Taylor v Mountain Pine Furniture Pty Ltd

[2004] VSC 324

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4401 of 2004

PAUL JOHN TAYLOR	Applicant
v
MOUNTAIN PINE FURNITURE PTY LTD, (ACN 006 136 929) GEOFFREY KLUG AND PETER GIBBONS (A medical panel constituted under the Accident Compensation Act 1985)	Respondents

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2004, 26-27 July 2004
DATE OF JUDGMENT:	1 September 2004
CASE MAY BE CITED AS:	Taylor v Mountain Pine Furniture Pty Ltd, Klug & Gibbons
MEDIUM NEUTRAL CITATION:	[2004] VSC 324

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Accident Compensation – Workers’ Compensation – Medical questions referred to medical panel – Judicial review – Whether medical panel assessed applicant’s degree of impairment in accordance with s 91(1)(a) Accident Compensation Act 1985 – Preliminary issue – Adequacy of reasons.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M O’Loghlen QC and Dr  I Freckelton	Belbridge Hague
For the Respondents	Mr J Noonan SC and Mr P Solomon	TAC Law Pty Ltd

HER HONOUR:

The application

1. This is an application under s 3 Administrative Law Act 1978 for judicial review of the opinion of a medical panel constituted under the Accident Compensation Act 1985 (“the Act”) by Mr Geoffrey Klug, a neurosurgeon, and Dr Peter Gibbons, a musculoskeletal physician, (“the panel”). The panel’s opinion was given in relation to two medical questions referred to it under s 104B(9) of the Act (“the medical questions”).

1. The applicant initially sought orders in the nature of certiorari quashing the panel’s opinion and mandamus remitting the medical questions to the panel. After the identification of a preliminary question as to the adequacy of the reasons, the applicant urged the Court to quash the panel’s opinion and to refer the medical questions to a differently constituted panel.

1. The first respondent initially contended that  the panel’s decision should be quashed on the grounds of jurisdictional error and that the medical questions should be referred to another panel.  However, after the identification of the preliminary issue, the first respondent submitted that the panel should be ordered to provide further reasons addressing any inadequacies identified by the Court.

Background

1. On 27 November 1997, in the course of his employment as a salesman by the first respondent, the applicant’s neck and left great toe had been injured. He had made a claim for compensation for non-financial loss under s 98C of the Act which had been accepted by QBE Mercantile Mutual (“the agent”) on behalf of the Victorian Workcover Authority.

1. S 98C of the Act provided that the applicant was entitled to compensation under that section “in respect of an injury resulting in permanent impairment as assessed in accordance with section 91”.

S 91

1. S 91 of the Act was, relevantly, in the following terms:

“91     (1) In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment-

(a)     made in accordance with-

(i)      the AMA Guides; or

(ii)     methods prescribed for the purposes of this section-

and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and

(b)     if the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who had successfully completed such a training course.”

S 91 (8) defined the “AMA Guides” as the American Medical Association Guides to the Evaluation of Permanent Impairment (4^th Edition) (“the Guides”).

The Guides

1. The Guides contained instructions as to the manner in which assessments were to be carried out.  They required the person evaluating impairments of the spine to use what was entitled the “Injury” or “Diagnosis Related Estimate” (“DRE”) model.  This model involved the use of clinical diagnosis to assign the patient’s condition to one of eight categories (“I” to “VIII”) listed in Table 70 of the Guides.  Table 70 was headed: ”Spine Impairment Categories for Cervicothoracic, Thoracolumbar and Lumbosacral Regions” and included conditions described as “minor injury”, “radiculopathy”, “loss of spine structure integrity” and “paraplegia”.

1. However, it is relevant to note, by way of background, that earlier editions of the American Medical Association Guides to the Evaluation of Permanent Impairment had provided for the assessment of the degree of impairment of the spine by use of what was described as the “Range of Motion” (“ROM”) model.  The calculation of a percentage of whole person impairment employing the ROM model involved the combination of a percentage impairment degree based on diagnosis with one based on measurement of the spine’s motion impairment and a percentage based on any neurological impairment.  

