Plaintiff v First DefendantSecond DefendantThird Defendant

**2 On 16 August 2013 the plaintiff suffered an injury to his neck, back and both shoulders up to his hands as a result of bending down to pick up a box of tiles ('the injury') while in the course of his employment with Wetspot Consolidated (Vic) Pty Ltd ('the first defendant').

3 The plaintiff made a claim for compensation on 7 October 2013 under the Accident Compensation Act 1985 (Vic) ('the ACA') in respect of the injury. The plaintiff's claim was accepted by the first defendant, and weekly payments of compensation commenced, backdated to 16 August 2013.

4 The weekly payments of compensation were terminated, effective from 17 February 2014, by the first defendant on 30 January 2014 by a notice pursuant to s 114 of the ACA. The notice stated the following grounds for termination:**

**(a) the plaintiff was no longer incapacitated for work; and

(b) the plaintiff's incapacity for work, if any, was no longer materially contributed to by an injury which entitled the plaintiff to compensation.**

**5 In reaching this decision, the first defendant relied upon reports of Mr Clive Jones, an orthopaedic surgeon, who opined that the plaintiff had the 'capacity to return to work in his pre injury hours and duties with his pre injury employer'.[1]

6 The first defendant also issued a notice on 30 January 2014 under s 99 of the ACA ceasing the plaintiff's entitlement to payment for the reasonable costs of physiotherapy services.

7 The plaintiff referred the dispute to the Accident Compensation Conciliation Service ('the ACCS') pursuant to s 282 of the Workplace Injury, Rehabilitation & Compensation Act 2013 (Vic) ('the WIRC Act'), which had replaced the ACA as the applicable WorkCover legislation.

8 By way of a referral notice ('the Notice'), the ACCS referred the following questions to the Panel for its opinion pursuant to s 284 of the WIRC Act on 31 October 2014:**

1. What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed neck, back, shoulder injuries?
2. Do you consider the following medical service or proposed medical service appropriate for the worker's neck, back, shoulder injuries and/or condition:

Physiotherapy.

Specify service, duration and frequency if necessary.

1. Does the worker have an incapacity for work? If so, what is the extent to which the worker's incapacity for work results from or is materially contributed to by the claimed neck, back, shoulder injuries?

9 The Notice also stated that it was an agreed fact between the parties that the plaintiff had sustained injuries to his neck, back, shoulders in compensable circumstances on 16 August 2013. The ACCS stated that the following facts were in dispute:

(b) any incapacity for work was no longer materially contributed to by a work-related injury; and

(c) physiotherapy was not appropriate for the claimed injury.**

**10 The Panel, which was constituted by Dr David Kotzmann, occupational physician and Mr John Bourke, orthopaedic surgeon, consulting with Associate Professor Philip Tehan, physiotherapist, examined the plaintiff on 6 January 2015.

11 On 6 February 2015, the Panel made a request to the ACCS seeking further information by way of clarification as to the circumstances of the injury, on the basis that the history provided by the plaintiff did not correspond to the description in the plaintiff's claim form nor in other medical material before the Panel.[2]

12 The ACCS wrote to the deputy convenor of the Panel on 18 February, stating that it was 'unclear why the Medical Panel is revisiting the issue of liability' and that the plaintiff's claim had been accepted in 2013.[3] The plaintiff's solicitors also wrote to the deputy convenor on 25 February 2015, stating that:**

We believe these are factual issues which are not before the Medical Panels and therefore do not form part of the referral.

...

Our understanding is that the referral is limited to the questions as to work capacity and medical treatment (namely physiotherapy), and that any issues about liability are not required to be revisited by the Medical Panels.[4]

**The Panel did not respond to either the ACCS or the plaintiff's solicitors.

13 On 12 March 2015 the Panel issued its Certificate of Opinion ('the Panel's Opinion') and Reasons for Opinion ('the Panel's Reasons'). The Panel's Opinion provided:**

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed neck, back, shoulder injuries?

Answer: In the Panel's opinion, the worker is suffering from mild persisting cervical degenerative disc disease, with referred pain to the shoulders, but without radiculopathy, which is not attributable to any claimed neck injury. The Panel is also of the opinion that there is no current medical condition of the worker's back or shoulders.

Question 2: Do you consider the following medical service or proposed medical service appropriate for the worker's neck, back, shoulder injuries and/or condition:

Physiotherapy.

Specify service, duration and frequency if necessary.

Answer: Not applicable.

Question 3: Does the worker have an incapacity for work? If so, what is the extent to which the worker's incapacity for work results from or is materially contributed to by the claimed neck, back, shoulder injuries.

Answer: The Panel is of the opinion that the worker has no present inability arising from an injury, such that he is not able to return to work, either in his pre-injury employment or in suitable employment. The Panel is therefore of the opinion that any claimed incapacity for work, does not result from and is not materially contributed to by any of the claimed injuries.[5]

**14 In the Panel's Reasons, it noted that the plaintiff advised that the injury of 16 August 2013 occurred when he was carrying a box of tiles from inside an apartment onto a balcony when he then tripped, falling and hitting his head on the side. The Panel remarked that this history differed substantially from three other documented accounts of the incident which stated that the injury occurred as a result of the plaintiff bending down to pick up a box of tiles. The Panel also noted the plaintiff's solicitors considered that the discrepancy concerned factual issues which were not before the Panel.

15 The Panel also took account of the plaintiff's documented consultations for pre-existing neck pain, including the abnormal findings of marked limitation of neck movement made by the plaintiff's chiropractor, Mr M Aronov, on 27 January 2010.

...the worker was suffering symptomatic pre-existing cervical degenerative disc disease, which had been present for at least two years. Notwithstanding that it is not clear exactly how the worker injured himself, the Panel, having regard to the facts above, the Panel concluded that the worker suffered a temporary exacerbation of pre-existing cervical degenerative disc disease, with referred pain to the shoulders, but without radiculopathy, which has now resolved and the worker is currently suffering from mild persisting cervical degenerative disc disease, which is of constitutional origin, is long-standing and is not attributable to any claimed neck injury occurring on 16 August 2013. The Panel is also of the opinion that there is no current medical condition of the back or shoulders.

As the Panel concluded that the worker is no [sic] currently suffering from any medical condition attributable to any claimed injury, the Panel expresses no view regarding the appropriateness of any medical service or proposed medical service for any claimed neck, back, shoulder injuries and/or conditions.

For the same reasons, the Panel also concluded that the worker has no present inability arising from an injury, such that he is not able to return to work, either in his pre-injury employment or in suitable employment. The Panel therefore concluded that any claimed incapacity for work, does not result from and is not materially contributed to by any of the claimed injuries.

