IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2022 03309

WAJIRA NILMINI GUNATHILAKA ASURAMANAGE	Plaintiff	
		
v  		
		
ANGLICAN AGED CARE SERVICES GROUP & ORS (according to the schedule)	 First Defendant	

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JUDGE:	O’Meara J 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	25 August 2023	
DATE OF JUDGMENT:	7 September 2023	
CASE MAY BE CITED AS:	Asuramanage v Anglican Aged Care Services Group & Ors	
MEDIUM NEUTRAL CITATION:	[2023] VSC 525	

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ADMINISTRATIVE LAW – Judicial Review – Medical panel – Workplace incident in which the plaintiff suffered a low back injury and consequential psychiatric injury – Medical questions – Panel assessed the plaintiff’s whole person impairment at 0% – Mandatory relevant considerations – Panel’s reasons – American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition), sections 3.3, 3.3d, 3.3f, 3.3g and Tables 70, 71 and 72, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Chang v Neill (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187 and Victorian WorkCover Authority v Putrus [2023] VSCA 853 considered – Proceeding dismissed. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	JC Plunkett	Maxiom Injury Lawyers	
			
For the First Defendant	M Norton and CN Viney	TG Legal + Technology	
			
For the Second to Sixth Defendants	No appearance	DLA Piper	

HIS HONOUR:
A.	Background
1	The plaintiff was employed by the first defendant, Anglican Aged Care Services Group, as a personal care attendant.
2	On 7 November 2020, the plaintiff was attending a patient with dementia and claims to have reached to grab a call bell when the patient pulled her forward. The plaintiff says that she suffered sudden severe pain in her low back which radiated round to her front and into her groin and upper thighs.  She also says that she was incontinent of urine and was in so much pain that she could not move.
3	The plaintiff was taken to Frankston Hospital Emergency Department by ambulance.  While in hospital, the plaintiff underwent investigation by MRI scanning which, among other things, was reported as disclosing an annular tear at the L4/L5 disc that ‘may be a source of acute pain’.
4	On 24 November 2020, the plaintiff lodged a worker’s compensation claim.  Under the heading ‘Incident & worker’s injury details’, the claim form described the injury/condition as ‘[b]ack injury – Annular tear with mild disc prolapse in the L4-L5’.  
5	The plaintiff’s claim was accepted.   In that connection, the agent accepted that she had an ‘annular tear with mild disc prolapse at L4/5 region’.
6	In about December 2020, the plaintiff was referred to Dr Hazem Akil, neurosurgeon.  In a report dated 9 December 2020, Dr Akil referred to the plaintiff’s symptoms and the MRI report from Frankston Hospital.  Dr Akil suggested that the plaintiff commence physiotherapy and that she could have a bone scan with SPECT views.
7	In late December 2020, the plaintiff’s general practitioner referred her for psychological assessment.  The referral described her as ‘[d]epressed as she has recently had a work injury’.
8	Dr Akil saw the plaintiff again in January 2021 and evidently reviewed the films of the MRI scanning undertaken at Frankston Hospital, which he considered to disclose ‘significant signs of spondylosis affecting L4/5 and L5/S1 discs’.  He referred the plaintiff for bone scan with SPECT views, which was performed on 29 January 2021.
9	Dr Akil reviewed the plaintiff in February 2021 and reported no significance in the bone scan with SPECT views.  He saw no clear indication for surgery and reported that he had advised the plaintiff to persist with physiotherapy and decided to refer her to a ‘pain specialist colleague’, which seems to have been Dr Robert Gassin.
10	Dr Gassin organised further investigation by MRI scanning and, on 30 March 2021, reported as follows –
Wajira’s recent MRI scan does not show any change from a previous MRI scan.  She still has a broad-based disc bulge at L4/5 and L5/S1 level with associated annular tears at both levels and Modic changes at the L5/S1 level.  There is no obvious significant neural impingement to account for the leg and bladder symptoms.
At this stage, I have suggested that she persevere with exercise-based physiotherapy and I have referred her to Ms Emel Ahmet, Psychologist, for further management.  I have also suggested that she increase the dose of pregabalin from her current dose of 25 mg bd to 50 mg bd.  She is to remain on amitriptyline 10 mg nocte.
I will review Wajira in two weeks to monitor her progress.  Given that she states that recently her pain has been radiating up her spine to the neck, I will examine her further to ensure there are no issues further up the spine which may be contributing to her current symptoms.
11	In that general context, the plaintiff’s general practitioner seems to have sought approval for psychiatric assessment and management, which later took place, and also referred the plaintiff to A/Prof Tony Goldschlager, neurosurgeon – presumably for a second opinion.  The referral to A/Prof Goldschlager seems to have attached a copy of the report of the MRI scan performed at Frankston Hospital.
12	The plaintiff attended A/Prof Goldschlager in April 2021.  In a report dated 9 April 2021, A/Prof Goldschlager stated – 
Her MRI shows disc desiccation at L4/5 and L5/S1 with an annular tear posteriorly, but there is no neural compression.  There is no uptake on the bone scan.
I think her pain is mainly due to discogenic back pain, due to the annular tear … .
13	A/Prof Goldschlager did not think that surgery was indicated and referred to her seeing Dr Gassin.
14	In May 2021, the plaintiff was assessed by Dr Nicholas Burke, consultant occupational physician, who considered it to be most likely that ‘psychosocial factors’ were significantly contributing to her ongoing symptoms and disability.
