IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
S ECI 2019  00776

STEVEN JOHN CHESTER	Plaintiff	
		
v		
		
H.H. WEBB & CO PTY LTD & OTHERS (ACCORDING TO THE SCHEDULE ATTACHED)	Defendants	

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JUDGE:	FORBES J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 May 2019	
DATE OF JUDGMENT:	21 June 2019	
CASE MAY BE CITED AS:	Chester v H.H. Webb & Co Pty Ltd & Ors	
MEDIUM NEUTRAL CITATION:	[2019] VSC 415	

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Alleged cervical and thoracic spine injuries and hand and finger injuries – Whether injuries a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease – Whether employment a significant contributing factor – Jurisdictional error – Error of law – Adequacy of Reasons – Ryan v The Grange at Wodonga  Pty Ltd [2015] VSCA 17 – Omerasevic v Kotzman [2016] VSC 383 – Masters v McCubbery [1996] 1 VR 635 – Kamener & Ors v Griffin & Ors (2005) 12 VR 192 – Karabinis v Bendrups & Ors [2017] VSC 648 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3(c),  39, 304, 313, 328, sch 1 pt 3 s 25.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	S Moloney with
P Czarnota	Saines Lucas Solicitors	
			
For the First Defendant	M Fleming QC with
F Spencer	IDP Lawyers	

HER HONOUR:
Introduction
1	Mr Chester is presently aged 58. He worked with H.H. Webb & Co Pty Ltd as a coffin maker from 1994 until he became incapacitated for that work in May 2016.  In March 2017, Mr Chester by his solicitors filed an application for serious injury pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) seeking a certificate of serious injury under s 328(2) of the Act.  A certificate was not granted and Mr Chester made a serious injury application in the County Court pursuant to s 335(2)(d) of the Act for leave to bring a proceeding claiming damages.
2	Mr Chester relied on an impairment of his spine and an impairment of his hands and fingers bilaterally as each satisfying the definition of serious injury.  In the serious injury application it was necessary for Mr Chester to establish the compensability of his injuries, his claims never having been accepted previously.  He had to establish that he had suffered an injury in accordance with s 39(1) of the Act which provides:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act. 
3	He had lodged two claims for compensation; the first on 6 April 2016 in relation to his hands and fingers and the second on 30 June 2016 in relation to his neck.  In both claims the injuries were described as occurring over a period of time as a result of the employment duties.  The employer’s agent rejected liability for both claims.  Those rejections were litigated and ultimately resolved by consent between the parties without any admission of liability.  Mr Chester made a claim for impairment benefits arising from those injuries, which was also rejected.  
4	The underlying injuries giving rise to the impairments were described as follows in the Particulars of Injury filed in the County Court:
 Injury to the cervical and thoracic spines;
Aggravation and/or exacerbation of cervical spondylosis;
Bilateral carpal tunnel syndrome;
Injury to both hands;
Aggravation and/or exacerbation of degenerative changes of the joints of the hands and fingers;
A1 pulley release surgery of the right middle finger; and
Pain and suffering.
These claimed injuries in the serious injury application included injuries that fell within the definition of injury under s 3(c) of the Act; that is, they included injuries that were ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’ (‘injury in the extended sense’).  If such injuries were established, their compensability required consideration of whether employment was a ‘significant contributing factor’ to that injury. 
5	The employer’s solicitors gave notice to refer questions to a Medical Panel for its opinion and referral by the Court was made on 6 August 2018. A panel was convened comprising Professor Malcom Sim, Dr Rani Axtens and Associate Professor Andrew Hardinge, the second, third and fourth defendants respectively in this proceeding (‘the Panel’).  The Panel formed its opinion and provided a Certificate of Opinion and Reasons for Opinion (‘Reasons’) both dated 20 December 2018.