1. It is of significance to this application that the Guides contained the following statement:

“The Injury Model relies especially on evidence of neurologic deficits and uncommon, adverse structural changes, such as fractures, dislocations and loss of motion segment integrity.  Under this Model DREs are differentiated using clinical findings that are verifiable using standard medical procedures.

With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient had a favourable or unfavourable response to treatment.”[1]

[1]At p 100

1. Nevertheless, the Guides went on to provide that, if none of the eight listed DRE categories were applicable, the ROM model retained a role in the assessment process:

“All persons evaluating impairments according to the Guides criteria are cautioned that either one or the other approach should be used in making the final impairment estimate.  If one component were used according to the Guides recommendations, then a final estimate using the other component usually would not be pertinent or germane.  However if disagreement exists about the category of the Injury Model in which the patient’s impairment belongs, then the Range of Motion Model may be used to provide evidence on the question.”[2]

[2]At p 94

1. It is convenient at this point to note that the Guides also relevantly included the following notes in relation to one of the DRE model categories, “Cervicothoracic Category III: Radiculopathy”:

“Description and Verification:  The patient has significant signs of radiculopathy, such as (1) loss of relevant reflexes or (2) unilateral atrophy with greater than 2 - cm decrease in circumference compared with the unaffected side, measured at the same distance above or below the elbow.  The neurologic impairment may be verified by electrodiagnostic or other criteria …

Structural Inclusions:  (1)  25% to 50% compression of one vertebral body;  (2)  posterior element fracture, but not fracture of transverse or spinous process;  a mild displacement disrupts the spinal canal, but the fracture is healed without loss of structural integrity.  Radiculopathy may or may not be present.  Differentiation from congenital and developmental conditions may be accomplished by examining pre-injury roent-genograms or bone scans performed after onset of the condition.

Impairment:  15% whole-person impairment.”[3]

[3]At p 104

The significance of these paragraphs will appear when I consider the adequacy of the reasons given by the panel for its answers to the medical questions.

The training course materials

1. The Minister had approved a course for the training of practitioners in the application of the Guides as foreshadowed in s 91(b) of the Act. Both members of the panel had completed the approved course. Each had also received a full set of course materials, copies of which were in evidence.

1. The materials noted the reference in the Guides to the effect of operation upon an injured person, commenting as follows:

“7.      An impairment assessment of an injured person should be based on the person’s clinical status at the time of the examination.  Although page 3/100 paragraph 3 [of the Guides] suggests that surgery to treat an impairment does not modify the original impairment irrespective of whether the patient has a favourable or unfavourable response to treatment, the assessment for the purpose of the Victorian legislation is required of the patient’s impairment once their impairment has stabilised.  The ‘Injury or DRE Model’ allows for post operative improvements to be assessed by listing previous spine operation with various descriptors and catagories (sic) in Table 70 (3/108).”

1. The materials went on to state[4] that “structural inclusions” were included in the Injury Model in some DRE categories and that:

“[i]f the patient has a condition that meets the definition of a category that includes a structural inclusion, the physician need not determine if the other criteria for that category are present.  If the patient demonstrates structural inclusions of two categories, the physician should place the patient in the category with the highest impairment per cent.”

[4]At p 4

1. The training notes included a section dealing with applicants who had been operated upon which should be set out in full:

“Impairment Assessment of Post Surgical Back Injury Patients

The relevant Victorian legislation requires that an injured person is assessed for impairment when their condition has stabilised.  … .

It is required to assess an injured person’s impairment based on their condition at the time of the assessment. Thus their impairment must be based on their condition after surgery, and will be affected by the outcome of the surgery.

It should be pointed out that these concepts are inconsistent with the 4^th Edition AMA guides, in which it stated on page 100 ‘with the injury model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment’.