15	The plaintiff was reviewed by Dr Gassin in July 2021, who reported that her position was essentially unchanged and that he had referred her to be assessed for a multidisciplinary pain management programme.
16	On 20 December 2021, the plaintiff was reviewed by A/Prof Goldschlager.  He reported that her pain ‘changes in distribution’ and referred to her ‘recent MRI’, which is likely to have been MRI scanning undertaken in May 2021.  In that connection, A/Prof Goldschlager stated –
… I do think that she should see a neurologist to assess for the cause of her urinary symptoms and the changes on the MRI scan.  I have referred her to Dandenong Neurology.
17	A/Prof Goldschlager also reported that he had referred the plaintiff to an expert pain physician, Dr Terence Lim.
18	In about March 2022, the plaintiff consulted Dr Laura Perju-Dumbrava, consultant neurologist, at Dandenong Neurology.  In her report dated 15 March 2022, Dr Perju-Dumbrava referred to the ‘brain and spine MRI scans’ and stated –
The spine MRI did not show a significant pathology to explain her symptoms but this was done in May 2021.
19	Dr Perju-Dumbrava described the plaintiff’s symptomatology as ‘dominated by pain, sensory abnormalities and urinary symptoms’.  She said that she had also ordered another MRI and had asked the plaintiff to persist with physiotherapy.
20	That MRI scanning was undertaken on 19 May 2022.  The radiology report referred to shallow disc protrusions at L4/5 and L5/S1; however, the associated nerve roots were said to ‘exit freely’.  The radiologist concluded as follows –
A cause for the patient’s presentation is not identified.  When comparison is made with the lumbar spine imaging of May 2021, there has been no significant interval change in appearances.
21	In this overall context, the plaintiff completed a form dated 25 May 2021 by which she claimed a statutory impairment benefit.  The form referred to a ‘lower back injury’ and ‘psychiatric injury’.
22	In respect of the latter, on 10 February 2022 the plaintiff attended for assessment by A/Prof Saji Damodaran, psychiatrist.  Relevantly, A/Prof Damodaran reported –
Ms Asuramanage’s Whole Person Impairment is secondary to the physical injury.  Her non-secondary psychiatric impairment is 0%.
23	In respect of the low back injury, on 23 February 2022 the plaintiff attended for assessment by A/Prof Evange Romas, rheumatologist.  
24	In a report of the same day, A/Prof Romas referred to the radiological investigations and stated that ‘[l]umbar disc annular “fissures” and “high-intensity zones” (scars) are unexceptional and not specific for injury’.  Thereafter, A/Prof Romas expressed the following opinion –
It is probable that on 7 November 2020, the worker had acute low back pain due to a small central disc extrusion causing intense dural irritation without involvement of adjacent nerve roots.  This phenomenon is fully recovered.  Her current presentation now largely reflects central pain sensitisation and an abnormal psychological reaction.
25	As to his assessment of impairment, A/Prof Romas stated –
Relative to the accepted “Low back” injury there is involvement of one region of the spine and that one region is the lumbosacral spine region.  I assessed the lumbosacral spine according to the specific procedures and directions in Section 3.3f on page 101 [of the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘Guides’)].  She has non-specific low back pain with no objective signs of persisting lumbar injury.  There is no clinical radiculopathy.  There are no spine structural inclusions.  Therefore, according to Tables 70, 71 and 72 the appropriate category is DRE I, and I rated 0% impairment of the whole person.  The worker therefore has a Total Spine impairment of 0%, whole person, relative to the accepted low back injury.
26	On 18 March 2022, the authorised agent advised the plaintiff that liability was accepted for her lower back and psychiatric injuries, but that her combined physical whole person impairment and psychiatric whole person impairment had each been assessed at 0% and, consequently, it had been determined that the plaintiff was ‘not entitled to an impairment benefit’.
27	On the same day, the plaintiff disputed the physical and psychiatric impairment assessments.  Consequently, medical questions came to be referred to a medical panel for determination.
28	In that connection, a five member panel was assembled comprising a general practitioner, neurosurgeon, rheumatologist and two psychiatrists.
29	The panel was provided with documents and information containing, among other things, the material to which I have already referred.  
30	Unusually, neither the plaintiff nor the first defendant appear to have provided written submissions to the panel.
31	The plaintiff was examined by the ‘physical’ doctors on 26 May 2022 and by the psychiatrists on 31 May 2022.
32	On 29 June 2022, the panel provided its certificate in respect of the stated medical questions – 
Question i) 	What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?
Answer: 	In the Panel's opinion the worker has a 0% whole person impairment resulting from the accepted lower back injury when assessed in accordance with Section 54 of the [Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’)]. The degree of impairment is permanent.
The Panel is also of the opinion that there is a 0% psychiatric impairment resulting from the accepted psychiatric injury when assessed in accordance with Section 54 of the Act. The degree of psychiatric impairment is permanent.
The degree of impairment includes a 0% whole person impairment assessed in accordance with Chapter Three of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition).
Question ii) 	Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table on Section 221?
Answer: 	No.
33	The panel’s certificate was accompanied by its written reasons for opinion.

