Ryan v The Grange at Wodonga Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 1306

TERESA ANN RYAN	Plaintiff
v
THE GRANGE AT WODONGA PTY LTD & ORS	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2014. Written submissions received on 28 February 2014 and 4 March 2014.
DATE OF JUDGMENT:	2 April 2014
CASE MAY BE CITED AS:	Ryan v The Grange at Wodonga Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 135

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ADMINISTRATIVE LAW — Judicial review — Order 56, Supreme Court (General Civil Procedure) Rules 2005 — Medical panel — Determination of whether the plaintiff was capable of performing her pre-injury duties — Whether the medical panel exceeded its jurisdiction by failing to comply with the time limit prescribed by s 68(1) of the Accident Compensation Act 1985 (‘Act’) — Whether the medical panel’s opinion was perverse or illogical or vitiated by other jurisdictional error — Whether medical panel’s reasons for decision were adequate — Act ss 63, 65, 68 — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Wheelahan SC with Mr M Waugh	Constable Connor
For the First and Second Defendants	Mr M Fleming SC with Mr R Kumar	Thomsons Lawyers
For the Third Defendants	Mr P Rowell, Solicitor	Moray & Agnew

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Facts....................................................................................................................................................... 2

The plaintiff’s work and her shoulder injury........................................................................... 2
Referral of the Medical Questions to a medical panel............................................................ 6

Relevant provisions of the Act......................................................................................................... 6

The Medical Panel’s Reasons.......................................................................................................... 9

Relief sought in this proceeding and grounds of review......................................................... 14

Absence of jurisdiction due to failure to comply with statutory time limit.......................... 14

When does the Prescribed Period commence?...................................................................... 15

Parties’ submissions............................................................................................................. 15
Decision.................................................................................................................................. 17

What are the consequences of non-compliance with the Prescribed Period?................... 22

Relevant legal principles..................................................................................................... 22
Parties’ submissions............................................................................................................. 25
Decision.................................................................................................................................. 29

Failure to take into account relevant considerations and other matters................................ 32

Relevant legal principles........................................................................................................... 34
Parties’ submissions................................................................................................................... 35
Decision........................................................................................................................................ 36

Taking into account irrelevant considerations........................................................................... 39

Relevant legal principles........................................................................................................... 39
Parties’ submissions................................................................................................................... 39
Decision........................................................................................................................................ 40

Whether the Opinion is perverse or illogical.............................................................................. 42

Relevant legal principles........................................................................................................... 42
Parties’ submissions................................................................................................................... 45
Decision........................................................................................................................................ 46

Inadequate reasons.......................................................................................................................... 47

Relevant legal principles........................................................................................................... 48
Parties’ submissions................................................................................................................... 50
Decision........................................................................................................................................ 51

Conclusion and proposed order.................................................................................................... 54

HIS HONOUR:

Introduction and summary

This is an application for review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 of an opinion of a medical panel concerning a bilateral shoulder injury that the plaintiff sustained in the course of her employment with the first defendant (‘Grange’).

The opinion is dated 6 February 2013 (‘Opinion’) and was accompanied by a statement of reasons for the Opinion (‘Reasons’). The Opinion answered two medical questions (‘Medical Questions’) as follows:

Question 1.What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?
AnswerIn the Panel’s opinion the worker is suffering from an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder and from a mild chronic adjustment disorder with mixed anxiety and depressed mood, relevant to the claimed injury.
Question 2.Is the worker capable of performing her pre-injury duties?
AnswerYes.

The plaintiff seeks an order quashing the Opinion on the grounds that the medical panel:

(a) exceeded its jurisdiction by forming the Opinion after the 60 day period prescribed by s 68(1) of the Accident Compensation Act 1985 (‘Act’);[1]
[1]Section 68 of the Act is set out at [34] below.

(b) failed to take into account relevant considerations and other matters;

(c) took into account irrelevant considerations;

(d) reached a conclusion that was perverse or illogical; and

(e) provided inadequate reasons for the Opinion.

For the reasons set out below, I have concluded that none of the above grounds has been established and that the application for review should be dismissed.

Facts
The plaintiff’s work and her shoulder injury

Set out below is an outline of the facts which are not in dispute. As the parts of the Reasons which I quote later in this judgment discuss the facts in some detail, the outline is very brief.

The plaintiff is a 47 year old woman who, in June 2010, commenced working for Grange as a kitchenhand in Grange’s 80 bed aged care facility in Wodonga. Her duties included: dishing up and serving meals; preparing and delivering meal trays; setting up and clearing tables; washing dishes; wiping tables and benches; sweeping and mopping floors; taking out rubbish; and manually handling the bain-marie, large meal trays and a food trolley. Her regular hours were 19 hours per week but she often worked up to 30 hours per week.

In 2006, the plaintiff suffered a right shoulder injury. She suffered symptoms of right shoulder pain in May 2009. This injury had completely resolved and the plaintiff had been symptom-free by the time she commenced with Grange.

On 14 January 2012, the plaintiff consulted her general practitioner, Dr Ian Cook. He diagnosed bilateral shoulder impingement syndrome. Subsequent medical imaging confirmed the diagnosis as ‘bilateral subacrominal bursitis with minor tendonosis of [the plaintiff’s] supraspinatus tendons.’ I will refer to the plaintiff’s bilateral shoulder injury as the ‘Injury’.

The plaintiff ceased work on 19 January 2012. On 25 January 2012, she made a claim for weekly payments of compensation under the Act, asserting that the Injury arose in the course of her employment with Grange. The claim was accepted and the plaintiff began to receive weekly payments.

Dr Cook arranged active treatment by way of ultrasound-guided cortisone injections in February 2012.

The WorkCover claim agent had the plaintiff examined by a consultant surgeon, Mr Roger White, on 12 March 2012. In his report dated 26 March 2012 (‘Mr White’s report’), Mr White stated that the plaintiff had the capacity to ‘return to work in modified pre-injury duties and hours.’ He said that she could perform those duties which did not require her to raise her arms above her head, lift items over 5kg in weight or involve sustained or repetitive activities using her upper limbs. He also said that pushing and pulling should be restricted to less demanding activities. He concluded that part-time work of several hours per day would be appropriate.

The plaintiff returned to work on 26 March 2012 on modified duties at reduced hours. She experienced pain in her right shoulder. On 3 April 2012, Dr Cook arranged another ultrasound-guided cortisone injection. On 18 April 2012, Dr Cook certified that the plaintiff was not fit for her work.

On 2 July 2012, the plaintiff undertook an ultrasound of the right shoulder which indicated: ‘Low grade partial thickness articular sided tear of the mid supraspinatus tendon. Mild subacromial bursitis with evidence of shoulder impingement at approximately 80°.’

On 11 July 2012, the plaintiff was examined by a consultant occupational physician, Dr David Barton, at the request of the WorkCover claim agent. According to Dr Barton’s report dated 12 July 2012 (‘Dr Barton’s report), the plaintiff reported that she was having lesser symptoms in the shoulders and that the level of her symptoms varied depending on what she did. The plaintiff also told Dr Barton that she felt that the improvement had occurred because she moved from Wodonga to live in Melbourne with her sister and was ‘not doing much’.

Dr Barton’s report stated that the plaintiff ‘has mild persisting right shoulder symptoms following what appears to be an unresolved soft tissue injury’ and that ‘[f]rom a simple physical perspective [he saw] no particular reason why she could not work normally.’ In a supplementary report dated 23 July 2012, Dr Barton stated that the plaintiff could perform her pre-injury duties for her pre-injury hours. I will refer to Dr Barton’s report and his supplementary report collectively as ‘Dr Barton’s reports’.

In reliance upon Dr Barton’s reports, the WorkCover claim agent terminated the plaintiff’s weekly payments effective from 10 August 2012 on the basis that she was no longer incapacitated for work.

A further ultrasound of the plaintiff’s left shoulder was conducted on 13 August 2012 which indicated as follows:

There is mild thickening of the subacromial bursa. This is with painful shoulder movement. Minor bony irregularity in the humeral head is shown. There is a small focal area of reduced echogenicity within the deep humeral surface of the supraspinatus tendon measuring 3mm in size suggestive of a small partial thickness tear rotator cuff along its deep humeral attachment.

The plaintiff has attended a pain management program for two hours twice a week.

Dr Stephen De Graaff, the Director of Pain Services and Senior Rehabilitation Physician at Epworth Healthcare, saw the plaintiff on 30 July 2012, 17 September 2012 and 12 November 2012. He prepared a report dated 19 November 2012 (‘Dr De Graaff’s report’) in which he concluded as follows:

Assessment and Progress
…
On assessment Ms Ryan presented with a chronic right rotator cuff tear with significant pain associated with the supraspinatus partial tear …
I … felt she was not fit to return to full time normal duties. …
Summary
…
She has documented tears of both supraspinatae muscles and is currently undertaking a pain management and rehabilitation program at Epworth Camberwell.
She requires analgesia and neuromodulation for pain control.
Response to questions
A Diagnosis
Bilateral rotator cuff syndrome with documented tears of supraspinati bilaterally and chronic pain syndrome involving pain in both shoulders and neck.
BWas Ms Ryan’s occupation a significant contributing factor to her injuries.
The repeated lifting and carrying and work above shoulder height stressors have led to injuries to both shoulders. The injuries are consistent with her work condition.
CPrognosis and estimate of future medical treatment and approximate cost of treatment.
Prognosis is guarded given the timeframe since the original injury although Ms Ryan is committed to improving her wellbeing and keen to undertake some form of vocational activity. She will have limitations working above shoulder height in the long term so any work conditions will need to respect this.
…
Long term, there is a risk of recurrent injury, so any work duties … will need to address her injury risk.
…
Ms Ryan will not be able to return to her pre employment duties as this involved significant amount of above shoulder activity.
She will be limited in her lifting and carrying capacities, probably to a level below 10 kg maximum and will need to avoid repetitive activities.
It is most likely that she will need modified duties in the long term, avoiding heavy lifting and carrying, repetitive lifting and carrying, and working above shoulder height.

Dr Cook prepared a report dated 3 December 2012 (‘Dr Cook’s report’) in which he stated as follows:

[Ms] Ryan has over 2012 attempted to return to her previous employment but this has been unsuccessful due to pain and limited shoulder function. If her pain was controlled she would need retraining for clerical type work, as it is my opinion that she will never be fit for work using repetitive lifting and shoulder movement.

On 24 December 2012, the plaintiff underwent a further cortisone injection in each shoulder.

Referral of the Medical Questions to a medical panel

Pursuant to s 55 of the Act, the plaintiff referred the decision of the WorkCover claim agent to terminate her weekly payments for conciliation. On 5 December 2012, the conciliation officer decided to refer the Medical Questions to a medical panel (‘Referral’).

Following receipt of the Referral by the Convenor of Medical Panels (‘Convenor’) the Convenor appointed the third defendants as the medical panel to consider the Medical Questions (‘Medical Panel’ or ‘Panel’). The Medical Panel comprised Dr Homolka, occupational physician, Dr Harmer, rheumatologist, Mr Kierce, orthopaedic surgeon, Dr Van Ammers, psychiatrist and Dr Ortenzio, psychiatrist.

