Gamble v Emerald Hill Electrical Pty Ltd

[2012] VSCA 322

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0176

ANTHONY GAMBLE

Appellant

v

EMERALD HILL ELECTRICAL PTY LTD

First Respondent

and

DR PETER LOWTHIAN (Convenor of Medical Panels)

Second Respondent

and

MEDICAL PANEL (Constituted by Professor Graham Burrows, Dr Timothy Golumbeck, Dr David Barton, Mr Roy Carey and Dr Mark Faragher)

Third Respondent

and

CGU WORKERS COMPENSATION (VIC) LTD

Fourth Respondent

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JUDGES	MAXWELL P and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 May 2012
DATE OF JUDGMENT	20 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 322
JUDGMENT APPEALED FROM	Gamble v Emerald Hill Electrical Pty Ltd [2010] VSC 611 (Ross J)

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ACCIDENT COMPENSATION – Claim for impairment benefits – Impairment assessment – Assessment disputed by claimant – Referral of medical questions to medical panel – Whether panel members must collectively have sufficient medical expertise to address all issues – Power to retain consultants – Whether panel can adopt consultant’s opinion – Whether panel failed to take into account particular medical opinion – Whether panel assessed impairment ‘in accordance with’ AMA Guides – Appeal dismissed – Accident Compensation Act 1985 (Vic) ss 48, 63, 65–8, 104B(9), (12).

ADMINISTRATIVE LAW – Judicial review – Medical panel – Statement of reasons for medical opinion – Non‑adjudicative body – No review on merits – Nature of scrutiny of reasons – Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 applied – Accident Compensation Act 1985 (Vic) pt III, div 3.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Holding Redlich
For the First and Fourth Respondents	Mr M Fleming SC with Mr B G Anderson	Hall & Wilcox
For the Second and Third Respondents	Mr D Masel SC	Monahan & Rowell

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MAXWELL P
CAVANOUGH AJA:

1. The function of a medical panel under the Accident Compensation Act 1985 (Vic) (the ‘Act’) is to provide an opinion on any medical question referred to it.[1]  In Sherlock v Lloyd,[2] this Court held that this is an expert medical function, not a judicial function.  A medical panel’s function is the same whether the reference to the panel occurs in the course of, and for the purposes of, court proceedings (as in Sherlock) or in the course of, and for the purposes of, administrative determination of an entitlement to compensation under the Act (as in the present case).

   [1]Section 67(1). The reference may be made by the County Court: s 45; or by the Victorian Workcover Authority or a self‑insurer: s 104B(9).

   [2](2010) 27 VR 434, 439 [20]–[21] (‘Sherlock’).

1. The decisions of medical panels, and the reasons which they give for their opinions, are nevertheless the subject of frequent challenge in proceedings by way of judicial review.[3]  The present case illustrates the need to emphasise the well‑established principles governing the approach of the reviewing court in such  cases.  First, however, we must briefly set out the procedural context.

   [3]See the decisions cited in Sherlock (2010) 27 VR 434.

The proceeding

1. The appellant, Mr Gamble, was employed by the respondent company, Emerald Hill Electrical Pty Ltd, as an electrician.  In April 2002, he suffered injury in the course of his employment, when he fell approximately 1.5 metres onto a concrete floor.  He suffered a number of different injuries, of which only two are directly relevant for present purposes.  He suffered permanent hearing loss, and fractures which required surgery and left him with permanent scarring.

1. Mr Gamble submitted a claim for impairment benefits pursuant to the provisions of the Act. He also sought an assessment of his degree of impairment. The employer’s workers’ compensation insurer accepted liability for the claim. Mr Gamble subsequently disputed the assessment of his impairment and, in accordance with s 104B(9) of the Act, the insurer referred specific medical questions to the Convenor of Medical Panels, as follows:

1.What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/ies as assessed in accordance with s 91 and is the impairment permanent?

2.Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the Table in s 98E(1)?

1. The Convenor, Dr Lowthian, convened a medical panel pursuant to s 63 of the Act (the ‘Panel’). Its composition is a matter of some controversy, as will appear. The Panel subsequently answered the medical questions pursuant to s 68 of the Act, concluding that Mr Gamble had ‘a 35 per cent whole person impairment’ and that the impairment was permanent. The Panel decided that he did not have a total loss injury. By force of s 104B(12) of the Act, the Panel’s decision was conclusive of those questions, subject only to judicial review.

1. Mr Gamble then sought judicial review of the Panel’s decision, invoking the procedures under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The originating motion filed on his behalf identified six respects in which, it was said, the Panel had made an error of law. When the matter came on for hearing before Ross J, however, counsel for Mr Gamble advanced five additional contentions. Over the objection of counsel respectively representing the employer and the Panel, his Honour gave leave to add the additional contentions.

1. His Honour rejected all 11 contentions.  He dismissed the application for judicial review, holding that Mr Gamble had not established error of law.  Mr Gamble has now appealed from that decision. 

Scrutinising reasons given by medical panels

1. Axiomatically, there is no scope on judicial review for a reconsideration of the merits of the decision under review.  As Brennan J said in Attorney-General (NSW) v Quin:[4]

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

[4](1990) 170 CLR 1, 35–6.

1. That basal principle underpinned the well‑known statement of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[5] describing

the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

The Court described as ‘well settled’ the propositions enunciated by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd as to ‘the practical restraints on judicial review’.[6]  The court on judicial review should not be ‘concerned with looseness in the language … nor with unhappy phrasing’[7] of the reasons of an administrative decision-maker, and should not construe the reasons for decision ‘minutely and finely with an eye keenly attuned to the perception of error’.[8]  These propositions have been frequently applied in judicial review proceedings ever since.[9]

[5](1996) 185 CLR 259, 272 (‘Liang’).

[6](1993) 43 FCR 280, 287.

[7]Ibid 272, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (‘Pozzolanic’).

[8]Ibid.

[9]See, eg, Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 206 CLR 57, 66 [23] (Gleeson CJ and Hayne J dissenting), 119 [200] (Kirby J); Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1, 42 [123] (Kirby J); Bennett v The Queen [2010] VSCA 280, [27]; cf Endeavour Coal Pty Limited v Australian Association of Professional Engineers, Scientists and Managers, Australia (2012) 290 ALR 326, 337 [36] (‘Endeavour Coal’);  Soliman v UTS [2012] FCAFC 146, [57] (‘Soliman’).