Nevertheless, the Victorian requirements are that the impairment will be assessed when the person’s condition is stable and assessed according to their impairment at the time of assessment.

The Spine Reference Group therefore makes the following recommendations regarding applying Table 70 ‘Spine Impairment Categories’ (3/108) to patients with previous spine operations.   These should be used instead of the ‘previous spine operation’ sections of the Table 70, as the Victorian requirements take precedence over the Guides.

PATIENT’S CONDITION  CATEGORY

Previous spine operation (PSO) without loss of motion integrity

Or radiculopathy  II

PSO with radiculopathy  III

PSO with loss of motion segment integrity  IV

PSO with loss of motion segment integrity and

Radiculopathy   V

PSO with cauda equina syndrome without

bladder or bowel involvement  VI       

PSO with cauda equina syndrome with

bladder or bowel involvement  VII

PSO with paraplegia  VIII

…      

Previous surgery with residual pain but without evidence of loss of motion segment integrity or radiculopathy or cauda equina syndrome will fit into Category II.

There may be dispute regarding this method of handling post spine surgery impairment, but the reference group believes that it is the correct application of the 4^th Edition AMA Guides considering the Victorian requirements. 

A challenge may occur in due course, but the purpose of the presentation is to produce uniformity of application of the Guides.”   

The plaintiff’s operation

1. Mr John O’Brien, an orthopaedic surgeon, had treated the applicant by performing a C6/7 inter-body fusion upon the applicant’s neck in late February 1998.

The various assessments of the applicant’s degree of impairment

1. The applicant had obtained and provided the agent with a written report from Mr Frank Combe, a general surgeon, dated 10 May 1999.  Mr Combe had assessed the applicant’s degree of whole person impairment at 25% under the Guides.

1. The agent had obtained a number of reports from the orthopaedic surgeons, Mr Bruce Love and Mr William Doig.

1. On 21 March 2000 Mr Love had examined the applicant and assessed the impairment to his cervical spine at 20% and his whole person impairment at 18%, applying the ROM model.  After review on 12 October 2000, this assessment had been reduced to a 14% whole person impairment.

1. Mr Love had written to the agent on 3 July 2001, explaining the basis for his 14% assessment and stating that he had measured the impairments in accordance with the Guides’ instructions to summate, rather than combine, range of motion assessments.  He had prefaced this statement by saying:

“Firstly I do not think that anyone knows what the correct table to be used with respect to the impairment assessment is, as this I imagine is something that it is open to interpretation in the courts.  I have used my understanding of the tables to reach my conclusions.”

Mr Love had noted that combining the impairment assessments would have resulted in a whole person impairment at 24%.

1. Applying the ROM model, Mr Doig had assessed the applicant’s whole person impairment at 28% in a report dated 3 June 2002.  Applying the DRE model in a subsequent report of 2 July 2002, Mr Doig had assessed the impairment of the applicant’s cervical spine at 5% and that of his big toe at 1%.  He had assessed the combined levels of impairment as a 6% whole person impairment in a 16 August 2002 report.

1. The applicant’s solicitors had sought the opinion of Mr Robert H Haralson III, an editor of the musculoskeletal chapter of the Guides, in relation to the various assessments of the applicant’s level of impairment.  Mr Haralson had responded by letter dated 10 June 2003 as follows:

“I have reviewed the records you forwarded to me on Paul John Taylor and would have the following comment.

In the 4^th Edition of the AMA Guides, we considered the result of the injury, not the treatment.  Therefore the fusion has no impact on his impairment.  Since this man has sustained an injury, he should be evaluated by the DRE method.  Since he demonstrates 5 mm of translation of one cervical vertebra on another, he meets the definition of loss of structure integrity and therefore would qualify for DRE cervical-thoracic category IV and a resultant 25% impairment to the body as a whole.  The fact that he has had surgery and improved is not considered in the 4^th Edition of the AMA Guides, unlike the 5^th.”

