IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2021 01189

SHAWN SOOHYN YUM	Plaintiff	
		
v  		
		
DR JACK OWCZAREK	First Defendant	
		
ASSOCIATE PROFESSOR MICHAEL MURPHY	Second Defendant	
		
MR ROBERT PIANTA 	Third Defendant	
		
TOSAMI PTY LTD 	Fourth Defendant	

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JUDGE:	O’Meara J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	13 May 2022	
DATE OF JUDGMENT:	26 May 2022	
DATE R-ISSUED:	3 June 2022	
CASE MAY BE CITED AS:	Yum v Owczarek & Ors	
MEDIUM NEUTRAL CITATION:	[2022] VSC 262	

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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Plaintiff’s medical condition and whether proposed surgery ‘appropriate’ – Whether medical panel opinion affected by jurisdictional error and/or legally unreasonable – Whether consideration given to and ‘engagement with’ radiology including ‘screenshot’ of MRI images – Dordev v Cowan [2006] VSCA 254 and Sidiqi v Kotsios [2021] VSCA 187 considered – Whether medical panel failed to afford procedural fairness – Proceeding dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	PA Czarnota with L Burke	Shine Lawyers	
			
For the Fourth Defendant	CM Harris QC with FL Batten	IDP Lawyers	

HIS HONOUR:
A	Background
1	On 17 October 2019, in the course of his employment, the plaintiff slipped and fell while climbing down from a forklift.  He was treated at the Alfred Hospital and underwent investigations including a CT brain and cervical spine dated 17 October 2019 and MRI cervical spine dated 18 October 2019.  Among other things, the latter recorded –
There are multilevel bilateral neural exit foraminal stenoses secondary to a combination of uncovertebral and facet joint arthropathy.  Of note, there are severe left C5-6, bilateral C6-7 and bilateral C7-T1 foraminal stenoses.
2	In neither report did the radiologist express the opinion that there was any compression of the nerve roots.
3	The plaintiff subsequently lodged a form claiming worker’s compensation that identified the following injuries –
Big Pain, can’t rotate (turn) my neck properly.
Neck, Shoulder, Back and Numbness on my left hand’s thumb, index and middle finger.
4	The claim was accepted.
5	On 1 April 2020, Mr Yagnesh Vellore, neurosurgeon, wrote to the claims agent seeking approval to conduct neck surgery in the nature of anterior cervical discectomy and three level fusion with intersegmental fixation.  Among other things, he identified the presentation as ‘severe left-sided radiculopathy’ and, in respect of management, stated –
I saw Shawn today. We had a  Skype consult today in  light of  the coronavirus situation.  He is a 61-year-old gentleman who had a fall off a forklift in  October 2019 injuring his  neck and back.  He was admitted to The Alfred Hospital and  was cleared of  any  acute spinal trauma at that stage.  He had progressive onset of pain and weakness in his neck and left arm thereafter which continued to worsen. He has not had any improvement. He also developed some weakness in  his  left leg, according to  him. He does not  have any sphincteric disturbance as such. 
Review of his MRI scan performed at The Alfred Hospital demonstrates C5-C6, C6-C7 and C7-T1 canal stenosis with left-sided foraminal stenosis of a severe in nature impinging on C6, C7 and C8 nerve roots respectively.
6	Mr Vellore stated that he had explained the findings to the plaintiff as well as the treatment options.  The plaintiff had opted for surgery.  Mr Vellore said that he had presented the plaintiff with a brochure explaining the risks, benefits, alternatives and indications of the surgery.  
7	The agent obtained the opinion of Mr Roy Carey, consultant orthopaedic spine surgeon.  His report is dated 20 May 2020.  The material provided to Mr Carey included the report of Mr Vellore.
8	Mr Carey recorded that the plaintiff had attended his rooms for examination.  Mr Carey took a history of neck pain, including pain ‘moving all over’, but affecting primarily the base of the neck.  The plaintiff complained of ‘constant altered feeling’ and ‘numbness’ in his left hand.  
9	Mr Carey examined the plaintiff walking, the range of his shoulder and neck motion, considered what movements correlated with symptoms, examined for wasting or ‘radicular weakness’, including the plaintiff’s reflexes, and considered any limitations in sensation.
10	Mr Carey reported that he had been unable to access the imaging undertaken at the Alfred Hospital.  Mr Carey referred to the CT scan and MRI scan reports.  He recorded those investigations as describing no acute injury, but long term degenerative change producing mild to moderate central canal stenoses.  
11	Mr Carey stated his opinion as follows – 
I am unable to offer a  useful opinion as to the  appropriateness or otherwise of the surgery requested. 
Primarily, this is because the request was made on the basis of a Skype consultation, with no physical examination by the requesting surgeon recorded. 
Further, I am unable to access any imaging myself, and the imaging reports contained in the enclosures do not indicate an acute injury.
12	Mr Carey stated that he had not detected any symptoms of a ‘radicular distribution’ and that the plaintiff did not have any symptoms or signs of cervical myelopathy.  In the circumstances, he said –
I could not find a clinical reason to suggest decompressive surgery of any type.  
13	Mr Carey stated further that he could not see why it was that a face-to-face appointment could not have been made in order that –
the proposing surgeon would have an opportunity to obtain not only a history, but also a physical examination which I would have thought still remains mandatory in assessment, particularly if specific surgeries are involved.  
