impairment was formed based on the Panel's clinical experience and its own examination of the worker on 15 September 2023, and the Panel considers that the assessment of a 19% whole person impairment accurately reflects the impairment when assessed on that date as outlined above, and in accordance with the instructions in the Guides.[19]

35 The Employer commenced proceedings by originating motion seeking judicial review of the panel's opinion.

36 At trial, the Employer relied upon an amended originating motion dated 31 May 2024 (but filed on 4 July 2024), which states, relevantly -

1. The Panel's Reasons for Opinion (Reasons) relevantly record that the third defendant "told the Panel that his left wrist felt 'knotted'. He said his fingers did not move normally, particularly through the first knuckle joints...and the back of the wrist... He said that his wrist movement has been significantly worsened by this injury" (emphasis added).
2. The Reasons set out that the Panel arrived at the First Answer by conducting (among other things) ... Range of Motion assessments (ROM Assessments) for the left wrist, elbow, fingers and thumb. The ROM Assessments resulted in the following impairment results:

(a) Left hand: 17% upper extremity impairment (calculated by reference to hand impairments in each of the left digits);

(b) Left wrist: 18% upper extremity impairment; and

(c) Left elbow: 3% upper extremity impairment.

...

1. The Panel was also bound to take into account, to the requisite degree (i.e., give genuine consideration to), certain matters, including (but not limited to):

(a) the fact that, ... the third defendant had not complained of, or sought treatment for, range of motion impairment in the digits of the left hand after December 2021 ...;

(b) on clinical examination in February 2023 (just six months before the Panel's examination), A/Prof Romas had positively observed that "there is no abnormality of the range of motion of the left digits including the index finger";

(c) prior to examination by the Panel, restriction in the wrist and elbow had been consistently attributed to the 2018 injury (as set out above); furthermore, the worker had told the 2021 medical panel (in relation to the 2018 Injury) that his wrist left wrist movements "remained unchanged" after the 2020 Injury;

(d) the 2021 medical panel's range of motion assessments in the wrist and elbow were materially lower than the equivalent assessments conducted by the Panel.[20]

37 In that connection, the amended originating motion states the following grounds of review -

Ground 1: Procedural Fairness Denied

1. In determining the First Answer, the Panel failed to afford the plaintiff procedural fairness, including by:

(a) failing to provide the plaintiff with notice of the matters set out at paragraph 8; and/or

(b) failing to provide the plaintiff with notice that, having applied the ROM Assessments listed in paragraph 9, including as a result of the matters set out in paragraph 8, the results of those assessments would materially contribute to the First Answer as set out at paragraph 10;

prior to the Panel reaching its Opinion.

1. Each denial of procedural fairness at paragraph ... 19 was a material error. As a result, the Panel fell into jurisdictional error.

Ground 2: Failure to Properly Consider a Mandatory Relevant Consideration

1. In determining the First Answer, the Panel failed to take into account, to the requisite degree (i.e., give genuine consideration to), ... the matters set out at paragraph 16, in circumstances where the Panel was bound to do so. That error was material. As a result, the Panel fell into jurisdictional error.

Ground 2A: Failure to assess the third defendant in accordance with the Guides

1. Further and alternatively, by failing to consider whether the ROM Assessments were "concordant with ...other medical evidence" and/or to "conduct further clinical evaluations to resolve the disparities between" the features of the medical records set out in paragraph 16 above and its own examination of the worker, the Panel failed to assess the worker's impairment in accordance with the Guides, thereby falling into jurisdictional error and/or error of law.

Ground 3: Error of Law on the Face of the Record (Inadequate Reasons)

1. Without limitation, the Reasons fail to adequately explain how the Panel came to the conclusion that the restrictions evident in the ROM Assessments resulted from the "accepted Left Forearm laceration and Scarring injury" (i.e., the October 2020 Injury) in ... light of the matters set out at paragraph 16.
2. In such circumstances, the Reasons fail to explain the Panel's actual path of reasoning in sufficient detail to enable the Court to see whether the Opinion does or does not involve any error of law.
3. As a result, there is an error of law disclosed on the face of the record.[21]

38 The Employer seeks orders in the nature of Certiorari, quashing the Panel's opinion, and Mandamus, remitting the medical questions to be re-determined by a differently constituted panel.

