Plaintiff v Defendants

2 The Panel gave its opinion in answer to the two questions ('the decision') by a certificate dated 24 June 2013. It also gave written reasons for the decision, dated the same date ('the reasons').

3 The plaintiff says that the decision should be quashed. She argues that the Panel made an error of law on the face of the record or a jurisdictional error by making a factual finding that was not open to it on the evidence. She also maintains that it made another error of law by failing to give adequate reasons. She seeks not only an order in the nature of certiorari quashing the decision but also one in the nature of mandamus, referring the medical questions to a differently constituted panel for reconsideration in accordance with law.

4 The first defendant, which was the plaintiff's employer, appears to dispute her claims.

5 The second defendant, the Presiding Member of the Panel, Dr Susanne Homolka, is an occupational physician, the third defendant, Dr Jennifer Harmer, is a rheumatologist, the fourth defendant, Mr Paul Kierce, is an orthopaedic surgeon and Associate Professor Peter Doherty, the fifth defendant, is a psychiatrist. The defendant members of the Panel have adopted the customary course of not participating in the hearing and agreeing to abide by the outcome.[1]

6 The Panel stated that it formed its opinion by reference to the documents and information referred to in the enclosures to the reasons, the history given by the plaintiff and its examination findings on 13 May 2013. The Panel noted that the plaintiff was examined by the members with the assistance of a Turkish language interpreter.

7 The material which the Panel stated that it had considered included:

(a) a medical report of Associate Professor Saji S. Damodaran, a consultant psychiatrist, dated 21 August 2012;

(b) a medical report from Dr Michael Bowles, an occupational physician, dated 6 September 2012;

(c) a Nabenet 130 Week Vocational Assessment Report, by Julie Tran, a rehabilitation consultant, dated 3 September 2012; and

(d) medical reports of Dr McMahon, the plaintiff's treating general practitioner, dated 11 October 2012 and 27 March 2013.

8 The medical questions and the Panel's answers comprising the decision are set out in the certificate as follows:

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

Answer: In the Panel's opinion the worker is currently suffering from a residual left shoulder dysfunction following a rotator cuff injury, surgically treated, and from a rotator cuff dysfunction of the right shoulder, relevant to the claimed left shoulder injury.

Question 2: Does the worker have no 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.

9 The Panel reached its ultimate conclusion that the plaintiff had a current work capacity partially on the basis of an intermediate factual finding that she had 'transferable skills' which included 'reasonable English communication and literacy skills'. The plaintiff argues that the Panel's finding was in that regard not open, because there was no evidence before it as to her ability to write in English.

10 The plaintiff also challenges the adequacy of the reasons. She argues that they are inadequate because the Panel failed to give sufficient detail as to the nature of the work tasks it found she was able to perform and the relevant differences between them and those it considered she was incapable of carrying out because of her limited physical, linguistic and technical capacities.

11 The Court's jurisdiction to grant certiorari may be exercised by way of judgment or order under o 56 of the Supreme Court (General Civil Procedure) Rules 2005.

12 Jurisdictional error by a tribunal will provide the basis for relief in the nature of certiorari under o 56.[2] Where not excluded by statute, a tribunal's error of law on the face of the record will also provide a basis for certiorari, even if the error is not jurisdictional in that it does not breach a condition of the valid exercise of that power.[3]

13 It is an error of law to make a finding of ultimate or intermediate fact for which there is no evidence. It is a question of law as to whether there is material that could support a factual finding.[4] A 'no evidence' challenge to a factual finding will fail where there is even a slight evidentiary basis to support it.[5]

14 In Wingfoot Australia Partners Pty Ltd v Kocak,[6] the High Court held that a Medical Panel under the Act is a 'tribunal' whose reasons for decision form part of that decision and are incorporated in the record under s 10 of the Administrative Law Act 1978. A Medical Panel makes an error of law if it fails to comply with the statutory obligation to give a written statement of its reasons for its opinion under s 68(2) of the Accident Compensation Act 1985. A failure by a Medical Panel to comply with that statutory obligation by providing adequate reasons will constitute an error of law on the face of the record for the purposes of an application for relief in the nature of certiorari.[7]

