Haq v Dodgshun & Ors [2015] VSC 450

Supreme Court of Victoria|2015-09-02|Before: JOHN DIXON J

ADMINISTRATIVE LAW - Judicial review - Accident compensation - Medical Panel - Opinion as to capacity for work - Suitable employment - Whether panel failed to give consideration to relevant matters - Whether panel's statement of reasons inadequate - Application dismissed - ss 3, 302, 303, 304, 307, 313, Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

1 By originating motion filed 22 December 2014, the plaintiff seeks an order in the nature of certiorari, quashing the opinion of a medical panel comprised by the first to fourth defendants of 27 October 2014. Further, the plaintiff seeks an order in the nature of mandamus, that the medical questions considered by the medical panel be referred to a differently constituted medical panel, and determined according to law.

2 The plaintiff commenced working for the fifth defendant (the employer) in around May 2004, performing work which involved lifting and manual handling. On 21 April 2005, the plaintiff claimed worker's compensation for an injury/condition described as 'severe pain in neck/back of left shoulder and left hand'. His claim for compensation was accepted, and he commenced receiving benefits.

3 The plaintiff ceased work in 2008 when his position was made redundant, and has not worked since. On 23 December 2012, he underwent a two level cervical discectomy and fusion. On 12 February 2014, the plaintiff was notified that his weekly compensation payouts would cease on 24 May 2014, because weekly payments had been paid to him for a period of 130 weeks and he had a current work capacity; or alternatively, he had no current work capacity, but that situation was not likely to continue indefinitely.

4 On 25 July 2014, the Accident Compensation Conciliation Service referred several medical questions to a medical panel. The plaintiff was examined by the medical panel, comprised by a general practitioner, a rheumatologist, a neurosurgeon, and a psychiatrist. On 27 October 2014, the medical panel issued its Certificate of Opinion in which the referred questions were answered as follows:

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

Answer: In the Panel's opinion, the worker is suffering residual dysfunction of the cervical spine without current clinical signs of radiculopathy following a disc prolapse with left C7 radiculopathy, treated surgically, and a mild, chronic adjustment disorder with mixed anxiety and depressed mood, relevant to the claimed injury.

Question 2: Does Mr Haq have a current work capacity? If so, is this situation likely to continue indefinitely?

Answer: In the Panel's opinion, the worker has a current work capacity.

5 The panel took into account, and adopted, the recommendations made in a Vocational Report of 4 October 2013, prepared by IPAR (Occupational Rehabilitation Services), to the effect that suitable employment for the plaintiff would include 'customer service (meet and greet), sales assistant and ticket seller'. The plaintiff challenged the answer to question two.

6 The applicable Act is the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), which replaced the Accident Compensation Act 1985. Section 282(1) of the Act allows a party to a dispute (defined in s 281(2) as a dispute relating to a compensation claim under the current or the previous Act) to refer that dispute to a conciliation officer for conciliation. Section 284 allows a conciliation officer to refer a medical question to a medical panel for an opinion. Part 12, Div 2 of the Act sets out the requirements for the constitution of a medical panel. Section 303 of the Act sets out the procedures and powers of a medical panel and provides that a medical panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit. A medical panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.

7 The function of a medical panel is set out in s 302, which provides that it is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by, inter alia, a conciliation officer. Section 304 states that a person or body referring a medical question to a medical panel must give the Convenor -

(a) a document specifying -

(i) the injury or alleged injury to, or in respect of, which the medical question relates; and

(ii) the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and

(b) copies of all documents relating to the medical question in the possession of that person or body.

(1) Subject to section 312, a Medical Panel must form its opinion on a medical question relating to a claim for a benefit under Part 5 referred to it -

(a) within 60 days after the Medical Panel receives from the Convenor the documents relating to the medical question; or

(b) within such longer period as is agreed by the Conciliation Officer, a court, VCAT, the Authority or the self-insurer.

(2) The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.

(3) Within 7 days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer, the court, VCAT or the Authority or the self-insurer its written opinion and a written statement of reasons for that opinion.

(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel -

(a) is to be adopted and applied by any court, body or person; and

(b) must be accepted as final and conclusive by any court, body or person -

irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.

9 The question was whether the plaintiff had a current work capacity.

'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.

10 That definition brings the definition of suitable employment into focus.

'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;

11 At the hearing, the plaintiff confined the appeal to two grounds:[1]

(a) That the panel failed to give consideration to relevant matters in reaching its decision; and

12 The plaintiff submitted that the medical history taken by the panel was incomplete, and that an assessment undertaken by IPAR on 30 September 2013, which was more comprehensive, should have been taken into account and specifically analysed or adopted or compared by the medical panel with its own findings in coming to its conclusions. The plaintiff submitted that the IPAR report was relevant to the medical panel's assessment, as it identified the capacities and the duties required for the roles recommended for the plaintiff, namely ticket seller, sales assistant or customer service (meet and greet).