39 The Employer and Worker each filed and served detailed written outlines of submissions and, in the case of the Employer, a written reply.[22]

40 At trial, Counsel for the Employer confirmed that the 'real thrust' was 'the procedural fairness point ... in ground 1'.[23] In that connection, Counsel identified and referred to documents in the material which, it was submitted, revealed the 'arc' or 'trajectory' of the Worker's condition 'over time'.[24] In particular, Counsel went to -

(a) general practitioner's clinical note dated 1 July 2019;[25]

(b) report of Dr Fish dated 16 July 2020;[26]

(c) hand therapy referral form dated 8 October 2020;[27]

(d) plastics outpatient referral form dated 8 October 2020;[28]

(e) hand therapy initial assessment notes dated 8 October 2020;[29]

(f) plastics clinic outpatient notes dated 19 October 2020;[30]

(g) plastics clinic outpatient notes dated 17 November 2020;[31]

(h) opinion and reasons of a medical panel dated 14 December 2020 (which refer to an examination of the Worker conducted on 1 December 2020);[32]

(i) physiotherapy management plan dated 13 January 2020 (which includes 'scores' apparently recorded on 9 December 2020);[33]

(j) plastics surgery clinic outpatient note dated 18 December 2020;[34]

(k) plastics clinic outpatient note dated 14 April 2021;[35]

(l) emergency department doctor note dated 27 April 2021;[36]

(m) plastics clinic outpatient note dated 29 April 2021;[37]

(n) general practitioner's clinical note dated 30 August 2021;[38]

(o) general practitioner's clinical note dated 10 October 2022;[39]

(p) opinion and reasons of 2021 panel (which refer to an examination of the Worker on 14 December 2021);[40] and

(q) report of A/Prof Romas dated 27 February 2023.[41]

41 Counsel for the Employer acknowledged that the documents constituted a 'small subset' of the material before the Panel, but said that the other material would not assist.[42]

42 In the course of that exercise, Counsel for the Employer submitted that -

There's a consistent picture of improvement in range of motion in the digits of the left hand over time. Significantly restricted movement in the months following what is quite significant surgery, and then over time, a lessening of that to the point [where] we're in December 2021, the ongoing restriction is fairly limited, and it's limited to a single digit [of the left hand].[43]

43 After referring to the report of A/Prof Romas, Counsel submitted, essentially in summary -

... by ... February 2023, that is some seven months before the subject panel sees the worker, he's receiving no treatment in the fingers or the hand generally; he's got no complaint of ongoing finger restriction and there's no ongoing finger restriction observable on clinical examination. That's the position in the fingers.

In the wrist, we've got consistent normal flexion of 60 degrees; reduced extension of 30; the worker says that the wrist restriction was not made worse by the 2020 injury; and then consistent with that, and perhaps more importantly, both the 2021 panel and Associate Professor Romas are satisfied that the ongoing restriction on extension in the wrist relates to the 2018 injury.[44]

44 Counsel for the Employer described the documents - particularly, the reasons of the 2021 panel and report of A/Prof Romas - as establishing the 'parameters' of the referral.[45] In that regard, Counsel picked up on the language appearing in relevant authority.[46]

45 By way of contrast, Counsel for the Employer highlighted the history given by the Worker to the Panel, as well as the range of movement and associated assessments recorded by the Panel, and submitted that -

(a) such information came 'out of the blue', in that -

... the plaintiff is now for the first time saying that the wrist is more restricted as a result of the 2020 injury and is now for the first time in a year or more is complaining about problems in the fingers ... which were not mentioned seven months earlier.[47]

(b) such was 'a significant departure from the parameters ... at the time of the referral';[48]

(c) the Employer should have been notified and asked to comment;[49] and

(d) consequently, the Employer had been denied procedural fairness.[50]

46 For their part, Counsel for the Worker broadly emphasised the nature of the injury suffered and surgical procedure performed, and submitted that the information elicited by the Panel was 'not new' and 'not something that could not reasonably have been anticipated'.[51]

47 In that connection, Counsel referred to several of the documents referred to by Counsel for the Employer[52] and submitted -

So we say it's not a situation ... where it's a no evidence case. This is situation where you have a consistent history ... of complaints with wrist flexion problems, with issues with regard to the fingers, thereafter, noting the 'tight repair'. And to suggest that this was something that arose out of the blue, it doesn't fall into those out of the blue or truly new cases, we say.[53]

48 Counsel for the Worker also submitted that the Panel was not required to advise the parties of 'its preliminary views' and that, in any event, any breach of procedural fairness made no material difference.[54]

49 Both parties made only fleeting reference to any of the other grounds of review.

50 In Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot'), the High Court identified the function and obligations of a medical panel as follows -

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[55]

51 In respect of the obligation of a medical panel to afford procedural fairness, both parties referred directly or indirectly to the reasons of Forbes J in Akbari v Victorian WorkCover Authority & Ors[56] -

