A & L Windows Pty Ltd v Yildirim [2022] VSCA 46

WORDS AND PHRASES - 'Current work capacity' - 'No current work capacity' - 'Suitable employment' - Workplace Injury Rehabilitation and Compensation Act 2013, ss 3 and 163.

1 In 2013, Mr Serkan Yildirim ('the first respondent') commenced employment with A & L Windows Pty Ltd ('the applicant') as a sash maker. On 5 December 2016, he was placed on light duties. On 19 December 2016, he completed a WorkCover claim form, in which he alleged that he had suffered psychological and psychiatric injury throughout the course of his employment, due to the mental and physical nature of his job including a heavy workload, a pressurised work environment, high quotas, heavy work demands and expectations and a negative work environment.

2 The applicant's insurer accepted the first respondent's WorkCover claim, and he received weekly payments pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act') between 5 December 2016 and 1 June 2019. He performed light duties for the applicant for approximately 11 months from 5 December 2016, but thereafter ceased working.

3 On 25 January 2019, the applicant's insurer wrote to the first respondent advising him that his entitlement to weekly payments under the Act would cease on 1 June 2019. The reason given was that weekly payments would, by then, have been paid to the first respondent for a total of 130 weeks and the first respondent had 'a current work capacity'; alternatively, he had 'no current work capacity but it [was] not likely to continue indefinitely'.

4 The first respondent disputed the insurer's decision and, on or about 29 May 2019, he referred the decision to the Accident Compensation Conciliation Service ('the ACCS') for conciliation. On 10 September 2019, the ACCS referred two medical questions to a medical panel pursuant to s 284 of the Act. Subsequently, a medical panel was convened consisting of two psychiatrists, Dr John King and Dr Julian Freidin (collectively, 'the second and third respondents' or 'the medical panel').

5 On 27 November 2019, the medical panel conducted an examination of the first respondent. On 4 December 2019, it delivered its opinion on the referred medical questions and its reasons for its opinion. The medical questions and the panel's answers were as follows:

Question 1: What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?

Answer: Mr Yildirim suffers from a Chronic Adjustment Disorder with Depressed Mood relevant to the claimed injury.

Question 2: Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?

Answer: No.

6 On 30 January 2020, the first respondent (as plaintiff) commenced judicial review proceedings seeking an order in the nature of certiorari quashing the opinion of the medical panel. That proceeding was heard by a judge sitting in the Trial Division on 17 November 2020.

7 On 19 May 2021, in accordance with Reasons published by her Honour on 25 March 2021,[1] the primary judge made orders granting the first respondent the relief he sought, quashing the opinion of the medical panel, and referring the matter to a differently constituted medical panel to be considered and determined in accordance with law. In summary, her Honour concluded the medical panel: (1) 'erred in its interpretation and application of the test of "no current work capacity"';[2] (2) 'failed to consider a pivotal relevant consideration, being [the first respondent's] psychological capacity to seek work or his psychological ability to seek to enter an employment relationship';[3] (3) consequently made a 'conclusion [that] was not open to it';[4] and (4) failed to provide adequate reasons.[5]

8 The applicant now seeks leave to appeal from the primary judge's orders. Its proposed grounds of appeal are as follows:

1. The judge erred in finding that the panel did not apply the correct definition of 'no current work capacity' on the basis that it failed to consider the first respondent's psychological ability to seek an employment relationship.

2. The judge erred in finding that it was not open for the panel to conclude that the first respondent did not have 'no current work capacity'.

3. The judge erred in finding that the panel failed to take into account:

(a) the first respondent's lack of ability to seek an employment relationship; and

(b) the influence that the first respondent's psychological state has on his ability to engage in seeking employment.

4. The judge erred in finding that the panel failed to adequately disclose its path of reasoning.

9 The medical panel were provided with a number of documents, which they identified in two schedules to their reasons headed 'Enclosure A' and 'Enclosure B'. The documents in those enclosures included reports from the first respondent's treating medical practitioners, Dr Kenneth Loh and Dr Leon Turnbull; medico legal reports from Associate Professor Shashjit Varma, obtained by the applicant's insurer; a Nabenet Vocational Assessment Report ('the Nabenet report'); written submissions made to the medical panel on behalf of the first respondent; and written submissions made to the medical panel on behalf of the applicant.