6	Mr Chester brings this proceeding pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 seeking an order in the nature of certiorari quashing the Certificate of Opinion and remitting the medical questions to a differently constituted Medical Panel.  He contends that the Panel has committed jurisdictional error and/or error of law, failed to accord procedural fairness and that the reasons provided pursuant to s 313(2) of the Act are inadequate.  The employer defendant (‘the defendant’) opposes the relief sought. The Medical Panel defendants as is usual in such reviews did not participate in the proceeding and will abide by the outcome. 
The questions referred to the Panel and its Reasons
7	No less than 10 questions were referred to the Panel canvassing questions that went to identification of injury, suitable employment and capacity for employment.  Ultimately, because of the way that the Panel answered questions 1 and 2, no further questions were answered.
8	The questions asked and the answers given in the Certificate of Opinion were as follows:
1.	What is the nature of any medical condition of the Plaintiff’s:
(a)	cervical spine;
(b)	thoracic spine;
(c)	hands and fingers?
Answer:
In the Panel’s opinion, Mr Chester is suffering from constitutional degenerative disease of the cervical and upper thoracic spine and generalised constitutional osteoarthritis of the fingers of both hands. Mr Chester has had previous bilateral carpal tunnel syndrome and trigger finger which have been surgically treated and are all fully resolved.
2.	Was the Plaintiff’s employment with the Defendant, or could it possibly have been, a significant contributing factor to the alleged:
(a)	cervical spine injury;
(b)	thoracic spine injury;
(c)	injury to both hands and fingers?
Answer:
In the Panel’s opinion Mr Chester’s employment with the defendant was not and could not possibly have been a significant contributing factor to any of the alleged injuries to the cervical spine, thoracic spine or hands and fingers.
9	The referral documents included a joint statement pursuant to s 304(a) of the Act.  In relation to the work performed by Mr Chester as a coffin maker the parties agreed that the duties he performed are as set out in his affidavits.  Those agreed facts also set out the two bases for rejecting the compensation claim. The first was that the worker had not sustained an injury arising out of or in the course of his employment, and secondly, if he had sustained injury, then employment was not a significant contributing factor to that claimed injury.  The material provided to the Panel accompanying the referral included two affidavits of the plaintiff sworn in relation to his serious injury application, submissions by both worker and employer, and a suite of medical reports from treating doctors and medico-legal examiners.  
10	The Reasons of the Panel comprise some five and a half pages.  The Panel set out in the Reasons the chronology of statutory claims and the decisions to reject, and the chronological history of the serious injury application.  It recorded the alleged injuries being to ‘his cervical and thoracic spines, both hands, the joints of his fingers and bilateral carpal tunnel’.  It identified the issues in dispute and the reason for referral as:
medical questions related to Mr Chester’s medical conditions relevant to the claimed injuries, whether his employment with the Defendant was a significant contributing factor and, if so, whether any medical condition continues to result from or is materially contributed to by his employment, whether the medical conditions are permanent, and whether Mr Chester has an incapacity for work or no current work capacity and, if not, if this is permanent. 
11	The Panel noted Mr Chester’s various work tasks, predominantly using a sander between 1994 and 2003 and then a router from 2003.  It recorded that the description of his duties given at interview by the worker was consistent with his affidavits.  It recorded that the router work ‘was mainly done below shoulder height’.  The plaintiff takes issue with this particular aspect of the recorded history given by the plaintiff and this will be dealt with below. 
12	The Panel recorded the onset of symptoms in the neck from about 2012, gradually worsening over time, and symptoms in the hands from 2014. It set out the investigations and treatment for each. It conducted its own physical examination.  
13	The Panel’s conclusionary paragraphs are as follows: 
The Panel took note of Mr Chester’s history of gradual onset of pain in the neck since about 2012 and pain in both hands and fingers since about 2014, the findings on physical examination and imaging findings consistent with multilevel degenerative changes in the cervical and upper thoracic spine and several joints in the fingers of both hands and concluded that Mr Chester is suffering from constitutional degenerative disc disease of the cervical and upper thoracic spine and generalised constitutional osteoarthritis of the fingers of both hands.
The Panel also concluded that Mr Chester’s previous diagnosis of bilateral carpal tunnel syndrome (confirmed on nerve conduction studies) and trigger finger have been surgically treated and are all fully resolved. 
