Lingenberg v Gallichio
[2013] VSCA 143
•14 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2013 0059 | |
| STEVEN JOHN LINGENBERG | Applicant |
| v | |
| DR ANTHONY GALLICHIO & ORS | Respondents |
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| JUDGES | NETTLE and NEAVE JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 7 June 2013 | |
| DATE OF JUDGMENT | 14 June 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 143 | |
| JUDGMENT APPEALED FROM | [2013] VSC 207 (Kyrou J) | |
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ACCIDENT COMPENSATION – Assessment of impairment – Cervicothoracic spinal impairment – Aggravation of pre-existing anchylosing spondylitis resulting in total restriction of neck mobility – Assessment by Medical Panel pursuant to s 104B(2) of Accident Compensation Act 1985 (‘ACA’) and American Medical Association Guides to the Evaluation of Permanent Impairment (‘the Guides’) – Assessment of nil impairment – Nil assessment in accordance with s 3.3f(9) of Guides – Whether application of s 3.3f(9) of Guides precluded by s 91(7)(c) of ACA – AMA Guides to the Evaluation of Permanent Impairment (4th Ed), ss 3.3e, 3.3f (5), 3.3f(9); Accident Compensation Act 1985, ss 91(1), 91(7)(c), 104B(2).
ADMINISTRATIVE LAW – Certiorari – Appeal from refusal of order in nature of certiorari to quash Medical Panel Opinion – Jurisdictional error – Error of law on face of record – Application for leave to appeal allowed and appeal treated as instituted and heard instanter and allowed – Supreme Court (General Civil Procedure) Rules 2005, Order 56.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R P Gorton QC with Mr G B Wicks | Slater & Gordon |
| For the 4th Respondent | Mr M F Fleming SC with Ms R N Annesley | Herbert Geer |
NETTLE JA
NEAVE JA:
This is an application for leave to appeal from an order of a judge of the Common Law Division refusing an application for an order in the nature of certiorari to quash a determination of a Medical Panel pursuant to s 104B(2) of the Accident Compensation Act 1985.
Preliminary issue
There is a preliminary issue as to whether leave to appeal is required. It arises because this court has expressed different views on different occasions on whether a refusal to grant relief in the nature of certiorari is an interlocutory order.
In Victoria Legal Aid v County Court[1] the court held that an order refusing relief in the nature of certiorari is an interlocutory order because it does not finally determine rights. Chernov JA[2] (with whom Warren CJ and Dodds-Streeton AJA concurred) followed an earlier decision of the Full Court in Monash University v Berg[3] to that effect and also the reasoning of the New South Wales Court of Appeal in Coles v Wood[4] that, because the jurisdiction to grant prerogative relief is discretionary, the refusal of relief does not determine finally or otherwise the rights of any party.
[1](2004) 9 VR 686.
[2]Ibid 690 [8]-[9].
[3][1984] VR 383, 385-6 (Starke, Murphy and Marks JJ).
[4][1981] 1 NSWLR 723, 725 (Moffit P) and 727 (Hutley JA).
To the contrary, however, in Applicants A1 & A2 v Brouwer,[5] the court comprised of Maxwell P, Neave and Redlich JJA, declined to follow Monash University v Berg and Victoria Legal Aid v County Court, preferring instead to base their decision on obiter dicta observations of Winneke P in Brygel v O’Keefe[6] (which their Honours described as being of ‘high persuasive authority’)[7] that an order refusing certiorari is a final order because it ‘finally disposes of the rights of the parties in the particular litigation that exists between them’.[8]
[5](2007) 16 VR 612.
[6]Unreported, Court of Appeal (Winneke P, Hayne and Charles JJA) 17 April 1997.
[7](2007) 16 VR 612, 635 [94].
[8]Brygel v O’Keefe, Unreported, Court of Appeal, 17 April 1997, 7 (Winneke P).
