Plaintiff v Defendants

Supreme Court of Victoria|2015-09-01|Before: Zammit J

ADMINISTRATIVE LAW - Judicial review - Medical Panel - Failure to take into account relevant considerations - Adequacy of reasons - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3 and 5 - Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 - Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 - Appeal dismissed.

2 The plaintiff was born on 31 July 1957, and is currently 58 years old. She has completed very little formal education, and has some issues with literacy and numeracy. Apart from some babysitting work while in her 20s, the plaintiff has little to no formal employment experience. In addition, she is unable to work with computers.

3 In June 1994, while volunteering at the nursery owned by the first and second defendants ('the employers') as part of a horticulture course, the plaintiff suffered an injury to her lower back when attempting to move a large tub. The injury was diagnosed as a disc prolapse at the level of L5/S1. The plaintiff has subsequently undergone surgery in relation to this injury on three separate occasions: on 14 September 1994, on 9 February 2009 and on 10 August 2010.

4 On 26 June 2004, a medical panel diagnosed the plaintiff as suffering from a surgically treated left L5/S1 disc prolapse together with a Major Depressive Disorder. The 2004 medical panel determined that the plaintiff was 'totally incapacitated' (as this term was defined in the version of the Act in operation at that time), and that this incapacity was likely to continue indefinitely.

5 On 28 December 2013, the plaintiff received a letter from QBE, the employers' insurer, stating that from that date the plaintiff would no longer be entitled to weekly compensation payments under the Act. This decision was based on the insurer's determination that the plaintiff had a current work capacity or, in the alternative, that the plaintiff had no current work capacity but that this was not likely to continue indefinitely.

6 The plaintiff challenged the insurer's determination by way of a writ filed in the County Court on 6 January 2014. Under s 45 of the Act, his Honour Judge Wischusen of the County Court referred the following three questions to a medical panel:

Question 1: What is the nature of the plaintiff's medical condition relevant to the claimed injuries, namely:

(a) Left L5/S1 disc prolapse;

(b) Major Depressive Disorder.

Question 2: Does the plaintiff have an incapacity for her pre-injury employment?

Question 3: If yes to 2:

(a) does the plaintiff have "no current work capacity" as defined by the Accident Compensation Act 1985?

(b) If yes to (a), is this likely to continue indefinitely?

7 On 22 August 2014, the fourth defendant ('the Panel') returned its answers to the above questions. Crucially to the present application, the Panel concluded in answer to question 3(a) that the plaintiff did not have 'no current work capacity', as defined in the Act. The present application for judicial review focuses solely on the Panel's answer to question 3(a). The plaintiff seeks orders in the nature of certiorari quashing the Panel's opinion, as well as an order that the above questions be referred to a differently constituted medical panel for re-determination, on the grounds that:

(a) the Panel failed to take into account material considerations;

(b) the Panel failed to consider or adequately consider that the plaintiff has not worked for two decades;

(c) the Panel misconstrued the definition of 'no current work capacity';

(d) the Panel wrongly determined that it was not relevant to the answer to question 3 that the plaintiff was not able to return to work, that is, that it was not relevant that the plaintiff's age and her total incapacity for 20 years were barriers causing an inability to return to work;

(e) the Panel failed to comply, or to sufficiently comply, with its obligation to provide written reasons for its opinion pursuant to s 68(2) and/or (3) of the Act;

(f) the Panel failed to give reasons that explained the plaintiff's work restrictions or, alternatively, failed to give adequate reasons reconciling the plaintiff's physical restrictions with the physical requirements of light process work; and

(g) alternatively, the Panel failed to explain how the plaintiff's physical restrictions in relation to lifting and repeated bending could be reconciled with the duties of light process worker, which were described as, inter alia, loading and unloading raw materials and finished products, packing boxes, stacking boxes onto pallets and carrying out cleaning work.

8 The first four grounds (a)-(d), above, are discussed together as the Panel's failure to take account of mandatory considerations, while the last three grounds (e)-(g) are discussed together as a failure to give adequate reasons.

9 The plaintiff's weekly compensation payments were ceased under s 93C(1)(a) of the Act, which states that a worker's entitlement to weekly compensation payments ceases upon the expiry of the second entitlement period, unless the worker is assessed as having 'no current work capacity and likely to continue indefinitely to have no current work capacity'.

10 The phrase 'no current work capacity' is defined in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('the 2013 Act') as meaning 'a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.' The term 'suitable employment' is also defined in s 3 of the 2013 Act as meaning:

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.

...

11 Both of these definitions are picked up in s 5(2) of the Act, which states that:

Unless inconsistent with the context or subject-matter−

(a) words and expressions defined in section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 have the same meaning in this Act as they have in that Act; and

...

12 As a result, for the remainder of this judgment, I will discuss the above terms as though they are defined in s 5 of the Act.

13 In its reasons dated 22 August 2014, the Panel considered the plaintiff's alleged back injury and formed the opinion that the plaintiff was suffering from chronic non-specific lumbar back pain with no clinical evidence of radiculopathy. The previous L5/S1 disc prolapse was found to have resolved following surgical treatment. The Panel noted in its reasons its opinion that the plaintiff had exaggerated or misstated the restrictions to her range of movement during its examination of her.

14 The Panel then considered the plaintiff's psychological condition, and formed an opinion that the plaintiff was suffering from chronic adjustment disorder with mixed anxiety and depressed mood of low severity. The Panel found that the plaintiff no longer suffered from a major depressive disorder. Importantly, the Panel concluded that the plaintiff's psychological condition would have little impact on her capacity for pre-injury duties or other suitable employment.

15 On the basis of its diagnoses as to her physical and mental injuries, the Panel accepted that the chronic non-specific lumbar back pain led to an incapacity for the plaintiff to undertake her pre-injury employment, particularly in relation to the lifting and repeated bending involved. In addition, the Panel found that employment as a customer services clerk, cashier or sales assistant would not be suitable employment for the plaintiff due to her lack of clerical skills, including her difficulties with literacy and numeracy.

16 On the other hand, the Panel determined that the plaintiff did have a current work capacity for employment as a light process worker, which did not require specialised skills or training, and was classified as work that was light to medium physically. Specifically, the Medical Panel stated that it:

... considered the duties listed in the vocational assessment for the role of light process worker and concluded that the duties would be able to be undertaken by the plaintiff in line with her current physical and mental condition. The Panel concluded that the plaintiff would be able to undertake the role of light process worker on a reliable and consistent basis.

17 The Panel quoted the following highly relevant passage from Dr Horsley's report:

Overall, Mrs. Richter is likely to stay out of the workforce permanently. There are considerable barriers. She is now 56 years of age. She has been out of the workforce for 20 years. Her previous work experience was as a babysitter and a nursery assistant for just a couple of months. She has Year 7 education. She has significant literacy issues. She has no computer skills. She presents poorly.