1. The parties were agreed that a medical panel was required to afford natural justice. Natural justice includes a reasonable opportunity for a party to be heard, including an opportunity to know the case to be made against that party and an opportunity to respond to it. In the context of a medical panel, this means that where a panel proposes to take into account certain matters in reaching its opinion, including by the application of its own expertise to form that opinion, it must provide a party with a fair opportunity to be heard on a proposed adverse conclusion. The requirement to provide procedural fairness is not met where the party lacks the ability to make submissions or provide expert opinion addressing the proposed conclusion.
2. The parameters of the dispute to be decided are set by the pleadings, submissions and medical reports provided. If a panel intends to treat as determinative a matter falling outside these parameters, or in the words of Cavanough J [in Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248] a matter that 'came out of the blue', it must give the parties notice of that matter. The communication of matters relied on by a Panel in exercising its own expertise will in every case be a matter of fact and degree.
3. Examples include a psychiatric diagnosis of 'factitious disorder' which was unexpected in the light of existing psychiatric diagnoses and on its face inconsistent with the medical criteria for such a diagnosis; a new psychiatric diagnosis of an undifferentiated somatoform disorder where a psychological cause for unexplained pain was an issue; opioid use as a contributing incapacity where the agreed list of prescriptions did not make reference to any opioids being used; a finding that mood symptoms, irritability and other symptoms were related to menopause and not psychological symptoms consequent on a work injury; a finding that psychiatric conditions, to be assessed for the degree of impairment, were in remission.
4. [In Vegco Pty Ltd v Gibbons [2008] VSC 363] Kyrou J summarised a medical panel's obligation to provide procedural fairness in this way:

A Medical Panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions. The Medical Panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the Medical Panel, a new medical report, evidence that had not been seen previously by the worker and a matter within the panel's own expertise and does not prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.

1. Natural justice entitles a party affected by a decision to put information before a decision-maker addressing matters that fall outside the parameters of the dispute [in Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, Northrop, Miles and French JJ stated]:

That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected, any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental process or provisional views to comment before making the decision in question.

52 That summary reflects earlier (and subsequent) authority, including Court of Appeal authority.[57] In particular, in Wagstaff Cranbourne Pty Ltd v Hashimi, Beach, Kyrou and Kaye JJA stated -

A medical panel does not afford a party a reasonable opportunity to be heard where it reaches an adverse opinion on a matter which the party did not address because it could not reasonably have been anticipated that the medical panel might reach that opinion.[58]

53 In that instance, a medical panel determined that a worker, Mr Hashimi, had suffered an adjustment disorder as a consequence of his traumatic experiences as a refugee; not in employment. However, with reference to the parties' pleadings and submissions, as well as the medical reports provided to the panel, the Court of Appeal observed -

... no party or medical practitioner [had] suggested that there was a causal relationship between any injury that Mr Hashimi suffered and his traumatic experiences as a refugee.[59]

It can be seen that it was not part of Wagstaff's case before the Panel that Mr Hashimi suffered from an adjustment disorder which was causally related to his experiences as a refugee and that no medical report suggested such a causal relationship. In these circumstances, there was no issue before the Panel as to whether there was such a causal relationship. Accordingly, there was no basis on which Mr Hashimi could have reasonably anticipated that the Panel might find such a causal relationship and thus there was no reason for him to address the issue.[60]

55 It follows that their Honours confirmed the determination of the primary judge that Mr Hashimi had been denied procedural fairness.

56 In another recent case, Noureddine v Adlard ('Noureddine'),[61] the worker, Mr Noureddine, suffered a stroke while entering his car at work. A medical panel considered whether work had been a significant contributing cause of the stroke. The panel answered the question 'no' and, in its reasons, referred to 'new published evidence' that had not been drawn to the attention of the parties or referred to in any of the medical material put before the panel.

57 In that instance, Walker JA accepted the contention of the worker that the panel had departed from a common assumption or previously accepted position between the parties. In that regard, her Honour identified the ultimate question as being 'whether it was unfair that the parties did not have a chance to address the research or new material'.[62]

58 Her Honour thereafter concluded that the failure of the panel to afford the parties such an opportunity constituted a breach of procedural fairness.

59 As to materiality, the question is whether the decision could realistically have been different had there been no error. That threshold is not demanding or onerous.[63]

60 In light of the manner in which the proceeding came to be argued, it became apparent that ground 1 was the real point in issue; that is, whether the Employer was denied procedural fairness. Grounds 2 and 2A presented as no more than auxiliary to the argument in respect of ground 1. As to ground 3, there was no real resistance to the observation that this is not a 'reasons case'.[64]

61 In respect of ground 1, the present case is unlike some of the others to which I have referred. At its root, the issue for the Panel was the condition and any degree of physical impairment of the Worker's left forearm, wrist and hand; and that is the issue that the Panel relevantly determined.

62 In that regard, it is not a case where, like in Wagstaff Cranbourne, there was no issue before the Panel that any adjustment disorder was caused by the experiences of Mr Hashimi as a refugee; nor is it a case like Noureddine, in which the Panel determined the issue by reference to 'new evidence' that was contrary to a common assumption made between the parties.

63 The present case is, perhaps, closer to those in which a worker reveals 'new' information during an examination and the panel relies upon it to reach a diagnosis or opinion that could not reasonably have been anticipated.[65]

64 The authorities to which I have referred make it clear that it is important to consider whether the party had notice of the particular issue and could reasonably have anticipated the development or opinion concerned. Allowing, of course, for the latitude that must be afforded to a medical panel in performing its statutory function, a party will have been denied procedural fairness if, in the language of Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman & Ors, the development or opinion came 'out of the blue'.[66]

65 As I have noted, in the present instance, the Employer developed submissions to the effect that the history the Worker gave to the Panel and the assessments obtained by the Panel members on clinical examination, together with the Panel's ultimate opinion, fell outside the 'parameters' of the dispute at the time of referral.