1. Counsel for the appellant referred us to an observation made by Ashley and Redlich JJA in East Melbourne Group Inc v Minister for Planning,[10] to the effect that the caution in Liang against construing reasons ‘with an eye keenly attuned to the perception of error’[11] may be of more limited significance if the reasons have been formulated carefully and deliberately with the possibility of judicial review clearly in mind.  Their Honours cited as authority for this qualification a statement by Emmett J in TCN Channel 9 Pty Ltd & Ors v Australian Broadcasting Authority.[12] 

   [10](2008) 23 VR 605, 662 [229] (‘East Melbourne Group’).

   [11]Liang (1996) 185 CLR 259, 272, citing Pozzolanic (1993) 43 FCR 280, 287.

   [12][2002] FCA 896 (‘TCN’).

1. In TCN, the applicants had sought judicial review of a determination made by the Chairman of the Australian Broadcasting Authority (the ‘Authority’), as the delegate of the Authority.  The Authority, after investigating complaints, had determined in writing that each of the applicants had breached a condition of its broadcasting licence by broadcasting material that amounted to a tobacco advertisement, in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth). Under s 179(1) of the Broadcasting Services Act 1992 (Cth), the Authority published generally its written determination and its written reasons for the determination.

1. The applicants challenged the validity of the determination on various administrative law grounds.  They sought to make out those grounds by reference to the published written reasons.  Emmett J observed that:  ‘[t]he decision under review was made on behalf of the Authority by its Chairman, with the assistance of considered legal advice, in the light of detailed legal submissions made on behalf of the applicants by their solicitors’;  that ‘[t]he Authority’s determination was not that of a lay administrator made without assistance’;  and that it was ‘fair to conclude, therefore, that the Authority’s reasoning … represent[ed] the result of consideration and deliberation by the members of the Authority and its staff, including legal advisers, in the expectation that the reasons would be carefully analysed by the applicants and their advisers and by members of the public generally’.[13]  Thus, his Honour observed, ‘the reasons should be understood as a deliberate and considered statement’ by the Authority of its reasoning process’, which had been ‘formulated carefully and deliberately with the possibility of judicial review clearly in mind’.[14]

   [13]Ibid [36].

   [14]Ibid.

1. In the East Melbourne Group case itself, the decision under review had been made by the Minister for Planning personally, acting as a planning authority, to make a site‑specific amendment to the Melbourne Planning Scheme in respect of the Hilton Hotel site in East Melbourne.  Pursuant to a practice note, the Minister released a document setting out reasons for her decision to intervene.  The Court of Appeal held, by a majority, that the Minister was bound by that statement of her reasons and that it was impermissible to look for other or better reasons in departmental or other non-public records.

1. What was said in TCN turned on the particular features of the decision‑making process identified by Emmett J.  The same may be said of comparable remarks made more recently by Flick J in Endeavour Coal.[15]  The position of a medical panel is quite different.  Medical panels are convened, as required, from the ranks of practising medical practitioners.  The medical practitioners are not public administrators, unlike the Chairman of the Broadcasting Authority in TCN and the Minister for Planning in East Melbourne Group. Under the Act, the Convenor of Medical Panels is also required to be a medical practitioner.[16]  The work of the panels appears to be relatively high volume.  Further, medical panels give their opinions and their statements of reasons only to the parties.  They are not published to the world at large, although extracts may find their way into the public judgment of a court if a panel’s opinion is challenged on judicial review. 

   [15]Endeavour Coal (2012) 290 ALR 326, 337 [36]. Cited with apparent approval by the Full Court of the Federal Court in Soliman [2012] FCAFC 146, [57].

   [16]Accident Compensation Act 1985 (Vic) ss 63(2)–(3).

1. The material before us includes the standing directions of the Convenor of Medical Panels as to the arrangement of the business and procedures of medical panels, as in place at the relevant time.[17]  The Convenor’s Directions envisage that in each case a draft certificate of opinion and draft written reasons, in a form similar to that set out in schedules to the Directions, will be circulated to all panel members for settling.  The template for reasons contained in the relevant schedule states:

Reasons should be written succinctly and in plain language. They should clearly reveal the Panel’s reasoning. They should include the core clinical and other findings. In the case of a multi-member Panel, the reasons (including the core clinical and other findings) should be those of the panel as a whole arising from the consultative process.

[17]See Accident Compensation Act 1985 (Vic) ss 65(7), (9).

1. The Directions envisage that the Convenor will ensure that the certificate of opinion and the reasons are in the appropriate form; that the medical questions have been answered; and that, in the performance of this task, the Convenor ‘will commonly seek advice from the advisers or legal advisers he has appointed for the Panel’s assistance’. But there is no suggestion that the draft certificate and the draft reasons will be referred to legal advisers in every case.[18]

   [18]Cf Endeavour Coal (2012) 290 ALR 326, 337 [36].

1. In Liang, the decisions and statements of reasons in question were those of delegates of the Minister for Immigration and Ethnic Affairs upon applications for refugee status.  Kirby J pointed out in his concurring judgment that the delegates were ‘not untrained laymen’;  that they had ‘obvious expertise for the performance of their functions’;  that, by the evidence, they also had legal advice available to them;  that they were obviously familiar with relevant legal authority;  that standard paragraphs for their decisions were prepared, evidencing what were suggested to be considered positions on common matters of approach;  and that the decisions committed to them were extremely important for the persons involved, and also for Australia as a nation.[19] 

   [19]Liang (1996) 185 CLR 259, 292.

1. Even in that context — so markedly different from the present — the plurality in Liang were constrained to warn against ‘over-zealous judicial review’;[20]  and Kirby J himself made observations to similar effect.[21]  As far as we are aware, the High Court has never since qualified what it said in this regard in Liang, notwithstanding that, in the intervening years, it has had ample opportunity to do so, especially in the multiplicity of cases relating to judicial review of the decisions of Ministers, delegates and tribunals in the refugee and general migration field. 

   [20]Ibid 272.

   [21]Ibid 291.