B.	The Panel’s Reasons
34	The panel’s reasons commenced by confirming that it had formed its opinion with regard to the documents and information provided to it as well as the history provided by the plaintiff and its findings on examination.
35	In that regard, the panel noted that it had been accepted that the plaintiff suffered lower back and psychiatric injury in the course of her employment on 7 November 2020.  The panel thereafter referred to the plaintiff’s incident of injury and subsequent treatment, including that –
She underwent MRI scanning whilst in hospital which showed L4/5 and L5/S1 annular fissures. … .
Ms Asuramanage was referred to Mr Hazem Akil, Neurosurgeon, and to Pain specialists Mr Gazam [sic: Gassin] and Dr Laura Periu-Dumbrava [sic: Perju-Dumbrava].  She found walking continued to be painful but became easier after she was started on Pregabalin and Amitriptyline, which she remains on still.
36	The panel thereafter recorded the results of its examination of the plaintiff’s spine and, in respect of the imaging reports, noted –
•	MRI scan of the Lumbar Spine dated 09 November 2020 was reported, by Dr Caroline Scott, to show an L4/5 and L5/S1 disc bulge/protrusion contacting the transversing left L5 and S1 nerve roots respectively and an Annular Tear at L4/5 disc that may be the source of the acute pain.
•	SPECT Bone Scan dated 29 January 2021 was reported, by Dr Learmont-Walker, as a normal bone scan for age. No scintigraphic cause for lower back pain detected. No fracture. No active facet joint arthritis. No active degenerative disc disease. No sacroiliitis.
•	MRI Lumbar Spine dated 19 March 2021 was reported, by Dr Rafel Grabinski, as showing L4/5 central disc bulge present and leads to mild central canal narrowing and there is an annular fissure present. L5/S1 central disc bulge leads to mild central canal narrowing and there is an annular fissure present. No high grade spinal or neuroforaminal canal narrowing detected.
•	MRI Brain and Spine dated 27 May 2021 was reported, by Dr Peter Smith, as showing a nonspecific lesion in the left periventricular white matter that was nonspecific. There were no features of demyelination. The cord signal intensity was normal. Low grade degenerative disc disease was present in the cervical spine. Central disc protrusions and annular disruption at L4/5 and L5/S1 lying between the L5 and S1 nerve roots respectively.
•	MRI Lumbar Spine dated 19 May 2022 was reported, by Dr Hayden Prime, as showing that a cause for the patient's presentation is not identified. When comparison is made with the lumbar spine imagining of May 2021 there has been no significant interval change in appearances.
37	The panel did not consider any additional imaging to be necessary in order for it to complete its assessment and answer the medical questions.  Thereafter, the panel stated –
The Panel considers that Ms Asuramanage may have suffered from a soft tissue injury to her lower back, but she is now no longer suffering from any ongoing medical condition except for complaints and symptoms of pain, relevant to the accepted Low Back injury.  The Panel considers that Ms Asuramanage’s complaints and symptoms have stabilised.
38	From that point, the panel addressed its psychiatric examination and assessment before explaining its assessment of lumbosacral impairment, relevantly as follows –
The Panel conducted an impairment assessment in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) as required by Section 54 of the Act.  The Panel considered that no further information was required from her treating practitioners to carry out the assessment.
The Panel carried out an assessment of the lumbosacral spine in accordance with the Specific Procedures and Directions in Section 3.3f on page 101 of the Guides.
The Panel assessed Ms Asuramanage’s lumbosacral spine in accordance with Table 70 of Chapter Three and concluded that there are complaints and symptoms of pain with no clinical signs of ongoing lumbosacral spinal injury. The Panel therefore concluded that the appropriate impairment category for the lumbosacral spine is DRE Category I pursuant to Table 72 of Chapter Three, resulting in a whole person impairment of 0%.
As the impairment from the lower back could be assessed in accordance with the Diagnosis Related Estimates (DRE) Model, the use of the Range of Motion Model is not appropriate.
The Panel considered that there is no other medical condition or impairment attributable to the accepted low back injury when assessed in accordance with the Guides.
…
The Panel noted the medical report of A/Prof Romas dated 23 February 2022, wherein he assessed Ms Asuramanage as having a 0% whole person impairment for the accepted low back injury.  The Panel is in agreement with A/Prof Romas’ whole person impairment based on its own examination findings of 26 May 2022.
39	The panel thereafter addressed the assessment of psychiatric impairment and stated –