On one view of the matter, the fact that an order may finally dispose of the rights of the parties in particular litigation is not necessarily enough to render the order a final order.[9] Nor is it enough to render the discretionary refusal of relief a final order that there may be no real prospect of bringing another proceeding for similar relief. As Chernov JA explained in Victoria Legal Aid v County Court:[10]
… such an argument disregards a critical aspect of the criteria for determining whether a decision is final or interlocutory, namely, whether the legal, as distinct from the practical, effect of the decision determines finally the rights of the parties. To determine that question one looks at the hypothetical situation. Thus, if it is possible, from a legal point of view, to bring another like proceeding, albeit on different grounds, the decision will ordinarily be considered to be interlocutory, notwithstanding that, from a practical point of view, it can be said that such an application is unlikely to be made.[11] I consider that, as in Knight v Spadano, it is possible, from a legal point of view, for the appellant to bring another proceeding for like relief notwithstanding that the time limit fixed by r 56.02(1) has expired, and notwithstanding that ‘special circumstances’ must be shown before the court can grant an extension of time.[12]
To suggest otherwise appears to run counter to the principles essayed by the High Court in Carr v Finance Corporation of Australia Ltd.[13]
[9]Dousi v Colgate Palmolive Pty Ltd(1987) 9 NSWLR 374, 379F et seq; Aussie Vic Plant Hire v Esanda Finance Corporation Ltd (2007) 212 FLR 56, [111].
[10](2004) 9 VR 686, 691 [9].
[11]See Licul v Corney (1976) 180 CLR 213, 225 (Gibbs J).
[12]As to the requirement that ‘special circumstances’ be shown before the court can grant an extension of time fixed by r 56.02(1), see r 56.02(3).
[13](1981) 147 CLR 246, 248 (Gibbs CJ).
On the other hand, the competing decisions of this court in Victoria Legal Aid v County Court and Applicants A1 & A2 v Brouwer mean that it is no longer possible to give a definitive answer to the question of whether leave to appeal is required; and so it will remain until and unless a court of five or the High Court decides the issue.
Fortunately, for present purposes, it suffices to say that, if leave to appeal is required, we are disposed to grant leave.
The facts
The facts of the matter appear from the judge’s reasons for judgment, as follows:
1) On 4 May 2009, the applicant injured his neck in a motor vehicle accident that occurred in the course of his employment as an electrician with the respondent, SL Electrics Pty Ltd (‘SL’).
2) Since at least 1993, the applicant had suffered from anchylosing spondylitis, which caused some stiffness to his neck but did not prevent him from working full-time as an electrician.
3) The 2009 motor vehicle accident aggravated the pre-existing condition such that the applicant lost all mobility of the neck and was only capable of performing modified duties two to three hours per day (‘the injury’).
4) The Victorian WorkCover Authority (‘VWA’) accepted liability for the injury.
5) On 14 January 2012, the applicant made a claim for compensation for permanent impairment of his neck resulting from the injury. The claim was made pursuant to s 98C of the Accident Compensation Act 1985 (‘the Act’) which provides for lump sum impairment benefits.[14]
[14]Act, s 98D.
6) Sections 91(1) and 98C of the Act required that an impairment assessment be made using the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (‘the Guides’). As the applicant was not satisfied with the impairment assessment of 0% that was made by VWA’s claims agent, he requested an impairment assessment by a Medical Panel.
7) A Medical Panel answered two medical questions in a certificate of opinion dated 29 August 2012 (‘the Opinion’) and provided reasons for the Opinion on the same day.
8) Before the judge below, only the first question and the answer given were in issue. They were as follows:
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 0% whole person impairment resulting from the accepted neck injury when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The degree of impairment includes a 0% whole person impairment assessed in accordance with Chapter Three of the [Guides].
9) The effect of the Opinion was that the applicant was not entitled to compensation under s 98C of the Act.
10) The applicant sought judicial review of the Opinion under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 alleging that the Medical Panel made a jurisdictional error by misconstruing the Guides.
The decision below
The judge held that the Medical Panel had reached the Opinion in accordance with the Act, the Guides and judicial authority, and did not make any jurisdictional error. On that basis, his Honour dismissed the applicant’s claim.
Grounds of appeal
Although there are a number of proposed grounds of application, and the argument in support of them is put in several ways, the essential point is whether the Medical Panel were in error in assessing the percentage Whole Person Impairment (WPI) of the applicant the result of an exacerbation of neck injury (‘the injury’) by calculating the WPI of the applicant as he is now and then subtracting the WPI to which the applicant would be subject, apart from the exacerbation of neck injury caused by the motor accident.