14	Mr Carey also could not see any reason why further non-operative treatments could not be trialled, including interventional pain therapies.
15	The agent provided that report to Mr Vellore, who responded by letter dated 9 June 2020.  Mr Vellore referred to ‘severe cervical radiculopathy’ and ‘nerve compression’.  He said that the plaintiff had complained to him of ongoing pain and weakness down his left side and that ‘this was a clear cut indiction [sic: indication] for surgery’.
16	Mr Vellore took issue with the fact that Mr Carey had not seen the plaintiff with an interpreter.  He also said that Mr Carey had not ‘visualised’ the MRI films.  In that connection, he stated – 
I have personally visualised these films and in fact I have attached a screenshot of the relevant pictures showing the compression at C5/6, C6/7 and C7/T1 levels.
17	Mr Vellore said that a ‘face-to-face consult’ had not been conducted ‘due to the COVID-19 situation’.  He said further that he did not believe that such a consultation would add any further information as the plaintiff had been examined by a neurologist who had undertaken nerve conduction studies (Dr Gorai).  
18	Mr Vellore went on to say that the nerve conduction studies had been ‘completely misinterpreted’ by Mr Carey.  Mr Vellore concluded by again expressing his opinion that –
the patient should proceed with the surgery and the surgery should be approved as in the absence (sic) in decompression of his nerves he will continue to have pain and progressive weakness from his radiculopathy.
19	As earlier noted, the letter attached a ‘screenshot’ of what Mr Vellore described as being the ‘relevant pictures’.
20	The letters of Mr Vellore and Dr Gorai were provided to Mr Carey.  He responded by letter dated 6 July 2020.  He re-confirmed the basis upon which his opinion had been expressed.  He otherwise referred back to his observations that he could not understand why a face-to-face appointment had not been organised and that he regarded a physical examination as mandatory.  In that connection, he stated –
the proposing surgeon may well be able to justify the request for this quite extensive cervical surgery on the basis of incorporating the results of a full physical examination into the clinical assessment.
21	The claims agent rejected the request for surgery by letter dated 15 October 2020. Among other things, the agent stated –
Allianz has reviewed your claim history and information and accepts the professional opinion of Mr Carey and therefore is unable to approve the request for surgery because there is no evidence of specific radiculopathy in the medical imaging and no clinical reason for surgical intervention.  Further non-operative treatments should be trialled and Allianz has approved a pain management program to support this.
22	Mr Vellore wrote to the solicitors for the plaintiff by letter dated 7 December 2020.  He referred to the ‘Skype consult’ with the plaintiff.  The letter did not refer to any face-to-face consultation.  In summary, Mr Vellore stated –
Mr Yum has C5/6 and C6/7 and C7/T1 canal stenosis with foraminal stenosis requiring surgical intervention.  The proposed treatment is C5/6, C6/7and C7/T1 anterior cervical discectomy and fusion with intersegmental fixation.
23	By referral dated 21 December 2020, a conciliation officer referred two questions to a medical panel.  
24	A medical panel was assembled comprising the first, second and third defendants – a general practitioner, neurosurgeon and orthopaedic surgeon.  The panel was provided with various material, including the letters and reports of Mr Vellore and Mr Carey to which I have earlier referred.
25	On 11 February 2021, the panel examined the plaintiff with the assistance of a professional interpreter.
26	On 21 February 2021, the panel issued its certificate of opinion, which stated, relevantly, as follows –
Question 1.  	What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury? 
Answer: 	The Panel is of the opinion that the worker is suffering from an aggravation of pre-existing cervical spondylosis with symptoms referred to left upper limb, but without radiculopathy. 
Question 2.  	Do  you consider the  proposed medical services appropriate for the  worker’s injury and/or condition: 
(i)  C5-C6, C6-C7, C7-T1 Anterior Cervical Discectomy and Fusion 
Answer: 	No.
27	In its written reasons, the panel referred to the letters and reports of Mr Vellore and Mr Carey.  The panel noted that the agent had determined not to pay for the requested surgery because there was ‘no evidence of specific radiculopathy in the medical imaging and no clinical reason for surgical intervention’.  
28	In that connection, the panel referred to the opinion of Mr Carey and his view that the imaging reports suggested ‘long term degenerative change only’.  In particular, the panel stated that Mr Carey –
could not find a clinical reason to suggest a decompressive surgery of any type, and there was no absolute indication for surgical intervention.
29	The panel thereafter referred to the plaintiff’s dispute of the decision and reliance upon the opinion of Mr Vellore, which the panel summarised as follows – 
•	letter dated 1 April 2020 stated that, based on a Skype consultation (conducted in  view of  the  coronavirus pandemic), Mr  Yum presented with severe left sided radiculopathy with weakness, with C5-C6, C6-C7, C7-T1 disc osteophyte from work-related neck injury, and proposed a  C5-C6, C6-C7, C7- T1  ACDF; 
•	in his letter dated 9 June 2020 stated that the proposed procedure was warranted based on the ongoing complaints of pain and weakness on  the left side; 
•	in his letter dated 7 December 2020 stated that Mr  Yum had C5-C6, C6-7 and C7-T1 canal stenosis with  foraminal stenosis, requiring surgical intervention.