Before me, the parties agreed to the accuracy of the following facts:

(a) the Referral was received by the Convenor on 6 December 2012;

(b) the Medical Panel was convened by the Convenor on 12 December 2012;

(c) letters of appointment to each member of the Medical Panel were dated 3 January 2013; and

(d) the Medical Panel formed the Opinion on 6 February 2013.

Relevant provisions of the Act

Section 82(1) of the Act provides that a worker is entitled to compensation in accordance with the Act, for ‘an injury arising out of or in the course of any employment’. The definition of ‘injury’ in s 5(1) includes ‘aggravation … of any pre-existing injury’.

Section 93 of the Act contains an entitlement to compensation in the form of weekly payments where ‘a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation’.

Under the Act, the County Court[2] or a conciliation officer[3] ‘may’ refer a medical question to ‘a Medical Panel for an opinion’. The Act also makes provision for the Victorian WorkCover Authority (‘VWA’)[4] or a self-insurer[5] to make such a referral. I will refer to a court, a conciliation officer, the VWA and a self-insurer that refers a medical question as the ‘Referring Body’.
[2]Act s 45. Pursuant to s 43, the Magistrates’ Court also has a referral power.
[3]Act s 56(6).
[4]Act s 104B(9).
[5]Act s 104B(9).

Section 5(1) of the Act defines ‘Medical Panel’ to mean ‘a Medical Panel under this Act.’

Division 3 of pt III of the Act (ss 63 to 68) provides for the establishment of medical panels and their functions. Section 63 relevantly provides:

63 Establishment and constitution
(1)Medical Panels must be constituted as necessary for the purposes of this Act and Part VBA of the Wrongs Act 1958 to carry out such functions as may be conferred on a Medical Panel under this Act or that Part.
(2)For the purpose of constituting Panels, there is to be a list of members consisting of medical practitioners appointed by the Governor in Council.
(3)From the list of members under subsection (2), the Minister—
(a) must appoint a Convenor; and
…
…
(4)The Convenor may—
(a)convene a Medical Panel; and
(b)determine the number of members that are to constitute a Medical Panel based on what he or she considers to be appropriate in each particular case.

…
(10)[VWA] must appoint such officers and employees as are necessary for the proper functioning of medical panels.

Pursuant to s 65(1) of the Act, ‘[a] Panel’ is not bound by the rules of evidence and may inform itself on any matter relating to a reference in any manner it thinks fit. Section 65(2) provides that ‘[t]he Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.’ Under s 65(5), ‘[a] Panel may ask a worker … to meet with the Panel and answer questions … [and] to submit to a medical examination by the Panel’.

Section 65(5A) to (5C) of the Act provides as follows:

65 Procedures and powers
…
(5A)Notwithstanding sections 67(1A) and 68(1), if a Conciliation Officer refers a medical question to a Medical Panel under section 56(6) and it becomes apparent to the Convenor or the Medical Panel that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by a court than by a Medical Panel—
(a)the Convenor may decline to convene a Medical Panel; or
(b)the Medical Panel may decline to give an opinion on the medical question.

(5B)The Convenor must inform the Conciliation Officer, in writing, of a decision made by the Convenor or the Medical Panel under subsection (5A)(a) or (b).
(5C)If a Medical Panel has been referred a medical question and the Medical Panel considers that further information is required to enable the medical panel to form a medical opinion on the question—
(a)the Medical Panel may request the person or body referring the medical question to provide the information within the period specified in the requirement; and
(b)the time limit specified in section 68(1) is suspended from the date a request under paragraph (a) is made until the end of the period specified in the requirement.

Section 65(6A) and (6B) of the Act requires the Referring Body to submit certain documents to the convened medical panel.

Section 67(1) of the Act provides that the function of ‘a Medical Panel’ is to give its opinion on any medical question referred by a Referring Body in respect of injuries arising out of, or in the course of, or due to the nature of employment. Section 67(1A) stipulates that ‘[a] Medical Panel must give its opinion on a medical question in accordance with this Division.’

Section 68 of the Act states:

68 Opinions
(1)A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, [VWA] or self-insurer.
(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.
(3)Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer or the County Court or [VWA] or self-insurer its written opinion and a written statement of reasons for that opinion.
(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.

The Medical Panel’s Reasons

On 21 January 2013 the plaintiff was examined jointly by Dr Homolka, Dr Harmer and Mr Kierce. On the same day, the plaintiff was also examined jointly by Dr Van Ammers and Dr Ortenzio.

As stated at [2] above, the Medical Panel’s Opinion was accompanied by its Reasons. In the Reasons, the Medical Panel stated that it had considered the documents listed in enclosures A and B (‘Listed Documents’). The Listed Documents included Dr White’s report, Dr Barton’s reports, Dr De Graaff’s report and Dr Cook’s report. The Panel stated that it formed the Opinion by reference to the Listed Documents, the history provided by the plaintiff and the findings of the medical examinations of the plaintiff conducted by the Panel.

The Reasons recited the history provided to the Medical Panel by the plaintiff, described the Panel’s findings upon the physical and mental state examinations of the plaintiff and then set out the Panel’s conclusions and the reasons for those conclusions.

The history of the plaintiff’s physical health that the Medical Panel recorded in the Reasons was consistent with that set out at [6] to [21] above. The recorded history relevantly included the following:

[The worker] told the Panel that she was employed to work 19 hours per week on a variable roster basis, including weekends, but she said that she routinely ‘took on extra shifts’, often working up to 30 hours per week.
The worker told the Panel that in about late 2011 she began to experience gradually increasing pain in both her shoulders, right worse than left. She said that she eventually consulted her general practitioner on 14 January 2012, and she told the Panel that she was investigated with Xrays and ultrasound scans, that she was prescribed analgesia and the anti-inflammatory agent Celebrex, that she was referred to physiotherapy, and that she was provided with a Certificate of Capacity for restricted duties. She told the Panel however that at that time suitable duties were not made available to her, and … she was told by her employer to stay at home.
The worker told the Panel that she received further treatment with ultrasound-guided cortisone injections, which were administered to her right shoulder on 2 February 2012 and to her left shoulder on 9 February 2012. She described good response to both injections, and she said that for about 6–8 weeks the pain in both her shoulders improved by approximately 80%.
The worker told the Panel that on 26 March 2012 she commenced a graduated return to work in restricted duties, starting initially with 3 hours per day on 3 days per week. She told the Panel that her duties were limited to setting tables, filling water jugs and baking cakes, but she said that by this time the effect of the cortisone injections was ‘starting to wear off’. She told the Panel that due to increasing pain in both her shoulders she struggled to cope with her restricted duties, and she said that on 18 April 2012 she was certified unfit for work. She told the Panel that she has not returned to any form of employment since that time.
The worker told the Panel that on 3 April 2012 she underwent a second ultrasound-guided cortisone injection to her right shoulder. She told the Panel that the injection was again beneficial, but she said that on this occasion her pain improved by only about 70% and the improvement lasted for only about six weeks.
…
She told the Panel that on 24 December 2012 she also received treatment with two further cortisone injections, one to each shoulder, which were administered by the rehabilitation specialist in his rooms. She told the Panel that once again there was some benefit from this treatment, but she said that on this occasion her pain improved by only about 50%, and only for two weeks.
…
The worker currently complains of constant pain of variable severity affecting the whole of both shoulders, including the posterior shoulder girdle and the right and left lateral aspects of the neck, which is most severe in the mornings and at night, and which improves a little during the day, usually between the hours of noon and 4 pm. She said that her right shoulder is worse than her left, and she described intermittent associated radiation of pain from her right shoulder into the anterior aspect of her upper limb, as far as the right index and middle fingers. She told the Panel that her right index and middle fingers feel numb, but she said that she does not drop things with either of her hands.
She told the Panel that she has no radiation of pain into her left upper limb.
The worker told the Panel that her range of movement of both shoulders is limited by pain, and she said that she cannot lie on her right side without discomfort. She told the Panel that she is woken up by pain if she rolls over onto either her right side or her left side during sleep, and she said that on average she will only sleep for about two hours at a time. She told the Panel that as a result she often requires ‘nana naps’ during the day.
The worker told the Panel that she also suffers from frequent frontal headaches, which she described as being ‘behind the eyes’. She told the Panel that the headaches develop during the day on at least two days each week.
…
The worker told the Panel that she continues to require narcotic analgesia and said that she currently takes Targin, 20mg twice a day, and Nurofen Plus, 2 tables twice a day. She said that she also takes Lyrica (a neuropathic pain modifying agent) 75mg in the morning and 150mg at night, and she told the Panel that she applies a hot water bottle to both her shoulders for additional pain relief.
…
The Panel confirmed with the worker her history of a previous right shoulder problem involving a supraspinatus tear demonstrated on ultrasound in May 2009, a thoracic haematoma, which she sustained when she was assaulted in March 2011 at which time her right arm was also forcibly twisted behind her back, a fracture of the L1 vertebra in December 2008, and depressive illness, for which she was prescribed the anti-depressant Cymbalta in August 2011. The worker told the Panel that she did not require treatment, and that she did not lose time from work, as a result of her 2009 right shoulder problem, and she said that she made a full recovery. She told the Panel that she did not sustain a further injury to her right shoulder during the assault incident in March 2011.

The Reasons set out the following findings on the plaintiff’s physical health based upon the Medical Panel’s physical examination of the plaintiff:

On physical examination the Panel noted that the worker demonstrated a normal posture, with level shoulders and normal cervical spinal and shoulder girdle contours, without any evidence of muscle spasm, wasting or atrophy. Range of motion of the cervical spine was mildly limited by pain in lateral flexion to the left and in left rotation. Examination of the right and left shoulder revealed diffuse, non-specific and variable, soft tissue tenderness to palpation. Ranges of active motion of both shoulders were globally and variably mildly limited by pain. Full ranges of passive glenohumeral motion were demonstrated bilaterally, and there was no clinical evidence of impingement. Crepitus was not elicited and neurovascular examination of the right and left upper limbs did not reveal any abnormalities. In particular, there was no clinical evidence of right carpal tunnel syndrome, and Tinels’s and Phalen’s tests for carpal tunnel syndrome were negative.
The Panel did not review any medical imaging but noted the radiological reports of investigations which were included with the Referral material. The Panel noted the report of an ultrasound scan of the right shoulder, dated 26 May 2009, which described a ‘focal tear within the posterior supraspinatus tendon with secondary sonographic signs suggesting full thickness extent’; the report of plain Xrays and ultrasound scans of the right and left shoulders, dated 19 January 2012, which described a type III acromion with a prominent anterior spur, minor supraspinatus tendinosis without a tear, and slight thickening of the subacromial bursa in the right shoulder, and minor degenerative changes of the acromioclavicular joint, mild supraspinatus tendinosis, and slight thickening of the subacromial bursa in the left shoulder; the report of a further right shoulder ultrasound scan, dated 2 July 2012, which concluded that there was a ‘Low grade partial thickness articular sided tear of the mid supraspinatus tendon (and) Mild subacromial bursitis with evidence of shoulder impingement at approximately 80°’; and the report of an ultrasound scan of the left shoulder, dated 13 August 2012, which described mild thickening of the subacromial bursa and findings ‘suggestive of a small partial thickness tear rotator cuff along its deep humeral attachment.’
The Panel considered that neither additional radiological imaging nor any other investigations were required for it to complete its assessment of the worker’s physical medical condition and answer the medical questions.