17 The plaintiff contends that the Panel's Opinion and Reasons are in error on the following grounds:[6]

**(a) the Panel exceeded its jurisdiction in opining as to the attribution of the medical condition it found relevant to the plaintiff's claimed neck and shoulder injury in its answer to Question 1;

(b) in answering 'not applicable' to Question 2 the Panel failed to exercise its jurisdiction to determine whether physiotherapy was appropriate for the claimed neck injury and/or took into account an irrelevant consideration, namely whether the plaintiff's claimed neck and shoulder condition was attributable to any work related injury;

(c) in failing to answer the first part of Question 3 the Panel failed to exercise its jurisdiction and/or took into account an irrelevant consideration;

(d) the Panel exceeded its jurisdiction in answering the second part of Question 3 by providing an opinion not requested as to whether the plaintiff's incapacity for work, if any, is no longer materially contributed to by an injury which entitles him to compensation;

(e) the Panel failed to exercise its jurisdiction and/or took into account of an irrelevant consideration in answering the second part of Question 3 by failing to provide an opinion as to whether the plaintiff's incapacity for work, if any, results from or is materially contributed to by, relevantly having regard to its implicit opinion answering Question 1, the claimed neck and shoulder injury;

(f) alternatively to (a) to (e), the Panel failed to afford procedural fairness to the plaintiff by allowing him to participate in the resolution of the medical opinions knowing him to be under the misconception that neither the circumstances of the injury nor the evidence of the extent, if any, of pre-existing medical conditions were relevant to the resolution of the medical opinions when, if grounds (a) to (e) above are not made out, such matters were relevant;

(g) alternatively to (a) to (e), the Panel's reasons for opinion in answer to Question 3 fail to disclose the path of reasoning by which it was satisfied that any incapacity no longer resulted from or was not materially contributed to by the claimed neck injury by:**

**_(i) failing to make any finding of current incapacity at all or even resulting from the medical condition of the neck;

(ii) failing to explain why it mattered, if it did, that the history recorded by Dr Kucminska in her contemporaneous notes was to be relied upon instead of the history in her report;

(iii) failing to explain on what basis it rejected the history contained in Dr Kucminska's report;

(iv) failing to make any findings of incapacity pre-existing the injury._**

18 Section 302 of the WIRC Act provides for the function of medical panels:

(1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by a Conciliation Officer, the court, VCAT, the Authority or a self-insurer.

(2) A Medical Panel must give its opinion on a medical question in accordance with this Division.

19 Section 3 provides definitions of several key terms, including the following:

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

...

incapacity includes -

(a) a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment;...

...

injury means any physical or mental injury and, without limiting the generality of that definition, includes - ...

(c) a recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease;

...

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.

...

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker's pre-injury employment; and

(iii) the worker's age, education, skills and work experience; and

(iv) the worker's place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether -

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

...

20 The scope of a medical question is defined under s 3 of the WIRC Act. This includes:

(a) a question as to the nature of a worker's medical condition relevant to an injury or alleged injury;

(b) a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated;

(c) a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment;

...

(g) a question as to the medical, personal and household or occupational rehabilitation service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service;

(h) a question whether a worker's employment was in fact, or could possibly have been -

(i) a significant contributing factor; or

(ii) a contributing factor -

to an injury or alleged injury, or to a similar injury;

(i) a question as to the extent to which any physical or mental condition, including any impairment, results or resulted from or was or is, materially contributed to by the injury;

...

(m) a question whether a worker's incapacity for work results or resulted from, or is or was materially contributed to by, an injury or alleged injury;

The Panel's Opinion in respect of Question 1 (ground (a))

**21 The plaintiff submits that the Panel exceeded its jurisdiction in giving an opinion as to the attribution of the plaintiff's medical condition, in that it went beyond the scope of the first medical question by stating that the plaintiff's mild persisting disc cervical degenerative disc disease, with referred pain to the shoulders 'is not attributable to any claimed neck injury'.[7]

22 The plaintiff submits that in answering the first medical question, the Panel considered causation, when it was not entitled to. The plaintiff submits that the first medical question was limited to a request for the Panel's opinion as to the plaintiff's current medical condition and was therefore purely diagnostic. The plaintiff notes that the medical questions were carefully framed so as to avoid raising causation as an issue for the Panel to consider.[8]

23 The Plaintiff relies on the Panel's letter to the ACCS of 6 February 2015 requesting further information in relation to the circumstances of the injury on 16 August 2013 and notes that the ACCS advised the Panel in the Notice that there were only three facts in dispute relevant to the medical questions (see above at paragraph [9]).[9]

24 The plaintiff also states that Mr Jones' opinion in his reports only raised an issue as to whether or not there was a work incapacity, with no discussion of causation. The plaintiff argues that the question of whether any incapacity was no longer related to the work-related injury should never have arisen as there was no evidence for it.[10]

25 The plaintiff submits that the High Court authority of Smith v Mann[11] supports the proposition that the first medical question related only to a diagnostic issue, not causation.[12] In Smith, a medical board was required to consider the condition of the worker in question, as well as his fitness for employment. However, in its certificate, the medical board considered the cause of the worker's condition.

26 The plaintiff relies on the opinion of Dixon J in Smith, who held that the medical board was confined, by the terms of reference, to providing an opinion on the condition of the worker and his fitness for employment.[13] In that case, Dixon J observed that a medical board's consideration of the cause of a worker's present condition would be permissible only where the cause of the condition was an inseverable part of the description of the condition. It was therefore permissible on the particular facts in Smith because the worker's condition arose from lead absorption. The plaintiff submits that no such exception arises in the present case.

27 The plaintiff also relies on the case of Calleja v Franet Pty Ltd.[14] In that case, one of the questions referred to the medical panel was: 'what is the nature of the plaintiff's medical conditions relevant to the injuries alleged in the statement of claim, in particular the injury to the right elbow.' The medical panel found in respect of that question that, 'there is no physical medical condition relevant to any injury to the right elbow.' In his reasons, Ashley J stated that the medical question in that case, which paraphrased the definition of medical question listed in paragraph (a) of s 5 of the ACA, did not call for an answer as to whether employment was or possibly could have been a significantly contributing factor to an injury. Such a question was 'the function of later questions set out in the definition'.[15]

28 The plaintiff states a similar approach should be applied here. The plaintiff submits that in order for causation to have been validly raised and considered by the Panel in the present case, a medical question should have been provided to the Panel raising causation in line with the definition of a medical question as set out in s 3(h) and s 3(i) of the WIRC Act.[16] However, such medical questions were not posed to the Panel, and therefore the Panel went beyond its scope in answering the first medical question, therefore exceeding its jurisdiction.[17]

29 The plaintiff submits that the Panel should have merely outlined any injury/condition it found relevant to the claimed neck, back and shoulders injuries. The question of causation should then have been a matter for the parties to resolve.[18]**

**30 The first defendant notes that it is the role and function of a medical panel to form and to give its own opinion on a medical question that has been referred to it.[19]

31 The first defendant submits that the first medical question required the Panel to diagnose any current medical conditions which were relevant to the injury.[20]

32 The first defendant relies on the Victorian Court of Appeal decision of Masters v McCubbery,[21] where Winneke P underlined that a medical panel is empowered to make a binding decision in respect of issues which have been referred to it. Particularly, the first defendant relies on Winneke P's discussion of the fact that medical panels are inevitably required to decide upon matters of both law and fact:**

It cannot be denied... that the medical panels are empowered to decide, in a manner which binds the court making the referral, the critical issues which have arisen between the worker and the authorised insurer... Although these critical issues are referred to the medical panel couched in terms of "medical questions" and the responses of the panel to them are couched in terms of "opinions", such legislative terminology cannot obscure the fact that the panel is being called upon to decide matters of mixed law and fact which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination.