30	Thereafter, the panel recorded the history taken and summary of circumstances, including the plaintiff’s Skype consultation with Mr Vellore.  In that regard, the panel stated – 
Mr Yum consulted neurosurgeon, Mr Yagnesh Vellore, via Skype. He was advised that he had three degenerated discs at C5/C6, C6/C7 and C7/T1 levels and narrowing of the “spinal cavity”. He was advised that spacers should be inserted between the discs to hold his spine in position. The operation was to be undertaken from the front of the neck. 
The Panel asked Mr Yum about his  expectations. Prior to the  injury, he was able to climb ladders 60 times per day or more. He was able to do push-ups, handle a sledgehammer and lift up to 40  kilograms. Mr Yum hopes to return to the pre-injury functional status following his operation, although he is  aware that the pain may not be treated completely. He expects to  achieve about 80% improvement in pain, movement and strength. 
Mr  Yum demonstrated reasonable understanding of  the potential side-effects, however he did not discuss his smoking history with the surgeon.
31	The panel summarised the plaintiff’s present symptoms, limitations and functional capacity, treatment and other medical history, including the fact that he smoked between five and seven cigarettes per day.
32	The panel then recorded the results of a physical examination, including the following – 
Cervical spine: 
•	spinal alignment was normal; 
•	Mr Yum had a short neck; 
•	the Panel noted mild to moderate, symmetrical restriction in the active range of movement in the cervical spine; 
•	there was no  evidence of  muscle spasm. 
Neurological findings: 
•	in the upper extremities: 
º	motor function:
▪	there was normal muscle tone, bulk and power; 
º	sensation:
▪	there was patchy sensory alteration affecting the left  hand which the Panel considered was non-organic in nature and did not represent a radiculopathy or myelopathy; 
º	reflexes: 
▪	deep tendon reflexes were present and of normal amplitude; 
º	provocation tests: 
▪	Phalen’s and Tinel’s tests at both wrists were normal.
33	As to imaging, the panel recorded that no medical imaging investigations had been presented for viewing, but that the referral material contained the imaging reports.  
34	The panel thereafter referred to the results of the imaging reports to which I have earlier referred and recorded its view that ‘no further investigations are required in order for the panel to assess Mr Yum’s physical medical condition and to answer the medical questions’.
35	The panel then stated its analysis and conclusions as follows – 
The Panel considered the documents and material the parties relied on  (summarised in  the  introduction above) but  formed its  own opinion on  the  medical questions. 
Physical diagnosis 
The Panel concluded that Mr Yum is suffering from an aggravation of  pre-existing cervical spondylosis with symptoms referred to left upper limb, but without radiculopathy. 
The Panel makes no findings regarding Mr Yum’s lower back condition as this is not a subject of this Referral, except for stating that in the Panel’s opinion his lower back and lower limb symptoms are unrelated to the degenerative cervical spine condition. 
Proposed surgical treatment 
The Panel noted that Mr Vellore requested approval for  C5-C6, C6-C7, C7-T1 ACDF. 
The Panel referred to its own examination of Mr Yum which revealed no  clinical evidence of  radiculopathy or myelopathy. The Panel considered that MRI imaging investigation of the cervical spine demonstrated multilevel degenerative changes but there was no evidence of cord compression or any other neural compromise. 
The Panel further considered that Mr Yum did not undergo any diagnostic cervical spine injections to  help localise the source of his neck pain and referred symptoms. 
The Panel considered that Mr Yum’s expectations of the surgery were unrealistic as in the Panel’s opinion a return to any semblance of  his  pre-injury functional status was very unlikely. The Panel is also of the opinion that the  proposed surgery is not likely to improve Mr Yum’s neck and referred pain. 
The  Panel also considered the nature of the proposed surgery which in the  Panel’s opinion carries not an insignificant risk of complications. The Panel also considered that Mr Yum’s short neck would make access to the C7/T1 segment difficult, increasing the  risk of recurrent laryngeal nerve palsy, which could result in permanent voice alteration. The Panel noted that Mr  Yum is  a  smoker and the  Panel considered that cigarette smoking is known to delay healing and complicate a recovery from spinal surgery. 
The Panel concluded that C5-C6, C6-C7, C7-T1 Anterior Cervical Discectomy and Fusion is not an appropriate medical service for Mr Yum’s injury and/or condition. 
DISCUSSION OF  CONTRARY OPINIONS 
The Panel noted the opinion of Mr Vellore outlined in the Introduction section but took a different view regarding the appropriateness of the proposed surgery for the reasons stated above.
B	The present proceeding and further material 
36	By further amended originating motion, the plaintiff seeks an order in the nature of certiorari quashing the opinion of the medical panel and an order in the nature of mandamus remitting ‘the referred medical questions’ to a differently constituted panel.  