10 It is not necessary to summarise all of the written material provided to the medical panel. For present purposes, it is sufficient to summarise the submissions made to it on behalf of the first respondent. In summary, the first respondent contended that he was 'completely incapacitated for employment' and had 'no current work capacity [which was] likely to continue indefinitely'.

11 In his written submissions, the first respondent relied upon an opinion expressed by Dr Turnbull that 'he is depressed and slowed, and his concentration is shaky I [sic] cannot identify any suitable employment for him, unfortunately'; and an opinion of Dr Loh that the first respondent's 'incapacity to perform suitable employment may be permanent if his abnormal symptoms persist into the foreseeable future'.

12 The first respondent submitted to the medical panel that it should disregard the opinion of Associate Professor Varma, and in particular Associate Professor Varma's opinion that, 'I believe the worker even has a capacity for suitable employment now, but in the next six to nine months, he should have more capacity'.

13 In his submissions to the medical panel, the first respondent referred to this Court's decision in Richter v Driscoll,[6] noting that in that case this Court said:

'Employment' is a relationship in which a prospective employee must have something - a capacity to work in employment - to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, leads the employer to conclude that the worker has nothing to sell.[7]

14 In his written submissions, the first respondent asked the medical panel to note that:

• 'he was motivated to persevere and attempt to return to work';
• 'he attempted a return to work plan in 2016, but this proved detrimental to his health';
• 'his general practitioner attempted to change his medication to allow him to continue to persevere with employment, but the first respondent had reported to his general practitioner that he continued to be frustrated at his mood swings and capacity to concentrate';
• 'he continued through 2017 and 2018 to tell Dr Turnbull that he was willing to attempt to continue to work';
• 'through Nabenet, [he had] attempted to continue his search for employment in a different industry or field';
• his depression and anxiety continued 'to be a road block in his attempt to find new employment';
• he was 'given medical advice that he should cease the search and continue to concentrate on his treatment and health to try and make greater improvements in that before attempting any further return to work'; and
• there had been no improvement since April 2019 in his psychological condition and he 'continues to be certified unfit for all work' which he submitted would 'continue to be the case in the foreseeable future'.

15 The first respondent's written submission to the medical panel concluded in these terms:

The Worker relies upon the opinion of Dr Loh and Dr Turnbull that the Worker will require ongoing psychiatric treatment. Without this treatment his condition would worsen, and his current mental status is such that he will remain completely unfit for all employment for the foreseeable future.

16 The medical panel commenced its reasons by saying that it formed its opinion by reference to the documents and information referred to in Enclosure A and Enclosure B, the history provided by the first respondent, and examination findings elicited by it at its examination of him on 27 November 2019. Under the headings 'Introduction', 'History of Workplace Injury', 'Current Lifestyle and Psychiatric Symptoms' and 'Background', the medical panel set out the history the first respondent gave to it.

17 In relation to the first respondent's activities at the time of his examination by the medical panel, the medical panel recorded that, during the morning, the first respondent said he tended his garden, sometimes did the dishes, but otherwise did little during the remainder of the day. The panel recorded the first respondent as saying that 'he showers approximately every two weeks and changes his clothing about weekly'. The panel recorded the first respondent's history that 'he spends the evening talking to his wife, they not having gone out for a meal for a month'.

18 The medical panel recorded the first respondent's description of his medical treatment and the first respondent's statement that, 'some days he feels a little better for "a couple of hours" most likely because he had slept better, but otherwise he feels "useless, upset, I don't want to see people, do anything"'. The medical panel also recorded the first respondent's statements that, 'his concentration is poor because when he reads a book, he often needs to reread passages'; 'his memory is normal'; and 'his energy levels and motivation are generally reduced and he tries to take an interest in growing vegetables'.