...

By his complaint the appellant alleged that, at the time when the insurer ceased to make weekly payments to him, he was 'totally incapacitated' and/or was suffering 'serious injury' within the meaning of the Act and that he was 'unable to engage in (his) pre-injury employment or any other suitable employment... and that this incapacity resulted from or was materially contributed by the injury... It was these issues (couched in the form of 'medical questions' framed by the insurer) which the insurer requested the court... to refer to a medical panel.

It can be seen, at a glance, that these 'questions' required the medical panel not only to make an assessment of the worker's medical condition but also to determine in the light of that assessment whether the worker was in fact incapacitated from carrying out his former employment or any other 'suitable employment'; whether that incapacity was 'permanent'; whether the worker was 'partially' or 'totally' incapacitated for any form of employment... Because of the definitions given by s 5 of the Act to the concepts of 'incapacity', 'partial incapacity', 'total incapacity' and 'suitable employment', the panel was required to measure the worker's medical condition (as they found it to be) against these statutory definitions as they interpreted them...

The "opinions" thus formed by the panel incorporated within them a number of sub-determinations, based on the material before it, on matters of both fact and law. Its ultimate determination the worker was "fit for suitable employment"; that he was "partially" but not "totally" incapacitated for employment... must necessarily have involved the panel in making a number of findings as to what it regarded as "suitable employment"; and as to what meanings it gave to the various defined concepts expressed in the Act.

...

These ultimate conclusions expressed by the panel as "opinions" dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them in money terms.[22]

**33 The first defendant submits that, following Masters, medical panels are required to consider the legislative definitions and requirements when providing opinions on issues such as incapacity. As a result, the first defendant submits that it is 'unavoidable' for medical panels to provide an answer which addresses causation when determining a claimant's incapacity.[23] The first defendant submits that were this not so, the unsatisfactory scenario could arise where a medical panel's response to a question about incapacity for employment may simply be 'yes' in circumstances where the incapacity was not compensable and did not arise from a claimed injury, but rather arose from an unrelated factor such as infirmity from old age.[24] This particular issue would be amplified in circumstances where a court being requested to apply a medical panel's certificate of opinion is not permitted to look at the reasons for the purposes of understanding the opinion.

34 The first defendant argues that the Panel's answer to the first medical question should be taken in light of the particular context it was referred, that being a dispute as to whether the plaintiff continued to suffer from an injury that entitled him to continue to receive statutory benefits. The first defendant submits that the Panel's response to the first medical question, diagnosing mild persisting cervical degenerative disc disease but stating it was not attributable to the claimed neck injury, was directly responsive to the question.[25]

35 The first defendant relies on the authority of Smith, where the Supreme Court of NSW held that the cause of a worker's condition was a matter which fell within the description of a worker's condition, and thus was a matter which the medical panel in that case could consider.[26] In particular, the first defendant relies on the following statement by Starke J:**

The important question is whether it is part of the function of the Medical Board in giving a certificate as to the worker's condition to state the cause of that condition. If so, the certificate is conclusive, and the Commission was bound by it. Now it seems to me that 'it is impossible' to use the language of Farwell LJ in Haylett v Vigor & Co, 'to have the consequence without the cause, which is the gist of the liability'. The Medical Panel was not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act. 'It seems to me', as Atkin L.J said in Short v Parker, 'that the words "condition of the workman" may very well mean to a doctor the same thing as if he were asked, "Is his condition that he is suffering from a disease which is in fact caused by long exposure to dust"'... The certificate of the Medical Board, stating the condition and the cause of that condition, was, in my opinion, a certificate as to the condition of the worker within the meaning of the Act, and bound the Commission.[27]

36 The first defendant also referred to Dixon J's opinion from the same case, where it was stated:

In the state of degeneration by disease which existed in the case of the appellant, the conclusion that it began with or was affected by lead absorption or intoxication enters into and forms part of the complete description of his condition. It follows that it was within the province of the Medical Board to certify that his state arose from lead absorption or intoxication, and that a certificate to that effect would be conclusive.[28]

**37 The first defendant submits that there are numerous cases where a medical panel found that a claimed injury was an aggravation injury, with any remaining symptoms being due to an underlying pre-existing constitutional condition and not the claimed injury.[29] The first defendant referred to the case of Ventrice v Riva Plaster Pty Ltd,[30] where Beach J upheld a medical panel's opinion that the plaintiff in that case was not suffering from any medical condition relevant to the alleged injuries.

38 The medical questions and the medical panel's answers in Ventrice were:**

Question 1. What is the nature of the plaintiff's medical condition relevant to the back injury ("the injury") alleged in paragraph 6 of the statement of claim (and excluding any mental or behavioural disturbance)?

Answer 1: In the Panel's opinion, the plaintiff is not suffering from any medical condition, relevant to the alleged injuries.

Question 2. Was the worker's employment after 20 October 1999 a significant contributing factor to the injury (including any aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease)?

Answer 2: No.

Question 3.

(a) Does the plaintiff have a current work capacity?

(b) If no, does the incapacity result from or was it materially contributed to by the injury?

(c) If no, is the incapacity likely to be permanent?

(d) If yes, is the plaintiff suited for any and what suitable employment, specifying any further or additional employment the plaintiff is capable of undertaking upon any and what rehabilitation?

Answer 3:

(a) The Panel is of opinion that the Plaintiff does not have a present inability to return to work in his pre-injury employment arising from an injury.

(b) Not applicable.

(c) Not applicable.

(d) Not applicable.[31]

**39 In its reasons, the medical panel noted that the worker was suffering from widespread, but mild, constitutional degenerative disc disease of the whole spine.