1. Further, a medical panel does not have an adjudicative function of the kind typically performed by administrative tribunals.  It is true that in the recent decision of this Court in Kocak v Wingfoot Australia Partners Pty Ltd,[22] it was said that a medical panel’s reasons should meet the ‘standard required of any other statutory decision-maker exercising a comparable quasi-adjudicative/investigative function’;[23]  and that, therefore, the panel’s reasons

should include a statement of findings on material questions of fact; some sort of identification of the evidence or other material upon which those finding[s] are based; and an intelligible explanation of the process of reasoning that has led the Panel from the evidence to the findings and from the findings to the Panel’s ultimate conclusion.[24] 

[22][2012] VSCA 259 (‘Kocak’).  An application to the High Court for special leave to appeal in Kocak is pending.

[23]Ibid [48].

[24]Ibid.

1. It is unnecessary for present purposes to consider whether, and if so to what extent, those observations (including the Court’s description of the function of a medical panel) diverge from the view expressed in Sherlock[25] that, in providing an opinion on a medical question referred to it, a medical panel is performing an expert medical function, not a judicial function.  It is sufficient to say that the principles enunciated in Liang continue to apply, such that a court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel’s reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks legal merit.

   [25](2010) 27 VR 434, 439, [20]–[21]. See also Masters v McCubbery [1996] 1 VR 635. It is acknowledged that when Sherlock was decided, the Act itself did not contain a requirement for a medical panel to prepare a statement of reasons. Such a requirement only arose pursuant to a valid request under the Administrative Law Act 1978 (Vic). Subsequently the Act was amended so as directly to impose an obligation on a medical panel to prepare a statement of reasons in each case. The amendments were in force by the time of the medical panel’s reasons in Kocak [2012] VSCA 259.

The appeal

1. In the notice of appeal, grounds of appeal are set out in 14 separate paragraphs. Several of the paragraphs include sub-grounds. Some of the contentions which were argued below are not reflected in the grounds of appeal, and Mr Gamble has not subsequently sought to agitate them in this appeal. For example, there is no longer any contention that the medical panel’s statement of reasons was, in any respect, inadequate. Nor does Mr Gamble persist with his previous contention that the Panel impermissibly delegated a part of its functions.[26] Other contentions that were argued below are restated in somewhat different form, and there is a new, alternative contention which we refer to as ‘the six member Panel contention’. On the other hand, not all of the matters asserted in the grounds of appeal were pressed in oral argument. Indeed, at the outset of the hearing, those grounds (11, 12 and 13) which focused on the role of an audiologist identified as ‘KG’ (who had performed a hearing loss test on which the Panel had relied) were expressly abandoned.

   [26]See below [36].

1. Insofar as any of the 11 contentions advanced below were pressed, we agree with the trial judge that they should be rejected, essentially for the reasons he gave. As will appear, we think that the new ‘six member Panel contention’ should also be rejected. None of the grounds of appeal has been made out. The appeal must therefore be dismissed.

1. In the end, the arguments advanced by the appellant on the appeal fell under two broad headings — first, the constitution of the Panel and, second, the Panel’s assessment of the plaintiff’s scarring.

1. The appellant’s arguments concerning the constitution of the Panel may be divided into what we have called the ‘seven member Panel’ contention and the ‘six member Panel’ contention. We turn to the first of those now.

The ‘seven member Panel’ contention

1. The ‘seven member Panel’ contention was one of the five contentions advanced for the first time at the hearing before Ross J. It was to the effect that the Panel convened by Dr Lowthian consisted of seven members, which exceeded the statutory maximum of five as set by s 63(4) of the Act (as in force at the relevant time). As already indicated, we consider that this contention was rightly rejected. Though it was raised again before us, and earnestly argued, it was not covered by any of the 14 paragraphs of the notice of appeal. On the other hand, the respondents did not object to the matter being raised again and, in those circumstances, it is appropriate to deal with it.

1. On 22 June 2009, the Panel provided its Certificate of Opinion on the referred medical questions. The introductory section of the Certificate of Opinion was in these terms:

CERTIFICATE OF OPINION
Re:  Mr Anthony GAMBLE
Medical Panel Ref No:  M109/0007

The Medical Panel formed its opinion in response to a referral from CGU Workers Compensation (a WorkCover Agent), received on 5 January 2009 pursuant to Section 104B(9) of the Accident Compensation Act 1985.

The Panel comprised the following members:

Prof Graham Burrows

Dr Timothy Golumbeck
Dr David Barton
Mr Roy Carey
Dr Mark Faragher

The Panel consulted with Mr Henry Rundle (Otolaryngology) and Dr James Galbraith (Ophthalmologist), prior to reaching its opinion.

As Presiding Member of this Panel, I have discussed the answers herein with the other Panel Members and this is the opinion of the Panel on the medical questions set out below.

Question i)What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 and is the impairment permanent?

Answer:In the Panel’s opinion the worker has a 35% whole person impairment resulting from the accepted head injury including blurred vision, loss of hearing and memory loss, spine, scarring, autonomic dysfunction resulting in syncope due to postural change injuries when assessed in accordance with s 91 of the Act. The degree of impairment is permanent.

The Panel is also of the opinion that there is a 0% psychiatric impairment resulting from the accepted psychiatric injury, when assessed in accordance with s 91(2) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.

1. Under the Act, it is the Panel’s opinion which determines the answers to the relevant medical questions and it is the Certificate of Opinion which formally identifies or establishes the opinion (ss 67 and 68). Irrespective of who referred the medical questions to the Panel, a court must treat the Panel’s opinion as providing ‘final and conclusive’ answers to the referred questions (s 68(4)). The Panel’s Certificate of Opinion is admissible for that purpose (s 48(1)).

1. On its face, the Certificate of Opinion in the present case complied with the Act. It recorded the opinion of a five member Panel. As can be seen from the introductory section set out above, the Certificate of Opinion clearly identified the five members of the Panel. It also clearly stated that, prior to reaching its opinion, the Panel had consulted with two specialists who were not members of the Panel. As we will explain, there is no good reason to doubt the truth of the statements in the Certificate of Opinion.

1. It is clear that a medical panel has power, for the purpose of deciding how to answer medical questions referred to it, to engage consultants. Section 63(6A) of the Act confers immunity on such a consultant, in these terms:

A matter or thing done or omitted to be done in the provision of expert advice to a Medical Panel by a consultant engaged for that purpose does not, if the matter or thing was done or omitted in good faith, subject the consultant personally to any action, liability, claim or demand.

