Plaintiffs v Defendants

Supreme Court of Victoria|2005-06-21|Before: Ashley, J

Administrative law - accident compensation - questions referred to Medical Panel

under s. 45, Accident Compensation Act 1985 - opinion - reasons - judicial review -

whether reasons adequate - whether failure to exercise jurisdiction.

1 The main question for determination in this proceeding is whether the reasons given by a Medical Panel ("the Panel") constituted under the provision of the Accident Compensation Act 1985 ("the Act") to answer four questions referred to it by a judge of the County Court under s. 45 of the Act were sufficient. By originating motion filed 20 December 2004 Martin and Stephanie Kamener, who were the employers of the fifth defendant, Mark McColl, for a period of several months in 1999, complain that the reasons were insufficient. They, together with the Victorian WorkCover Authority are the plaintiffs in this proceeding. The defendants are respectively the four members of the Panel and Mark McColl. The plaintiffs seek that the Panel's certified opinion in writing dated 12 November 2004 be quashed, and that the questions be referred for reconsideration by a medical panel differently constituted.

2 The originating motion does not confine the attack on the Panel's opinion to the reasons. It alleges also a failure to exercise jurisdiction[1] and want of procedural fairness.[2] The second of those complaints was not pursued at trial, and in that event counsel for the Panel, who had appeared to meet the complaint, made no submissions and indicated that his clients would abide the Court's decision. The attack for jurisdictional error, on the other hand, was pursued at trial.

3 The subject matter of the proceeding must be set in context.

4 The fifth defendant (conveniently "the worker") was employed by the first and second plaintiffs ("the employer") between late May and mid July 1999. On 4 July 2001 he lodged a claim for compensation. He alleged the following "injury/condition":

"Lumber (sic) spine and right shoulder (serious pain)."

He had first noticed the injury/condition in June 1999.

He claimed that the injury/condition had arisen gradually over a period of time. He related the same to:

He claimed to have reported his injury/condition to a workmate on 17 July 1999.

He made mention of a road traffic accident which had occurred on 15 April 1998, in connection with which he referred to:

5 The employer ultimately denied the compensation claim thus raised - although some part of it seems to have been admitted - it was said by mistake - at an early time.[3]

6 The worker commenced a County Court proceeding by writ filed 21 March 2002. He alleged that -

Throughout the course of his employment he had been required to perform work "which involved manoeuvring heavy crates containing soiled crockery and assorted kitchenware, the weights of which were excessive in the circumstances, including the fact that the crates had to be lowered into, or raised from the dishwasher."
In consequence of such work he had suffered injury, namely:

Intervertebral disc disruption in the lumbar spine;

He had ceased work on or about 15 July 1999 as a result of his injuries; and that at all relevant times he had been totally incapacitated for his pre-injury employment.

7 By its defence filed about 5 June 2002 the employer relevantly -

Admitted that the worker had been employed as a kitchen hand.
Did not admit that the worker had suffered the injuries alleged.
Alleged that the worker had abandoned the employment on or about 15 July 1999.
Did not admit continuing total incapacity or permanent impairment of the "neck, back and right upper limb".

8 The proceeding came on for hearing 10 February 2003. On that day the worker's counsel foreshadowed a request to refer questions to a medical panel. She did not provide details of the intended questions. Counsel for the employer indicated that he would object to referral. There was, he submitted, "no bona fide medical question".

9 In the event, the hearing went forward and the worker gave evidence. His evidence in chief occupied 29 pages of transcript. Cross examination occupied 113 pages, and re-examination another 14 pages.

10 The thrust of the cross-examination was undoubtedly that the worker was a liar, otherwise an unreliable witness, or both; that he had not suffered compensable injury at all - any condition from which he suffered being attributable to the April 1998 traffic accident and/or to a fall at home in April 2001. In the course of the attack it emerged that the worker was a man with a criminal past, that he was a drug user, and that (at times at least) he had been affected by a psychosis.

11 Both by his statement of claim and by his earlier claim for compensation the worker sought to implicate tasks allegedly performed repeatedly throughout the period of his employment as being causative of his injury. That is not to say that he alleged in terms an injury which fell within paragraph (b) or (c) of the definition of "injury" as it stood at the relevant time. Neither did the fact that in his claim form he referred to injuries allegedly sustained in an earlier road traffic accident necessarily raise such an implication.

On the other hand, those documents opened up the possibility that if the worker had suffered any injury in compensable circumstances it either consisted of or included what I will call a paragraph (b) or (c) injury; and the worker's viva voce evidence at the least did not detract from that possibility.

12 At the conclusion of the worker's evidence his counsel requested the referral of four questions to a medical panel. Thus:

"(1) What is the nature of the worker's medical conditions relevant to the injuries as alleged in paragraph 7 of the statement of claim?

(2) Was the plaintiffs' employment with the first and second defendants a significant contributing factor to any, and if so which, injuries alleged in the statement of claim?

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

(b) If yes to part (a) what employment would constitute suitable employment?

(4) (a) Does the plaintiff's incapacity, if any, result from or is it materially contributed to by the injuries alleged in the statement of claim?

(b) If yes to part (a) is the plaintiff partially incapacitated?"

13 Reference was opposed by the employer's counsel, on the footing that it would be an abuse of process: see s. 45(1B) of the Act. Counsel submitted that there was a fundamental factual issue: had the worker suffered any injury arising out of or in the course of his employment? That was not a medical question. The worker had suffered injury only in April 1998 and April 2001.[4] According to counsel's submission, reference would be an abuse because there was no material on which a panel could find that compensable injury had been sustained.