The Panel took note of the factors to be considered under Section 5(1B) of the Act when considering whether employment is a ‘significant contributing factor’ to an injury. 
The Panel took note of the tasks undertaken by Mr Chester as a coffin maker since 1994, initially as a hand sander until 2003 and then as a router operator, the gradual development of pain in his neck and hands/fingers since about 2012 and 2014 respectively, the lack of any specific incidents in the workplace relating to his neck or hands/fingers and the multilevel changes in his cervical and upper thoracic spine and several fingers of both hands, which the Panel considers is consistent with constitutional degenerative changes, and concluded, despite the work tasks involving regular, sustained, repetitive and often awkward lifting over many years, that Mr Chester’s employment with the Defendant was not and could not possibly have been a significant contributing factor to any of the alleged injuries to the cervical spine, thoracic spine or hands and fingers. 
Grounds of Appeal
14	The plaintiff has 5 grounds of appeal.  They are:
i.	That the Panel failed to ask itself the right question. He alleges that the Panel failed to identify whether it found any injury of the type to which the test of ‘significant contributing factor’ fell to be applied.  In its approach it simply applied the significant contributing factor test to the conditions as found, missing a critical step and thereby fell into jurisdictional error. 
ii.	That  in determining whether employment was a significant contributing factor to any injury in the extended sense, the Panel did not consider all of the factors that must be taken into account under Schedule 1, Part 3, s 25 of the Act.   Consideration of such factors was mandatory, and by failing to have regard, in particular to (d) ’the probable development of the injury occurring if that employment had not taken place’, the Panel had failed to have regard to relevant considerations and thereby fell into jurisdictional error.  
iii.	That the Panel’s decision was irrational, illogical, unreasonable or lacking intelligible justification.
iv.	The Panel failed to accord the worker procedural fairness.
v.	The Panel’s reasons, provided pursuant to s 313(2) of the Act, were inadequate and as such there is an error of law on the face of the record. 
Ground I: Did the Panel fail to ask itself the right question?
Principles
15	If the Panel fails to address the fundamental issues that will enable it to answer the questions referred to it, then it fails to have regard to a mandatory consideration which materially affected its decision.  A failure to ask the right question, or to determine the fundamental issues necessary for consideration of the medical questions leads to the Panel failing to fulfil its statutory function of forming its opinion on the referred medical questions.  The identification and consideration of fundamental issues was explored recently in Ryan v The Grange at Wodonga Pty Ltd.  There, the Medical Panel had identified the relevant injury as an aggravation of pre-existing degenerative changes in both shoulders.  The Panel was asked the medical question ‘Is the worker capable of performing her pre-injury duties?’  In answering this question, given the nature of the injury identified, the Court held that the Panel was required to, but did not, consider the risk of recurrence posed by a return to the duties that had caused the original injury.  
The parties’ submissions
16	The plaintiff submits that the Panel failed to consider whether or not there was an injury in the extended sense within the meaning of s 3(c) of the Act.  He  says that the Panel clearly found pre-existing conditions which were constitutional namely cervical degenerative disc disease and osteoarthritis of the fingers.  However, it did not consider whether those conditions had worsened during the period of employment in one or more of the ways contemplated by s 3(c) thereby resulting in an injury, the compensability of which fell to be determined by applying the ‘significant contributing factor’ test.  