Although, as senior counsel for the insurer pointed out, the Act does not explicitly confer power on a panel to engage a consultant, the existence of that power is, plainly enough, a matter of necessary implication. Without that implied power, the provision conferring immunity on consultants would be wholly redundant.[27]

[27]See Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7, [24], applying Norton v Long [1968] VR 221.

1. The importance of a panel being able to engage consultants is explained in the Convenor’s Directions.  Clause 32 of the Directions states:

The Medical Panel may, where necessary, obtain advice from a suitably qualified and experienced person who is engaged as a consultant — (for example: from a further medical practitioner, where the Panel already consists of the statutory maximum number of members; or, in an appropriate case, from an allied health professional, vocational or industrial psychologist or a provider of occupational rehabilitation services).

1. The ‘seven member Panel’ contention relied on correspondence from the Convenor to Mr Gamble’s solicitors dated 6 January 2009, and on various parts of the Panel’s reasons. The letter from the Convenor was in the following terms:

Re:  Referral to Medical Panels

Worker:  Mr Anthony Gamble
…
Employer:                 Emerald Hill Electrical P/L Ceased: 18/03/04

For your information, please find a copy of correspondence detailing Medical Panel appointments addressed to your client.

Should you have any inquiries regarding this matter, please contact the Medical Panels on 8256 1555.

Yours sincerely,

DR PETER LOWTHIAN
CONVENOR

1. Attached was a letter from the Convenor to Mr Gamble, as follows:

Dear Mr Gamble,

I have received a referral of medical questions in relation to your WorkCover claim from CGU (Melb) Workers Compensation. I have nominated a Panel of doctors to give an opinion in answer to the medical questions. At the request of the Panel I have arranged the following examinations:

DOCTORS	ADDRESS	DATE & TIME
Dr James Galbraith Ophthalmologist Consultant	Cabrini Medical Centre Suite 2, Isabella Street, Malvern  3144	Tuesday, 27 January 2009 11:00AM
Prof Graham Burrows Psychiatrist Dr Timothy Golumbeck Psychiatrist	Medical Panels Level 18, 460 Lonsdale Street Melbourne	Wednesday, 11 February 2009 09:00AM
Dr David Barton Occupational Physician Mr Roy Carey Orthopaedic Surgeon Dr Mark Faragher Neurologist	Medical Panels Level 18, 460 Lonsdale Street Melbourne	Friday, 13 February 2009 10:15AM
Mr Henry Rundle Otolaryngology Consultant	Cabrini Medical Centre Suite 18, Isabella Street, Malvern  3144	Monday, 16 February 2009 2:45PM

Please see the next page for information regarding your appointment with Medical Panels.

Yours sincerely,
DR PETER LOWTHIAN
CONVENOR
MBBS (Hons), FRACP, FAFRM.

1. As the terms of the letter make clear, the Convenor was informing Mr Gamble, and those advising him, of the details of examinations which had been arranged at the request of the Panel. The list of examinations made it perfectly clear that two of the seven examining doctors were consultants. The use of the word ‘consultant’ clearly distinguished Dr Galbraith and Mr Rundle from the five panel members, whose address was stated to be that of the Panel’s. Distinct professional addresses were given for Dr Galbraith and Mr Rundle respectively.

1. So far as the Panel’s reasons are concerned, the trial judge included the full reasons as an annexure to his judgment, and marked the particular words and phrases on which the ‘seven member Panel’ contention relied.[28]  It is true that ‘an eye keenly attuned to the perception of error’[29] might perceive in the reasons of the Panel occasional failures to distinguish clearly between the five members of the Panel and the two consultants. But we agree entirely with the trial judge that these should be regarded as mere verbal slips; that they do not substantiate the contention that the Panel was impermissibly convened as a seven member Panel; and that, where it is said that the Panel conducted an examination or test, that should be read as saying that the Panel adopted what had been done by its consultant as to that matter.[30]

   [28]Gamble v Emerald Hill Electrical Pty Ltd [2010] VSC 611 (‘Reasons’).

   [29]Liang (1996) 185 CLR 259, 272, citing Pozzolanic (1993) 43 FCR 280, 287. See above [9].

   [30]Reasons, [67]. See further [42]–[44] below.

1. It is hardly surprising, in our view, that those representing Mr Gamble raised no question about the composition of the Panel, either at the time of the Convenor’s letter, or when the Certificate of Opinion was received, or when the grounds of the judicial review application were drawn up. Nor was any such issue adverted to in the affidavit of the appellant’s solicitor, filed in support of the originating motion. The contention was, plainly enough, an afterthought. The trial judge rightly rejected it. As already mentioned, it was not included in the notice of appeal. The raising of it before us was apparently another afterthought. In any event, we reject the contention.

The ‘six member Panel’ contention

1. In the alternative, counsel for Mr Gamble contended that Mr Henry Rundle, the otolaryngologist whom the Panel stated it had consulted, had been a member of the Panel. This contention was advanced on a basis not put forward below.[31] At trial, a different argument was advanced, to the effect that the Panel had impermissibly delegated to Mr Rundle (he being, on that argument, a non‑member of the Panel) its function of determining the extent of Mr Gamble’s hearing loss. The delegation argument was rightly rejected by the judge, and it was not renewed on the appeal.

   [31]On this occasion, at least, the basis on which the contention was advanced at the hearing of the appeal was covered by the grounds of appeal. 

1. The ‘six member Panel’ contention is likewise lacking in merit. The steps in the argument were, in summary, as follows:

1.Under s 91(4) of the Act, the degree of hearing loss must be assessed by an appropriately qualified person.

2.Mr Rundle had the requisite qualification, but none of the five medical practitioners said to constitute the Panel did.

3.When the Panel stated in its reasons that ‘[t]he Panel assessed a binaural hearing loss of 7.1 per cent due to damage to the inner ear’, that could only have been a reference to Mr Rundle’s assessment, he being the only person appropriately qualified to make such an assessment. Likewise, when the Panel proceeded to specify certain additional matters which it had ‘considered’, ‘concluded’, and ‘assessed’ in relation to the appellant’s hearing loss, the Panel must have meant that Mr Rundle did these things.

4.Accordingly, Mr Rundle must have been a member of the Panel.

