Calleja v Franet Pty Ltd [2000] VSC 339

Supreme Court of Victoria|2000-08-28|Before: Ashley J

CATCHWORDS - Accident Compensation - Medical Panel - whether opinion of panel vitiated by internal inconsistency - whether opinion that worker was partially incapacitated vitiated by failure to consider relevant criteria - whether opinion perverse - whether reasons for opinion adequate.

This is an application, brought pursuant to s.3 of the , for judicial review of a decision made by a medical panel appointed under the provisions of the (the Act), the decision being constituted by the panel's certificate of opinion dated 30 July 1999.

The panel's decision was in the form of answers given to three questions which were referred to it by the Magistrate hearing a claim for compensation by Loretta Calleja against her former employer Franet Pty Ltd. The panel's decision was purportedly explained by reasons dated 19 August 1999. The true import and adequacy of the reasons was debated before me.

The questions which were asked, and the panel's opinion, were as follows:

What is the nature of the plaintiff's medical condition(s) relevant to the injuries alleged in the statement of claim in particular:

There is no physical medical condition relevant to any injury to the right elbow.

The plaintiff has a mild adjustment disorder with depressed mood.

There is no medical condition relevant to post-traumatic neurosis.

Is the plaintiff partially or totally incapacitated?

In the Panel's opinion the plaintiff is partially incapacitated.

Is the plaintiff's partial or total incapacity permanent?

It is necessary, before going further, to put the questions and answers into context.

Mrs Calleja is a lady born on 15 August 1945 who was employed as a process worker by Franet Pty Ltd between October 1972 and May 1995. In February 1995 she sustained compensable injury to her right elbow, apparently when it was struck by a trolley. Between February and May 1995 she was on and off work. She ceased work finally in May 1995. She was paid weekly compensation for a period of 104 weeks. Payments ended as at 19 March 1997.

Mrs Calleja claimed to be entitled to further weekly compensation. According to the Act as it stood in March 1997 she only had such an entitlement if she had suffered serious injury or was totally and permanently incapacitated. Both "serious injury" and "total incapacity" were defined.

Obligatory conciliation having failed, on 12 January 1998 Mrs Calleja commenced a proceeding in the Magistrates' Court claiming worker's compensation from 19 March 1997 and continuing. By her statement of claim the plaintiff relevantly made this allegation:

"On the 14th day of February 1995 the plaintiff suffered injuries arising out of or in the course of her employment with Franet Pty Ltd trading as Frank Hook Products when she was struck by a trolley.

Injury to the right elbow with the aggravation, acceleration, exacerbation, and precipitation thereof.

Anxiety and Depression with the aggravation, acceleration, exacerbation, and precipitation thereof.

Post traumatic anxiety with the aggravation, acceleration, exacerbation, and precipitation thereof.

Post traumatic neurosis with the aggravation, acceleration, exacerbation, and precipitation thereof."

The particulars were not well-framed. But their thrust was clear. What the plaintiff was really contending was that she had suffered traumatic injury to her elbow, and that some psychiatric complication had ensued. The plaintiff went on to allege that she had been totally incapacitated for work since 7 March 1995, and that the incapacity had been caused or materially contributed by "the injuries".

On or about 30 April 1998 a Magistrate referred the questions which I earlier set out to a medical panel. Before doing so he took evidence from Mrs Calleja, and received a number of medical reports into evidence. He directed that copies of the pleadings, a transcript of the proceeding, and copies of the medical reports be forwarded to the panel. Evidently there was compliance with his direction.

The medical reports did not speak with one voice. The position was complicated by the fact that, if not at the outset then as time passed, the plaintiff had complained not only of symptoms affecting her right elbow, but also of symptoms affecting her right forearm, wrist and neck; and as well symptoms that could only be explained (if the worker was a truthful witness) by a diagnosis of psychiatric upset. Moreover, in at least one instance the worker had provided a history of right arm symptoms preceding the incident of February 1995.