15 French CJ, Crennan, Bell, Gageler and Keane JJ described the nature of a Medical Panel's obligation to give reasons under s 68(2) of the Act 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.[8]

16 The Panel was told that the parties had agreed as to these facts:

(a) that the plaintiff was born on 1 September 1961;

(b) that she was employed as a process worker with the defendant from 21 January 2009;

(c) that she had developed left shoulder pain and had lodged a WorkCover claim on 23 October 2010;

(d) that her claim had been accepted and weekly compensation payments had commenced on 15 September 2010; and

(e) that on 29 November 2012, the insurer, CGU, had issued a notice terminating her entitlement to weekly compensation payments from 9 March 2013, on the grounds that she had a current work capacity or had an incapacity which was not likely to be indefinite.

17 The Panel was also told that the parties were in dispute as to whether the plaintiff had a current work capacity and whether it was likely to be indefinite.

18 Section 93 of the Act entitled the plaintiff to weekly payments of compensation if she was incapacitated for work and that incapacity resulted from or was materially contributed to by an injury which entitled her to compensation under the Act.

19 The Panel was referred to relevant definitions in s 5(1) of the Act providing that:

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;

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

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

(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; and

(ii) the nature of the worker's preinjury employment; and

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

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

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

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

20 As noted above, s 68(2) of the Act required the Panel to give a certificate as to its opinion and a written statement of reasons for its opinion.

21 I accept the plaintiff's unchallenged evidence in her affidavit of 29 October 2013. She deposes that she is of the view that she cannot speak English and cannot deal with her lawyer directly without an interpreter. She has authorised her lawyers to make arrangements for appointments by telephone with her children. She only spoke English once during the Panel's examinations: in answer to a query as to the number of her children, she said, 'two, one son one daughter'. She could 'pick up a word or two from a question but did not understand where the word belonged'. She could not have comprehended the Panel members' questions without the interpreter's assistance. She attends her own medical appointments with her children who interpret for her. The WorkCover insurer also liaises with her through her children.

22 I also accept the unchallenged evidence of the plaintiff's solicitor, Mr John Typaldos that, in his opinion, she has 'poor' spoken English and that, during the five months in which he has acted for her, he has always spoken to her through an interpreter. Further, with her authority, he liaises directly with her children when discussing her claim or making appointments.

23 The reasons record that the plaintiff told the Panel a number of things including that:

(a) she had attended school until the age of 18 in a Turkish village;

(b) she had migrated to Australia from her native Turkey in 1988;

(c) her work history in Australia began within a couple of months of her arrival and included a number of years as a sewing machinist, about three years of salad preparation and packing in a salad factory and meat packing for 12-18 months from 2007;

(d) she had worked from 21 January 2009 up to the time of her injury for the first defendant, packing tortilla breads, stacking boxes into pallets for transport, cleaning, labelling and making up cartons on a rotational basis;

(e) from about 9 September 2010, she had begun attending Dr McMahon, the general practitioner to whom her employer had sent her;

(f) her English communication skills were reasonable, with a level of comprehension such that she understood everything on television, albeit not when reading newspapers, but that talking could sometimes be problematic for her;

(g) her numeracy skills were good but she could not use a computer; and

(h) she had previously unsuccessfully applied for work as a school crossing supervisor and an attendant in a Turkish coffee shop, where she had been told that her age and shoulder problems should prevent her from working.

The Panel considered all aspects of the definition of "suitable employment", "current work capacity" and "no current work capacity" in the Accident Compensation Act 1985 including, and in particular:

• The nature, extent and severity of the worker's physical medical condition and its effect on her physical capacity to cope with employment duties and to attend a workplace on a consistent basis;
• Her age of 51 years, which the Panel considers only slightly limits her employment options;
• Her place of residence in outer Melbourne suburbia, which the Panel considers does not preclude a range of employment options;
• Her possession of a driver's licence and reported inability to drive for long distances, which the Panel considers does not limit her employment options;
• Her transferable skills, which include a favourable personal presentation, reasonable English communication and literacy skills, good numeracy skills, but no computer skills, and extensive occupational experience in the food manufacturing industry;
• The occupational rehabilitation services which have been provided for the worker, which include a Vocational Assessment and an NES Job Seeker Plan; and
• The opinion of the worker's treating general practitioner, Dr Andrew McMahon, expressed in his report, dated 27 March 2013, wherein Dr McMahon considered the worker to have no current work capacity...