40 Justice Beach noted that the reasons provided by the medical panel were those of a tribunal, not a judicial body, and that the reasons needed to be taken in their context, before stating:**

Properly understood, the Medical Panel's conclusion that 'the plaintiff is not suffering from any medical condition relevant to the alleged injuries' is no more than a statement that the degenerative condition from which the plaintiff suffers was not caused by post 20 October 1999 work; nor was the plaintiff suffering from a work related injury which was a recurrence, aggravation, acceleration, exacerbation or deterioration of that degenerative condition.[32]

41 The plaintiff argues that the case is of limited benefit in the present matter on three bases:

(b) it fails to take into account of Calleja, which should be preferred in the present matter for the principle that a medical question such as the first medical question did not call for an answer as to whether employment was or possibly could have been a significantly contributing factor to an injury; and

(c) the second medical question in Ventrice enlivened the issue of causation and the third raised incapacity and is therefore distinguishable.[33]**

**42 The first defendant submits that the Panel did not consider whether the plaintiff's employment was a significant contributing factor to the injury, and did not revisit the initial compensability of it. Rather, the first defendant submits that the Panel made an enquiry at the time of its examination of the plaintiff as to whether the plaintiff was suffering from any medical condition(s) of his back, neck and/or shoulders which were relevant or attributable to the injuries sustained in the work accident of 16 August 2013.[34] Part of this involved an exploration of any pre-existing complaints of symptoms prior to 16 August 2013, and whether that injury was in part an aggravation of a pre-existing condition.[35]

43 The first defendant submits that the approach of the Panel in the current matter, in expressing an opinion as to the current condition of the plaintiff's neck, and whether it could have related to the injuries sustained in 16 August 2013, does not necessarily mean the Panel was opining, or being asked to opine, as to whether there was a continuing compensable injury. The first defendant submits this approach was therefore consistent with Ashley J's reasoning in Calleja.[36]

44 The first defendant also draws a comparison to the cases of Wingfoot Australia Partners Pty Ltd v Kocak[37] and McIntyre v Fish[38] where the relevance/attribution of a condition to a claimed injury was raised by a medical panel in an answer. The first medical question and answer in Wingfoot was:**

Question 1: What is the nature of the [worker's] neck/cervical spine condition relevant to the alleged neck/cervical spine injury?

Answer: The Panel is of the opinion that the [worker] is suffering from chronic mechanical left cervical spine dysfunction with referred pain to the left shoulder girdle and upper limb, in the absence of objective signs of radiculopathy, on a background of radiological changes of multilevel degeneration and a left C5-6 disc prolapse, but this condition is not relevant to any alleged neck/cervical spine injury.[39]

45 Meanwhile, the first medical question and answer in McIntyre was as follows:

Question 1: What is the nature of the Plaintiff's medical condition relevant to the claimed injuries, namely...

Answer: The Panel is of the opinion that the Plaintiff is suffering from constitutional cervical spondylitic myelopathy with hyperreflexia, but this medical condition is not relevant to any claimed injury.[40]

**46 The first defendant states that no issue was raised with that medical question and response in Wingfoot or McIntyre, and that such an approach has been adopted in numerous cases by medical panels, including the present.[41]

47 In relation to the plaintiff's submission that causation could only have been validly considered by the Panel had a medical question raised causation along the lines of a s 3(h) or s 3(i) of the WIRC Act question, the first defendant submits those questions do not 'ask all the ingredients about whether an injury is compensable or not'.[42] The first defendant contends that importantly, while a medical question along the lines of s 3(h) is concerned about the actual injury itself and whether it was compensable, in the present case there was no such issue, with no issue being raised about whether the plaintiff had suffered a compensable injury on 16 August 2013.[43]

48 Regarding a medical question in the form of s 3(i) of the WIRC Act's definition of a medical question, the first defendant acknowledged such a question, which asks whether any impairment resulted from or was materially contributed to by the relevant injury, could have been asked in the present matter. However, the first defendant submits that the medical question definitions in s 3 are not mutually exclusive, but rather that while they can focus on different aspects, they nevertheless involve overlap on many of the same issues.[44]**

**49 The function of a medical panel is to form and give its own opinion on the medical question referred for its opinion.[45] Winneke P in Masters stated that a medical panel is empowered to provide a binding opinion on the critical issues referred to it for an opinion. This process inevitably involves the consideration of issues relating to both fact and law. This reflects the reality that it is difficult for a medical panel to disentangle itself from the factual matrix when providing an opinion.[46]

50 In the present matter the critical issues, in the form of medical questions, referred to the Panel for consideration were:**

**(a) the nature of plaintiff's medical condition relevant to the injury;

(b) whether physiotherapy was appropriate for the plaintiff's injury and/or medical condition;

(c) whether the plaintiff had an incapacity for work; and

(d) if there was an incapacity, the extent to which the incapacity had resulted from or was materially contributed to by the injury.**

**51 In reaching its decision, the Panel could not consider the medical questions in isolation. Rather, as per the approach in Masters, the Panel had to take into account the statutory definitions of the relevant terms, such as current work capacity, incapacity, injury and suitable employment.

52 The Panel's response to the first medical question addressed the issue of whether there was any medical condition relevant to the injury of 16 August 2013. It did so by identifying the nature of the plaintiff's medical condition which in its opinion was not attributable to any claimed injury. The Panel could have quite simply said that there was no medical condition that was relevant to the claimed injuries. However, for the reasons set out below, I do not consider the Panel's more fulsome response to the first medical question to have constituted an error of law.

53 The Panel was not responding to the first medical question in a vacuum. As Starke J observed in Smith, a medical panel is 'not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act', and it is therefore impossible 'to have the consequence without the cause'.[47]

54 The Panel's Reasons demonstrate that the Panel formed the view that the plaintiff had a pre-existing cervical degenerative disc disease, which had been exacerbated by the incident on 16 August 2013, but that the exacerbation had resolved.

55 The issue of a pre-existing condition had been put squarely before the Panel in the materials provided in the referral and referred to by the Panel in its Reasons, including:**

**(a) the report of Dr M Aronov dated 27 January 2010 which referred to 'neck pain which [is] progressively getting worse' and a reduction in the range of motion of the cervical spine on rotation and lateral flexion;

(b) the clinical notes of Dr Anna Kucminska, which refer to consultations on 2 March 2010 and 26 July 2010 for neck and back pain, and a consultation on 17 January 2011 for neck pain with radiculopathy and back pain;

(c) the report of Mr Jones dated 11 November 2013 where Mr Jones had opined that the plaintiff's condition was 'clearly pre existing' and that the work incident had caused an aggravation of the condition; and

(d) the report of Mr Jones dated 24 January 2014 where he opined that an aggravation of the pre-existing condition 'should resolve between three to six months'.[48]**

56 The authority of Smith is relevant in respect of the overlap between a question relating to condition and the issue of causation. In addition to Stake J's observation above, the words of Rich J also bear relevance:

Condition is a wide word but it is pointed rather than at an existing state of affairs at prior events by which it was caused. At the same time, in considering the nature and character of diseases, the distinction between cause and effect, as in other departments of life, is often unreal and cannot be maintained.[49]

**57 I do not agree with the plaintiff's submission that the exception outlined by Dixon J in Smith for the consideration of causation does not apply here. Like the lead poisoning in Smith, the present matter involved a pre-existing condition which developed, or was exacerbated, by subsequent events. In considering the plaintiff's current condition, it was entirely appropriate for the Panel to have regard to the 16 August 2013 injury and the pre-existing condition. The cause of the current condition was necessary to consider in that the Panel had to consider whether the exacerbation of 16 August 2013 was still relevant, or whether it had resolved. It therefore did not re-enliven the issue of causation as to the 16 August 2013 injury, but rather addressed the relationship of that injury to the pre-existing condition.