14 Counsel for the worker submitted, in response, that of course the very question raised by s. 82(1) of the Act could be referred to a panel for its consideration. That was, in effect, the text of paragraph (b) of the definition of "medical question" (conveniently, "medical question (b)") in s. 5 of the Act.[5]

15 The learned judge, with his particular expertise in accident compensation matters, evidently recognised the possible problem which could be created by his referring the second question to a panel.[6] Nonetheless, having specifically opined that all the issues raised by the questions were relevant to issues in dispute, he concluded, in substance, that the effect of authorities was that he was obliged to refer the questions to a panel.

16 The want of adequate reasons of which the plaintiffs now complain particularly focussed upon the Panel's answer to question 2. What that question authorised the Panel to do, although it was not raised by either party at the outset, is a matter which I shall later address. The history of the referral sets the scene, inter alia, for such consideration.

The Sequence of Events following Referral of the Questions

17 More than two years have passed since the judge referred the four questions to a medical panel. That in itself requires some explanation. Further, description of what has happened is necessary in order to explain how the plaintiffs' present complaints evolved.

18 The Panel received the referral on 13 March 2003. Accompanying the referral was a mass of material. Counsel for the plaintiffs said that there must have been 500 pages of documents. The material comprised -

The statement of claim and the defence.
Nineteen medical and like reports upon which the worker relied.
Twenty medical and like reports upon which the employer relied.
A videotape made by the employer of what it claimed were typical workplace conditions.
The claim form completed by the worker.
A claim form completed by the worker in connection with the 1998 traffic accident.
Court Books and supplementary Court Books.
The transcript in the proceeding.
An "agreed statement of facts and facts or questions in dispute".

19 The last-mentioned document identified the matters in dispute this way:[7]

"A. The Defendant denies that the Plaintiff suffered any injury in the course of or arising out of or due to the nature of the stated employment.

The Defendant contends the medical histories provided to medical practitioners for the purposes of a claim for worker's compensation were false.
The Defendant contends that if the worker suffered any injury, particularly to his right shoulder and back (including the low back), such injuries were suffered prior to employment with the said Blue Ribbon Café and in particular as a result of a motor vehicle accident on the 25th day of April 1998, and subsequent to his employment when he fell at his home residence on about 19th April 2001. Further, such alternative histories are consistent with histories provided by the Plaintiff to treating examining medical practitioners relevant to other claims.
The Plaintiff denies he suffered any relevant injury, particularly to his right shoulder and low back, before or after the relevant employment with the Blue Ribbon Café notwithstanding the recorded medical histories and which the Plaintiff contends are inaccurate. The Plaintiff contends that the medical histories provided to medical practitioners for the purposes of a claim for worker's compensation are truthful."

20 Thereafter the worker was examined by the four members of the panel. Three of its members examined him on 17 June 2003. Its fourth member examined him on 8 August 2003.

21 On 18 August 2003 the Panel certified its opinion. Questions 1 and 2, and the answers to those questions, were as follows:

"Question 1: What is the nature of the worker's medical condition relevant to the injuries, as alleged in paragraph 7 of the Statement of Claim?

Answer: The Panel is of the opinion that the worker is suffering from residual right shoulder symptoms due to an aggravation of degenerative changes in the right acromio-clavicular joint and a mild Adjustment Disorder with features of irritability, agitation and depressed mood, relevant to the alleged right shoulder injury.

There is now no medical condition of the lumbar spine or cervical spine, relevant to any alleged injury.

Question 2: Was the Plaintiff's employment with the first and second Defendants a significant contributing factor to any, and if so which, injuries alleged in the Statement of Claim?

Answer: The Panel is of the opinion that the Plaintiff's employment with the defendants was in fact a significant contributing factor to an injury to the right shoulder, a musculo-ligamentous injury to the lumbar spine, which has now resolved, and to the development of a psychiatric condition, but employment could not possibly have been and was not in fact a significant contributing factor to alleged injury to the cervical spine, nor to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the lumbo-sacral spine or cervical spine in any way."[8]

22 The employer's solicitors requested reasons by letter of 4 September 2003.

23 Reasons were provided under cover of letter dated 9 September 2003.[9]

24 Thereafter the employer and the Victorian WorkCover Authority commenced a proceeding, by originating motion filed on or about 7 October 2003, by which they sought to have the Panel's opinion quashed, and to have the questions remitted for reconsideration by a differently constituted panel.

25 The proceeding was heard by Williams J on 19-20 April 2004. Her Honour delivered judgment on 1 July that year. Her Honour rejected a complaint that the employer had been denied natural justice because the panel had failed to seek a response to statements made by the worker during examination or, more generally, in relation to the issues in dispute including the worker's credibility.[10] Her Honour likewise rejected a complaint that the Panel had failed to take all relevant matters into account.[11] She concluded, on the other hand, that the Panel had failed to provide adequate reasons. She said this:

"The Medical Panel has stated that it took into account the materials in Enclosure A which included the challenges to the credibility of the worker's account of injury being attributable to his employment and I have found that its answers to the medical questions and the Reasons are not inconsistent with it having done so. Further, the Medical Panel was not asked any direct medical questions about the effects of either the previous accident or the subsequent fall or the worker's previous state of mental heath. Nevertheless, the Reasons do not explain the extent to which the Medical Panel accepted the worker's assertions and the various histories given by him or relied upon other material of a more objective character in reaching its conclusions about the effects of the nature of his duties.