The referral of the medical questions

1. As the applicant disputed the assessments, the medical questions had been referred to the panel under s 104B(9) of the Act.

1. The medical questions were:

“1.What is the degree of impairment resulting from the accepted injury/s assessed in accordance with Section 91 and is the impairment permanent?

2.Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in Section 98E(1)?”

The material given to the panel

1. The applicant’s solicitors, Belbridge Hague, wrote to Dr Paul Nisselle, the Convenor of Medical Panels, on 11 November 2003.  Their letter referred to a scheduled appointment for the examination of the applicant by the panel on 25 November 2003.  It requested that Mr Haralson’s reports and a medical report from Mr Frank Combe dated 10 May 1999 be forwarded to the panel.  It then directed the panel’s attention to the two paragraphs from page 100 of the Guides set out above in [9] and continued:

“We submit that these 2 paragraphs unequivocally assert that surgery does not modify an original impairment.  On this issue we draw your attention to the report/letter of Mr Robert H Harlason (sic) dated 10 June 2003 which states:

‘The fact that he has had surgery and improved is not considered in the 4^th Edition of the AMA Guides, unlike the 5^th’.

2. We also submit that modification undertaken by the spinal reference group of the medical panel cannot alter the explicit provisions of S.91 which requires an assessment to be made in accordance with the Guides.

3.      We also submit that the application of the DRE model without modification for the effective surgery is entirely consistent with that assessment method as it is based on predicted rather than actual outcomes.”

The answers to the medical questions

1. The panel certified its opinion on 5 January 2004, answering the medical questions as follows:

Question 1.

“         In the Panel’s opinion the worker has a 16% whole person impairment resulting from the accepted injuries to the toes and neck when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.”

Question 2.

“No.” 

The reasons for the panel’s decision

1. The panel provided written reasons for its decision dated 5 January 2004 (“the reasons”).  The reasons commenced with the statement that the panel had formed its opinion by reference to the documents and information referred to in “Enclosure A” (attached to the reasons) and the history from the worker and examination findings by the panel members.  Enclosure A listed documents including the reports of Mr Combe, Mr Doig, Mr Love, Mr Haralson and the treating orthopaedic surgeon, Mr O’Brien, as well as the submissions made on behalf of the applicant by his solicitors’ letter of 11 November 2003.

1. The reasons recorded a history of the injury and the applicant’s complaint in relation to his then current condition.  They reported the results of physical examination of his neck and great toe.  They reviewed radiological material and went on to state:

“The Panel reviewed X-Rays dated 27 November 1997 that showed a dislocated IP joint of the left great toe.  X-Rays of the neck dated 13 February 1998 and 17 February 1998 showed anterior subluxation of C6 on C7.  CT scan taken on the same date confirmed the subluxation and demonstrated a fracture of the right lateral mass of C6.  Post-operative X-Rays dated 12 May 1998 show the presence of an anterior fusion of C6-7 using a plate, screws and bone graft.  Alignment had almost been restored but there was minimal displacement still present in the fused segment.

The Panel concluded that the worker suffering (sic) from residual dysfunction of the neck, but without clinical evidence of radiculopathy, secondary to a fracture dislocation of C6-7, treated operatively, relevant to the accepted neck injury. …

The Panel conducted an impairment assessment in accordance with the AMA Guides to the Evaluation of Permanent Impairment (4^th Edition, 3^rd Reprint) as required by Section 91 of the Act. The Panel considered that no further information was required from the worker’s treating practitioners to carry out the assessment.

The Panel carried out the assessment of the accepted neck injury in accordance with the Specific Procedures and Directions in Section 3.3f on page 101 of the Guides and the instructions from the Training Course approved by the Minister.

The Panel assessed the worker’s neck in accordance with Table 70 of Chapter Three and concluded that there is clinical evidence of neck injury, together with clinical evidence of structural inclusions comprising a posterior element fracture that has been operatively stabilised and healed without loss of structural integrity, but with residual mild displacement that disrupts the spinal canal.  There is no clinical evidence of radiculopathy or cord injury.  The Panel therefore concluded that the appropriate impairment category for the cervicothoracic spine is DRE Category III pursuant to Table 73 of Chapter Three, resulting in a 15 % of whole person impairment.