In the Panel’s opinion … Ms Asuramanage has a psychiatric impairment of 20%.  The Panel concluded that the whole of this psychiatric impairment has arisen secondary to Ms Asuramanage’s physical injury and is therefore excluded from the impairment assessment pursuant to Section 56 of the Act.
40	As to combined assessment and whole person impairment, the panel concluded –
Using the Combined Values Chart results in a 0% whole person impairment relevant to the accepted physical and psychiatric injuries.  The degree of impairment is permanent.
The Panel therefore concluded that there was a 0% whole person impairment resulting from the accepted physical and psychiatric injuries when assessed in accordance with Section 54 of the Act.  The degree of impairment is permanent.
C.	The Present Proceeding
41	By originating motion dated 15 August 2022, the plaintiff seeks judicial review of the panel’s opinion on the following stated grounds – 
GROUND 1
8. 	The Medical Panel fell into jurisdictional error by failing to take into account a relevant consideration, a consideration it was bound in law to consider when determining its Opinion, namely the opinion of the Plaintiff’s treating neurosurgeon, A/Prof Tony Goldschlager.
					PARTICULARS
(a) In his report dated 9 April 2021, A/Prof Tony Goldschlager noted, ‘I think her pain is mainly due to discogenic back pain, due to the annular tear…’
(b) The Medical Panel Opinion makes no mention of the opinion of A/Prof Goldschlager.
		GROUND 2
 9. 	The Medical Panel committed error of law on the face of the record by providing Reasons for Opinion, which are inadequate. The Medical Panel failed to provide reasons sufficient to show its actual path of reasoning either at all, or insufficient detail to show how it arrived at its certified Opinion and whether its Opinion does or does not involve any error of law.
					PARTICULARS
(a) An MRI dated 9 November 2020 showed an L4/5 and L5/S1 disc bulge/protrusion contacting the transversing left L5 and S1 nerve roots respectively and an Annular Tear at L4/5 disc that may be the source of the acute pain.
(b) An MRI dated 27 May 2021 revealed central disc protrusions and annular disruption at L4/5 and L5/S1 lying between the L5 and S1 nerve roots respectively.
(c) As noted above, in his report dated 9 April 2021, A/Prof Tony Goldschlager noted, ‘I think her pain is mainly due to discogenic back pain, due to the annular tear…’
(d) Despite the above MRIs seeming to show ‘clinical signs of lumbar injury’, and so ostensibly meeting the DRE-II criteria, and despite A/Prof Goldschlager’s opinion that the Plaintiff was suffering from ‘discogenic back pain, due to the annular tear,’ the Medical Panel concluded that ‘Ms Asuramanage may have suffered from a soft tissue injury to her lower back, but she is now no longer suffering from any ongoing medical condition.’
(e) It is unclear from the Reasons for Opinion how the Medical Panel reconciled the MRI evidence or A/Prof Goldschlager opinion with the conclusion that the Plaintiff had no ongoing medical condition in relation to her lower back.
42	The plaintiff and the first defendant filed and served detailed written submissions.  
43	In respect of ground 1, the plaintiff identified the ‘thrust’ of her contention, as follows –
… that the findings of the Plaintiff’s treating neurosurgeon [A/Prof Goldschlager] to the effect that the Plaintiff has ‘clinical signs of lumbar injury’ is indeed a consideration that is ‘fundamental’ to answering the referred question – here, whether or not the Plaintiff’s back condition satisfies the DRE II criteria – and, hence, is a mandatory relevant consideration.
44	The plaintiff thereafter clarified that the expression ‘clinical signs of lumbar injury’ was directed to the reference by A/Prof Goldschlager to ‘an annular tear posteriorly’, which, it was submitted, demonstrated that the plaintiff ‘does indeed meet the DRE-II criteria’.
45	As to ground 2, the plaintiff referred to relevant authority and what was described as being the ‘definitions’ of DRE-I and DRE-II in the Guides and submitted that –
… it is entirely unclear how the Medical Panel concluded that ‘Ms Asuramanage may have suffered from a soft tissue injury to her lower back, but she is now no longer suffering from any ongoing medical condition’.
46	In that regard, the plaintiff submitted that the panel’s reasons had failed to reveal how it was that it had ‘reconciled’ the opinion of A/Prof Goldschlager with its conclusion.
47	I should note that the second to sixth defendants comprise the members of the panel.  By solicitor, the panel members advised that they ‘have adopted the Hardiman position … [and] … will not participate in the trial’.
D. 	Relevant Principles
48	In Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’), the High Court stated –
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, 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. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
49	In respect of the standard required of written reasons given by a medical panel, the High Court stated – 