It is not necessary to exhaustively analyse the medical reports. But in general this can be said: with the exception of one doctor, it was accepted that the plaintiff had suffered a lateral epicondylitis following and by reason of the incident of February 1995. The doctor who was the exception opined that an overuse syndrome affecting the right arm had been present even before February 1995; and that it was attributable to the repetitive nature of the plaintiff's work. Upon the questions, next, whether the plaintiff had recovered from the presumed lateral epicondylitis, and whether that condition was productive of continuing incapacity, there was division of opinion. More than one doctor took the position that physical signs had abated, but that this did not gainsay persisting pain or continuing incapacity. Concerning the complaint of neck symptoms, varying opinions were presented: that there was a problem, attributable to the nature of the plaintiff's work; that there was a problem, unrelated to the plaintiff's work; and that the symptoms were attributable to the plaintiff's nervous state, which was in turn attributable to the incident of February 1995. Finally, a number of doctors opined that the plaintiff did in fact suffer from a psychiatric causation referrable to that incident; but there was dispute as to its intensity and incapacitating effect (if any). The nature of the condition itself was variously described: "post traumatic anxiety depression", "post traumatic neurosis ... of an anxious and depressed type", "mild depressive state", and "adjustment disorder with depressed mood".

In late July 1998 the panel provided a certificate of opinion in the form of answers to the questions that had been posed; and thereafter provided reasons. It is not necessary to describe the answers in detail. The panel opined that the plaintiff suffered from a post traumatic lateral epicondylitis in consequence of the incident which had occurred in February 1995, and from a mild right carpal tunnel syndrome which the panel considered was attributable to the nature of the plaintiff's work. It concluded, however, that she did not suffer from any continuing psychiatric disorder attributable to her injury, any such disorder being attributable to menopause. The panel further opined that the plaintiff was permanently partially incapacitated by compensable injury (as well as by non-compensable cervical spinal disease).

Mrs Calleja brought an application for judicial review of the decision constituted by the panel's answers. That application was heard by Vincent J in April 1999 and determined favourably to Mrs Calleja: see [1999] VSC 202. His Honour held that the plaintiff had been denied procedural fairness by reason of the failure of the panel to give her a chance to meet the proposition (deriving from the panel itself) that the adjustment disorder which it found to exist was attributable to menopause. His Honour also considered, but I do think he finally resolved, the question whether the panel had failed properly to arrive at its opinion that the plaintiff was partially - rather than totally - incapacitated.

His Honour remitted the original questions for the opinion of a differently constituted panel. That led to the constitution of the panel which made the decision the subject of the present application.

The second panel had provided to it the documents provided to the earlier panel; and also some additional medical reports and a report made by rehabilitation consultants in April 1997.

On 20 September 1999 a Master made an order for review. That order stated the grounds for review of the panel's decision in this way:

"(a) the Medical Panel's reasons for decision do not support the opinion given in answer to medical question 1(a), that 'there is no physical medical condition relevant to any injury to the right elbow'. Rather the reasons for decision support the following opinion, there is a resolved traumatic lateral epicondylitis that is susceptible to recurrence. (b) on all the evidence and having found as the Medical Panel did, that the Appellant suffered from: (i) cervical spondylosis; (ii) soft tissue injury to the right wrist; (iii) osteoarthritis of the carpometacarpal joint of the right thumb; (iv) susceptibility to recurrence of lateral epicondylitis; (v) an adjustment disorder with depressed mood; such that the Appellant was capable only of employment that avoided heavy lifting and forceful or repetitive use of her right upper limb and whereby the Appellant should return to work graduated over a three month period, no Medical Panel properly applying the definitions in section 5 of The Accident Compensation Act 1985 of 'suitable employment', 'partial incapacity' and 'total incapacity' could reasonably have found that the Appellant was partially incapacitated and ought to have found that the Appellant was totally incapacitated. (c) the Medical Panel failed to take into account relevant considerations, make appropriate findings or apply the definition of 'suitable employment' set out in section 5 of the Accident Compensation Act 1985 in giving its opinion that the worker is partially incapacitated. (d) The Medical Panel failed to consider having regard to:

(a) the nature of the Appellant's incapacity;

(b) the age, background, education and work experience of the Appellant;

(c) the absence of any return to work plan or occupational rehabilitation services provided to the Appellant;

whether she was unfit for her pre-injury employment and if so, what other employment she had a capacity for.