17	In its submissions the defendant conceded that if the Panel did not consider or address whether the plaintiff had suffered an injury in the extended sense with respect to his cervical spine or hands then it would make a jurisdictional error.  The defendant submitted however, that the Panel did not overlook this task.  It points to six reasons why it is clear that the Panel did consider the question of whether an ‘extended injury’ as defined by s 3(c) had occurred. Those six reasons may be summarised as: 
(a)	The form of the questions and identification of injury, particularly in the Draft Statement of Claim that accompanied the serious injury application and the Particulars of Injury before the County Court specifically identified injuries in the extended sense; 
(b)	The second question could only apply to extended injuries as found and the Panel are to be taken to have understood the language of the Act;
(c)	The medical reports before the panel included opinions relying on aggravation injuries which were compensable;
(d)	The Panel in terms made reference to reports such as that of Mr O’Brien who had concluded that neck pain was due to an aggravation of pre-existing spondylosis and that his employment has been a significant contributing factor, and expressly disagreed with that opinion; 
(e)	The plaintiff’s submissions to the Panel identified aggravation injuries; 
(f)	The language of the Panel’s conclusion in deciding whether the constitutional conditions were legally worsened by the employment make specific reference to s 5(1B) and should be understood as the Panel applying this test to relevant aggravation injuries. 
The defendant submitted that it was ‘an inescapable inference’ that the Panel dealt with an aggravation type injury and thereby did not ask itself the wrong question.  
Analysis
18	In this case the history obtained by the Panel from Mr Chester, was of neck symptoms from 2012, increasing while continuing in work, and of pins and needles in both hands associated with numbness pain and swelling from 2014.  He had time off work associated with carpal tunnel surgery on the left hand in July 2015 and on the right in August 2015 and subsequently resumed work.  He continued in that work until May 2016.  The affidavit material set this out detailing worsening of symptoms (other than those alleviated by surgery) during the period of continued employment. The conclusion reached by the Panel as to the two constitutional conditions is not qualified by any opinion as to whether or not the onset of neck symptoms from 2012 and the onset of hand symptoms from 2014, or the worsening of symptoms during continued employment (a history it accepted) represented a progression of the constitutional diseases by way of aggravation, acceleration, exacerbation or deterioration of those conditions.  It is no answer to say that the radiological changes and pain and other symptoms are ‘consistent’ with such constitutional changes without making comment on whether or not there has been progression of those conditions occurring during the period of employment alleged.  That is a different inquiry from whether or not employment has been a significant contributing factor to such a progression.
19	The defendant rightly characterises the exercise of identifying the question that the Panel asked itself as one of inference.  Neither the questions posed to it nor its own findings and explanation for those findings make any reference at all to the words characterising injury in the extended sense.  Nor do they express a view about the onset and continuation of symptoms in previously asymptomatic constitutional conditions to know whether it thought the pre-existing conditions had been, on balance, exacerbated, aggravated, or had deteriorated by those developments.  This was to be identified before the question of whether or not work had significantly contributed to those developments fell for consideration.
20	Unhelpfully, the only reference to the effect on a pre-existing condition is in the Panel’s reference to Mr O’Brien’s opinion.  Mr O’Brien’s opinion was in two parts: (1) that neck pain was due to aggravation of pre-existing spondylosis and (2) that employment has been a significant contributing factor to that aggravation.  The Panel clearly disagreed with Mr O’Brien on the question of significant contributing factor but failed anywhere in its Reasons to identify what injury it was relevantly applying that test to. Equally unhelpfully the Panel appear to have applied the ‘significant contributing factor’ test to all injuries found by it.  It is at least implicit, but not explicit in the Reasons that the resolved trigger finger and carpal tunnel injuries were not injuries in the extended sense. If so, then no consideration of ‘significant contributing factor’ arose.
21	The defendant relied on Karabinis v Bendrups & Ors.  The Medical Panel’s Reasons for Opinion in Karabinis responded to two medical questions.  Unlike this case, the questions themselves made explicit that the second question going to significant contributing factor, was to be answered only if the worker’s condition was relevant to an injury in the extended sense.  The Medical Panel’s conclusion, was that Ms Karabinis’ present condition was due to a constitutional unresolved soft tissue injury and not due to any worsening of a pre-existing injury or disease.  Hence the Medical Panel answered the second question in the negative.  Importantly, going to the adequacy of the reasons and not questions of error of law, the Medical Panel’s description that the ‘workers physical condition was not affected in any way by employment’ satisfied the judge that this demonstrated that the Medical Panel had considered injury both in the primary and extended way.  Properly understood the Medical Panel ultimately concluded that there was no compensable injury. 