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 an 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 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.
50	In that instance, the Court of Appeal had analogised the function of a medical panel with the function of a judge deciding the same question.  The High Court rejected the analogy and stated –
A Medical Panel explaining in a statement of reasons 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.
51	More recently, in Chang v Neill (‘Chang’), the Court of Appeal referred to Wingfoot in the course of highlighting the ‘distinctive characteristic of a medical panel as an expert statutory body that provides answers to medical questions’ and explained that a panel does not ‘adjudicate on parties’ rights and obligations after engaging in an adversarial hearing’.
52	Similarly, in Sidiqi v Kotsios, the Court of Appeal confirmed that – 
(a)	the opinions of a medical panel on medical questions of fact raised by the questions before it will necessarily be informed by expertise which the Court does not possess; 
(b)	it is for the medical panel to determine what information is sufficient to found an opinion with respect to a medical question; and
(c)	when an inference is to be drawn by way of opinion of a medical panel as to the nature, extent and severity of the medical condition, it will be for the panel to identify and evaluate the relevant facts in light of its medical knowledge and experience.
53	As to a failure to have regard to relevant considerations, the submissions of the plaintiff referred to Minister for Aboriginal Affairs v Peko-Wallsend, in which Mason J referred, among other things, to the failure of a decision maker to take account of a consideration that it was ‘bound to take into account in making that decision’.  For his part, Brennan J referred to ‘the salient facts … of such importance that, if they are not considered, it could not be said that the matter has been properly considered’.
54	In that connection, in Chang, the Court of Appeal referred to the distinction between evidence or facts that concern a relevant consideration and the relevant consideration itself.  In respect of a medical panel, the Court of Appeal gave the following example –
In the case of a medical panel being asked to assess whether a psychological injury has rendered a worker incapable of engaging in any work, the treatment that the worker is receiving is obviously a relevant consideration.  That information may be contained in a report of the worker’s treating psychiatrist and may also be communicated to the medical panel verbally by the worker.  If the medical panel in its reasons refers to the worker’s treatment solely by reference to the psychiatrist’s report, it cannot be said that it failed to take into account the relevant consideration.  The medical panel’s failure to refer to the worker’s verbal communication constitutes a failure to refer to one source of evidence informing that relevant consideration but it does not constitute a failure to take into account the relevant consideration.
E.	Ground 1: Failure to take into account the opinion of A/Prof Goldschlager
55	It may be accepted that the panel’s written reasons do not refer directly to either A/Prof Goldschlager or his two relatively brief reports.
56	In that connection, it will be evident that the plaintiff’s argument was that by allegedly failing to have regard to the opinion of A/Prof Goldschlager (that the plaintiff’s pain was ‘mainly due to discogenic back pain, due to the annular tear’), the panel may have erred in assessing the plaintiff’s impairment as falling within category ‘DRE-I’ in the Guides as opposed to category ‘DRE-II’.  
57	In oral argument, counsel for the plaintiff referred to what he described as the definitions of ‘DRE-I’ and ‘DRE-II’ in Table 72 of the Guides and identified the ‘thrust’ of the argument as follows –
… DRE I is ‘complaints or symptoms’, which we say is effectively meaning no pathology; and DRE II talks about clinical signs of lumbar injury, which we say means some sort of pathology or there’s some sort of organic basis for the plaintiff’s complaint.
58	Counsel submitted that ‘pathology’ in the nature of an annular disc tear ‘falls within DRE-II and is not just a soft tissue injury’.
59	There was no dispute that the panel considered and applied the correct section, ‘model’ and tables of the Guides.
60	Section 3.3 of the Guides is entitled ‘The Spine’ and states that one of the purposes of the Guides is ‘to lead to similar results when different clinicians evaluate illnesses and impairments’.  
61	Reference is thereafter made to the ‘Injury’ Model (or ‘Diagnosis-related Estimates’ Model (‘DRE’)), as opposed to the ‘Range of Motion Model’, and it is explained that the ‘Injury’ or ‘DRE’ model applies especially to traumatic injuries and involves assigning a patient to ‘one of eight categories’.  In that regard, it is stated –