66 For the most part, as I have noted, those 'parameters' were said by the Employer to be reflected in, or defined by, the histories and assessments obtained by the 2021 panel (in December 2021) and by A/Prof Romas (in February 2023). The Employer's point was that those histories and assessments were in 'stark contrast' to those obtained by the Panel in September 2023. To some extent, it was suggested that the Worker may have 'manipulated the result'.

67 In respect of the latter contention, there was no suggestion by the Panel, nor any other clinician in the material, that the Worker was unreliable on account of perceived exaggeration of his presentation or symptoms (whether consciously or unconsciously). It follows that I do not accept that the present circumstances could give rise to any properly based suspicion that the Worker 'manipulated the result'.

68 Further, the Employer's submission to the effect that the relevant 'parameters' should be taken to be defined by the history taken, assessments by and opinions of the 2021 panel and A/Prof Romas, should be approached with caution. In circumstances of the present kind, any rigid embrace of such a proposition could lead, rather mechanically, to a conclusion that the Panel denied procedural fairness to the Employer merely because its own history, assessments and opinion were in some way different. A proposition of that kind is plainly unsound.

69 It follows that the answer to the present question must be affected by questions of fact and degree.[67] Ultimately, the Employer will not be found to have suffered a material denial of procedural fairness unless the history, assessments and/or opinion of the Panel can be said to have come 'out of the blue' in the sense discussed.

70 In that context, it is not in dispute that the Worker suffered a very severe injury on 2 October 2020; which, for the most part, involved severance of his extensor tendons and superficial radial nerve when a drop saw came into contact with the back of his left forearm.

71 The surgery performed the following day - to re-attach and otherwise treat those tendons and the superficial radial nerve - was plainly very significant.

72 In the course of argument it was essentially common ground that the nature of the injury was such that the Worker might ordinarily be expected to have had problems with flexion in the aftermath of surgery.[68]

73 The 'subset' of the material identified by the Employer traced aspects of the Worker's treatment and assessment after surgery, particularly in the outpatient clinic.

74 As early as December 2020, however, the material in the 'subset' discloses a degree of inconsistency. In particular -

(a) a physiotherapy management plan, first completed on 9 December 2020, records values consistent with what Counsel for the Employer described as 'normal' wrist flexion;[69]

(b) by contrast, a little over a week later, on 18 December 2020, an outpatient clinic note records persistent numbness in respect of the superficial radial nerve which 'may not recover' together with an inability to flex the wrist past neutral.[70]

75 In argument, Counsel for the Employer said that it was 'hard to know what to make of' the physiotherapy management plan.[71] At the very least, however, the records are made at roughly the same time and are plainly quite different in respect of the flexion of the left wrist.

76 In any event, the content of the next note from the outpatient clinic - in respect of an attendance on 14 April 2021 - is similar to that of 18 December 2020. In particular, the note of 14 April 2021 refers to impaired sensation in the superficial radial nerve and a 'stiff wrist'.[72] It also records that -

(a) the Worker had resumed seeing a private hand therapist;[73]

(b) he felt that he had 'good function' and was 'working well around his wrist' (in that regard, at that point, he was back at work);

(c) there had been 'minimal progression' in the resolution of the impairment in the sensation of the superficial radial nerve;

(d) he was 'still slowly improving';

(e) he should '[c]ontinue with hand therapy';

(f) he should return for review in three months; and

(g) he was not currently seeking 'exploration/tenolysis'.

77 The prospect of tenolysis had been noted by the outpatient clinic on 18 December 2020.[74] Tenolysis is a surgical procedure directed at increasing the range of motion and flexion in the fingers.

78 The Worker's attendance at the outpatient clinic on 14 April 2021 appears to have been the last directed to the 2020 injury.

79 The Worker suffered the 2021 injury shortly thereafter, on 27 April 2021, and attended Latrobe Regional Hospital, including its outpatient clinic, in respect of that injury. However, the single record of the outpatient clinic in respect of the 2021 injury includes no reference of any present significance to the 2020 injury.

80 I should say that the emergency department record of 27 April 2021 does refer to 'clinical examination', seemingly of the 'left hand', and notes '[a]ctive flexion and extension achieved to all joints with normal ROM and power'. However, the other entries appearing in respect of that examination are directed to only the index finger (which was the finger injured in the incident on that day).[75] In the circumstances, it is unlikely that the observation to which I have referred should be read as referring to all of the fingers of the left hand.

81 In any event, as I have earlier noted, the Worker did not return to work after that incident and did not further attend upon the outpatient clinic in respect of the 2020 injury.