Mrs. Richter, I believe is unlikely to return to the workforce in any capacity. I believe that her attractiveness to a new employer in an open and competitive marketplace would be negligible. On the basis of her physical capacity alone, within the restrictions as outlined above, in theory she probably has capacity for part time work, possibly up to 15 hours per week. However, realistically, I believe that she will continue to remain out of the workforce into the longer term.

18 In response to the opinion and conclusions of Dr Horsley, the Panel stated that it:

acknowledges that it may be difficult for the plaintiff to find suitable employment but also acknowledges that the test of work capacity relates to identifying work that the plaintiff would be able to perform on the basis of her physical restrictions, her age, her qualifications, her experience and her place of residence. The panel is not required to determine whether the plaintiff will be successful in obtaining employment. For this reason, and based on collective experience and expertise, [the Panel formed a] different opinion to Dr Horsley regarding the plaintiff's current work capacity.

19 This issue turns on a construction of the relevant legislative provisions, particularly the definition of the phrase 'suitable employment'. The provisions that are currently applicable under the Act as read together with the 2013 Act have been set out above.

20 In addition, the parties rely on key cases relating to the legislative scheme, both under the current Act and under previous iterations of the relevant provisions. The parties agree on the state of the law, and are in dispute only as to how the law is to be applied to the circumstances of this case. In this section, I will outline the key authorities and general principles applicable to this area of judicial review and to the interpretation of 'suitable employment'. I will then set out the parties' submissions as to how these principles are to be applied here.

21 The law relating to a failure to have regard to relevant considerations are well-established, with the key case in this area being Peko-Wallsend.[1] In that case, the Court set out the matters that must be established in cases where it is asserted that a decision-maker has failed to take account of a relevant consideration, as follows:

(a) the relevant consideration must be one that the decision-maker is bound to take into account in making the decision;

(b) the factors that must be taken into account can only be determined by reference to the relevant statute;

(c) a failure to take into account a particular consideration will not necessarily result in the decision being set aside; and

(d) the Court's role is to review the exercise of the discretion - if it is made appropriately within the decision-maker's jurisdiction then the decision cannot be set aside.[2]

22 The employers stress the reluctance of courts in general on judicial review to minutely scrutinise the reasons of the decision-maker to the point where the matter is subjected to a merits review. In particular, the determination of the weight to be accorded to a mandatory consideration, or what inferences might possibly be drawn from it, falls within the scope of the administrative decision-maker's discretionary powers. In this respect, the employers rely on the following passage from the Court of Appeal's decision in Ryan:

A court must proceed carefully when reviewing an administrative decision on the ground that the decision-maker did not have regard to a relevant consideration 'lest it exceed its supervisory role by reviewing the decision on its merits'. As Kyrou J (as he was then) observed in Milwain v Sim, when reviewing a Medical Panel decision which was ultimately held to have ignored relevant considerations:

[T]his Court must be careful not to cross the line between judicial review and merits review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.[3]

23 However, the Court of Appeal in Ryan also stated that:

Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker's answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker's answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.[4]

24 Turning to the actual error asserted in relation to the Panel's decision, the plaintiff refers to a number of cases on the 'odd lot' doctrine, which was first set out in Cardiff Corporation v Hall.[5] In that case, the worker was physically able to do light work, but was unable to find employment. In deciding the case, Couzens-Hardy MR stated that:

The effects of the accident have not been removed, and I cannot think that the workman ought to have his compensation reduced merely on the ground that he is physically able to do a different kind of work, which, in truth, cannot be procured.[6]

25 In a separate judgment, Fletcher Moulton LJ stated as follows:

We are dealing with the chance of someone being found who can and will avail himself of the special residue of powers which has been left in the workman, and, seeing that it is the result of the accident that the workman has been made dependent on the finding of such a special employer, it is right that those who are liable to pay him compensation for his loss of earning power should only be allowed to take credit for his partial capacity for work if they can shew that it can actually be made productive of remuneration to him.[7]

26 The case of Ball v William Hunt & Sons Ltd[8] similarly focused on the saleability of the worker's labour. That case concerned a worker who had become disfigured by the removal of an eye and, although the worker was already blind in that eye (and so the injury had no actual impact on his ability to work), he was nonetheless unable to get suitable employment in the circumstances. In his Honour's decision in that case, Lord Loreburn said as follows:

In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.[9]

27 A modified version of this 'odd lot' doctrine was adopted in Australia by the High Court in Bavcevic v The Commonwealth,[10] in which Dixon CJ and Kitto J stated that:

The very phraseology of Fletcher Moulton LJ [in Cardiff Corporation v Hall] suggests populous areas with recognised or settled "labour markets". In many places in Australia avenues of employment can hardly be dignified by such terms. Yet one can hardly expect the injured man to change his habitat in search of work. While the result may be that the kind of work available is more easily ascertained, at the same time it may be more difficult to say what is special and exceptional when a class or work is within the capacity of the injured man but is not locally available. It must remain a question of fact in which the nature of the man's injury and of the consequent incapacity must be the primary consideration. In deciding it the tribunal must bear in mind that what the statute is speaking of is total or partial physical incapacity for earning a livelihood.

28 However, in the more recent case of Lianos,[11] it was found that the only remaining relevance of the doctrine was such as to place an onus of proof on an employer to demonstrate that a worker's residual capacity was meaningfully saleable in the market, otherwise the worker was presumed to be totally incapacitated. Teague J went on to say in that case that the definition of 'suitable employment' was such as to have a practical effect no different from the application of the odd lot doctrine.[12] As a result, it would appear that the doctrine itself no longer has any application under the Act.

29 The key authority on the meaning of 'suitable employment' under the Act is Barwon Spinners,[13] in which the Court of Appeal analysed the application of the definition to the assessment of a serious injury under s 134AB(38)(g). In that case, the Court concluded that:

The concept of "suitable employment" will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury, hence the reference to "work for which the worker is currently suited". Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker's incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as "suitable" if situated too far from the worker's place of residence, and so a specialist factory in Mildura will not ordinarily be regarded as providing "suitable employment" for a worker resident in Melbourne. The expression "whether or not that work is available" emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is "suitable employment", whether or not the job is currently available.[14]

30 However, the Court then went on to say as follows:

The possibility that, irrespective of the nature and extent of the injury first suffered, a worker becomes unemployable because of the subsequent claim for compensation is troubling. On the one hand, it may be said to be a realistic approach to the possibility of further employment, which will lead to common law damages for those in our community who are the most vulnerable because of injury at work. On the other hand, the mere reference to "capacity for any employment" does not, on its face, suggest that Parliament was concerned with an economic capacity rather than a physical or mental capacity. For instance, in para (g) what is relevant ... is:

... a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion ...