22	It is clear that the Panel identified constitutional conditions that were by definition pre-existing.  It also identified the development of carpal tunnel syndrome and a trigger finger condition which were not described as pre-existing.   If the Panel had in some explicit way exposed a link between those pre-existing conditions it identified and the way it saw either or both of those conditions relevantly worsening during the period of employment,  it would be possible to understand that there were extended injuries to which the further test imposed by Schedule 1, Part 3, s 25 of the Act had to be applied.  Then, it would be clear that the Panel would have asked itself the correct question.  
23	I am therefore satisfied that the Panel has fallen into jurisdictional error by failing to ask itself the necessary question  of whether and what injury within the definition of s 3(c) had been sustained.  
Ground V: Inadequate reasons
24	The plaintiff’s fifth ground of review is that the Panel’s reasons, as required by s 313(2) of the Act are inadequate and as such constitute error of law on the face of the record.  
Principles
25	The parties both submitted that the relevant standard of reason was 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 of certiorari can be made removing the legal effect of the opinion.
26	The plaintiff submitted that there was no identification of whether there had been an exacerbation or aggravation of the constitutional condition and so one was left to engage in speculative gap filling. The defendant submitted that the Panel’s reasons disclosed consideration of the nature and duration of work tasks and specifically noted the factors that it took into account.  In those circumstances the Panel was not required to provide further detail to explain why it did not accept that there were compensable injuries to the spine or hands. 
Analysis
27	The reasons are sufficient to disclose a failure to articulate whether there were injuries that required a consideration of the test of significant contributing factor to determine compensability. However, even if injury in the extended sense could be inferred, as the defendant argued, the Reasons do not disclose the reasoning used by the Panel to determine why employment was not and could not possibly have been a significant contributing factor to such injury.  
28	If there was injury in the extended sense, the central issue between the parties was whether or not work had relevantly contributed to that and whether it still contributed to it.  The medical opinions before the Panel included:
(a)	Treating doctors who described work related overuse tendonitis and arthritis of the hands and a pre-existing neck condition (Dr Sanderson), a trigger finger due to the involvement of work (Mr Csongvay), a carpal tunnel syndrome bilaterally (Dr Sanderson). 
(b)	Dr Davison whose view was that the hand injuries were new conditions and not pre-existing. On the basis that the work duties were not forceful or sustained (in his view), the carpal tunnel syndrome was not caused by employment and the osteoarthritis was a deteriorating condition not caused by work nor aggravated nor accelerated by work.  Nevertheless Dr Davison thought that there should be a restriction of work activities to reduce the risk of symptomatic exacerbation.  
(c)	 Dr Littlejohn held the view that employment did not significantly contribute to the onset of the hand and neck conditions and their progression was not adversely impacted by work. Nevertheless tasks that put pressure on his hand joints and prolonged postural constraints of his neck is said likely to be problematic for him. 
(d)	Dr Gurgo who held the view that there was an exacerbation injury to the neck to which work was a significant contributing factor, but the work contribution to that exacerbation had been temporary. 
(e)	Mr O’Brien whose report explicitly set out the two steps relevant to compensability of injuries within the meaning of s3(c), and Dr Kennedy who referred to the worsening occurring during the period of continued work after onset in dealing with the test of significant contributing factor. 
29	It can be seen that there was a variety of medical opinion both as to the description of injury and the approach to determining compensability.  The Reasons on their face apply the significant contributing factor test to all injuries that the Panel identified.    The Panel having listed the work tasks, the gradual onset of symptoms, the absence of any specific incident, the presence of radiological changes in the spine and fingers, concluded that 
despite the work tasks involving regular, sustained, repetitive and often awkward lifting over many years, … Mr Chester’s employment with the Defendant was not and could not possibly have been a significant contributing factor to any of the alleged injuries to the cervical spine, thoracic spine or hands and fingers.  