1. If this argument were correct, it would have far-reaching implications.  It would mean that, in order for a panel to be able to answer medical questions referred to it, it would have to include members with specialist expertise sufficient to deal with each separate medical issue raised.  Senior counsel for Mr Gamble accepted, in response to questions from the bench, that this was indeed the corollary of the argument being advanced. 

1. Senior counsel relied on the following statement by Gillard J in Nisselle v Brouwer:[32]

It is implicit in the legislative scheme for the determination of compensation that the practitioners forming the medical panel would have the necessary expertise to consider the particular medical problems of the worker. 

His Honour’s observation was made in the course of determining a quite different question;  namely, whether the appointment of a medical panel was an administrative act for the purposes of the Ombudsman Act 1973 (Vic). In particular, his Honour was detailing the steps that the Convenor would routinely take to appoint a panel and its membership. His Honour proceeded immediately to say that the Convenor ‘no doubt would give consideration to [the issue of the necessary expertise of the practitioners]’.[33] In our view, his Honour was saying no more than that it would be desirable for the members of the Panel to have appropriate expertise. He was certainly not saying that a panel could not lawfully or validly be convened if it did not contain medical practitioners with specialist expertise in relation to every separate medical issue raised by the condition of the worker. That question simply did not arise in Nisselle.

[32](2007) 16 VR 296, 302 [33] (‘Nisselle’).

[33]Ibid.

1. Obviously enough, if Parliament had intended to impose a legal requirement of the kind contended for, quite different provision would have been made for the composition of panels.  The Convenor would have been expressly required to select such number of members as would have between them the necessary expertise to deal with every medical aspect of the particular case.  And there would, of course, have been no need to authorise panels to engage consultants.  Moreover, there could have been no statutory limit (of five) on the number of members of a panel.  That limit has been abolished since, but its existence at the relevant time tells very strongly against this argument.  A particular worker may have a multitude of problems extending even beyond the spheres covered by five medical specialties. 

1. As counsel representing the Convenor argued in a submission to the trial judge, s 65 of the Act explicitly provides that a panel

is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.[34]

Section 65(5) of the Act further authorises a panel to ask a worker:

(a)to meet with panel members and answer questions;

(b)to supply copies of documents in the worker’s possession relating to the medical questions;  and

(c)to submit to a medical examination by the panel or by a member of the panel.

[34]See Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29, 37–8 [28]–[30].

1. These provisions make it ‘abundantly clear’, so the Convenor submitted to the trial judge, that

the Panel’s collective function is to form its collective opinion on a medical question referred to it. Some opinions on some medical questions require an opinion as to a degree of whole person assessment … but nothing suggests that the collective opinion must be based on an assessment performed by the Panel collectively or even by a member of the Panel (although such examination and impairment assessment is permitted).

Moreover, according to the Convenor’s submission:

[T]he ability of a Medical Panel to be informed by, among others, a consultant (or an expert technician such as a radiographer or audiologist …) is, like a Medical Panel’s ability to be informed by reports of treaters, integral to the effective operation of Medical Panels.  It is a highly important matter of the powers, practices and procedures of medical panels and the working of the scheme …

1. These submissions were, with respect, plainly correct.  Each individual member of a panel will have his/her own area of expertise and will, inevitably, rely on the respective specialties of each other member of the panel, to the extent that they bear relevantly on the medical questions referred.  It will often happen, no doubt, that issues will arise which call for specialist expertise not possessed by any member of the panel.  Self-evidently, that is the rationale behind the (implied) statutory power of the panel to seek the advice of consultants. 

1. In such circumstances, the panel will be entitled — if it chooses to do so — to adopt a consultant’s opinion as its own on the particular issue, in just the same way as the panel would be entitled collectively to adopt the specialist opinion of one of its own members on an issue. It is precisely because, in a case such as the present, the Panel lacks the expertise possessed by the consultant that it is obliged to rely on the consultant’s opinion. Naturally, that opinion will be scrutinised by the Panel to ensure that it may reasonably be relied upon.

1. In this case, as noted earlier, the Panel stated in its Certificate of Opinion that it had consulted with Mr Rundle prior to reaching its opinion. The Panel further stated that it had formed its opinion by reference to (amongst other things) ‘the guidance of the consultants’. It was perfectly proper for the Panel to do so, and nothing more needed to be said.[35] The contention that Mr Rundle must have been a member of the Panel cannot be accepted.

   [35]Paragraph 34 of the Convenor’s Directions states: ‘Advice received from a consultant will be considered by the Panel, in reaching its opinion and noted in the Reasons for Opinion’.

The assessment of the scarring

1. Section 91 of the Act provides, in short, that an assessment of a degree of impairment resulting from an injury is to be made in accordance with the AMA Guides,[36] as applicable under the Act. As so applicable, ch 13 of the AMA Guides provides criteria for assessing the degree of permanent impairment in relation to a disorder of the skin. In particular, s 13.2 contains the following passages:

13.2     Methods of Evaluating Impairment

In evaluation of a permanent impairment related to a skin disorder, the actual functional loss should be the prime consideration, although the extent of the cosmetic involvement also may be important. 

…

In determining the appropriate impairment class (Table 2, p 280) for an affected individual, the physician should primarily consider the impact of the skin condition on the individual’s daily activities.  Likewise, the frequency and complexity of needed medical treatment may vary considerably.  Both the frequency and intensity of signs or symptoms, as well as the frequency and complexity of the needed medical treatment, may be used to determine the appropriate percentage and estimate within any impairment class.  In general, the more frequent and intense the symptoms and the more frequent and complex the medical treatment, the higher the estimated impairment percentage should be.

Chapter 13 also includes several examples of impairment in each class ‘to assist the physician in arriving at appropriate estimates of impairment percentages’.[37]

[36]American Medical Association, Guides to the Evaluation of Permanent Impairment (4^th ed, 1993) (‘AMA Guides’).

[37]Ibid 279.