82 In those circumstances, as I have noted, the Employer broadly sought to suggest that the absence of any such attendances was indicative of a 'consistent picture of improvement' if not resolution of the Worker's symptoms relating to the 2020 injury.[76]

83 Any such suggestion seems to me to be broadly contrary to the circumstances apparent in April 2021. In that regard -

(a) the clinical note of an attendance by the Worker upon a general practitioner on 9 April 2021, which was immediately prior to the Worker's final relevant session at the outpatient clinic, suggests that he had ongoing wrist pain with which Lyrica had not helped and that he had been prescribed the powerful anti-inflammatory and painkiller, Mobic;[77] and

(b) as I have noted, at the outpatient clinic on 14 April 2021, the Worker continued to complain of a 'stiff wrist' and perhaps other symptoms, the prospect of tenolysis had been under contemplation and he was expected for review in three months' time;

(c) the Worker was injured again on 27 April 2021, although that injury involved a laceration of the left index finger and does not seem to have been particularly serious; and

(d) nonetheless, the Worker ceased working and seems not to have returned.

84 Critically, in that period, the general practitioners' notes record that the Worker was attempting to withdraw from oxycodone and seeking a prescription for saboxone - a medication for the treatment of opioid addiction; which the general practitioner evidently could not prescribe. There had also been an earlier note referring to withdrawal problems in January 2021, and a referral to a drug and alcohol program at that time, but the extensive nature of the note taken in mid-to-late April 2021 and its content suggests that the Worker had come to be seriously affected by problems associated with substance abuse by that time.[78]

85 In the months that followed, the notes of the general practitioners record that -

(a) the Worker became 'very distressed';

(b) he was drinking and buying oxycodone 'from [the] street';

(c) a mental health plan was completed;

(d) he was suffering with anxiety, depression and panic attacks;

(e) his sleep was 'not good';

(f) he was addicted to cannabis;

(g) his mood was 'flat';

(h) he always felt scared, not happy and had relationship problems; and

(i) he consulted several psychologists, a counsellor and a mental health nurse.[79]

86 Even though the Worker's substance abuse and associated mental health problems appear to have become very pressing, and in that time he was evidently not working (so, as a manual worker, it is not likely that there could have been the same regularity in any need to use his left arm or hand), the notes of the general practitioners continue to include references to the 2020 injury. In particular -

(a) on 25 June 2021, a general practitioner noted '[l]eft wrist injury due to the use of a fault[y] saw at work Oct last year';[80]

(b) on 23 July 2021, a general practitioner noted 'work place accident [in] October last year' and 'left forearm injury';[81]

(c) on 30 August 2021, a general practitioner noted 'cant [sic: can't] flex wrist';[82] and

(d) on 17 September 2021, a general practitioner noted 'he doest [sic: doesn't] think that he can go back to same work that he used to do, due to injury to left forearm'.[83]

87 The fact that the 2020 injury continued to be noted by the general practitioners during that period does not suggest that it had become irrelevant or that his symptoms had resolved or were in the process of fully resolving. It seems to me to be most likely that, in circumstances where the Worker was not working and his substance abuse and mental health symptoms were plainly very pressing, his symptoms in respect of the 2020 injury remained, but very much took a back seat.

88 In the context described, it is hardly surprising that the Worker did not return for review at the outpatient clinic in mid-2021. In that regard, I would not have thought that the fact that he did not return for review should be taken to suggest that he did not need to do so.

89 Notwithstanding the above, on 1 December 2021, the Worker attended the 2021 panel for examination. I have earlier extracted relevant parts of the reasons of the 2021 panel. As I have earlier noted, the 2018 injury was the focus of assessment, but it was necessary for the 2021 panel to consider unrelated impairments.

90 In that regard, as the Employer emphasised in argument, while the 2021 panel referred to the Worker's experience of constant pain in his left forearm spreading to the left wrist, thumb and index finger (which, of course, is the distribution of the superficial radial nerve), the panel recorded that 'flexion of the wrist is normal' and '[f]lexion of all digits was normal'.[84] The 2021 panel also distinguished any effects of the 2020 injury from those of the 2018 injury.

91 Whatever else might be said about the assessment conducted by the 2021 panel[85] -

(a) it cannot be accepted that it was wholly reconcilable with at least one of the clinical notes in the period shortly preceding it;

(b) the Worker's attendance on the 2021 panel took place during a period in which he was mired in very significant drug and mental health concerns; and

(c) in that regard -

(i) two days after the panel produced its opinion, the general practitioner recorded that the Worker presented with 'pressured speech' and possibly needed to see a psychiatrist;[86]

(ii) there was, however, only a relatively brief and colourless mention of depression in the reasons of the 2021 panel, and no discernible mention of substance abuse.[87]

92 The Worker's psychiatric and substance abuse concerns appear to have escalated further in early 2022. In that regard -

(a) on 10 January 2022, a general practitioner noted that the Worker was seeing a psychologist, taking psychotropic medications and on a 'suboxe programme';