30	The conclusion arrived at is qualified as being ‘despite’ the accepted nature and duration work tasks which had each of the features of being regular, sustained, repetitive  and awkward.  Absent from the Reasons is any explanation as to why it was that such work did not relevantly worsen the condition, including the continuing period of work after onset of symptoms.  The listing of factors leading to a bald conclusion that work was not a significant contributing factor to any of the claimed injuries required some explanation given the Panel’s qualification. 
31	Accordingly I also would uphold the Inadequate Reasons ground. 
32	Although it is not necessary for the disposal of the proceeding to consider the further grounds of review I will briefly comment on them as substantive argument was directed to each ground. 
Ground II: Error in the application of the ‘significant contributing factor’ test
33	The plaintiff submitted that the Panel failed to have regard to a mandatory consideration in answering question 2. A decision maker is required to engage properly with mandatory considerations.  The seven factors listed at (a) to (g) of s 25 of Part 3 of Schedule 1 of the Act are factors which must be taken into account to determine whether or not employment is a ‘significant contributing factor’ to a relevant injury. 
34	The plaintiff in his submissions accepts that the Panel’s reasons engage with factors (a), (b) and (c) going to ‘significant contributing factor’,  but took issue with a lack of consideration of factor (d).  The plaintiff relies on a failure to consider the probable development of the injury occurring if that employment had not taken place as required by (d).  
35	This submission relied on reasoning in Sensis Pty Ltd v Jones where Justice Ginnane held that a Panel, in considering a cervical disc prolapse caused by a work incident (the sudden onset of symptoms when twisting her upper body and head), did not properly consider whether or not the underlying condition would have progressed to prolapse if there had been no employment with Sensis Pty Ltd.  On those facts and as set out in those Reasons for Opinion, his Honour found that the Panel appears to have confined itself impermissibly to conclude that the injury ‘was caused only by the work incident without considering the opinions that suggested there may have been the influence of a pre-existing condition’.  
36	The defendant submits that the reasons on their face make reference that the Panel ‘took note of the factors to be considered under s 5(1B) of the Act’ and it would be unsustainable to go behind the express words of the Panel and regard it as not having done that which it said it did.   The defendant submits that the mere fact that the Panel has not set out the seven mandatory matters and made express reference to each of those seven matters does not entitle a Court to conclude that one or some of the matters were not properly considered.  
Analysis
37	It is not sufficient for a Court to interfere with the Panel’s decision that the possibility of a failure to consider a mandatory consideration is demonstrated.  Nor is it sufficient to show that the matter was not accorded appropriate weight.  It must be shown that the Panel in fact failed to consider the mandatory matter. 
38	It is clear in my view that the Panel did direct its mind to identifying underlying conditions. It expressly stated them in answer to question 1.  It drew together the history of onset of symptoms, the radiological findings and the examination findings to identify those constitutional conditions.  Explicit in the Reasons is the conclusion that the plaintiff’s present condition is consistent with those underlying conditions.  Implicit in that conclusion is a consideration of the development of those underlying conditions.   The Panel’s failure in this case was a failure to look at whether or not the progression of those conditions had been influenced so as to give rise to an injury. 
39	I do not accept that, the Panel having identified the factors and made express reference to some of those factors, the plaintiff has made out a failure to consider a mandatory matter.  This ground is not made out.
 Ground III: Illogicality, Irrationality and Unreasonableness 
40	The plaintiff alleges that the Panel’s determination is amenable to review on the basis that it is unintelligible, irrational, illogical and unreasonable.  The defendant does not concede that such a ground of judicial review is available in this matter.    
41	The High Court in Minister for Immigration and Citizenship v SZMDS considered illogicality and irrationality could lead to judicial review where it was concerned with the existence of a jurisdictional fact — that is, a fact necessary to be found in order to exercise jurisdiction.  The test of irrationality is stringent, separate from but equivalent to the demanding standard of Wednesbury unreasonableness.  Not every lapse in logic will lead to jurisdictional error, and not every fact will amount to a jurisdictional fact.  Subsequently Minister for Immigration and Citizenship v Li held that a discretionary power exercised unreasonably amounted to error.   