13 The plaintiff pointed to a number of matters that he contended were not taken into account arising from the IPAR report, including the history taken of the plaintiff's restrictions in activities such as sitting, standing, reaching and driving. The plaintiff contended that those skills were required for the kind of employment identified in the report. The IPAR report noted that office based sedentary roles would require sound computer and English language skills, and there was evidence that the plaintiff's skills in that respect were limited. The interpersonal skills and attitude required for 'meet and greet' and sales roles was documented both in the IPAR report and in Dr Kennedy's opinion.[2] Dr Kennedy stated that individuals with adjustment disorder are unlikely to cope well with a position suited to proactive persons. The IPAR report identified the particular physical skills required for a sales assistant, and noted aspects of the defined duties where the plaintiff's abilities were limited.

14 The plaintiff questioned the findings of the suitability of the work for the plaintiff given the particular limitations that were identified. For example, in relation to the 'customer service' role, IPAR recommended that the plaintiff utilise 'ongoing and regular breaks to avoid sitting and standing for prolonged periods of time', and avoid 'heavy lifting duties as part of this role'. The plaintiff submitted that the identified limitations rendered the job descriptions unrealistic. The plaintiff's capacities, as assessed, were for a different job or role and the medical panel was obliged to consider whether the job description, which it actually addressed in its opinion, existed. Properly understood, the limitations revealed suitability for a rehabilitation program rather than a marketplace job. The panel's reasons did not reveal any appreciation of this issue. Although the panel does not consider the availability of a job, it must turn its mind to whether the jobs or roles under consideration were real in order to identify the capacities required of a worker being assessed as suitable for such roles.

15 More broadly, the plaintiff submitted that the medical panel's failure to consider or incorporate the IPAR report into its reasoning, whether by reference, analysis, comparison or adoption, meant that the panel was not properly informed about the plaintiff's limitations and restrictions. It was therefore unable to bring its relevant expertise to bear on the issue of whether, and to what degree, the plaintiff was fit to work. The panel did elicit a history of restrictions or limitations with walking, yet walking was a significant capacity required for the role of sales assistant or customer service.

16 The panel did not comment that the conclusions in the IPAR report referred to a 'Mr Cabrera' and assessed him as not having a current work capacity, which assessment was unlikely to change in the immediate future. The plaintiff submitted that what was not clear was whether the expressed final conclusion was intended to apply to the plaintiff or was an error in the report. What was clear was that the panel failed to clarify the apparent confusion, which raised a strong inference that the panel ignored the key vocational assessment that identified the job roles which were the subject of its opinion.

17 The plaintiff submitted that the Court of Appeal's approval in Kocak v Wingfoot Partners,[3] of an earlier observation made by Ashley J remained apposite. The Court said:

The issue for the judge [is] whether the Panel's reasons were adequate, not whether an adequate set of reasons could be fashioned to sustain the opinion at which the Panel said it had arrived. As Ashley J (as his Honour then was) said in Kamener v Griffin:[4]

it is no doubt of critical importance that the panel's reasons sufficiently explain why it reached the conclusions that it did. It is not for me [the judge] to validate those reasons by an exercise of my own.[5]

18 The plaintiff submitted that the finding made by the medical panel as to the plaintiff's current work capacity for the jobs described in the IPAR report was erroneous because, on the observations in that report, his capacity for those roles was qualified. For example, IPAR's assessment of the plaintiff's functional capacity to perform the identified option of the customer service role was qualified by the observation that the plaintiff would need to take ongoing and regular breaks, and avoid heavy lifting duties. The job description for the 'customer service' role specified 'light work involving exerting up to 20 pounds (approx. 9 kilograms) of force occasionally and/or up to 10 pounds (approx. 4.5 kilograms) of force frequently', as well as 'walking and standing to a significant degree'. The qualification had the consequence that the plaintiff was assessed not for a customer service role but for a hypothetical customer service job that permitted the worker ongoing and regular breaks and avoidance of heavy lifting duties. The tribunal lacked the expertise to conclude such a job actually exists.

19 Similarly, the description of the 'sales assistant' job in the IPAR report identified the physical requirements of that role as including 'walking and standing to a significant degree' and the plaintiff's suitability for such a role was again qualified by his physical limitations such that the role being recommended for the plaintiff was essentially redefined to become unspecified position that may not actually exist in the workforce.

20 The plaintiff submitted that the description of the 'ticket seller' job was insufficiently defined to allow proper assessment of the plaintiff's fitness to perform it, given his limitations. Further, it was likely that the ticket seller role required a level of computer and English language skills that the plaintiff did not possess, on the evidence of the IPAR report.