37	The grounds of judicial review are stated as follows –
1.	The Medical Panel committed error of law on the face of the record and/or jurisdictional error, by:
a.	Asking itself the wrong question and/or taking into account irrelevant considerations and/or wrongly proceeding on the basis that the requested medical service, being a C5-6, C6-7 and C7-T1 anterior cervical discectomy and fusion, was not appropriate because it was not likely to result in a return to any semblance of his pre-injury functional status and/or improve his neck and referred pain;
b.	Asking itself the wrong question and/or taking into account irrelevant considerations and/or wrongly proceeding on the basis that, or improperly placing inordinate weight on irrelevant considerations in forming the opinion that, the requested medical service, being a C5-6, C6-7 and C7-T1 anterior cervical discectomy and fusion, was not  appropriate because the proposed surgery carried not an insignificant risk of complications;
c.	Improperly determining that the requested medical service, being a C5-6, C6-7 and  C7-T1 anterior cervical discectomy and fusion, was not appropriate because the proposed surgery carried not an insignificant risk of complications, in circumstances where such risks were insignificant and/or could be alleviated or reduced with the provision and acceptance of competent medical advice and informed consent;
d.	Failing to exercise its power under Sections 311 and/or 312 of the Workplace Injury  Rehabilitation and Compensation Act 2013 to obtain the MRI imaging of the Plaintiff’s cervical spine prior to making its determination as to the appropriateness of the proposed C5-6, C6-7 and C7-T1 anterior cervical discectomy and fusion surgery 
e.	Failing to actively engage with, or give  genuine consideration to, the “Screenshot” of the MRI imaging of the Plaintiff’s cervical spine  provided to the Panel by Mr Vellore, Plaintiff’s treating neurosurgeon, with his report dated 9 June 2020; 
2.	The Medical Panel erred in failing to accord procedural fairness or natural justice, in that it: 
 a.	Failed to inform the Plaintiff of its view or intended conclusions listed above at grounds 1a., 1b. and/or 1c. and invite the opportunity to submit further material or further submissions prior to it reaching a concluded opinion;
 b.	Formed the opinion that the requested medical service, being a C5-6, C6-7 and  C7-T1 anterior cervical discectomy and fusion, was not appropriate because, inter alia, of not insignificant risks of complications, without first:
 i.	enquiring of the Plaintiff whether he was aware of and consented to said risks; or
 ii.	informing the Plaintiff of the risks in percentage terms, and enquiring whether he would be prepared to proceed with surgery notwithstanding such risks; 
c.	Formed the opinion that the requested medical service, being a 5-6,  C6-7 and  C7-T1 anterior cervical discectomy and fusion, was not appropriate because, inter alia, he was a cigarette smoker and cigarette smoking can delay healing and complicate recovery, without first enquiring of the Plaintiff as to whether he  would be prepared to cease smoking to alleviate or reduce such risks. 
3.	Further or alternatively, the Medical Panel’s determination lacked an evident or intelligible justification and/or was irrational and/or illogical and/or unreasonable.
38	The first, second and third defendants adopted the Hardiman position.  
39	The plaintiff and fourth defendant each filed written submissions that did not rigidly adhere to the various grounds and sub-grounds.
40	In the course of the hearing, counsel for the plaintiff helpfully focussed the contentions as follows –
(a)	the panel had committed jurisdictional error in failing to take into account and ‘engage in an active intellectual process’ with the ‘screenshot’ – which was said to have been ‘a centrally relevant document’;
(b)	if, contrary to the contention of the plaintiff, the panel did ‘engage’ with the ‘screenshot’, it had nonetheless been incumbent upon it to request the underlying imaging in order to ‘provide an additional layer of investigation that would inform the panel’;
(c)	the determination of the panel had also been legally unreasonable, in that it lacked ‘a rationally defensible path of reasoning’;
(d)	the plaintiff had been denied procedural fairness as, it was said, the panel had regard to ‘several matters which arose out of the blue’.
41	In argument, it was apparent that the first point – jurisdictional error – was the principal one.  The other arguments were in the nature of ‘fallbacks’.
42	Counsel also confirmed that the above contentions were directed to the answer of the panel to question 2.  By email following the hearing, however, that confirmation was withdrawn and it was stated that the alleged failure of the panel to have regard to the ‘screenshot’ or ‘imaging’ would require the answer of the panel to question 1 also to be quashed.
43	In connection with the arguments directed to ‘legal unreasonableness’, the plaintiff sought to rely upon material that had not been before the panel, namely –
(a)	an affidavit of the plaintiff sworn 13 July 2021; and
(b)	a further report of Mr Vellore dated 16 April 2021.
44	The affidavit of the plaintiff deposed to aspects of his Skype consultation with Mr Vellore on 1 April 2020.  In particular, he referred to the advice given to him by Mr Vellore concerning the risks and potential side effects of the proposed surgery.  The plaintiff deposed that he was prepared to proceed with the proposed surgery ‘despite these risks’.  
45	The plaintiff also deposed to the fact that the panel had not informed him of various risks and said that he ‘would have simply ceased smoking’ if he had been told that it would delay healing and complicate his recovery.
46	Mr Vellore’s further report addresses the risk of complications arising from the proposed surgery as well as other aspects of the panel’s reasons, including whether the plaintiff was suffering radiculopathy or myelopathy.  In that regard, Mr Vellore stated –
It seems to be a recurring theme that no one except myself has actually visualised Mr Yum’s MRI scan performed at The Alfred Hospital and relying on the report from the radiologist which in my opinion is rather undercooked and does not emphasize on the extremely severe foraminal stenosis seen clearly on the MRI scan on the left side. There is note made of canal stenosis but not of the severity of foraminal stenosis that he has at each level at  C5-C6, C6-C7 and C7- T1. 
Neither the Panel nor Mr Roy Carey had actually visualised these images while conducting the Panel or the IME. Furthermore, the panel has considered that Mr Yum does have altered sensation down the left side; however, it is a matter of interpretation as to their subjectivity in stating that this is a diffuse sensory loss and not related to radiculopathy. Once again, I disagree with this conclusion as it is a well-known fact that altered sensation is one of the examination findings of the cervical radiculopathy. Furthermore, the  mention of  the patient feeling like he is walking on a cloud could well represent a gait pathology relating to  early myelopathy. Thus, it is my opinion that Mr Yum is certainly suffering from a left cervical radiculopathy plus an early form of myelopathy.