The evaluator assessing the spine should use the Injury Model, if the patient’s condition is one of those listed in Table 70 (p. 108).  That model, for instance, would be applicable to a patient with a herniated lumbar disk and evidence of nerve root irritation.  If none of the eight categories of the Injury Model is applicable, then the evaluator should use the Range of Motion Model.
62	Evaluation of impairment using the ‘Injury’ or ‘DRE’ model is explained in section 3.3d of the Guides, relevantly as follows –
The Injury Model relies not only on the medical history and physical examination, but also on medical data other than those that relate to the range of motion. 
What is called osteoarthritis of the spine is due more to increments of age than to injury or illness, while similar structural changes in the hip or glenohumeral joint are more likely to be injury related. For example, roentgenographic evidence of aging changes in the spine, called osteoarthritis, are found in 40% of people by age 35 years, and there is a poor correlation with symptoms, while roentgenographic evidence of osteoarthritic changes of the hip are found in 5% to 7% of 70-year-olds, in whom the correlation with acute injury is greater.
The Injury Model attempts to document physiologic and structural impairments relating to insults other than common developmental findings, such as (1) spondylolysis, found normally in 7% of adults; (2) spondylolisthesis, found in 3%; (3) herniated disk without radiculopathy, found in more than 30% of individuals by age 40 years; and (4) aging changes, common in 40% of adults after age 35 years.
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 according to clinical findings that are verifiable using standard medical procedures. 
63	In respect of impairment of the lumbosacral spine, section 3.3g of the Guides addresses the eight ‘DRE’ categories.  In respect of  ‘DRE-I’ and ‘DRE-II’, it states –
DRE Lumbosacral Category I: 
Complaints or Symptoms 
Description and Verification: The patient has no significant clinical findings, no muscle guarding or history of guarding, no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness. 
Structural Inclusions: None. 
Impairment: 0% whole-person impairment. 
DRE Lumbosacral Category II: Minor Impairment 
Description and Verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, nonuniform loss of range of motion (dysmetria, differentiator 1, Table 71, p. 109), or nonverifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity. See Table 71, differentiator 1 (p. 109). 
Structural Inclusions: (1) Less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylolysis); the fracture is healed, and there is no loss of motion segment integrity. 
A spinous or transverse process fracture with displacement without a vertebral body fracture is a category II impairment because it does not disrupt the spinal canal. 
Impairment: 5% whole-person impairment. 
64	With a little further elaboration in respect of DRE-II, the descriptors stated in section 3.3g of the Guides in respect of DRE-I (‘complaints or symptoms’) and DRE-II (‘minor impairment’) link to the eight categories identified later in Table 72, together with the percentage of whole person impairment assigned to each such category.
65	Although counsel for the plaintiff described the brief descriptors appearing in Table 72 as constituting ‘definitions’ of each DRE category, it will be evident that the descriptions of the categories appear earlier (and more fully and accurately) in section 3.3g of the Guides.
66	It should also be evident that the DRE categories are directed to the question of impairment, rather than injury, and that the ‘DRE’ model is generally directed to documenting ‘physiological and structural impairments relating to insults other than common developmental findings’.
67	In that connection, ‘common developmental findings’ are identified in section 3.3d of the Guides as including ‘spondylosis’, ‘herniated disk without radiculopathy’ and ‘aging changes’.  
68	Such descriptions, of course, include bulging, prolapsed and herniated lumbar discs.  In respect of the latter, herniation will usually involve the extrusion of some degree of discal material through a tear, crack or fissure in the annulus of the lumbar disc, which can itself be an age-related change.  
69	As is acknowledged in the quoted extract from section 3.3d of the Guides, ‘roentgenographic’ (or, radiological) evidence of such changes is poorly correlated with symptoms.  
70	Further, it is notorious that such changes can be aggravated or made symptomatic, but can also heal.  In particular, it is not uncommon for it to be said that a disc prolapse or extrusion has ameliorated or been ‘re-absorbed’.
71	For those reasons, the assessment as to whether any such findings are properly to be regarded as ‘common developmental findings’ as opposed to related in some way to another kind of ‘insult’ is very much a part of the expert function of a panel.
72	Further, the fact that ‘common developmental findings’ are disclosed by radiological investigation may say nothing about a panel’s assessment of the appropriate ‘DRE’ category of impairment.