21 To define what he regarded as the appropriate role for the medical panel on the questions asked of it - a role which, the plaintiff submitted, the medical panel failed to correctly discharge - the plaintiff called in aid observations made by the Court of Appeal in Giankos v SPC Ardmona Operations Ltd.[6] In that case, the Court (Warren CJ, Neave JA and Hargrave AJA) made the following remarks:

Expert opinion evidence must relate to matters which are wholly or substantially within the expert's field of expertise. It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impediment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor's area of expertise.[7]

[I]f the tasks required in a particular job are analysed by reference to the physical capacities required (for example lifting weights or unwrapping pellets), a medical practitioner is qualified to express an opinion about whether a person with a particular impairment has the physical capacity to perform that particular task.[8]

22 The plaintiff submitted that the panel failed to address the individual physical requirements[9] of the jobs suggested as suitable for him, and that it lacked the expertise to make its determination that the plaintiff had a work capacity for different jobs on the material before it. The authorities identified that the panel's role was to identify what the physical capacities required for any particular job or role are and opine on whether the worker has restricted or sufficient capacity to undertake the necessary physical activities required for the job. In North v Homolka[10] Ashley JA said that if a medical panel was going to nominate additional jobs to those already identified as being suitable employment for the plaintiff, it needed to describe in its reasons what those jobs would entail, since 'absent job descriptions, the plaintiff was left with the job names; and that created difficulty in examining the panel's conclusions to see if they disclosed error'. So too the panel must understand the physical activities involved in a job, to consider the capacity of a worker to perform specific duties required in a job.

23 The panel failed to identify from the material before it the physical requirements of the jobs or roles identified as suitable for the plaintiff and thus failed to conduct its examination of the material supplied to it and of the plaintiff accordingly. There was no occupational physician on the panel and the panel did not seek further information or elaboration about the precise physical attributes to be evaluated by it in expressing its opinion about the worker's capacity for employment. The identification of the physical activities involved in a job was outside the expertise of the panel.

24 The plaintiff's adjustment disorder affected his work capacity in different ways. Dr Kennedy distinguished ticket seller from the other jobs because those other jobs required a capacity to be polite and engaging, and the plaintiff's capacity in that respect was limited by his adjustment disorder. In this respect, the medical opinion was unanimous and the panel does not explain its reasons for finding the plaintiff had the capacity to undertake those other roles of sales assistant and meet and greet roles.[11] Squarely raised by the psychiatric assessments, the panel was alert to this limitation and ought to have addressed it. Its failure to do so underlines the inadequacy of its opinion or the inadequacy of its reasoning processes.

25 The plaintiff also complained that the panel's reasons set out conclusions without meaningful reasons, developing two examples. The first example concerned the panel's treatment of evidence of his neck pathology. The panel viewed two sets of films the most recent of which (August 2104) it interpreted as showing ongoing two level stenosis but no impingement and that was the foundation for its conclusion that there was no current evidence of radiculopathy. The plaintiff submitted that the imaging described in the material before the panel recorded consistent and longstanding evidence of neck pathology with impingement both before and after surgery. That material begged an explanation from the panel of its conclusion. That was particularly so given the risk of further deterioration through the employment activities being assessed. Similarly, the panel referred to transferable skills acquired through prior employment, but such skills were not identified and the panel did not evaluate how such transferrable skills affected the assessment of the plaintiff's capacity to work in the roles identified as suitable.

26 The fifth and sixth defendants (the defendants), who appeared to defend the medical panel's opinion, submitted that a ground of review alleging a failure to take into account a relevant consideration can only be made out if the medical panel has failed to consider a matter that it was bound to take into account.[12] The plaintiff was required to show[13] that the panel was bound to take into account the matters referred to by the plaintiff in argument,[14] being the matters in the IPAR report, the effect of the plaintiff's adjustment disorder, his physical limitations and limited English and computer skills upon his ability to perform the recommended jobs. But these were not mandatory considerations and the plaintiff did not discharge that onus. Properly construed, s 304(b) does not make every document supplied to a medical panel, much less every part of every document, a mandatorily relevant consideration for the panel, regardless of the nature and content of the document.[15] They argued that the weight to be given to relevant considerations was a matter for the panel.

27 The defendants argued that, even if the panel were in fact bound to take the above matters into account, the Court ought to be unpersuaded that it failed to do so. They pointed to the fact that the IPAR report was one of only 21 documents which the panel had before it in making its determination, and that the presiding member of the panel certified in writing that all the material provided had been taken into consideration in forming the panel's opinion. In addition the panel stated that its opinion was based on the history provided by the worker and the panel's findings on examination of the plaintiff. The defendants argued that those statements ought to be accepted, particularly in light of the fact that the panel, in the course of its reasons, referred to specific aspects of the documents and noted discrepancies raised by them, on which it questioned the plaintiff.

28 The defendants noted that the IPAR report was specifically referred to in the panel's reasons, for example, when the panel stated that it 'discussed the job options identified as potentially suitable employment in the [IPAR report]' with the plaintiff. The panel specifically noted matters raised in the report including the recommendation by the vocational assessor that the worker undertake computer and English courses. It was submitted that, it having been shown that the panel did take the matters in question into account, the question of how much weight those matters ought to be given was a matter of the panel, not for this court.[16]

29 The defendants pointed to further indications that the panel specifically considered the matters which it was required to.

30 First, they noted that the IPAR history of the plaintiff's restrictions, which the plaintiff alleged was not taken into consideration, was almost a year old at the time of the panel's examination, and was therefore of limited, if any, significance. They submitted that there was no reason to conclude that the panel did not consider those limitations, and that when it did it was entitled to consider that they were of so little weight as not to require mention.