In my opinion, given the clear dispute as to the accuracy of the histories given by the worker, the issues raised about any effects of the previous and subsequent incidents and the challenges to the worker's credibility, it was incumbent upon the Medical Panel to describe in more detail how it reached its conclusions. It was not enough for it to have made a general reference to relevant materials. It needed to provide 'sufficient detail' to fulfil the obligation described by Callaway JA in Masters v McCubbery, 'to show the court and the worker that the question referred to the panel ha[d] been properly considered according to law and that the opinion furnished [was] founded on an appropriate application of the members' medical knowledge and experience.' In all the circumstances, I do not consider that the Reasons enabled the employers and the VWA to see whether relevant or irrelevant considerations had or had not, respectively, been properly taken into account and so determine whether any error of law had been made.

Accordingly, it has breached its obligations under s 8 of the Administrative Law Act 1978. As the record includes the Reasons by virtue of s 10, the inadequacy of the Reasons constitutes an error of law apparent on the face of the record."[12]

26 In the event, her Honour quashed the Panel's opinion, and remitted the questions to the Panel - implicitly if not expressly the Panel as earlier constituted - for further consideration.

27 The plaintiffs' solicitors then took it upon themselves to write to the Convenor of Medical Panels, submitting that a differently constituted panel reconsider the matter. The content of the letter was highly tendentious. The submission which it made was rejected; and, not that it matters, I consider that its rejection was quite justified.

28 Then the plaintiffs' solicitors delivered written submissions to the Panel on their clients' behalf.[13] The document was in part beside the point; for it revisited complaints about the Panel's performance which the plaintiffs had made before Williams J and which her Honour had rejected. That apart, it highlighted, again and again, areas of factual dispute; and the employer's position that the worker had not suffered any injury. Further still, it baldly asserted that the Panel was "bound" to investigate, explore and take into account a number of matters. In short, in strident terms the document pointed up the areas of dispute and what it was asserted the Panel must do in that connection.

29 Thereafter the worker's solicitors delivered written submission to the Panel. It is not necessary to mention very much of what they submitted. I do note that they opposed the plaintiffs' submission that the Panel should interview Mr and Mrs Kamener - on the footing that, in effect, it would be unfair for the plaintiffs' evidence on oath, tested by cross-examination, to be set against untested statements which the Kameners might make in private consultation with the Panel.

30 The Panel members re-examined the worker on 22 October 2004. The Panel's Certificate of Opinion dated 12 November 2004[14] set out, inter alia, questions 1 and 2, and its answers thereto. Thus -

"Question 1: What is the nature of the worker's medical condition relevant to the injuries, as alleged in paragraph 7 of the Statement of Claim?

Answer: The Panel is of the opinion that the worker is suffering from mild residual symptoms of a soft tissue injury of the right shoulder and a mild Adjustment Disorder with features of irritability, agitation and depressed mood, relevant to the alleged right shoulder injury.

The Panel is also of the opinion that there is now no medical condition of the lumbar spine and no medical condition of the cervical spine, relevant to any alleged injury.

Question 2: Was the Plaintiff's employment with the first and second defendants a significant contributing factor to any, and if so which, injuries alleged in the Statement of Claim?

Answer: The Panel is of the opinion that the Plaintiff's employment with the Defendants was in fact a significant contributing factor to an injury to the right shoulder, a musculo-ligamentous injury to the lumbar spine, which has now resolved, and to the development of a psychiatric condition, but employment could not possibly have been and was not in fact a significant contributing factor to any alleged injury to the cervical spine, nor to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the lumbo-sacral spine or cervical spine in any way."

31 According to the affidavit of the plaintiffs' solicitor, Tony Forgione, sworn 17 December 2004 in this proceeding, what he calls "the 'new' opinions" were identical to the opinions in the first certificate.[15] That is simply not the case.

32 The employer's solicitors sought the Panel's reasons. The same were provided under cover of letter dated 25 November 2004.[16] Subjoined to the reasons, as Appendix A, was a list of documents which the Panel said it had considered. Those documents included all the documents which had originally been provided to it; and as well the 2004 submissions for the employer and the worker which had been forwarded in July and September 2004.

33 Thereafter the plaintiffs commenced this proceeding. In his affidavit in support Mr Forgione in part "submitted", which I do not take to be the function of an affidavit, that the Panel had not done what Williams J had ordered, but had "rather used the remittal of the referred questions to do no more than 'patch up' the reasons" first given.[17]

34 Before me, counsel for the plaintiffs submitted, concerning the alleged inadequacy of the Panel's second reasons, that the Panel had identified inconsistencies between, on the one hand, the worker's account of potentially relevant events (in which I include events both preceding and subsequent to the employment) and on the other hand assertions of fact made by the employer, and references in medical reports to complaints of shoulder injury subsequent to the 1998 traffic accident, and in consequence of the fall in April 2001. But having noted the disparities, counsel submitted, the Panel had proceeded to a conclusion, specifically with respect to question two, favourable to the worker. Either it had not resolved the inconsistencies nor passed upon the worker's credibility - which on the plaintiffs' case it must have done in order to exercise its jurisdiction; or else the questions whether it had done so, and if so how it had resolved those issues, were not revealed by its reasons, which were for that reason inadequate. The reasons, counsel submitted, must enable a Court to see whether the decision does or does not involve any error of law. [18] Here, counsel added, the parties had framed the matters in dispute. They had done so in compliance with s. 65(6A) of the Act. The worker had needed to persuade the Panel that he had sustained injury - probably on a balance of probabilities test. The reasons must have addressed the issues joined, and have explained the Panel's conclusions and its satisfaction to the required standard.

35 The reasons, counsel contended, did not enable the employer to understand why the Panel had concluded as it did, in what way it had resolved conflicts.[19] Indeed, counsel argued, "we still don't know whether they believed him".[20]

36 Further again, counsel submitted, if it was to be inferred that the Panel had accepted the worker's creditworthiness, there was nothing which showed the route by which it had done so.