As the plaintiff has not sought to impugn the Medical Panel’s findings or conclusions regarding her mental health, I will not set out the parts of the Reasons that record her mental health history and the Panel’s findings. The Panel’s overall conclusion about the plaintiff’s mental health was as follows:

The Panel … concluded that the worker is currently suffering from a mild chronic adjustment disorder with mixed anxiety and depressed mood, relevant to the claimed injury.

The Reasons described the Medical Panel’s ultimate conclusions and the bases for those conclusions as follows:

The Panel concluded that the worker is currently suffering from an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder, relevant to the claimed both shoulders injury.
…
The Panel considered that the worker’s current psychiatric condition of a mild chronic adjustment disorder with mixed anxiety and depressed mood is mild and does not affect her work capacity in any way.
The Panel considered the nature of the worker’s pre-injury duties, which involved dishing up and serving meals, and other associated kitchen work, in an aged care facility, and which she was employed to perform for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice. The Panel also considered the nature and extent of the worker’s current physical and psychiatric conditions, its clinical examination findings, and the information contained in the reports from the various practitioners who have examined and or treated the worker and which were included with the Referral material.
The Panel considered that the nature and extent of the worker’s current physical medical condition of an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder is mild, and the Panel also considered that notwithstanding the worker’s reported symptoms of pain, she is capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.
The Panel therefore concluded that the worker is capable of performing her pre-injury duties.
The Panel noted the opinions of the worker’s treating medical practitioners, Drs Stephen De Graaff, rehabilitation physician, and Ian Cook, general practitioner, expressed in their reports, dated 19 November 2012 and 3 December 2012 respectively, which were included with the Referral material. The Panel noted that both medical practitioners considered the worker to have no current work capacity. [The] Panel formed a different opinion to that of Drs De Graaff and Cook in respect of the worker’s current work capacity based on its own examination of the worker on 21 January 2013 and for the reasons given above.
The Panel also noted the opinion of the independent medical examiner, Mr Roger White, surgeon, expressed in his report, dated 26 March 2012, wherein he stated that the worker has ‘the capacity to return to work in modified pre-injury duties and hours’. Based on its collective experience and expertise the Panel considered that the worker’s occupational duties and hours of work did not require modification. The Panel therefore formed a different opinion to that of Mr White based on its own examination of the worker on 21 January 2013 and for the reasons given above.

Relief sought in this proceeding and grounds of review

On 18 March 2013, the plaintiff commenced this proceeding against Grange, VWA and the members of the Medical Panel. As Grange and VWA were jointly represented, I will refer to them collectively as ‘Grange’. The Panel appeared at the hearing through its solicitor. Consistently with R v Australian Broadcasting Tribunal; Ex parte Hardiman,[6] the Panel’s solicitor assisted the Court and the substantive parties with the factual matters set out at [24] above but otherwise did not make any submissions.
[6](1980) 144 CLR 13, 35–6.

In the further amended originating motion filed during the hearing, the plaintiff sought an order quashing the Opinion and referring the Medical Questions to a differently constituted medical panel.[7]
[7]The plaintiff abandoned her claim for an order compelling the Panel to provide further and better reasons for the Opinion.

The further amended originating motion relies on 11 grounds of review which are summarised at [3] above. They are discussed below under appropriate headings.

Absence of jurisdiction due to failure to comply with statutory time limit

Ground of review (k) in the further amended originating motion is as follows:

[T]he … Opinion is beyond jurisdiction and of no effect having been formed outside the period prescribed by s 68(1) [of the Act].

In relation to this ground, the parties made submissions on the following issues:

(a) From when does the 60 day period prescribed by s 68(1) of the Act (‘Prescribed Period’) commence to run?

(b) What are the consequences of a failure by a medical panel to form an opinion within the Prescribed Period?

(c) Can and, if so, should the Medical Panel be given an opportunity to seek an extension of time under s 68(1)?

As I have concluded that the Opinion was formed by the Medical Panel within the Prescribed Period and that the Opinion would not be invalid even if it had been formed after that period had expired, I will only deal with the first two issues.

When does the Prescribed Period commence?

This Court has not previously considered whether the Prescribed Period commences on the day a referral is made, on the day a referral is received by the Convenor or on the day the Convenor convenes the relevant medical panel. In the present case, if either the first date (5 December 2012) or the second date (6 December 2012) applies, the Opinion must be held to have been formed outside the Prescribed Period. However, if the third date (12 December 2012) applies, the Prescribed Period would not have expired.

The second issue, namely, whether non-compliance with the Prescribed Period invalidates the Opinion, will only arise if the correct conclusion is that the Opinion was not formed within the Prescribed Period.

Parties’ submissions

The plaintiff submitted that the governing words in s 68(1) of the Act are ‘after the reference is made’ and that the words ‘to it’ are merely descriptive of the medical question. According to the plaintiff, the Prescribed Period commences on the day that the Referring Body makes the reference rather than any subsequent date. In the present case, that date was said to be not 5 December 2012, when the conciliation officer signed the referral letter, but 6 December 2012, when the referral letter was received by the Convenor.

The plaintiff contended that her construction of the commencement of the Prescribed Period is to be preferred because:

(a) the construction is supported by the text of s 68(1) of the Act;

(b) a period of 60 days commencing from the date of referral is ample to permit the convening of a medical panel and the formation of an opinion;

(c) the construction furthers the object of the Act that disputes about workers’ entitlements be resolved speedily and expeditiously;[8]
[8]The plaintiff referred to ss 52F(1)(a), 56(2), 65(2), 103(2), (4E), (4G), (4H), (7)(a), (8), 108(1)(ab), (4), (4C), 109(1), (2), (4)–(8) of the Act, and Accident Compensation Commission v Murphy [1998] VR 444, 450 (‘Murphy’).

(d) if the Prescribed Period did not commence until a medical panel was convened, there would be no effective time limit requiring the Convenor to convene a panel;

(e) the words ‘[n]otwithstanding sections 67(1A) and 68(1)’ in s 65(5A) necessarily imply that the obligation to provide an opinion and that the opinion be provided within 60 days may arise before the Convenor convenes a medical panel; and

(f) it can be inferred from the fact that s 68(1) enables the Referring Body to grant an extension of time that the Act intends that the Referring Body retain control over the time for the completion of the opinion.

Grange submitted that the governing words in s 68(1) of the Act are ‘referred to it’ and, accordingly, the Prescribed Period commences on the day that the medical questions are referred to a medical panel following the convening of that panel. According to Grange, the words ‘to it’ connote the transmission to and the reception by the convened medical panel of the referred medical questions and therefore, it does not make sense for the time limit to commence anterior to the convening of the panel to whom the questions are referred. All that the referral does, so it was said, is to initiate the process by authorising the transmission of the referral documentation to the Convenor who is then obliged to convene a medical panel and complete the referral process by referring the medical questions to that panel.

Grange contended that its construction of the commencement of the Prescribed Period is to be preferred because the Act makes provision for the suspension of the Prescribed Period where further information is required after a medical panel is convened (see s 65(5C)), but makes no provision for an extension or suspension of that period prior to the convening of a panel where events set out in the Act occur which delay the convening of the panel.[9] Grange contended that this contrast suggests that the Prescribed Period has effect only from the date that the medical panel is convened.
[9]Grange referred to the following provisions: pursuant to s 65(5A) of the Act, in certain circumstances the Convenor may decline to convene a medical panel; pursuant to s 63(5) of the Act, there may be a delay in convening a medical panel because certain medical practitioners are precluded from being members of the panel; and pursuant to the Convenor’s Directions made under s 68(7) and (9) of the Act and dated 8 June 2012 (‘Convenor’s Directions’) the Convenor may require further information or clarification from the Referring Body before convening a medical panel.

Decision

The question of when the Prescribed Period commences must be determined by reference to the wording of s 68(1) of the Act read in the context of that section, div 3 of pt III, and the Act as a whole, including its objects and purposes.

It is clear from div 3 of pt III of the Act that, while the Convenor is a continuing statutory officer with ongoing powers and responsibilities, there are no continuing or permanent medical panels. Section 63 simply makes provision for a list of approved[10] medical practitioners who are eligible to be appointed to a medical panel that is convened from time to time for the purpose of dealing with specific medical questions that are referred to it.
[10]Section 63(2) of the Act refers to a list of medical practitioners who are ‘appointed’ by the Governor in Council.

The Act provides for the following steps to be taken to obtain a medical panel’s opinion on a medical question where no complications (such as inadequate information) arise:

(a) The Referring Body decides to refer a medical question to a medical panel.[11]
[11]Act ss 45, 56(6) and 104B(9).

(b) The Referring Body provides the medical question and other documents to the Convenor.[12]
[12]Act s 65(6A) and (6B). Although these provisions state that the documents are to be submitted to the medical panel, it is clear from s 65(5A) that the documents are initially provided to the Convenor.

(c) The Convenor convenes a medical panel by appointing medical practitioners on the approved list to be members of the medical panel.[13]
[13]Act s 63(4).

(d) The convened medical panel receives the medical question and other referred documents from the Convenor.[14]
[14]See para 19 of the Convenor’s Directions.

(e) The convened medical panel takes steps to enable itself to form an opinion on the medical question, including reading the referred material and, where appropriate, examining the worker.[15]

(f) The convened medical panel forms an opinion on the medical question.[16]

(g) The convened medical panel provides its opinion and the reasons for its opinion to the Referring Body within seven days after forming the opinion.[17]

[15]Act s 65(5), (5C) and (6)–(6B).

[16]Act s 68(1).

[17]Act s 68(3).

It is clear from the above timeline that a medical panel does not come into existence, and cannot perform any function, until it is convened. It follows that, unless the Convenor convenes a medical panel on the same day that the Referring Body refers a medical question, there is no medical panel that can commence to deliberate on the medical question on that day. Such deliberation cannot commence until the medical panel is convened.

If it is assumed that there will always be some delay between the referral of a medical question and the convening of a medical panel, the time that the convened medical panel will have to form an opinion on the medical question will vary depending on when the Prescribed Period is held to commence. If Grange’s interpretation is accepted, the convened medical panel will always have 60 days to form its opinion. If the plaintiff’s interpretation is accepted, the convened medical panel will always have fewer than 60 days to form its opinion. On the plaintiff’s interpretation, the greater the delay between the date of referral and the date that the medical panel is convened, the shorter the period of deliberation will be. That is because, on the plaintiff’s interpretation, the Prescribed Period commences on the date of referral irrespective of when the medical panel is convened.