31 Second, the defendants submitted that the panel's reasons make it abundantly clear that it squarely considered the question of whether the plaintiff had adequate computer skills for the various employment options, as it took a formal history from the worker as to his education, qualifications, work experience and skills. The panel specifically took a history from the worker as to his computer skills, and the panel's reasons record that he said that they were limited, but that he was able to surf the internet and use eBay with the assistance of his children. The panel questioned the worker about the various employment options recommended for him; noted the recommendation that the plaintiff would enhance his labour market competitiveness if he undertook a computer course; found that the plaintiff's vocational experience reflected a reasonable skill set, some skills of which it considered to be transferable, and found that the worker's limited computer skills and the fact that he had not completed the recommended computer training would not unduly affect his employment options in suitable roles such as customer service, sales assistant and ticket seller. Moreover, the defendant's submitted that the IPAR report described jobs that required computer skills as long term goals because extensive retraining was required. The identified roles suggested as suitable were not considered to require sound computer skills and the training required for such roles, particularly the sedentary role of ticket seller, would be offered on the job. The plaintiff's contention that his computer skills were a further limitation on his capacity to work in the identified roles was misplaced.

32 The defendants submitted that the panel squarely addressed the plaintiff's adjustment disorder in reaching their determination. The panel conducted a psychiatric assessment of the plaintiff; took a detailed history of his past and current psychological symptoms and treatment; made various findings on its mental state examination regarding the plaintiff's apparent mental health; concluded that he was suffering from a 'mild, chronic adjustment disorder with mixed anxiety and depressed mood'; and squarely addressed the effect of the adjustment disorder on the plaintiff's capacity to undertake the 'meet and greet' or salesperson positions, when it found that the nature and extent of his psychiatric condition would not limit his employment options. The defendants submitted that, to the extent that the panel's conclusions differed from Dr Kennedy's opinion, even if that difference in opinion were a mandatory consideration, there was no basis to conclude that the panel failed to take it into account.

33 The defendants submitted that it was not necessary for the panel to refer in its written reasons to every piece of evidence,[17] and that it was not required to embark upon an explanation with which medical opinions it agreed or disagreed.[18]

34 The defendants submitted that the plaintiff's contention that his physical limitations (ie his limited ability to sit, stand or walk as recorded in the IPAR report) were not taken into account in the panel's assessment of his capacity to undertake the recommended jobs should be rejected. The panel's reasons clearly indicated it did not accept that the plaintiff's subjective reports of his pain and symptoms properly reflected his limitations. Two particular observations of the panel were identified to make this point. It noted that when distracted the plaintiff was able to move his neck to a reasonable degree, and that despite having reported sensations of 'pins and needles' in the fingers of his left hand, the panel's neurological examination revealed no clinical signs of radiculopathy. The conclusion as to the plaintiff's job options was, to quote the panel's report, reached '[n]otwithstanding the worker's reported symptoms'.

35 Finally, the defendants submitted that there was no substance to the complaint regarding the applicant's limited skills in reading and writing English. It is submitted that the panel conducted two separate examinations of the plaintiff, with no interpreter present on either occasion; that the history taken from the plaintiff included the observation that although his first language was Hindi he had 'learnt English from childhood and ha[d] adequate reading and writing skills'; and that the plaintiff had come to Australia in 1991 and had been subsequently engaged in a range of employment including in a plastics company, at a creative display company and as a forklift driver and labourer. The panel also found during the interview with the plaintiff that he spoke good English, describing his English language skills as 'reasonable'. It was found that, notwithstanding the recommendation by IPAR that the worker undertake an English course, and although he had not completed that English course, this would not adversely affect his employment options. The defendants submitted that this conclusion was clearly open to the panel on the evidence.

36 In Wingfoot Australia Partners Pty Ltd v Kocak,[19] the High Court stated the legal principles that govern this ground of appeal. For my purposes, it is convenient to refer to the Court of Appeal's summary of Wingfoot in Gruma Oceania Pty Ltd v Bakar & Ors.[20]

In Wingfoot, the High Court held that a medical panel which gives reasons that are inadequate to meet the standard required of a written statement of reasons under s 68(2) of the Act fails to comply with the legal duty imposed on it by that section and thereby makes an error of law. As a panel's reasons form part of the record of its opinion pursuant to s 10 of the Administrative Law Act 1978, inadequacy of reasons wills inevitably be an error of law on the face of the record. It follows that certiorari is available to remove the legal consequences of an opinion for which non-compliant reasons have been given.

The Court stated that the duty of a medical panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) of the Act itself. In the absence of express statutory prescription, the standard which written reasons must meet can be determined only by a process of implication.

The Court stated that the function of a medical panel in forming its own opinion is of particular significance in determining by implication the standard of the reasons it must provide. While a medical panel may be supplied with the opinions of other medical practitioners, and may choose to place weight on a particular opinion, it 'goes too far ... to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions'. The function of a medical panel is neither arbitral nor adjudicative and therefore it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on the medical question referred to it. Rather, the function of the panel is to give its own opinion on the medical question referred by applying its own medical experience and expertise.