19 Under the heading 'Examination', the medical panel said:

Mr Yildirim was a dishevelled, powerfully built and large man physically; he was interviewed in English; the professional Turkish interpreter was used once only to clarify a word. He was not tearful, distressed or psychomotor disturbed; he was cooperative, serious and direct.

His affect was mildly sad, without much reactivity and appropriate; he was coherent and provided a reasonable history without thought disorder; repeatedly he said that he would love to work but he could not because Nabenet had not found him a job; there were themes of uselessness and hopelessness.

There were no psychotic symptoms or current suicidal ideas; cognition was not formally assessed but appeared to be normal as was insight and judgment.

20 Under the heading 'Diagnosis and Discussion including Work Capacity', the medical panel set out its opinion as follows:

The Panel noted in the report dated 14 July 2019 by treating forensic psychiatrist Dr Leon Turnbull he diagnosed a Major Depressive Disorder 'that has not shifted with psychotropics'. The Panel also read and considered the earlier psychiatric reports by independent medical examiner ('IME') consultant psychiatrist A/Prof Shashjit Varma dated 24 January 2018 and 14 January 2019 who diagnosed Adjustment Disorder with mild depression secondary to workplace bullying and harassment which was in remission.

Based on its collective experience and examination of Mr Yildirim, the Panel diagnosed a chronic Adjustment Disorder with Depressed Mood relevant to the accepted psychiatric injury.

The Panel considers that due to the nature of the psychiatric injury and the duration of the associated symptoms, Mr Yildirim's psychiatric condition has substantially stabilised and is unlikely to remit despite medical treatment.

The Panel considered all aspects of the definition of 'current work capacity', 'no current work capacity' and 'suitable employment' and in particular;

• His age of 47 years, which the Panel considers does not limit his employment prospects;

• His education in Turkey which the Panel considers does limit his employment prospects;

• His employment history in Australia, which has been predominantly heavy physical work and truck driving;

• His employment record which has been good;

• He holds a current driver's licence;

• He resides in Keysborough in close proximity to employment opportunities;

• He has adequate English language skills which does not limit his employment opportunities;

• He presents as emotionally flat and unmotivated with some symptoms of depression that does limit his ability to find employment;

• The absence of any current return to work or occupational rehabilitation plan.

The Panel also noted and considered the Vocational Assessment Report by Nabenet dated 14 November 2018, which identifies the suitable employment options of a sash maker/window assembler, truck driver, product assembler, packer and process worker. The Panel considered that as Mr Yildirim takes multiple sedating medications, truck driving was an inappropriate employment option.

The Panel considered that Mr Yildirim's current psychiatric condition of chronic Adjustment Disorder with Depressed Mood does not affect his psychological functional capacity and that he would be capable of undertaking his pre-injury role as a sash maker/window assembler and the identified alternative employment options of product assembler and packer and process worker. The Panel considered that Mr Yildirim is currently capable of attending a workplace and undertaking these employment options reliably and consistently on a full-time basis as a settled or established member of the wage earning workforce. The Panel however recommended that Mr Yildirim commence the suitable employment options identified initially on a part-time basis (approximately 15 hours per week) and to then slowly increase his hours of work.

The Panel noted the opinions regarding work capacity from independent medical examiner psychiatrist A/Prof S Varma in his report dated 24 January 2018 and 14 January 2019 when he considered that Mr Yildirim had a current work capacity and a capacity to do modified pre-injury duties and hours at his current workplace or even at an alternative workplace. The Panel also read and considered the reports by treating consulting psychiatrist Dr Leon Turnbull who on 7 August 2018 suggested a gradual return to work in another factory at the same workplace but who in his report dated 14 July 2019, said Mr Yildirim's capacity to return to work had been reduced by frustration he had experienced with the WorkCover process; Dr Turnbull thought him then not capable of performing any suitable employment. The Panel reached a different opinion with respect to Mister Yildirim's capacity for employment for the reasons provided above.

The Panel therefore concluded that Mr Yildirim does not have no current work capacity for the reasons stated above.