1. The determination of ‘the appropriate impairment class’ is to be made in accordance with Table 2, which defines five classes in ascending order of severity of impairment, as follows:

Class 1: 0%–9% impairment	Class 2: 10%–24% impairment	Class 3: 25%–54% impairment	Class 4: 55%–84% impairment	Class 5: 85%–95% impairment
Signs and symptoms of skin disorder are present or only intermittently present; and There is no limitation or limitation in the performance of few activities of daily living, although exposure to certain chemical or physical agents might increase limitation temporarily; and No treatment or intermittent treatment is required.	Signs and symptoms of skin disorder are present or intermittently present; and There is limitation in the performance of some of the activities of daily living; and Intermittent to constant treatment may be required.	Signs and symptoms of skin disorder are present or intermittently present; and There is limitation in the performance of many of the activities of daily living; and Intermittent to constant treatment may be required.	Signs and symptoms of skin disorder are constantly present; and There is limitation in the performance of many of the activities of daily living that may include intermittent confinement at home or other domicile; and Intermittent to constant treatment may be required.	Signs and symptoms of skin disorder are constantly present; and There is limitation in the performance of most of the activities of daily living, including occasional to constant confinement at home or other domicile; and Intermittent to constant treatment may be required.

1. The submission for Mr Gamble was that the Panel’s assessment was flawed, because it failed to describe the scarring which was being assessed. This contention relied on s 13.5 of the AMA Guides, which states:

Scars should be described by giving their dimensions in centimetres and by describing their shape, color, anatomic location, and any evidence of ulceration;  depression or elevation, which relates to whether they are ‘atrophic’ or ‘hypertrophic’;  texture, which relates to whether they are soft and pliable or hard and indurated, thin or thick, and smooth or rough;  and attachment, if any, to underlying bone, joints, muscles, or other tissue.  Good color photographs with multiple views of the defect enhance the description of scars.[38]

[38]Ibid.

1. The judge concluded that the point was without substance.  His Honour said:[39]

There is no substance to this point. The Act required the Panel to assess the Plaintiff’s degree of impairment ‘in accordance with … the AMA Guides’.[40]  The methodology for evaluating impairment is set out at 13.2 of the AMA Guides … A description of the scarring is not a necessary step in the application of that methodology. 

A description of the scarring would be appropriate for inclusion in an ‘impairment evaluation report’. The features of such a report are set out at p 13/278 of the AMA Guides. However a medical panel is not required by the Act to make an impairment evaluation report, it is required to make an assessment of impairment in accordance with the AMA Guides.

It is also relevant to note that members of the Panel examined the Plaintiff and observed the scarring for themselves. There is also a full description of the Plaintiff’s scarring in Mr Behan’s report, which was submitted to the Panel.

[39]Reasons, [15]–[17]. The reference in [16] to ‘p 13/278 of the AMA Guides’ should have been a reference to p 13/277 thereof.

[40]Accident Compensation Act 1985 (Vic) s 104B(9)(a) and s 91(1).

1. It was contended on the appeal that the Panel’s omission of ‘a description of the significant features of [Mr Gamble’s] scar’ showed that the Panel had, erroneously, failed to consider those features when making the impairment assessment. According to the written submission:

The Panel and the trial judge have properly regarded the nil limitation in the performance of daily activities as significant, but the description of the scar is necessary for the purpose of applying the words ‘frequency and intensity of signs and symptoms’ in the context of a permanent scar as an impairment factor, as required by ch 13, and the Act. The description is a step in that process.

The Panel’s reasons show that it did not take into account the signs and symptoms of the scarring, as it restricted its assessment to a consideration of the aspect of limitation in the performance of activities of daily living. In so doing, the Panel did not apply the relevant part of ch 13, as required by the Act.

…

[I]n the case of a scar, a description of its features as set out in ch 13 of the Guides is a step in the process of identifying features of the scar which are relevant to impairment.  The relevant factor may be cosmetic, or it may be an impairment of portions of the skin themselves, by reason of the matters set out in paragraph 13.5 of the Guides.  … [T]he function of the skin or of portions of the skin is impaired by the existence of a scar, and the degree of that impairment may be assessed on the basis of a description of the significant features of the scar.  Mr Behan had assessed the degree of impairment of the Plaintiff’s skin on that basis, and not on the cosmetic basis considered by the trial judge at paragraph 33 of the reasons for judgment.

1. His Honour had dealt with the like contention in these terms:[41]

   [41]Reasons, [19]–[23] (emphasis in original).

Nor am I persuaded that the Panel failed to properly assess, in accordance with the AMA Guides, the Plaintiff’s impairment due to scarring.

The AMA Guides assessment methodology directs particular attention to actual functional loss. The primary consideration is the impact on the individual’s daily activities.

It is apparent from Table 2 that the impairment class into which a particular individual falls is dependent on the combination of three things:

(i)        presence of signs and symptoms of skin disorders;

(ii)       the extent of limitation on the performance of daily living;  and

(iii)      the frequency of treatment required.

In this case the Panel made two relevant findings of fact: ‘there are no limitations of daily living attributable to the scars and no treatment required for them’.

These findings effectively required the Panel to assess impairment under Class 1 of Table 2. Class 1 permitted the Panel to determine an assessment in the range of 0% to 9%. The determination of where within that range the Plaintiff’s scarring fell was a matter which called for the exercise of professional judgment by the Panel.[42]  The determination of a level of impairment is a question of fact.[43]

[42]Citing H J Heinz Co Australia Ltd v Kotzman [2009] VSC 311, 12 [46] (Kyrou J) (‘Heinz’).

[43]Citing Gillat v Transport Accident Commission [2003] 38 MVR 463, 467 [27] (Nettle J) (‘Gillat’).

1. As already indicated, the Panel’s assessment of the degree of impairment was required to be made ‘in accordance with’ the AMA Guides.[44]  The content of that obligation was explained by Kyrou J in Heinz,[45] as follows:

The meaning of the phrase ‘in accordance with’ depends on the context.  It is generally taken to mean ‘in conformity with’, although in some contexts, strict compliance is not required.[46]

In order for a medical panel to assess impairment ‘in accordance with the [Guides]’ as required by s 91 of the AC Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.

Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls.  However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out.  Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear sub‑optimal.  This is so because the role conferred by the AC Act on a panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.[47] 

We respectfully agree with his Honour’s exposition.

[44]Accident Compensation Act 1985 (Vic) s 91(1)(a).

[45][2009] VSC 311.

[46]Citing Waycott v Koffler (1983) 25 NTR 1, 8;  Hutchins v Commissioner of Taxation (1987) 14 FCR 510, 529; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119, 147–8;  Walker v Wilson (1991) 172 CLR 195, 207–8;  Re LA (1993) 41 FCR 151, 158.

[47]Heinz [2009] VSC 311, [44]–[46].