73	It follows that the submission that category ‘DRE-I’ means ‘no pathology’ and category ‘DRE-II’ means ‘some sort of pathology’ must be approached with the very greatest caution.  In my view, the distinction posited by counsel does not correlate with the terms of the Guides and, indeed, has a (no doubt unintended) potential to mislead.
74	In my view, the parts of the Guides to which I have referred explain much about the approach adopted by the panel in the present instance.
75	In that regard, the panel relevantly commenced by stating that it formed its opinion with regard to the documents and information provided, which included the two brief reports of A/Prof Goldschlager.  
76	Although such a statement does not insulate the determination of a panel from review, it is nonetheless an express statement that the panel had regard to that which the plaintiff says it erroneously failed to consider.
77	Immediately thereafter, the panel referred to the fact that the plaintiff’s claim had been ‘accepted’, which, as I have earlier noted, had originally involved an acceptance by the agent that the plaintiff had an ‘annular tear with mild disc prolapse at L4/5 region’.
78	The panel then referred to the plaintiff’s account of her history of the incident and treatment and, in that connection, specifically noted that she had undergone ‘MRI scanning whilst in hospital which showed L4/5 and L5/S1 annular fissures’.
79	Consequently, it is tolerably clear from the earliest point in the panel’s reasons that it was aware that early radiological scanning identified ‘annular fissures’, at least one of which was potentially implicated in the plaintiff’s claimed symptoms.
80	Shortly thereafter, the panel referred to the plaintiff’s treatment, including by Dr Akil, Dr Gassin and Dr Perju-Dumbrava.  
81	As I have earlier noted, that passage does not specifically refer to A/Prof Goldschlager.  However, the second of Dr Gassin’s reports refers directly to ‘the opinion of Mr Tony Goldschlager, spinal surgeon’ and the report of Dr Perju-Dumbrava is addressed to him.
82	In any event, as I have indicated, it seems to be clear enough that at that point the panel was alive to the theory that would seek to implicate the annular tear or tears detected on radiological scanning in the plaintiff’s symptoms of pain.
83	Consistently with that position, after recording the results of its physical examination of the plaintiff’s spine, the panel outlined the chronological sequence of radiology reports, which included –
(a)	the statement in respect of the MRI scan of 9 November 2020 (performed at Frankston Hospital) that a ‘L4/5 and L5/S1 disc bulge/protrusion contacting the transversing left L5 and S1 nerve roots respectively’ was shown, and that ‘an Annular Tear at L4/5 disc … may be the source of the acute pain’;
(b)	the reference in the report relating to the MRI scan of 19 March 2021 to annular fissures being present at L4/5 and L5/S1;
(c)	the reference in the report relating to the MRI scan of 27 May 2021 (which was addressed to ‘Prof Tony Goldschlager’) to ‘annular disruption at L4/5 and L5/S1 lying between the L5 and S1 nerve roots respectively’; and
(d)	the reference to the report relating to the MRI scan of 19 May 2022 that ‘a cause for the patient’s presentation is not identified’.
84	In respect of the above –
(a)	the last report in the sequence of radiological investigations (which was approximately 12 months after the preceding investigation) posited no cause for the plaintiff’s symptoms (and also referred the nerve roots exiting ‘freely’ and did not refer to any annular fissures or tears);
(b)	immediately prior to that, the plaintiff had consulted Dr Perju-Dumbrava (to whom the panel referred) and she did not consider the earlier MRI (in May 2021) to show significant pathology that would explain the plaintiff’s symptoms;
(c)	in that regard, while counsel for the plaintiff sought to emphasise that A/Prof Goldschlager had been a ‘treating neurosurgeon’, essentially the same may be said concerning both Dr Akil (to whom the panel referred) and Dr Perju-Dumbrava (who saw the plaintiff on referral from A/Prof Goldschlager for the purpose of, among other things, assessing ‘the changes on the MRI scan’); and
(d)	Dr Akil and Dr Perju-Dumbrava both viewed or considered the available radiology and/or reports and neither specifically implicated any annular tear or tears in the plaintiff’s claimed symptoms.
85	After outlining the chronological sequence of radiological investigations and observing that no further radiology was required, the panel stated its assessment of the position as follows –
The Panel considers that Ms Asuramanage may have suffered from a soft tissue injury to her lower back, but she is now no longer suffering from any ongoing medical condition except for complaints and symptoms of pain, relevant to the accepted Low Back injury.  The Panel considers that Ms Asuramanage’s complaints and symptoms have stabilised. 
86	In respect of that passage, it may be observed that –
(a)	the panel expressed its expert opinion that the plaintiff had suffered a ‘soft tissue injury’ to her lower back;