21 After setting out the medical panel's opinion and the arguments advanced by the parties at the hearing of the judicial review proceeding, the judge identified what she concluded were deficiencies in the medical panel's reasons. Thus the judge said that:

(a) there was no analysis by the medical panel of why particular employment options were suitable for the first respondent, 'other than a conclusion that [the first respondent's] current psychiatric condition does not affect his psychological functional capacity and that he would be capable of undertaking his pre-injury role as a sash maker/window assembler and the identified alternative employment options of product assembler and packer and process worker';[8]

(b) there was no analysis by the medical panel of the Nabenet report, 'in the context of other material before the panel such as the observation that [the first respondent] advised [the medical panel] of no current job-seeking activity due to his current symptoms';[9]

(c) there was no analysis by the medical panel as to why Nabenet had been unable to find the first respondent a suitable job;[10]

(d) the medical panel did not expressly consider the first respondent's capacity, 'other than in the context of him being able to do work or to attend a workplace and not in the context of him being disabled from finding and obtaining work or employment or having a reduced capacity to do so';[11]

(e) the medical panel 'appears to have taken no notice of [the first respondent's] prior attempts to find employment, his lack of success in doing so and the psychological consequences flowing from that';[12] and

(f) the medical panel made no express reference to, or considered, the first respondent's 'unsuccessful attempts to find work, nor his lack of motivation to do so based on his psychiatric condition'.[13]

22 In concluding that the medical panel 'failed to consider the definition of "no current work capacity"',[14] the judge said:

In effect, the question is whether in determining the question of 'no current work capacity' the employee is capable of getting to the starting line in the employment race. If the characteristics of the worker as a whole are such that he is not capable of getting to the starting line that is a different question, and one which must lead to the conclusion that he has 'no current work capacity'. If an employee is capable of getting to the starting line but cannot in a competitive market environment win the race, the employer is not liable for that outcome.[15]

23 In concluding that the medical panel's answer to Question 2 was not open,[16] the judge said that if the correct test as to 'no current work capacity' had been applied, then the medical panel was required to consider the first respondent's submissions made to it, including that:

• the plaintiff [the first respondent] showered approximately every two weeks and changed his clothes about weekly;
• the plaintiff feels useless, upset and does not want to see people or do anything;
• the plaintiff had been engaged with an occupational rehabilitation provider, Nabenet, who had not been able to find him a job. The Assessment Report included the comment that the plaintiff advised no current job seeking activity due to his current symptoms and that Nabenet was assisting him through engagement in the Job Seeker Review program, which he had been participating in for 16 weeks at the time the report was undertaken;
• the plaintiff's use of sedating medications;
• relevant observations by Dr Turnbull in his report dated 14 July 2019, which stated that the plaintiff exhibited signs including depression, low mood, lost confidence, feelings of worthlessness, evaporated motivation, lost vigour and no improvement despite medications. Dr Turnbull referred to frustrating attempts to help the plaintiff to move into meaningful activities, and that the plaintiff now struggles to trust service providers, given repeated failures over the past few months;
• the plaintiff is not motivated enough to go out and look for a job and that he does not look for a job because he has lost confidence; and
• the plaintiff presented as emotionally flat and unmotivated with some symptoms of depression that does limit his ability to find employment.[17]

24 Her Honour then said that, of these nominated factors, what the panel did not seem to have considered was the first respondent's lack of success in obtaining work.[18] Her Honour then said that the medical panel had not turned its mind to 'the psychological consequences of the inability to seek work, such inability to work being caused by the compensable psychological injury'.[19]

25 In concluding that there were relevant considerations which the medical panel failed to take into account, the judge said:

In addition to my findings in relation to Grounds 1 and 2, it follows that not taking into account the uncontested evidence of the plaintiff's psychological state influencing his lack of ability to engage in seeking an employment relationship, his lack of success in doing so, and the psychological consequences flowing from that, there is a failure by the Panel to take into account a relevant and determinative consideration.[20]