(e) the Medical Panel failed to give any adequate or proper reasons for finding that the Appellant was partially incapacitated."

Plaintiff's counsel did not always describe the threads of his client's case in the same way in the course of his submissions. In the end, however, three broad contentions were shown to be raised:

* First, that the answer to question 1(a) was inconsistent with the answer to question (2) and with the panel's reasons, the latter answer and the reasons being only consistent with the continued existence of a medical condition relevant to injury to the plaintiff's right elbow. It must be concluded that the answer to question 1(a) proceeded on a misunderstanding of the question - which paraphrased paragraph (a) of the definition of "medical question" in s.5 of the Act.

* Second, that the findings and implicit findings made by the panel precluded a conclusion that Mrs Calleja was partially incapacitated. Such a conclusion was unreasonable, perverse. The findings and implicit findings commanded a conclusion that Mrs Calleja was totally incapacitated at the time when the panel provided its opinion. The panel failed to take into account some one or more of the matters set out in the definition of "suitable employment" in s.5 of the Act - the issue of "suitable employment" being pertinent to the question whether the worker was totally or partially incapacitated.

* Third, the panel failed to provide reasons adequate to disclose how it determined that Mrs Calleja was partially incapacitated, thereby concealing the presence of reviewable error - whether of construction of the statute, failure to apply its findings to the statutory regime, or failure to consider matters which the statutory regime obliged it to consider.

Although, at first glance, it might be thought that the second and third contentions are mutually exclusive, that is not so. Both could be made out. The reasons might disclose reviewable error and hint at, but because of their inadequacy not disclose, other error.

I turn to the plaintiff's first broad contention. By s.10 of the Administrative Law Act 1978 "the record" in a matter such as the present includes the panel's reasons. Counsel for the plaintiff in substance contended that error was disclosed at the face of the record. He submitted that the reasons provided the medical explanation for the finding of partial incapacity contained in the panel's answer to question 2. He referred me to this passage in the reasons:

" ... it is the Panel's opinion that Mrs Calleja is capable of employment that avoids heavy lifting and forceful or repetitive use of her right upper limb because of the possible risk of recurrence of symptoms in her right elbow. In view of her mild psychiatric state the Panel considers that any return to work should be graduated over a period of three months. The Panel therefore concludes that Mrs Calleja is partially incapacitated for work."

He submitted that this passage showed that the panel had in fact found - by contrast with its answer to question (1)(a) - that the plaintiff was continuing to suffer from an "injury" for the purposes of the Act, an injury of the kind described in Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533. The explanation for the alleged contradiction was said to be this: that the panel had misinterpreted question (1) (a), which must be understood by reference to para (a) of the definition of "medical question" in s.5 (1) of the Act.

Counsel for the employer did not squarely deny that the panel had described an Asioty injury in its reasons. He did submit, however, in connection with the alternative finding proposed by question 1 of the order for review, that it went too far to say that the panel had found that the epicondylitis was susceptible to recurrence. The panel had only said that there was "a possible risk of recurrence of symptoms". That did not amount to a susceptibility to recurrence. The submission implicitly provided a basis for distinguishing Asioty. But it was not developed in that connection.

It may be, though Asioty was a very different case, that the principle it exposed could be applied in a situation such as the panel described in its reasons. For the purposes of disposing of the contention now under discussion I will assume that it could. In the event, in my opinion it does not avail the plaintiff.