58 Despite the plaintiff's submission to the contrary, the authority of Ventrice is relevant. The first medical question and answer are strikingly similar to the present matter. In both instances, the medical panels were asked the nature of the plaintiff's medical condition relevant to the work injury. In both instances, the medical panel's opinions were that the plaintiffs were not suffering medical conditions relevant/attributable to the work injuries. The only distinction of note was the use of the word 'relevant' in Ventrice and 'attributable' in the present matter. I find that for the present purposes, there is no practical distinction between the two words.

59 Here, the Panel's finding that the cervical degenerative disc disease was not caused by the 16 August 2013 incident, and that presently there was no recurrence, aggravation, acceleration, exacerbation or deterioration of that condition, is in line with the approach adopted and upheld by Beach J in Ventrice.[50]

60 I find such an approach logical. The plaintiff's three-pronged argument as to why Beach J's approach should not apply to the present matter is difficult to sustain. I do not accept the plaintiff's contention that Ventrice is distinguishable on the basis that the second medical question raised the issue of causation. Justice Beach made clear in his decision that 'it was, strictly speaking, not necessary for the Panel to answer questions 2 and 3'.[51] In any event, the first medical question in both Ventrice and the present matter touch on the issue of causation insofar as the medical panels were asked to discuss the plaintiffs' medical condition in light of the work injuries. Where there is a pre-existing medical condition which the work injury exacerbates, causation will arise in circumstances where the exacerbation has resolved but the pre-existing medical condition remains. For a medical panel to remain mute on that point would only serve to give rise to greater confusion and may constitute a failure to exercise jurisdiction. To provide an answer without explanation would be unsatisfactory and would leave the plaintiff in this case having no real understanding of the Panel's conclusion.

61 The plaintiff seeks a very narrow approach to the way in which medical panels answer medical questions. It would arbitrarily confine medical panels to a narrow opinion that is non-responsive and unduly limited, and would leave the parties requiring further clarification. This is not consistent with the approach of Beach J in Ventrice. Further, it is not consistent with the function of the Panel and could give rise to an artificial and ultimately inaccurate response.

62 The first defendant cited a number of additional authorities where medical panels have answered questions along the line of the first medical question in a similar fashion to the Panel's response in the present matter. For the sake of brevity, I will merely observe that they lend further support to the approach taken by the Panel.[52]

63 The plaintiff relies on Calleja, and Ashley J's comments that the first medical question in that case did not call for an answer as to whether employment was a contributing factor to an injury and that such comment was reserved for later medical questions.[53]

64 The difficulty with the plaintiff's submission is that there is substantial overlap between the various medical questions listed under s 3 of the WIRC Act. In answering one medical question, a medical panel will occasionally delve into areas covered by another medical question. To require a medical panel to strictly stay within certain parameters in answering a question would fetter its response and produce a lack of clarity as the panel tip-toed around certain issues. There is nothing in the legislation which suggests that such an approach is to be adopted. As I have already stated, it would be an unduly narrow approach.

65 On the meaning of a medical question in the form of the first medical question here, Ashley J in Calleja noted that 'the concept of relevant to an injury or alleged injury is not explained' under the legislation and went on to observe:**

The task of putting a meaning to para(a) is not easy in the circumstances described. All in all, it seems to me that the paragraph - and thus question 1(a) - directs the reader to the part of the body or the faculty claimed to have been injured. If the worker has particularised - in medical rather than legal terms - the injury he or she claims to have suffered, the panel's task is to opine whether some and what condition is then present which can be related to the injury alleged. But if the worker specifies injury only in the most general terms (as here: 'injury to the right elbow...') the panel cannot sensibly answer a question in the form of question 1(a) without first assessing - in a medical, not legal sense - the likely nature of the claimed injury.

Further concerning para(a), the term 'medical condition' should be understood to extend to physical and mental conditions, notwithstanding that such a distinction is expressly drawn in para(c) of the definition. It should also be understood that the question does not call for an answer whether employment was or possibly could have been a (significant) contributing factor to an injury That is the function of later questions set out in the definition.[54]

**66 As noted above, the distinction that needs to be drawn in the present case is that the Panel was not opining as to whether the 16 August 2013 incident had played any role in the plaintiff's medical condition, but rather was providing the opinion that the injury arising from 16 August 2013 was an exacerbation of a pre-existing condition, and that exacerbation had now resolved. Therefore the nature of the plaintiff's current medical condition was not relevant to the claimed injuries. The Panel's opinion was that the current condition did not relate to the injury, and such an opinion was open for it to be made in response to the first medical question. As Ashley J notes, when the injury is described or specified in general terms as it was in the first medical question, the panel cannot sensibly answer the question without first assessing, in a medical sense, the likely nature of the plaintiff's medical condition and then whether it is in any way relevant to the claimed injuries.

67 The Panel's Reasons note that it was an agreed fact that the plaintiff had suffered an injury to the neck, back and shoulders on 16 August 2013, for which a claim for compensation had been accepted. Further the Panel made note that it had been advised by the plaintiff's solicitors that the circumstances in which the injury occurred on 16 August 2013 were factual issues that were not before the Panel and therefore not part of the referral.[55]

68 In these circumstances, I cannot find that the Panel acted inconsistently with the approach adopted in Calleja.

69 I briefly note that a considerable amount of time was spent in written and oral submissions discussing Calleja and the issue of an Asioty-type injury. I found it to be of limited benefit to the present matter and the submissions failed to demonstrate its applicability to the present facts. Accordingly, I do not propose to address it in any detail.

70 For these reasons, I am satisfied that the Panel committed no error in respect of its answer to the first medical question, and that it did not exceed its jurisdiction in opining as to the attribution of the medical condition.**

The Panel's Opinion in respect of Question 2 (ground (b))

**71 The plaintiff submits that as the Panel found the plaintiff had a medical condition in respect of his neck, it was obliged to provide an opinion as to whether and what physiotherapy was appropriate.

72 The plaintiff makes two alternate submissions as to why the Panel's response to the second medical question involved an error of law. Firstly, by answering 'not applicable' to the second medical question, the plaintiff argues that the Panel failed to exercise its jurisdiction. The plaintiff submits that the Panel fell into error by approaching the second medical question on the basis that it was only answerable had it formed the opinion that the plaintiff still suffered from a compensable injury.[56]

73 Secondly, the plaintiff submits that by stating that the medical condition 'was not attributable to any claimed neck injury' in response to the first medical question, the Panel then took into account an irrelevant consideration in answering the second medical question.[57] The second medical question asked whether physiotherapy was appropriate for the plaintiff's medical condition, and the plaintiff submits that therefore a response was required given the Panel had acknowledged there was a medical condition.