The objective of s 68(2) of the Act, within the context of the scheme of the Act as a whole, is that persons affected by an opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. The Court [in Wingfoot] held that the standard required of a written statement of reasons given by a medical panel can be stated as follows:

The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

The High Court rejected the proposition that it is incumbent upon a medical panel to provide a comprehensible explanation for rejecting any expert medical opinion provided to it or for preferring one such opinion over another. A medical panel explaining the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

However, the Court accepted that the nature of the question referred to a medical panel and the way that question was addressed by other medical practitioners in opinions provided to a medical panel, might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a medical panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons.

As a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a 'beneficial construction' in the sense that they should 'not ... be scrutinised ... over-zealous[ly] ... by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In Gamble v Emerald Hill Electrical Pty Ltd, this court affirmed the following principles that apply to judicial review of a medical panel's reasons:

The court on judicial review should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker, and should not construe the reasons for decision 'minutely and finely with an eye keenly attuned to the perception of error'.

...

[A] court hearing a judicial review application in relation to a Victorian medical panel will ordinarily view with disfavour grounds of review which rely on mere looseness in the language or unhappy phrasing in the Panel's reasons. Such grounds usually fail, and their inclusion tends to suggest that the judicial review application as a whole lacks merit.

In considering whether a medical panel's reasons are inadequate, it is important to distinguish between the panel's opinion and the reasons for the opinion. The opinion comprises the panel's answers to the medical questions referred to it. The panel's findings and the other matters set out in panel's reasons constitute its reasons for the answers to the medical questions. Compliance with s 68(2) of the Act depends on the adequacy of the panel's reasoning for arriving at the answers to the medical questions.[21]

37 A number of older cases were cited by the plaintiff but it is not necessary to burden these reasons with an analysis of their current standing.[22]

38 The plaintiff submits that the path of reasoning which the panel followed in reaching its conclusion was not sufficiently clear.[23] He points, in particular, to the panel's failure to discuss the effect of his adjustment disorder upon his ability to work in the recommended jobs, despite evidence from two psychologists that his condition could impinge upon his ability to do so; to the panel's failure to explain its response to medical reports indicating that the plaintiff suffered from neck pathology with impingement, instead stating, in reliance upon a different report, that he suffered 'residual dysfunction of the cervical spine without current clinical signs of radiculopathy'; and the panel's assessment of the worker's vocational experience and skill set, which did not contain an explanation as to what the latter actually was.

39 The defendants submitted that the standard of reasons required of a medical panel differed markedly from the standard of reasons required of a judge giving reasons for a final judgment.[24] They referred back to their arguments made in relation to the first ground of appeal, and submitted that the panel's reasons transparently show that the panel took into account all relevant considerations in concluding that the worker had a current work capacity, including the nature of his incapacity, his skills, and the requirements of the three identified jobs.

40 In regard to the point made by the plaintiff about the assessment of his neck pathology, the defendants noted, in oral submissions, that the panel should not be taken to have opined that the plaintiff had no radiculopathy; only that there were no current clinical signs of such.

41 There was considerable, and understandable, overlap in the submissions on each ground as the analysis of whether a matter has not been adequately considered invited analysis of the panel's actual path of reasoning.

42 Noting that it is for the plaintiff to show that a consideration that the panel has failed to take into account was one which it was bound to take into account, many of the matters relied on by the plaintiff are found in the material, particularly the IPAR report. The fact that the IPAR report was provided to the panel in discharge by the conciliation officer of his duty under s 304(b) does not make all of the matters within that report considerations that the panel must take into account. Section 304(b) required that the conciliation officer, who was the referring body in this case, must give to the convener of the medical panel copies of all documents relating to the medical question in his or her possession.

43 As Cavanough J stated in Vellios Electrical Contractors Pty Ltd & Anor v Barton,[25] where the issue was whether a medical panel had not duly considered the plaintiff's written submission:

In my view, the fact that, normally, the written submissions of the parties to the Medical Panel are included in the bundle of documents submitted to the Panel by the person or body referring the medical question pursuant to s 65(6B)[26] of the Act does not, of itself, mean that every such submission, much less every part of every such submission, must be dealt with in the Medical Panel's statement of reasons in such a way as to show that the decision-maker has engaged in an 'active intellectual process' in relation to the submission or part. The requirement to engage in an 'active intellectual process' is a requirement that applies only in relation to mandatorily relevant matters, factors or considerations. The identification of mandatorily relevant considerations for a statutory decision-maker depends on the terms of the relevant statute, not on the terms of whatever submission happens to be made to the decision-maker. Section 65(6B) of the Act does not make every submission, much less every part of every submission, a mandatorily relevant consideration for a Panel regardless of the terms of the submission. Further, as Wingfoot emphasises, it is not the function of a Medical Panel to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. Rather:

The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

44 By analogy of reasoning, neither the IPAR report nor every discrete observation or matter recorded in it becomes a mandatorily relevant consideration for a panel. Neither the terms of the Act nor the medical questions posed for the panel mandated that the panel was bound to take into account all of the matters identified by the plaintiff from the IPAR report. That consequence does not follow merely from the fact that the report was provided to the panel by the conciliation officer.