The fact that opinions of medical panels are final and conclusive[18] and have the potential to significantly affect the rights and obligations of workers and employers, is relevant to the construction of s 68(1) of the Act. Grange’s interpretation would enable all medical panels to have a fixed period of 60 days from the time that they are convened to properly and carefully deliberate on the medical questions referred to them. On the other hand, the plaintiff’s interpretation would result in medical panels having a variable period within which to deliberate, the length of which will depend on the extent of the delay between the referral date and the date that the medical panel is convened. Grange’s interpretation is more compatible with the nature and seriousness of the function performed by medical panels.
[18]Act s 68(4).

When the words ‘referred to it’ in s 68(1) of the Act are read in the light of the above considerations, it is clear that they are intended to determine when the Prescribed Period commences, namely, when a medical question is referred to the particular medical panel that is convened to form an opinion on that question. The words ‘after the reference is made’ take their colour from the earlier words ‘referred to it’ and mean after the reference is made to the convened medical panel.

I acknowledge that my interpretation means that any delay by the Convenor to convene a medical panel will add to the period from the referral of the medical question until the furnishing of the panel’s opinion on that question. The Act contemplates that there may be such a delay.[19]
[19]The Convenor must satisfy himself or herself that the referred medical question meets the requirements of the Act and that it is appropriate for a medical panel to determine the question. The Convenor must also consider who should constitute the medical panel, including whether any medical practitioner is precluded from being a member of the panel. See ss 63(4) and (5), 65(5A) and 67(1) of the Act.

In any event, I do not accept that such delay will pose any real difficulty in practice. This is because the Convenor has a statutory duty to convene a suitable medical panel as soon as practicable after receiving a medical question and satisfying himself or herself that the statutory requirements have been met. Ordinarily, it would be expected that any delay between receipt of a medical question and the convening of a medical question would be modest. In the present case, the delay was six days. A delay of that magnitude is not inconsistent with the timely resolution of disputes about workers’ entitlements.

I do not accept the plaintiff’s submission about the effect of the words ‘[n]otwithstanding sections 67(1A) and 68(1)’ in s 65(5A) of the Act. Those words merely confirm two matters that would otherwise be obvious. The first is that, if the Convenor declines to convene a medical panel under s 65(5A) in respect of a medical question, no medical panel is obliged to form an opinion on that question. The second is that, if a convened medical panel declines to give an opinion under s 65(5A) in respect of a medical question, the panel is not obliged to form an opinion on that question.

My interpretation is not inconsistent with the powers conferred by the Act on the Referring Body, including the power under s 68(1) of the Act to extend the Prescribed Period.

I agree with Grange’s submission that the absence of a provision enabling suspension of the Prescribed Period prior to the convening of a medical panel and the presence of s 65(5C) of the Act — which provides for such a suspension after a medical panel has been convened — support the view that the Prescribed Period commences on the date the panel is convened.

While there are inconsistencies in the drafting, the general scheme of the Act is that the phrase ‘a medical panel’ when used in the context of the period prior to a panel being convened means a medical panel to be constituted in the future and that that phrase when used in the context of the period after a panel has been convened means the medical panel to which a medical question has been referred. Consistently with the scheme, the phrase ‘[a] medical panel’ in s 68(1) of the Act can only have meaning and effect from the time that a medical panel is convened to consider the relevant medical question. Accordingly, both the phrases ‘referred to it’ and ’60 days after the reference is made’ are enlivened on the day the medical panel is convened and is capable of receiving a medical question.

I agree with the plaintiff that a court order referring a medical question to a medical panel is valid and binding from the date it is pronounced. However, under the Act, the referral provided for by the order cannot commence to have practical legal effect until a medical panel is convened to receive that question and form an opinion on it.

Under the statutory scheme, there may be a delay between the date that a medical panel is convened and the date that the members of that panel receive the medical questions and the referred documents from the Convenor. However, as medical panels are not continuing entities and do not have a secretariat, the Convenor in effect performs the secretariat functions for each medical panel that is convened.[20] Accordingly, it is consistent with the scheme of the Act, as summarised at [56] above, that the Convenor is to be treated as receiving documents on behalf of medical panels.
[20]See paras 19, 23–5, 32–4, 38, 40, 42–3, 45–7 and 49–50 of the Convenor’s Directions.

It follows that, where the Convenor receives a medical question or other documents prior to the convening of a medical panel, those documents are to be treated as having been received by the medical panel immediately upon that panel being convened rather than when each member receives the documents. On the other hand, where the Convenor receives documents for a medical panel that has already been convened, those documents are to be treated as having been received by the medical panel on the day that the Convenor receives them.

In the present case, as the Medical Questions were received by the Convenor on 6 December 2012 and the Medical Panel was convened on 12 December 2012, the Panel is to be taken to have received the questions on 12 December 2012. It follows from the fact that the Panel formed its Opinion on 6 February 2013, that it complied with the Prescribed Period.

What are the consequences of non-compliance with the Prescribed Period?

As I have concluded that the Prescribed Period commenced on the day that the Medical Panel was convened and that the Opinion was formed within the Prescribed Period, it is not necessary for me to consider the consequences of non-compliance with the Prescribed Period. However, as the parties have made extensive submissions on this issue, I will set out my views in relation to it.

Relevant legal principles

In Project Blue Sky Inc v Australian Broadcasting Authority,[21] the High Court held that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.[22] Non-compliance will not invalidate an exercise of power unless a legislative purpose can be discerned to invalidate any act that fails to comply with the condition. The existence of such a purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[23]
[21](1998) 194 CLR 355 (‘Project Blue Sky’).
[22]Project Blue Sky (1998) 194 CLR 355, 388–9 [91].
[23]Project Blue Sky (1998) 194 CLR 355, 388–9 [91].

The High Court stated that this approach is preferable to the traditional approach of the courts, which was to draw a distinction between acts done in breach of an essential preliminary to the exercise of a statutory power or authority (a mandatory requirement) and acts done in breach of a procedural condition for the exercise of a statutory power or authority (a directory requirement).[24] The better test for determining the issue of validity is to ask ‘whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’[25] In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute.[26]
[24]Project Blue Sky (1998) 194 CLR 355, 389–90 [92]–[93].
[25]Project Blue Sky (1998) 194 CLR 355, 390 [93].
[26]Project Blue Sky (1998) 194 CLR 355, 390–1 [93].

The High Court also noted that courts have ‘always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.’[27]
[27]Project Blue Sky (1998) 194 CLR 355, 392 [97].

In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd,[28] the New South Wales Court of Appeal considered whether non-compliance with the time limit in s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) for applying for an adjudication had the effect of invalidating an adjudication. Section 17(2)(a) provided that an adjudication application ‘cannot be made unless … the claimant has notified the respondent’ within the relevant statutory period. In deciding that non-compliance resulted in invalidity, the Court took into account the following matters:
[28](2010) 78 NSWLR 393 (‘Chase’).

(a) whether the language of the relevant provision was in mandatory form;[29]

(b) the structure of the legislative scheme, including: the point in time in the decision-making process at which the time limit is imposed; the treatment of time limits in the scheme as a whole; and whether there is any indication that parliament intended the dates for which it provided to be flexible;[30] and

(c) the adverse effects of a finding that the time limit is jurisdictional.[31]

[29]Chase (2010) 78 NSWLR 393, 404 [40], 416 [96], 438 [211].

[30]Chase (2010) 78 NSWLR 393, 404–5 [42], 406 [48], 416 [96], 437 [209].

[31]Chase (2010) 78 NSWLR 393, 407 [52], 416 [96], 438–9 [214]–[217].

In Mikhman v Royal Victorian Aero Club,[32] Kaye J decided that a determination of a medical panel was invalid on the basis that it had been decided outside the time prescribed by s 28LZG(3)(a) of the Wrongs Act 1958. That provision stated that a medical panel must give its determination or certificate within 30 days from the date upon which the plaintiff had complied with a request to submit to a medical examination by the panel. The medical panel in Mikhman signed its certificate and determination 53 days after it examined the plaintiff and thus failed to comply with the time limit.
[32][2012] VSC 42 (17 February 2012) (‘Mikhman’).

Kaye J considered the structure of the provisions surrounding s 28LZG(3)(a) of the Wrongs Act, which contain detailed procedural steps, before discussing the principles set out in Project Blue Sky. His Honour considered it was significant that s 28LZG(3)(a) is expressed in mandatory terms, and that div 5 of pt VBA of the Wrongs Act, which prescribes the procedures of a medical panel, contains a number of provisions which are also expressed in mandatory terms.[33] Also, a number of the provisions that prescribe time limits expressly provide for the consequences of non-compliance.[34] Further, the evident intention of the statute was to provide for a speedy resolution of the threshold issue as to whether a particular claimant has sustained a ‘significant injury’.[35] Kaye J considered that the 30 day time limit was not unduly onerous for a medical panel to comply with, and that the statutory purpose could be undermined if panels were free to exceed the 30 day time limit at their discretion.[36] His Honour concluded that the determination given was beyond the power of the panel and should be set aside.
[33]Mikhman [2012] VSC 42 (17 February 2012) [24]–[27].
[34]Mikhman [2012] VSC 42 (17 February 2012) [29].
[35]Mikhman [2012] VSC 42 (17 February 2012) [28].
[36]Mikhman [2012] VSC 42 (17 February 2012) [37]–[38].

Parties’ submissions

The plaintiff submitted that the text and objectives of the Act strongly point to the time limit in s 68(1) being strict, with the consequence that non-compliance with the time limit renders any opinion formed after its expiration invalid (‘Strict Interpretation’). The plaintiff contended that the objectives of the Act include speed and expedition and that the provisions of s 68(1) dealing with extensions of time and s 65(5C) dealing with suspension of time indicate that compliance with the 60 day period is mandatory.

According to the plaintiff, the fact that s 66 of the Act provides for relief from invalidity by reason of an irregularity in the appointment of a member of a medical panel and the absence of any such relief from invalidity by reason of non-compliance with the Prescribed Period supports interpreting compliance with the Prescribed Period as mandatory.

The plaintiff submitted that Mikhman was correctly decided and ought to be followed in the present case because the provisions of the Wrongs Act which Kaye J considered are materially the same as the provisions of the Act.

Grange submitted that, notwithstanding that s 68(1) of the Act uses the mandatory term ‘must’, the scope and objects of the Act indicate that compliance with the Prescribed Period is not a condition of a medical panel’s jurisdiction (‘Non-Strict Interpretation’). Grange relied on the following to support that interpretation:

(a) The objectives of the Act are not furthered by an interpretation of s 68(1) that would wholly invalidate an opinion formed just after the expiration of the Prescribed Period.

(b) As the Prescribed Period is only in respect of the formation of an opinion, which is an intrinsically vague concept and is incapable of being observed publicly, the Act could not have intended it to have jurisdictional significance and result in invalidity for non-compliance.

(c) The Act provides for suspension of the Prescribed Period only if a medical panel requests further information.[37] It does not provide for suspension in other circumstances, such as where a worker refuses to attend a scheduled examination. This fact, and the requirement in s 65(2) of the Act that medical panels must act ‘as speedily as a proper consideration of the reference allows’ indicate that compliance with the Prescribed Period is not mandatory.
[37]Act s 65(5C).