47	The fourth defendant objected to the receipt of the further material to which I have referred.  It was, however, agreed that the objection could be dealt with in the course of the reasons for decision.
48	As I have noted, the plaintiff sought to rely upon the further material in respect of the contentions that the panel had acted in a ‘legally unreasonable’ manner.  I accept that such material may be admissible in connection with such contentions.
C	Jurisdictional error - the ‘screenshot’
49	As I have noted, the plaintiff contended that the panel committed jurisdictional error by failing to take account of, in the sense of ‘engage with’, the ‘screenshot’ appended to the letter of Mr Vellore dated 9 June 2020.
50	In Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ stated –
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig [Craig v South Australia], is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
51	As explained by the Court of Appeal in Chang v Neill, any such jurisdictional error must have been material to the decision.
52	In this context, counsel for the plaintiff submitted that the ‘screenshot’ was a relevant consideration that the panel was required ‘to engage with’.  In light of the survey of authorities, and principle, undertaken by the Court of Appeal in Chang v Neill, it is perhaps debateable whether the ‘screenshot’ is itself a ‘relevant consideration’, although that was rather assumed in the present debate and, indeed, nothing may turn on the point.  In any event, counsel relevantly submitted that –
Your Honour must be satisfied that the panel complied with its statutory function and as part of that it engaged in an active intellectual process with centrally relevant considerations. The elephant in the room.  Failure to do so we say constitutes jurisdictional error.
…
I’m simply suggesting that the screenshot was a relevant consideration that it [the panel] had to engage with.  It was ultimately a matter for the panel to engage with it and then it was a matter for the panel to demonstrate that it engaged with it, and then it was a matter for the panel to form its view as to whether having engaged with the screenshot, then to proceed to answer the medical question as to the appropriateness of the surgery.
53	In order properly to assess what the panel did and whether it was required to ‘engage with’ the ‘screenshot’ in order lawfully to exercise power, it is necessary to consider the function of the panel and the nature of the issues, questions and material before it.
54	As earlier noted, the questions posed for the determination of the panel required it to consider the nature of the plaintiff’s medical condition and whether the proposed surgery was ‘appropriate’ for that condition.  
55	The particular surgery was that proposed by Mr Vellore – three level anterior cervical discectomy and fusion.  As is evident from the material before the panel, it is spinal surgery of an extensive kind.
56	In that connection, the panel was provided with, among other things, the opinions of Mr Vellore (including the ‘screenshot’) as well as those of Mr Carey.  
57	The material before the panel also included the reports of the radiologist in connection with the CT and MRI scans performed on 17 and 18 October 2019.  
58	The report of the MRI scan, in particular, recorded that, in substance, the plaintiff had degenerative changes of the cervical spine.  As I have noted, among other things, the report stated –
Of note, there are severe left C5-6, bilateral C6-7 and bilateral C7-T1 foraminal stenoses.
59	It will be evident from the exchange of opinions between Mr Vellore and Mr Carey that there was an issue as to whether the plaintiff had altered sensation or nerve pain in his left arm and/or hand in the nature of a radiculopathy.  It was to the alleviation of that particular condition that the surgery proposed by Mr Vellore was to be directed.
60	Mr Vellore had, obviously, diagnosed that condition.  However, he had done so via Skype, upon the plaintiff’s complaints of pain and a consideration of the MRI imaging.  The ‘screenshot’ was of a part of that imaging.  Mr Vellore had not conducted a physical examination.
61	As I have earlier noted, Mr Vellore stated the following in connection with the imaging –
Review of his [the plaintiff’s] MRI scan performed at The Alfred Hospital demonstrates C5-C6, C6-C7 and C7-T1 canal stenosis with left sided foraminal stenosis of a severe in nature impinging on C6, C7 and C8 nerve roots respectively.
62	It follows that as between the radiologist and Mr Vellore there was no dispute that there was at least left sided foraminal stenosis of a severe kind.  The impression of Mr Vellore was, however, that it impinged upon or compressed the nerve roots.  That was not an impression recorded by the radiologist.  There was no suggestion of any more frank or serious spinal pathology.
63	For his part, Mr Carey had not been able to access the imaging, although he had considered the radiology reports – which he did not consider to indicate an acute injury.  Mr Carey had, however, conducted a face-to-face consultation with the plaintiff, taken a history, undertaken an extensive physical examination and concluded that there were ‘no symptoms of a radicular distribution’.  The physical examination had obviously been of significance in reaching that conclusion, as Mr Carey later emphasised that an examination ‘remains mandatory in assessment, particularly if specific surgeries are involved’.
64	Contrary to the submission advanced by counsel for the plaintiff, I do not read Mr Carey as having been ‘handicapped’ by the unavailability of the MRI images.  Nor do I read his report as identifying the imaging as ‘a central consideration’ in determining whether radiculopathy was present or whether the proposed surgery was appropriate.  Mr Carey plainly had no real difficulty identifying that there was no radiculopathy and that there was no clinical reason for the surgery, even though he did not have the images.