1. For Mr Gamble to obtain an order in the nature of certiorari on any of his (three) grounds relating to scarring, he must demonstrate either that there was error of law on the face of the record, or that the Panel fell into jurisdictional error. Either way, given the nature of his complaints in this regard, he must demonstrate that the Panel’s assessment of the scarring departed from the methodology laid down by the AMA Guides to such an extent that it can be properly said of the assessment that it was not ‘in accordance with’ the Guides.

1. Approaching the matter this way explains why merely to point out that there was no description of the scar, nor particular reference to ‘signs and symptoms’, comes nowhere near making out either basis of judicial review.  The approach of the present appellant, insisting on exact recitation of the language of the Guides at every point, is misconceived.  That is precisely the kind of ‘over-zealous scrutiny’ which is prohibited on judicial review.

1. The position was entirely different in Heinz, where the impairment assessment was undertaken ‘on a basis not set out in the Guides’.[48]  That was a fundamental non-compliance with the Guides.  As the judge said:

The panel in this case did not simply do the best it could in applying the Guides. Instead, it purported to address a perceived deficiency in the Guides by applying provisions of the Guides which, by their terms, were not applicable to [the relevant] injury. Further, … the panel’s duty was to assess the degree of impairment resulting from the application of the Guides, not some other degree of impairment that the Panel considered to be ‘correct’, ‘fair’, ‘optimal’ or ‘actual’.[49]

[48]Ibid [48].

[49]Ibid [52].

1. There is a further consideration.  Where, as here, the medical panel states in its reasons that it has carried out the assessment in accordance with the AMA Guides, there will be a heavy onus on the challenging party to persuade the reviewing court that this statement should not be taken at face value.  The Court will ordinarily be most reluctant to conclude that medical practitioners, who have stated that they followed the assessment methodology laid down by the Guides, did not in fact do so.

1. In the present case, for the reasons which the trial judge gave, there is no room for doubt that the Panel performed its task in accordance with the Guides.

1. Senior counsel for the appellant submitted that this Court should express a concluded view on the meaning of the phrases ‘signs and symptoms’ and ‘skin disorder’ in Table 2,[50] in the context of scarring. This was said to be necessary because of the contention that Mr Gamble’s scarring was itself a ‘skin disorder’, which obliged the Panel to consider its ‘signs and symptoms’, said to include such things as the shape and colour of the scars. We do not propose to accede to that invitation. While it is accepted that the construction of the AMA Guides is a question of law, the determination of a level of impairment, according to the Guides, is a question of fact.[51]  The phrases in issue here are matters of basic medical terminology, and their interpretation — and application — is for doctors, not judges.[52] 

   [50]See above [47].

   [51]Barnett v Transport Accident Commission [1999] VSC 484, [30] (Mandie J), affirmed on appeal Barnett v Transport Accident Commission (2001) 34 MVR 26; Gillat [2003] 38 MVR 463, [27] (Nettle J);  Heinz [2009] VSC 311, [24] (Kyrou J); Transport Accident Commission v Serwylo [2010] VSC 421, [25] (Kaye J).

   [52]Mountain Pine Furniture Pty Ltd v Taylor (2007) 16 VR 659, 660 [2], 672 [46].

1. In any event, it is apparent that the Panel conducted its assessment on the basis that Mr Gamble had a permanent skin disorder, constituted by two scars. There is no reason to think that the Panel failed to take into account, as part of its impairment assessment, the ‘intensity’ of the ‘signs and symptoms’ of the skin disorder. To the contrary, there is every reason to be confident that the Panel took into account the location, shape, size, colour, cause, consequences and all other relevant aspects of the scarring.

1. In setting out the history it took from Mr Gamble, the Panel stated expressly that he ‘described no symptoms referable to the surgical scar above the left side of his chest’; and that ‘[t]here were no symptoms referable to the surgical scars’. In stating its findings on physical examination, the Panel said: ‘There was a 10 centimetre curvilinear scar in the left lower chest and a three centimetre drain tube sight scar below the other scar.’ In other words, as the trial judge noted, the Panel actually viewed Mr Gamble’s scarring for themselves.

1. Further, as the trial judge also noted, the Panel was in possession of a full description of the appellant’s scarring. There was before the Panel a report of Mr Felix Behan, plastic surgeon, which included colour photographs of the scarring, and which stated:

Description of scarring (Ref: AMA Guides, 4^th Edition)

The scar dimensions and locations have been documented above.  There are minimal contour problems and the scars have healed well, with good signs of integumentary healing.  There is no evidence of atrophy or hypertrophy throughout the limits of the scar.  Any hardness and induration has settled after this length of time.  Revisional surgery is unlikely to be of benefit here and the patient is not unduly embarrassed by this scarring.  Functions of the integument is not affected and there is no evidence of any behavioural changes in relation to these scars.  There is no sign of scar abnormality or sensory deficit in the vicinity.

IMPAIRMENT

Loss of structure/function measured by and expressed as a percentage.

Ref:  AMA Guides, 4^th Edition, Chapter 13, page 280, Table 2

Description	Table	% impairment
Upper thoracic scar (10cm) Lower thoracic scar (2cm) TOTAL	13/280/2 13/280/2	2% 0.5% 2.5%

The figure of 2% in relation to the upper scar takes into consideration the size of the scar and the slight irregularity of the repair.

1. Although this was not squarely covered by any ground of appeal, it was submitted on the appeal, as it had been at trial, that the Panel failed to give consideration to Mr Behan’s report. The judge rightly rejected this submission, pointing to the following statement by the Panel in the first paragraph of its reasons:

The documents considered by the Panel are described in Enclosures A and B.

Enclosure B included Mr Behan’s report.

1. In the course of argument on the appeal, the Court drew to the attention of counsel that, at the foot of Enclosure B, there appeared the following certificate:

I refer to the medical panel convened in this matter of which I am a member and acknowledge receipt of the medical and other material listed in this schedule and confirm that the Panel took this information into consideration in forming the opinion.[53]

The certificate was signed by the presiding member of the Panel.

[53]Emphasis added.

1. Improbably, this submission was maintained notwithstanding that counsel for the appellant were unable to point to anything which might cast doubt on the veracity of the presiding member’s certificate. 