According to the plaintiff's case, the panel's answer to the question (1)(a) was necessarily erroneous. It involved a denial that the worker was continuing to suffer from compensable injury. It should not be permitted to stand. The panel's decision must be quashed (I am not clear whether it was contended that the entire decision must be quashed if only the answer to question 1(a) was successfully impugned).

The submission that the answer to question 1(a) was erroneous depends upon the meaning of the question - which, as I have said, paraphrases paragraph (a) of the definition of "medical question". The term "medical condition" is not itself defined. The old Commonwealth Employees' Compensation Act made provision for a certificate as to the condition of a worker: see s.19(4). That section was considered in The Commonwealth of Australia v Mifsud [1965] HCA 56; (1965) 114 CLR 505. But nothing there said bears on the meaning of the term "medical condition" in the present connection, save that "condition" was considered wide enough to extend to both physical and psychiatric disability.

Further concerning paragraph (a) of the definition, the concept of relevance to an injury or alleged injury is not explained. The concept is new to workers' compensation legislation - at least in this State (and I was not referred to its use elsewhere).

Further again, paragraph (a) makes use of the phrase "injury or alleged injury". It is apparent that the reference to "injury" is not a reference to injury as defined by the Act. Where the same word is used repeatedly in a definition in an Act, one should ordinarily give the word a constant meaning. In the definition of "medical question" the word "injury" is repeatedly used. The language of paragraphs (b) and (c) most clearly shows why "injury" does not mean injury as defined by the Act. That is not gainsaid by the distinction drawn between "injury" and "alleged injury", a distinction to which meaning is not easily given in the circumstances (if "injury" meant injury within the meaning of the Act, a fortiori if so found by a court, the basis for the distinction would be obvious).

The task of putting a meaning to paragraph (a) is not easy in the circumstances described. All in all, it seems to me that the paragraph - and thus question 1(a) - directs the reader to the part of the body or the faculty claimed to have been injured. If the worker has particularised - in medical rather than legal terms - the injury he or she claims to have suffered, the panel's task is to opine whether some and what condition is then present which can be related to the injury alleged. But if the worker specifies injury only in the most general terms (as here: "injury to the right elbow ...") the panel cannot sensibly answer a question in the form of question 1(a) without first assessing - in a medical, not legal sense - the likely nature of the claimed injury.

Further concerning paragraph (a), the term "medical condition" should be understood to extend to physical and mental conditions, notwithstanding that such a distinction is expressly drawn in paragraph (c) of the definition. It should also be understood that the question does not call for an answer whether employment was or possibly could have been a (significant) contributing factor to an injury. That is the function of later questions set out in the definition.

Thus understood, question 1(a) required the panel to express an opinion, inter alia, whether there was some and what physical condition present in the plaintiff's right elbow which could be related to the injury to that elbow as the panel conceived such injury to have been. That was not necessarily the same as being asked to opine whether there was continuing compensable injury to the right elbow. I very much doubt that the legislature had Asioty in mind when it enacted paragraph (a) of the definition (indeed, the assent to the relevant Act and delivery of judgment in Asioty were almost contemporaneous).

Reading question 1(a) in the manner outlined, and bearing in mind the essentially legal nature of an Asioty injury, I doubt that it should be said that the panel's answer to the particular question denied the presence of such an injury (always assuming that the panel's reasons supported the existence of the same). But even if the answer should be so read I would not quash the panel's entire decision. The plaintiff's real concern was not with answer to question (1)(a); it was with the answer to question (2), which effectively denied the plaintiff the weekly payments which she sought. The answer to question (1)(a) could be altered so as to describe the medical condition relevant to the injury to the right elbow - most favourably to the plaintiff - as "resolved lateral epicondylitis, carrying a risk of recurrence of injury in response to stressful use of the right arm", and yet it would not assist the plaintiff in the extant proceedings. For in the end, despite the actual form of the answer to question (1)(a), the answers to questions (2) and (3), as shown by the panel's reasons, necessarily conveyed the existence of a continuing (and permanent) compensable injury of the right elbow - but of only partially incapacitating effect.