(d) The conferral on the Referring Body of a general power to extend the Prescribed Period under s 68(1) of the Act without making any provision for notification to the worker or employer and without prescribing any procedures is inconsistent with the Prescribed Period being mandatory.

(e) The Act does not purport to impose strict time limits for what is to happen after a medical panel provides its opinion and reasons. For example, no time limits are imposed for the completion of a conciliation. This feature of the Act militates against construing the Prescribed Period as mandatory.

(f) In general, the Act does not prescribe time limits for referral of medical questions to medical panels. Although s 68(1) and (3) prescribe time limits, they do not set out the consequences of non-compliance.

(g) The Act uses the word ‘must’ in a variety of senses, some of which could not possibly result in invalidity for non-compliance. They include ss 65(2), (4), (4A), (5B), (6A), (6B) and 45(1G), (2) and (4).

Grange sought to distinguish Mikhman on the basis that the provisions of the Act are materially different from the provisions of the Wrongs Act that were considered by Kaye J in that case. Grange relied on the following differences:

(a) Under the Wrongs Act, referrals to a medical panel are subject to more stringent time limits, and often with specified consequences.[38]
[38]Grange referred to ss 28LWE, 27LZA, 28LZC, 28LZE and 28LZG of the Wrongs Act. See also ss 28LO(4), 28LP(3), 28LW(4) and 28LWB(4) of that Act.

(b) Section 28LZG(3)(a) of the Wrongs Act sets out a period of 30 days for a medical panel to give a determination and that period commences only once the panel has all the necessary information.

(c) Whereas a medical panel under the Wrongs Act provides a determination on a single defined medical question on the degree of impairment,[39] under the Act, numerous medical questions might be referred to a single medical panel.

(d) Unlike the Wrongs Act which contains default provisions for certain breaches of time limits and which Kaye J held indicated a ‘statutory intention that the time limits … must be strictly complied with’,[40] there are no such default provisions in the Act.

(e) Under the Wrongs Act, a referral to a medical panel is made by a respondent which can avoid the referral by accepting the worker’s claim,[41] whereas, under the Act, referrals are made by a Referring Body. Further, whereas the parties control the timetable under the Wrongs Act, under the Act, the Referring Body is responsible for any extensions of time and for receiving the opinion of the medical panel.

[39]Wrongs Act s 28LZG(1).

[40]Mikhman [2012] VSC 42 (17 February 2012) [30].

[41]Wrongs Act s 28LWE.

Grange relied on Accident Compensation Commission v Murphy[42] in which the Victorian Full Court held that the requirement in s 117(5)(a) of the Act that ‘[a] Tribunal division shall commence to hear an application … within 60 days of an application … being lodged with the Tribunal’ is directory only. The Court stated:

[A] court will be strongly inclined to the view that the provision in question is directory only. We are of [the] opinion that to do otherwise in the present case would work serious inconvenience and injustice to a party who has no control over the performance of the relevant duty.[43]

[42][1998] VR 444.

[43]Murphy [1998] VR 444, 452.

Grange conceded that, where a convened medical panel does not comply with the Prescribed Period, a remedy in the nature of mandamus may be available to compel the panel to form its opinion and give its certificate and written statement of reasons.

The plaintiff replied to Grange’s submissions as follows:

(a) The date of formation of a medical panel’s opinion is a fact that is capable of being proved, as in the present case.

(b) The narrowness of the circumstances in which the Prescribed Period is suspended under s 65(5C) of the Act can be ameliorated by an extension of time under s 68(1). The extension power and the obligation imposed on medical panels to act speedily support the Strict Interpretation.

(c) Section 104B(10) of the Act provides that VWA or a self-insurer must, within 60 days of obtaining the opinion of a medical panel, advise the worker of the opinion and the entitlement, if any, under ss 98C or 98E.

(d) The Act uses mandatory language in relation to many of the time limits that it imposes.[44]

(e) Many of the provisions which use the word ‘must’ can be construed as evincing an intention that non-compliance will result in invalidity.[45]

[44]The plaintiff referred to ss 55(2) and (3), 108(1) and (4), 109(2) and (4), 114(13), 114A(1)(b) and (2), 114B(1)(b) and (2) and 134AB(7) and (9).

[45]The plaintiff referred to ss 45(1G), (2) and (4), 65(4), (4A) and (6A) and 68(1)–(4).

Decision

The legal consequences of a failure by a medical panel to comply with the Prescribed Period must be determined by applying the principles in Project Blue Sky. Application of those principles involves ascertaining the legislative intention by means of the consideration of a number of relevant factors.

A useful starting point is to consider whether s 68(1) of the Act is a provision that confers on a medical panel the function in question or a provision that regulates the exercise of that function. The function of a medical panel is set out in s 67(1) rather than s 68(1). That function is to give an opinion on a medical question referred to it concerning particular types of injuries. The existence of such an injury and a medical question concerning it are essential preliminaries to the exercise of that function.

Section s 67(1A) of the Act makes clear that a medical panel must perform the function in s 67(1) in accordance with div 3 of pt III of the Act. Some of the provisions in that division are procedural conditions to the exercise of the function in s 67(1). Ordinarily, breach of those provisions will not result in invalidity of an opinion.

A criterion that is helpful in determining whether a statutory provision is a procedural condition which will not result in invalidity is whether it is expressed in mandatory terms. The word ‘must’, which appears in s 68(1) of the Act, is unequivocally mandatory. This indicates that the Act intends that a medical panel’s jurisdiction is limited to forming an opinion within the Prescribed Period. However, the strength of that indication is considerably diluted by the fact that the word ‘must’ also appears elsewhere in the Act in a context which indicates that non-compliance with those provisions in the case of a particular worker would not automatically invalidate the medical panel’s opinion on a medical question relating to that worker. Examples include:

(a) a failure to act speedily in accordance with s 65(2) of the Act, where the opinion is formed within the Prescribed Period;

(b) a failure to conduct a worker’s attendance before the medical panel in private in accordance with s 65(4) of the Act; and

(c) a failure of a court referring a medical question to a medical panel to provide relevant documents to each party in accordance with s 45(2) of the Act.

I do not accept the plaintiff’s submission that the fact that s 66 of the Act provides that a decision of a medical panel ‘is not invalid by reason only of any defect or irregularity in or in connection with the appointment of a member’ indicates a legislative intention that other types of defects or irregularities are to result in invalidity. Provisions similar to s 66 are commonly found in legislation establishing statutory bodies. Their purpose is to avoid arguments that the decisions of those bodies — which could be voluminous — are invalid due to a failure to comply with formal appointment processes. Such a ‘saving’ provision is an insufficient basis for an inference that other defects or irregularities, irrespective of their nature and consequences, result in invalidity.[46]
[46]Cf Mikhman [2012] VSC 42 (17 February 2012) [34].

The above discussion supports the proposition that the Prescribed Period in s 68(1) of the Act is a procedural condition for the exercise of the power in s 67(1) of the Act rather than an essential preliminary to the exercise of that power. This is a strong indication that non-compliance with the Prescribed Period does not invalidate an opinion that is otherwise properly formed.

The purposes of the Act are also relevant. If those purposes would be more effectively carried out if a medical panel’s jurisdiction is limited to forming an opinion within the Prescribed Period, then a failure to form an opinion within that period can be more readily held to invalidate any opinion formed after the expiration of the period.

In the present case, the Act evinces an intention that claims for compensation by workers be resolved expeditiously and that medical panels act as speedily as a proper consideration of the reference allows.[47] At first blush this may tend to support the Strict Interpretation, as such an interpretation would provide an incentive for medical panels to comply with the Prescribed Period and promote a timely resolution of a worker’s claim for compensation. On the other hand, a finding that an opinion formed one or two days after the Prescribed Period expires is invalid would necessitate a recommencement of the referral process, which could only serve to delay the resolution of the worker’s claim and add to the parties’ costs. Such an outcome would be inutile and could be described as counterproductive.
[47]Act s 65(2).

Overall, there is nothing in the purposes of the Act that warrants, let alone requires, a strict construction of the Prescribed Period.

The fact that the time limit in s 68(1) of the Act applies not at the initiation stage of a medical panel’s functions but at the end stage of the decision-making process supports the Non-Strict Interpretation.[48] So does the fact that the Act does not provide for a precise sequence of time stipulations[49] and the fact that s 68(1) provides flexibility by virtue of the power of the Referring Body to extend the Prescribed Period.[50]
[48]Chase (2010) 78 NSWLR 393, 404–5 [42]–[43], 416 [96].
[49]Chase (2010) 78 NSWLR 393, 405–6 [46], 406 [50], 416 [96].
[50]Chase (2010) 78 NSWLR 393, 406 [48], 416 [96].

The public inconvenience that would result from a finding that non-compliance with the Prescribed Period invalidates an opinion of a medical panel also supports the Non-Strict Interpretation. As discussed at [93] above, while the Strict Interpretation might have a beneficial effect, it could also be counterproductive. Recommencement of the referral process would not only cause delay, additional cost and inconvenience to the parties to the dispute; it could also require additional public expenditure and, by possibly diverting limited public resources, it could result in further delay in the resolution of disputes involving other workers.

On balance, the factors favouring the Non-Strict Interpretation outweigh those favouring the Strict Interpretation.

The best interpretation of s 68(1) of the Act is that, while it imposes a legal duty on a medical panel to comply with the Prescribed Period, an opinion formed after the expiration of that period in breach of that duty is not invalid.[51] This means that rejection of the Strict Interpretation would not have the effect of leaving the time within which a medical panel provides its opinion and reasons to the whim of the panel. On the contrary, by specifying a clear statutory duty with a precise time limit of 60 days, s 68(1) provides a legal framework for ready redress of a breach of the duty. That redress would be in the form of an order in the nature of mandamus to compel performance of the statutory duty. It would be expected that the availability of such a remedy would ordinarily ensure that any opinion formed after the expiration of the Prescribed Period would nevertheless precede any opinion that might be formed if the referral process were recommenced. These considerations militate against the Strict Interpretation.
[51]Cf Project Blue Sky (1998) 194 CLR 355, 392–3 [99].

I have carefully considered the reasoning of Kaye J in Mikhman. In my opinion, that case turned on the specific provisions of the Wrongs Act which differ in material respects from the provisions of the Act. The key differences are those identified by Grange, which I have set out at [82] above. Accordingly, Mikhman is distinguishable.

I have not been assisted by Murphy[52] in construing s 68(1) of the Act. That case was decided prior to Project Blue Sky and dealt with a different statutory context.
[52][1998] VR 444.

Failure to take into account relevant considerations and other matters

Ground of review (a) in the plaintiff’s further amended originating motion states that: ‘The Medical Panel failed to take into account material considerations.’