In our opinion, the expression "if exercised" means "if exercised in employment". Parliament is looking here to a physical capacity for work which, if exercised in employment, would bring about the result that the worker was earning more than the limit relevant to serious injury. It is not concerned with whether employment will or will not be obtained; it is concerned rather with the economic yield of such work, if the capacity for that work was in fact exercised in employment. Mr Forrest pointed out that this was at least consistent with the definition of "suitable employment" which spoke of employment "for which the worker is currently suited (whether or not that work is available)".[15]

31 Barwon Spinners has been followed in a number of subsequent cases,[16] effectively finding that the definition of 'suitable employment' directs attention towards the capacity of the worker within the realities of the labour market. However, these were predominantly decided prior to the current iteration of the definition. Giankos, which was decided after the amendments in 2010 but also prior to the current iteration, contained the following remarks in relation to 'suitable employment':

[I]t must be recognised that the Act differentiates between an inability to earn income in suitable employment because of an impairment and an inability to earn income because of a tight labour market. A worker's reduction of the capacity to earn income in suitable employment must relate to the former, rather than the latter. This is reflected in s 5 of the Act, which requires the court to disregard whether the work, for which the injured worker is currently suited, is or is not available to the worker.[17]

32 In addition, in the case of Smorgon Steel Tubes Mills Pty Ltd v Majkic, it was held that the definition of the phrase 'suitable employment' directs attention to the realities of the labour market, in that a job must be real, rather than artificial or contrived.[18]

33 In the definition of 'no current work capacity', the plaintiff points specifically to the fact that it is an inability 'to return to work',[19] a concept described by King CJ as follows:

Return to work is considered a sufficient reason [for termination of weekly payments], as it seems to me, because it involves the re-establishment of the injured worker as a wage earner who is no longer in need of the weekly payments of compensation. For return to work to have significance for this purpose it must be, in my opinion, a return as a settled or established member of the wage earning workforce.

34 With respect to the cases on the 'odd lot' doctrine, the plaintiff falls short of specifically relying on the principles set out above in support of her case. Rather, what is asserted can be classed at best as a partial reliance on this case law in support of the plaintiff's contended analysis of the facts at hand. This is best summed up the following passage, taken from counsel for the plaintiff's oral submissions in the context of a discussion of Cardiff Corporation v Hall:

Could I just pause my submissions here, Your Honour and say, for the purposes of our submissions, we're not attached to labels, like odd lot doctrine and it might be confusing to deploy labels such as that about 100 years after they were first coined in the English Court of Appeal. Our submission is focused on the true import of the definition of "no current work capacity". And our submission is just a simple one. It's concerned with the capacity to return to actual employment. The odd lot doctrine is an illustration, in our submission, of the way in which that concept is applied in practice.[20]

35 The plaintiff seeks to distinguish the current proceeding from the decisions in Barwon Spinners and other such cases discussing the meaning of the phrase 'suitable employment' within the context of s 134AB of the Act. In particular, the plaintiff points to paragraph 28 of the decision in Barwon Spinners, quoted above, which directly relies on the wording of s 134AB(38)(g) in support of the Court's conclusions. On this basis, the plaintiff argues that the interpretation of 'suitable employment' adopted in Barwon Spinners should be held to apply only within the context of that provision. Given that the words 'if exercised' are not contained in the definition of 'no current work capacity', the plaintiff argues that the decision is not applicable here.

36 Rather, looking at the definition of 'no current work capacity', the plaintiff submits that its focus is on an inability to return to work, as opposed to an inability to perform various functions or tasks. Thus, while the Panel found that the plaintiff did have a capacity to work, the plaintiff argues that she nonetheless has no capacity to return to work on the basis that no-one will hire her due to her age and the fact that she has been out of the workforce for 20 years. This interpretation, the plaintiff submits, is supported by the definition of 'suitable employment', which is defined as employment in work for which the worker is suitable, etc. As a result, it is argued that the primary focus of the definition is on the worker's capacity to be employed, rather than their capacity to perform work in a particular role.

37 It is this interpretation of the relevant definitions that leads the plaintiff to submit that the Panel fell into error in determining that it was not required to consider whether the plaintiff would be successful in obtaining suitable employment. It is argued that this conclusion led to the Panel failing to take account of Dr Horsley's conclusion that the plaintiff's attractiveness to an employer would be negligible, a relevant opinion that it was required to consider. It is argued that the plaintiff's time out of the workforce was a direct result of her compensable injury, and that it was this feature - together with her age, lack of experience and minimal education - that has resulted in her inability to return to work, in spite of the fact that she may have the physical and mental capacity to work.

38 The employers submit that the Panel correctly applied foundational principles in its interpretation of the meaning of 'no current work capacity'. It is contended that the phrase focuses on the capacity of the plaintiff to return to suitable work, bearing in mind the factors associated with 'suitable employment'. Thus, while reference to employment must be to real employment within the locality of the plaintiff, the plaintiff's ability to return to work is not to be equated with the likelihood of the plaintiff successfully obtaining employment.

39 The employers further submit that the plaintiff's contended interpretation of the phrase 'suitable employment' would place an impossible burden on medical panels, requiring that they enquire into and determine matters beyond their medical expertise, including:

(a) matters idiosyncratic to particular employers;

(b) the level of competition for certain job opportunities;

(c) any attempts that a worker might actually have made to return to work; and

(d) the likelihood that the worker did in fact have the desire to return to work.

40 It is argued that these matters are outside of the jurisdiction given to a medical panel to determine whether a worker has 'no current work capacity' within the meaning of the Act. The employers further submit that the case of Smorgon Steel Tubes does not support the plaintiff's case, but simply emphasises that the assessment must focus on the worker's capacity to perform particular types or classes of real employment, rather than mere tasks or activities.

41 Finally, the employers submit that the 'realities' of the labour market - to which the Panel must give consideration in accordance with Barwon Spinners and subsequent authorities - would surely encompass the fact that it is unlawful for a prospective employer to discriminate against workers or job applicants on grounds including those of disability and age.[21]

42 In relation to the Panel's reasons for its opinion, the employers submit that the Panel properly took into account each of the mandatory considerations listed in the definition of 'suitable employment', including the nature of the plaintiff's incapacity and her pre-injury employment, as well as her age, education, skills, experience and place of residence. In addition, the employers note that the Panel took into account the following highly relevant material in reaching its conclusions:

(e) the plaintiff's certification by her GP as being fit for alternative duties;

(f) the plaintiff's evidence as to her driving abilities and the distance that she is capable of driving.