The Panel considered that the use of the Range of Motion Model was inappropriate as the worker’s neck impairment could be adequately assessed using the Diagnosis Related Estimates Model.”

1. After the reasons were handed down Belbridge Hague wrote to Dr Nisselle acknowledging their receipt and referring to the submissions made to the panel in their 11 November 2003 letter.  The letter continued:

“The panel appears to have based its assessment of the level of impairment on clinical findings after surgery.  The panel has not provided reasons for this approach despite the fact that it appears to be in direct contradiction to the Guides.

We request that the panel provide further and better reasons for its opinion and assessment.”

1. No further reasons were provided by the panel and the applicant commenced proceedings seeking an Order Nisi for Review under s 3 of the Administrative Law Act 1978.

The grounds for review

1. On 9 February 2004 Master Wheeler made orders and gave directions for the conduct of the application for review of the panel’s decision.  The Master recorded the panel’s answers to the medical questions and stated the grounds for review of the decision shown by the applicant. 

1. At the commencement of the hearing before me, the applicant successfully applied for leave to amend the grounds stated by the Master by adding a new ground (da).  The amended grounds for review were as follows:

“(a) The Tribunal failed to assess the degree of the Applicant’s impairment in the manner required by sections 98C and 91 of the Act and in accordance with the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (“the Guides”);

(b)     If the Tribunal had regard to material other than the Guides, the Tribunal failed to disclose this information to the Applicant prior to reaching its decision and thereby was in breach of the rules of natural justice;

(c)     The Tribunal failed to take into account relevant considerations, namely the state of the Applicant’s injury pre-surgery;

(d)     The Tribunal took into account irrelevant considerations, namely the effect of surgery on the Applicant’s injury; 

(da)   If the Tribunal was bound to take into account the effect of surgery upon the Applicant’s spinal injury, the Tribunal erred by not applying the Range of Motion Model in order to assess the degree of permanent impairments; 

(e)     The Tribunal failed to provide adequate or sufficient reasons for its decisions.”

The material before the Court

1. The applicant relied in support of his application upon affidavits of:

(a)John Alexander Binney of the applicant’s solicitors, Belbridge Hague,  sworn on 30 January 2004 and 5 February 2004, respectively, together with their exhibits; 

(b)Jennifer Betty Lush of Slater & Gordon, the Melbourne agents of the applicant’s solicitors, affirmed on 6 February 2004 and 9 February 2004, respectively, together with the exhibits to the 6 February 2004 affidavit; and

(c) Francis Thomas McDermott,  a surgeon, sworn on 15 April 2004. 

1. The respondents relied upon the affidavits of:

(a)Mr Geoffrey Klug  sworn on 19 March 2004 together with its exhibits; 

(b)Dr Peter Gibbons  sworn on 19 March 2004 together with its exhibits;  and

(c)Anastasia Coutsouvelis, of the first respondent’s solicitors, sworn on 22 July 2004.

Submissions

1. At the outset senior counsel for the applicant and the first respondent submitted that the panel’s decision should be quashed for jurisdictional error. Senior counsel for the applicant argued that, when assessing the impairment in accordance with s 91, the panel erred to the extent that it relied upon material from the training course which was inconsistent with the Guides. Senior counsel for the respondent submitted that the tribunal’s decision was invalid by reason of its reliance upon the materials per se.

The adequacy of the reasons – a preliminary issue

1. However, after some analysis of the reasons during argument, it became apparent that they might be regarded as failing to disclose whether or not the panel had erred as alleged, because it was unclear to what extent and how it had made its decision in accordance with the training course instructions or the Guides.