The Panel also took into account the 130 Week Vocational Assessment Report, dated 3 September 2012, which was included with the Referral material, and which outlined the employment options of a school crossing supervisor, a car park attendant, a retail sales assistant, a packer, a process worker (plastic), and a mail sorter.

The Panel also considered the information and opinion contained in the report, dated 6 September 2012, of the independent medical examiner Dr Michael Bowles, occupational physician, which was included with the Referral material and wherein Dr Bowles considered the worker capable of performing suitable alternative duties within specified restrictions, including "no repetitive forceful use of either arm, no use of either arm above horizontal and working with elbows by the sides", and with hours of work limited to 4 hours per day on 3 days per week. The Panel agreed with the recommendations made by Dr Bowles.

25 The Panel went on to consider Nabenet's 130 Week Vocational Assessment Report of 3 September 2012. It disagreed with the author's view that the plaintiff would be capable of work as a retail sales assistant and mail sorter, stating:

The Panel considered that the vocational options of a retail sales assistant and a mail sorter would require the worker to work with her arms elevated at times, and potentially also to undertake some heavy lifting, from which the worker would be precluded by the nature of her physical medical condition. The Panel therefore considered that the vocational options of a retail sale assistant and a mail sorter would not constitute suitable employment for the worker.

26 It turned to Nabenet's other considered options of work as a packer and process worker:

The Panel considered that the vocational options of a packer, a process worker (plastic) and a car park attendant could potentially be suitable in selected environments, but the Panel also considered that the duties of a packer and of a process worker (plastic) in many positions would not allow the worker to work with her arms below horizontal and with her elbows by her sides, and that the duties of a car park attendant in some car parks would require computer skills and English communication skills at a level not possessed by the worker at this time. The Panel therefore considered that the vocational options of a packer, a process worker (plastic), and a car park attendant would not constitute suitable employment for the worker.

27 The Panel then went on to say this as to the work it considered was open to the plaintiff:

Based on its collective knowledge, experience and expertise, and its clinical findings in the course of its physical examination of the worker on 13 May 2013 the Panel considered that the worker has transferable skills which are sufficient to secure employment in a range of suitable vocational options including, but not limited to, work as a school crossing supervisor, as identified in the 130 Week Vocational Assessment Report. Based on its own knowledge and experience of industry the Panel considered that the worker would also be capable of engaging in a range of other occupations, including work as a small product assembler, as a ticket seller, and as a sandwich maker, amongst others.

The Panel considered that there is a range of vocational options which would be suitable for the worker's current physical medical condition and which she could perform on a reliable and consistent basis, and the Panel therefore concluded that the worker has a current work capacity.

The Panel noted, and considered, the opinion of the worker's treating general practitioner, Dr Andrew McMahon, expressed on his report, dated 27 March 2013, wherein he stated that the worker "has no capacity for her pre-injury duties and it is unlikely that there are any suitable duties currently for her, particularly with the effect of her condition on (sic) pain and function, although this would acquire (sic) further detailed assessments". The Panel agreed with Dr McMahon that the worker is not capable of performing her full pre-injury duties but formed a different opinion in respect of her current work capacity based on its own physical and psychiatric examinations of the worker on 13 May 2013 and for the reasons above.

28 The plaintiff first argues that, as an Oxford English Dictionary definition of 'literacy' includes the ability to write, it was not open to the Panel to make the finding that she had reasonable English language literacy skills in the absence of any evidence that she could write in English.

29 In making this submission, the plaintiff refers to evidence as to her linguistic difficulties, noting her use of an interpreter at the examination and the Panel's own finding that she would need more English training to work as a car park attendant. She also refers to her own report to Nabenet that she had 'basic' English literacy skills.