43 In particular, the employers emphasise the Panel's finding that it did not accept the plaintiff's description of her physical limits, with the reasons identifying various inconsistencies between the plaintiff's presentation during the examination and the Panel's observations of her during the hearing and at other times. The employers submit that the inference to be drawn from this is that the Panel considered the plaintiff to have repeatedly exaggerated and/or misstated her symptoms and restrictions. As a result, it was bound to conclude that the plaintiff was capable of performing a greater range of work than the plaintiff was willing to concede.

44 As noted above, this issue turns primarily on an interpretation of the definition of the phrase 'suitable employment' in s 5 of the Act. In particular, the plaintiff must demonstrate that the fact that no employer will hire her in spite of her ability to work is a relevant factor that must be considered in any proper determination of whether the employment falls within that definition.

45 It may be accepted for present purposes that the plaintiff had some physical capacity to do work. Her own GP had certified that she had the capacity to undertake alternative duties, and she had commenced the search for appropriate work, but had so far been unsuccessful. The plaintiff's evidence as given to the Panel was to the effect that her inability to secure employment was due to her injuries and the fact that she has been out of the workforce for 20 years. Given that the latter is the result of the former, the plaintiff argues that her injuries have materially contributed to her inability to return to work, in spite of her apparent physical capacity to work. By concluding that it was not required to consider whether she would be successful in obtaining employment, and consequently failing to consider Dr Horsley's opinion that she was unlikely to ever return to work, the plaintiff argues that the Panel has fallen into error.

46 The plaintiff's two primary contentions in this respect relate to Barwon Spinners and the odd lot doctrine. First, it is argued that the construction of the definition of 'suitable employment' in Barwon Spinners is not applicable in this case, as it turned on wording in s 134AB(38)(g) of the Act, which is not applicable to here. Secondly, it is argued that the analysis adopted in cases decided in the context of the odd lot doctrine can serve as illustrations for the purpose of applying the concept of 'no current work capacity'. For the reasons that follow, I do am not persuaded by the plaintiff's arguments in either respect.

47 Turning to the first argument, I do not to accept the analysis of Barwon Spinners that is advanced by the plaintiff. Looking at paragraph 25 of the decision in particular, it is clear that the Court has started from an analysis of the definition of 'suitable employment', listing a number of relevant matters including all those set out in the definition itself. It is noted that employment situated too far from the worker's place of residence will not be considered suitable. Nowhere does the Court mention that the prospect of success in obtaining employment is a relevant factor to be considered in determining whether particular employment is suitable. Importantly, the Court states that 'the expression "whether or not that work is available" emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment.'[22] The Court goes on to say:

None the less, the definition of "suitable employment" was called in aid by Mr Maxwell to support an argument that the concept of capacity to earn in employment involved employability and that a worker who had been injured at work and successfully claimed compensation was in practical terms unemployable. It appears from the evidence given below that there are now persons calling themselves expert in the area of "capacity to earn", and in one or more of these four appeals the so-called expert opined that, given the injury and the consequent claim for compensation, no employer would be prepared to risk employing the worker again in any capacity, having regard to the possibility that further injury might be sustained and even that the employer itself might be prosecuted under safety regulations. The mere history of injury and claim would be enough (it was suggested) to deter any employer from offering further employment to the victim of antecedent workplace injury - and that suggestion was made, as we followed it, almost irrespective of the magnitude of the injury in question.[23]

48 It was this context that the subsequent remarks relating to the interpretation of s 134AB(38)(g) were made. Having already stated that the definition itself called only for an analysis of the worker's physical capacity to work, the Court was called upon to provide further consideration of the meaning of the provision in the particular circumstances of the case. It was this that led to a reliance on the words 'if exercised' in s 134AB(38)(g). In addition, those words are clearly only given as one of a number of considerations in support of the Court's conclusion, as demonstrated by the fact that this passage is preceded by the words '[f]or instance'.[24] It is also worth noting that the Court subsequently commented that its conclusion that the provision 'is not concerned with whether employment will or will not be obtained' was 'at least consistent with the definition of "suitable employment" which spoke of employment "for which the worker is currently suited (whether or not that work is available)".'[25] In this context, it seems clear that at least one of the primary considerations on which the Court based its conclusion was the phrase 'whether or not that work is available' in the definition of 'suitable employment'.

49 As demonstrated by the Court's quote of the relevant definition above, Barwon Spinners was decided on the basis of the previous iteration of the definition of 'suitable employment'. That concept of suitable employment has arguably since been reduced even further in scope, with the addition of paragraph (b)(ii), which states that employment will be suitable regardless of whether 'the work or the employment is of a type or nature that is generally available in the employment market'. As a result, a medical panel will be forced to conclude that employment is suitable even if it is not generally available, let alone currently available. Such a restriction certainly further supports a conclusion that the legislature did not intend for medical panels to consider the likelihood that a worker will be successful in gaining a particular form of work in determining whether that work was 'suitable employment'.

50 From a policy perspective, I agree with the Court in Barwon Spinners that the prospect of all workers who suffer an injury, however minor, and subsequently claim compensation becoming permanently unemployable as a result is a troubling one. If the plaintiff's contended interpretation of 'suitable employment' were to be adopted here, it is a necessary conclusion that employers paying weekly compensation to an injured worker would be required to continue to do so indefinitely, even after the worker's physical capacity was no longer impaired in any way as a result of the injury, due to the discrimination of subsequent potential employers against an applicant who may be a liability due to their previous compensation claim. Such a conclusion is contrary to the entire purpose of the scheme, which is to link the payment of weekly compensation to the physical injury alone, and its subsequent impact on the worker's capacity. An inability to obtain employment could be due to any one of a number of subjective factors that would fall well outside the scope of considerations with which a medical panel is concerned.

51 Turning next to the odd lot doctrine, the plaintiff appears to be drawing on the analysis adopted in the cases set out above, and particularly that given in Ball v William Hunt & Sons Ltd,[26] which focused on the saleability of the worker's labour. Similarly, in this case, the plaintiff emphasises that while she may have a capacity to work, her lack of attractiveness to an employer has resulted in an inability to return to work, rendering any prospective employment unsuitable due to her negligible prospects of success in obtaining a job.

52 This argument appears to be based on the decision in Lianos, in which it was held that the legislation had superseded the odd lot doctrine, but nevertheless had the same practical effect (as outlined above). Such a conclusion would certainly mean that cases decided in the context of the odd lot doctrine would be relevant to an application of the statutory definition. However, there are two issues with this contention. First, I would be very hesitant to accept the decision in Lianos as being persuasive given the obvious hesitance with which Teague J reached the stated conclusion. I will set out the passage in its entirety:

From these authorities a number of positions seem open. One is that the main Act defined a concept of suitable employment, which was intentionally designed to supplant the odd lot doctrine. Another is that the Act defined a concept of suitable employment, which was intended to sit symmetrically beside the odd lot doctrine. Another is that the Act defined a concept of suitable employment so similar in effect to the odd lot doctrine that there would be no practical difference in any particular case. Another is that the Act defined a concept of suitable employment similar to the odd lot doctrine, but with some differences so that it was intended that the doctrine should survive the Act, and distinctively so.