65	So much was later confirmed – at least implicitly – after Mr Carey had been provided with the further letter of Mr Vellore, together with the ‘screenshot’.  Mr Carey continued to emphasise the importance of a ‘full physical examination’ when considering ‘quite extensive cervical surgery’ and otherwise maintained the opinions that he had earlier expressed.  He did not descend into any detailed consideration of the ‘screenshot’.
66	In this sense, the debate between Mr Vellore and Mr Carey presented as a not unfamiliar one, at least in medical settings involving litigation.  Practically all medical practitioners emphasise the relevance of at least the plaintiff’s history, the results of any investigations (such as radiology) and clinical examination.  Some practitioners give more weight to impressions concerning the radiology than others.  It is not so common for practitioners to take the stance adopted by Mr Vellore that, in effect, it is not necessary personally to examine the patient before recommending very significant neck surgery.
67	In any event, as acknowledged by counsel for the plaintiff in argument, it is very often said that radiology is not ‘the be all and end all’.  Persons with ‘clean’ or almost ‘clean’ radiology can present with mechanical spinal pain.  Equally, persons with radiology that seeming discloses plain spinal ‘pathology’ can present with no or no correlated symptoms.  
68	So much was essentially recognised by the Court of Appeal in Dordev v Cowan, in which the appellant had sought to overcome, among other things, adverse video film, by pointing to the results of a discogram that were submitted to be ‘objective evidence on the matter.’   That submission was rejected.   Chernov JA (with whom Maxwell P and Neave JA agreed) stated –
as the respondents submitted, the fact of pathology does not necessarily lead to consequences of any particular degree of gravity or severity or its specific source, and, as the President pointed out in argument, Dr Wilkie effectively said that just because the discogram disclosed genuine pain, it did not necessarily establish that it arose out of the defect for which the appellant contended.  Relevantly, the judge said, important though that evidence was, it could never indicate the true level of pain and suffering or restriction of movement arising out of the claimed injury.  At the end of the day, his Honour said, the doctors have to depend upon an accurate history given to them by the patient as to the true level of disability and impairment and he was not satisfied that in this case this had been done.
69	It is in that general context that the present issues and medical questions were presented for the consideration of the panel.  
70	I have earlier noted that the panel was comprised of three practitioners, including a neurosurgeon and an orthopaedic surgeon.  Both could be expected to be very familiar with identifying the presence or not of a radiculopathy.  
71	Further, all three members of the panel could be expected readily to be capable of evaluating the plaintiff’s history, clinical presentation and such information as there might be concerning the radiological investigations.
72	In this context, it is trite to say that the panel was required to form its own view concerning the issues and medical questions presented.  It was not bound by, or required to determine between, the opinions of Mr Vellore and Mr Carey.  Nor, for that matter, was it required to determine between the impression of Mr Vellore concerning the radiology or the evidently differing impression of the radiologist that actually undertook it.
73	The panel also had a broad discretion as to its evaluation of the facts and its expertise should be respected.  In that connection, in Sidiqi v Kotsios, Beach, Kaye and Osborn JJA emphasised that –
 41.	In a fundamental sense, it is for the Panel itself to determine what information is sufficient to found an opinion with respect to a medical question.
…
49.	When an inference is to be drawn by way of the opinion of a medical panel as to the nature, extent and severity of a medical condition, it follows from what we have said concerning the panel’s function that it will be for the panel to identify the relevant facts and evaluate the weight to be given to particular circumstances in the light of its medical knowledge and expertise.
74	It follows that the consideration of and any weight to be afforded to the radiology reports, ‘screenshot’ and any need for the underlying radiological images to be viewed was very much for the panel.  It also depended upon other and related considerations including, in particular, the results of the physical examination.
75	In this context, the panel’s reasons disclose that it understood that the surgery that Mr Vellore was proposing had been refused by the agent because –
there was no evidence of specific radiculopathy in the medical imaging and no clinical reason for surgical intervention.
76	The panel thereafter described the opinions of Mr Carey and described him as having indicated that ‘there was no absolute indication for surgical intervention’.  Those words were the panel’s – they were not drawn directly from the reports of Mr Carey.
77	The panel then referred to the letters of Mr Vellore.  In that connection, it referred to Mr Vellore’s recording of ‘severe left sided radiculopathy with weakness, with C5-C6, C6-C7 and C7-T1 disc osteophyte[s]’.  In that sense, it specifically noted Mr Vellore’s impressions concerning the radiology.
78	Counsel for the plaintiff submitted, in substance, that the panel did not ‘engage’ with the ‘screenshot’ that accompanied Mr Vellore’s letter of 9 June 2020, but the panel did refer to that letter, and it had already identified the relevant substance of Mr Vellore’s impressions concerning the imaging said to have been reproduced in the ‘screenshot’.  So much was essentially confirmed in the panel’s subsequent reference to Mr Vellore’s restatement of his impressions concerning the radiology in his letter dated 7 December 2020.
79	The panel thereafter recorded the plaintiff’s complaints of left sided symptoms as well as its physical examination findings.  
80	I have already extracted the relevant part of the panel’s examination findings.  All of those findings are of present significance, but the most important concern ‘sensation’, in respect of which the panel stated –
there was patchy sensory alteration affecting the left hand which the Panel considered was non-organic in nature and did not represent a radiculopathy or myelopathy.
81	That is, having examined the plaintiff’s pattern of sensory alteration, the panel, in its expert opinion –
(a)	did not consider that pattern to correlate with a radiculopathy; and 
(b)	did consider the sensory alteration to be non-organic in nature.