37 Still further, counsel submitted, the plaintiffs were entitled to complain that the second reasons were a "patch up job". The opinion should be quashed rather than an order be made compelling further or better reasons. The particular Panel had

"... shown itself as being totally unable to undertake an indubitable panel function; namely that of considering and determining a dispute as to a worker's credit where, as here, such a determination [was] necessary to answer a referred medical question."

38 I should finally note counsel's concession that if, contrary to his submissions, I concluded that the reasons were adequate, then the plaintiffs' complaint founded upon alleged failure by the Panel to exercise its jurisdiction must fail.[21]

39 Counsel for the worker submitted that the substance of the plaintiffs' complaint was that the Panel's opinion and reasons were against the evidence and the weight of the evidence. That did not raise a question of law. A decision maker entrusted, as was the Panel, with power to determine factual matters has power not only to go right but also to go wrong.[22] It was wrong in principle to use the vehicle of judicial review to conduct a merits review.[23] That was what the plaintiffs were really attempting to do.

40 Counsel further submitted that it was plainly incorrect to characterise the Panel's opinion as one "favourable to the worker". In large measure its second opinion had been adverse to him. It had rejected most of his allegations of injury, had changed its mind about an injury the compensability of which it had initially accepted, and had determined the question of current work capacity unfavourably to him.

41 Counsel submitted also that the reasons were not defective as failing to grapple with the issue of the worker's credit. The Panel's decision, relevantly, was that the worker had suffered injury. That did not depend simply upon the worker's credit. Other material before it was able to bear upon the conclusion. The Panel had evidently been aware of its task. Its reasons should not be over-analysed[24]. It had been unnecessary for the Panel to pass upon the possible occurrence of shoulder injury in April 1998 and April 2001 - though in fact it had referred to the former incident in several connections and briefly to the latter incident also.

42 Counsel emphasised the particular requirements of reasons in the context of an administrative decision - referring, inter alia, to Masters v McCubbery. He noted the importance of considering the adequacy of reasons in the individual context, referring me to recent observations of Gillard J in that connection.[25] He also submitted that what had been said by Nettle JA in Hunter v TAC & Anor, in the passages cited by the plaintiffs' counsel, addressed the issue as to what reasons are required of a person exercising a judicial function.

43 I should say immediately that it was no part of the plaintiffs' case, either in the employer's submissions to the Panel, or in submissions made to me, that if the Panel formed the opinion that the worker had sustained any of the alleged injuries, nonetheless question two should not be answered unless such injury was in some part a paragraph (b) or in (c) injury. Nor was it part of the plaintiffs' case before me that the reasons were defective because they did not make clear a conclusion that the shoulder injury which the Panel found that the worker had suffered was in part at least a paragraph (b) or (c) injury. Rather, the plaintiffs' case before me was conducted on the footing that the Panel had given an answer to question two, finding that an injury had been suffered, which was objectionable in that its reasons did not explain the route which led to that answer. That is the context in which, for the moment, I will consider the matter.

44 Concerning the critical question two, the Panel evidently found, compatibly with its certificate of opinion, that the worker had suffered a shoulder injury of a particular character to which the employment had been a significant contributing factor. I consider that it adequately explained the route by which it arrived at those conclusions. The following matters are pertinent (I do not set them out in any strict order of importance).

45 First, the broad principles which guide the necessary content of reasons of a medical panel are described in Masters v McCubbery. Those principles, which bind me, are in accord with the High Court and the Western Australian Supreme Court authorities to which I was referred. The observations by Nettle JA in Hunter, which seem to be more strict, are apposite to a person exercising a judicial function.

46 Second, the reasons required of a panel in a particular case will be shaped by the particular issues in dispute and by the material of which the panel is seised. It is thus necessary, on an application for review, to carefully consider the context in which the opinion was reached and the reasons were given.

47 Third, in the instant case the Panel could not have been unaware that the root issue was whether the worker had sustained any injury in the course of or arising out of the employment. It was possessed of a large amount of material which highlighted that issue. It included the worker's lengthy evidence, medical and like reports, the reasons for judgment of Williams J, and the employer's strident submissions dated 26 July 2004.

48 Fourth, the employer's submissions to the Panel repeatedly stressed the worker's alleged dishonesty, and asserted that his creditworthiness was a central issue for determination. The submissions told the Panel what it was bound to do in resolving contested issues. Appended to the submissions were selected transcript references to the opening by the worker's counsel and of the worker's examination and cross-examination in the County Court.

49 I consider, however, that the Panel was not obliged to follow a particular part of reasoning in forming its opinion in respect of question two. Just because the employer's representatives pressed for a particular approach does not mean that it was necessarily the correct or the only approach to resolving that question. The critical issue was whether, all things considered, the Panel was satisfied that the worker's employment was a significant contributing factor to any and which of the injuries alleged in his statement of claim. In resolving that question the worker's general lack of creditworthiness, assuming for argument's sake that such was the case, may not necessarily have been an important, still less a decisive consideration.