Not without reservations, I favour the third position, and consider that under the main Act there is now a substantially similar system in place to that which would be there if the odd lot doctrine had to be applied. On that view, it is the regime under the main Act that should alone be applied.

53 A decision that so obviously reserved the position of the Court does not convince me that I should accept Teague J's conclusion, especially one that is arguably obiter in any event. Certainly, the same result could have been reached had his Honour adopted the first position rather than the third. This is the first reason for which I have determined to turn my mind to the issue afresh. The second is simpler: the definition of 'suitable employment' has been amended yet again since Lianos was decided, and is now more confined than it was at that time.

54 In analysing the potential application of the odd lot doctrine under the current iteration of the legislation, it is helpful to go back to a first-principles description of what exactly the 'odd lot' doctrine is. The best formulation is given by Scrutton LJ in Foster v Wharnclieffe Woodmore Colliery Co Ltd, in which his Honour stated that the doctrine refers to the work capacity of someone who is so impaired that they are 'only able to do certain very special jobs, depending on finding a very special employer who, either through compassion or because he has a special job, is able to give him employment, but any ordinary class of work he is not able to do'.[27]

55 The odd lot doctrine effectively operated as an exception to the general rule that the court was not to become caught up in an analysis of the 'vagaries of the market' - work was not to be considered unsuitable purely due to the fact that there were few or no jobs available in that area at the time. This proposition is reflected in the current provision, which states that employment is suitable regardless of whether it is available. The odd lot doctrine provided an exception to this rule, effectively accepting that some work was unavailable not due to the vagaries of the market but due to the fact that it was a 'very special' class of employment meeting the worker's special needs. If a worker's injuries required him to find such very special employment perfectly suited to his needs, but was unable to do any ordinary class of work, then it was as though he was unable to do any work at all.

56 I do not consider that this analysis assists the plaintiff in any way. This is not a case in which the plaintiff has such specialised needs that only a very special employer would be able to offer her work. The employment that has been found to be suitable for her - light process work - is an ordinary class of work that she is able to do. The fact that the plaintiff asserts that no-one would hire her for such work does not mean that she has no capacity to do it. Rather, the medical panel explicitly held that she could.

57 Nevertheless, even if the odd lot doctrine would have helped the plaintiff in the circumstances of this case, there is one further reason why I do not consider that it does. The current version of the definition of 'suitable employment' explicitly states that work will be considered suitable regardless of whether it is 'of a type or nature that is generally available in the employment market'. This wording is clear and unambiguous. I cannot accept that it has any meaning other than that a worker will have a current work capacity even if the only work available to them is 'very special' in its nature and is not an ordinary class of work in the employment market. Even if it had survived the introduction of the Act in 1985, it is clear that the current definition of 'suitable employment' leaves no room for the operation of the odd lot doctrine and, as such, it cannot be relied upon by the plaintiff in this matter.

58 As stated in Peko-Wallsend, mandatory considerations must be determined by reference to the relevant statute. In this case, the interpretation of 'suitable employment' advanced by the plaintiff simply does not fit with the overall scheme of the legislation. If the legislature had considered it necessary for a medical panel to consider a worker's prospects of success in securing employment in its consideration of whether that employment is suitable, it could easily have simply listed this factor among the relevant considerations in the definition. Similarly, the phrase 'no current work capacity' could easily have been defined as an inability to obtain employment, rather than an inability to return to work. To attempt to construe the words 'return to work' as requiring that a worker be successful in obtaining employment is to strain the ordinary meaning of those words, contrary to well-established principles of statutory interpretation.

59 In addition, the Act contains no test as to the required likelihood of success in order for employment to be considered suitable. Is the worker required to have a real prospect of success, must the panel be satisfied that the worker is likely to gain employment on the balance of probabilities, or is the threshold somewhere higher? Looking at both the actual words and context of the provision, as well as the overall purpose of the scheme, I cannot accept the plaintiff's contention that such a construction was intended by the legislature.

60 Finally, turning again to policy considerations, I regard the construction adopted by the plaintiff as being too onerous to be applied by a medical panel. The evaluation of a worker's prospects of success in finding employment is outside the knowledge and expertise of a medical panel, and would require it to consider a large number of additional factors including the plaintiff's resume, interview technique, communication skills and physical presentation, references and ability to quickly build a rapport. It is impossible to determine which specific factor or factors would cause any given employer or even a reasonable or average employer to choose an alternative candidate over the plaintiff. For that matter, it may require a consideration of the attractiveness of those candidates against which the worker is competing for particular employment. Such considerations are simply not within the scope of a medical panel's role in determining a worker's capacity to return to work.

61 Ultimately, I consider that the Court's reasoning in Giankos v SPC Ardmona Operations Ltd[28] is highly relevant and persuasive here. In that case, the Court (constituted by Warren CJ, Neave JA and Hargrave AJA) delivered a unanimous judgment explicitly drawing a sharp distinction between a worker's inability to return to work due to a physical impairment and their inability to return to work due to a tight labour market. It was held that only the former was relevant in considering the worker's capacity to return to suitable employment. In my opinion, the plaintiff's 'attractiveness' to a prospective employer is a factor directly related to a 'vagaries of the market' analysis, in which the required 'attractiveness' to an employer will vary with 'tightness' of the labour market. That is, a worker's negligible attractiveness to an employer will become less relevant as demand for workers increases and/or supply of workers decreases.

62 As far as the conclusion in Giankos is concerned, I am satisfied that these proceedings can be distinguished on the basis of the unique and very specific factual circumstances of that case. Here, the NES Vocational Assessment Report ('the NES Report') identified four potentially suitable roles that were within a reasonable travelling distance of the plaintiff's residence. Those roles were all available on 14 August 2013, when the Report was completed. The Panel was not required to conduct the exhaustive analysis discussed above in order to determine the likelihood that the plaintiff would be successful in obtaining employment in any one or more of these roles.

63 On the basis of the above analysis, I do not consider that the Panel erred in either its construction of the definition of 'no current work capacity' or its conclusion that it was not required to determine whether the plaintiff would be successful in obtaining employment. It considered the plaintiff's age, level of education, skills and work experience, place of residence and the fact that she had been out of the workforce for 20 years. It also took into account its opinion as to the nature of her physical and mental injuries. It did not fail to take into account any material considerations.