42	In Ryan at trial, Kyrou J assumed without deciding that Australia now recognised irrationality as a separate ground for administrative review, but found that such a ground was not made out.  On appeal the extent to which such a ground is available for deficient fact finding, as distinct from exercising a discretion,  was noted to remain a matter of considerable debate.  
43	The plaintiff here submits that the clinical judgment of the Panel was a finding of fact  that was amenable to review on the ground of irrationality. He submitted that the failure of the Panel to anchor its conclusion of no injury to a reasoned factual basis, amounted to an illogical conclusion. 
44	The defendant submits that the ground of illogicality, if it is available, is likely to be confined to exercise of a discretionary power and not, or only cautiously, to be applied to a fact finding exercise such as that which the Medical Panel is undertaking.   It says that the Panel in asking itself whether or how a condition may be affected by employment is a quintessential question of fact on which reasonable minds can and do differ.  Therefore, it submits the fact finding is not directed as a threshold question which must be determined in order for the Panel to exercise its jurisdiction. 
Analysis
45	In this case the Panel had to exercise clinical judgment in determining questions about medical conditions relevant to injury and its causes.  The identification of an injury may be the very question which the Panel is tasked with conclusively resolving.  Even if its clinical judgement was amenable to review on the ground of illogicality or irrationality, the Panel’s bare conclusion that employment was not a significant contributing factor to such injuries as it found was not illogical or irrational. 
46	The fact that the process of reasoning may have been opaque or that it may have asked itself the wrong question does not necessarily lead to the conclusion that the Panel’s answer was irrational or illogical.  If the ground is available, a question it is not necessary for me to decide, it would not succeed. 
 Ground IV: Procedural Fairness
47	The plaintiff submits that the Panel failed to accord procedural fairness in two particular ways.  First, he submits that in finding that the plaintiff’s work ‘was mainly done below shoulder height’ the Panel proceeded on an incorrect impression of the work duties.  The defendant says that this description is included by the Panel when dealing with the history obtained by the Panel from Mr Chester and is not inconsistent with the other material detailing the agreed work duties.  
48	The agreed description of the work duties contained in the affidavits  described lifting items to and from racks, initially ‘from knee height to about head height’, then from 2015 with the introduction of racks ‘some well above head height’ which required use of a step ladder. Implicitly the provision of a step ladder to reach racks above head height is to reduce the overhead reaching associated with use of those racks.   The emphasis in the submissions made to the Panel on behalf of the worker emphasised the awkward lifting and manhandling, the protracted period of time and absence of rotation, and the heavy and repetitive nature of the tasks.  The Panel expressly stated that it accepted all of those matters.  I am not satisfied that the description by the Panel as to the tasks was incorrect or that it proceeded on a basis other than as agreed by the parties. 
49	Secondly the plaintiff contends that the Panel failed to accord him procedural fairness by not being afforded the opportunity to address a finding that the work ‘could not possibly’ have been a significant contributing factor to an injury.  In essence he argues that the conclusion ‘came out of the blue’.  
50	I disagree.  The question that was sent to the Panel specifically asked whether employment was, or could possibly have been, a significant contributing factor.  The medical material provided to the Panel included opinions concluding that some medical conditions, however described, were not influenced by work at all.  The plaintiff addressed submissions to the reasons why those opinions should not be accepted.  It cannot be said that the Plaintiff was taken by surprise by any conclusion that work had no bearing or could not possibly have been of significant contribution to the evolution of the neck and finger conditions. 
Conclusion
51	Accordingly, as grounds I and V are made out, it is appropriate to quash the opinion of the Medical Panel dated 20 December 2018 and refer the questions back to a differently constituted Medical Panel. 
52	I will hear the parties on the question of costs. 
53	

SCHEDULE OF PARTIES

Steven John Chester	Plaintiff
H.H. Webb & Co Pty Ltd	First Defendant
Professor Malcom Sim	Second Defendant
Dr Rani Axtens	Third Defendant
Associate Professor Andrew Hardridge	Fourth Defendant