(b) on 7 February 2022, a general practitioner noted that the Worker was 'MORE DEPRESSED', 'suicidal', 'need[s] to be assessed by [a] CAT [Team]' and had been asked by the doctor to present to the emergency department of the Latrobe Regional Hospital;

(c) on the following day, 8 February 2022, the same general practitioner recorded that the Worker had not been sleeping for the 'last couple [of] days' and needed to see a psychiatrist 'ASAP'; [88] and

(d) a referral to a psychiatrist that day recorded that the Worker had been 'suffering from major depression and PTSD since October 2020' and 'a work related accident resulting effect on his mental condition [sic]'. Among other current medications, the referral listed Lyrica (Pregabalin).[89]

93 The pattern of serious mental health and substance abuse concerns continued to be recorded by general practitioners until the sequence of clinical notes terminates in October 2022. In that context, as had been the case in 2021 (and it seems to me, perhaps, even more so) it is hardly surprising that such clinical notes as were recorded in 2022 include little in the way of reference to concerns in respect of the Worker's left forearm, wrist and hand.

94 Nonetheless, the Worker was reviewed at Latrobe Regional Hospital on 24 May 2022 and, among other things, the note records -

Psychiatric review.

The patient presented for review at LVCMHC.

He reported having injury at work: cutting his left forearm with a saw. He reported having chronic pain, increased arousal and flashback from the injury.

Recently he was depressed and anxious staying mostly at home.[90]

95 The reviewing psychiatrist stated that the Worker needed to follow up with a psychiatrist, a psychologist and a pain specialist; and the note refers to a 'case management discussion' with 'James' of Gallagher Bassett (the WorkCover Agent).[91] No record suggests that the Worker was subsequently referred to a pain specialist.

96 Somewhat inconsistently with the above, a little over a month later, on 6 July 2022, a general practitioner referred to the injury in October 2020 and said that the Worker had 'recovered from injury, but he developed depression and anxiety later on'.[92]

97 In any event, on 10 October 2022, in the final clinical note of any substance, a general practitioner recorded, among other things, that the Worker 'looked a bit worse than before' and 'wa[n]ted [L]yrica for tingling sensation in left forearm'. The reason for contact was recorded as being '[n]erve pain'.[93]

98 In light of the above, and the pattern to which I have earlier referred, I would not conclude that the Worker's left forearm and related concerns largely receded or resolved during 2022.

99 Consistently with that position, on 15 December 2022, the Worker completed and signed a claim for impairment benefit in respect of his 'left forearm laceration' suffered on 2 October 2020.[94] It seems to me to be unlikely that he would have completed and submitted such a form if, at that time, he did not believe that his left forearm and any related concerns could not possibly constitute a compensable impairment.

100 That step, of course, led to the Worker being assessed by A/Prof Romas on 27 February 2023.

101 I have earlier extracted relevant parts of the report of A/Prof Romas. However, it records, in particular, that -

(a) the Worker had not described 'any abnormal finger motion, triggering or restriction since the relevant injuries';

(b) the left wrist was 'stiff' - although A/Prof Romas attributed that to the 2018 injury;

(c) the left wrist had 'normal flexion' and there was 'no abnormality of the range of motion of the left digits including the index finger'; and

(d) the Worker 'describe[d]' neuropathic pain in the distribution of the left superficial radial nerve, and medications included 'pregabalin' (ie, Lyrica).[95]

102 Whatever the Worker might have said, it cannot be literally the case that he had no abnormal finger motion 'since the relevant injuries' - although A/Prof Romas recorded it.

103 Further, while the Worker is recorded as having 'described' neuropathic pain, and taking medication for it, it is not clear that A/Prof Romas observed such pain. Indeed, it is not likely that he did so, as A/Prof Romas recorded only that the Worker 'described' it, and pain of that kind is typically sharp in the distribution of the nerve and therefore likely to interfere with motion when it occurs.

104 In any event, the report of A/Prof Romas was specifically referred to in (and enclosed with) the subsequent notice from Gallagher Bassett to the Worker dated 27 March 2023, in which he was advised that if he disagreed with the assessment of impairment, '[y]ou will be referred by Gallagher Bassett to a Medical Panel'.[96]

105 By signed response dated 16 June 2023, the Worker advised Gallager Bassett that he did 'DISPUTE the Physical Impairment' as well as the consequential calculation of impairment benefit (of '$0.00').[97]

106 It follows that, at the time of the referral of the medical questions to a panel, Gallagher Bassett (and therefore the Employer) must be taken to have known that the Worker specifically disputed the assessment of impairment performed by A/Prof Romas. It is not apparent that Gallagher Bassett enquired of the Worker concerning that dispute; it seems simply to have referred the medical questions to a panel.