The argument put below
Before the judge, the applicant argued that s 91(7)(c) of the Act required the Medical Panel to disregard impairment of the applicant’s neck resulting from unrelated injuries or causes and that, by subtracting the applicant’s pre-existing level of impairment from his current level of impairment, the Medical Panel had not complied with that requirement.
Evidently, his Honour understood the effect of that submission to be that, in order to ‘disregard’ the underlying injury, the Medical Panel were bound to assess the applicant’s current degree of impairment resulting from both the compensable injury and underlying injury, and to treat that as being the degree of impairment resulting from the compensable injury; and that, by subtracting the degree of impairment due to underlying injury, the Medical Panel did have regard to impairment resulting from unrelated injuries or causes.
Unsurprisingly, the judge rejected that notion. His Honour said that:
The Medical Panel could not have complied with s 91(7)(c) by ignoring the contribution of the pre-existing condition to the plaintiff’s current impairment, as suggested by the plaintiff. If the Medical Panel had done so, the percentage WPI assessment of 5% would not have been confined to the impairment resulting solely from the compensable injury but would also include the impairment from the unrelated pre-existing condition. This result would be contrary to the underlying purpose of the AC Act, which is to compensate workers only for impairments resulting from compensable injuries.
I agree with SL’s submission that the word ‘disregard’ is used in s 91(7)(c) of the AC Act in the sense of excluding any unrelated impairment component,
rather than creating a fiction whereby the unrelated impairment component is deemed not to exist.[15]
[15]Reasons, [50]-[51].
Plainly, that is so. The word ‘disregard’ is used in s 91(7)(c) of the Act in the sense of excluding so much of an impairment assessment as is due to unrelated injuries and causes. Otherwise, as his Honour said, the section would have the irrational consequence that compensation would extend to impairment caused by unrelated injuries and causes.
The new argument
Before this court counsel for the applicant argued, however, that the judge had misapprehended the argument put below, and that what counsel had intended to convey and now submitted was that, although s 91(7)(c) required the Medical Panel to make an assessment of impairment resulting from the compensable injury disregarding impairment due to underlying injury, the way in which the Medical Panel had gone about disregarding the degree of impairment due to underlying injury did not accord with s 91(7)(c).
The judge below rejected that view. His Honour considered that the Panel had gone about the task in the correct manner by complying with s 3.3f(9) of the Guides. As his Honour explained:
The Medical Panel’s approach was consistent with the Guides because cl 9 of s 3.3f directs that the percentage WPI based on previous unrelated causes be subtracted from the current percentage WPI in circumstances where the impairment caused by previous unrelated causes can be quantified. The plaintiff has not suggested that the evidentiary requirements of cl 9 were not satisfied. Nor has the plaintiff challenged the methodology that was used by the Medical Panel to determine the percentage WPI from the pre-existing condition. The Medical Panel acted consistently with cl 9 of s 3.3f and the definitions of ‘impairment’ and ‘apportionment’ in the Glossary in the Guides, and its assessment was in accordance with the Guides.[16]
The Medical Panel’s approach was consistent with the principles in Alcoa,[17] which were adopted by Osborn J in Chua. In my opinion, those principles are correct and are applicable to the present case.
In Alcoa, J Forrest J emphasised that the role of a medical panel is to arrive at an impairment assessment resulting solely from the compensable injury and that, in arriving at such an assessment, the medical panel does not have a discretion to ignore impairment from an unrelated cause. The principles adopted by his Honour provide no support for the plaintiff’s submissions. On the contrary, they directly contradict the plaintiff’s position.
It follows from the above that the plaintiff has failed to identify any jurisdictional error or any error of law on the face of the record of the Opinion. Accordingly, the proceeding will be dismissed.
I agree with the plaintiff’s submission that an assessment of 0% WPI is unfair because the aggravation to his neck condition resulting from the injury has worsened his impairment and has adversely affected his work capacity. However, as I said in Heinz, ‘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.’[18] [19]
[16]Citation omitted.
[17]AlcoaHoldings Ltd v Lowthian [2011] VSC 245 (J Forrest J).
[18]Heinz Co Australia Ltd v Kotzman [2009] VSC 311, [46] (Kyrou J).