50 Fifth, I do not at all agree with the submission for the plaintiffs that the Panel's second opinion and reasons were a "patch up job." The exercise in which counsel engaged of providing me with copies of the two sets of reasons marked up so as to show where the same language had been used in both really served to highlight the differences. Not only did the reasons show that the Panel members had re-examined the worker, they -

Set out extended detail of the 1998 accident, including conflict between the worker's denial that he had suffered shoulder injury at the time, contrary reference in a medical report, and the fact of shoulder x-ray in March 1999.
Gave an extended account of the worker's alleged complaint to his employer about injury, and what he said were the circumstances of him ceasing work; and noted the employer's denial that any complaint had been made.
Set out an extended history given by the worker of shoulder symptoms which he allegedly experienced shortly after ceasing the employment.
Put a time to the worker's history that he was prescribed strong painkillers for his shoulder condition.
Noted conflict between the worker's denial that he suffered shoulder injury in April 2001 and documents which had been provided to it.
Set out an up to date history of the worker's shoulder symptoms.
Set out up to date clinical findings, which varied in some respects from those earlier noted.
Noted the conflict between the worker's account of his duties and what the employer asserted, by reference to the video-tape, was the true nature of his work.
Reached a different opinion concerning the worker's shoulder condition than it had done in 2003. That is, it concluded that the worker had suffered a soft tissue injury to the shoulder in his employment, but had not suffered aggravation of pre-existing osteoarthritic change in the right acromio clavicular joint; and further concluded that recently observed sensory changes in three fingers of the worker's right hand were not of clinical significance.
Said this -

"The Panel carefully considered the lengthy submissions made by the parties and did not consider it was appropriate for it to hear directly from the employer. The Panel took into account the apparent inconsistencies in the histories provided by the worker and some of the reported histories. Despite the inconsistencies, the Panel is satisfied that, on balance, the nature of the work at the café caused a soft tissue injury to the right shoulder and the worker's current mild residual right shoulder symptoms are still materially contributed to by that injury. The Panel now considers that it was unlikely that the constitutional degenerative changes of the right acromio-clavicular joint were affected by the nature of the work. The Panel considers the worker's current mild psychiatric condition arose as a consequence of the right shoulder injury. The Panel also considers the nature of the work probably caused a musculo-ligamentous injury to the lumbar spine, which has now resolved."[26]

It appears to me, in the event, that the Panel made a serious-minded attempt to address what had been said to be the shortcomings in the reasons considered by Williams J.

51 Sixth, the Panel specifically said that it had considered the submissions made by the parties. It went on to say that it did not consider it appropriate to hear from the employer. Even if there was an intended connection between those two things, it could not possibly be the case that the Panel was saying that it had only carefully studied the submissions in connection with that single issue.

52 Two observations flow from what I have just said. First, the Panel's approach to whether it should hear viva voce from the employer was logical. The submissions made for the worker were in point. Second, there is no reason not to take the Panel at its word; that is, that it had carefully considered, inter alia, the submissions made for the employer.

53 Seventh, the Panel's reference to the parties' submissions set the scene for its reference to apparent inconsistencies, and to its conclusion "despite the inconsistencies" that the worker had suffered injury to which the employment had been a significant contributing factor. In my opinion the close textual connection between references to the submissions, the apparent inconsistencies and the Panel's conclusion that the worker had suffered particular injuries - expressed "despite the inconsistencies"- cannot be ignored.

54 I think it is clear, notwithstanding the Panel's initial reference to "apparent inconsistencies", that the Panel concluded that there were in fact inconsistencies - between the worker's history and what had been recorded in medical history, between the worker's history and the dates of medical imaging, between the worker's account of his work conditions and of complaints made and the employer's pertinent denials - and yet was satisfied that the worker had suffered the particular injuries.

55 It also seems to me to be implicit in its reasons that the Panel approached the matter not simply by recognising that there were inconsistencies, but by resolving the inconsistencies against the worker. It could hardly have been otherwise in some instances. So, for example, the worker had denied suffering "any previous injury to his back or shoulders". Yet a medical report subsequent to the 1998 traffic accident had referred to a right shoulder injury; and there was an X-ray report concerning the right shoulder dated 28 March 1999. Both those circumstances were noted by the Panel in its reasons. Again, the worker had denied injuring his shoulder in the fall at home in April 2001. But there was an x-ray report concerning the right shoulder dated 25 May 2001, and an ultrasound report pertaining to that shoulder dated 31 May 2001. Again, those circumstances were noted by the Panel in its reasons. In each of those areas of dispute objective material cited by the Panel stood opposed to the worker's history.

56 In the event, I consider it to be implicit in the Panel's reasons that it concluded that the worker had sustained, inter alia, particular injury to his right shoulder even given the fact that the work had been lighter than the worker had contended for.

57 Eighth, it seems to me to be apparent, in all the circumstances which I have described, that the Panel felt able to accept so much of the worker's history as described a progressive onset of symptoms referable to soft tissue injury to the right shoulder. It said that it was so satisfied "on balance" - which seems to me to imply an appropriate fact-finding exercise. There was no reason in principle why the Panel, with its medical experience, should not have listened to the pertinent history of onset of symptoms and concluded that it was compatible with injuries such as those which it opined the worker had suffered. Its re-definition of the shoulder injury probably suffered by the worker in compensable circumstances reflects, I should think, such a process of reasoning.

58 Ninth, there was no reason in principle why, having concluded that the worker had suffered shoulder injuries in April 1998 and April 2001, the Panel was precluded from concluding that he had also suffered injury to his shoulder in the employment.

59 Tenth, it is the fact that, in terms, the Panel did not say that it resolved highlighted inconsistencies against the worker. A lawyer would have done so. But what must be considered is the burden of the Panel's conclusions; and in that connection I consider, as I have tried to explain, that the Panel's reasons sufficiently disclose its path of reasoning.

60 Eleventh, it is not decisive against the validity of the exercise which culminated in the Panel's opinion and reasons, or against the adequacy of the reasons, that another panel entrusted with the task assigned to the Panel might have reached a contrary conclusion upon the critical issue.