26 Finally, the judge dealt with the first respondent's complaint that the panel's reasons were inadequate, saying that she was satisfied that, 'the path of reasoning demonstrates legal error as it discloses the lack of understanding and application of the correct test, and demonstrates that there is a failure to deal with all relevant considerations'.[21] Her Honour then said, however, that having found that the medical panel had erred in its interpretation and application of the test of 'no current work capacity', it was unnecessary to make any finding in relation to the adequacy of the medical panel's reasons.[22] Her Honour concluded her analysis of the adequacy of the panel's reasons by saying:

However, the path of reasoning will inevitably fail where the starting point was in error.[23]

27 Pursuant to s 163 of the Act, the first respondent is not entitled to any further compensation in the form of weekly payments unless he has 'no current work capacity and [is] likely to continue indefinitely to have no current work capacity'. The expression 'no current work capacity' is defined in s 3 of the Act as follows:

No current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;

28 The expression 'suitable employment' is defined (again in s 3 of the Act) as follows:

'suitable employment', in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to the following -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii) the nature of the worker's pre-injury employment;

(iii) the worker's age, education, skills and work experience;

(iv) the worker's place of residence;

(v) any plan or document prepared as part of the return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b) regardless of whether -

(i) the work or the employment is available; or

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

and, for the purposes of Part 4, includes -

(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;

29 In considering the issues raised in this proceeding, it is important to remember that the function of a medical panel is to form and give its own opinion on the medical questions referred to it. Its function is to do this by applying its own medical experience and its own medical expertise - rather than having some function of choosing between competing arguments, or opining on the correctness of competing medical opinions.[24]

30 The primary judge was critical of the medical panel's reasons for not containing any analysis of a number of topics identified by her. It is now well settled that a medical panel's statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at its opinion, in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[25] A medical panel is, however, under no obligation to explain why it did not reach an opinion it did not form, even if that opinion is shown by material before it to have been formed by someone else.[26] Moreover, the standard of reasons required of a medical panel is not to be equated with the standard of reasons that would be required of a judge giving reasons for a final judgment after the trial of an action in the Court.[27] It follows that the mere identification of matters not contained in a medical panel's reasons does not necessarily say anything about the adequacy of those reasons.

31 Further, the adequacy of a medical panel's reasons must depend upon the issues, and the nature of the proceeding. Thus, in a case where the parties have made submissions which frame the issues referred to the medical panel, one would expect the panel's reasons to be responsive to the issues as framed by the parties.[28]

32 The primary judge made two central criticisms of the medical panel's opinion and reasons: first, that in considering and applying the statutory definition of 'no current work capacity', the medical panel did not look at the entirety of the circumstances personal to the worker as required by this Court's decision in Richter; and secondly, that the medical panel failed to consider a 'pivotal consideration', being the first respondent's psychological capacity or ability to seek to enter into an employment relationship. We respectfully disagree with her Honour for the reasons which follow.

33 As to her Honour's first criticism, we do not see any basis upon which it can be said that the medical panel did not consider the entirety of the circumstances personal to the first respondent. The medical panel's reasons contain a detailed history taken from the first respondent, identifying the various matters which formed the relevant personal circumstances of the first respondent. Thus, the medical panel referred to the plaintiff's history with Nabenet, and Nabenet's failure to find employment for him; the first respondent's history that he showered approximately every two weeks; the first respondent's history that 'he would love to work but he could not because Nabenet had not found him a job'; and the first respondent's statements that his future seemed 'dark, uncertain', with 'themes of uselessness and hopelessness'.

34 As to her Honour's second criticism, we respectfully disagree that there was a 'pivotal consideration' concerning the first respondent's psychological capacity or ability to seek to enter into an employment relationship, which the medical panel failed to consider.

35 First, the issues, as articulated by the first respondent in his written submissions to the medical panel, related overwhelmingly to the first respondent's capacity to engage in employment. Apart from one statement asserting that his 'depression and anxiety continued to be a roadblock in his attempt to find new employment', there is nothing in the first respondent's submissions to the medical panel which suggests that it was his inability to get to 'the starting line in the employment race'[29] (rather than any incapacity for performing his pre-injury duties or duties in other suitable employment) which was the reason the first respondent had no current work capacity which was likely to continue indefinitely.