1. It was common ground that the panel was obliged to provide sufficient reasons for its conclusions “to enable it to be seen by the Court and the parties that it has arrived at its decision in accordance with its statutory functions”.[5]  If the reasons were inadequate because of their failure to disclose whether or not the panel had erred in the manner alleged in grounds (a) to (da), it would follow that it would not be possible for the Court to determine whether those grounds were made out.  Accordingly, it was agreed that the appropriate course was to determine the issue of the adequacy of the reasons raised in ground (e) as a preliminary issue.

   [5]Masters v McCubbery [1996] 1VR 636 at 650 per Winneke P.

Submissions

1. The points of contention between the parties were as to the adequacy of the reasons to disclose whether the alleged errors in grounds (a) to (da) had been made and as to whether the reasons dealt adequately with the matters raised with the panel by the applicant’s solicitors.

1. Senior counsel for the applicant asserted that the reasons were inadequate in that they failed to sufficiently disclose the panel’s reasoning in relation to:

(a)how the instructions from the training course had been followed in making the assessment, including:

(i)whether the applicant’s pre or post operative condition had been assessed;

(ii)whether the applicant’s condition had been categorised using the suggested amended Table 70;

(b)how the degree of impairment had been calculated under the Guides, including:

(i)why the applicant’s degree of impairment had been calculated under Table 73 of the Guides in the absence of findings of clinical evidence of radiculopathy or cord injury;

(ii)whether differentiators, including the ROM model, had been applied in the use of the DRE model;

(c)how the panel had responded to the submissions made in the applicant’s solicitors’ letter of 11 November 2003. 

1. Senior counsel for the first respondent submitted that the reasons were adequate.  He argued that:

(a) it could be discerned from the language of the panel that it had assessed the post operative state of the applicant; 

(b)the panel had assessed the applicant’s condition for the purpose of categorising his degree of impairment under Table 73 with reference to Table 70 as it stood in the Guides, rather than in the amended form suggested by the training course notes; and

(c)the applicant’s condition could only have been categorised in Category III if the panel had had regard to the notes relating to the presence of “structural inclusions” on page 104 of the Guides set out above at [11].

1. Both parties prepared written submissions detailing matters which should be addressed by further reasons.  Senior counsel for the applicant however stated that his client did so “only under protest”, as it were.  He argued that the omissions were so numerous and the reasons so confused that the decision should be quashed. 

1. Senior counsel for the first respondent responded by conceding, in effect, that the panel’s thought processes were not described with great clarity, but nevertheless contending that the reasons revealed that the panel members were medical practitioners using the Guides in light of their knowledge and expertise. With the benefit of hindsight, he said, improvement in expression was always possible. Any deficiencies could be rectified by an order under s 8(4) of the Administrative Law Act 1978 that the panel provide further reasons responding to specific questions formulated by the Court perhaps with reference to the suggested questions.

1. Senior counsel for the applicant urged the Court to quash the decision and to refer the medical questions for decision by another panel.  He noted that the panel had been represented at the Court, although its representative had taken no active role and indeed had not been present throughout.  However he argued that, with the benefit of a ruling from the Court in relation to any inadequacies in the reasons, a referral back to the panel would enable the panel to “patch” its reasons in order to prevent its decision from being quashed.  He relied upon what was said by Ormiston JA as to the inappropriateness of such a course in Body Corporate Strata Plan No. 4166 & Ors v Stirling Properties Ltd (No. 2)[6] at 912:

“In the case of total absence of reasons, the object of such provisions is better served by compelling the delivery of reasons rather than by outright quashing of the decision:  but cf.  De Smith, Judicial Review of Administrative Action, 4^th Ed, p. 151 and Clarke v Wellington Rent Appeal Board [1975] 2 NZLR 24 at p.27.

However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it.  Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more likely that the tribunal overlooked the issue altogether.”