1. The mere fact that the Panel did not otherwise refer to Mr Behan’s report does not justify an inference that the Panel failed to have regard to Mr Behan’s report, any more than it justifies an inference that the Panel overlooked or failed to read it.Though an administrative decision-maker may be bound as a matter of law to have regard to a particular matter, the decision-maker will generally be at liberty to accord the matter little weight, or no weight at all, provided only that he or she has first had regard to the matter.[54] 

   [54]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 64–5 (Brennan J).

1. In the trial judge’s view, it was apparent from the Panel’s conclusion that it had rejected Mr Behan’s conclusion.[55] His Honour was not satisfied that the failure to deal explicitly with Mr Behan’s conclusion warranted the inference that the Panel had failed to exercise its powers according to law.[56] We respectfully agree. The Panel was not bound to accept either Mr Behan’s approach to the operation of the Guides or his two-and-a-half per cent impairment assessment. That remains true even if, as the appellant submits, Mr Behan was the only medical practitioner involved in the case who had specialist expertise in plastic surgery.

   [55]Reasons, [29].

   [56]Ibid [30].

1. Counsel for Mr Gamble asserted that ‘[t]he function of the skin or of portion of the skin is impaired by the existence of a scar …’.  This was, however, mere assertion.  It was not based on any medical evidence given, much less accepted, at trial.  And it is not supported, much less established, by anything said in ch 13 of the Guides.  To the contrary, ch 13 includes an example where a zero per cent impairment is said to be appropriate despite significant scarring.

1. Complaint was made on the appeal about a passage in his Honour’s reasons where he concluded that the approach taken by Mr Behan did not accord with the AMA Guides. In the circumstances, his Honour said, the Panel’s decision not to adopt Mr Behan’s assessment was ‘entirely explicable’.[57] We would not disagree with his Honour. It is sufficient, however, to restate that it was a matter for the Panel to make its assessment of the relevant impairment in accordance with the AMA Guides, giving such weight to Mr Behan’s assessment as seemed appropriate to the Panel in the circumstances.

   [57]Ibid [33].

1. Finally, we return to the appellant’s contention that the omission from the Panel’s reasons of a description of the features of the appellant’s scarring shows that the scarring itself was not taken into account, and that it was (wrongly) not considered relevant to an assessment under Table 2.[58]  This submission was elaborated in the appellant’s written submissions in reply, as follows:

   [58]See above [47].

·the Panel’s reasons did not contain a description of the relevant features of the scarring, and such a description was a necessary part of the reasoning process for an assessment of his scarring in accordance with ch 13;

·the omission of a description of the relevant features of the scarring shows of itself that it was not taken into account;

·the reference to the appellant’s scarring in the fifth paragraph of p 5 of the reasons shows that the Panel did not consider the features of the scarring relevant to an assessment under Table 2, but that the only relevant matters were no limitations of daily living, and no requirement for treatment;

·under the Convenor’s directions, the Panel was required to form and to prepare reasons for its opinion in accordance with the provisions of the Directions, and/or must be taken to have done so;

·the Medical Panel must be taken to have been aware of the Convenor’s Directions and both the Panel and the Convenor must be taken to have followed them;

·the processes provided for in cls 37–43 of the Convenor’s Directions are to ensure that the reasons of the Medical Panel conform to the requirements of the Directions.  The reasons must be read in the light of the requirements of the Directions, including the requirements as to the contents of the reasons which the Medical Panel prepared.  These requirements appear in the form contained in sch 2 to the Directions, and are informed by cl 5, and include requirements that:

(a) they should clearly reveal the Panel’s reasoning;

(b)         they should include the core clinical and other findings;

·it should, then, be taken that in forming and preparing the reasons the Medical Panel and the Convenor did what the Directions require, and that there are no elements of reasoning or core clinical or other findings which were not stated in the reasons.  The reasons, then, are taken to record all of the relevant ‘steps that were in fact taken’ in reaching the Opinion, all of the findings that were actually made and all of the material on which they were based, considered pertinent to the Opinion, ie that there were no others;[59]  and

·the conclusion to be reached is that the Panel wrongly considered a description of the features of the scarring to be irrelevant to an assessment under Table 2.

[59]Here the appellant cites Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, [129]–[132]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362, [43]–[56], [94]–[96]; Minister for Immigration and Citizenship v Yusuf (2001) 206 CLR 323, [5], [75], [82]; Bauen Construction v Westwood Interiors [2010] NSWSC 1359, [20]–[29]; Devic v NRMA Insurance Ltd [2011] NSWSC 1099, [31]–[32].

1. The foundation of the foregoing submission was that the Panel must be presumed to have complied with the requirement of the Direction as to the contents of a statement of reasons. Indeed, the appellant expressly confirmed that he was not suggesting that there was any inadequacy in the Panel’s reasons in this or any other respect.[60] Rather, the contention was that the reasons were to be treated as an exhaustive account of what the Panel actually did and what it did consider.

   [60]The appellant cited the following cases as examples of the line of cases upon which he expressly disclaimed reliance:  Moyston Court Fisheries Ltd v Malios [2007] VSC 518, [42]–[48] and [60]–[69]; In Re Poyser and Mills’Arbitration [1964] 2 QB 467, 478; Westport Insurance Corporation v Gordian Runoff Ltd (2011) 87 ALJR 1188, [49]–[57].

1. We have already dealt with the substance of this submission. The Guides did not oblige the Panel to include a description of the scarring in its opinion or in its reasons. Nor did the Act. Nor did the Convenor’s Directions. For completeness, we add that the position in this regard is not affected by Kocak,[61] which was decided after we reserved judgment in the present appeal. 

   [61][2012] VSCA 259. As mentioned above (fn 25), Kocak was decided in relation to the state of the Act after it had been amended to itself impose an obligation on medical panels to prepare statements of reasons. The present case relates to the pre-amendment period. In any event, application in the present case of the standards for statements of reasons said in Kocak to be applicable to medical panels would have produced no different conclusion.

1. In any event, it is idle to consider whether a description of the scarring should have been included in the Panel’s reasons. As we are not persuaded that the Panel failed to have regard to the features of the scarring, or that it misconstrued the substantive requirements of the Guides in relation to the assessment of disorders of the skin, no error of law is made out. The Panel was simply not satisfied that the scarring warranted a positive impairment assessment. That view was fully open to the Panel.

1. The appeal will be dismissed.  We will hear counsel as to costs.

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