74 In essence, the plaintiff submits that the failure to exercise jurisdiction and/or taking into account of an irrelevant consideration in respect of the second medical question flowed directly for the error the Panel made in discussing causation in answering the first medical question.[58]**

75 The first defendant contends that had the Panel answered the second medical question differently, it would have potentially led to confusion and an incorrect assessment. Had the Panel answered 'yes', the first defendant submits:

**(a) the answer would have been irrelevant to the dispute, as it would have raised the appropriateness of statutory compensation for what had been found to be a non-compensable condition; or

(b) the answer, if adopted and applied, would potentially have resulted in the plaintiff receiving statutory compensation, through physiotherapy services, where there was no such entitlement.[59]**

**76 Similar to its argument in relation to ground (a), the first defendant submits that in answering the second medical question the Panel could not consider it in a vacuum and was required to consider the legislative definitions and requirements pursuant to the approach discussed in Masters. The reference to injury in the second medical question had to be considered in light of the definition of 'injury' under the relevant Act. The Panel was therefore entitled to consider that physiotherapy was not applicable as the claimed condition, being an aggravation of the work injury, had resolved. Under s 99 of the ACA and the equivalent section 224 of the WIRC Act, compensation for medical services was only allowed where the service was for a compensable injury. The constitutional condition of the neck was not part of the definition of 'injury' and could not be relied upon. Accordingly, the Panel gave no opinion as to whether physiotherapy was appropriate in that regard.[60]

77 The first defendant submits that the reference in the second medical question to 'condition' should be taken to mean the plaintiff's 'medical condition (including any sequelae) relevant to the claimed neck, back, shoulder injuries' as outlined in the first medical question.[61]**

**78 In light of my finding in respect of Ground 1, the plaintiff's submission that the Panel took into account an irrelevant consideration in answering the second medical question cannot be sustained. As there was no erroneous consideration of causation by the Panel in respect of the first medical question, it necessarily follows that there was no such error in respect of the Panel's response to the second medical question.

79 As to the plaintiff's submission that the Panel failed to exercise it jurisdiction by answering 'not applicable', I consider requiring the Panel to provide an answer would again have required it to undertake an exercise that would lead to an artificial and misleading response.

80 It is well-established that in answering medical questions the Panel must take into consideration the broader statutory framework and definitions. It is also necessary for the Panel to have regard to the issues in dispute and reasons for the referral. Here, one of the issues in dispute was:**

Physiotherapy treatment is not appropriate for the claimed injury.[62]

**81 Although the second medical question was framed in terms of whether physiotherapy was appropriate for the 'injuries and/or condition', that reference to condition occurs in the context where the immediately preceding question had asked the nature of the medical condition relevant to the injuries. The Panel found that the plaintiff's medical condition was pre-existing and therefore did not fall within the definition of a compensable injury. Given the Panel's finding, its response to the second medical question that the need for physiotherapy was not applicable was entirely appropriate.

82 Any discussion about physiotherapy for the pre-existing condition would have been irrelevant to the dispute, and would potentially have created confusion between the parties as to the question of who was responsible for the payment of such medical services.

83 Accordingly, I am satisfied that the Panel committed no error in respect of its answer to the second medical question. I find that there was no failure on the part of the Panel to exercise its jurisdiction, nor that it took into account an irrelevant consideration.**

The Panel's Opinion in respect of Question 3 (grounds (c), (d) and (e))

**84 The plaintiff submits that there were two parts to the third medical question. The first was whether the plaintiff had a capacity for work, and the second part was whether any incapacity resulted from, or was materially contributed to by, the injury. The plaintiff submits that the Panel errored in respect of both parts.

85 In relation to the first part, the Plaintiff says that the Panel did not provide an answer and so failed to exercise its jurisdiction. Alternatively, the plaintiff states that, by reference to the Panel's Reasons, it is clear that the Panel took into account the causation issue it had brought up in its answer, and therefore took into account an irrelevant consideration.[63]

86 In respect of the second part of the third question, the plaintiff submits that the Panel answered the wrong question. That is, the Panel addressed whether the incapacity resulted from or was materially contributed to by 'an injury', rather than the compensable injury.[64] The plaintiff submits that the Panel therefore provided an opinion that was not requested, exceeding its jurisdiction and in not answering the given question, failed to exercise its jurisdiction. Alternatively, the plaintiff argues that the Panel took into account an irrelevant consideration.

87 The plaintiff submits that the Panel's decision to request further information in the letter dated 6 February 2015 about the circumstances of the plaintiff's injury is demonstrative of the fact that the Panel misunderstood the third question as it was considering the issue of a pre-existing medical condition and the circumstances of the accident on 16 August 2013 and its impact on the pre-existing medical condition.[65]**

88 The first defendant submits that the Panel did not fail to exercise its jurisdiction nor exceed its jurisdiction. The first defendant contends that the Panel's answer was responsive in nature and sought to make reference to injuries relevant to the dispute in which the questions had been referred and the relevant legislation, rather than being given in a vacuum.[66] In this regard, the first defendant refers again to Smith, where Starke J stated:

The Medical Panel was not certifying in the air, but with reference to injuries or diseases relevant to compensation under the Act.[67]

89 The first defendant contends that the issue of whether the plaintiff had an incapacity for work was only relevant to his entitlement to compensation if such incapacity had resulted from or been materially contributed to by the injury of 16 August 2013. As the overall answer of the Panel addressed this issue, the structure in which the Panel provided its answer is irrelevant.[68]

**90 As I have found that the Panel did not inappropriately consider causation in respect of the first medical question, it once again follows that there was no such error in respect of the Panel's response to the first part of the third question. It is not necessary to repeat my earlier reasons in that regard.

91 The plaintiff's alternative submission that the Panel failed to provide an answer to the question as to whether the plaintiff had an incapacity for work cannot be sustained. The Panel's answer that 'the worker has no present inability arising from an injury, such that he is not able to return to work, either in his pre-injury employment or in suitable employment' plainly addresses the question. Crucially, the language adopted by the Panel replicates the definition of 'current work capacity' under the ACA and WIRC Act. The approach is consistent with that adopted by the medical panel and approved by Beach J in Ventrice.[69]

92 I disagree with the plaintiff's submission that the Panel answered the wrong question in respect of the second part of the third medical question. As the first defendant submitted, when looking at the overall answer to the third medical question, the Panel found that there was no incapacity for work as a result of the injury. The Panel made reference to 'an' injury and to 'the' injury of 16 August 2013 in finding there was no incapacity for work. Any criticism of the way the Panel structured its response is moot as long as there is no error of law. Here, I am satisfied that the Panel answered the third medical question in an appropriate manner and therefore did not exceed or fail to exercise its jurisdiction, nor take into account an irrelevant consideration.