If, then, I had considered that the answer to question (1)(a) plainly disclosed reviewable error, in the absence of other error the most that I would have done was to quash so much of the decision as was constituted by that answer, and remit the matter for re-consideration of that question by the same panel in accordance with my reasons. I add that in the circumstances described I do not agree with the submission of plaintiff's counsel that the answer to question 1(a) was apt to hinder the plaintiff in pursuing some other possible claim in respect of her right elbow at some later time.

I turn to the second main submission developed for the plaintiff. It turned upon the panel's answer to question (2) "Is the plaintiff totally or partially incapacitated?" in respect of which the panel opined that the plaintiff was partially incapacitated. This answer was attacked in a number of ways. It is convenient to first refer to a feature of paragraph 3(b) of the Master's orders.

Question (2) had its genesis in paragraph (ba) of the definition of "medical question". The only relevant incapacity was incapacity resulting from or materially contributed to by injury as pleaded (or, in the case of the elbow injury, incapacity resulting from or materially contributed to by the compensable medical condition encapsulated in the bald pleading of "injury to the right elbow").

The panel, as its reasons show, found a number of conditions present which it considered were productive of symptoms, but which were unrelated to the elbow condition. The last paragraph of its reasons shows that no attention was paid to those conditions or to any incapacitating effect which they may independently have had. Rightly so. The suggestion to the contrary implicit in paragraph (b) of the grounds of review is insupportable.

I turn to other matters raised by plaintiff's counsel in the present connection. The panel's reasons show that, concerning the injuries alleged in the statement of claim, two primary conclusions were agreed upon after each of its members had examined the plaintiff, and after the documentary material to which I have earlier referred had been considered: first, that although the plaintiff's traumatic lateral epicondylitis had resolved, heavy lifting and forceful or repetitive use of her right arm carried a possible risk of recurrence of elbow symptoms (which the panel implicitly treated as being compensable injury with continuing and permanent effect). For this reason such use should be avoided. Second, that the plaintiff suffered from a mild adjustment disorder with depressed mood. This was causally related to the old elbow injury. Because of its presence, return to work should be graduated over a three month period. Implicit in the latter opinion, I consider, was the proposition that the adjustment disorder and depressed mood were not permanent. Plainly enough, the panel did not consider that the psychiatric disability was of any great moment.

Counsel for the plaintiff submitted that the findings made by the Board, expressly and by implication, could not support the panel's opinion that the plaintiff was partially incapacitated. The findings, he said, were to be found in the panel's certificate and in its reasons, and the reference to "evidence" in paragraph (3)(b) of the order for review should be understood to refer only to findings. Further, he contended, the panel had failed to take into account matters which the definitions of total and partial incapacity in the Act required to be taken into account in considering whether the plaintiff was totally or partially incapacitated; and whether or not the panel had fallen into that error, its opinion that the plaintiff was partially incapacitated was manifestly unreasonable, such that no reasonable person could have reached.

If the question whether the plaintiff was totally or partially incapacitated had been simply a medical question, the panel's opinion that the plaintiff was only partially incapacitated would have been inevitable - or at least nearly so. But the Act, relevant to the plaintiff's claim, defined 'total incapacity' and 'partial incapacity' in language that required other considerations to be brought to account. These are the definitions (they were repealed by Act 107/1997):

"total incapacity in relation to a worker, means an 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." "partial incapacity in relation to worker, means an 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."

Each of the definitions referred to 'suitable employment'. That term was also defined. This is how it stood before amendment by Act 107/1997:

"suitable employment, in relation to a worker, means employment in work for which the worker is suited (whether or not that work is available), having regard to the following - (a) the nature of the worker's incapacity and pre-injury employment; (b) the worker's age, education, skills and work experience; (c) the worker's place of residence; (d) the details given in medical information including the medical certificate supplied by the worker; (e) the worker's return to work plan, if any; (f) if any occupational rehabilitation services are being provided to or for the worker."