45 That said, the plaintiff has not satisfied me that the panel failed to consider the IPAR report or failed to address the particular matters that he identified. The panel's reasons expressly state that it formed its opinion with regard to the documents listed in enclosure A and that enclosure identified the IPAR report. Further, the enclosure also evidenced a written confirmation by the presiding member that the information in the schedule of attachments (enclosure A) was taken into account by the panel in forming its opinion. Unlike Macaulay J in Maribyrnong City Council & Anor v Malios & Ors[27] and Cavanough J in Vellios, I see reason not to accept these statements at face value..

46 The fact that the concluding opinion in that report is that Mr Cabrara did not have a current work capacity and that such assessment was unlikely to change in the immediate future calls out for clarification when the named worker is not the person the subject of the report or the medical opinion. The ambiguity was whether that assessment applied to the plaintiff, or whether the assessment of Mr Cabrera had been wrongly included in the report by an administrative error. It is curious that the error, whatever it be, was not noticed. The first page of the report appears to suggest, in summary, that the assessor, a psychologist named Collins, identified 5 suitable employment options being the three mentioned in these reasons as well as packer and product assembler. The report's discussion of each of these employment options identified a particular limitation, which was highlighted by the plaintiff in submissions as demonstrating that he was unsuited to the identified role and only suited to a modified version of the job that may not have been a real job.

47 The medical assessment on which the report proceeded recommended 'light sedentary type occupations' as being within the plaintiff's capacities after a period of retraining. Each identified role required physical demands in excess of a sedentary role, usually significant walking or standing or some lifting. The report recommended that the plaintiff would need to avoid sitting and standing for prolonged periods of time and heavy lifting duties. In its assessment of whether suitable employment could be found, the report makes no allowance for the identified limitations on the plaintiff's capacities to undertake such employment when those limitations would likely be of particular interest to a prospective employer. The assessment is formulaic.

48 The failure of the panel to seek clarification of or comment on the report's conclusions is not determinative of the issue whether the panel properly considered the report. As the defendants' counsel suggested, the report is full of references to the plaintiff and the reference to Mr Cabrera's capacity for employment could reasonably be described as an error by the author. Most likely that is what the panel thought. Although it is conceivable that the conclusion expressed in the report did apply to the plaintiff and not Mr Cabrera, and there was no evidence of clarification being sought from Ms Collins, the panel's reasons reveal its actual path of reasoning from its assessment of the plaintiff's capacities and limitations to the employment roles identified as suitable for the plaintiff. What is evident is that the parts of the report that were material to the panel's deliberations were duly considered.

The panel discussed the job options identified as potentially suitable employment in the IPAR Supplementary NES Vocational Assessment Report dated 4 October 2013 prepared by Ms Chloe Collins, occupational rehabilitation psychologist with the worker, namely customer service (meet and greet), sales assistant, ticket seller, packer, and product assembler. When specifically questioned by the panel about the first three of these employment options, the worker said he could "give one of these jobs a go if they were available", but is concerned about his neck condition and pain. The panel noted that Ms Chloe Collins opined the worker would enhance his labour market competitiveness and communication skills if he undertook a computer course and English course respectively. The worker indicated that he had not undertaken such courses to date.

50 This passage makes plain that the panel interpreted the IPAR report as recommending the employment roles of customer service (meet and greet), sales assistant, and ticket seller as potentially suitable for the plaintiff in the opinion of the report's author. Notwithstanding the ambiguous conclusion to the report, that interpretation was open to the panel. The panel considered the requirements of those roles and the limitations identified in the report because it specifically questioned the plaintiff about the employment roles. The plaintiff's response to the panel broadly followed his response to Ms Collins. He was concerned that his neck condition and pain would preclude him from such roles, if they were available. The panel was concerned with the former, but not the latter, consideration. For these reasons, I am satisfied that the panel did take the IPAR report into account and formed its opinion appropriately on that report.

51 After the passage I have just set out, the panel's reasons continue to explain its conclusion that the plaintiff suffered from residual dysfunction to the cervical spine without current signs of radiculopathy. This conclusion should not be misunderstood. The panel did not conclude that the plaintiff had no radiculopathy, or that there were no limitations on the plaintiff's physical capacity to work. In its reasoning to this conclusion, the panel explained in sufficient detail the actual path of reasoning that it followed and I am satisfied that the opinion does not involve any error of law.

52 First, the panel set out that it examined the worker and it recorded its findings. It was not required of the panel that it undertake a comparative analysis of its findings on examination with those recorded by others about examinations on different occasions, particularly when the findings related to issues such as restrictions in the range of movement or assessment of pain responses, reflexes and the like. A medical panel must apply its own medical experience and expertise. That is not to say that there may be occasions when the nature of the difference between the reported findings of an earlier examination by another practitioner and the findings of the panel will require analysis in order to show the panel's reasoning rather than a presumptive conclusion that may not be free of error, only that this is not such an occasion.