[19]Reasons, [56].
Counsel for the applicant contended that the judge’s conclusion was wrong. He submitted that, upon its proper construction, s 91(7)(c) of the Act, so far from engaging the operation of s 3.3f(9) of the Guides, excludes it, and so in effect required the Medical Panel to adopt a different and more accurate approach to disregarding the degree of impairment due to underlying injury.
In our view, there is force in that submission. Section 98C(1) of the Act provides that:
A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
Section 98C(1A) of the Act defines ‘spinal impairment’ as:
… a whole person impairment derived solely in accordance with section 3.3 of Chapter 3 of the A.M.A Guides, without inclusion of any other impairment.
Section 91(7) and (7A) provide inter alia that:
(7) For the purposes of section 98C -
(a) …
(b) …
(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(d)assessments are to specify the whole person values for each chapter of the A.M.A Guides used in the assessment.
(7AA) For the purposes of section 98C(2A)(a)(ii) and (iii), assessments of spinal impairment are to specify the whole person values derived in accordance with section 3.3 of Chapter 3 of the A.M.A Guides.
It follows that the Medical Panel were bound to assess the applicant’s level of Whole Person Impairment caused by the injury, in accordance with s 3.3 of the AMA Guides, without the inclusion of any other impairment.
As is explained in s 3.3 of the Guides, Chapter 3 of the Guides provides for two approaches to the assessment of spinal impairment: the ‘Injury Model’ (which is also called the ‘Diagnosis-Related Estimates (DRE) Model’) and the older ‘Range of Motion Model’. In that sense, Chapter 3 is unique. All of the other chapters of the Guides provide for use only of the Range of Motion Model or its equivalents. The Guides also provide, in s 3.3, that, if a patient’s condition is one of the conditions listed in Table 70 of the Guides, the evaluator must use the Injury Model. In this case, the applicant’s condition was listed in Table 70, namely, ‘Spondylosthesis without loss of motion segment integrity or radiculopathy’. The Medical Panel was therefore bound to use the Injury Model.
Section 3.3e provides that the Medical Panel should start with Table 70 as a guide towards the appropriate category for the spine impairment in question. Section 3.3f of the Guides then directs the Medical Panel to select the region of the spine which is primarily involved – be it lumbosacral, thoracolumbar or cervicothoracic – and to go to whichever of Tables 72, 73 and 74 is applicable. In this case, Table 73 was: ‘DRE Cervicothoracic Spine Impairment Categories’.
Section 3.3f(5) next requires that, if one spine region is primarily involved, the Medical Panel is to determine the spine-related whole-person impairment using the impairment table referring to that region. In this case that was Table 73, DRE impairment category II: ‘Minor impairment; clinical signs of neck injury are present without radiculopathy or loss of motion segment integrity’ – % Impairment of whole person: 5.
That is the procedure which the Medical Panel followed. As the Panel explained:
Based on the worker’s history of injury, the Panel’s findings on clinical examination and consideration of the materials provided with the referral, the Panel concluded that the worker is suffering from persistent dysfunction of the cervical spine, following aggravation of pre-existing anchylosing spondylitis, with persistent symptoms of the left hand, without radiculopathy, relevant to the accepted neck injury with a designated date of injury of 4 May 2009.[20]
The Panel considers the worker’s medical condition relevant to the accepted physical injury has stabilised.
The Panel considers the worker’s medical condition relevant to the accepted physical injury has stabilised.
The Panel conducted an impairment assessment of the accepted physical [neck injury] in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) as required by Section 91 of the Act. The Panel considered that no further information was required from the worker’s treating practitioners to carry out the assessment.
The Panel carried out the impairment assessment of the neck in accordance with the Specific Procedures and Directions in Section 3.3f of Chapter Three on page 101 of the Guides.
The Panel assessed the worker’s cervicothoracic spine in accordance with Table 70 of Chapter Three and the DRE Impairment Category Differentiators in Table 70 of Chapter Three and concluded that clinical signs of cervical disc injury are present but there are no clinical signs of radiculopathy. The Panel therefore concluded that the appropriate impairment category for the cervicothoracic spine is DRE Category II pursuant to Table 73 of Chapter Three, resulting in a 5% whole person impairment.