The various arguments advanced for the plaintiff in the present connection were developed this way: once the panel concluded, counsel submitted, that the plaintiff was only capable of employment that avoided heavy lifting and forceful or repetitive use of her right arm, then attention to the criteria set out in the definition of "suitable employment" - most particularly criteria (a) to (c) - obligated conclusions that the plaintiff was unable to return to work in suitable employment and was totally incapacitated. The panel's opinion that the plaintiff was partially incapacitated could not co-exist with its expressed and implied findings. Probably the panel had failed to apply some one or more of the criteria contained in the definition of "suitable employment", or had misunderstood the import of such criteria. If the panel had not made any such error, its conclusion that the plaintiff was only partially incapacitated was even more manifestly unreasonable.

The panel specifically said in its reasons that it had "considered all aspects of the definition of suitable employment". It would have been remarkable had it not done so. The alleged failure by the earlier panel to consider those aspects had been debated before Vincent J: see paragraphs 32-40 of his Honour's Reasons. In the particular circumstances of this case I think that it would be right to conclude that the panel did give substantial attention to the definition. Absence in the reasons of a detailed discussion of the application of the various criteria does not sensibly lead to a different conclusion in this particular case. I should make it clear that I do not say that in all cases the recitation of a mantra in a panel's reasons will be enough to preclude a successful attack founded upon alleged failure to take relevant matters into account. Each case, as authorities to which I was referred clearly show, must be considered on its own facts.

Assuming, then, that the panel did give substantial attention to the criteria set out in the definition of 'suitable employment', can it be said that the panel's opinion showed either that its understanding of the criteria was flawed, or that its opinion was manifestly unreasonable? In my opinion the answer in each case is plainly no.

The panel appears to have adopted as its findings the following synopsis of the plaintiff's situation: She was aged 53 in 1998, and she did not have a great deal of formal education. In her working life she had engaged in only two employments - one as a school cleaner/caretaker, one as a process worker for Franet. Her work in the latter job involved sand blasting components, machine operating, packing and general process work. Following injury in February 1995 she had received treatment. She had ceased work in March 1995. At time of examination she was not complaining of elbow symptoms, but was complaining of various symptoms involving her right wrist and hand, discomfort in her neck and right hip, and sleep and mood disturbance.

The next significant findings made by the panel arise out of examinations of the plaintiff by its members. In short, the examinations had shown no evidence of

any residual epicondylitis, nor of triceps tendonitis. X-rays of the elbow had been non-contributory. The absence of findings led the panel to conclude that the plaintiff had no current physical medical condition in relation to her right elbow.

Nonetheless, and this takes me to another finding, the panel implicitly concluded that by reason of a compensable elbow condition the plaintiff was unfit for her pre-injury employment. That is to be gleaned from the certification that there was a permanent partial incapacity, the definition of "partial incapacity" then in the Act, the necessity for a connection between compensable injury and partial incapacity, the inhibitions placed by the panel upon the plaintiff's work capacity (as disclosed by the reasons) and the reason for those inhibitions.

Next, the panel opined, in consequence of the material in its possession - that is, the documents provided to it, the history provided on examination by its members, and the findings on examination - that the plaintiff was suffering from a mild adjustment order with depressed mood which was in part a sequela of the elbow injury. It seems clear, as I noted earlier, that the panel did not regard this disability as being either serious or permanent - thus the proposal that the plaintiff's return to work should be graduated over a short period.

Having formed the opinion, as it implicitly did, that the plaintiff was by reason of compensable injury unfit for her pre-injury employment, the question whether she was nonetheless fit for suitable work fell to be considered.

Certainly the plaintiff's age, lack of formal education, limited employment skills and past work history (although the plaintiff's evidence concerning the nature of her work with Franet before and after injury in February 1995 was not very precise, and the history which she gave to doctors - including members of the panel - was not much more illuminating) were matters which to greater or lesser extent ran against a conclusion that the plaintiff was able to return to work in suitable employment.