36 In those circumstances, it was unsurprising that the medical panel's reasons did not contain the analysis which the primary judge concluded made the medical panel's reasons deficient.

37 Secondly, and perhaps more fundamentally, it cannot be said that the medical panel failed to consider or take into account the limitation imposed upon the first respondent's ability to find employment caused by his psychiatric condition. The medical panel specifically stated that it considered all aspects of the definitions of 'current work capacity',[30] 'no current work capacity', and 'suitable employment' and, in particular, considered the fact that the first respondent 'present[ed] as emotionally flat and unmotivated with some symptoms of depression that does limit his ability to find employment'.[31] There is no basis upon which it could be concluded that the medical panel did not take into account the matters it said that it considered.

38 It follows that proposed ground 3 must be upheld.

39 Nothing in the medical panel's reasons suggests other than that the medical panel properly considered whether the first respondent had 'no current work capacity' within the meaning of the Act. In its reasons, the medical panel engaged with the relevant statutory definitions, and in particular the expressions 'no current work capacity' and 'suitable employment' as defined in s 3 of the Act. Moreover, in conformity with this Court's decision in Richter, the medical panel, in reaching its opinion, considered the entirety of the circumstances personal to the first respondent.

40 Having regard to our conclusions with respect to proposed ground 3 and the conclusion in the preceding paragraph, proposed ground 1 must also be upheld.

41 The judge's conclusion that it was not open for the panel to conclude that the first respondent did not have 'no current work capacity' as defined by the Act was predicated on her Honour's conclusion that the medical panel failed to consider or take into account the first respondent's psychological capacity to seek work or his psychological ability to seek to enter into an employment relationship. As we have already said, the judge's conclusions on these issues were in error. It follows that the judge erred in holding that the medical panel's conclusion was not open to it. Accordingly, proposed ground 2 must also be upheld.

42 The judge's conclusion that the medical panel failed to adequately disclose a path of reasoning was also predicated upon her conclusion that the medical panel had failed to consider and take into account the first respondent's psychological capacity to seek work, or his psychological ability to seek to enter into an employment relationship. To that extent, the judge's criticism of the medical panel's reasons was also, with respect, misplaced.

43 Putting to one side the judge's criticism of the medical panel's reasons, and considering for ourselves whether the reasons were adequate to disclose a path of reasoning, we see no basis upon which it can be said that the panel's reasons were inadequate.

44 The panel identified the history that it took from the first respondent; it set out its findings on examination findings; it identified its diagnosis, saying it was based on the panel's collective experience and examination of the first respondent; it identified all of the matters it considered in reaching its opinion; and it explained that its opinion was reached because it considered that the first respondent's psychiatric condition (which it had diagnosed) did not affect his psychological functional capacity to undertake his pre-injury role as a sash maker/window assembler. The medical panel's reasons show that it performed its function as described by the High Court in Wingfoot, and that it gave reasons for its opinion to the standard described in the judgment in that case. The panel's reasons disclosed its path of reasoning. No criticism of those reasons was warranted. It follows that proposed ground 4 must also be upheld.

45 The applicant will be granted leave to appeal, and the appeal will be allowed. The orders of the primary judge made on 19 May 2021 will be set aside, and in lieu thereof it will be ordered that the application for judicial review be dismissed.

[1] Yildirim v A & L Windows Pty Ltd [2021] VSC 139 ('Reasons').

[6] (2016) 51 VR 95; [2016] VSCA 142 ('Richter').

[16] Ibid [13], but cf Reasons, [54].

[24] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47]; [2013] HCA 43 ('Wingfoot').

[27] Ibid 501-2 [55]-[56]; Dundar v Bas [2019] VSCA 315, [48]; Sidiqi v Kotsios [2021] VSCA 187, [64] ('Sidiqi').

[28] See Woolworths Ltd v Warfe [2013] VSCA 22; Sidiqi [2021] VSCA 187, [99].

[30] Defined in s 3 of the Act as follows:

Current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;