64 The High Court in Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot')[29] considered the obligation of medical panels to provide reasons pursuant to the Act, stating that:

The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act ... 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 the 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. ... If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[30]

65 However, the High Court went on to find that a medical panel is not required to explain why it reached a conclusion different from that of another practitioner before it, saying:

It goes too far, however, 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: 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.[31]

A Medical Panel explaining in a statement of reasons 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.[32]

67 In relation to a medical panel's path of reasoning in considering whether a worker was totally or partially incapacitated for work, Phillips JA in S v Crimes Compensation Tribunal stated that:

in this context it is sometimes said that where the question is one of degree, involving some element of value judgment, the question is one of fact, not law. Thus if the question whether the claimant's circumstances fall within the statutory description is one on which minds can legitimately differ, involving a value judgment on the evidence (or other material), it is a matter for the tribunal. In that category one can put most questions of a causal link, or (in a case like this) whether some identified expense was the result of the relevant injury, or whether the claimant suffered total or partial incapacity for work. Involving questions of degree and evaluation, on the facts as otherwise established, these are essential questions of fact which are committed to the tribunal, and not to the court.[33]

68 In the context of a serious injury application, Kaye AJA (with whom Tate and Whelan JJA agreed) in Warfe v Woolworths Ltd reiterated that the determination of whether an injury was serious involved a substantial amount of value judgment, which does not admit of detailed reasoning. His Honour went on to say that:

The adequacy of the reasons must depend upon the issues, and the nature of the proceeding in any individual case. In an appropriate case, reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated. Thus as Neave JA and Beach AJA stated in Murray Goulburn Coop Co Ltd v Fillipoint:

In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[34]

69 In relation to the requirement that a medical panel reconcile a worker's injuries and physical limitations with the actual duties required to be performed in potentially suitable employment, the plaintiff relies on the case of North v Homolka,[35] in which Ashley JA said as follows:

If the Panel did not take the plaintiff's ankle condition into account in the present connection, then it failed to fully address the consequences of his injuries. But if, on the other hand, the Panel did take the plaintiff's ankle condition into account in determining his capacity for certain work, it did not say so. Its reasons are silent whether or not it took the disability into account. They do not reveal any reconciliation which the Panel might have made of the plaintiff's ankle diability and the demands of the jobs for which it concluded he had capacity for work, or of the circumstance that the plaintiff's back and ankle disabilities had quite different and conflicting incapacitating consequences.

70 The plaintiff submits that the job title and duties listed in relation to the job of 'light process worker' suggest that the role would involve repetitive bending and lifting, involving such tasks as:

(a) loading and unloading raw materials and finished products;

(b) checking products to reject defective items, then packing them into boxes and stacking them onto pallets;

(c) undertaking inventory procedures, packing materials and placing them into storage;

(d) maintaining the cleanliness of the general working area and machinery;

(f) operating automatic or semi-automatic machinery and tools such as conveyor belts, bottling machines or soldering irons; and

71 In addition, the plaintiff submits that the description of the job's physical demands as being 'light - medium' implies that weights would be lifted. This, in combination with the duties listed above, leads the plaintiff to submit that the job would require repetitive bending and lifting. However, the plaintiff points out that the Panel had already concluded that the plaintiff's back injury rendered her unfit for duties involving repetitive bending, and that the Panel had not even considered the range of weights that could be safely lifted by her.

72 As a result, the plaintiff submits that the Panel's reasons are inadequate in that they fail to properly describe the plaintiff's lifting abilities, and to reconcile her limitations in relation to repetitive bending and lifting with the actual duties involved in light process work. The plaintiff further contends that this inadequacy in the Panel's path of reasoning is exacerbated by its failure to address either the conclusions reached by Dr Horsley in relation to the restrictions on the plaintiff's physical capacity to work or Ms Suzie George's conclusion that 'there was no unrestricted recognised occupation in the open labour market for which Ms Richter was likely to qualify and be suitable taking account of her injury.'

73 The plaintiff submits that it was necessary for the Panel to consider in its reasons whether the plaintiff's restrictions could be accommodated in the position of a light process worker. It is emphasised that the Panel made no attempt to reconcile the plaintiff's physical restrictions with the duties of a light process worker, or to enquire as to what weights would need to be lifted in the role or how often this would need to be done. Effectively, the plaintiff contends that these matters were outside of the Panel's field of expertise, and that much more was required of the Panel in exposing its path of reasoning to the conclusions that it reached.

74 In response, the employers submit that the Medical Panel complied with the requirements as outlined in Wingfoot by providing reasons that clearly and methodically set out the Medical Panel's actual path of reasoning. With respect to the plaintiff's mental capacity, it is noted that the plaintiff has made no complaint of the Panel's diagnosis of Chronic Adjustment Disorder, or its conclusion that the low severity of this disorder meant that it would have little impact on the plaintiff's capacity to undertake pre-injury duties or other suitable employment.

75 Regarding the plaintiff's physical condition, the employers note that the Panel considered the previous left L5/S1 disc prolapse had been surgically treated and was now resolved. Importantly, the employers emphasise that the Panel clearly did not accept the plaintiff's description of her limitations, relying on numerous instances in which the plaintiff's symptoms were exaggerated or misstated when compared with the Panel's own observations.

76 The employers point out that, in spite of its conclusion that the plaintiff had underestimated her own physical capacity, the Panel nonetheless accepted that she did not have the capacity to return to her pre-injury employment, given the repetitive bending and heavy lifting involved. In addition, the Panel concluded that the roles of customer service clerk, cashier and sales assistant would not constitute suitable employment on the basis of the plaintiff's lack of clerical skills and difficulties with literacy and numeracy.

77 In relation to the Panel's conclusion that the plaintiff had the capacity to undertake the role of light process worker, the employers submit that the Panel is not required to analyse each of the individual tasks and activities of the range of particular jobs falling within the general description of light process worker. It is submitted that there is no requirement for the Panel to provide an exact quantitative assessment in relation to each activity that the employment might entail; for example, by specifically stating the range of weights that the plaintiff is capable of lifting.

78 In particular, the plaintiff submits that it is a necessary inference that the Panel concluded that light process work was less physically strenuous than the plaintiff's pre-injury employment, and that it fell within the plaintiff's physical abilities as it had assessed them to be. Having reached these conclusions based on clear reasoning, the employers submit that the Panel was not required to give any further reconciliation of the plaintiff's physical restrictions with the duties of light process worker.