30 The first defendant responds by referring to the evidence as to the plaintiff's age, education, jobs in Australia, ability to read newspapers and her own assessment of her English language skills.

31 The plaintiff also argues that the Panel failed to comply with its statutory obligation under s 68(2) of the Act to give written reasons for the decision. Senior counsel for the plaintiff submits that it failed to state the reasons why it considered the plaintiff capable of the nominated types of work in the context of its findings that she was incapable of other work activities for the specified reasons of her physical and linguistic limitations.

32 The 'catch all' reference to its 'collective knowledge, own experience and expertise' and examination findings did not suffice in the circumstances.

33 The Panel was required to condescend to detail as to its factual findings as to the nature of the work duties it considered suitable and, in particular, the relevant differences between those duties and the content of the tasks it considered her incapable of performing because of her physical or linguistic limitations. It was obliged to explain the process by which it reasoned to its conclusion that, for example, work as a car park attendant which might require communications in English with drivers would not be suitable for her in some situations and yet she might have the current capacity for work as a school crossing supervisor where it might reasonably be thought she would need to have equivalent English communication skills to deal with children, those accompanying them and, on occasion, others such as police or ambulance officers or school administrators. Similarly, the plaintiff argues, the Panel has failed to explain the nature of the duties she could perform as a small product assembler and the reasoning as to how she would be able to do so despite what the Panel considered were the physical limitations which would prevent her from working as a process worker (plastic) or a packer.

34 The defendant responds that the Panel's findings about the restrictions on her work capacity due to her shoulder injury left open a wide range of occupations which the Panel was not required to describe, citing Calleja v Franet Pty Ltd.[9]

35 The first defendant argues that the reasons make it clear that the Panel reached its conclusions as to the jobs she could do on the basis of considerations which included the plaintiff's physical restrictions, her transferable skills, age and place of residence and having regard to its own knowledge experience and expertise. There was no need for it to go further and detail the duties they entailed and why she was able to physically perform them.

36 I reject the plaintiff's argument that there was no evidence for the Panel's conclusion that she had reasonable English literacy skills in so far as they included the ability to write in English

37 First and significantly, this was the plaintiff's own assessment of her skills in response to the Panel's enquiry about her transferable skills. She also told the Panel that she could read newspapers which the context would suggest might include English language papers. There was evidence that she had been educated in Turkey to the age of 18. There was no evidence that she was unable to write as a consequence of her physical or mental condition. Indeed, although the Panel concluded that the plaintiff had 'no computer skills', there was evidence in the Nabenet report that she had reported being able to operate a computer for 30 minutes, visiting Turkish websites. It would be reasonable to assume that this activity might require the entry of at least some Turkish words for access. There was also evidence that the plaintiff had completed an English language course from the Nabenet assessment report.

38 On the other hand, I agree with counsel for the plaintiff that the Panel has failed to provide adequate reasons for its conclusions that, on the one hand, the plaintiff had limitations both physical and linguistic which would prevent her from doing specified work and, on the other, that she could do specified different work notwithstanding those limitations. The Panel did not stop, as counsel for the first defendant submit it might have done after identifying her limitations. It went on to effectively raise the issue of the differences between the nature of the work it thought she was capable of and what she could not do. Reference to its own experience, knowledge and expertise did not suffice to cure the failure of the reasons to explain its reasoning process in the manner described by the High Court in Wingfoot.[10]

39 The application should succeed. I will grant the relief sought quashing the decision. It is common ground that the appropriate course in this event is to refer the medical questions to another panel for determination and I will do so.

[1] This approach was sanctioned by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[2] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 303 ALR 64, 72 [26] (French CJ, Crennan, Bell, Gageler and Keane JJ) ('Wingfoot').

[4] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, 418 [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ).

[5] SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; (2010) 118 ALD 232, 242 [37] (Kenny J).

[6] [2013] HCA 43; (2013) 303 ALR 64.

[7] Ibid 72-73 [27] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[9] [2000] VSC 339, [52]-[55] (Ashley J).

[10] [2013] HCA 43; (2013) 303 ALR 64, 20 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).