93 For these reasons, I find that there was no error of law on the part of the Panel in respect of its answer to the third medical question.**

Did the Panel fail to afford the plaintiff procedural fairness? (Ground (f))

94 The plaintiff submits that if the Panel did have the right to consider the issue of causation, then the failure of the Panel to advise the plaintiff that the Panel's remit included causation was a breach of procedural fairness. The plaintiff submits that the failure to inform the plaintiff denied it the right to address the issue of causation with further evidence.[70]

**95 The first defendant denies the allegation that the plaintiff was denied procedural fairness. The first defendant submits that the plaintiff was given the opportunity to provide material and submissions to the Panel on the relevant issues and that the plaintiff was on notice that the Panel's considerations included the question of whether the plaintiff still suffered from a compensable injury.[71]

96 The first defendant submits that the plaintiff's contention that it was denied the opportunity of presenting evidence to the Panel on matters, such as causation, which it could not reasonably have anticipated would be in issue, is not a sustainable argument. The first defendant contends that the notices of 30 January 2014 terminating the plaintiff's entitlements, the Panel's referral documents including the medical questions and the opinions of Mr Jones, clearly put the plaintiff on notice that the issue of whether the plaintiff still suffered from a compensable injury was one which was before the Panel. Adopting the words of Cavanough J in Barratt Burston Malting Co Pty Ltd v Kotzman,[72] the first defendant submits that the Panel's conclusion did not therefore come 'out of the blue'.[73]

97 The first defendant notes that the Panel gave the plaintiff the opportunity to provide further information in that regard in the Panel's letter of 6 February 2015, which the plaintiff rejected in its letter of 25 February 2015. Further, the first defendant argues that there has been no evidence before the Court as to what further evidence or material the plaintiff would have provided in the circumstances.[74]

98 The first defendant submits that there was no obligation on the Panel to provide one of the parties an opportunity to supply further material to it, on the basis that the Panel was reaching a different opinion to an opinion that been supplied to it by that party. Nor was there any obligation to request a further report from a medical practitioner whose medical opinion the Panel did not utilise in forming its opinion.[75] The Panel's task was to form and provide its own opinion on the medical questions referred to it by applying its own medical experience and expertise, and having regard to the materials it received with the referral, which included the very issue of the pre-existing condition and exacerbation.[7]**

**99 As per my earlier findings, the Panel did not revisit the causation of the 16 August 2013 injury, but rather considered the relationship of that injury to the pre-existing condition. The Panel's response was within the remit of the first medical question, and therefore it was a relevant issue upon which the parties had been given prior opportunity to provide submissions and supporting evidence upon. Indeed, the parties had provided materials in the referral to the Panel on this point in the form of the report of Dr Aronov, the clinical notes of Dr Kucminska and the reports of Mr Jones. Additionally, the Panel examined the plaintiff on 6 January 2015 and took his history.

100 The Panel made note in its Reasons as to the inconsistency as to how the injury of 16 August 2013 occurred. However the Panel's Reasons state that it also took note of the plaintiff's response that such factual issues were not before the Panel. Although the discrepancy was noted, the Panel ultimately did not re-enliven the issue of causation, as shown by the Panel's Reasons where it was stated:**

Notwithstanding that it is not clear exactly how the worker injured himself, the Panel, having regard to the facts above, the Panel concluded that the worker suffered a temporary exacerbation of pre-existing cervical degenerative disc disease, with referred pain to the shoulders, but without radiculopathy, which has now resolved and the worker is suffering from mild persisting cervical degenerative disc disease, which is of constitutional origin, is long-standing and is not attributable to any claimed neck injury occurring on 16 August 2013.[76]

**101 Although it may not have been a beneficial exercise for the Panel to raise its concern in relation to causation, the Reasons make clear that it was not taken into consideration and did not form a part of its finding.

102 In any event, the plaintiff has failed to provide any evidence to this Court as to what relevant evidence or submissions would have been provided to the Panel had it been provided the opportunity. Without such submissions, the plaintiff has not established precisely what prejudice would have allegedly arisen.

103 I therefore find that there was no breach of procedural fairness by the Panel and ground (f) of the plaintiff accordingly fails.**

Did the Panel's reasons fail to disclose the path of reasoning? (Ground (g))

**104 The plaintiff submits that the Panel's Reasons demonstrate that the path of reasoning proceeded outside the agreed facts and that the Panel's Reasons did not disclose an actual path of reasoning based on the agreed facts.[77] Particularly, the plaintiff raises an issue in respect of the third medical question. The plaintiff argues that because the Panel answered the first part of that question, which had to do with work capacity, in the negative, there was no reason to go on and answer the second part of that question, which was continued upon an affirmative answer to the first part. By nevertheless answering the second part, the plaintiff contends that there was not a satisfactory path of reasoning disclosed by the Panel.[78]

105 The plaintiff further submits that the path of reasoning incorporates material in respect of which he was not given the opportunity to respond.[79]

106 The plaintiff submits that the Panel's Reasons therefore do not meet the standard required of reasons as laid down by the High Court in Wingfoot.[80]**

**107 The first defendant submits that the Panel's Reasons disclose a clear path of reasoning, which comply with the requirements as set out in Wingfoot. The first defendant contends that the matters that the plaintiff argues should have been expounded in the Panel's Reasons go beyond the standard for reasons outlined in Wingfoot.[81]

108 The first defendant notes that the High Court in Wingfoot held, inter alia, that a medical panel is not required to explain why it did not reach an opinion it did not form, even if that opinion arose in the material before it.[82]

109 The first defendant cites T Forrest J in Denham v Consolidated Herd Improvement Services Co-Op Ltd,[83] who observed that the standard laid down for medical panels in Wingfoot 'differs markedly from the standard of reasons required of a judge giving reasons for a final judgment of an action in court'.[84]

110 The first defendant submits that there was in any event a clear path of reasoning by the Panel in the present case.[85]

111 The first defendant submits that it was not necessary for the Panel to make any finding of current incapacity resulting from the medical condition of the plaintiff's neck on the basis that such a finding was irrelevant to the issues in dispute.[86]

112 As to the contention that the Panel's Reasons should have explained why Dr Kucminska's contemporaneous notes were relied upon instead of the history provided in her written report, the first defendant argues that the Panel did not reject the history but rather placed greater reliance on the contemporaneous notes, as it was entitled to do. As established in Wingfoot, the Panel was entitled to arrive at an opinion on the medical question contrary to Dr Kucminska's, and its reasons outlined how it reached that opinion. There was no requirement for the Panel to opine on the correctness of other opinions on the medical questions or to provide a comprehensive explanation for why it rejected any medical evidence.[87]

113 Finally, the first defendant submits that there was no obligation on the Panel to make any findings of incapacity pre-existing the injury of 16 August 2013. The first defendant notes that there could have been a multitude of reasons for why the plaintiff was incapacitated (if he was) at the time of the Panel's examination of him. However, the path of reasoning to the Panel's opinion did not depend on this.[88]**

114 Wingfoot has established the standard required of a written statement of reasons by a medical panel. The requirements are as follows:

The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[89]

115 There is a danger in demanding extensive reasons from medical panels, which are tribunals made up of medical professionals. The words of Beach J in Ventrice are probative in this regard:

Whilst no doubt the Panel could have said more in explanation of its ultimate conclusion, the same can be said in almost every case involving an expert tribunal. The question is whether the reasons are inadequate, remembering that they are the reasons of a tribunal (not that of a judicial body) and that they are meant to inform and over-zealous judicial review is to be eschewed.[90]

**116 In the present matter, I am satisfied that the Panel's Reasons disclose a clear path of reasoning by which it arrived at its opinion in respect of the medical questions. No error of law was discernible from the Reasons.