61 Twelfth, it is no doubt of critical importance that the Panel's reasons sufficiently explain why it reached the conclusions that it did. It is not for me to validate those reasons by an exercise of my own. I have kept that consideration at the forefront in explaining what to my way of thinking is the sense of the Panel's reasons.

62 What function did question 2 authorise the Panel to undertake? Because I was concerned about that matter, and how it might have affected the Panel's obligation to answer question 2, or otherwise the content of its reasons, I sought submissions from counsel, notwithstanding that they had not addressed those matters at the outset; and was provided, as I would have expected, with considerable help.

63 Neither of counsel for the plaintiffs or the worker contended that the Panel should have declined to answer question 2. Counsel for the worker submitted that the Panel had said in its reasons, implicitly if not explicitly, that the injuries which it concluded the worker had sustained were paragraph (c) injuries. Counsel for the plaintiffs, on the other hand, submitted that it was not clear from its reasons that the Panel had so concluded.

64 In my opinion, fairly read, the Panel's reasons do imply that it concluded that the worker had suffered injuries of the paragraph (b) or (c) kind. It evidently concluded that the worker had suffered wear and tear injuries. Such injuries, though not inevitably, would most often fall within the scope of paragraph (b) or (c) - the latter, in a case such as this, in the period of employment after initial development of symptoms.

65 It follows from what I have just said that the reasons adequately disclosed a matter of potential importance to the Panel's function; and that the Panel, in answering question 2, exercised an available function.

66 In case, however, the plaintiffs may wish to take the matter further, and in any event because the issue is likely to be of practical importance in some cases, I make these observations -

67 First, the issue what function, or jurisdiction, is conferred upon a panel when it is referred any one of the variants of medical question (b) involves consideration of a number of provisions of the Act - that is, provisions pertaining to "injury", qualification for compensability of injury, "medical questions", referral of "medical questions" and the functions of medical panels.

68 Second, my observations focus upon the provisions as they stood (subject to odd exceptions) in the period of the worker's employment by the Kameners. By Act 95/2003 substantial changes were made to pertinent provisions - for example, the deletion of references to "significant contributing factor" in the definition of "injury"; the insertion of definitions of "heart attack injury" and "stroke injury" into s. 5(1); the deletion of reference to "significant contributing factor" in s. 82(1); the insertion of s. 82(2B) and (2C); and the amendment of s. 82(6). Nothing I say addresses those amendments.

69 Third, the definition of "injury" was in the terms following:

"'Injury' means any physical or mental injury and without limiting the generality of the foregoing includes -

(b) a disease contracted by a worker in the course of the worker's employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and

(c) the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;"

"(a) any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development; and

(b) the aggravation acceleration, exacerbation or recurrence of any pre-existing disease;"

"(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor, the worker shall be entitled to compensation in accordance with this Act."

72 Fourth, in Hegedis v Carlton & United Breweries Ltd and anor[27] I held, relevantly for present purposes, that the requirement that employment be a "significant contributing factor", in the context of a s. 82(1) allegation of injury, was confined to the situations embraced in paragraphs (b) and (c) of the definition of injury. It was, of course, a necessary but inevitable antecedent conclusion - deriving from the language of the definition of "injury" - that there could be "injury" which did not by definition require that employment be a significant contributing factor.[28]

73 Fifth, I should next refer to medical question (b). Relevantly, it read this way:

(b) a question whether a worker's employment was in fact, or could possibly have been , a significant contributing factor to an injury or alleged injury, or to a similar injury."

74 It follows from Hegedis that none of the variants of that question could ever have been relevant to a claim which did not involve a paragraph (b) or (c) injury. It could never have been appropriate for a court to refer for the opinion of a medical panel a question whether a worker's employment had been a significant contributing factor to an alleged traumatic incident as a back door way of confiding to a panel for its opinion the question whether such incident had occurred, for example, at home or at work. It is clear, in respect of "injuries" not falling within paragraph (b) or (c), that dispute whether injury was compensable was to be determined by the court seised of the matter - most often in the context of s. 82(1) of the Act.

75 Sixth, the example which I have just given focuses attention on this question: what was the content of the enquiry authorised by medical question (b) in respect of which a panel was to provide its binding opinion.[29] In considering that matter it is to be borne in mind that a "medical question" may require fact-finding more or less remote from medicine. That is the effect of what was said in Masters v McCubbery and ors[30].

76 In my opinion, the answer to the question which I framed a moment ago lies in the following propositions:

In every case where a question was framed by reference to medical question (b), the question directed attention to the definition of "injury" in s. 5(1) of the Act, and specifically to a paragraph (b) or (c) injury.
Stating a question in that form necessarily implied that the (alleged) injury was one which, if it had been suffered, could only constitute injury because it was an injury at least partly falling within the language of paragraph (b) or (c) of the definition of "injury", which alone required that employment be a significant contributing factor to injury.
A court would be obliged to refer such a question to a panel if there was something before it which suggested the potential relevance of paragraph (b) or (c) of the definition of "injury" to an injury alleged by the worker. The "something" might perhaps consist of the pleaded allegation of injury, or medical evidence adduced or a medical report put in evidence before referral was sought. That does not exhaust the possible sources of the "something".
In arriving at its answer a panel would be obliged to consider the question of occurrence of injury in an employment as part of the process of determining whether the employment was in fact, or could possibly have been, a significant contributing factor thereto. That not only emerges from the definition of "injury" but also from consideration of the matters which must have been taken into account because of s. 5(1B).
1. In any case where a panel opined that the worker's employment was in fact a significant contributing factor to an injury, alleged injury or similar injury, the practical consequence would likely be that the opinion foreclosed the court's consideration whether the worker had sustained injury compensable under s. 82(1). That is so even though the causal requirements imported by the phrase "arising out of the employment" and by the requirement that employment be a significant contributing factor to injury do not cover[31], conceptually, the same ground.[32]
2. The function of a medical panel was and is to give its opinion on a "medical question" which is referred to it.[33] But that cannot mean, if a question is framed as "medical question" but on consideration of circumstances by a panel it is shown not to be such a question, that the panel is bound to answer the question upon an assumption which it knows to be false. To take a simple example, if a worker claimed compensation in respect of traumatic injury to his hand, and there was no debate that the incident causing the injury had occurred at work, a panel's function could not include giving an answer to a "medical question" whether the worker's employment had been a significant contributing factor to the injury. Once the panel apprehended the circumstances in which the worker had sustained injury, and the nature of the injury, it would necessarily realise that it could not possibly be a paragraph (b) or (c) injury; and it should not answer a question which proceeded on a contrary assumption.