79 The employers rely on S v Crimes Compensation Tribunal, outlined above, in support of their contention that, while the proper construction of 'no current work capacity' is a legal question, the question whether the plaintiff's particular circumstances fit within the meaning of the phrase is a question of fact to be determined by the Panel. Relying on Warfe, the employers submit that this factual determination constitutes a value judgment that is not amenable to detailed explicit reasoning. The employers further rely on McIntyre v Fish in support of their contention that a medical panel does not need to 'address all possible paths of reasoning and dismiss them one by one.'[36]

80 Finally, the employers observe that the Panel's reasons in this matter refer to the same matters, generally speaking, as those referred to in the reasons under consideration in The Grange, which were held in that case to comply with the requirements of Wingfoot. Consequentially, the employers submit that the same conclusion should appropriately be reached in this case.

81 The role of a light process worker was described in the NES Report of 14 August 2013, which was provided to the Medical Panel, as including the following duties:

• Load and unload raw materials and unfinished products

• Check products to reject defective items, pack into boxes and stack onto pallets

• Undertake inventory procedures, pack materials and place in storage

• Maintain the cleanliness of the general working area and machinery

• Position components and materials, under instruction from leading hands or supervisors

• Operate automatic and semi-automatic machinery and tools such as conveyor belts, bottling machines or soldering irons

• Do off-line duties such as sub-assembly and testing, under instruction from leading hands or supervisors

82 The plaintiff argues that the description of the position as 'light - medium' must refer to the weights that the worker would be required to lift in the role. I cannot accept this submission. Assessment of the physical demands of the position as being light to medium is a very generic description, and it would be difficult to ascribe any particular meaning to such a phrase. However, it cannot refer only to the lifting of weight. For example, working as a bike courier would not require any weight to be lifted, but would be quite physically demanding, given the amount of cycling involved. This may be compared with a position involving deskwork, which requires no physical exertion at all. Certainly I would imagine the cleaning jobs that the plaintiff was already applying for at the time of the Panel's assessment could be described as being 'light - medium' physically.

83 I agree with the plaintiff that there is almost no content to these labels, other than for the purposes of comparison, so that one might be able to say that the position of 'light process worker' would be considered more physically demanding than the other roles for which the NES considered the plaintiff suitable. There is, however, no basis for me to infer that the description must indicate that the role would involve lifting weight. As a result, the Panel's reasons cannot be considered inadequate on the basis that it did not conduct an analysis of the weight that could be lifted by the plaintiff.

84 The plaintiff similarly argues that the duties listed above imply that the role would involve repetitive bending and lifting, and argued that the Panel was required to reconcile each of the duties involved in the role of 'light process worker' with the plaintiff's physical restrictions in order to explain the path of reasoning by which it concluded that the plaintiff had the physical capacity to undertake this employment. In this respect, the plaintiff relied on the reasoning of the Court in North v Homolka ('North'),[37] and argued by analogy with the facts in Denham v Consolidated Herd Improvement ('Denham')[38] and Gruma Oceania Pty Ltd v Bakar ('Gruma').[39] For the reasons that follow, I do not consider that any of these cases go so far as to support the plaintiff's proposition in this case.

85 North involved a worker who had suffered injuries to both his back and his ankle. The medical panel in that case accepted that both injuries impacted on the worker's physical capacity, and concluded in particular that the ankle injury contributed to the worker's incapacity for his pre-injury employment. The medical panel found that particular roles that had been put forward as potentially suitable employment were, in fact, not suitable, on the basis that they might require heavy manual handling or extended periods of sitting. Nonetheless, the medical panel in that case went on to conclude that the plaintiff had a current work capacity and identified jobs that it considered constituted suitable employment on the basis that they involved occupational duties that did not require either heavy manual lifting or that the worker remain seated for extended periods of time.[40]

86 On an application for judicial review, the Court found that the medical panel in that case had failed to give adequate reasons in that it had referred to two of the worker's physical restrictions resulting from his back injury, but had failed to consider or refer to any physical restrictions resulting from the ankle injury - one of which was that the worker would be required to sit for lengthy periods. In other words, the physical restriction that would make work suitable with regard to the ankle injury was the very thing that would make work unsuitable from the perspective of the worker's spinal injury. These were the circumstances that the Court held required 'reconciliation' by the medical panel. The complete failure to refer to the worker's ankle injury or the physical restrictions imposed on him as a result and to reconcile those restrictions with both his physical restrictions caused by the spinal injury and the duties of the employment rendered the medical panel's reasons inadequate.

87 However, the present case is not one in which the plaintiff had multiple injuries, each imposing conflicting physical restrictions. It is also not one in which the Panel failed to refer at all to a particular injury in considering the suitability of a particular role. The Panel's path of reasoning is clear and is set out in detail in its reasons, commencing with the sentence '[t]he Panel considered the functional requirements of the jobs identified in conjunction with the suitable employment criteria above.'[41] What follows is a comprehensive description of the Panel's 'consideration' of the plaintiff's physical capacity to perform the identified roles, taking into account both the duties listed in the NES Report and the mandatory considerations listed in the definition of 'suitable employment'. The Panel expressly considered a number of factors - including the plaintiff's physical and mental condition and the fact that the role of light process worker 'did not require specialised skills and training was ... on the job'.[42] On this basis, it concluded that the plaintiff 'would be able to undertake the role of light process worker on a reliable and consistent basis.'[43]

88 This case is also unlike Denham, in which the medical panel failed to state its conclusions in relation to key evidence - such as the worker's certificate of capacity - the worker's physical restrictions or the means by which it concluded that particular employment was considered 'suitable'. Here, it is clear that the Panel did not simply accept the NES's conclusions as to what employment would be considered suitable,[44] as it rejected three of the options put forward by the NES on the basis that the plaintiff's lack of clerical skills, including difficulties with literacy and numeracy, would be a barrier to such employment. There was no dispute as to the worker's certificate of capacity, as the plaintiff's case focused primarily on the fact that she was unable to obtain employment. The Panel clearly did not accept the plaintiff's description of her physical limitations, noting on numerous occasions that its observations of her outside of the scope of the clinical examination conflicted with her behaviour when she knew that she was being assessed. The Panel expressly concluded that the plaintiff's physical condition had markedly improved and stated that the previous L5/S1 disc prolapse had been resolved.