82	In that sense, the position was like that to which Chernov JA referred  in Dordev v Cowan: even if the particular investigation (there, a discogram; here, an MRI scan) disclosed the pathology claimed, that is not to say that such pathology was causing the effect complained of or, indeed, having any effect at all (there, pain; here, sensory changes).  
83	To be clear, based upon a clinical examination of the plaintiff’s pattern of sensory alteration the panel concluded that there was both no radiculopathy and that the sensory alteration was to be explained by something else entirely – namely, non-organic sensations.  That was a finding that the Panel was able to make using its expertise.  Nothing about the manner in which that finding was made suggests that it would be proper for this Court to displace it.
84	In particular, I reject the submission of the plaintiff that the panel should have, in effect, deferred to or given further weight to the views of Mr Vellore as ‘treating surgeon’.  Controversially, at least from the perspectives of Mr Carey and the agent, Mr Vellore had not physically examined the plaintiff before proposing serious spinal surgery.  In any event, to say the very least, such a proposition sits uneasily with the observations of principle essayed by the Court of Appeal in Sidiqi v Kotsios.
85	In this context, even if, as contended by Mr Vellore, the ‘screenshot’ or associated imaging disclosed nerve root impingement or compression, such pathology could not have explained the sensory alterations actually observed by the panel: the sensory alterations found by the panel, as it said, did not represent a radiculopathy.
86	In light of the above, nothing in the debate concerning the interpretation of the radiological imaging was likely to displace the effect of the finding of the panel that the plaintiff’s sensory alterations were actually non-organic in nature.  Indeed, from that point –
(a)	the radiological debate was, from the perspective of the panel, not significant in its determination of the medical questions, let alone ‘a central consideration’; 
(b)	further, the surgery proposed by Mr Vellore was not clinically indicated because the purpose of the surgery would have been to ameliorate a radiculopathy that the panel had found not to exist.
87	In a sense, that is the end of the present point.  Strictly speaking, in the particular circumstances of the present case, it did not matter much whether the reasons of the panel further referred to or thereafter ‘engaged with’ the radiology.
88	In any event, the panel did refer to the radiology.  In that connection, counsel for the plaintiff sought to make much of the fact that the panel –
(a)	said that it did not have the imaging;
(b)	nonetheless, addressed the contents of the imaging reports;
(c)	then said that it did not need any further investigations in order to assess the plaintiff’s physical medical condition and to answer the medical questions;
(d)	but did not, at any point, specifically speak or refer to the ‘screenshot’.
89	It will be evident from what I have already said that the panel’s findings on examination made the debate about the radiology of no real significance. 
90	Nonetheless, I consider it to be more likely than not that the panel did, in fact, have regard to the ‘screenshot’.  In that regard, in its subsequent ‘analysis and conclusions’, the panel –
(a)	stated, directly, that it ‘formed its own opinions’ having considered ‘the documents and materials the parties relied on’;
(b)	again noted the specific surgery in respect of which approval was sought; and
(c)	then stated –
The Panel referred to its own examination of Mr Yum which revealed no clinical evidence of radiculopathy or of myelopathy.  The Panel considered that MRI imaging investigation of the cervical spine demonstrated multilevel degenerative changes but there was no evidence of cord compression or any other neural compromise. 
[Emphases added]
91	The first point in the above passage is the dispositive one: clinical examination did not reveal any evidence of a radiculopathy.  
92	Presumably for completeness, however, the panel then expressed its view concerning the ‘MRI imaging investigation’.  As I have noted, the panel had earlier referred to the ‘imaging reports’.  If, in the passage above, the panel was relying only upon the ‘imaging reports’, it would most likely have used that expression.  The fact that it used the expression ‘MRI imaging investigation’ suggests that its consideration extended beyond the reports and also to a consideration of the ‘screenshot’.  
93	Further, the panel considered the ‘MRI imaging investigation’ to demonstrate ‘multilevel degenerative changes’ but not ‘cord compression or any other neural compromise’.  The panel had earlier referred to the contents of the radiology reports in terms that had not included the precise language to which I have referred.  The change in language suggests that the panel gave its own consideration to the radiological material before it, including the ‘screenshot’.  
94	For completeness, I did not understand the plaintiff strictly to be relying upon any of the further material in connection with the present contention.  In any event, it should be clear from what I have already said that I do not consider any of that material to displace any aspect of the above.  In particular, I do not regard Mr Vellore’s views concerning what he believes the panel to have considered and done to be of any assistance to the plaintiff in seeking to establish the jurisdictional error claimed.
95	In the circumstances, the plaintiff’s contention that the panel committed jurisdictional error by failing to take account of or ‘engage with’ the ‘screenshot’ must be rejected.
D	‘Legal unreasonableness’
96	As earlier noted, this contention was advanced in essentially two ways –
(a)	that it was incumbent on the panel, acting reasonably, to request the radiological imaging in order to provide ‘an additional layer of investigation that would inform the panel’; and
(b)	that the determination of the panel was legally unreasonable in that it lacked ‘a rationally defensible path of reasoning’;
97	In connection with those contentions, the plaintiff sought to rely upon the further material to which I have earlier referred.
98	The precise ambit and operation of ‘legal unreasonableness’ in respect of the judicial review of determinations of medical panels is unsettled, however it is unnecessary for me to enter upon that debate in order to determine the present contentions.