107 In the circumstances, it will be apparent that -

(a) the relevant records in the referral material extend beyond the 'subset' identified and relied upon by the Employer in argument;

(b) in particular, the records relating to the Worker's psychiatric and substance abuse concerns seem to me to be of real significance - as they suggest that those concerns were such that, in a setting where the Worker was not working in manual work, any subsisting concerns in respect of his left forearm, wrist and hand were much more likely to have been relegated to a distant second place than to have been relatively trivial or entirely absent;

(c) when, very likely due to the intervention of those psychiatric and substance abuse concerns, the Worker ceased treatment at the outpatient clinic after April 2021, further surgery in the nature of tenolysis had been mentioned, and it was contemplated that he would be again reviewed - although that did not occur;

(d) consistently with the above, there continued to be some clinical notes concerning the Worker's left wrist and nerve pain;

(e) such concerns can impair motion in the affected body parts - and, in respect of the superficial radial nerve, that includes the pattern of distribution into the back of the hand as well as several fingers of the hand;

(f) in some respects, there also appear to have been inconsistencies in the records and, perhaps for that reason alone, it cannot be accepted that there was any consistency in the Worker's presentation during the period after December 2021;

(g) in the circumstances, it cannot reasonably have been concluded that the assessments by the 2021 panel and A/Prof Romas should have been taken to be the 'be all and end all' of assessment in respect of the condition of the Worker's left forearm, wrist and hand;

(h) indeed, the fact that the Worker specifically disputed the assessment of physical impairment by A/Prof Romas indicated clearly enough that he did not agree with it; and

(i) all of the records were, of course, before Gallagher Bassett (and therefore the Employer) at the time of the referral of medical questions to the Panel.

108 It follows that the submission of the Employer that the 'parameters of the referral' suggested that there were 'no range of motion issues that were ongoing, as distinct from historical' cannot be accepted.[98]

109 In that regard, while the fact of the findings of the 2021 panel and A/Prof Romas may be accepted, it does not follow that there was no other material from which the Employer could reasonably have anticipated that the relevant findings and assessments of the Panel could ultimately be significantly different.

110 In particular, as I have noted, the Employer must have known that the Worker disputed the assessment of A/Prof Romas and that, as matter of authority and practice, the Panel would take its own history from the Worker and conduct its own assessments - just as the 2021 panel had done.

111 Further, it is doubtful that the Employer really could have apprehended the 'parameters' of the referral as having been those which came to be identified in argument. If that had been the case, Gallagher Bassett or the Employer would surely have enquired of the Worker in respect of the basis for his dispute of the assessment by A/Prof Romas; but neither did so.

112 Indeed, neither the Employer nor the Worker made any submissions to the Panel - which, of course, can be done. Rather, each seem to have been content for the Panel to assess the position in the usual way, which it did.

113 In that way, albeit that questions of degree plainly arise, it was not a case in which the Panel identified and acted upon either an entirely new symptom or a previously unidentified condition. Nor is it squarely a case in which a worker reveals 'new' and important information that could not reasonably have been anticipated by Gallagher Bassett or the Employer.

114 In that regard, while there had been little reference to the left forearm and wrist, and especially the fingers -

(a) the material before the Panel disclosed pretty obvious reasons why that might be so, especially in the period after April 2021;

(b) there were, nonetheless, references indicative of subsisting symptoms in respect of the 2020 injury in the material before the Panel - to which I have earlier referred; and

(c) critically, the Worker made it quite clear to Gallagher Bassett that he did not agree with the 'physical impairment' assessed by A/Prof Romas.

115 It follows, it seems to me, that Gallagher Basset and therefore the Employer must or at least ought reasonably to have appreciated the risk that, when the Panel came to perform its statutory function, it could obtain a history that was in critical respects different to that recorded by A/Prof Romas, and could also come to observe a profile of disability on clinical examination and testing that was different to that earlier observed.

116 It is, of course, the Employer's position that Gallagher Bassett and therefore the Employer did not know precisely the account which the Worker would come to convey to the Panel, or precisely the assessments that came to be made by the Panel on clinical and other examination and testing. However -

(a) as I have indicated, that risk must or at least ought reasonably to have been anticipated;

(b) perhaps complacently, nothing was done in respect of it;

(c) in particular, Gallagher Bassett could have asked the Worker about the basis for his dispute in respect of the assessment by A/Prof Romas, but did not; and

(d) Gallagher Bassett also could have made submissions to the Panel - but did not.

117 Ultimately, procedural fairness comes down to a practical assessment in respect of the fairness of the process adopted. In that regard, as earlier noted, a medical panel 'is not a merely passive body which cannot go beyond the material submitted to it'.[99] It has the capacity to take its own history and act upon its own expert assessments. All of that must or at least ought reasonably to have been understood by Gallagher Bassett and therefore the Employer at the time of referral.

118 In the circumstances which I have endeavoured to outline, it cannot be that the Panel owed an obligation to advise Gallagher Bassett or the Employer merely when it took a history, undertook detailed physical assessments and formed a view that was in any way different to that of A/Prof Romas (or the 2021 panel). In the present case, that was always a significant prospect. Indeed, it seems to me that it should reasonably have been anticipated that a history of pain and restriction could be given by the Worker and, more importantly, that detailed physical assessment by the Panel might well reveal physical restrictions translating into a significant whole person impairment. In the circumstances, I cannot accept that in the present case the history given by the Worker, results of physical assessment and ultimate opinion of the Panel came 'out of the blue'.