In some instances the question whether a worker had sustained an injury wholly or partly comprising a paragraph (b) or (c) injury would not immediately be apparent to a panel. It may only be after a worker had been interviewed, examined, and after a good deal of medical and other material had been considered, that a panel would be able to conclude not only whether any injury had been sustained, but whether it was an injury which in its opinion was wholly or partly a paragraph (b) or (c) injury. Nonetheless, if a panel concluded, after investigation, that any possible injury was not a paragraph (b) or (c) injury, then the panel would exceed its function if it then used a question in the form of medical question (b) to express an opinion, in substance, that the worker had not suffered injury of the primary kind in compensable circumstances. It would be different, I consider, if the panel concluded that at least some aspect of an alleged injury was of the paragraph (b) or (c) type.[34]

It may be thought unsatisfactory, from the standpoint of doctors, lawyers and clients alike, that the function of medical panels should include deciding whether injuries, alleged injuries or possible similar injuries fell within the language of paragraph (b) or (c) of the definition of "injury". By 1989 there was a vast jurisprudence which dealt with the meanings of the concepts which were set out in those paragraphs. But it is undoubtedly the fact that other "medical questions" embrace the idea that medical men are equipped to decide such issues; and what must be done is to make the statute work as best it can. At least in respect of injuries allegedly sustained before the commencement of Act 95/2003, that would seem to necessitate medical panels being provided with information sufficient to enable them to understand the nature of paragraph (b) and (c) injuries. For if that was not done, in a questionable case a panel might assume a task outside its jurisdiction (I use the word "jurisdiction" though recognising that it is not truly apt to describe the function entrusted to a tribunal).

77 Seventh, in my opinion neither the history of the legislation nor any authority stands in the way of any propositions which I have just stated; to the contrary, they support it.

78 As to the history of the legislation, it is plainly the case that the ambit of medical question (b) expanded over time. It was introduced by Act 64/1989. By that Act, paragraph (f) of the definition imposed a specific limitation. Then, by Act 67/1992, the adjective "significant" was inserted into medical question (b) and the original paragraph (f) was deleted. Still later, by Act 107/1997, the words "was in fact" were introduced, this reversing the earliest version of the question in that connection. Those changes show, I consider, the legislature's intent that in a case the facts of which called medical question (b) into play, the panel was given the function of determining, de facto if not de jure, the compensability of injury as well as of determining whether injury fitted the criteria (as they were at the relevant time) of paragraph (b) or (c) of the definition of "injury".

79 Further as to the history of the legislation, I note the insertion of s. 45(1B) and (1C) by Act 26/2000. Those provisions operate in different ways to temper the obligation which is cast upon a court, where one party seeks referral of a question, to refer "that question" to a panel.

80 I should refer, next, to a few of the leading authorities. First, in McCubbery the President of the Court of Appeal mentioned a number of "medical questions", including question (b) as it then stood, in the context of observing that, by s. 45 (the reference provision) -

"... the legislature has, at the option of a party, effectively divested the court of the power to make the ultimate decision as to an applicant's entitlement to compensation and invested that power in a panel of doctors. That is so because the Act defines 'medical question' so broadly that it encompasses the essential ingredients which underwrite a worker's entitlement to compensation."[35]

That could not be taken, in my respectful opinion, to be other than a broad and generally accurate statement of the situation. It did not address the issue upon which I am presently focussing.

81 Second, in HIH Winterthur Workers'Compensation (Vic) (Ltd) v Greeves[36] Hedigan J considered a case in which complaint was made, inter alia, that a magistrate had been obliged, but had refused, to refer a question to a medical panel. The question in respect of which the insurer's solicitors had sought referral was -

"whether the worker's employment was in fact or could possibly have been a significant contributing factor to an injury or alleged injury, or to a similar injury."

The magistrate had reserved his decision whether the question should be referred until he heard oral evidence. He had then heard both lay and medical evidence. It revealed a dispute whether the worker's then current incapacity was attributable to an admitted work incident upon which a later home incident had been superimposed, or alternatively whether the two incidents were independent and self-limited manifestations of an underlying spinal disorder. The magistrate had resolved the dispute in the worker's favour, and had then refused to refer the medical question to a panel as being irrelevant.

82 Hedigan J held that this course had been impermissible. He specifically declined to decide whether a Court could decline to refer any irrelevant question to a medical panel;[37] although evidently he did not reject the proposition that it would not be obligatory upon a Court to refer a question that addressed a wholly irrelevant issue.[38] In the instant case, his Honour concluded, the question was in fact relevant;[39] although it might have been better framed.[40] That decided the matter. Referral of a relevant question having been sought, the question must have been referred. It had been wrong for the Court to decide the issue raised and then to decline to refer the question because it had become irrelevant.