As the impairment attributable to the neck could be assessed in accordance with the Diagnosis-Related Estimates Model (DRE), the use of the Range of Motion Model is not appropriate.
The Panel considers that there is no other intrinsic medical condition or impairment attributable to the accepted neck injury when assessed in accordance with the Guides.
[20]Emphasis added.
The Panel then turned, however, to the requirement in s 91(7) and appear to have thought that it required them to follow the method laid down in s 3.3f(9) of the Guides. Section 3.3f(9) of the Guides provides that:
From historical information and previously complied medical data, [to] determine if there was a pre[-]existing impairment. If the previously compiled data can be verified as being accurate, they may be used in apportionment (see Glossary). The percent based on the previous findings would be subtracted from the percent based on the current findings.
Accordingly, the Panel proceeded as follows:
The Panel considered there is clinical evidence of an unrelated condition which is playing a part in the worker’s current level of impairment and which ought to be disregarded in accordance with Section 91(7)(c) of the Act.
The Panel estimated the worker’s pre-existing neck condition in accordance with Table 70 of Chapter Three of the Guides and concluded that the worker is suffering from pre-existing anchylosis spondylitis associated with facet arthrosis (fusion of the apophyseal joints) without clinical evidence of radiculopathy. The Panel therefore concluded that the appropriate impairment category for the cervicothoracic spine due to the pre-existing neck condition is DRE Category II pursuant to Table 73 of Chapter Three resulting in a whole person impairment of 5%.
The Panel therefore disregarded the whole person impairment due to the pre-existing neck condition (5%) from the worker’s current level of whole person impairment (5%) pursuant to Section 91(7)(c)of the Act, resulting in a 0% whole person impairment resulting from the accepted neck injury. The degree of impairment is permanent.
In our view, the Medical Panel erred in that part of their reasoning. As J Forrest J explained in Alcoa Holdings, s 91(7)(c) does not bind a Medical Panel to evaluate pre-existing impairment in accordance with the Guides:
The Panel, in determining what matters it is to disregard, is not bound to apply the Guides. I do not accept the argument put on behalf of [the fourth defendant] that the evaluation of the unrelated impairment must be carried out applying the tests laid out in the Guides.
First, s 91(7)(c) does not mandate that such an assessment be carried out in accordance with the Guides. If the legislature had wished to impose such a requirement then it would have said so, as it did in s 91(7)(a) and s 91(7)(d) as well as in a number of the other provisions of s 91.
Secondly, to require an assessment would be patently unreal where the Panel was required to disregard an impairment of another body part. It would be a nonsense to require the Panel to utilise the Guides to conduct an assessment of the impairment of, say, a leg injury when the compensable injury was to the back. The obligation on the Panel under the Act is to disregard the unrelated impairment: it is not bound to carry out this exercise by a slavish application of the Guides (in particular cl 9).
Indeed, there is a potential tension between the manner in which the Guides in cl 9 deal with a pre-existing impairment and the manner in which the Act requires such an impairment to be disregarded. The Guides mandate a two step approach in making an apportionment between the pre-existing contribution and that of the subject injury. First an assessment is to be made of the pre-existing impairment. It requires such a determination to be made from historical information and previously compiled medical data which ‘can be verified as being accurate’. Second, it is implicit from the example that an assessment of the pre-existing impairment then be subtracted from that of the current impairment assessment.[21]
[21][2011] VSC 245 [67]-[70].
Rather, the statutory imperative to disregard the degree of impairment due to underlying injury requires a Medical panel to ‘do its best to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker’s current impairment’.[22]
[22]Ibid, [73].
No doubt, in some cases a Medical Panel might properly take the view that the application of s 3.3f(9) of the Guides is the method best calculated to produce an accurate evaluation of the degree of underlying impairment. In such cases, a Panel would be right to adopt that method. In other circumstances, however, slavish adherence to the s 3.3f(9) methodology is capable of producing arbitrary, capricious or irrational results and in such cases, a Panel is bound to do its best to assess the degree of underlying impairment by employing different, more appropriate means. As J Forrest J concluded, the members of the Panel may well be aware of techniques of assessment which are more accurate. The Panel must apply their collective knowledge and experience to produce the best result. Otherwise:
… it may be that the Panel using its collective expertise and knowledge simply attributes an estimate of the compensable injury related impairment after taking into account (and disregarding) the non-related contribution to the impairment. The Panel’s reasons, of course, should reveal how it has approached the task.[23]
[23]Ibid, [75].