(b)	in light of the radiological investigations outlined immediately prior to that statement of opinion, the expression ‘soft tissue injury’ likely refers to at least disc bulges and protrusions contacting the nerve roots (as referred to in the initial radiological investigation undertaken shortly after the incident of injury);
(c)	the panel’s later reference to the assessment of A/Prof Romas may suggest that it also contemplated the possibility that the ‘soft tissue injury’ could have included a ‘small central disc extrusion’;
(d)	all such injuries were likely to have been considered by the panel to have implicated one or more of the annular tears or fissures referred to in the radiological investigations, in the sense that the bulging discs and/or protruding discal material contributed to contact with the nerve roots;
(e)	however, as earlier noted –
(i)	all such underlying ‘pathology’ is capable being considered to be ‘common developmental findings’; and
(ii)	such bulges, protrusions, herniations or extrusions may ameliorate over time or even entirely heal;
(f)	in that context, the panel considered there to be ‘no ongoing medical condition’ at the time of assessment – meaning that, in its expert opinion, the ‘soft tissue injury’ had ameliorated, resolved or healed;
(g)	that conclusion was consistent with the content of the final radiological report in the sequence referred to by the panel, which posited no cause for the plaintiff’s symptoms, did not refer to any annular fissures or tears and referred the nerve roots exiting ‘freely’; and
(h)	accordingly, the plaintiff’s relevant condition at the time of assessment by the panel amounted to no more than ‘complaints and symptoms’ which, as I have noted, corresponded with category DRE-I in Table 72.
87	The Panel thereafter performed its impairment assessment in accordance with section 3.3 of the Guides and, consistently with the above, stated that –
The Panel assessed Ms Asuramanage’s lumbosacral spine in accordance with Table 70 of Chapter Three and concluded that there are complaints and symptoms of pain with no clinical signs of ongoing lumbosacral spinal injury. The Panel therefore concluded that the appropriate impairment category for the lumbosacral spine is DRE Category I pursuant to Table 72 of Chapter Three, resulting in a whole person impairment of 0%. 
88	In light of the above, in my view –
(a)	while the panel did not refer directly to the reports and opinion of A/Prof Goldschlager, it is clear enough that it took account of the suggestion that ‘annular pathology’ could be or was implicated in the plaintiff’s presentation – which, it was submitted, was what the panel was bound to take into account;
(b)	further, the panel’s conclusion in respect of the condition of the plaintiff’s lumbosacral spine suggests that it considered at least the possibility that ‘annular pathology’ had been implicated in the plaintiff’s injury, although not in the impairment ultimately assessed (as the ‘soft tissue injury’ had subsequently ameliorated or healed);
(c)	in that regard, while the panel may have failed to refer to ‘one source of evidence’, it did not fail to take account of the relevant consideration (assuming for present purposes that it was ‘bound’ to take account of the suggested implication of ‘annular pathology’);
(d)	otherwise, consistently with the authorities to which I have referred, the panel formed its own expert opinion concerning the condition of the plaintiff’s lumbar spine; and 
(e)	by reference to that opinion, the panel assessed the plaintiff’s lumbosacral impairment pursuant to the relevant parts of section 3.3 of the Guides and considered the plaintiff’s impairment to fall within category DRE-I.
89	In short, the reasoning of the panel strongly suggests that even though it did not refer directly to the reports of A/Prof Goldschlager, it nonetheless took account of the suggestion that an annular tear or tears may have been or may remain implicated in the plaintiff’s complaints and symptoms.
90	It follows that –
(a)	the panel did not fail to take account of the alleged relevant consideration; and 
(b)	accordingly, ground 1 must be rejected.
F.	Ground 2: reasons
91	In light of the above, I cannot accept that there is any legal deficiency in the panel’s reasoning.  In particular, it seems plain enough how it was that the panel came to assess the plaintiff’s impairment as falling within category DRE-I.  No further explanation was required.
92	Consequently, ground 2 must also be rejected.
G.	Conclusion
93	The proceeding must be dismissed.
94	I will hear from counsel concerning the appropriate form of orders and any consequential issues that may arise.

SCHEDULE OF PARTIES

S ECI 2022 03309

BETWEEN:

WAJIRA NILMINI GUNATHILAKA ASURAMANAGE	Plaintiff	
		
- and -		
		
ANGLICAN AGED CARE SERVICES GROUP	First Defendant	
		
DR PALMYRA DE BANKS	Second Defendant	
		
A/PROF MICHAEL MURPHY	Third Defendant	
		
DR CAROLINE BRAND	Fourth Defendant	
		
DR JULIAN FREIDIN	Fifth Defendant	
		
DR PETER MILLINGTON	Sixth Defendant