But that was not the whole story. The panel was entitled to bring to account, as it evidently did, the picture disclosed by the examinations which its members had conducted. In the medical material to which the panel said it had reference in forming its opinion, there was, if it matters, support for the panel's view of the situation.

Further, whilst the Board did not specifically refer in its reasons to the evidence of the plaintiff given at trial, it should sensibly be supposed, having regard to the criteria set out in the definition of "suitable employment", that the panel took account of the plaintiff's evidence that she had made no attempt at all to look for work after March 1995, being of the belief that - suffering from symptoms affecting many parts of her body - she was unfit for work.

Again, in the material to which the Board said it had reference in forming its opinion were several reports which detailed jobs that even a person with a significant handicap could perform. The fact that the panel did not specifically refer to those reports in the context of its evaluation of the plaintiff's ability to undertake suitable employment does not imply that they were not considered. The strong inference is to the contrary.

All in all, I consider that the findings and implicit findings (as plaintiff's counsel put it) well supported a conclusion that the plaintiff was able to engage in suitable employment.

Counsel submitted, however, that the panel had not descended to a discussion of what jobs the plaintiff could do; and that this revealed a defect in its consideration of the plaintiff's capacity or otherwise to engage in suitable employment. Simply to describe inhibitions on employability did not say anything about work for which the plaintiff was suited.

It is possible to think of a case in which the limitations imposed upon the work that a person could notionally perform would be so extreme that one could legitimately question whether any such employment existed. In such a case it might well be correct to say that an opinion that the worker was only partially incapacitated (or, in the present language of the Act, had 'current work capacity') was insupportable.

In other cases, a conclusion simply that a person was 'fit for light work' might, in light of the physical findings and other criteria established by the definition of 'suitable employment', be held not to support an opinion that the person was only partially incapacitated (or had current work capacity).

But the present case is neither of those cases. The inhibitions placed upon the plaintiff's work capacity were clearly stated in the panel's reasons. Read sensibly, they left open a pretty extensive area of employability. The panel was not required to go further and define particular jobs that the plaintiff could undertake. It was entitled to be satisfied from the material in its possession, and by implication was satisfied, that work fitting the parameters which it set did exist (whether or not such work was in fact available was - by virtue of the Act - irrelevant).

Plaintiff's counsel submitted, as I noted earlier, that the panel did not give adequate reasons for its opinion that the plaintiff was partially incapacitated; and that this concealed error**.** I consider that this submission was not made out. The panel disclosed the material upon which it formed its opinion. It disclosed the findings on examination by its members. It set out the incidental findings, and revealed that, in assessing incapacity for work, it put them to one side. It said that it had considered all aspects of the definition of suitable employment; and the material which it possessed permitted consideration of all those aspects. It did not set out its analysis of the impact of the different aspects, but its conclusion that the plaintiff was permanently incapacitated, and the inhibitions which it placed upon her employability were rational and understandable in light of the material in its possession. The panel was not committed to write a judgment such as this. It was obliged to set out, adequately though pithily, its reasoning: see Masters v McCubbery & Ors [1995] VICSC 209; [1996] 1 VR 635 per Winneke P at 650-651, Ormiston JA at 653 and Callaway JA at 661. In the particular circumstances of this case I consider that it did so. The dicta of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 concerning the way in which reasons for decision of an administrative decision-maker are to be read on review are susceptible of application in the present context. That does not mean, of course, that substantive inadequacies in a panel's reasons can be dismissed. In such a case, on a review such as this, the court may exercise the power given to it by s.8(4) of the Administrative Law Act. That was the course taken by O'Bryan J in Masters v McCubberry (No. 3) (1996) 10 VAR 18. It is not a necessary course in this case.

The order for review made by the Master on 20 September 1999 should be discharged.

At a glance

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Judgment (81 paragraphs)

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