Grounds of review (e), (f) and (g) in the plaintiff’s further amended originating motion are in the following terms:

(e)The Medical Panel failed to consider or adequately consider that the plaintiff is currently suffering from an aggravation of pre-existing rotator cuff degenerative changes in both the right and the left shoulder caused by the injury to both shoulders arising out of her pre-injury duties.
(f)The Medical Panel failed to consider or adequately consider whether or not the plaintiff’s present condition would be aggravated or worsened if she were to return to the duties that caused her injury and condition in the first place;
(g)The Medical Panel failed to consider or adequately consider whether or not the plaintiff had an enhanced susceptibility or vulnerability to injury or further injury and/or failed to consider or adequately consider whether or not such vulnerability or susceptibility would affect her ability to return to her pre-injury duties, especially in circumstances where:
(1)such duties had caused the injury or injuries;
(2)the plaintiff continues to suffer the conditions and symptoms consequential upon the initial injury;
(3)the plaintiff had experienced improvement in her symptoms (she estimated 80 percent improvement) subsequent to ultrasound-guided cortisone injections on 2 and 3 February 2012 but such improvement lasted only 6–8 weeks; and the plaintiff then had further cortisone injections in April 2012 with less improvement (she estimated 70 percent improvement) for only 6 weeks; and that the plaintiff had undergone yet further cortisone injections on 24 December 2012 (4 weeks before the examination by the Medical Panel members) with less improvement (she estimated 50 percent) and for some 2 weeks only;
(4)the plaintiff’s GP, Dr Ian Cook, reported on 3 December 2012 that the plaintiff would never be fit for repetitive lifting and shoulder movement;
(5)the plaintiff’s treating rehabilitation physician, Dr Stephen De Graaff, reported on 19 November 2012 that the plaintiff was not fit to return to her pre-injury duties and that it was most likely that the plaintiff would need modified duties in the long term, avoiding heavy lifting and carrying, repetitive lifting and carrying, and working above shoulder height;
(6)that Dr David Barton, occupational physician, who had examined the plaintiff on behalf of the insurer and reported to the insurer on 12 July 2012 had opined, that ‘I believe the worker has a physical capacity to do her pre-injury duties and hours’ but also stated ‘I believe she has mild persisting right shoulder symptoms following what appears to be an unresolved soft tissue injury’;
(7)and Mr Roger White, Consultant Surgeon, who also examined the plaintiff on behalf of the insurer and reported on 26 March 2012 that the plaintiff had a capacity for work in work for modified pre-injury duties and hours and should not return to duties which require her to raise her arms above her head, lift items which are over 5kg in weight or involve sustained or repetitive activities using the upper limbs.

Relevant legal principles

In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[53] the High Court set out the principles for establishing whether a decision-maker has failed to take into account relevant considerations. A relevant consideration is one which the decision-maker is bound to take into account in making the relevant decision. Those factors are determined by construction of the statute conferring power to make that decision. If those factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the statute. If the statute confers a discretion which is in its terms unconfined, the factors that may be taken into account in the exercise of that discretion are also unconfined, except to the extent that they are impliedly limited by the subject matter, scope or purpose of the statute.[54]
[53](1986) 162 CLR 24 (‘Peko-Wallsend’).
[54]Peko-Wallsend (1986) 162 CLR 24, 39–40.

In the same case, the High Court stated that a failure to take into account a particular consideration will not result in the setting aside of the decision if the factor was so insignificant that the failure to take it into account could not have materially affected the decision.[55]
[55]Peko-Wallsend (1986) 162 CLR 24, 40.

Provided that a decision-maker genuinely takes into account a relevant consideration, it is a matter for him or her to determine the weight to give to that consideration.[56] Courts cannot intervene by way of judicial review because they would have given different weight to the consideration, as this would be tantamount to reviewing the decision on the merits. The jurisdiction of the courts to judicially review an administrative decision does not extend to a review of the decision on the merits.[57]
[56]Peko-Wallsend (1986) 162 CLR 24, 41–2.
[57]Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322 (20 December 2012) [8] (‘Gamble’).

Whether an administrative tribunal has taken into account a relevant consideration requires the tribunal’s reasons to be read as a whole. Upon such a reading, an inference may arise that the tribunal has considered a particular matter even though it has not expressly referred to it. It follows that a failure to advert to a relevant consideration in the tribunal’s reasons does not necessarily mean that the tribunal failed to take that matter into account.[58]
[58]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679–80, 682.

Parties’ submissions

In relation to ground of review (a), the plaintiff’s written submissions identified the following relevant matters which she alleged the Medical Panel failed to take into account:

(i)that the original duties were responsible for causing the plaintiff’s injury;
(ii)the plaintiff had not recovered, but remained suffering persisting injury and symptoms;
(iii)the plaintiff’s unrecovered state would logically be more prone to injury by the same duties that initially caused injury;
(iv)that the plaintiff had returned to work on lighter duties and had thereby suffered an exacerbation of symptoms;
(v)that the plaintiff had obtained symptomatic relief from cortisone injections (consistent with the diagnosis of injury) and the efficacy of those injections reduced with repetition (consistent with persisting or non-recovered injury);
(vi)the plaintiff had undergone cortisone injections into her joints only some 4 weeks prior to the examination by the Medical Panel members and this would explain the mildness of her presentation to the Medical Panel members;
(vii)the plaintiff’s symptoms lessened with rest and by living with her sister in Melbourne she had avoided strenuous use of her shoulders, consistent with the diagnosis of injury and consistent with the genuineness of the plaintiff’s presentation, with the work caused nature of her injuries and the likely vulnerability of the plaintiff to further injury when undertaking pre-injury activities at work;
(viii)the views of her treating doctors, especially Dr Cook and Dr De Graaff, that the plaintiff should avoid stressful and repetitive upper limb work, the logic of which appears compelling.

The plaintiff submitted that the Medical Panel was bound to consider each of the matters set out at [107] above and to explain how they affected the performance of the Panel’s function. The plaintiff contended that each of those matters was material to the Panel’s function and that the Panel committed jurisdictional error by failing to consider them.

The plaintiff’s written submissions described ground of review (e) as follows:

The Medical Panel reasons do not explain why the plaintiff, with a persisting injury and symptoms, can return to full time unrestricted duties, which duties caused the injury in the first place.

The plaintiff did not make any separate written submissions on grounds of review (f) and (g).

Grange submitted that the Medical Panel either took into account the matters set out at [107] above or the Panel was not bound in law to consider them. Grange contended that the plaintiff’s real complaint was about the weight that the Panel gave to the matters.

Decision

In my opinion, ground of review (a) has not been made out.

It is evident from the Reasons that the Medical Panel took into account:

(a) the nature of the plaintiff’s pre-injury duties;

(b) that VWA had previously accepted that the plaintiff’s pre-injury duties were responsible for causing the Injury;

(c) that at the time the Panel examined the plaintiff, the Injury persisted but was mild and that she continued to experience some pain;

(d) that the plaintiff had returned to work on modified duties and had ceased work because of a claimed exacerbation of her symptoms;

(e) that the plaintiff had obtained relief from cortisone injections whose efficacy reduced with repetition;

(f) that the last cortisone injections were administered four weeks before the Panel’s examination of the plaintiff;

(g) that the plaintiff’s symptoms lessened with reduced exertion;[59]
[59]This is discussed in Dr Barton’s report which the Medical Panel stated it took into account.

(h) that Dr De Graaff and Dr Cook were of the opinion that the plaintiff should avoid stressful and repetitive upper limb work;

(i) all the information in the Listed Documents; and

(j) its clinical examination findings and its collective experience and expertise.

The weight to be given to these factors was a matter for the Medical Panel. No error of law has been demonstrated in relation to them.

I reject the plaintiff’s assertion that the Medical Panel failed to take into account that the mildness of her presentation to the Panel on 21 January 2013 may be explained by the fact that she had had cortisone injections into her joints four weeks prior to her examination by the Panel. The history that the plaintiff provided to the Panel was that the injections had been administered on 24 December 2012 and that the relief that they provided lasted for only two weeks.

The remaining two factors that the plaintiff has alleged the Medical Panel failed to take into account can be considered together. They are that the Panel failed to take into account, first, that the plaintiff’s ‘unrecovered state would logically be more prone to injury by the same duties that initially caused injury’ and, secondly, the plaintiff’s ‘likely vulnerability … to further injury when undertaking pre-injury activities at work’.

The Medical Panel was obviously aware that the plaintiff’s claim in January 2012 that she was incapacitated from performing her pre-injury work had been accepted by VWA. The Panel itself was not asked to, and did not, express an opinion about the plaintiff’s capacity for work at that time. The Panel was also aware of the plaintiff’s unsuccessful return to work on modified duties and that she had some ongoing symptoms. Once again, the Panel was not asked to, and did not, express an opinion about the plaintiff’s capacity for work at that time. I agree with Grange that it did not necessarily follow from the above matters that the plaintiff would be prone to suffer further injury by the performance of her pre-injury duties, less still that any further injury would result in incapacity. A work-related injury which has not fully resolved and which continues to cause some pain does not necessarily prevent the worker from performing his or her pre-injury duties. These were matters for the Panel’s professional medical assessment and opinion.

The Medical Questions that the Medical Panel was required to answer concerned the nature of the plaintiff’s current medical condition relevant to the Injury and whether she was capable of performing her pre-injury duties. In answering these questions, the Panel took into account, among other things: the plaintiff’s history in relation to the Injury, the treatment the plaintiff received for the Injury and the efficacy of that treatment; the events relating to the performance of the plaintiff’s duties with Grange, including the brief period of the return to work on modified duties; the Panel’s own observations of the plaintiff’s condition and ongoing symptoms when it examined the plaintiff; and the opinions of other medical practitioners which were provided to the Panel. The opinions of other medical practitioners included those of Dr De Graaff and Dr Cook, who stated that the plaintiff’s condition would be aggravated or worsened if she were to return to her pre-injury duties and that she was not fit to perform those duties.

It simply cannot be said that the Medical Panel failed to consider the above matters. The weight to be given to them was a matter for the Panel.

In my opinion, the Medical Panel did not fail to take into account any matters it was bound to take into account, as alleged by the plaintiff. The Panel did take into account all such matters but, having done so, reached conclusions that differed from those that the plaintiff wanted it to reach. The plaintiff’s complaint, in substance, is about the merits of the Panel’s decision.

Ground of review (e) lacks substance. The Medical Panel clearly considered that the plaintiff continued to suffer a mild form of the Injury. The plaintiff’s contention that the Panel failed to ‘adequately consider’ this matter is really a complaint about the weight that the Panel gave to it.

The plaintiff’s complaint, as set out at [109] above, will be considered below in the context of the adequacy of the Reasons.[60]
[60]See [175] below.

Grounds of review (f) and (g) overlap with ground of review (a) and have already been considered in the context of that ground.

Taking into account irrelevant considerations

Grounds of review (b) and (j) in the plaintiff’s further amended originating motion are as follows:

(b) The Medical Panel took into account extraneous considerations;
…
(j)The Medical Panel made an error of law or an error of fact or took into account an irrelevant consideration, namely, that the plaintiff’s pre-injury duties were ‘for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice.’[61]
[61]Emphasis in original.