89 I also reject the plaintiff's reliance on Gruma as being factually similar to the case at hand. In that case, the medical panel had relied on a number of the worker's physical restrictions in finding that potentially suitable roles were unsuitable. However, in its reasons for finding that other work was suitable employment, the Panel relied entirely on its 'collective knowledge, experience and expertise' as well as its 'knowledge and experience of the industry.'[45] These were described by the Court in that case as 'sweeping generalisations':

It is apparent from the summary ... above that, while the Panel explained why Ms Bakar was not capable of performing the Incapable Jobs by reference to her medical condition and linguistic skills, a similar explanation was not provided for the Panel's conclusion that she was capable of performing the Capable Jobs and other unidentified jobs. Instead, the Panel simply relied on sweeping generalisations. In the case of the job 'school crossing supervisor', the Panel's generalisation related to its collective knowledge, experience and expertise, its clinical findings and Ms Bakar's transferable skills, without any reference to any particular aspect of her medical condition or transferable skill. In the case of the jobs 'small product assembler', 'ticket seller' and 'sandwich maker', the generalisation was at an even higher level of abstraction, namely the Panel's 'knowledge and experience of industry'.[46]

90 In this case, the Panel's reasons are more akin to those given by the medical panel in Gruma with respect to the 'Incapable Jobs'. That is, it referred to the plaintiff's skills and physical restrictions and considered these in combination with the duties listed in the NES Report and the factors relevant to the definition of 'suitable employment'. It did not justify its conclusion on the basis of sweeping generalisations, but on the basis of the factors that it was required to consider under the Act. In addition, there was no striking similarity between any of the jobs that were considered unsuitable and the role of light process worker. Rather, the Panel considered that the former roles were unsuitable on the basis that the plaintiff lacked clerical skills and had difficulty with literacy and numeracy, while finding that the latter role did not require specialised skills. It was this key distinction between the roles that caused three to be considered unsuitable while only one was considered suitable. Indeed, when asked by the Panel about the roles identified in the NES Report, the plaintiff herself 'said that she did not think she would be able to handle these jobs, mainly due to the reading and writing involved.'[47]

91 The Panel cannot be required to list every potential duty that may be involved in the vast range of jobs meeting each of the four general descriptions of employment contained in the NES Report, and analyse each one in the context of the plaintiff's physical and mental capacity. To do so would be an immense task well outside the scope of what is required of a medical panel. This is especially so considering that each specific role for which the plaintiff may apply will likely be different, and adjustments are likely to be made to accommodate her injuries where this is possible. I do not consider that any of the authorities relied upon by the plaintiff goes so far as to support such a conclusion.

92 Finally, the plaintiff argued that the Panel's reasons were inadequate in that they failed to address the conclusions drawn by Dr Horsley in relation to the plaintiff's physical restrictions, or Ms George's assessment that 'there was no unrestricted recognised occupation in the open labour market for which Ms Richter was likely to qualify and be suitable taking account of her injury.' This argument is plainly contrary to authority, and can be dealt with as such. As quoted above, the High Court in Wingfoot made the following statement:

A Medical Panel explaining in a statement of reasons 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.[48]

93 As a result, the Panel in this case was not required to address either Dr Horsley's conclusion or Ms George's. It formed its own opinion as to the plaintiff's physical capacity, which was clearly contrary to that of the plaintiff given the Panel's findings that she had misstated and exaggerated her symptoms. It is no surprise that it thus formed a different opinion in relation to the suitability of particular employment.

94 I accept on the authority of S v Crimes Compensation Tribunal that, while the construction of the phrase 'suitable employment' is a question of law, the determination of whether the duties listed above in relation to the role of light process worker fall within the scope of that phrase is one of fact, to be determined by the Panel on the basis of the plaintiff's capacity and restrictions as it has found them to be. Ultimately, I consider that the determination of this question by the Panel falls squarely within the concept of a value judgment, as outlined in Warfe, on which minds can legitimately differ and which is not amenable to explicit detailed reasoning.

95 The authority of Wingfoot clearly states that all that is required of a medical panel is to disclose the path of reasoning by which it reached its conclusion in sufficient detail to enable a court to determine whether it has fallen into an error of law. The Panel's path of reasoning in this case is clear. In particular, I note that the Panel placed a significant emphasis on its conclusion that the plaintiff had exaggerated or misstated her physical limitations, with the necessary result being that its opinion of her physical capacity would differ from that of the experts on which she has relied. This is a finding of fact that is not open to challenge or evaluation upon judicial review, and goes a long way to disclosing the reasoning of the Panel in determining that the plaintiff had a capacity to undertake employment that she, as well as Dr Horsley and Ms George, did not consider to be suitable. I find that the Panel has given adequate consideration to all of the relevant considerations under the Act and adequately explained its path of reasoning. Consequently, I do not consider that the Panel's reasons were inadequate.

96 On the basis of the above discussion, I consider that the Panel made no error of law, either by failing to take into account mandatory considerations or by failing to provide adequate reasons for its decision. As a result, I will dismiss the plaintiff's application and invite the parties to make submissions as to costs.

[1] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

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

[3] Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [61] (citations omitted).

[4] Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [60] (citations omitted).

[9] Ball v William Hunt & Sons Ltd [1912] AC 496, 499-500 (emphasis added).

[11] Lianos v Inner & Eastern Health Care Network [1999] VSC 307.

[13] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622.

[14] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, 636 [25].

[15] Ibid 636-7 [27] (Phillips JA, with whom Ormiston and Chernov JJA agreed).

[16] See, eg, State of Victoria v Rattray (2006) 154 IR 346; Smorgon Steel Tubes Mills Pty Ltd v Majkic [2008] VSCA 230; (2008) 21 VR 193; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120.

[17] Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 [99].

[18] Smorgon Steel Tubes Mills Pty Ltd v Majkic [2008] VSCA 230; (2008) 21 VR 193 [10]-[11].

[19] Annotated Plaintiff's Outline of Submissions, 26 July 2015, 12 [44].

[20] Transcript of Proceedings, Richter v Driscoll (Supreme Court of Victoria, S CI 2014 05562, Zammit J, 27 July 2015) 29.

[21] In this respect, the employers point to the Equal Opportunity Act 2010 (Vic), the Disability Discrimination Act 1992 (Cth), and the Age Discrimination Act 2004 (Cth).

[22] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, 636 [25].

[25] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, 637 [27].

[27] [1922] 2 KB 201, 715 (emphasis added).

[31] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 499 [47].

[33] S v Crimes Compensation Tribunal (1998) 1 VR 83, 89 (citations omitted).

[34] Warfe v Woolworths Ltd [2013] VSCA 22, [131] (citations omitted).

[40] North v Homolka [2014] VSC 478, [95] (Ashley JA).

[41] Medical Panel Reasons for Opinion dated 22 August 2014, 10.

[44] Cf Denham [2014] VSC 520, [39] (T Forrest J).

[45] Gruma [2014] VSCA 252, [37].

[48] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 502 [56].

Workplace Injury Rehabilitation and Compensation Act 2013(Vic)

Injury Rehabilitation and Compensation Act 2013

Compensation Act 1985

Opportunity Act 2010

Discrimination Act 1992

Discrimination Act 2004

At a glance

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Judgment (194 paragraphs)

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Legislation Cited (6)

Cases Cited (8)