Counsel for the applicant submitted that this case was one in which application of s 3.3f(9) of the Guides was productive of a result which was absurd, capricious or irrational. Specifically, the Medical Panel had found that the subject injury resulted in a degree of impairment which did not exist before the injury, namely, loss of all neck movement and persistent symptoms of pins and needles involving the whole of the left hand. Yet application of the s 3.3f(9) methodology resulted in a conclusion that there was a nil degree of impairment caused by the injury.
A similar absurd outcome, counsel suggested, would result from application of s 3.3f(9) in a case in which a worker had, before injury, been suffering from anchylosing spondylosis with right leg radiculopathy and, after the injury, was left suffering from aggravated anchylosing spondylosis with both right and left leg radiculopathy. Rationally assessed, the exacerbation of the worker’s impairment would be viewed as significant and yet, according to the s 3.3f(9) methodology, would be nil. In counsel’s submission, that cannot be what Parliament intended.
We agree. We do not consider that it is what Parliament intended, and it seems to us that the reason why Parliament cannot have intended it is because, in cases of this kind, s 3.3f(9) is inconsistent with s 91(7)(c).
Section 91(7)(c) requires a Medical Panel to disregard only so much of a worker’s assessed Whole Person Impairment as is constituted of unrelated injuries or causes. Correlatively, the section does not authorise the Medical Panel to disregard any greater degree of the workers’ assessed Whole Person Impairment. In a case of this kind, application of the methodology of s 3.3f(9) of the Guides results in the Panel disregarding not only impairment from unrelated injuries or causes but also so much of the worker’s assessed Whole Person Impairment as is due to the injury in question. To that extent, s 3.3f(9) is inconsistent with s 91(7)(c) and, perforce of s 91(1)(a)(ii), is excluded.
This conclusion is reinforced by the fact that the requirement to disregard the degree of impairment attributable to an unrelated injury or cause is not confined to spinal injuries, which must be assessed by use of the DRE approach, but also applies to an impairment resulting from a non-spinal injury which is assessed by use of the Range of Motion Model. It is further supported by the fact that an unrelated injury may occur after the injury on which the claim to compensation for non-economic loss is based. Section 3.3f(9) could not be intended to apply in such circumstances, because, otherwise, it could result in a worker losing his or her entitlement to non-economic loss compensation due to the Whole Person Impairment attributed to the later injury cancelling out the Whole Person Impairment caused by the compensable injury.
Certiorari should go
It follows, in our opinion, that the Medical Panel erred in law by misconstruing the effect of s 91(7)(c). The Panel proceeded as if they were bound to disregard unrelated injuries or causes by applying the methodology of s 3.3f(9) of the Guides. In the circumstances of this case, however, s 91(1)(7)(c) bound the Medical Panel to eschew s 3.3f(9) of the Guides and to do their best to disregard unrelated injuries or causes. They were required to apply their knowledge and experience in order to determine the extent to which impairment from unrelated injury or cause was causing or playing a part in the worker’s assessed level of impairment.
It is unnecessary to decide whether the Medical Panel’s error was a jurisdictional error, as the applicant contends, or simply an error of law made in the exercise of jurisdiction. If it be the latter, it was nonetheless an error of law apparent from the Panel’s reasons and, therefore, an error of law on the face of the record for which certiorari will go.[24]
[24]Administrative Law Act 1978 s 10; Kocak v Wingfoot Australia Partners Ltd (2012) 295 ALR 730, 754 [72].
Conclusion
In the result, if leave to appeal be required, we shall allow the application for leave to appeal and treat the appeal as instituted and heard instanter. We shall allow the appeal and set aside the orders below. In lieu thereof, we shall make an order in the nature of certiorari quashing the Medical Panel’s opinion and we shall remit the matter to the Medical Panel for reconsideration in accordance with law. The fourth respondent should pay the costs of the proceeding below and also of the application and appeal.
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