53 Moreover, the panel was obliged to confine its assessment to the particular compensable injury and there was little point in a comparison of its findings with others that included other injuries. The plaintiff had a compensable knee injury and a non-compensable back injury as well as the relevant neck, shoulder and hand injury, each of which caused restrictions in his capacities. The knee injury was not part of the claimed injury before the panel. The panel's duty was to answer the medical questions on the basis of the worker's condition at the time if its examination but the IPAR report was not so limited. The panel made no finding that the plaintiff experienced any restriction in his capacity to sit or stand by reason of the relevant compensable injuries.

54 Next, the panel reviewed the available medical imaging and noted the reports of medical imaging included in the referral materials. The plaintiff submitted that this imaging described consistent and longstanding evidence of neck pathology with impingement both before and after surgery and that material begged an explanation from the panel of its conclusion. The panel viewed two MRIs of the cervical spine done on 2 July 2012 and 22 August 2014 that showed mild foraminal stenosis at C5/6 and C6/7, but did not report nerve root compression. The panel identified that there were reports of an MRI on 17 January 2013 identified left foraminal stenosis at C5/6 and C6/7 resulting in mass effect on the left C6 and C7 nerves and that an MRI on 22 October 2013 also showed impingement on the left C6 and C7 nerve roots. From this range of imaging results, the panel preferred the most recent investigation and added to it its own findings on clinical examination. Its conclusion reveals a clear path of reasoning that shows appropriate consideration of all of the evidence. It said:

The panel considered the worker's reported history of symptoms in his left upper limb and noted that the treating neurosurgeon had documented the finding on physical examination prior to surgery of an absent left triceps jerk consistent with radiculopathy. While the panel acknowledged the worker's reported persistent neurological symptoms in his left upper limb, on physical examination the panel found no clinical signs of radiculopathy. The panel therefore concluded that there is no current clinical evidence of radiculopathy.

55 I do not agree that it is incumbent on a medical panel to explain its findings by a comprehensible explanation for rejecting another expert medical opinion. What the panel must do, as in this case it did, was explain the path of reasoning it followed for the conclusion that it reached. In this case, that path of reasoning involved analysis of varying reports on MRI investigation and the panel was entitled to, as plainly it did, apply its own expertise in concluding on the whole of the evidence before it that, at the time of its investigation and opinion, there was no current clinical evidence of radiculopathy.

56 Once it reached that conclusion, the panel turned to work through the matters that are suggested by the statutory definition of suitable employment. The panel's analysis of the statutory markers disclose what it took into account and how it did so and in my view are sufficient to show that it discharged its statutory task without error. It concluded that the worker's reports of pain were disproportionate to its findings on clinical examination. Although the plaintiff was disappointed with the merit of this conclusion, it was reached, as the reasons show, after due consideration of the plaintiff's reported symptoms, his functional restrictions with domestic tasks and driving tolerance reduced by pain, by applying its own medical experience and expertise.

57 Another complaint made by the plaintiff concerned the panel's psychiatric assessment. I do not accept the plaintiff's submission that in this respect, the medical opinion was unanimous. The diagnosis of mild chronic adjustment disorder was consistent with that of Dr Kennedy. The plaintiff's complaint was that Dr Kennedy's conclusion that persons with such a disorder are unlikely to cope particularly well with an employment role that requires them to be proactive was not disputed by the panel and the panel did not explain its reasons for finding the plaintiff had the capacity to undertake those roles when it failed to disagree with Dr Kennedy statement. I do not accept that the panel's failure to engage directly with Dr Kennedy's observation underlines the inadequacy of its opinion or the inadequacy of its reasoning processes.

58 The panel reasoned that the plaintiff's disorder was mild and that it found him, on its examination, to be alert, well groomed, and neat in his attire. Although his mood was mildly anxious and mildly flat, the panel noted that it was 'no more than that' and the plaintiff exhibited a good range of mood, with good eye contact and an appropriate capacity to smile and laugh. He was not at any stage fearful or agitated. In applying its own medical experience and expertise, the panel was entitled not to adopt a generalisation such as that expressed by Dr Kennedy and was not obliged to reason to its conclusion by opining on the correctness of Dr Kennedy's opinions. The panel's findings about the plaintiff's affect support its conclusion that the plaintiff's adjustment disorder did not render him unsuited to working as a sales assistant or in customer service.

59 The panel completed its reasoning by returning to the 'job options identified as potentially suitable employment in the Vocational Report dated 4 October 2013'. The reasons focus on the identified duties, not on the limitations that drew comment from Ms Collins, the author of that report. The panel did not agree with Ms Collins. It concluded that the plaintiff could perform the identified duties associated with the jobs or roles postulated for the worker because its assessment of the plaintiff's restrictions in the activities required for the identified employments differed from that expressed by others in the materials provided to it.

