Medical panel determinations and procedural fairness

by Ben Rissman
26 February 2018

In brief - Employer successful in application for judicial review of Medical Panel's determination 

The recent decision of the Victorian Supreme Court in Moggill Cove Pty Ltd v Burton & Ors [2018] VSC 24 serves as a good reminder for practitioners to carefully review binding Medical Panel Reasons for Determination and consider the option of judicial review in certain circumstances.


Mr Burton commenced employment with Moggill Cove Pty Ltd as a labourer in January 2012. In May 2012, he sustained injuries to his back when he slipped off a ladder and fell approximately one metre to a rung below, jarring his back upon impact.
The Moggill Cove decision concerned an application by Moggill for judicial review of the Medical Panel's determination that Mr Steven Burton had "no current work capacity" and that his incapacity for work was likely to continue indefinitely. The effect of the binding Panel determination was that Mr Burton's weekly payments of compensation pursuant to the Workplace Rehabilitation & Compensation Act 2013 (Vic) were reinstated.


The basis for the application for judicial review centred around inconsistent information provided by Mr Burton to the Panel members regarding his work history. In its reasons, the Panel referred to Mr Burton informing Panel members, who examined him in relation to his alleged physical injuries, that he had not returned to work since ceasing part-time work as a traffic controller in November 2015. 
Later in its reasons, however, the Panel referred to the work history provided by Mr Burton to Panel member Dr Diane Neill, psychiatrist, in which Mr Burton informed her that in the preceding three to four months, for up to half a day, a couple of days per week, he had been working at his friend's transport yard business. 
Subsequent affidavit evidence from Mr Burton confirmed he had commenced such unpaid work so that he could identify the type of work he could cope with based on his physical capabilities. Work undertaken included driving a forklift, sweeping the warehouse and cleaning up plastic strapping and paper located in bins. Mr Burton informed the Panel that this light work caused increased spinal pain and he eventually ceased working altogether.
Prior to delivering its determination, the Panel did not inform Moggill of the information disclosed to Dr Neill.


Moggill sought judicial review of the Panel's Determination on the following grounds:
  • the Panel failed to accord the employer procedural fairness 
  • the Panel made a finding of fact which was not open to it 
  • the Panel fell into jurisdictional error by failing to take into account a relevant consideration to which it was bound to have regard 
  • the Panel fell into jurisdictional error by making a finding of fact which was grossly illogical or irrational 
  • the Panel failed to provide adequate reasons for its opinion 
The primary complaint was that the Panel failed to accord Moggill procedural fairness by not informing it of the information disclosed to Dr Neill and not providing it with the opportunity to respond by making written submissions or obtaining further expert medical opinion. Associate Justice Daly of the Supreme Court upheld three of the five grounds of Moggill's judicial review, finding (amongst other things) that the Panel failed to accord Moggill procedural fairness.
Associate Justice Daly stated, inter alia, (at [32]) that "in failing to inform the parties of the new information, the Panel breached its obligations to afford procedural fairness, and, it not having been shown that the Panel would have inevitably reached the same conclusion had it informed the parties of the new information, the opinion should be quashed, and the questions be remitted with appropriate directions."
Associate Justice Daly noted that the ability of Mr Burton to undertake productive activity, even if not paid to do so, was clearly relevant to whether he had a current work capacity, stating (at [36]) that "…given the relatively low threshold established by the authorities, I agree that the employer should have the opportunity to undertake the tasks referred to in the evidence and submissions prior to there being a final determination on the question of capacity. For example, given that the employer seems to accept that the worker, by reason of his injuries, is unable to return to his preinjury duties, further information regarding what the worker was and was not able to do in the late 2016 to early 2017 period may have assisted the employer to identify some additional suitable alternative occupations for assessment by the Panel." 
The Court also found that the Panel failed to take into consideration the new information provided by the worker to Dr Neill which it was bound to consider, in circumstances where that failure materially affected the decision itself. Further, the Court found that the Panel’s reasons were inadequate, in that they merely disclosed the new information, but did not analyse or comment upon the new information in the course of making its finding that the worker had not been in the workforce since November 2015. 


Not all new information adduced to the Panel will constitute a breach of procedural fairness if the respondent is not afforded an opportunity to make further submissions/comment in relation to it. The Moggill Cove decision does, however, highlight the importance of carefully reviewing the Medical Panel's Reasons for Determination to ensure the information provided to the Panel is not inconsistent with the material in the respondent's possession. If it is inconsistent, consideration will need to be given to whether the inconsistency is of a nature which required further comment or submission to the Panel prior to formulation of its opinion.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.