Relevant legal principles

The principles set out at [103] to [106] above concerning the ground of failing to take into account relevant considerations also apply to the ground of taking into account irrelevant considerations.

Parties’ submissions

The plaintiff’s written submissions described grounds of review (b) and (j) as follows:

The Medical Panel took into account that the current physical condition was mild. This was a consideration which was insufficient to conclude that the plaintiff was fit to return to normal pre-injury duties without restriction.
…
[T]he Panel took into account that the plaintiff had control or choice over the hours she worked beyond 19 in a week. In other words, the Panel took into account that the plaintiff need not, under her pre-injury contract of employment, expose her accepted symptoms to further work activities if she did not wish to do so. This was an irrelevant consideration. The Panel ought to have determined whether [the] plaintiff was capable of performing all her duties for at least 30 hours per week without restriction and regardless of choice or wish.

In her oral submissions, the plaintiff contended that the Medical Panel substantially and materially diluted her work history by focusing on 19 hours per week and introducing the element of choice of hours instead of simply considering the fact that she often worked up to 30 hours per week.

In relation to ground of review (b), Grange submitted that the nature and extent of the plaintiff’s Injury was relevant to the Medical Panel’s assessment of her work capacity and that the Panel was entitled to take it into account in conjunction with other relevant considerations in answering the second medical question.

In relation to ground of review (j), Grange submitted that the Medical Panel had concluded that the plaintiff was capable of performing all her pre-injury duties for at least 30 hours per week without restriction. According to Grange, the different ways in which the Panel expressed itself cannot support an inference that the Panel concluded that the plaintiff had a contractual right not to expose her accepted symptoms to further work activities if she did not wish to do so. Grange contended that the Panel simply noted that it was the plaintiff, rather than Grange, who determined what hours she worked beyond 19 hours per week.

Decision

The plaintiff’s contention that the mild nature of her current physical condition was an irrelevant consideration because it was insufficient to justify the Medical Panel’s conclusion that she was fit to return to normal pre-injury duties without restriction, is incorrect. The nature and extent of the plaintiff’s current physical condition was obviously a relevant consideration for the Panel to take into account in assessing her capacity for her pre-injury duties. The Panel did not err by taking the condition into account in conjunction with other relevant factors. The weight or ‘sufficiency’ of the condition, and its interrelationship with other relevant factors, were matters for the Panel.

Ground of appeal (b) must be rejected.

Ground of appeal (j) is misconceived and must also fail.

The Medical Panel correctly recorded in the plaintiff’s history that she ‘was employed to work 19 hours per week on a variable roster basis, including weekends, but … she routinely “took on extra shifts”, often working up to 30 hours per week.’ Later in its Reasons, the Panel returned to the plaintiff’s hours of work on three occasions. On the first occasion, the Panel stated that the plaintiff ‘was employed to perform [the work] for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice.’ On the second occasion, the Panel said that the plaintiff was ‘capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.’ On the third occasion, the Panel stated that it considered that the plaintiff’s ‘occupational duties and hours of work did not require modification.’

In my opinion, the Medical Panel’s use of slightly different language on the four occasions in which it referred to the plaintiff’s hours of work does not indicate that the Panel formed its Opinion on the basis of an understatement of the plaintiff’s hours of work.

When the Reasons are read as a whole and in context, it becomes clear that the Medical Panel made two relevant findings regarding the plaintiff’s hours of work. The first finding was that it was the plaintiff, rather than Grange, who determined what hours she worked beyond 19 hours per week. The second finding was that the plaintiff was capable of performing all her duties for at least 30 hours per week without restriction. Both these findings were relevant to the Panel’s Opinion.

Whether the Opinion is perverse or illogical

Ground of review (c) in the plaintiff’s further amended originating motion states that: ‘The Medical Panel reached a conclusion that was perverse or illogical.’ I will refer to this as the ‘irrationality ground’.

Relevant legal principles

A finding as to a worker’s capacity for work is a finding of fact.[62] Traditionally, it has been considered that a reviewable error of law cannot be established merely by demonstrating that a factual finding by an administrative tribunal was ‘unreasonable’[63] or ‘illogical’.[64]
[62]S v Crimes Compensation Tribunal [1998] I VR 83, 89 (‘S’).
[63]S [1998] 1 VR 83, 91. There is some authority for the proposition that Wednesbury unreasonableness relates only to discretionary determinations, not fact-finding: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 [40], 649–50 [124]–[127]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 624 [39], 647–8 [128]–[130] (‘SZMDS’); Rees v County Court [2011] VSC 67 (11 March 2011) [7] (‘Rees’). See also Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, 252–3 [89]–[90] (‘Li’).
[64]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.

In Minister for Immigration and Citizenship v SZMDS,[65] the High Court considered the scope of alleged ‘illogicality’ or ‘irrationality’ in a finding of jurisdictional fact as a form of jurisdictional error. The Refugee Review Tribunal (‘RRT’) had refused to grant the respondent a protection visa on the basis that it was not satisfied that the criteria set out in s 65(1) of the Migration Act 1958 (Cth) were met. The Federal Court disagreed, holding that the RRT’s decision was infected with jurisdictional error because its conclusion was based on illogical or irrational inferences or findings of fact. The High Court allowed the appeal, finding that there had been no jurisdictional error.
[65](2010) 240 CLR 611.

Crennan and Bell JJ stated that ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean that the decision to which the RRT came, in relation to the state of satisfaction required, is one at which no rational or logical decision-maker could arrive on the same evidence.[66] Their Honours said that, if probative evidence can give rise to different processes of reasoning and if logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[67] According to their Honours:

the correct approach is to ask whether it was open to the [RRT] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.[68]

[66]SZMDS (2010) 240 CLR 611, 647–8 [130].

[67]SZMDS (2010) 240 CLR 611, 648 [131], 649 [135].

[68]SZMDS (2010) 240 CLR 611, 648 [133].

Their Honours went on to state that a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[69]
[69]SZMDS (2010) 240 CLR 611, 649–50 [135].

Heydon J agreed that the RRT’s reasoning was not illogical.[70]
[70]SZMDS (2010) 240 CLR 611, 634–5 [86]–[87].

Gummow ACJ and Kiefel J dissented as to the outcome of the appeal, finding that there was no logical connection between the evidence and the reasons for the decision made by the RRT.[71] Further, a critical finding was made on the basis of an inference not supported by the facts. Their Honours adopted[72] the following statement of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB:[73]

The satisfaction of the minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned …
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.[74]

[71]SZMDS (2010) 240 CLR 611, 627–8 [51]–[53].

[72]SZMDS (2010) 240 CLR 611, 625 [40].

[73](2004) 207 ALR 12 (‘SGLB’).

[74]SGLB (2004) 207 ALR 12, 20 [37]–[38] (citations omitted).

In Rees v County Court[75] Cavanough J reviewed SZMDS and other relevant authorities and stated:

It would seem that … jurisdictional errors do not have to be errors of law. At least in the case of migration tribunals, and, possibly in the case of all administrative tribunals, jurisdictional error may be constituted by illogical or irrational fact-finding of the kind or kinds referred to in SZMDS.[76]

[75][2011] VSC 67 (11 March 2011).

[76]Rees [2011] VSC 67 (11 March 2011) [19]. See also Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 (24 April 2012) [108].

His Honour said that he was prepared to assume in favour of the plaintiff, without deciding, that it would be a jurisdictional error for the County Court, in an appeal from the Magistrates’ Court in a criminal matter, to make a finding of guilt that was unsupported by any probative evidence or that was illogical or irrational in the ‘sense or senses’ discussed in SZMDS.[77] His Honour used the expression ‘sense or senses’ very deliberately, stating:

The ‘illogicality or irrationality’ ground of review referred to in SZMDS seems to be quite new and its scope remains to be fully explored, notwithstanding that it is at least closely related to the well known ‘Wednesbury unreasonableness’ ground. The arrival of the new ground casts very great doubt on any continuing role that Wednesbury unreasonableness might otherwise have had in relation to non-discretionary decision-making of the kind presently in question. Nevertheless … I will assume in the plaintiff’s favour, without deciding, that it is open to him to allege both ‘illogicality or irrationality’ and ‘Wednesbury unreasonableness’ as separate grounds. On the other hand, I will respectfully adopt the view apparently taken by Crennan and Bell JJ in SZMDS that they are similar allegations, in that the former is ‘of the same order’ as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ (in the sense that it could not be arrived at by a reasonable person).[78]

[77]Rees [2011] VSC 67 (11 March 2011) [20].

[78]Rees [2011] VSC 67 (11 March 2011) [21] (citations omitted; emphasis in original).

Cavanough J then discussed differences in the approach taken by the judges in SZMDS that had been discussed by a subsequent authority and an academic publication. His Honour said:

The suggestion seems to be that, according to Gummow and Kiefel JJ, jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, without more; whereas, according to Crennan and Bell JJ, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker. That suggested distinction may reflect the well known statement of Mason CJ in Australian Broadcasting Tribunal v Bond that:
… at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[79]
[79]Rees [2011] VSC 67 (11 March 2011) [22] (citations omitted; emphasis in original).

Parties’ submissions

The plaintiff’s written submissions described the irrationality ground as follows:

The Medical Panel’s conclusion that the plaintiff has a persisting work caused injury but could return to such work without restriction is … illogical without any explanation as to why such work would not cause an exacerbation of the injury or further injury.

The plaintiff submitted that, as medical panels do not make findings of fact in the same manner as courts but rather make value judgements based on their professional expertise, the opinion-forming function of panels has many characteristics of a discretionary decision. Accordingly, so it was said, there is little difficulty in implying into the Act a requirement that opinions not be unreasonable (in the Wednesbury sense), illogical or irrational. The plaintiff contended that the statutory obligation to furnish reasons supports the proposition that an opinion of a medical panel must be reasoned, intelligible and reasonably based on the materials before the panel. The plaintiff relied on particular observations made by the High Court in Minister for Immigration and Citizenship v Li.[80]
[80](2013) 297 ALR 225, 237–8 [28], 246–50 [64]–[76], 252–3 [88]–[92].

Grange submitted that the plaintiff had not made out the irrationality ground. This was said to be because the plaintiff has not demonstrated that the Medical Panel engaged in a process of reasoning which was not open to it or that on all the evidence there was only one conclusion open to the Panel which it failed to reach. According to Grange, the Panel’s conclusion that the plaintiff was capable of performing her pre-injury duties was not perverse or illogical but was properly open to it having regard to the evidence before the Panel and its reasoning based on that evidence.

Decision

For the purposes of this proceeding, I will assume, without deciding, that SZMDS stands for the proposition that Australian law recognises irrationality as a separate ground of judicial review.

In order for the plaintiff to succeed on the irrationality ground, she must satisfy me that no rational or logical decision-maker could have concluded, as the Medical Panel did, that the plaintiff is capable of performing her pre-injury duties. She will be able to do so if she can demonstrate that the Panel’s conclusion was based on reasoning that was not open to it or that the evidence before the Panel mandated a different conclusion.

In my opinion, the plaintiff has failed to make out the irrationality ground.