83 His Honour was, I think, careful to leave open the possibility that in some circumstances a court might not refer a question to a panel without first finding facts. He said this:

"The charade of trying the case, deciding it on the facts and then declaring that it was unnecessary and therefore irrelevant to refer the question to the Medical Panel, cannot be countenanced. Save in the case in which there is or are jurisdictional facts in issue (eg whether the applicant was in employment or whether any injury-producing event had happened), the need to explore the circumstances on which the question is focussed is not likely to be commonplace."[41]

84 Greeves was affirmed on appeal[42]. It has been subsequently applied - see, for instance, Isuzu General Motors Australia Ltd v Jordon[43]. In Jordon, I add, the worker apparently alleged that he had suffered both injury in the primary sense and an aggravation injury. The Court held that a question paraphrasing medical question (b) must have been referred because opinion would at least be relevant (that is, having regard to paragraph (c) of the definition of "injury") to the aggravation injury.[44]

85 Each of Greeves and Jordon, quite apart from the evolution of s. 45, show that the obligation to refer a medical question on request is not absolute and unqualified. There is nothing radical in that proposition.[45]

86 Beyond that, and apart from the evident circumstance that the opinion given with respect to medical questions will decide issues of mixed fact and law which were previously confided to courts, the focus of the cases to which I have referred was upon the content of the obligation to refer. But as I have attempted to point out in these Reasons, referral of a question does not mean that investigation by a panel may not reveal that in truth there is no medical question for its opinion. What should happen in such a case is not answered by authority. The answer must lie in the function which is conferred upon panels by the Act - concerning which, and the outcome of consideration of which, I have earlier expressed my opinion.

87 The Panel's reasons, read fairly in context, were adequate. In consequence, as plaintiffs' counsel conceded must be the case if I so concluded, the plaintiffs did not show that the Panel failed to exercise its jurisdiction. The proceeding should be dismissed.

[1] By grounds 7-9
[2] Grounds 10-12
[3] See exhibit TF-B, transcript, p. 5, to the affidavit of Tony Forgione sworn 17 December 2004
[4] See exhibit TF-B, transcript 12 February 2003, pp. 180, 183
[5] See exhibit TF-B, transcript 12 February 2003, p. 192
[6] See exhibit TF-B, transcript 13 February 2003, p. 220
[7] See, within Exhibit TF-B, exhibit TF9 to the affidavit of Tony Forgione sworn 7 October 2003
[8] Exhibit TF11
[9] Exhibit TF12
[10] [2004] VSC 235 at [31]
[11] At [41] and seq
[12] At [55]-[57]
[13] See exh TF-N
[14] Exhibit TF-K
[15] See paragraph 12 of that affidavit
[16] The Reasons are part of exh TF-L
[17] See paragraph 14
[18] That is the burden of s 8(4) of the Administrative Law Act 1978; see also Masters v McCubbery [1996] 1 VR at 650 lines 26-31, 651 lines 10-18 per Winneke P; at 653 lines 10-18 per Ormiston JA; and at 661 lines 16-24 per Callaway JA
[19] Counsel cited Re Wong; ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247 at [20]- [30]; the earlier Western Australia case of Re Croser; ex parte Rutherford [2003] WASCA 8; and Hunter v TAC & Anor [2005] VSCA 1 at [28], [34], [35]
[20] T 79
[21] See T 41
[22] Counsel cited Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ, The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission & Anor [1999] VSCA 37; [1999] 2 VR 203 at 211 per Phillips JA, and Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 at 171 per Lord Reid
[23] Counsel cited Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272
[24] Counsel cited Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271 - 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; see also at 291-292 per Kirby J
[25] George v Nisselle & Ors [2005] VSC 177, particularly at [56]. The point was also made on several occasions in Re Wong, cited by the plaintiffs. See at [4], [8], [28]
[26] Exhibit TF-L, pp 4-5
[27] [2000] VSC 380; (2000) 4 VR 296

[28] Hegedis must be taken to state the law with respect to those matters; for the Court of Appeal dismissed an appeal, adopting my Reasons in that case at [1]-[69].

[29] As to which see ss. 67(1) and 68
[30] Citation at Footnote 18, lines 14-34, 642 lines 18-29, 643 lines 16-25 per Winneke P
[31] Or perhaps "may not cover"
[32] As to which see my observations in Hegedis at [51]
[33] Sections 67(1), 68(1)(2) of the Act
[34] By distant analogy with Smith v Mann and ors [1932] HCA 30; (1932) 47 CLR 426 at 451 per Dixon J and at 456 per McTiernan J
[35] [1996]1 VR 635 at 637
[36] [1997] VSC 97
[37] At [18]
[38] At [20]
[39] At [18]
[40] See [26]
[41] At [21]
[42] [2000] VSCA 68; (2000) 1 VR 344
[43] [2000] VSCA 63; (2000) 2 VR 212 at [12]- [13], where Phillips JA recognised that the obligation to refer does not extend to an irrelevant question, and where his Honour described what would be an irrelevant question in general terms
[44] See at [34]-[36]
[45] It had been quite often stated by judges in this Court: see, for example, McDonald v Kotzman and ors [1999] VSC 190, Freisleben v Nisselle [1999] VSC 191 at [16], [17], Catholic Church Insurances v Magistrates' Court & Gizzi [2000] VSC 31 at [58]- [76] and Hassan v Nisselle and ors [2000] VSC 271 at [12]- [16]. It is unnecessary to accept, I add, everything that was said in each of those cases in order to see the underlying principle

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