60 All that the panel needed to determine was that the plaintiff was currently suited to any one of the identified suitable employments, and the job description of a ticket seller is recognised as legitimate employment for the statutory purpose. The plaintiff was unable to put any convincing argument that a ticket seller was not suitable employment for him without relying on injuries he had suffered that were not relevant to the panel's deliberations. The relevant injury was residual dysfunction of the cervical spine, affecting the neck, shoulder and left arm, not the knee injury or the back injury. Ticket seller is a sedentary job. The plaintiff's submission in respect of that job ultimately focused on his computer skills. There was no suggestion that the plaintiff lacked any of the physical attributes and capacities for operating a computer. His level of skill in doing so was a different consideration, but the panel was entitled to accept the IPAR report assessment that for that job even existing quite limited computer skills would be developed to an appropriate level by on the job training. It cannot be suggested that the panel failed to consider the plaintiff's capacities in relation to computers.

61 I will add, in concluding, some further general observations. First, it is appropriate to bear in mind what JD Phillips JA said in S v Crimes Compensation Tribunal[28] because this is a question on which minds can legitimately differ involving a value judgment on the material before, and the investigations of, the panel. Whether the plaintiff had a current work capacity and the prospect of that capacity continuing were questions of degree and properly questions of fact, not law.

62 Secondly, once the approach of the panel to the IPAR report is properly understood, the plaintiff's submission, based on Giankos, that the panel failed to address the individual physical requirements of the jobs suggested as suitable for the plaintiff, and that it lacked the expertise to make the determination that it did about other hypothetical jobs in reliance upon the material before it, must be rejected. The panel correctly identified that its role was to opine on whether the worker had sufficient capacity to undertake the necessary physical activities required for the identified job and in doing so, it looked at the physical activities identified in the report. That said, I would add that Giankos was a proceeding in which the evidence was taken under the provisions of the Evidence Act 2008. The expert evidence in that case was thought necessary to inform the court in respect of a relevant issue and the Court of Appeal was speaking about the requirements of s 79 of that Act in that context. The Workplace Injury Rehabilitation and Compensation Act 2013 provides that medical questions, such as was asked in this case about capacity for employment, are to be determined by a medical panel compromised of medical practitioners that may inform itself as it thinks fit and is not bound by the rules of evidence.[29] It might be doubted that the passage from Giankos cited by the plaintiff provides any assistance.

63 For these reasons, the plaintiff has not persuaded me that the panel failed to give consideration to relevant matters in reaching its decision, or that the panel's reasons were inadequate in the sense of being insufficiently detailed to reveal reviewable error.

[1] The abandoned grounds were: procedural unfairness; Wednesbury unreasonableness; and taking into account an irrelevant consideration (i.e. having regard to the appearance of the worker during his medical examination). Only the second of these grounds was explicitly articulated as a ground in the plaintiff's written case. The defendants were not aware until the hearing that grounds were to be abandoned.

[2] Dr Kennedy's psychiatric report was before the panel.

[3] [2012] VSCA 259 (Nettle, Osborn JJA and Davies AJA). This decision was overturned by the High Court.

[5] See also Clarke v National Mutual Life Insurance & ors [2007] VSC 341, [50], in which J Forrest J approves Ashley J's remarks in Kamener v Griffin.

[7] Ibid 141 [96] (citations omitted).

[9] Including the plaintiff's English language skills and computer skills.

[11] Relying on Sherlock v Lloyd [2008] VSC 450.

[12] Minister for Aboriginal Affairs v Peko-Wallsend (1986_)_ [1986] HCA 40; 162 CLR 24, 39-41.

[13] B Marsh Nominees v City of Moonee Valley [2004] VSC 237, [29], XYZ v State Trustees Ltd & Anor [2006] VSC 444, [31].

[14] Set out above at [13].

[15] Citing, analogously, Vellios Electrical Contractors Pty Ltd v Allianz Workers Compensation (Victoria) Ltd [2014] VSC 664, [79].

[16] Minister for Aboriginal Affairs v Peko-Wallsend (1986_)_ [1986] HCA 40; 162 CLR 24, 41.

[17] Citing Vellios [2014] VSC 664, [78].

[18] Citing McIntyre v Fish [2015] VSC 82, [121].

[20] [2014] VSCA 252 (Neave, Santamaria and Kyrou JJA).

[21] Gruma [2014] VSCA 252, [23]-[30].

[22] See the observations of Kyrou J (as he then was) in Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135, [167], [179]. This decision was overturned on appeal on different grounds (see [2015] VSCA 17) that leave unaffected Kyrou J's concerns about reliance on decisions of this court pre-Wingfoot on the issue of sufficiency of reasons of a medical panel.

[23] Citing the remarks of Kyrou J in Sherlock v Lloyd & Ors [2008] VSC 450, [41]-[45].

[24] Citing T Forrest J in Denham v Consolidated Herd Development [2014] VSC 520.

[25] [2014] VSC 664, [79] (citations omitted).

[26] The predecessor section to s 304(b).

[28] [1998] 1 VR 83, 89. See also Woolworths Ltd v Warfe [2013] VSCA 22, [129]-[132].

[29] See s 303(1) of the Workplace Injury Rehabilitation and Compensation Act 2013.

Workplace Injury Rehabilitation and Compensation Act 2013(Vic)

Injury Rehabilitation and Compensation Act 2013

Compensation Act 1985

At a glance

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