117 I agree with the first defendant's submissions that the pathway of reasoning was revealed within the Panel's Reasons by the following findings:**

**(a) that the plaintiff was suffering symptomatic pre-existing cervical degenerative disc disease, which had been present for at least two years (and therefore prior to the injury of 16 August 2013);

(b) the injury of 16 August 2013 caused a temporary exacerbation of the pre-existing cervical degenerative disc disease with referred pain to the shoulders, but without radiculopathy;

(c) the temporary exacerbation of the pre-existing cervical degenerative disc disease had resolved;

(d) the worker continued to suffer mild persisting cervical degenerative disc disease, which the Panel opined was:**

(iii) not attributable to the neck injury of 16 August 2013_**

**(e) there was no current medical condition of the plaintiff's back or shoulders;

(f) on the basis that the plaintiff was not suffering from any medical condition attributable to the injury, the Panel expressed no view as to the appropriateness of any medical service or proposed medical service, such as physiotherapy, for the injury and/or medical condition;

(g) on the basis that the plaintiff was not suffering from any medical condition attributable to the injury, the Panel opined that the plaintiff had no inability arising from an injury, such that he was not able to return to work, either in his pre-injury employment or in suitable employment; and

(h) any claimed incapacity for work did not result from, and was not materially contributed to, by any of the claimed injuries.[91]**

**118 I also briefly note that, in accordance with Wingfoot, there was no obligation on the Panel to opine on the correctness of any other medical opinions in respect of the medical questions, or to discuss why it preferred certain medical evidence over other medical evidence. It was the Panel's function to form and give its own opinion on the three medical questions before it by applying its own medical experience and expertise. I am satisfied that the Panel did so.

119 I therefore find that the Panel's reasons were adequate.**

**120 For the reasons set out above, I dismiss the appeal.

[1] Reports of Mr Clive Jones dated 11 November 2013, 18 January 2014 and 24 January 2014.

[2] Affidavit of Henry Carus sown 11 May 2015, Exhibit HC-2.

[5] Ibid Exhibit HC-6 (emphasis in the original).

[6] Amended Originating Motion dated 22 March 2016, 10(a)-(g).

[7] Further Submissions to the Plaintiff's Outline of Submissions dated 22 March 2016 ('Plaintiff's Further Submissions'), 2-3 [7]-[9]; Transcript of proceedings, Mehdi Kakae v Wetspot Consolidated Pty Ltd (Supreme Court of Victoria, S CI 2013 02407, Zammit J, 30 March 2016) ('T') 16, lines ('LL') 13-21.

[9] T 36, LL 26-29; T 37, LL 27-31; T 38, LL 1-2.

[11] [1932] HCA 30; (1932) 47 CLR 426, 451 ('Smith').

[13] Smith [1932] HCA 30; (1932) 47 CLR 426, 451.

[14] [2000] VSC 339 ('Calleja').

[19] Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot') [2013] HCA 43; (2013) 252 CLR 480, 498-499 [47].

[20] First Defendant's Outline of Submissions in Reply dated 29 March 2016 ('First Defendant's Submissions in Reply'), 3 [13]-[15].

[21] [1995] VICSC 209; [1996] 1 VR 635 ('Masters').

[24] T 72, LL 19-23, 28-31; T 73, LL 1-5.

[25] First Defendant's Submissions in Reply, 4 [19]-[20].

[27] Smith [1932] HCA 30; (1932) 47 CLR 426, 444 (citations omitted).

[29] T 83, LL 20-31; the defendant cites McIntyre v Fish [2015] VSC 82; Ventrice [2008] VSC 415; Clarke v National Mutual Life Insurance Ltd [2013] VSC 536 [74]; Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 490 [18]; Department of Human Services v Kotzman [2013] VSC 360; Barnett v Malios [2013] VSC 404; McVey v FJ & LJ Smith Pty Ltd [2014] VSCA 293.

[30] [2008] VSC 415 ('Ventrice').

[32] [2008] VSC 415 [15].

[34] First Defendant's Submissions in Reply, 8 [38].

[36] First Defendant's Submissions in Reply, 8 [38]; T 100, LL 12-26; Calleja [2000] VSC 390, [29].

[37] [2013] HCA 43; (2013) 252 CLR 480 ('Wingfoot').

[38] [2015] VSC 82 ('McIntyre').

[39] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 490 [18].

[40] McIntyre [2015] VSC 82 [2].

[44] T 80, LL 1-5, 23-31; T 81, LL 1-2.

[45] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 498-499 [47].

[46] Masters [1995] VICSC 209; [1996] 1 VR 635, 642; see also Ormiston J at 653.

[47] Smith [1932] HCA 30; (1932) 47 CLR 426, 444.

[48] Although this report of 24 January 2014 was not referred to in the Panel's Reasons.

[50] [2008] VSC 415, [15].

[52] See McIntyre [2015] VSC 82 [2], [120]-[124]; Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 490 [18]; Clarke v National Mutual Life Insurance Ltd [2013] VSC 536 [36], [74]; Department of Human Services v Kotzman [2013] VSC 360 [19]; Barnett v Malios [2013] VSC 404.

[53] The first medical question in Calleja was based on the predecessor to the definition of a medical question under s 3(a) of the WIRC Act.

[54] Calleja [2000] VSC 339, [25], [27]-[28].

[57] Plaintiff's Further Submissions, 3 [12]-[13]; T 52, LL 2-8.

[59] First Defendant's Submissions in Reply, 9 [40].

[60] T 74, LL 16-31; T 75, LL 1-13; T 102, LL 22-26.

[61] First Defendant's Submissions in Reply, 9 [40]; T 105, LL 5-7.

[62] Referral Notice dated 31 October 2014, 2.

[63] T 52, LL 24-31; T 53, LL 1-2; Panel's Reasons, 6-7.

[64] Plaintiff's Further Submissions, 4 [15].

[66] First Defendant's Submissions in Reply, 9 [41]; T 105, LL 11-20.

[67] Smith [1932] HCA 30; (1932) 47 CLR 426, 444.

[68] First Defendant's Submissions in Reply, 9-10 [42]-[44]; T 105, LL 21-29.

[69] [2008] VSC 415 [3], [16].

[71] First Defendant's Submissions in Reply, 1 [2].

[72] [2013] VSC 248.

[74] First Defendant's Submissions in Reply, 10-11 [48]; T 107, LL 29-31; T 108, LL 1-7.

[75] First Defendant's Submissions in Reply, 6 [37].

[77] Plaintiff's Submissions dated 28 August 2015, 9 [23].

[80] [2013] HCA 43; (2013) 252 CLR 480.

[81] First Defendant's Submissions in Reply, 1 [3], 11 [49].

[83] [2014] VSC 520.

[85] First Defendant's Submissions in Reply, 12-13 [54].

[87] First Defendant's Submissions in Reply, 13 [58]; T 110, LL 24-31.

[88] First Defendant's Submissions in Reply, 13 [59]; T 111, LL 12-18.

[89] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 501 [55].

[90] [2008] VSC 415 [30].

[91] Panel's Reasons, 6-7; First Defendant's Submissions in Reply, 12-13 [54].