119 Finally, to the extent that the Panel might have considered the limitations in the Worker's wrist to have been related to the 2020 injury as opposed to the 2018 injury, that was a matter which it could determine within its expertise. That plainly must have been a matter which was within the reasonable anticipation of Gallagher Bassett and therefore the Employer at the time at which the medical questions were referred to a panel.

(a) the Employer should reasonably have anticipated that the conclusions of the Panel could be significantly different to those of the 2021 panel and A/Prof Romas;

(b) in that sense, the findings and conclusions of the Panel were not 'out of the blue';

(c) it follows that the Employer was not denied procedural fairness;

(d) consequently, ground 1 must be rejected; and

(e) it is unnecessary to determine the issue of materiality.

(a) it is plain enough from the Panel's reasons that it must have understood that the Worker's clinical history, evident in the referral material, and the assessments and opinions of the 2021 panel and A/Prof Romas, had been different to those obtained by the Panel. I do not accept that it failed to 'give genuine consideration' to the difference. It follows that ground 2 must be rejected;

(b) similarly, I do not accept that the Panel failed to consider whether its assessments were 'concordant with ... other medical evidence' and/or 'conduct further evaluations to resolve the disparities'. It is quite plain from its reasons that the Panel was mindful of the referral material, and 'the instructions in the Guides',[100] and that it undertook exceptionally detailed assessments of its own. Plainly enough, it resolved the disparities by conducting its own assessments in a very detailed and apparently diligent manner, and recording the result of those assessments in its reasons. Ground 2A must also be rejected.

122 As I have earlier noted, there is nothing in ground 3.[101]

123 In light of the above, the proceeding must be dismissed.

124 I will hear from counsel concerning the final form of orders.

[20] JCB 11 and 13 (emphasis in original).

[44] T23. See also JCB 44 [15]; JCB 49 [31](c)-(d); JCB 69 [4]-[5].

[46] In particular Akbari v Victorian WorkCover Authority & Ors [2022] VSC 84, [25]-[29].

[47] T25. Senior Counsel later queried whether, 'consciously or unconsciously', the Worker may have 'somehow manipulated the result': T32.

[49] T27. In that regard, Senior Counsel highlighted the course taken by a different panel in Swan Hill District Health v Graham & Ors [2023] VSC 454.

[53] T38. In that regard, Counsel referred specifically to Calleja v Franet Pty Ltd & Ors [1999] VSC 202 ('Calleja'); Toyota v Bendrups & Ors [2016] VSC 718 ('Toyota'); Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248 ('Barrett Burston').

[55] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot'), [47] (citations omitted). See also Chang v Neill [2019] VSCA 151; (2019) 62 VR 174 ('Chang') and Sidiqi v Kotsios [2021] VSCA 187.

[56] [2022] VSC 84 (citations omitted).

[57] See Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [39]-[41] ('Wagstaff Cranbourne'). Also see, eg, Wurth Australia Pty Ltd v Gallichio [2010] VSC 630; Barrett Burston (n 53); YG-1 Australia Pty Ltd v Dr Brann & Ors [2016] VSC 713 ('YG-1'); Toyota (n 53); Noureddine v Adlard [2022] VSC 719 ('Noureddine').

[58] Wagstaff Cranbourne (n 57) [40].

[63] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, [12]-[16] ('LPDT'). See also Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, [33].

[65] Weerappah v Nisselle [1999] VSC 249, [50]. See also Vegco Pty Ltd v Gibbons [2008] VSC 363; YG-1 (n 57); Victorian WorkCover Authority v Whelan [2022] VSC 378.

[66] Barrett Burston (n 53) [48], referred to by the Court of Appeal with approval in Wagstaff Cranbourne (n 57) [40].

[67] North v Homolka [2014] VSC 478, [103]-[104]; Sargent v Disler [2016] VSC 292, [9].

[68] T7-8. That said, Counsel for the Employer sought to submit that the present case was 'a little bit out of the ordinary': T8.

[70] JCB 374. The note also records 'full extension all fingers'. Nothing, however, is recorded concerning the flexion of the fingers, although the thumb is recorded as having a full range of movement.

[73] The material does not appear to include any records of attendances by the Worker upon a 'private hand therapist'.

[85] See, eg, the panel's observation that '[t]he worker's forearm injuries have been stable since the beginning of 2021. There are no plans for further operations in the foreseeable future': JCB 130, may not be wholly reconcilable with the history which I have outlined.

[87] JCB 130: 'The worker has had psychological issues including depression and has been on medication since the incident'.

[92] JCB 241. I note that the general practitioner's note erroneously refers to the accident occurring in October 2021.

[101] Wingfoot (n 55) [47]-[48] and [55].