At [113] and [118] above, I set out the factors that the Medical Panel took into account in forming its Opinion. Those factors included that the Injury persisted in a mild form and that the plaintiff continued to experience some ongoing pain. However, based on the Panel’s examination of the plaintiff and its collective medical expertise, it concluded that she was capable of performing her pre-injury duties. There was nothing ‘illogical’, ‘irrational’ or ‘unreasonable’ about this conclusion in the sense in which those words were used in SZMDS. Rather, it was a factual finding that was open to the Panel based on all the evidence before it including its own observations of the plaintiff.

This is not a case where the members of the Medical Panel, properly assessing the evidence and applying their expertise, could only have concluded that the plaintiff was not capable of performing her pre-injury duties or that such performance required modification to the nature, scope and duration of the pre-injury duties.

This is also not a case where it was inevitable that, on the evidence, only one path of reasoning was open to the Medical Panel, namely, that, because the plaintiff’s pre-injury duties caused the Injury which persisted, she was not capable of performing those duties without modification to accommodate her ongoing symptoms.

It was open on the evidence for the Medical Panel to conclude, as it did, that, notwithstanding that the Injury persisted in a mild form and the plaintiff had ongoing pain, she was capable of performing her pre-injury duties without modification. There was nothing irrational or illogical (in the relevant sense) about this conclusion or the reasoning upon which it was based.

The fact that the Opinion is consistent with the views of Dr Barton supports the proposition that it is not irrational or illogical in the relevant sense.

In considering the irrationality ground, I have not been assisted by the plaintiff’s reference to particular observations in Li. That is because those observations relate to the separate ground of Wednesbury unreasonableness which is not a ground of review in this proceeding. In any event, I am not satisfied that the Opinion is unreasonable within the Wednesbury principles as they were explained in Li.

Inadequate reasons

Grounds of review (d), (h) and (i) in the plaintiff’s further amended originating motion are in the following terms:

(d)The Medical Panel failed to comply or sufficiently comply with its obligation to provide written reasons for its opinion pursuant to s 68(2) and/or (3) of the Act.
…
(h)Alternatively, the Medical Panel failed to explain, or adequately explain why it rejected (if it did) the expert medical opinions of Messrs Cook, De Graaff, Barton and/or White;
(i)Alternatively, the Medical Panel failed to explain or adequately explain why it preferred (if it did) one or more expert medical opinions over others.

Relevant legal principles

In Wingfoot Australia Partners Pty Ltd v Kocak,[81] the High Court held that a medical panel which gives reasons that are inadequate to meet the standard required of a written statement of reasons under s 68(2) of the Act fails to comply with the legal duty imposed on it by that section and thereby makes an error of law. As a panel’s reasons will form part of the record of its opinion pursuant to s 10 of the Administrative Law Act 1978, inadequacy of reasons will inevitably be an error of law on the face of the record. It follows that certiorari is available to remove the legal consequences of an opinion for which non-compliant reasons have been given.[82]
[81](2013) 303 ALR 64 (‘Wingfoot’).
[82]Wingfoot (2013) 303 ALR 64, 73 [28].

The Court stated that the statutory duty of a medical panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) of the Act itself. In the absence of express statutory prescription, the standard required of written reasons can be determined only by a process of implication.[83]
[83]Wingfoot (2013) 303 ALR 64, 76 [43]–[44].

The Court stated that the function of a medical panel in forming its own opinion is of particular significance in determining by implication the standard of the reasons it must provide. While a medical panel may be supplied with the opinions of other medical practitioners, and may choose to place weight on a particular opinion, it ‘goes too far … to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions.’[84] It is not the function of a medical panel to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. Rather, the function of the panel is to give its own opinion on the medical question referred by applying its own medical experience and expertise.
[84]Wingfoot (2013) 303 ALR 64, 77 [47].

The objective of s 68(2) of the Act, within the context of the scheme of the Act as a whole, is that persons affected by an opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law.[85] The Court held that the standard required of a written statement of reasons given by a medical panel can be stated as follows:

The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[86]

[85]Wingfoot (2013) 303 ALR 64, 79 [54].

[86]Wingfoot (2013) 303 ALR 64, 79 [55].

The High Court rejected the proposition that it was incumbent on a medical panel to provide a comprehensive explanation for rejecting any expert medical opinion provided to it or for preferring one such opinion over another. A medical panel explaining the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[87]
[87]Wingfoot (2013) 303 ALR 64, 80 [56].

However, the Court accepted that the nature of the question referred to a medical panel and the way that question was addressed by other medical practitioners in opinions provided to a medical panel, might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a medical panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons.[88] That situation did not arise on the facts in Wingfoot.
[88]Wingfoot (2013) 303 ALR 64, 80 [57].

As the Medical Panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a ‘beneficial construction’ in the sense that they should ‘not … be scrutinised … over-zealous[ly] … by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’[89] In Gamble v Emerald Hill Electrical Pty Ltd,[90] the Court of Appeal reaffirmed the following principles that apply to judicial review of a medical panel’s reasons:

The court on judicial review should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ 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’.
…
[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.[91]
[89]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271–2 (citations omitted). See also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 617 [25]; Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 (2 July 2009) [36]; Gamble [2012] VSCA 322 (20 December 2012) [9].
[90][2012] VSCA 322 (20 December 2012).
[91]Gamble [2012] VSCA 322 (20 December 2012) [9], [20] (citations omitted).

Parties’ submissions

The plaintiff’s written submissions describe ground of review (d) as follows:

No clear comprehensible reasons are given to explain why the pre-injury duties would not cause a worsening of symptoms. There is no explanation why the conclusions of the treating doctors, especially the conclusions that there was a long term risk of recurrent injury and a need for weight restrictions and modification of duties, are wrong.

In her oral submissions, the plaintiff contended that pre-Wingfoot decisions of this Court, such as Moyston Court Fisheries Ltd v Malios,[92] continue to have relevance. It followed, so it was said, that the reasons of a medical panel have to identify what considerations the panel thought were material and how those considerations informed the panel’s opinion.
[92][2007] VSC 518 (14 December 2007) [77].

Grange submitted that the Reasons comply with s 68(2) of the Act because they disclose the path of reasoning that the Medical Panel employed in arriving at the Opinion and they are sufficient to satisfy the Court that the Panel had discharged its function lawfully. The key issue for the Panel was said to be whether the plaintiff was capable of performing her pre-injury duties, and that question could be answered affirmatively (as the Panel did) notwithstanding that the performance of those duties might cause an increase in the plaintiff’s pain. According to Grange, the Panel was not required to specifically explain why the plaintiff’s pre-injury duties would not cause a worsening of her symptoms.

Grange also submitted that although the Medical Panel was not required to discuss each medical opinion with which it had been provided, the Reasons explicitly and sufficiently state that the Panel formed different opinions from those of Dr De Graaff, Dr Cook and Mr White.

Finally, Grange submitted that the plaintiff’s complaint is essentially that the Medical Panel did not explain why it did not reach an opinion that it did not form. Grange emphasised that, according to Wingfoot, this is not part of the duty of a medical panel under s 68(2) of the Act to give reasons for its opinion.

Decision

In considering whether the plaintiff has established that the Reasons are inadequate, it is important to distinguish between the Opinion and the Reasons for the Opinion. The Opinion comprises the answers to the two Medical Questions, particularly the answer to the second question, namely, that the plaintiff is capable of performing her pre-injury duties. The matters discussed in the Reasons and the Panel’s findings constitute its reasons for the answers to the Medical Questions.

When the Reasons are read as a whole, it is clear that the Medical Panel concluded that, although the plaintiff’s Injury persisted and she experienced ongoing pain, she was capable of performing her pre-injury duties without modification because, at the time that she was examined by the Panel, the Injury was mild and the level of pain was insufficient to prevent her from performing those duties. The Panel disagreed with the contrary opinions of Dr De Graaff and Dr Cook.

As I have already explained, in reaching the above conclusion, the Medical Panel took into account the matters set out in the Reasons, including the following:

(a) The history of the plaintiff’s physical health, as communicated by her to the Panel and as set out in the medical reports that were provided to the Panel, including:

(i) The plaintiff’s pre-existing injury;

(ii) The nature of the Injury; and

(iii) The plaintiff’s short-lived return to work on modified duties.

(b) The treatment the plaintiff received for the Injury and its effectiveness, as communicated by her to the Panel and as set out in the Listed Documents;

(c) The Panel’s observations of the plaintiff at her medical examinations by the members of the Panel;

(d) The opinions of Mr White, Dr Barton, Dr De Graaff and Dr Cook, as disclosed in their reports; and

(e) The contents of the Listed Documents.

The path of reasoning adopted by the Medical Panel is that set out at [172] above and the matters the Panel took into account included those set out at [173] above. The Reasons contain sufficient detail to enable this Court to decide whether the Opinion involves any error of law. No such error is disclosed.

I reject the plaintiff’s assertion that the Reasons do not explain why, with a persistent injury and symptoms, she can return to perform the duties that caused the Injury in the first place.[93] In my opinion, the Reasons sufficiently explain that whatever the severity and effects of the Injury prior to the Medical Panel’s examination of the plaintiff on 21 January 2013, on that day, the Injury persisted in a mild form and was not such as to prevent the plaintiff from performing her pre-injury duties.
[93]See [109] above.

As the Medical Panel’s path of reasoning is evident from the Reasons, the Reasons comply with the requirements set out in Wingfoot.

In relation to grounds of review (h) and (i), it is true that the Medical Panel baldly stated that it disagreed with the opinions of Mr White, Dr De Graaff and Dr Cook without setting out their reasoning and explaining why the Panel disagreed with that reasoning. However, Wingfoot makes it clear that, ordinarily, such an explanation is not necessary in order for a medical panel to provide reasons which comply with s 68(1) of the Act.The High Court said that a medical panel is only required to provide reasons for the opinion it formed and not for any opinion that it did not form.

In the present case, in order for the Medical Panel’s explanations of the reasons for its Opinion to be adequate, it was not necessary for it to explain why it did not agree with the opinions of Mr White, Dr De Graaff and Dr Cook. There is nothing in the nature of the Medical Questions or the contents of those doctors’ reports which allows an inference to be drawn that the reasoning adopted by the Panel is not adequately reflected in the Reasons.

I have reservations about the plaintiff’s submission about the ongoing relevance of pre-Wingfoot decisions of this Court in informing the standard of reasons that medical panels must meet. In my opinion, Wingfoot contains a comprehensive exposition of that standard and care is required in relying on any cases that preceded it. In any event, for the reasons set out above, the Reasons sufficiently identify what considerations the Panel thought were material and explain how those considerations informed the Opinion.

It follows that grounds of review (d), (h) and (i) are not made out.

Conclusion and proposed order

For the reasons set out above, the plaintiff has failed to establish that the Medical Panel exceeded its jurisdiction or made an error of law on the face of the record of its decision.

The application for review will be dismissed. I will hear from the parties on the precise form of order to be made by this Court and on the question of costs.

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[2014] VSC 135

2 April 2014