[6][1984] VR 903

1. Senior counsel for the applicant also argued that the decision should be quashed because the provision of further reasons would not cure an invalidating denial of natural justice by the panel’s failure to provide the applicant with the opportunity to be heard as to its proposed reliance upon the instructions from the training course, notwithstanding the written submissions and materials supplied to it by his solicitors.  Reference was made to authorities relating to the content of the obligation to accord procedural fairness generally and, in particular, in relation to the provision of a fair hearing and the consequences of its breach, including Kioa v West and Others[7],  Colpitts v Australian Telecommunications Commission and Others[8], Saitta Pty Ltd v Commissioner of Taxation and Another[9], Weerappah v Nisselle[10], Stead v State Government Insurance Commission[11] and Re Refugee Tribunal and Another; ex parte Aala[12].  Senior counsel argued that the applicant might have achieved a different result by a number of means, including the seeking of relief by way of prohibition or injunction.

   [7][1985] 159 CLR 550 at 583 per Mason J

   [8]70 ALR 554 at 572 per Burchett J

   [9]192 ALR 385 at 387-8 per Finkelstein J

   [10][1999] VSC 249 at [39]-[43] and [51] per Smith J

   [11](1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ

   [12](2000)204 CLR 82 at 116 per Gaudron and Gummow JJ, 153-4 per Callinan J

Conclusions

1. In order to accord natural justice the panel was required to  give reasons adequate to disclose whether or not it had acted on proper principle.[13] S 8(1) Administrative Law Act 1978 required the panel to furnish an adequate statement of its reasons. The panel lacks the jurisdiction to make an order or decision otherwise than in accordance with law and any failure on its part to provide adequate reasons would constitute a jurisdictional error invalidating its decision.[14]

[13]Masters v McCubbery [1996] 1 VR 635 at 640 per Winneke P

[14]Craig v South Australia (1994-5) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ

1. Ormiston JA relevantly said of a medical panel’s obligation to give reasons under s 8 of the Administrative Law Act 1978 at 653:

"It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review."

1. Callaway JA also described the kind of reasons required under s 8 in the same case, at 661:

“In the present context, they are medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience.”

1. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang[15] a majority of the members of the High Court warned against “over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”[16]. 

   [15](1996) 185 CLR 259

   [16](1996) 185 CLR 259 at 271-2 per Brennan CJ, Toohey, McHugh and Gummow JJ

1. However, in my view, the applicant and the first respondent are each entitled to know whether the assessment had been carried out in accordance with the Guides as required under s 98C and s 91 of the Act. I consider the reasons to be inadequate because of their failure to clearly indicate how the panel carried out its assessment as it said it had done, in accordance with the Guides and the training course instructions. In my view, they failed to indicate whether, and if so how, the applicant’s pre or post operative condition was used to categorise his impairment. They failed to indicate whether they categorised the applicant’s condition in accordance with Table 70 in its original form (perhaps taking into account the notes relating to “Cervicothoracic Category III: Radiculopathy”) or that suggested in the training course materials. They did not address the appropriateness of the use of each of the DRE and ROM models by Mr Combe, Mr Doig and Mr Love in the reports listed in Enclosure A which the panel stated had been taken into account. Such explanations were warranted in light of Mr Love’s expression of his doubt that “anyone knows what the correct table to be used with respect to impairment assessment is”.

1. The reasons also failed to explain if, and how, the panel had taken into account and responded to the applicant’s solicitors’ letter of 11 November 2003 referring to the views of Mr Haralson. 

1. I am not satisfied that the panel could be specifically directed under s 8(4) of the Administrative Law Act 1978 to provide further reasons so as to ensure that those further reasons would be adequate to disclose whether or not it had acted beyond power. Further it would appear strongly arguable that the panel’s failure to accord procedural fairness by hearing the applicant in relation to its proposed course, in all the circumstances, would invalidate its decision in any event[17]. 

   [17]see Re Refugee Tribunal; ex p Aala (2000) 204 CLR 82 at 116 per Gaudron and Gummow JJ

1. Accordingly, I consider that  the panel’s decision should be quashed and the medical questions referred to a differently constituted medical panel.