99	It will be evident from what I have already said that the panel did not act unreasonably in failing to exercise its powers to obtain the underlying radiological images.  By far the most important information before the panel arose out of its physical examination of the plaintiff.  In the circumstances, the panel was not required to go further in connection with the radiological material before it, let alone radiological material that was not before it and which had not been placed before it by the solicitors for the plaintiff.
100	In argument, counsel for the plaintiff sought to call in aid principles referred to in and the reasoning of Richards J in Schmael v Leach.  The circumstances of the present case bear no reasonable relation to the circumstances considered by her Honour in that case.
101	There is, in my view, nothing in the further material that displaces any of the above, or which should cause any different view to be taken of the first of the ways in which the plaintiff advanced the ‘legal unreasonableness’ argument.
102	The second of the ways in which the ‘legal unreasonableness’ argument was advanced was largely directed to the panel’s reference to and consideration of the risks of the proposed surgery.  In that connection, counsel for the plaintiff submitted as follows –
we say that ultimately in this case where the panel has expressed opinions as to factual matters which in the real world we say do not exist, having regard to Mr Vellore’s [further] report where he’s opined on what the panel’s material considerations were that there were not insignificant risks of complications, and Mr Vellore’s gone on to express what those – as a treating neurosurgeon what those risks of complications are and he puts the overall risks at two to three per cent.  So certainly we say that the risks of complications, there is a lack of an intelligible foundation from the medical panel opinion or is a potential lack of intelligent foundation and Vellore’s report is relevant to assessing those factors, Your Honour.
103	The panel addressed the issue of risk in a manner that was subsidiary to its earlier determination that, on examination, the proposed surgery was not clinically indicated.  In respect of risk, the panel stated –
The Panel also considered the nature of the proposed surgery which in the Panel’s opinion carries not an insignificant risk of complications.  The Panel also considered that Mr Yum’s short neck would make access to the C7/T1 segment difficult, increasing the risk of recurrent laryngeal nerve palsy, which could result in permanent voice alteration.  The Panel noted that Mr Yum is a smoker and the Panel considered that cigarette smoking is known to delay healing and complicate a recovery from spinal surgery.
[Emphases added]
104	It should be evident from what I have already said that the reasoning of the panel concerning whether the proposed surgery was clinically indicated was ‘rationally defensible’.  
105	In my view, the same position attends the panel’s subsidiary consideration of the issue of risk.  It was evident on the material that Mr Vellore had discussed ‘risks, benefits, alternatives and indications’ with the plaintiff.  It can hardly have been ‘legally unreasonable’ for the panel to give consideration to that same issue, particularly when the surgery was found by the panel not to be clinically indicated and the risks attending it were, on any view, significant.
106	In my view, none of the above is displaced in any way by Mr Vellore’s subsequent commentary concerning the panel’s consideration of and assessment of risk.  That commentary simply does not reveal the panel’s approach to have been ‘unreasonable’, let alone ‘legally unreasonable’ in the sense of unintelligible or rationally indefensible.
107	The plaintiff’s contentions that the determination of the panel was affected by ‘legal unreasonableness’ must be rejected.
E	Procedural fairness
108	As earlier noted, counsel for the plaintiff correctly acknowledged that the complaints sought to be advanced concerning the failure of the panel to afford procedural fairness are not ‘the main game’.
109	Those complaints are directed to the contention that the reliance of the panel upon the risks attending the proposed surgery arose ‘out of the blue’, together with, it was effectively said, a failure of the panel to –
(a)	tease out with the plaintiff the various individual risks; and 
(b)	allow the plaintiff the opportunity to advance submissions concerning those risks and nonetheless confirm his consent.
110	It will be evident that the risks attending the proposed surgery had been discussed with the plaintiff by Mr Vellore during the ‘Skype consultation’.   Indeed, Mr Vellore had given the plaintiff a Royal College of Surgeons brochure.  The further material discloses that the brochure referred to a great number of risks and considerations, including that smokers face ‘increased risks of infections’ so ‘it is best to quit’.
111	In that sense, the issue of the risks attending the proposed surgery, including in respect of smoking, had plainly arisen prior to the plaintiff’s attendance upon the panel.  The plaintiff – via his solicitors – could have placed further material before the panel concerning the issue, including the brochure to which I have referred, but did not do so.  
112	It follows that it was hardly ‘out of the blue’ for the issue then to arise before and in the reasons for the determination of the panel.  
113	In my view, the panel’s consideration of the issue was no more than a natural and obvious evaluation of the issues and circumstances attending the proposed surgery undertaken by reference to its own expertise and experience.  
114	Nor, in my view, is the position displaced by any of the further material now sought to be relied upon by the plaintiff.
115	In any event, even if the plaintiff was denied procedural fairness in the manner presently contended (which I do not accept), I do not accept that the decision of the panel could realistically have been any different.  Whether the panel’s appreciation of the risks attending the surgery was precisely ‘correct’ or not, and whether the plaintiff would have consented to specific explained risks or not, the fact remains that upon the panel’s physical examination of the plaintiff the very significant spinal surgery proposed by Mr Vellore was not clinically indicated.
116	It follows that the ground directed to the contention that the panel deprived the plaintiff of procedural fairness must be rejected.
F	Conclusions
117	The grounds advanced by the plaintiff must be rejected.  It follows that the originating motion must be dismissed.
118	I will hear the parties concerning the appropriate form of orders.